Gig Workers Are No Longer an Afterthought: How Australia’s Workplace Laws Have Finally Begun to Catch Up

By BAJN.au

Australia’s Workforce Has Changed Forever

Not long ago, work in Australia followed a familiar pattern. People were employees, independent contractors, or business owners. Today, that distinction has become increasingly blurred.

Hundreds of thousands of Australians now earn their income through digital labour platforms such as Uber, Uber Eats, DoorDash, Menulog, Amazon Flex, Airtasker and other app-based services. These workers—commonly known as gig workers—have become an essential part of Australia’s modern economy.

They transport us to work, deliver our meals, provide care services, complete household tasks and keep businesses operating around the clock.

Yet for many years they occupied an uncomfortable legal position. They were frequently described as independent contractors while often having little real bargaining power, little control over pricing, and facing immediate deactivation from a platform with little or no procedural fairness.

That position has now begun to change.

The Gig Economy Is Here to Stay

The digital economy has fundamentally reshaped Australia’s labour market.

Unlike traditional employment, gig work offers flexibility. Workers often choose when they work, how long they work and whether to accept individual jobs.

For many Australians this flexibility is invaluable. Students, parents, retirees and people supplementing other employment rely on gig work to generate income.

However, flexibility should never come at the expense of fairness.

Many platform workers have historically experienced:

• Low and unpredictable earnings

• Algorithmic management

• Limited bargaining power

• No paid leave

• No unfair dismissal protections

• Immediate account deactivation without adequate explanation

• One-sided service contracts drafted entirely by multinational platforms

These concerns led to years of debate about whether Australia’s workplace laws remained fit for purpose.

The Closing Loopholes Reforms

In 2024, Parliament enacted the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, representing the most significant reform to gig work regulation Australia has ever seen.

Rather than simply declaring all gig workers to be employees, Parliament created a new regulatory framework recognising that many platform workers occupy a unique position somewhere between traditional employees and genuine independent business operators.

The legislation introduced the concept of an “employee-like worker.”

An employee-like worker is generally someone who:

• performs digital platform work;

• operates under a services contract;

• has low bargaining power;

• receives remuneration comparable to or less than employees performing similar work; and

• exercises limited control over how the work is performed. (Fair Work Ombudsman⁠)

New Rights for Gig Workers

Eligible employee-like workers now enjoy important statutory protections previously unavailable to most contractors.

These include:

• Fair Work Commission minimum standards orders

• Collective agreements

• Protection against unfair deactivation

• Protection against unfair contractual terms

• Workplace delegate rights

• Dispute resolution through the Fair Work Commission. (Fair Work Ombudsman⁠)

These reforms recognise that digital platforms often exercise significant commercial control over workers despite describing them as contractors.

Unfair Deactivation

Perhaps the most significant reform is protection against unfair deactivation.

Historically, a platform could suspend or permanently deactivate a driver’s or rider’s account, immediately removing their income, often with little explanation.

Since 26 February 2025, eligible digital platform businesses must comply with the Digital Labour Platform Deactivation Code, requiring a fair process before permanently deactivating an employee-like worker. This includes notifying the worker of the proposed action, providing reasons, allowing a response in many circumstances, and following procedural requirements before a final decision is made.

The Fair Work Commission can now review whether a deactivation was unfair and, where appropriate, order reactivation or other remedies available under the legislation.

The Landmark Foodora Decision

Although legislative reform arrived in 2024, the modern debate surrounding gig workers arguably began much earlier.

One of Australia’s most influential decisions was:

Klooger v Foodora Australia Pty Ltd [2018] FWC 6836

Joshua Klooger worked as a Foodora delivery rider and was engaged as an independent contractor.

The Fair Work Commission looked beyond the label contained within the written agreement and examined the practical reality of the relationship.

Commissioner Cambridge found that Mr Klooger was, in substance, an employee rather than an independent contractor.

The Commission considered matters including:

• Foodora’s control over work allocation;

• performance management systems;

• branded uniforms;

• limited entrepreneurial independence;

• economic dependence on the platform; and

• the overall nature of the working relationship.

The decision became one of Australia’s first major gig economy authorities and significantly influenced the national discussion that ultimately resulted in legislative reform. It also drew heavily upon the High Court’s earlier reasoning in Hollis v Vabu Pty Ltd (2001) 207 CLR 21, which emphasised that courts should examine the true nature of the working relationship rather than simply the contractual label.

Although later High Court decisions such as CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 initially shifted emphasis toward contractual terms, the Closing Loopholes reforms have now restored a broader assessment based upon the real substance and practical reality of the relationship in many contexts.

Why These Changes Matter

Australia’s industrial relations system has always evolved alongside changes in the economy.

From factories to offices.

From offices to remote work.

From permanent employment to digital labour platforms.

The law must evolve with it.

Gig workers deserve flexibility—but they also deserve fairness.

The new framework does not eliminate independent contracting, nor should it. Genuine contractors remain an important part of Australia’s economy.

Instead, the reforms recognise that where workers have little bargaining power and are economically dependent upon digital platforms, basic workplace protections should exist.

The Future of Platform Work

These reforms are only the beginning.

The Fair Work Commission continues developing minimum standards for digital platform workers, and further applications concerning pay, safety, contractual fairness and working conditions are expected over coming years.

Australia has become one of the first jurisdictions in the world to create a dedicated workplace relations framework for employee-like gig workers.

As technology continues to reshape how Australians work, the challenge for lawmakers will remain the same:

To encourage innovation without sacrificing fairness.

Because the future of work should never require workers to surrender their dignity simply because their boss happens to be an algorithm.

General Information Only

This article is provided for general information and educational purposes only. It does not constitute legal advice. Every workplace situation is different, and individuals should obtain advice appropriate to their own circumstances.

BAJN.au provides employment and human rights advocacy services and is not a law practice.