In the evolving landscape of work, regulated workers engaged in digital platforms and the road transport industry now have specific protections under new unfair dismissal regimes. These changes, set to commence on August 26, 2024, aim to provide a fairer framework for independent contractors such as digital platform workers like Uber drivers and regulated road transport contractors who operate under service contracts.

This article delves into the key elements of these new protections, the distinctions between unfair deactivation and unfair termination, and the remedies available under the Fair Work Commission's jurisdiction. Drawing on insights from Deputy President Saunders, national practice lead for unfair deactivation, unfair termination, and unfair contracts at the Fair Work Commission, we will explore how these legal provisions will impact regulated workers and their rights moving forward.

Table of Contents

• Who Are Regulated Workers?
• Unfair Deactivation vs. Unfair Termination
• Eligibility and Timing for Claims
• The Role of Codes: Digital Labor Platform Deactivation Code and Road Transport Industry Termination Code
• Assessing Unfair Deactivation Claims
• Unfair Termination for Regulated Road Transport Contractors
• Conclusion
• Frequently Asked Questions (FAQs)

Who Are Regulated Workers?

The term regulated workers under the new Act includes two primary categories:

• Employee-like workers performing digital platform work: These are independent contractors engaged through digital platforms, such as Uber drivers, who operate under a services contract with the platform operator.
• Regulated road transport contractors: Independent contractors, like a truck owner transporting goods for another company, who work under a services contract within the road transport industry.

It is important to note that these workers are not traditional employees but independent contractors who meet specific statutory criteria set forth in the legislation.

Unfair Deactivation vs. Unfair Termination

The legislation uses two distinct terms to address unfair dismissal claims depending on the category of regulated worker:

• Unfair deactivation: Applies to employee-like workers on digital platforms. For example, an Uber driver who is removed or "deactivated" from the platform may allege unfair deactivation.
• Unfair termination: Applies to regulated road transport contractors. For instance, a truck owner whose services contract is terminated, possibly due to a late delivery, may claim unfair termination.

Both types of claims share some common eligibility criteria:

• The applicant must earn less than the contractor high income threshold, which will be set by forthcoming regulations.
• Applications must be lodged within 21 days of the deactivation or termination, although the Fair Work Commission may extend this deadline in exceptional circumstances.

Eligibility and Timing for Claims

To be protected against unfair deactivation, an employee-like worker must:

• Perform work on a digital labor platform operated by a recognised platform operator.
• Have a services contract with the platform operator.
• Have been performing work regularly for at least six months, starting from the commencement date of August 26, 2024.

This means that claims cannot be competently made until approximately February 2025, six months after the provisions come into force.

Similarly, regulated road transport contractors must have performed work under a services contract in the road transport industry for at least six months before they can make an unfair termination claim.

The Role of Codes: Digital Labor Platform Deactivation Code and Road Transport Industry Termination Code

Two codes play a crucial role in assessing the fairness of deactivation or termination:

• Digital Labor Platform Deactivation Code: This mandatory code, to be made by the Minister, will outline detailed processes and rights related to deactivation. It will cover:
• What constitutes regular work
• Valid reasons for deactivation
• Rights to respond to deactivation
• Communication protocols between platforms and workers
• Other matters deemed appropriate by the Minister
• Road Transport Industry Termination Code: Unlike the digital platform code, this code is discretionary. If made, it will set out similar details relevant to unfair termination claims in the road transport sector.

Until these codes are published, the Fair Work Commission will rely on the legislative framework and principles of fairness to adjudicate claims.

Assessing Unfair Deactivation Claims

When deciding whether a deactivation was unfair, the Fair Work Commission considers several factors:

• Whether there was a valid reason related to the worker's capacity or conduct.
• Whether the processes outlined in the deactivation code were followed.
• Any other relevant matters.

Notably, deactivation due to serious misconduct is automatically deemed not unfair. Also, short-term deactivation (less than seven business days) for reasons such as protecting health and safety, fraudulent conduct, non-compliance with licensing, or investigations is not considered unfair.

Remedies for Unfair Deactivation

If the Commission finds that a worker was unfairly deactivated, it can order reactivation, which is similar to reinstatement in traditional unfair dismissal cases. This means:

• Removing any suspension imposed on the worker.
• Restoring access to the digital platform if the worker was terminated.
• In cases where the original platform no longer exists, the order may be directed to an associated entity operating a similar platform.

However, the Commission cannot award compensation for unfair deactivation. It can order payment for lost remuneration during the period the worker was deactivated, considering factors such as whether the worker mitigated losses or earned income elsewhere.

Unfair Termination for Regulated Road Transport Contractors

For road transport contractors, protection from unfair termination requires:

• The person to be a regulated road transport contractor performing work under a service contract.
• Having performed work regularly for at least six months from August 26, 2024.

The Commission must be satisfied that:

• The person was engaged in road transport work.
• The termination occurred and was unfair.
• The termination was not consistent with the Road Transport Industry Termination Code, if made.

Similar to unfair deactivation, termination due to serious misconduct is automatically not unfair.

Remedies for Unfair Termination

The Fair Work Commission has two main remedies for unfair termination claims:

• Ordering a new contract: The Commission can require the road transport business to enter into a new contract on the same or varied terms as the original.
• Ordering compensation: If a new contract is not appropriate, the Commission may award compensation, subject to a cap equivalent to six months of the annual contractor high income threshold.

The Commission also has discretion to order lost pay for the period between termination and the new contract commencement, considering the worker’s efforts to mitigate losses.

Conclusion

The introduction of unfair dismissal regimes for regulated workers represents a significant step toward protecting independent contractors in digital platforms and the road transport industry. While these workers are not employees in the traditional sense, the new legislation recognizes their unique position and offers tailored remedies for unfair deactivation and termination.

Understanding the eligibility criteria, the role of statutory codes, and the available remedies is essential for regulated workers and businesses alike. As these provisions come into effect in August 2024, and with applications having commenced from February 2025, staying informed will be key to navigating this new legal landscape.

Frequently Asked Questions (FAQs)

Who qualifies as a regulated worker under the new unfair dismissal regime?

Regulated workers include employee-like workers performing digital platform work (e.g., Uber drivers) and regulated road transport contractors engaged under service contracts within the road transport industry.

When do the new unfair dismissal protections commence?

The provisions commence on August 26, 2024, but workers must have performed work for at least six months from that date before making a claim, meaning applications will generally be accepted from February 2025 onwards.

What is the difference between unfair deactivation and unfair termination?

Unfair deactivation refers to claims by digital platform workers who are removed from the platform, while unfair termination pertains to regulated road transport contractors whose service contracts are ended unfairly.

Can the Fair Work Commission award compensation for unfair deactivation?

No, compensation is not available for unfair deactivation cases. However, the Commission can order payment for lost remuneration during the deactivation period if reactivation is ordered.

What remedies are available for unfair termination of road transport contractors?

The Commission can order a new contract or award compensation, with a compensation cap equivalent to six months of the contractor high income threshold.

Are there any circumstances where deactivation or termination is automatically not unfair?

Yes, deactivation or termination due to serious misconduct is automatically considered not unfair under the legislation.

This article was created from the FWA video "Unfair jurisdiction for digital platform workers and road transport contractors".