Gig Worker Rights Australia 2026: Are You an 'Employee-Like' Worker?
New laws give gig workers minimum standards and protections against unfair deactivation. Find out if you're an 'employee-like' worker and what rights you now have under Australian law.
What changed for gig workers in Australia?
The Fair Work Legislation Amendment (Closing Loopholes) Act introduced a new category of worker into Australian law: the "employee-like" worker. This was the most significant reform to gig worker rights in Australian history. For years, gig economy platforms — Uber, DoorDash, Menulog, Deliveroo, Airtasker, and others — classified their workers as independent contractors, meaning they had no access to minimum wages, unfair dismissal protections, or leave entitlements. The Closing Loopholes reforms changed this by creating a framework for the Fair Work Commission to set minimum standards for workers who are technically contractors but are, in substance, performing work in a way that resembles employment. The reforms also introduced a Deactivation Code of Practice, which took effect in February 2025, providing specific protections against unfair deactivation (the gig economy equivalent of being fired). These changes mean that if you drive for Uber, deliver for DoorDash, or work through similar platforms, you may now have enforceable workplace rights for the first time.
Are you an 'employee-like' worker? The three-part test
Under the new laws, a worker is considered "employee-like" if they meet three criteria. First, the work is performed by an individual (not a company or partnership). Second, the worker has low bargaining power in the arrangement — meaning they have little or no ability to negotiate rates or conditions with the platform. Third, the worker receives remuneration at or below a rate that could be set by the Fair Work Commission, or the worker performs "digital platform work" (work arranged through a digital platform). In practice, this captures the vast majority of gig workers: ride-share drivers, food delivery riders, parcel delivery drivers, and workers on task-based platforms. The FWC has the power to make "minimum standards orders" that set floor conditions for employee-like workers, including minimum pay rates, insurance requirements, consultation obligations, and working time protections. The Commission can also make "guidelines" that platforms must follow. If you work through a digital platform and have no real ability to negotiate your rates, you are very likely covered by these new protections.
The Deactivation Code: protection against unfair 'firing'
One of the most immediate protections for gig workers is the Deactivation Code of Practice, which came into effect in February 2025. Previously, platforms could deactivate workers (effectively terminating their ability to earn income) with little or no explanation, no warning, and no avenue for review. Under the new code, platforms must provide gig workers with at least seven days' notice before deactivation (except in cases involving serious safety concerns or fraud), a clear written explanation of the reasons for deactivation, access to an internal review process, and the right to have the decision reviewed by an independent body if the internal review is unsatisfactory. Platforms must also maintain a transparent deactivation policy that is easily accessible to all workers. If you have been deactivated from a platform and believe the deactivation was unfair or did not follow the code, you can lodge a complaint with the Fair Work Commission. This is a fundamental shift — for the first time, gig workers have a formal avenue to challenge being cut off from their income source.
Minimum standards orders: what the FWC can set
The Fair Work Commission now has the power to make minimum standards orders for employee-like workers. These orders can cover: minimum rates of pay (including per-task, per-delivery, or per-trip minimums); payment terms including when payment must be made; insurance and indemnity requirements; consultation and representation rights; working time and availability requirements; and deactivation protections beyond the code. The FWC is currently working through the process of establishing these standards for different sectors of the gig economy. The Transport Workers Union has been a driving force in seeking minimum standards for ride-share and delivery drivers, and several applications for minimum standards orders are either filed or in progress. Once minimum standards orders are made, platforms that fail to comply face penalties under the Fair Work Act. This means that the days of platforms paying below-minimum-wage effective rates — once widespread in the food delivery sector — are numbered. The FWC has signalled that its approach will be to set standards that provide a genuine floor while preserving the flexibility that many gig workers value.
What about the contractor vs employee distinction?
The Closing Loopholes Act also changed how the contractor vs employee distinction is assessed more broadly. Previously, courts focused heavily on the terms of the written contract. Now, the law requires looking at the "real substance, practical reality, and true nature" of the working relationship — not just what the contract says. This "whole of relationship" test means that if a platform exercises significant control over how you do the work, sets your rates, requires you to wear branded clothing, monitors your performance through ratings, and allocates work to you, you may actually be an employee rather than a contractor — regardless of what your contract says. Sham contracting — where an employer deliberately misclassifies an employee as a contractor to avoid paying entitlements — carries penalties of up to $469,500 for a corporation. The employee-like worker category sits between traditional employment and genuine independent contracting. If you believe you have been misclassified and are actually performing work as an employee, you may have a separate claim for all employment entitlements (minimum wage, super, leave) dating back up to six years.
What should gig workers do right now?
If you work in the gig economy, here is what you should do. First, understand which platforms you work for and whether you meet the employee-like criteria — if you have low bargaining power and work through a digital platform, you are almost certainly covered. Second, familiarise yourself with the platform's deactivation policy and your rights under the Deactivation Code. Third, keep records of all work performed, hours online and active, earnings, and expenses — this will be essential evidence if minimum standards orders are made and you need to verify you are being paid correctly. Fourth, join a relevant union or worker collective — the Transport Workers Union, the Retail and Fast Food Workers Union, and others are actively advocating for gig worker rights and can represent you in FWC proceedings. Fifth, if you believe you have been unfairly deactivated, act quickly — contact the Fair Work Commission. Sixth, check whether you are receiving superannuation — from 1 July 2026, the expanded payday super rules may affect how and when super is paid for gig workers, depending on how the FWC's minimum standards orders develop. The gig economy rights landscape is evolving rapidly, and staying informed is your best protection.
Official resources
General information and estimates only — not legal, financial, or tax advice. Always verify with the Fair Work Ombudsman (13 13 94) or a qualified professional.
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