Extend the Powers of the Fair Work Commission to Include ‘Employee-Like’ Forms of Work

View the Employee-Like - Forms of Work consultation paper

Issues

• At the 2022 Federal Election, the Australian Government committed to empowering the Fair Work Commission to set minimum standards for workers in ‘employee-like’ forms of work, including the gig economy.
• At the Jobs and Skills Summit in September 2022, the Government further committed to progress work to:
  • consider allowing the Fair Work Commission to set fair minimum standards to ensure the Road Transport Industry is safe, sustainable and viable, and
  • amend relevant legislation to give workers the right to challenge unfair contractual terms.

Considerations

• The Government recognises the benefits that the gig economy brings to workers, businesses and consumers, providing that it operates sustainably.
• The Government is utilising five guiding principles in developing the details of the three commitments:
  • Australia’s workplace relations system must reflect modern working arrangements and be capable of evolving with emerging forms of work and business practices.
  • All workers should have access to minimum rights and protections regardless of whether they are characterised as an employee or an independent contractor, including access to freedom of association and dispute resolution.
  • Businesses should benefit from a level playing field among industry participants while promoting competition and innovation.
  • The Fair Work Commission should set minimum standards that:
    • are fair, relevant, proportionate, sustainable, and responsive
    • reflect workers’ independence and flexible working arrangements. For example, choosing which tasks to accept and refuse; how to undertake their work; where and when they work; and which businesses to contract with, and
    • mitigate, to the greatest extent possible, unintended consequences for workers, businesses, consumers, and other aspects of the labour market.
  • The standard-setting framework should be accessible, transparent, fair and offer a high degree of certainty to affected parties.

Key questions

Some questions include:

• What is the best approach to defining the scope of the Fair Work Commission’s new powers in relation to ‘employee-like’ forms of work, including with respect to factors around how workers are engaged?
• What factors should the Fair Work Commission consider in exercising its functions, including the kinds of standards that are needed?
• What kind of disputes should the Fair Work Commission be able to help resolve?