New rights for a new type of employment
Gig workers now have new rights under the Fair Work Act 2009. A ‘gig worker’ are independent contractors that engage in temporary or freelance work. The work is done on an on-demand basis and typically through an app or third-party platform. This would include people who ride-share, deliver food, tutors, dog walkers, etc.
New legislation and rules have been introduced in an attempt to close loopholes within employment law. One of those issues include the fact that gig workers are having their accounts deactivated. Preventing them from working and receiving an income for seemingly no, or unfair, reasons. While traditional employees had rights in terms of terminating their employment. Gig workers did not have the same protections or ability to appeal decisions.
The new legislation works similarly to an unfair dismissal claim. In which, there are now rules and regulations that uphold procedural fairness before a gig worker can be deactivated from a platform or otherwise prevented from working.
This change in legislation is to ensure more job security in areas of work that are less secure than permanent positions. Furthermore, platforms are being increasingly criticized for their lack of support or accessibility when unfair circumstances arise. Including the ability to appeal decisions of deactivation. Or the ability to allow gig workers an opportunity to explain their side of the story.
What’s new for gig workers?
The new rules around deactivation and how gig workers can lodge claims are fairly similar to an unfair dismissal claim.
- Gig workers must lodge their claim within 21 days of their deactivation.
- The worker must have been working regularly for at least 6 months, from 26 August 2024.
- The deactivation must have happened on or after 26 February 2025.
- The workers annual earnings must be less than the contractor’s high income threshold of $183,100.
However there are also areas of the new claim that are unique and only relevant for gig workers. For example, the gig worker must be an “employee like worker”. Meaning that two of the following elements must be present in your type of employment.
- Low bargaining power.
- Pay at or below the rate received by an employee doing similar work.
- A low degree of authority over the performance of work.
For example, a gig worker with “employee like work” may be able to set what time that they start and stop work. Or be able to choose the type of work that they want to commence (dog walking or food delivery). However, they have limited capability in the rate of which the work is charged. Or decision making power in how the work is performed.
It is also important to note, that the work must be performed, or otherwise managed, through a digital labor platform. This is to say that the decision to deactivate a person’s account cannot arise from the gig-worker themselves. The decision to deactivate would have to come through the digital labor platform in some capacity.
Out of time
In a recent case, the Fair Work Commission has commented on the similarities between unfair deactivation applications and unfair dismissal claims. In the case of Mr Musharaf Waheed v Rasier Pacific Pty Ltd [2025] FWC 2787, Uber tried to argue that the Applicant had lodged his claim outside of the 21 day limit. However, the Applicant was only informed of his deactivation at approximately 3:00 am June 17. Subsequently lodging his claim on 8 July, on his 21st day.
Uber had tried to argue that his deactivation occurred on 16 June. Therefore, they believe his claim was lodged on its 22nd day. Uber had not considered the fact that that act of deactivation, similarly to termination, does not automatically start the 21 day time limit. The limit starts from when the worker has been notified of the deactivation.
This case highlights that gig workers are given relatively similar rights, and Fair Work rules to follow, as traditional employees. Protecting their job security and ensuring procedural fairness within the workplace. Even in circumstances where the ‘workplace’ is more of a fluid concept, rather than a physical building.
Deactivation rules
When lodging a deactivation claim, the purpose of the claim is to not automatically reactivate the account. The purpose is to allow the Fair Work Commission an opportunity to decide whether the deactivation was unfair. There must be a good reason as to why an account was deactivated. Whether that be due to poor job performance or poor conduct.
Furthermore, the process of deactivating an account must align with the new ‘Digital Labour Platform Deactivation Code’. This can be found on the Fair Work Commission website. The Commission may also consider any other relevant information.
The new ‘Code’ outlines a new specification that gig workers must generally be given a warning prior to a digital labour platform operator deciding to deactivate their account. This must follow a similar structure that a permanent employee would be issued. The warnings specify the reason for the warning. Allows an opportunity to improve, and warns that similar conduct or performance may result in deactivation. Requirement to provide a warning is not required in circumstances of serious misconduct.
Moreover, the labour platform operator must allow and consider the gig workers response to the allegations prior to deactivating them. After allowing the gig worker an opportunity to respond, the platform operator then can decide to continue or deactivate the account.
No additional compensation for gig workers
As a remedy to a claim being lodged, the Fair Work Commission will be able to order the digital platform operator to reactivate the account. Alternatively, they may be able to order the digital platform operator to pay the money lost due to deactivation. However, the Commission cannot order the gig worker to be paid compensation. Any money ordered will be due to loss of income.
Landmine case
Despite how new the legislation is, important cases are starting to arise regarding the rights of gig workers. In the case of Mohammad Shareef Hotak v Rasier Pacific Pty Ltd [2025] FWCFB 214, Uber was ordered to pay one of their drivers after he was deactivated from the app. The driver was deactivated after being falsely accused of being threatening to passengers, with the use of a baseball bat.
The Uber driver had been using the platform for over four and a half years, and throughout that time upheld a high standard of work. In the incident itself, the Uber driver upheld that he never made any threats or possessed any weapons. Instead, he had told the riders to stop using drugs in his car. Unhappy, the riders assaulted him from the backseat and left the vehicle. The Uber driver immediately called the police after the incident.
First Uber driver awarded compensation
It was found that the allegations of threatening passengers with a baseball bat was unsubstantiated. As a remedy, the Fair Work Commission ordered Uber to reinstate the driver, reactivating his account, and ordered them to pay approximatly 2 months of wages.
Uber tried to fight the order, stating that the Fair Works Commission could not order anything more than reactivation. The Commission clarified that Uber’s interpretation of their powers was incorrect. Instead, the Commission has the power to restore drivers to their position prior to their deactivation. Including restoring lost pay throughout that time.
An argument was made that the Commission should have the broad power to remove negative reviews related to the incident as a way to rectify false allegations. However, the Commission clarified that they were not able to remove the reviews as the reviews happened prior to the deactivation.
Criticism from the Commission
As a part of the decision, the Fair Work Commission criticised Uber for their actions of avoiding accountability, and their lack of human representatives. The Commission commented thats Uber’s tactics and inetrpretation of the Act would wropngfully allow them to “avoid scrutiny or accountability”. This also hindered the driver’s ability to seek remedial orders.
This case is the first of its kind in Australia. All other matters either were without merit, or Uber had agreed to resolve the matter prior to the Commission being able to make a formal decision of this nature. The decision also provides confidence for other gig workers. Knowing that their rights are going to be upheld at the Commission in a fair manner. Moreover, that Uber cannot avoid their legal responsibilities or go without reprimand.
Uber also received criticism for their lack of human interaction available for gig-workers. Historically, Uber have chosen to have an AI centred process, which has caused consistent issues. Furthermore, the adherence to using a more AI-centered disciplinary process does not align with the same disciplinary process for permanent employees. Which is required to have human oversight.
As a part of the reform for gig workers, online platforms have been instructed to provide access to human representatives during processes where gig worker’s accounts are at risk of being deactivated.
Lessons for gig workers and platforms
As the legislation is relatively new, and a drastic change to what we have seen for gig workers in the past, it’s likely that more cases will eventually come out that will help form the interpretation of the new laws. Moving forward, gig workers do not have to be as stressed or concerned regarding unfair reviews or encountering problematic customers in fear that a single bad review will have them deactivated.
Furthermore, these online platforms will not be able to act in a dictatorship manner without giving their contractors employee-like rights. While this may be an adjustment for online platforms, this should benefit all parties in the long-term.
More trust will be placed in these platforms, garnering more people to start gig work, thus benefitting customers and the platform. Moreover, this should promote the retention of good workers in a similar manner to traditional employees. When workers are being taken care of by their ‘employer’, they are more likely to stay in those types of positions.
How does this affect the consumer?
At the moment, there has not been any noticable developments that have affected consumers due to these new gig worker rights. At least in the short term, it does not appear that prices have skyrocketed. Or that there is a lack of workforce in the most common forms of gig work. Such as food delivery or rideshares.
It appears that it is unlikely that consumers will feel the effects of these new changes. In the case that online platforms do incur additional costs to regulate gig workers “employees like rights”, it can be theorised that individuals will be more enticed to start gig work due to these changes. Therefore, making the platform more efficient for users, creating a better experience, and resulting in net profit that would counteract additional internal costs.
Furthermore, the changes help prevent customers and workers fighting against each other over reviews or positive ratings. This is a more holistic approach that doesn’t insights fear or concern over any one job or delivery. While ratings and reviews are still important, the reduced pressure over a single bad review should create a better experience for all parties.
Are you a gig worker that has been deactivated?
A Whole New Approach have spent almost 30 years informing all types of workers of their workplace rights and advocating for them in the Fair Work Commission. We have been there for every new change and twist in the employent space.
We are not lawyers but the leading representatives on anything and everything to do with the workplace. Don’t do anything reckless without getting in touch with our workplace experts who can lead you down the right path.
We are accessible and realistic workplace experts that are in the business of helping workers fight for justice and even the scales against large online platforms. Don’t be afraid to stand up for your right to work.
Find similar articles to: “Uber rights for the “Gig worker”
Fair Work warns employers to consider flexible work requests
