Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - application dismissed

• [1] On 5 May 2025, Mr Haiqing Fang filed an application pursuant to s 536LU of the Fair Work Act 2009 (Cth) (the Act) seeking an unfair deactivation remedy. Raiser Pacific Pty Ltd (Raiser) is the Respondent to the application. Mr Fang had a digital account operated by Raiser in connection with his work as an Uber driver and performed work through or by means of that account.

• [2] Raiser objects to the application on the basis it says that Mr Fang is not a person protected from unfair deactivation pursuant to Part 3A-3 of the Act because the deactivation of his account did not occur after 26 February 2025. It also claims that Mr Fang did not perform work on a regular basis for a period of at least six months. Raiser seeks that the application be dismissed for want of jurisdiction.

• [3] I conducted a hearing to determine the question of jurisdiction. Prior to the hearing both parties filed written material in support of their position. At the hearing, Mr Fang represented himself, and I granted Raiser permission to be represented by a lawyer, Ms Julia Leeds.

• [4] Mr Fang gave evidence that he performed work as an Uber driver from 27 February 2024 until his account was taken off line on 16 February 2025. There is no dispute that his account was taken off line on 16 February 2025.

• [5] Mr Fang concedes that after 16 February 2025 he did not perform any work of any kind in connection with the account or otherwise as an Uber driver.

• [6] Mr Fang gave evidence, which I accept, that following his account being taken off line, he submitted a review request to what he refers to as "Uber" (which I consider to be Raiser) seeking the reactivation of his account. He then messaged Uber several times during March and April 2025 to follow up on his request. He also explained that during this period he still had access to "Uber support". On 29 April 2025 he was advised in an email that his account would remain deactivated permanently. After this date, he no longer had access to "Uber support".

• [7] Because it claims Mr Fang's account was deactivated on 16 February 2025, and before 26 February 2025, Raiser asserts that Mr Fang is not protected from unfair deactivation within the meaning of the Act. I agree that, if the deactivation with respect to Mr Fang occurred prior to 26 February 2025, he is not protected by the unfair deactivation provisions of the Act[1].

• [8] However, Mr Fang claims the deactivation occurred after 26 February 2025 - on 29 April 2025 - when he was advised that his appeal for review had failed, and his account would remain deactivated. This is despite the fact that in his evidence, Mr Fang used the term "deactivated" in respect of his account having been taken off line on 16 February 2025. I suspect his terminology in this regard was used more colloquially than it being equivalent to a concession as to the jurisdictional point - he said in evidence it arose from his use of the "Chat GPT" application to draft his submission. I note that the question as to when the deactivation occurred requires consideration to be given to the meaning of "deactivation" as a matter of statutory construction, regardless of the terminology used by Mr Fang in his evidence.

• [9] This aspect of Raiser's objection is therefore in dispute.

• [10] Further, Raiser claims Mr Fang has not performed work on a regular basis for a period of at least six months from 26 August 2024. Section 536LD(c) of the Act provides, in effect that a person is not protected from unfair deactivation if they have not been performing work through or by means of the relevant digital labour platform on a regular basis for a period of at least 6 months.

• [11] For Mr Fang, this may seem a strange objection because it appears he has worked as an Uber driver since February 2024 - much longer than six months.

• [12] However, the relatively new protection in the Act from unfair deactivation works in such a way that the requirement a person has performed work on a regular basis for at least 6 months only counts time worked after 26 August 2024[2].

• [13] There appears to be no issue taken with the proposition that Mr Fang's work prior to 16 February 2025 occurred on a "regular" basis.

• [14] But Mr Fang did not perform any work in connection with his Uber account after 16 February 2025. It therefore appears that on this date, his "period of work" ended.

• [15] Mr Fang said that after 16 February 2025 he remained in communication with Uber. He also referred to the flexible nature of the work, perhaps intending to submit that given the sometimes irregular nature of work as an Uber driver, a period of work might be said to be ongoing where the person in question remains in communication with the platform, despite not performing any actual work for a period of time.

• [16] Having regard to recent decisions of this Commission as to the terms "performing work" and "on a regular basis for a period of six months" as they are used in S 536LD(c) [3], I do not agree that Mr Fang's regular period of work can be said to have continued after 16 February 2025, after which time he performed no work at all in relation to the platform. This is the date upon which the period of work in question ended.

• [17] Accordingly, even if Mr Fang is correct - and the deactivation of his account did not occur until when his appeal for review was determined - on 29 April 2025 - it would still be the case that when this occurred he had not been performing work for a period of at least six months, in terms of how that period must be calculated. The work he performed on a regular basis, calculated from 26 August 2024, was for a period of time amounting to less than six months.

• [18] It is therefore not necessary for me determine whether the deactivation of Mr Fang's account occurred on 16 February 2025 or whether the deactivation occurred afterwards, when his appeal for review was determined.

• [19] Whether Mr Fang's account was deactivated on 16 February 2025 or 29 April 2025 he had not been performing work for a period of at least 6 months, within the meaning of s 536LD(c) of the Act. The Commission therefore has no jurisdiction to determine the matter, and this application must be dismissed. An Order[4] will issue to this effect.

[1] Fair Work Act 2009 Schedule 1, cl 124; Bhupinder Singh v Uber T/A Raiser Pacific Pty Ltd [2025] FWC 928

[2] Priyanash Singh Panwar v Portier Pacific Pty Ltd [2025] FWC 1578 [11]

[3] The expression "performing work on a regular basis" was considered in Priyansh Singh Panwar v Portier Pacific Pty Ltd [2025] FWC 1578 and again more recently in Mian Abu Bakar v Raiser Pacific Pty Ltd [2025] 1874 [9]

[4] PR788927

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