s.536LU - Application for an unfair termination remedy

Application for an unfair termination remedy - whether 'regulated road transport contractor'

[1] Mr Benham Nourkarami applied to the Commission for an unfair termination remedy under s.536LU of the Fair Work Act 2009 (Cth) (the Act) in relation to his former work through a rideshare platform operated by DiDi Mobility (Australia) Pty Ltd (DiDi). Applications of this kind can be made under s.536LU by a person who has been terminated and for the purpose of obtaining a remedy under Division 4 of Part 3A-3 of the Act (Unfair deactivation or unfair termination of regulated workers).

[2] DiDi objects to the application on the basis that Mr Nourkarami does not have standing to apply. It submits that Mr Nourkarami was an employee-like worker in relation to work performed through the DiDi platform (s.15Q(e)) and not a 'regulated road transport contractor'.

[4] Under s.536LL of the Act, a person has been 'terminated' if they performed work as a regulated road transport contractor under a services contract, and a road transport business received services under that contract, and the services contract was terminated by, or as a result of conduct of, the road transport business.

[5] The term 'regulated road transport contractor' is defined in s.15Q of the Act as a person (which may be an individual, a director of a body corporate or their family member, or the trustee of a trust, or a partner of a partnership) who is party to, and performs work under, a services contract, and

• who performs all, or a significant majority of the work to be performed under the services contract (s.15Q(b)), and
• who does not perform any work under the services contract as an employee (s.15Q(c)), and
• who performs the work in the road transport industry (s.15Q(d)), and
• who is not an employee-like worker in relation to that work (s.15Q(e)).

[6] The term 'employee-like worker' is defined in s.15P(1) of the Act. Relevantly, it means a person who is a party to a services contract in their capacity as an individual, and who performs all, or a significant majority of the work to be performed under the contract. The work performed must be digital platform work and must not be performed as an employee. The person must also meet at least 2 of the following criteria:

1. They have low bargaining power in negotiations in relation to the contract under which the work is performed,
2. They receive remuneration at or below the rate of an employee performing comparable work,
3. They have a low degree of authority over the performance of the work, or
4. They have such other characteristics as are prescribed by the regulations.

• [7] A person cannot be both a 'regulated road transport contractor' and 'employee-like worker' in relation to the same work, because the effect of s.15Q(1)(e) is to make the terms mutually exclusive. As the Commission has previously observed in in Ho Wong v Sal National Pty Ltd:[1]

"Part 3A-3 of the Act was introduced for the purpose of protecting regulated workers against unfair deactivation or unfair termination. A "regulated worker" is defined in s 15G of the Act to mean an employee-like worker or a regulated road transport contractor. The definition of an "employee-like worker" in s 15P of the Act has many similar features to the definition of a "regulated road transport contractor" in s 15Q, with the main difference being that an "employee-like worker" performs work on or by means of a digital labour platform. Both definitions require there to be in existence a "services contract" under which a person performs all, or a significant majority, of the work."

[8] Despite being on notice of DiDi's contention to this effect, Mr Nourkarami maintains that he was a 'regulated road transport contractor' for the purposes of the Act. Even so, he does not dispute that his work for DiDi was through a digital labour platform. In his written submissions, Mr Nourkarami stated:

"The services I provided consisted of transporting passengers from one location to another using the DiDi application. This work clearly constitutes road transport services facilitated by a digital labour platform."

[9] On the evidence, I find that Mr Nourkarami was an 'employee-like worker' in relation to his work with DiDi and cannot have been a regulated road transport contractor for the purposes of s.15Q of the Act. He was not entitled to apply to the Commission for an unfair termination remedy under s.536LU.

[10] In the circumstances, it is not necessary to deal with the separate submission of DiDi that Mr Nourkarami could not operate a rideshare vehicle in any event because he had previously committed a disqualifying offence under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW).

Mr B. Feltham of King & Wood Mallesons for the respondent.

[1] Ho Wong v Sal National Pty Ltd [2025] FWC 1701 at [18].

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