What is a "gig worker"?

Who is a "gig worker"?

A ‘gig worker’ is someone who typically engages in short-term, flexible work arrangements, which are often facilitated through digital platforms or apps.  Gig workers perform tasks or projects on a per-job basis.  For some, these engagements are “side hustles” that fit around their 9-to-5s.  For others, they are their predominant (or sole) source of income.  

How do we classify gig workers?

Gig workers have historically been classified to be ‘independent contractors’ rather than employees. This classification has a significant impact on their legal entitlements and protections. For example, unlike permanent employees, they don’t receive benefits such as superannuation, annual leave, and personal leave.  They may not have access to protections such as workers compensation insurance, and are vulnerable to the sudden “deactivation” of their account from their platform of choice.

However, the traditional employee/contractor legal divide pre-dates the rise of the ‘gig economy’.  Increasingly, regulators have been convinced by the argument that gig workers are neither true independent contractors nor employees, but sit somewhere in between.  This lack of clarity has led to the creation of a new regulatory regime designed to sit alongside existing legal frameworks for this new category of “employee-like workers”. 

Updates that will affect the gig economy

From August 2024, the Fair Work Commission has had the power to set minimum standards for “employee-like workers”.  “Employee-like workers” are those who perform digital platform work under a services contract and are not employees, as well as satisfying at least two of the following conditions:

• They have low bargaining power;
• They are paid at or below the rate of an employee performing comparable work;
• They have a low degree of authority over the performance of the work; and
• Any other conditions prescribed by the Fair Work Regulations. 

Consultation has recently begun in the Fair Work Commission regarding an application by the Transport Workers’ Union of Australia for  minimum standards order to cover employee-like workers who are engaging in food and beverage delivery. 

The TWU are seeking enforceable minimum conditions for gig-platform delivery workers including:

• Comprehensive conditions concerning the provision of assets
• Comprehensive conditions concerning the performance of the work 
• Conditions allowing forms of leave
• Superannuation
• Safety training
• Paid fatigue breaks
• Minimum payments based on a cost recovery model 
• Surcharges for things like waiting time
• A seven-day payment/reconciliation period.

Nigel Ward and Julian Arndt are involved in the sub-committee that is consulting on these applications. To stay updated on these developments, make sure you're subscribed to receive our alerts.