Gig Worker Rights 2026: The New 'Employee-Like' Category Explained

When it comes to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 created a new category of worker in Australian labour law: the 'employee-like' worker. This category sits between a traditional employee (who has full Fair Work Act protections) and an independent contractor (who has almost none). A worker is 'employee-like' if they meet three criteria under section 15P of the Fair Work Act 2009.

• the worker performs work through or for a digital labour platform — a technology-enabled marketplace that connects workers with people who want work done, where the platform exercises a degree of control over the work
• the worker has low bargaining power in the relationship — they cannot meaningfully negotiate their terms, rates, or conditions
• the worker receives remuneration at or below the rate an employee would receive for comparable work. This definition is deliberately broad enough to capture the range of platform work models, from ride-share (Uber, DiDi, Ola) to food delivery (Deliveroo, DoorDash, Menulog) to task-based platforms (Airtasker, Hipages) to care platforms (Mable). The critical distinction is that the platform must exercise some degree of control — setting or influencing prices, allocating work, imposing performance metrics, or controlling how the work is performed

So, the employee-like provisions cover workers on digital labour platforms where the platform controls or influences key aspects of the work arrangement. The most obvious examples are ride-share drivers for Uber, DiDi, Ola, and similar services — the platform sets the fare, assigns the ride, tracks the route, and rates the driver. Food delivery riders and drivers for Deliveroo, DoorDash, Menulog, and Uber Eats are covered — the platform sets delivery fees, assigns orders, and tracks performance.

Task-based workers on platforms like Airtasker, where the platform facilitates connections but may influence pricing through suggested rates and algorithmic matching, may be covered depending on the degree of platform control in each case. Care and domestic workers on platforms like Mable or Care.com may be covered where the platform exercises control over pricing, matching, and service standards.

Freelance platforms like Upwork and Fiverr are less likely to be covered because workers on those platforms typically set their own rates and negotiate directly with clients — the platform acts as a marketplace rather than controlling the work. The FWC will make determinations on a platform-by-platform basis, assessing the degree of control exercised by each platform to determine whether workers meet the employee-like criteria. Keep records.

The Fair Work Commission has been given broad powers to set minimum standards for employee-like workers through 'minimum standards orders'. These orders can cover payment terms, including minimum rates of pay per trip, per delivery, or per task — ensuring workers are not paid below what an equivalent employee would earn after accounting for the costs they bear (vehicle expenses, insurance, phone, etc). The FWC can set standards for working conditions, including maximum hours, rest breaks between shifts, and transparent information about how pay is calculated.

Deductions and expenses can be regulated — the FWC can specify which costs the platform can deduct from payments and require transparency about how deductions are calculated. Insurance and safety provisions can be mandated, including minimum insurance coverage for workers while performing platform work and safety equipment requirements.

The FWC can also require consultation obligations — platforms must consult with workers (or their representatives) before making significant changes to pay rates, algorithms, or working conditions that affect workers' earnings. The FWC determines these standards through a process similar to award reviews — it conducts research, receives submissions from platforms, workers, unions, and other stakeholders, and makes orders based on the evidence. The Transport Workers' Union (TWU) has been particularly active in advocating for minimum standards for ride-share and delivery workers. Keep records (and yes, this applies to casuals too).

One of the most significant protections for employee-like workers is the new unfair deactivation regime under sections 536LC to 536LF of the Fair Work Act. Previously, a platform could deactivate (effectively terminate) a worker's account without warning, without explanation, and without any right of appeal — even if the worker depended on the platform for their livelihood. Under the new provisions, deactivation of an employee-like worker must not be harsh, unjust, or unreasonable — the same test that applies to unfair dismissal of employees under section 385 of the Act.

This means the platform must have a valid reason for deactivation (such as serious safety violations, fraud, or consistent failure to meet reasonable performance standards), the worker must be notified of the reason and given an opportunity to respond before deactivation takes effect (except in cases of serious misconduct or safety risk), and the deactivation process must be fair and transparent. If a worker believes they have been unfairly deactivated, they can apply to the FWC for a remedy within 21 days of the deactivation taking effect — the same timeframe as unfair dismissal applications.

The FWC can order reinstatement (reactivation of the account) or compensation. This protection applies regardless of how many hours the worker performs on the platform — there is no minimum service period equivalent to the 6-month or 12-month qualifying period for unfair dismissal of employees.

Employee-like workers receive a targeted set of protections that are more limited than those available to employees but far more extensive than those available to independent contractors. You get minimum pay standards set by the FWC, ensuring you're not paid below a fair rate for the work you perform. You get protection against unfair deactivation, as described above.

You get access to collective bargaining — employee-like workers can form or join unions and bargain collectively with the platform for better terms, without the risk of the platform retaliating (which is protected under the general protections provisions of Part 3-1 of the Fair Work Act). You get access to the FWC's dispute resolution processes for issues related to your terms and conditions.

Real talk: What you do not get as an employee-like worker includes annual leave, personal/carer's leave, long service leave, and other NES entitlements — these remain available only to employees. You do not get workers' compensation through the standard state-based workers' compensation schemes (though minimum standards orders may require platforms to provide equivalent insurance).

You aren't covered by unfair dismissal provisions — instead, you've the separate unfair deactivation regime.

You're not entitled to superannuation guarantee contributions from the platform (though this may change in future legislative reforms). No exceptions.

The employee-like category is a pragmatic middle ground, not full employment — but it's a significant improvement over the previous situation where gig workers had essentially no workplace protections.

About the creation of the employee-like category doesn't change the fundamental distinction between employees and independent contractors in Australian law. If you're a genuine independent contractor — you control how, when, and where you work, you set your own prices, you can delegate the work to someone else, you bear the commercial risk of the engagement, and you are running your own business — you remain an independent contractor with full autonomy and minimal workplace regulation. The employee-like category specifically targets the grey zone where workers are labelled as contractors but lack genuine independence.

The High Court's decisions in CFMMEU v Personnel Contracting (2022) and ZG Operations v Jamsek (2022) remain the definitive test for the employee/contractor distinction — the written contract is paramount, and the totality of the relationship is assessed based on the contractual terms. What the employee-like provisions add is a third category for workers who are clearly not employees under the contractual test but who also clearly lack the independence and bargaining power of genuine contractors.

Platforms that genuinely operate as marketplaces connecting independent businesses with clients — where the worker sets their own rates, chooses their own clients, and operates their own business — are unlikely to have their workers classified as employee-like. The provisions target platforms that exercise significant control while maintaining the legal fiction of contractor status.