Gig worker protections must not ensnare tradies, HIA warns
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Photo by Jonathan Borba
New minimum standards for “employee-like workers” in the on-demand economy have taken effect, with the Housing Industry Association cautioning that the framework must remain narrowly targeted and not extend into genuine independent contracting arrangements that underpin residential construction.
The Fair Work Commission’s Interim On-Demand Delivery Employee-like Worker Minimum Standards Order, which came into force today, was developed in response to identified concerns in parts of the gig economy, including food delivery and other digital platform work.
Stuart Collins, HIA Senior Executive Director Compliance and Workplace Relations, said the association supports protections where workers lack bargaining power and digital platforms effectively determine their rates and working arrangements — but stressed that the order must not be allowed to drift beyond its intended scope.
“There is an important legal and practical distinction between these workers and the genuine independent contractors and subcontractors who operate throughout residential construction,” Mr Collins said.
“Residential construction relies on tens of thousands of skilled contractors who negotiate their own rates, own their tools and equipment, work for a range of builders and carry their own licensing, insurance and commercial risk.”
According to Mr Collins, these arrangements bear no resemblance to the employee-like relationships the Commission’s order was designed to address.
“These are genuine businesses operating under established independent contracting arrangements, not employee-like workers,” he said.
The HIA’s concern centres on what it describes as regulatory creep — the risk that a framework built for one part of the economy could be applied, intentionally or otherwise, to another that operates under fundamentally different conditions.
Mr Collins pointed to the existing whole-of-relationship test as the appropriate mechanism for distinguishing genuine independent contractors from workers who more closely resemble employees.
“The whole-of-relationship test already provides a framework for determining whether someone is genuinely operating as an independent contractor. We should be very careful about creating new regulatory concepts that cut across those established arrangements,” he said.
The HIA acknowledged the Commission’s intent, noting the order was developed to deal with a specific issue in a specific part of the economy — and arguing it should stay there.
“The Fair Work Commission’s order has been developed to deal with a particular issue, in a particular part of the economy. That is where it should remain,” Mr Collins said.
The warning comes at a time when the federal and state governments are under pressure to accelerate housing construction to address Australia’s deepening affordability and supply crisis. Industry bodies have consistently flagged that additional regulatory burden poses a direct threat to building activity and the pipeline of new homes.
The HIA argued that extending employee-like worker regulation into residential construction would generate cost and uncertainty without targeting an identified problem in that sector.
“At a time when Australia needs to build more homes, extending employee-like worker regulation into residential construction would risk adding cost, complexity and uncertainty without addressing an identified problem,” Mr Collins said.
The association’s broader position is that the gig economy protections introduced today are appropriate for the workers they were designed to assist, but that policymakers must exercise discipline in ensuring the framework does not expand beyond its original purpose.
“HIA’s message is simple: protect gig workers where protections are needed, but don’t capture genuine tradies and small businesses in a regulatory net that was never designed for them,” Mr Collins said.
The Interim On-Demand Delivery Employee-like Worker Minimum Standards Order represents one of the first applications of the employee-like worker provisions introduced through recent amendments to the Fair Work Act, which granted the Commission new powers to set minimum standards for workers in the gig economy who fall outside traditional employment relationships.