s.536LU - Application for an unfair deactivation remedy

Application for unfair deactivation remedy - whether some or all of the matter to be determined on the papers - application dismissed.

• [1] Mr Kaya (Applicant) has made an application pursuant to section 536LU of the Fair Work Act 2009 (the Act), in which he alleges he was unfairly deactivated from a digital labour platform described as Uber Eats. Portier Pacific Pty Ltd has identified itself as the correct Respondent to the Application and has filed a response and additional material in respect of it.

• [2] The Respondent has objected to the application on the basis that:

(a) it was made out of time; and

(b) the Applicant was not a person protected from unfair deactivation pursuant to section 536LD of the Act because the deactivation occurred before the commencement of Part 3A-3 of the Act and the Applicant had not worked on regular basis for at least 6 months from 26 August 2024.

The matter was programmed on the basis that those objections would be dealt with first, via a jurisdictional hearing.

• [3] The proceeding has been delayed by the Applicant's non-compliance with the initial directions, an adjournment, the Applicant's non-compliance with the amended directions issued in consequence of that adjournment, and a supplier initiated cancellation of an interpreter booking on the morning the jurisdictional matter was due to proceed. The Respondent had communicated its concerns regarding the Applicant's non-compliance prior to the hearing, and the parties were informed that I was content to also deal with those matters during the jurisdictional hearing.

• [4] Although the jurisdictional hearing was not able to proceed due to the interpreter's unavailability, I did call the matter into conference briefly to explain that circumstance and schedule an alternate date. In the course of that conference, the Respondent suggested that the matter, or at least part of the matter, might be dealt with on the papers. I invited the Respondent to put that position in writing, together with its application to be represented, and allowed some time for the Applicant to respond to that. This invitation was subsequently confirmed in writing by chambers to the parties.

• [5] The Respondent provided the submissions as requested. The Applicant provided no response to them and sought no additional time to respond to them. I approach the matter on the basis that the Respondent's submissions are not opposed.

• [6] The Respondent mounts an argument that it should be given permission to be legally represented pursuant to each of paragraphs (a), (b) and (c) of subsection 596(2) of the Act. The Applicant is not seeking to be legally represented, but does have a support person. I accept that there are complexities associated with this novel jurisdiction that can be dealt with more efficiently with benefit of a legal practitioner participating in the proceedings. I do not regard the fact of the Respondent being legally represented as introducing any unfairness in the proceeding (it being the Commission's obligation to ensure fairness to all parties), and note that a legal practitioner's professional obligations in any event provide a measure of reassurance in this respect.[1] I consider it is appropriate to allow the Respondent to be legally represented on this basis, such that it is unnecessary to consider the submissions advanced by the Respondent pursuant to paragraphs (b) and (c) of subsection 596(2). In any event, given the conclusions I have reached below, permission is not necessary for any future hearings or conferences in this matter.

• [7] The position advanced by the Respondent in its written submissions is that the Application should be dismissed on the papers on the basis of each of the grounds it has advanced, being the Applicant's non-compliance, that the application is out of time, and that the Applicant is not a person protected from unfair deactivation. In support of this position, it submits that there is no compulsion to hold a hearing under section 593 of the Act, that 536LZ of the Act does not mandate hearings to be held in unfair deactivation matters and that "Given the uncontested matters, a contested hearing is not the most effective and efficient way for the matter to be determined".

• [8] I take a more nuanced view. Whilst I accept what the Respondent says about section 593, the issue of when to hold a hearing in respect of this matter, having regard to the grounds relied on by the Respondent, is informed by sections 536LW, 536LX, 536LZ and 536M of the Act, which are reproduced below:

"536LW Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 536LU(3);

(b) whether the person was protected from unfair deactivation or unfair termination, as the case requires;

(c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

(1) The FWC must not hold a hearing in relation to a matter arising under this Part unless the FWC considers it appropriate to do so, taking into account:

(b) whether a hearing would be the most effective and efficient way to resolve the matter.

(2) If the FWC holds a hearing in relation to a matter arising under this Part, it may decide not to hold the hearing in relation to parts of the matter.

(3) The FWC may decide at any time (including before, during or after conducting a conference in relation to a matter) to hold a hearing in relation to the matter.

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 536MB).

(2) The FWC may exercise its power under subsection (1) on application by a regulated business.

(3) This section does not limit when the FWC may dismiss an application." (emphasis in underline added)

• [9] I am reluctant to require that all of the grounds for dismissal relied on by the Respondent be dealt with together on the papers. This is because I do not presently know all the matters the Applicant might wish to rely in respect of the extension of time application (and whether they are disputed) and whether any facts will be disputed relating to the question of whether the failure of the Applicant to comply with directions was unreasonable.

• [10] The situation with respect to whether the Applicant was protected from unfair deactivation is in a different category. It is a discrete matter as identified in section 536LW(b) and, so far as the present application is concerned, there is no dispute concerning the deactivation being notified on 25 September 2024. There is a dispute as to whether the deactivation "took effect" on that day or the following day, but it is not in dispute that deactivation took effect on a date before 26 February 2025. It is appropriate, effective and efficient to deal with the issue of whether the Applicant was protected from unfair deactivation on the papers as a discrete issue.

• [11] If the Applicant was not protected from unfair deactivation at the time of being deactivated, the Commission cannot award him a remedy[2], and as such the application has no utility and must be dismissed. The nature of an application made under section 536LU is limited to an application for a remedy under Division 4 of Part 3A-3. Such a remedy is the very thing that Commission is precluded from awarding unless satisfied that the Applicant was protected from unfair deactivation at the relevant time.

• [12] The date of 26 February 2025 is significant in determining whether a person was protected from unfair deactivation at a particular time. Section 536LD of the Act sets out when a person is protected from unfair deactivation as follows:

"536LD When a person is protected from unfair deactivation

A person is protected from unfair deactivation at a time if, at that time:

(i) performs work through or by means of a digital labour platform operated by a digital labour platform operator; or

(ii) performs work under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator; and

(c) the person has been performing work through or by means of that digital labour platform, or under a contract, or a series of contracts, arranged or facilitated through or by means of the digital labour platform, on a regular basis for a period of at least 6 months."

• [13] It will be observed that each of paragraphs (a)-(c) of section 536LD must be satisfied in order for a person to be considered to be protected from unfair deactivation at a particular time. For present purposes, it is necessary only to deal with paragraph (c).

• [14] As discussed in the decision of Commissioner Redford in Fang v. Raiser Pacific[3] the laws which introduced rights for employee like workers to seek remedies in respect of unfair deactivation are relatively new, and included transitional provisions that conditioned when those rights became available. It was not the case that these new rights were available to all employee like workers whom had been deactivated at any time in the past, but rather the transitional provisions relevantly provided that "For the purposes of determining under paragraph 536LD(c) whether an employee like worker has been performing work for a period of at least 6 months, a period or periods before commencement are not to be counted"[4]. The reference to "commencement" in that transitional provision is to be taken to mean the date of commencement of Item 238 of Part 16 to Schedule 1 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.[5] That date is 26 August 2024.

• [15] The consequence of this is that, leaving aside any question of whether the Applicant's work by means of a digital labour platform was performed on a regular basis, unless the work had been performed for at least 6 months from 26 August 2024 - and therefore unless the deactivation occurred on or after 26 February 2025 - the Applicant will not be taken to have satisfied the requirement in paragraph (c) of section 536LD.

• [16] As noted above, it is not in dispute that the deactivation took place and took effect before 26 February 2025. Accordingly, it is inescapable that the Applicant was not a person protected from unfair deactivation at the relevant time, and the Application must therefore be dismissed.

• [17] An order giving effect to the correct title of the Respondent and the dismissal of the proceeding is published separately.[6]

[1] See Davidson v. Aboriginal & Islander Child Care Agency. AIRC Full Bench 12 May 1998, Print Q0784; Serobian v. Commonwealth Bank [2010] NSWCA 181 at [42] .

[3] [2025] FWC 1917.

[4] See clause 124(2) in Schedule 1 of the Act, as introduced by Part 18 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

[5] See clause 123 in Schedule 1 of the Act, as introduced by Part 18 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

[6] PR792544.

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