s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - section 536LH(3)(a) Meaning of 7 business days - applicant was suspended for not more than 7 business days - application dismissed.

[1] Mr Karras has made an application to the Fair Work Commission (the Commission) for an unfair deactivation remedy pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the FW Act). Rasier Pacific Pty Ltd trading as Uber (Uber) is the respondent to the application.

[2] Uber suspended Mr Karras' access to its digital labour platform between 4 December 2025 to 12 December 2025. Uber suspended Mr Karras' account to investigate a complaint made by a customer against Mr Karras. The complaint alleged that Mr Karras had accepted a booking, but then cancelled the trip and "sped off" once he saw the colour of the customer's skin. Mr Karras strongly denies this allegation, and claims that the suspension was an unfair deactivation. Mr Karras says there is no evidence he partook in the alleged behaviour. Mr Karras seeks compensation for the days he was suspended.

[3] Uber has raised a jurisdictional objection to Mr Karras' application being that the suspension meets the requirements of s 536LH(3), and therefore it cannot be an unfair deactivation. The key issue in dispute is whether Mr Karras was suspended for more than 7 business days pursuant to s 536LH(3)(a).

[4] The parties agreed for me to determine this matter on the papers.

[5] Section 536LH of the FW Act sets out criteria for considering whether a deactivation was unfair. Section 536LH states:

"(1) In considering whether it is satisfied that a person's deactivation was unfair, the FWC must take into account:

(a) whether there was a valid reason for the deactivation related to the person's capacity or conduct; and

(b) whether any relevant processes specified in the Digital Labour Platform Deactivation Code were followed; and

(c) any other matters that the FWC considers relevant.

(2) Despite subsection (1) and any other provision of this Part, a deactivation that occurs because of serious misconduct of the person who was deactivated is not unfair.

(3) Despite subsection (1) and any other provision of this Part, a deactivation of a person from a digital labour platform is not unfair if:

(a) the deactivation is constituted by the modification or suspension of the person's access to the digital labour platform for a period of not more than 7 business days; and

(b) the FWC is satisfied that the digital labour platform operator concerned believes on reasonable grounds that one or more of the matters in subsection (4) is applicable.

(4) For the purposes of subsection (3), the matters are as follows:

(a) that the deactivation of the person is necessary to protect the health and safety of a user of the digital labour platform or member of the community;

(b) that the person has engaged in fraudulent or dishonest conduct including, but not limited to, by misrepresenting or falsifying information provided to the digital labour platform operator;

(c) that the person has not complied with licensing and accreditation requirements imposed by or under a law of the Commonwealth, a State or a Territory, whether:

(i) the requirements relate to the licensing or accreditation of the person; or

(ii) the requirements relate to the licensing or accreditation of the digital labour platform operator, and the person's conduct causes, or may cause, the digital labour platform operator to breach the requirements;

(d) that the deactivation of the person is necessary to enable the digital labour platform operator to do one or more of the following in relation to a matter specified in paragraph (a), (b) or (c):

(ii) refer the matter to a law enforcement agency (however described) for the purposes of conducting an investigation."

[6] In relation to Mr Karras' application, the effect of s 536LH(3) and (4) is that Mr Karras' suspension will not be considered an unfair deactivation if:

1. The Commission is satisfied that Uber believed on reasonable grounds that a suspension was necessary to conduct an investigation with regard to matters specified in s 536LH(4) (a), (b) or (c) (pursuant to s 536LH(3)(b)); and

1. The suspension was for not more than 7 business days (pursuant to s 536LH(3)(a)).

[7] Section 536LH(3)(b) was not in contest between the parties. In any event, I have considered the following matters in relation to s 536LH(3)(b). Uber has provided uncontested evidence that it received a complaint against Mr Karras, and it suspended Mr Karras' account to investigate the complaint against him. The complaint alleged that Mr Karras cancelled a trip and "sped off" when he saw the customer's race. I acknowledge Mr Karras strongly refutes this allegation and the circumstances described in the complaint.

[8] However, given the nature of the complaint, I am satisfied that Uber believed on reasonable grounds that a suspension was necessary to protect the health and safety of its riders while it investigated the complaint.

[9] I turn now to the key matter in dispute under s 536LH(3)(a), namely whether Mr Karras was suspended for a period of not more than 7 business days.

[10] Mr Karras claims that he was suspended for more than 7 business days. Mr Karras states that he was suspended for "nine days in total with one half day previous and a half day after the seven day period." Mr Karras argues in effect that business days include the days he would have worked for Uber.

[11] Uber argues business days means Monday to Friday and excludes the weekends and public holidays. On this definition of business days, Mr Karras was only suspended for 6 business days, and therefore his suspension cannot be an unfair deactivation.

[12] I can understand Mr Karras' position that business days should include all the days he works. After all, Uber is a 24/7 business, and the suspension has led to Mr Karras being denied over 7 days' work. Ultimately, however, for the reasons given below, I have determined that Uber's interpretation of business days as being Monday to Friday, not including weekends or public holidays, is the correct interpretation of 7 business days under s 536LH(3)(a).

[13] The term 'business day' is not defined in the FW Act. Other sections of the FW Act refer to days or working days. "Day" has been found by a Full Bench of the Commission to mean all calendar days,[1] while "working day" is defined at section 12 of the FW Act as "a day that is not a Saturday, a Sunday or a public holiday."

[14] I accept Uber's submission that the word "business" before "days" must have some work to do, and therefore "business days" cannot just be assigned the same meaning as "days" (i.e. calendar days). The real issue is whether "business days" in s 536LH(3)(a) refers to Uber's business days, or rather a broader understanding of the phrase "business days" that applies to all employers despite their actual business hours.

[15] In general, in the absence of a definition of a word or phrase in a statute, the words are to be interpreted in accordance with their ordinary and current meaning.[2]

• [16] Despite the increase in businesses which are open over weekends and public holidays, the generally accepted meaning of "business days" in Australia remains a reference to Monday to Friday, excluding Saturday, Sunday and public holidays. For example, if your Australia Post package is to be delivered on the next business day, this means it will be delivered on the next weekday (Monday to Friday), excluding weekends and public holidays.[3] Similarly, when a tax form must be filed on a business day, this means a weekday, excluding weekends and public holidays.[4]

[17] This common understanding of business days is reflected in the definition of "business days" in the current Acts Interpretation Act 1901, which at section 2B specifies that "In any Act.... business day means a day that is not a Saturday, a Sunday or a public holiday in the place concerned."

[18] Strictly speaking, the current Acts Interpretation Act 1901 does not apply to the FW Act, which instead refers at s 40A to the Acts Interpretation Act 1901 as in force on 25 June 2009. The 2009 version of the Acts Interpretation Act does not include a definition of business day. However, the definition in the current Acts Interpretation Act remains important. This is because it gives a clear indication of the Legislature's understanding of the phrase. It is highly unlikely that the Legislature would intend the phrase "business day" to mean different things in different Acts, unless explicitly provided.

[19] There is nothing in s 536LH to suggest that the phrase business day should have a different meaning to the ordinary meaning, or a different meaning to that in other Federal legislation. Nor is there anything in s536LH (or the Part 3A-3 more broadly) which would suggest "business day" is not a generic term but rather a term tied to the actual business hours of the Digital Labour Platform Operator. Without anything to suggest otherwise, it is apparent that the Legislature intended 7 business days in s 536LH(3)(a) to refer to the ordinary meaning of business days.

[20] Accordingly, I find that business day for the purpose of s 536LH(3)(a) means Monday to Friday, excluding Saturday, Sunday and public holidays. Consequently, Mr Karras was only suspended for 6 business days, and therefore his suspension does not meet a threshold requirement to be considered an unfair deactivation.

[21] For the reasons given, I am satisfied that Mr Karras' suspension from the Uber platform was for a period of no more than 7 business days. Accordingly, I find that Mr Karras' suspension cannot be considered an unfair deactivation pursuant to section 536LH(3) of the FW Act. It follows that Mr Karras' application for an unfair deactivation remedy must be dismissed.

[1] CFMMEU v DP World Melbourn Ltd [2019] FWCFB 6430, at 41.

[2] Australian Leisure and Hospitality Group Pty Ltd v Director of Liquor Licensing [2012] WASC 463, [22] (Hall J).

[3] See Australia Post - Express Post guarantee www.auspost.com.au/business/shipping/parcels-domestic/express-post/express-post-guarantee

[4] Taxation Administration Act 1953 (Cth) s 8AAZMB.

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