Understanding the New Unfair Deactivation Protections for Employee-Like Workers

From 26 February 2025, significant changes to the Fair Work Act 2009 have introduced new protections for employee-like workers against unfair deactivation from digital labour platforms. These changes aim to ensure fair treatment for workers in the gig economy, such as delivery drivers and ride-share operators.

What Constitutes Unfair Deactivation?

Unfair deactivation occurs when a digital labour platform operator changes, suspends, or terminates a worker's access to the platform, preventing them from performing work, without adhering to the prescribed fair process. The Fair Work Commission assesses deactivation cases based on:

• Whether there was a valid reason related to the worker's capacity or conduct.

• Compliance with the Digital Labour Platform Deactivation Code.

• Other relevant considerations.

A deactivation is not deemed unfair if it results from serious misconduct or is a temporary suspension (seven business days or less) for specific reasons, such as health and safety concerns or pending investigations.

Understanding the New Unfair Deactivation Protections for Employee-Like Workers

Eligibility Criteria for Protection

To be protected under the new provisions, a worker must:

• Be classified as an employee-like worker.

• Have performed work through a digital labour platform for at least six months on a regular basis since 26 August 2024.

• Earn less than the contractor high income threshold (currently $175,000 for the 2024–25 financial year).

• Have been deactivated on or after 26 February 2025.

Application Process

Eligible workers can apply for a remedy using Form F89, available on the Fair Work Commission's website. Applications must be lodged within 21 days of the deactivation date. The application requires details such as contact information, the date work commenced on the platform, information about the deactivation, income details, and the desired outcome.

Potential Remedies

If the Commission determines that a deactivation was unfair, it may order the platform operator to:

• Reactivate the worker's access to the platform.

• Pay remuneration lost due to the deactivation.

It's important to note that the Commission cannot order compensation beyond lost remuneration.

Further Resources

While a specific benchbook for unfair deactivation is under development, the Fair Work Commission's Unfair Dismissals Benchbook provides relevant guidance.

Conclusion

These legislative changes mark a significant step in extending workplace protections to gig economy workers. Employee-like workers should familiarise themselves with these new rights and the processes for seeking remedies in cases of unfair deactivation.