Applications by Transport Workers' Union of Australia

[2025] FWCFB 58

[2025] FWCFB 58

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.536JY—Commission may make a minimum standards order
s.536PD—Commission may make a road transport contractual chain order
s.590—Powers of the Commission to inform itself

Applications by Transport Workers' Union of Australia

(MS2024/1, MS2024/2, MS2024/3 and MS2024/4)

Road transport industry
VICE PRESIDENT ASBURY COMMISSIONER CONNOLLY COMMISSIONER TRAN COMMISSIONER SLOAN	BRISBANE, 19 MARCH 2025

Applications from the Transport Workers’ Union of Australia to make employee-like worker minimum standards orders, a road transport minimum standards order and a road transport contractual chain order – research to inform proceedings dealing with applications

Background

1. On 10 February 2025, we issued a Statement[1] proposing that research be conducted to facilitate consultation in relation to applications MS2024/1-4 (the applications) and the scope of the Fair Work Commission’s regulated workers jurisdiction.

1. The Statement identified four options for potential research projects to inform this Expert Panel’s consultation processes in relation to the applications and the regulated workers jurisdiction generally:

• Proposal 1―Information note with data on digital platform and road transport workers in Australia: Commission staff would prepare an information note setting out publicly available data on demographics and other characteristics relevant to the digital platform workforce and road transport workforce in Australia.

• Proposal 2―Insights about digital platform worker characteristics and preferences: An external research provider would be engaged to generate insights about digital platform worker characteristics and preferences using qualitative research methods, to inform the Expert Panel in its approach to consultation and engagement with digital platform workers who may be subject to MS2024/1 and MS2024/3.

• Proposal 3―Data profile and mapping of the digital platform worker economy in Australia: An external research provider would be engaged to provide a contemporary snapshot of the digital platform worker economy’s composition, size, and participants using quantitative data sources, with a particular focus on sectors relevant to MS2024/1 and MS2024/3.

• Proposal 4―Data profile and mapping of road transport contractual chains in Australia: An external research provider would be engaged to prepare a report that examines the composition, size and extent of road transport supply chains in Australia, drawing on available data, previous research and other sources, to assist the Expert Panel in determining where to focus its consultation efforts in relation to MS2024/4.

1. Noting the Commission’s power to inform itself in relation to any matter before it[2] we expressed our provisional view that ‘research which, broadly, investigates the nature and extent of the workers, sectors or industries which may have an interest in, or be affected by, the applications may assist us in facilitating consultation’[3] in relation to the applications.  We also identified the role of the Commission’s Labour Standards Support Branch which includes conducting and commissioning research relating to modern awards, minimum wages, equal remuneration, regulated worker minimum standards orders and road transport contractual chain orders. Interested parties were invited to provide feedback on that proposed approach, including by providing suggestions for research projects.[4]

Submissions received

1. The Commission received submissions from the following in response to the Statement:

   ·     Dr Lutfun Nahar Lata

   ·     DoorDash

   ·     Transport Workers Union of Australia (TWU)

Dr Lutfun Nahar Lata

1. Dr Lutfun Nahar Lata, a Senior Lecturer in Sociology and Social Policy at the University of Melbourne, submitted that ‘a large-scale survey is required to capture the socio-demographic characteristics of gig workers.’[5] Dr Lata recommended a mixed-method approach ‘combining surveys, interviews, or focus group discussion’[6] to ‘collect data about digital platform workers and their preferences’,[7] and that data collection from platforms ‘would be helpful’.[8]

DoorDash

1. DoorDash submitted that proposal 1 is of ‘of limited utility in these proceedings because it relies solely on public data’, while acknowledging that proposals 2 and 3 seek to address some of these limitations.[9] DoorDash submitted that the Australian Bureau of Statistics has acknowledged limitations in its survey data[10] and that the survey reference period was short.[11]

1. DoorDash provided information about its own research publications and submitted that the Commission should be guided by the approach in these publications in framing its own research.[12]

Transport Workers’ Union of Australia (TWU)

1. The TWU submitted that each of the proposed research projects would assist the Commission.[13] It provided what it described as a non-exhaustive collated list of research that has been undertaken on the road transport industry over the last 30 years.[14]

1. The TWU submitted the research included in that list indicates that supply chain pressure leads to poor safety outcomes[15] and identified research questions relating to the operation of supply chains and contractual mechanisms and tendering practices in supply chains.[16]

Consideration

1. Having considered the submissions and any areas of consensus, our view is that proposals 1, 3 and 4 should proceed with the addition of a research reference list.

1. While proposal 1 was supported by the TWU, we note DoorDash’s submission that proposal 1 would be of limited utility due to its sole reliance on publicly available data. Limitations from publicly available data have not prevented the Commission from publishing similar material in comparable Commission proceedings (for example under under Parts 2-3 and 2-6 of the Fair Work Act 2009). The publication of such material provides a useful centralised resource for all involved in proceedings relating to the applications and can assist in parties identifying gaps and limitations in publicly available data that can be filled with further research or evidentiary material which may be relevant later in processes and proceedings concerning the applications. Accordingly, we consider that proposal 1 should proceed.

1. In relation to the other research proposals, taking into account the available resources, we consider that proposals 3 and 4 should also proceed.

1. Proposal 3 seeks to provide insights not able to be generated using publicly available data sources outlined in proposal 1. This research has the potential to address the limitations with publicly available data raised in submissions and, by providing new insights about the composition, size, and participants of digital platform work economy, has the potential to assist us to deal with applications during the consultation process and any subsequent proceedings relating to the applications.

1. We are also of the view that proposal 4 would assist with respect to matter MS2024/4 by enhancing understanding of the composition, size and extent of road transport supply chains and in particular the sectors in which entities potentially affected by the application operate.

1. We consider that research proposal 2 should not proceed at this time, taking into account the significant time and resource commitment likely required for a project that may potentially include qualitative and survey-based research methods.

1. In coming to this view we have taken into account the submissions about options for research, preferred methodologies and subject matter put forward by Dr Lata, DoorDash and the TWU. In particular, we note the submissions of DoorDash and Dr Lata that a large-scale survey of digital platform workers should be undertaken. However, we consider this to be a significant research project that would not be expedient to initiate at this stage in the proceedings. 

Research reference list

1. In addition to the research proposals outlined above we also consider that Commission staff should prepare and publish a research reference list for these proceedings.

1. Since 2015, the Commission has published a research reference list each year for the Annual Wage Review.[17] That list is a centralised resource curated by Commission staff that parties may draw on in their submissions to the Review and for the Expert Panel to refer to without the need for the listed research to be formally admitted into proceedings.

1. In the present proceedings, the submissions of parties pointing to existing published research that may be relevant indicates a research reference list relating to the 4 applications would be a useful means of ensuring relevant research material is available to all interested parties and affected persons. The list would be compiled and updated periodically by Commission staff and would not reflect the views of this or other Expert Panel/Full Bench proceedings on the quality or relevance of the references. Criteria for selection would include that the research is publicly accessible (but includes journal articles or other material that may require payment of a fee to access), contemporaneous and relevant to the proceedings. Parties would also be invited to suggest relevant references to Commission staff for this list (see further details provided at paragraph 24).

1. To confirm, while the research reference list would be available to parties to utilise and refer to, parties would not be confined by the content of the research reference list and would be at liberty to seek to tender material relevant to their submissions and the proceedings in the usual way, subject to the requirements of procedural fairness including that the material is available to all parties and affected persons with an interest in the proceedings.

Next steps

1. Giving effect to our views above, Commission staff will now:

   ·  prepare and publish the Information note with data on digital platform and road transport workers in Australia and research reference list; and

   ·  seek to identify and engage a supplier or suppliers with appropriate expertise to undertake the Data profile and mapping of the digital platform worker economy in Australia project and Data profile and mapping of road transport contractual chains in Australia project.

2. The final form of this research will be informed by timing, budgetary constraints and the availability of suppliers with appropriate expertise to undertake the research.

1. We anticipate the information note and research reference list will be completed in the coming months, with the other research projects to be completed later in the year. When complete, the final output of each project will be published to the Commission’s website and the Regulated Worker User Group and subscription list notified.

1. Interested parties are invited to propose material for inclusion in the research reference list by email to [email protected] by no later than 4:00 pm (AEST) on 1 April 2025. Material may be provided after this time for inclusion in subsequent updates to the list.

VICE PRESIDENT

[1] [2025] FWCFB 30.

[2] See [2025] FWCFB 30, [10]-[11]. See also Fair Work Act 2009 (Cth), s 590.

[3] [2025] FWCFB 30, [12]. See also [18].

[4] See [2025] FWCFB 30, [19].

[5] Dr Lutfun Nahar Lata submission, 21 February 2025.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] DoorDash submission, 21 February 2025, [2.4] & [2.14].

[10] Ibid, [2.12], citing Australian Bureau of Statistics, Digital Platform Workers in Australia (Report, 13 November 2023), Overview.

[11] Ibid, [2.13].

[12] Ibid, [2.15]-[2.17].

[13] Transport Workers Union of Australia submission, 3 March 2025, 2.

[14] Ibid, 2.

[15] Ibid, 2.

[16] Ibid, 2-3.

[17] See e.g. Research Reference List for 2023-24.

Printed by authority of the Commonwealth Government Printer

<PR785303>