Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026

EXPLANATORY STATEMENT

Issued by authority of the Minister for Employment and Workplace Relations

Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026

AUTHORITY

The Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026 (Amendment Instrument) is made under subsection 536LJ(2B) of the Fair Work Act 2009.

PURPOSE AND OPERATION OF THE INSTRUMENT

The Fair Work Act 2009 (the Act) provides a framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion. Part 3A‑3 of the Act establishes quick, flexible and informal procedures for dealing with the unfair deactivation of employee-like workers (workers) in a manner that balances the needs of digital labour platform operators and workers. It also provides remedies where a deactivation is found to be unfair, with an emphasis on reactivation.

The Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code) was made under subsection 536LJ(1) for the purposes of supporting the practical application of the unfair deactivation framework in Part 3A-3 of the Act. The Code is integral to the Fair Work Commission’s (the Commission) determination of whether a worker has been unfairly deactivated under Part 3A-3 of the Act.

The Code is intended to ensure that deactivation processes of operators are transparent, accessible and fair. These processes can also be exercised in a manner that recognises the unique nature of digital platform work and affords operators appropriate discretion to manage their platforms efficiently and safely.

Subsection 536LJ(2B) of the Act provides that the Minister may, by legislative instrument, vary or revoke the Code. The Amendment Instrument amends the Code to introduce targeted modifications to the existing Code process for unfair deactivation matters involving allegations of sexual harassment. The amendments recognise the importance of the safety and privacy of persons who may have experienced sexual harassment, and the broader community.

The amendments:

• clarify the information that must be included in deactivation warnings and notices for deactivations relating to allegations of sexual harassment
• clarify the circumstances in which digital labour platform operators can consider on reasonable grounds that a valid reason for deactivation has been established where there has been an allegation of sexual harassment, and
• specify further matters, relating to sexual harassment, that may constitute a valid reason for deactivation.

Key elements of the Code process are not altered by the amendments. The worker still retains the right to respond to the allegation, request a discussion with a representative and seek support or representation.

The Amendment Instrument is a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Instrument commences the day after the instrument is registered on the Federal Register of Legislation.

Details of the Amendment Instrument are set out in Attachment A.

CONSULTATION

Subsection 536LJ(2C) of the Act requires that before the Minister varies or revokes the Code under subsection 536LJ(2B), the Minister must be satisfied that there has been such public consultation in relation to the variation or revocation as the Minister considers appropriate.

In addition, subsection 17(1) of the Legislation Act 2003 provides that the rule-maker must be satisfied that there has been undertaken any consultation that is:

The Department of Employment and Workplace Relations consulted:

• digital labour platform operators and the Digital Labour Platform Consultative Committee, which includes representatives of unions, employer groups and digital labour platform operators
• Fair Work Commission staff
• states and territories under the Inter-Governmental Agreement for a National Workplace Relations System for the Private Sector
• the Committee on Industrial Legislation (a subcommittee of the National Workplace Relations Consultative Council, established under the National Workplace Relations Consultative Act 2002).

The Amendment Instrument incorporates feedback provided by stakeholders during consultation, including the need:

• to streamline information requirements about the reason for deactivation in matters involving sexual harassment and better protect the privacy and welfare of the complainant
• to balance streamlined information requirements with the need to preserve workers’ rights to receive sufficient information about non-sensitive matters under the Code, such as their entitlement to seek assistance
• for greater clarity on how digital labour platform operators can consider on reasonable grounds that a valid reason for deactivation had been established in matters involving sexual harassment
• for digital labour platform operators to be able to review other complaints of sexual harassment by a worker over a sufficiently long period, and
• to specify further valid reasons for deactivation relating to sexual harassment.

SUNSETTING

The Amendment Instrument amends the Code. The Code is exempt from sunsetting in accordance with item 27(ca) of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 as it is an instrument made under subsection 536LJ(1) of the Act. The Explanatory Statement to the Legislation (Exemptions and Other Matters) Amendment (Sunsetting Exemptions) Regulations 2025 provides that the Code is exempt from sunsetting as it forms part of an intergovernmental scheme and commercial certainty would be undermined by sunsetting.

IMPACT ANALYSIS

The Office of Impact Analysis advised that an Impact Analysis is not required for the Amendment Instrument. The impacts of the unfair deactivation framework were assessed in the Impact Analysis Equivalent: Minimum standards and increased access to dispute resolution for independent contractors (OBPR22-2873).

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS 

A Statement of Compatibility with Human Rights has been completed for the Code in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. A copy of the Statement is at Attachment B. 

The Hon Amanda Rishworth MP, Minister for Employment and Workplace Relations

ATTACHMENT A

Details of the Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026

Section 1: Name

1.      This section provides that the title of the instrument is the Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026 (Amendment Instrument).

Section 2: Commencement

2.   This section provides that the Amendment Instrument commences on the day after registration.

Section 3: Authority

3.   This section provides that the Amendment Instrument is made under the Fair Work Act 2009 (the Act).

Section 4: Schedules

4.   This section provides that each instrument specified in a Schedule to the Amendment Instrument is amended or repealed as set out in the applicable items in the relevant Schedule, and any other item in a Schedule to the Amendment Instrument has effect according to its terms.

Schedule 1—Amendments

Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024

Item 1 – Section 5

5.   This item inserts new definitions into section 5 of the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code):

• allegations of sexual harassment, and
• sexual harassment.

6.   ‘Allegations of sexual harassment’ means one or more allegations, reports or complaints that the employee-like worker has sexually harassed a person while performing digital platform work on a platform the digital platform operator operates. There is no limitation on what form allegations, reports or complaints might take. The following may constitute an allegation, report or complaint:

• An anonymous phone call in which the caller claims to have been sexually harassed.
• A report or feedback via a digital labour platform that a person has been sexually harassed.

7.   The definition of sexual harassment includes:

• the meaning given by section 28A of the Sex Discrimination Act 1984 (this is the same definition as that of ‘sexually harassed’ in the Act)
• ‘sexual violence’, and
• ‘sexual assault’.

8.   The definition is inclusive and deliberately broad. The Note to this definition also clarifies that other derivatives of ‘sexual harassment’ (for example, ‘sexually harassed’) are included in the overarching definition of ‘sexual harassment’ as provided by section 18A of the Acts Interpretation Act 1901.

Item 2 – Subsection 8(3)

Item 3 – At end of section 8

9.   Section 8 of the Code requires that where an issue with a worker’s conduct or capacity arises, digital labour platform operators must generally first issue a warning to the worker. The Code process provides an operator discretion to assess which matters relate to a worker’s capacity or conduct may require a warning, and which are more serious, warranting immediate suspension or modification instead.

10.  Subsection 8(3) of the Code provides that a deactivation warning must include sufficient information to enable a reasonable person in the position of the employee‑like worker to understand the matters mentioned in subsection (2). Subsection 8(2) sets out the content requirements for the deactivation warning.

         Paragraph 8(2)(a) provides that the deactivation warning must specify the reason, relating to the employee-like worker’s conduct or capacity, for which it is given. 

         Paragraphs 8(2)(b) and (c) are less subjective requirements. They require the warning to state that the worker risks being deactivated from the platform if certain conditions are met, and state that the worker may seek support in relation to the warning.

11.  Items 2 and 3 introduce a new qualification for subsection 8(3) and insert a new subsection 8(4). The combined effect of these amendments is that for deactivation warnings relating to allegations of sexual harassment, the deactivation warning only needs to include the following information about the reason:

         an allegation of sexual harassment has been made, and

         information setting out the general nature of the conduct alleged.

12.  Subsection (3) would still operate to ensure that the deactivation warning must also include sufficient information to enable a reasonable person in the position of the employee-like worker to understand the matters mentioned in paragraphs 8(2)(b) and (c). The amendments do not alter this requirement in any way. That is, regardless of whether the warning relates to allegations of sexual harassment or not, the warning must still clearly set out that the platform worker risks being deactivated and that they may seek the assistance of a support person.

13.  The amendments seek to ensure that where sexual harassment is alleged, digital labour platform operators are not required to disclose detailed information about an alleged incident which could risk identifying the person allegedly harassed. They are intended to ensure that digital labour platform operators can protect the privacy and safety of a person allegedly harassed, recognising the unique safety and security risks that may arise in digital platform work. The amendments operate alongside section 17, ensuring that the deactivation warning would not be interpreted to require the operator to disclose personal information about the person allegedly harassed that could put that person at risk.

14.  New subsection 8(4) only applies to the extent the reason for the warning being given relates to allegations of sexual harassment. This means that if there is more than one reason, new subsection 8(4) only applies to any reason that is about allegations of sexual harassment. The existing test in subsection 8(3) applies to any reason not relating to allegations of sexual harassment.  

Item 4 – Subsection 11(2)

Item 5 – At the end of section 11

15.  Section 11 of the Code provides that a digital platform operator must give a preliminary deactivation notice that specifies certain matters.

16.  Section 11(2) of the Code provides that a preliminary deactivation notice must include sufficient information to enable a reasonable person in the position of the employee‑like worker to understand the matters mentioned in subsection (1). Subsection 11(1) sets out the content requirements for the preliminary deactivation notice:

• Paragraph 11(1)(a) provides that the preliminary deactivation notice must specify the reason, relating to the employee-like worker’s conduct or capacity, for which it is given.
• Paragraphs 11(1)(b), (c) and (d) are less subjective requirements. They require the notice to state that the digital labour platform operator is considering terminating the worker, that the worker has a right to respond and request discussion, and that the worker may appoint a person to provide them with support.

17.  Items 4 and 5 introduce a new qualification for subsection 11(2) and insert a new subsection 11(3). The effect of these amendments is that for preliminary deactivation notices relating to allegations of sexual harassment, the notice only needs to include the following information about the reason to meet the requirement in subsection 11(2):

• an allegation of sexual harassment has been made, and
• information setting out the general nature of the conduct alleged.

18.  Subsection (2) ensures that the preliminary deactivation notice must also include sufficient information to enable a reasonable person in the position of the employee-like worker to understand the matters mentioned in paragraphs 11(1)(b), (c) and (d). The amendments do not alter this requirement in any way.

19.  The amendments seek to strike a balance between providing sufficient information to the employee-like worker who has been given a preliminary deactivation notice for allegations of sexual harassment, and the need to protect the privacy and safety of a person allegedly harassed. The worker retains the right to respond to the allegation, request a discussion with a representative and seek support or representation, and these elements of the Code process are not altered by the amendments.

20.  New subsection 11(3) only applies to the extent the reason for the notice being given relates to allegations of sexual harassment. This means that if there is more than one reason, new subsection 11(3) only applies to any reason that is about allegations of sexual harassment. The usual test in subsection 11(2) applies to any reason not relating to allegations of sexual harassment.

Item 6 – After subsection 14(4)

21.  Section 14 of the Code deals with the outcomes of digital labour platform operator’s consideration and inquiries.

22.  Subsection 14(1) provides that after giving a preliminary deactivation notice and complying with any applicable requirements in section 13, a digital labour platform operator must decide whether to:

• take no further action in relation to the worker, or
• terminate the worker’s access to the platform.

23.  Subsection 14(4) allows the digital labour platform operator to terminate the employee-like worker’s access to the platform only if there is a valid reason for termination and the operator considers on reasonable grounds that the reason had been established.

24.  New subsection 14(4A) sets out additional circumstances in which an operator may consider on reasonable grounds that a valid reason for termination has been established, within the meaning of paragraph 14(4)(b), if the reason for termination relates to allegations of sexual harassment.

First method – discussion with person allegedly harassed

25.  The digital labour platform operator had discussed the allegations with the person allegedly harassed and after these discussions had reasonable grounds for considering that a valid reason had been established. The operator may take into account the discussion and any other relevant evidence to form its view as to whether a valid reason had been established.

26.  Discussions may be verbal, such as via a phone call, or via written communication such as email. However, it is not intended that automated messages would meet the requirement of the digital labour platform operator having a discussion with the person allegedly harassed.

Second method – pattern of conduct

27.  The digital labour platform operator reviewed multiple reports or complaints about separate alleged incidents of sexual harassment by the worker over the previous 24 months before the platform issued a preliminary deactivation notice; and considered a valid reason had been established. This pathway reflects that patterns of reported conduct over time may, in some circumstances, provide a reasonable basis for forming the view that a valid reason exists.

28.  Subsection 14(4B) clarifies that new subsection 14(4A) does not limit the ways in which the operator can consider reasonable grounds for considering that a valid reason for terminating the employee-like worker has been established. An operator can consider that the reasonable grounds have been established in other ways; it does not need to rely on the new tests in subsection 14(4A) even if the reason for deactivation relates to sexual harassment. Subsection 14(4A) merely provides a new optional avenue for establishing reasonable grounds, where the reason for deactivation relates to allegations of sexual harassment.

Item 7 – Subsection 14(6)

Item 8 – At the end of section 14

29.  Section 14(6) of the Code provides that a final deactivation notice must include sufficient information to enable a reasonable person in the position of the employee‑like worker to understand the matters mentioned in subsection (5). Subsection 14(5) sets out the content requirements for the final deactivation notice:

• Paragraph 14(5)(b) provides that the final deactivation notice must specify the reason for the termination.
• Paragraphs 14(5)(a), (c) and (d) are less subjective requirements. They require the notice to state that the digital labour platform operator has decided to terminate the worker, the time and day on which the termination will take effect, and when and how any final payments will be made.

30.  Items 7 and 8 introduce a new qualification for subsection 14(6) and insert new subsection 14(7). The effect of these amendments is that for deactivations relating to allegations of sexual harassment, the final deactivation notice only needs to include the following information about the reasons:

• an allegation of sexual harassment has been made, and
• information setting out the general nature of the conduct alleged.

31.  Subsection 14(6) ensures that the deactivation notice must also include sufficient information to enable a reasonable person in the position of the employee-like worker to understand the matters mentioned in paragraphs 14(5)(a), (c) and (d). The amendments do not alter this requirement.

32.  The amendments seek to strike a balance between providing sufficient information to the employee-like worker who has been given a deactivation notice for allegations of sexual harassment, and the need to protect the privacy and safety of a person allegedly harassed.

33.  New subsection 14(7) only applies to the extent the reason for termination relates to allegations of sexual harassment. This means that if there is more than one reason, new subsection 14(7) only applies to any reason that is about allegations of sexual harassment. The usual test in subsection 14(6) applies to any reason not relating to allegations of sexual harassment.

Item 9 – After section 19

Section 19A Further matters that may constitute a valid reason for deactivation

34.  Section 19 of the Code outlines matters that may constitute a valid reason for deactivation.

35.  This item inserts new section 19A, which sets out further matters that may constitute a valid reason for deactivation.

36.  Subsection 19A(2) provides that a pattern of behaviour relating to sexual harassment can constitute a valid reason for deactivation. To meet this test, the digital labour platform operator must have received multiple reports or complaints that an employee-like worker on their platform has, in the course of performing work on the platform, sexually harassed a person. The reports or complaints must be in relation to alleged conduct that has occurred within the past 24 months. The reports or complaints can be in relation to the same person, or different people.  

37.  Subsection 19A(3) provides that an employee-like worker’s sexual harassment of a person while performing digital platform work on any platform can constitute a valid reason for deactivation. This means that digital labour platform operator A could deactivate a worker for sexually harassing a person when the worker was working on digital labour platform operator B’s platform.

Item 10 – At the end of the instrument

Part 4—Amendments made by the Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026

Section 23 Definitions for this Part

38.  This item adds application provisions to the end of the Code.

39.  New section 23 defines the following terms for the purposes of new Part 4:

• ‘amended instrument’ means the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024
• ‘amending instrument’ means the Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026, and
• ‘commencement’ means the commencement of the amending instrument.

Section 24 Application of amended instrument

40.  Section 24 provides that the amendments made by the amending instrument apply in relation to deactivations that occur after commencement. The amendments do not apply to deactivations that occurred before commencement of the amending instrument.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026

The Fair Work (Digital Labour Platform Deactivation Code) Amendment Instrument 2026 (Amendment Instrument) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The Amendment Instrument is made to vary the Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 (the Code) for the purposes of introducing targeted modifications to the existing Code process for unfair deactivation matters involving allegations of sexual harassment. The amendments recognise the importance of the safety and privacy of the complainant and emphasise the investigative process required to be undertaken by the digital labour platforms.

The Code supports the practical application of the unfair deactivation framework in Part 3A-3 of the Fair Work Act 2009 (the Act). It is integral to the Fair Work Commission’s (the Commission) determination of whether an employee-like worker (a worker) has been unfairly deactivated under Part 3A-3 of the Act. The Code is also intended to guide digital labour platform operators to ensure that in the event a worker’s access to a digital labour platform needs to be deactivated, such deactivation is done fairly.

In particular, the Amendment Instrument amends the Code to:

• clarify the information that must be included in deactivation warnings and notices for deactivations relating to allegations of sexual harassment
• create new tests platforms can follow to deactivate a worker where there has been an allegation of sexual harassment, and
• specify further matters, relating to sexual harassment, that may constitute a valid reason for deactivation.

The amendments will allow platforms to trigger deactivation processes without sharing sensitive and identifying detail about victim survivors.

Human rights implications

The definition of ‘human rights’ in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. The Amendment Instrument engages the following rights:

• the right to enjoyment of just and favourable conditions of work under Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and
• the right to privacy and reputation under Article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Right to work and rights in work

Article 6 of the ICESCR requires the State Parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has stated that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work.

Article 7 of the ICESCR requires the State Parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions.

The right to just and favourable conditions of work, as set out in the ICESCR, is not limited to workers within an employment relationship.

The Amendment Instrument engages the rights to work and rights in work by modifying the existing process for when an operator can fairly deactivate a worker from a platform where there has been an allegation of sexual harassment against the worker. The new framework introduces processes for operators to deactivate workers, which prioritise the safety and privacy of the complainant, and emphasises the investigative process required to be undertaken by the digital labour platforms.

The new process has inbuilt safeguards. The operator must consider that a valid reason for termination has been established before it can terminate a worker. In addition, the operator must comply with the rest of the requirements in the Code. These include requirements for the operator to give the worker notice of their potential deactivation and consider the worker’s response; and give the worker notice of their final deactivation. Workers will continue to be entitled to seek representation, and have their response considered by a human-decision maker.

To the extent that the right to work may be limited by the amendments, those limitations are reasonable, necessary, and proportionate in the pursuit of legitimate objectives. The amendments and the preexisting safeguards balance the right to just and favourable conditions of work with the need to enable digital labour platforms to take decisive action to respond to allegations of sexual harassment to safeguard community and user safety.

Right to privacy and reputation

Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. This includes respect for informational privacy, including in respect of storing, using, and sharing private information and the right to control the dissemination of personal and private information. Privacy guarantees a right to secrecy from the publication of personal information. It also prohibits unlawful attacks on a person's reputation.

The Amendment Instrument clarifies the content rules for deactivation warnings and deactivation notices in cases involving allegations of sexual harassment. The Code requires the worker to be given enough information to understand the reason why they are being deactivated. The amendments are intended to ensure that this requirement would not be interpreted to require the operator to disclose personal information about the person allegedly harassed that could put that person at risk. The operator is still required to tell the worker that an allegation of sexual harassment has been made, and to set out the general nature of the conduct alleged. This balances the need to afford procedural fairness to the worker with the need to protect the privacy and security of the person allegedly harassed.

The right to privacy of a user of a platform is therefore positively engaged and protected by the Amendment Instrument.

Conclusion

The Amendment Instrument is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that it may limit human rights and freedoms, those limitations are reasonable, necessary, and proportionate in the pursuit of legitimate objectives.

The Hon. Amanda Rishworth MP, Minister for Employment and Workplace Relations