s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - agreed fact conclusive of jurisdictional objection - application dismissed.

[1] Mr Khan (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. Rasier 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. It also wished to advance a separate objection that it had complied with the Digital Labour Platform Deactivation Code.

[3] The application was lodged on 16 December 2025, was allocated to my Chambers on 19 December 2025 and listed for a case management hearing on 2 March 2026. In the course of that conference, the Applicant agreed with the Respondent's position that he had not worked on its digital labour platform since 8 September 2025 until receiving a preliminary deactivation notice on 8 December 2025, pending the final deactivation which occurred on 17 December 2025. The Applicant volunteered that the reason for not working during this time was that his licence had been suspended for three months. The Applicant accepts that these agreed facts allow the matter to be to determined without the need for a further conference or hearing.

[4] 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. 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.

• [5] 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[1] or make an order in respect of lost pay, being an order that itself is reliant on a re-activation order being made.[2] 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.

[6] 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).

[7] 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.

• [8] The agreed 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.[3] 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[4];
• (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[5];
• (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;[6]
• (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[7] ; 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.[8]

• [9] A reference to a "month" in the Act is to be taken to be a reference to "calendar month" unless a contrary intention appears[9]. 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"[10]

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, the preliminary deactivation occurred on 8 December 2025. This means the relevant 6 month period commenced from 8 June 2025.

[10] 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 deciding the current matter.

[11] 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 because it is not in contest that the Applicant performed no paid work at all after 8 September 2025.

[12] In my view, it is fatal to the Applicant's case that he performed no work at all in the three "months" 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 8 September to 8 December is extensive and inconsistent with any notion of regularity or frequency. It also tells against a conclusion that work was performed often.

• [13] 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.[11]

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

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

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

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

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

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

[11] PR797286.

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