s.536LU - Application for an unfair deactivation remedy

Application for unfair deactivation remedy -jurisdiction - application dismissed.

• [1] Mr Bansal (Applicant) has made an application for an unfair deactivation remedy, pursuant to section 536LU of the Fair Work Act 2009 (the Act). By the application, the Applicant alleges he was unfairly deactivated from a digital labour platform described as Uber Eats. Portier Pacific Pty Ltd (Respondent) 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 the Applicant did not work through or by means of a digital labour platform, or under a contract or series of contracts arranged or facilitated through or by means of a digital labour platform, on a regular basis for a period of at least 6 months. The matter was programmed on the basis that objection would be dealt with first, via a jurisdictional hearing. The Applicant did not comply with those directions and this provoked an application by the Respondent for the matter to be dismissed pursuant to section 536M. That application was dismissed[1] and further directions were issued. The Applicant complied with those further directions.

• [3] Having considered the matters that were advanced in the parties' respective materials, it appeared to me that there was no dispute on the facts that were advanced on the jurisdictional question as to whether the applicant had worked on a regular basis for at least six months through the Respondent's digital labour platform. I provided the parties an opportunity to dissuade me of that view and indicated that I would proceed to determine that issue on the papers if neither sought to do so. The Respondent expressed support for that course of action, the Applicant proffered no view at all. Accordingly, this decision deals with the resolution of that issue against the following background of uncontested facts:

(a) The Applicant's final deactivation took place either on 7 July 2025;

(b) The Applicant was issued with a "preliminary deactivation notice" on 1 July 2025 and his access to the Respondent's digital platform was suspended from that time and never restored;

(c) Whilst there is a dispute as to when the Applicant first commenced performing work on the platform, there is no dispute that he was performing work on the platform from at least November of 2024;

(d) The Applicant was available and logged in to the Uber Eats platform from November 2024 to July 2025 and was ready and willing to accept deliveries;

(e) The Respondent had not advised the Applicant what minimum number of hours or days were required in order for him to be considered a regular worker;

(f) The Applicant stayed logged in to the Uber Eats app for 1-2 hours at times without receiving a single job;

(g) If the Applicant had been paid based on hours logged in to the app, the Applicant would have exceeded 60 hours per month and 3 days per week;

(h) Job allocations are determined by algorithms, not a driver's willingness to work, such that workers cannot ensure their regularity;

(i) Short gaps in periods of performance of work by the Applicant were due to system allocation or demand fluctuations beyond his control;

(j) The Applicant performed no paid work on the Respondent's platform between 1 January to 14 February 2025;

(k) The Applicant performed no paid work on the Respondent's platform between 16 March and 1 April 2025;

(l) The Applicant performed no paid work on the Respondent's platform between 3 April and 27 April 2025;

(m) The Applicant performed no paid work on the Respondent's platform between 2 June and 12 June 2026;

(n) The Applicant performed no paid work on the Respondent's platform for 12 of the weeks prior to 1 July 2025;

(o) The Applicant performed no paid work on the Respondent's platform for 12 of the weeks prior to 7 July 2025;

(p) In the six months prior to 7 July 2025, the Applicant completed, on average, 25.1 hours per month of paid work on the platform;

(q) In the six months prior to 7 July 2025, the Applicant completed, on average, 2.19 hours per week of paid work on the platform.

• [4] I have had regard to the written submissions of the parties and the witness statement of Ms Fairlie prepared by the Respondent, together with the application form and the response. I have taken the Applicant's response to the Respondent's material as containing both evidence and submissions.

• [5] The scheme for providing remedies to employee-like workers who perform work by means of digital labour platforms is set out Part 3A-3 of the Act. Critically, that scheme does not provide a pathway to remedies for all workers performing this work. I identify this at the outset because the tone of the Applicant's material revealed a strong sense of injustice at the proposition that a worker engaging with the Respondent's platform in the manner he understood it was intended to be utilised could be deprived of a remedy for that reason alone. The reality is that whilst the Fair Work Commission does have some discretions it can exercise in connection with which workers are entitled to access a remedy (for example where an application is lodged out of time and an extension is sought under section 536LU(4)), the threshold issue in this case involves applying a substratum of facts to a standard established in the legislation. Reasonable minds may differ as to whether the standard chosen by the Parliament is a fair one, particularly in circumstances where the technical capacity might be developed by platform operators to manipulate the allocation of work in light of that legislative standard. However, the Commission's function is to apply the legislative standard as it finds it.

• [6] In this case, the jurisdictional question arises under section 536LD of the Act. That section sets out when a person is "protected from unfair deactivation". If a person is not protected from unfair deactivation, the Commission cannot order their reactivation[2] or make an order in respect of lost pay, being an order that itself is reliant on a re-activation order being made.[3] Accordingly, an application for a deactivation remedy is entirely inutile in the event that the person making it is not "protected from unfair deactivation" at the relevant time.

• [7] The reason the Respondent contends that the Applicant was not "protected from unfair deactivation" at the relevant time is because it takes the view that the facts in this case do not establish that the Applicant "has been performing work through or by means of that digital labour platform...on a regular basis for at least 6 months", as is required under section 536LD(c).

• [8] Pursuant to section 536LJ of the Act, the Minister is required to make a Digital Labour Platform Deactivation Code (Code) which, among other things, is required to deal with circumstances in which a work is performed on a regular basis. Section 18 of the Code deals with that issue as follows:

"18 Circumstances in which work is performed on a regular basis

(1) This section sets out, for the purposes of paragraph 536LJ(2)(a) of the Act, some circumstances in which work is taken to be performed by an employee‑like worker on a regular basis.

Note: To be protected from unfair deactivation from a digital labour platform, an employee‑like worker must have performed work through or by means of the platform on a regular basis for at least 6 months (see paragraph 536LD(c) of the Act).

(2) An employee‑like worker who completes, on average, 60 hours of paid work each month through or by means of a digital labour platform is taken to perform that work on a regular basis.

(3) An employee‑like worker who completes, on average, paid work on 3 days of each week through or by means of a digital labour platform is taken to perform that work on a regular basis.

(4) A reference in this section to time spent completing paid work is a reference to the time spent in undertaking the work for which the employee‑like worker is entitled to be paid.

Note: An effect of this subsection is that time spent waiting for work, or between tasks constituting the work, is not counted.

(5) An employee‑like worker may be taken to perform work on a regular basis through or by means of a digital labour platform even though the worker elects, in some weeks, not to perform any work through or by means of the platform.

(6) This section does not limit the circumstances in which work is taken to be performed by an employee‑like worker on a regular basis.

• [9] The uncontested facts in this matter do not meet the thresholds for regular work set out in the Code. But that is not the end of the matter. The Code does not profess to be the exclusive determinant of the question as to whether a person has been performing work on a regular basis for at least 6 months.[4] In considering this question, the following principles are relevant:

• (a) The "period of 6 months" to be inquired into is the period immediately preceding the deactivation[5];
• (b) The deactivation in this sense may be a final deactivation, or it may be a suspension that has the effect that the worker is no longer able to perform work under the contract, and there may be more than one act that constitutes a deactivation[6];
• (c) Work might be regarded as regular where there is a repetitive pattern to the performance of work (e.g. for one day a week), or where it is performed frequently or often. But if work is performed by the worker sporadically, occasionally, or on an ad-hoc basis, the worker should not be regarded as performing work on a regular basis;[7]
• (d) When considering whether a person has been performing work on a regular basis, the person is to be regarded as performing work only for the period during which they are being paid to perform work. As such, time spent logged in to digital labour platform waiting for the allocation of work is not to be counted[8] ; and
• (e) A person may be found to have performed work on a regular basis for a period of at least six months even if in some weeks they do not perform any work at all, but an extensive period of absence may have the result of severing what might otherwise be considered regular work over the period.[9]

• [10] A reference to a "month" in the Act is to be taken to be a reference to "calendar month" unless a contrary intention appears[10]. A calendar month in this sense is defined as follows:

"Calendar month means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month"[11]

In my view a contrary intention does not appear in section 536LD(c) of the Act. A "period of 6 months" as referred to in that section necessarily means that the number of days in a given 6 month period may differ depending on the mix of 30 or 31 day months in that period, and whether February is included. In the facts of this case, it is arguable that a deactivation occurred on either 1 or 7 July 2025. This means the relevant 6 month period commenced from either 1 or 7 January 2025.

• [11] The parties made reference in their written submissions to a number of cases in the Commission where particular patterns of work were found to meet or not meet the standard of performing work "on a regular basis for a period of at least 6 months". For the most part these submissions were concerned with metrics associated with how many hours per week, or weeks or hours per month (as averages) did or did not qualify in the circumstances under consideration. Whilst I have taken these submissions into account, ultimately in circumstances where the averages set out in the Code are not met (as is the case here), the judgement is based on the narrative or conceptual tests of regularity that involve applying an evaluative standard. That is what I have endeavoured to apply in the deciding the current matter.

• [12] In light of the uncontested facts in this case and applying the principles referred to above, I do not consider that the Applicant worked on a regular basis for a period of at least 6 months. This is so whether I measure that period commencing from 1 January or 7 January, because it is not in contest that the Applicant performed no paid work at all in 2025 until 15 February.

• [13] In my view, it is fatal to the Applicant's case that he performed no work at all in the first "month" of the relevant period. To find otherwise in my view would be entirely inconsistent with the requirement that work be performed on a regular basis for a period of at least 6 months. In the alternative, I consider that the absence from performing any work at all for the period 1 January to 14 February is extensive and inconsistent with any notion of regularity or frequency. The fact that paid work was only performed on one day in the period between 16 March and 27 April 2025 points to and solidifies the same conclusion. The fact that no paid work was performed for 12 weeks of the period tells against a conclusion that work was performed often.

• [14] It follows that the Applicant's application for an unfair deactivation remedy must be dismissed. An order giving effect to this decision is published separately.[12]

[1] [2025] FWC 3295

[4] Phillips-Lewis v. Rasier Pacific [2025] FWC 2398 at [26].

[5] Christian v. Portier Pacific [2025] FWC 2096 at [7]; Jibril [2025] FWC 1289 at [5]

[6] Bandameeda v. Amazon Commercial Services [2025] FWCFB 182 at [43].

[7] Pinwar v. Portier Pacific [2025] FWC 1578 at [13].

[10] s. 40A of the Act, Acts Interpretation Act 1901 s. 22(b) (as at 25 June 2009).

[11] Acts Interpretation Act 1901 s .22(1)(g) (as at 25 June 2009).

[12] PR794219.

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