JobWatch receives a number of calls each year from gig economy workers who are facing issues with the gig economy platform on which they work. This can range from issues with continued access to the platform, underpayment of entitlements, issues with workplace safety, and more.
We provide a short summary of these issues on this page, and they are further summarised in JobWatch’s ‘Gig Workers’ Fact Sheet (see link in sidebar).
Many gig workers are independent contractors and are not employees. Generally, independent contractors are running their own business, and the emphasis is on getting a particular job finished, rather than working a particular number of hours.
There are some important things to keep in mind if you are working as an independent contractor. Many laws which protect employees’ rights do not apply, or apply differently, to people classified as independent contractors. On the other hand, some protections that apply to employees also apply to independent contractors. Some examples are provided below.
Workers’ compensation/WorkCover
Employees are entitled to workers’ injury compensation (WorkCover) in the case of accident or injury at the workplace. If you are an independent contractor, you may not be entitled to compensation unless you have arranged your own accident protection insurance or the gig platform has insurance for all their independent contractors.
Occupational health and safety
Occupational health and safety (OHS) laws apply to independent contractors as well as employees. This means that your principal (in this case, the gig economy platform) must provide you with a safe and healthy workplace. You are also required to comply with the duties set out in your state’s OHS laws.
Superannuation and Taxation
Some independent contractors are entitled to receive superannuation from their principal (gig economy platform). If you are not entitled, you will have to arrange your own super contributions.
If you are an independent contractor, you may have to pay tax at a different rate to employees. You also may have to arrange to pay your own tax. Contact the Australian Tax Office for further information.
Unfair dismissal
Unlike employees, independent contractors are not eligible to make an unfair dismissal claim. Nevertheless, independent contractors may have some rights under the General Protections in the Fair Work Act 2009, under state and federal anti-discrimination law and/or under the Independent Contractors Act 2006.
Wages and conditions
Unlike employees, independent contractors are not entitled to a minimum rate of pay or conditions such as annual, parental, sick and personal leave, long service leave, redundancy entitlements or rest breaks. Your pay and conditions are solely a matter for negotiation between you and your principal (gig economy platform).
Further, independent contractors are not guaranteed regular payment of wages in the way that employees are. You may have to wait until the job is completed for payment.
The Fair Work Ombudsman cannot help independent contractors to recover unpaid monies for work performed. If the person refuses to pay you, to recover payment you will need to begin legal proceedings in either an eligible court or the Victorian Civil and Administrative Tribunal (in Victoria). This can be expensive and you should get legal advice prior to taking this step. You have 6 years to file a claim from the date the debt was due to you.
In Victoria, some independent contractors or gig workers may be eligible for the Sick Pay Guarantee. This is a pilot program which provides eligible casual and contract workers with a guarantee they will receive sick pay when they can’t go to work. Check your eligibility on the Sick Pay Guarantee website.
If you are being underpaid, or not paid at all, for your gig work, you can take steps to recover the money that is owed to you. These steps are summarised below.
As a first step, you should consider writing to the gig economy platform demanding payment of your unpaid work by a certain time, e.g. within 7 days from the date of your letter. You should inform the platform if it does not pay, you will begin formal legal proceedings without further notice. You should also keep a copy of your letter of demand for future reference.
View a sample Letter of Demand for independent contractors.
The Victorian Small Business Commission can assist with mediation – a process where the parties in a dispute meet voluntarily to discuss their dispute with the help of an independent and accredited mediator. During mediation, parties are encouraged to identify and explore options to resolve their dispute. The mediator cannot make a decision about the outcome, rather they support the parties in resolving their dispute.
Independent contractors are able to access this service as they are deemed to be running their own small business.
Learn more about this mediation service.
Independent contractors can bring a civil claim in the Victorian Civil and Administrative Tribunal or the state’s Magistrate’s Court to get access to money that they are owed for services that they have provided. There is a fee associated with filing a claim, and depending on the claim, the process could take up to a year to resolve.
Learn more about filing a claim with the Victorian Civil and Administrative Tribunal.
All workers, including independent contractors, have the right to work in a safe and healthy workplace free from bullying, discrimination, sexual harassment and unsafe work practices.
Bullying
For behaviour to be considered bullying, it must be unreasonable, happen repeatedly, and create a risk to your health and safety. For many gig workers, due to the temporary nature of the work, it may be difficult to make a workplace bullying claim as it may not meet the ‘happen repeatedly’ requirement.
E.g. Danny is a rideshare driver. On a recent trip, he was verbally abused by a passenger. Danny wouldn’t be eligible to make a bullying claim as it only happened on one trip and did not happen repeatedly.
However, if the bullying is happening repeatedly (e.g. from staff of the gig economy platform), is unreasonable, and is a risk to health and safety, then gig workers may be eligible to make a number of legal claims including:
Learn more in JobWatch’s Workplace Bullying Fact Sheet.
Discrimination (including sexual harassment)
As independent contractors, gig workers are eligible to make a discrimination claim in both state and federal jurisdictions if they experience discrimination on the basis of protected attributes such as:
If you have been dismissed from your job or other discriminatory conduct has occurred because of one of these attributes, you may be able to make a state or federal discrimination complaint.
Find out more in JobWatch’s discrimination Fact Sheets.
Workplace injury
Not all independent contractors in the gig economy have access to government-based workers’ compensation schemes such as WorkCover. This will depend on the work you do and your contract with the gig economy platform.
Some independent contractors are deemed “workers” under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCA) (see Schedule 1), and are covered by the principal’s WorkCover insurance against workplace injury; for example, where at least 80 per cent of the services under the contract are to be provided by the same individual contractor. It is important to check with WorkCover to find out if you are covered. If you are not deemed to be a worker for the purpose of the WIRC, you must have your own workplace injury insurance.
If you are injured at work, you should:
Most issues reported by gig workers to JobWatch include disputes with the gig economy platform – for example, the workers’ account has been blocked or access has been deleted.
In these cases, you can:
Copyright © 2024 All Rights Reserved
JobWatch acknowledges and is grateful for the financial and other support it has received from our supporters.
JobWatch acknowledges the Aboriginal and Torres Strait Islander peoples of this nation. We acknowledge the traditional custodians of the lands on which we are located and where we conduct our business. We pay our respects to ancestors, and Elders, past, present and emerging.
