Employee-like minimum standards orders and guidelines

We can consider making employee-like minimum standards orders and guidelines if we receive an application or on our own initiative.

An application must specify who the order or guidelines will cover. This includes the class or classes of regulated workers and businesses covered, which can include an industry, sector or specific types of work.  

A person or organisation can apply for either a minimum standards order or guidelines. We will decide which is more appropriate. This means if you apply for:  

• a minimum standards order, we can decide to make guidelines instead
• minimum standards guidelines, we can decide to make a minimum standards order instead. 

Employee-like minimum standards will be considered by a Full Bench, unless the President directs an Expert Panel for the road transport industry to consider a cases involving road transport employee-like workers.

Both a Full Bench and Expert Panel will be required to consider the minimum standards objective in these cases. An Expert Panel must also consider the road transport objective. See Members and case allocations to learn more about Commission Members.

Before making an employee-like minimum standards order, we must:

• be satisfied that, on the whole, the class of people who will be covered by the order are employee-like workers
• genuinely engage with the parties to be covered
• follow a consultation process
• have regard to choice and flexibility in working arrangements. 

We decide what terms and conditions will be set as employee-like minimum standards. There are rules about what can and cannot be included.

A minimum standards order can include terms only to the extent necessary to achieve the minimum standards objective.  

Terms we must include

Minimum standards orders and guidelines must set out who they cover. This includes terms about the:

• type of work covered
• class or classes of regulated businesses covered
• class or classes of regulated workers covered.

A minimum standards order must also include a term about disputes. This will cover how to settle disputes that arise under the order. This is not required for guidelines.

The names of individuals or businesses are not included.  

Terms we can include

Minimum standards orders and guidelines can include terms about:

• payment terms  
• deductions
• record-keeping
• insurance
• consultation
• representation,
• delegates’ rights, and  
• cost recovery.

The law does not require us to include these terms and we can decide to include other terms.  

Terms we cannot include

Employee-like minimum standards orders and guidelines cannot include:  

• terms about:
  • overtime rates
  • rostering arrangements
  • matters of a commercial nature that do not affect the terms and conditions of engagement of regulated workers  
  • matters relating to work health and safety that are comprehensively dealt with by other laws.
• terms that would change the form of engagement or status of workers covered by the standards order (including by deeming them employees)

Terms included only when appropriate

There are some terms we cannot include unless it is appropriate. This includes terms about:

• penalty rates  
• payment for time before or between engagements on a digital labour platform
• minimum periods of engagement  

To include these terms we must consider what is covered by the order or guidelines. We must take into account the:  

• type of work covered
• digital labour platform operators covered.

We can also vary or revoke orders or guidelines. We can do this after we receive an application or on our own initiative. See Apply for regulated worker minimum standards.