Unfair treatment and job loss information for gig workers

I think I’m being treated unfairly by my platform. What can I do to resolve a dispute with my platform?

Disputes with your platform could be over issues like:

• customer ratings
• warnings
• complaints
• performance
• limited access to jobs via the platform.

You should raise your concerns with your platform. It is best to put your concerns in writing. Below is an example of how you can raise your concerns in an email or app message to your platform.

Under Standard 4 of the Voluntary Fair Conduct and Accountability Standards (the Standards), in taking a best practice approach to what they do, your platform would ideally have a clear and accessible process to resolve disputes between platforms and non-employee gig workers. In giving effect to the Standards, platforms may then:

• afford non-employee gig workers procedural fairness and the opportunity to respond to complaints made about them
• allow non-employee gig workers to be represented
• set up processes so that non-employee gig workers may challenge decisions which affect their earnings or access to the platform.

The Standards seek to encourage platforms to further improve their practices to ensure work arrangements are fair and transparent. Read more information on the Standards.

Where else can I get help if I can’t resolve my concern directly with my platform?

If you’re a non-employee gig worker and you haven’t been able to resolve the dispute directly with your platform, the Victorian Small Business Commission (VSBC) may be able to help.

The VSBC can deal with disputes between non-employee gig workers and platforms, including by ‘mediation’. Mediation is where both parties get together with an independent person (a mediator) to discuss the issues and try to reach an agreement.

Visit the Victorian Small Business Commission to find out more about VSBC’s dispute resolution process.

For non-employee gig workers who are ‘owner drivers’, the VSBC can make a binding decision to resolve a dispute (known as ‘arbitrating’ the dispute where all parties agree to participate in arbitration). Visit Victorian Small Business Commission for more information.

For the purposes of Victoria’s owner driver laws, an owner driver is an independent contractor who runs a business transporting goods (not passengers) using up to three vehicles supplied by the owner of the business. The term ‘vehicle’ includes bicycles. The owner of the business must also operate at least one of the vehicles.

If you’re a non-employee gig worker using your own vehicle to deliver goods (including food) you’re an owner driver.

What unfair treatment is against the law?

Laws protect all gig workers – employees and non-employee gig workers – from certain types of unfair treatment at work, including:

• discrimination
• sexual harassment
• victimisation
• bullying
• treatment that breaches the 'general protections'.

What is discrimination?

It is generally against the law to be treated unfavourably because of a ‘protected attribute’ that you have. There are many ‘protected attributes’. They include age, race, and disability. View the full list of protected attributes in Victoria.

It may also be discrimination if a platform has an unreasonable requirement which applies to all workers but disadvantages some workers because of a protected attribute they share. For example, a food delivery platform may discriminate against workers who are disabled and can’t ride a bicycle, if the platform unreasonably requires all workers to ride a bicycle for deliveries.

Under Standard 3 of the Voluntary Fair Conduct and Accountability Standards, in taking a best practice approach to what they do, it is envisaged that platforms would implement policies and procedures to prevent discrimination against non-employee gig workers. The Standards seek to encourage platforms to further improve their practices to ensure work arrangements are fair and transparent. Read more information on the Standards.

What is sexual harassment?

Sexual harassment is unwelcome sexual behaviour where a reasonable person, having regard to all the circumstances, would have anticipated that the person would be offended, humiliated, or intimidated. Visit the Victorian Equal Opportunity and Human Rights Commission for more information.

What is victimisation?

Victimisation includes when you’re treated unfavourably because you have made a complaint about discrimination or sexual harassment. Visit VEOHRC for more information.

What is bullying at work?

Bullying at work is when a person, or a group of people, behaves unreasonably (more than once) towards a worker (or a group of workers) at work and this creates a risk to health and safety. For more information visit the Fair Work Ombudsman.

What types of unfair treatment breach the ‘general protections’ laws?

The general protections in the Fair Work Act 2009 include workplace rights, industrial activities, protection from discrimination, and protection from sham arrangements.

These protections are complex, and the following information is only general information. You may wish to get advice, including legal advice, about these protections and how they may apply to your work situation.

A platform can’t take adverse action against you because of:

• your workplace rights:
  • for employees, these rights include your employment entitlements, such as the right to take sick leave
  • for non-employee gig workers, these rights are more limited. But they do include asking a court to review your contract on the grounds that the contract is ‘unfair’, in certain circumstances.
• your industrial activities:
  • for both employees and non-employee gig workers, this includes the freedom to be (or not be) a union member, and to participate in (or not participate in) lawful union activities.

Adverse action by a platform against an employee includes:

• Dismissing (sacking) an employee. ‘Dismissal’ has a particular meaning in the Fair Work Act 2009. For more information the Fair Work Commission.
• Altering or reducing an employee’s position, such as demotion.

Adverse action by a platform against a non-employee gig worker includes:

• terminating the contract with a non-employee gig worker, by closing/deactivating the platform account (Ending a non-employee gig worker’s contract is not a ‘dismissal’)
• altering a non-employee gig worker’s position, such as reducing the access the worker gets to jobs through the platform.

Gig workers also have obligations not to take adverse action against their platform. For more information on adverse action, visit the Fair Work Ombudsman.

Under the Fair Work Act, platforms also can’t:

• engage in sham contracting
• coerce or make misrepresentations to gig workers (both employees and non-employee gig workers) in relation to workplace rights or industrial activity
• take adverse action against an employee because the employee has a certain characteristic (or characteristics). These characteristics include race, or physical or mental disability
• exert undue influence or undue pressure on an employee in relation to a decision by the employee to agree to certain types of employment arrangements.

For more information on the general protections, visit the Fair Work Ombudsman.

Where can I get help to resolve my issue with my platform about treatment that might be unlawful?

There is help available if you have a question, complaint or dispute about treatment that may be unlawful. The help outlined in the table below is general information for both employee and non-employee gig workers, unless noted otherwise. You may also consider getting some legal advice about your work situation.

My platform has closed my account so I can’t get any more jobs. What can I do to challenge this?

For employees, account deactivation or closure may constitute a ‘dismissal’ under the Fair Work Act 2009. ‘Dismissal’ has a particular meaning in the Fair Work Act 2009. For more information visit the Fair Work Commission.

For non-employee gig workers, account deactivation is the termination of your contract with the platform.

There are options for you to challenge the account deactivation if you haven’t been able to resolve the issue directly with your platform.

The help outlined in the table below is general information for both employee and non-employee gig workers, unless noted otherwise. You may also consider getting some legal advice about your work situation.