Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether applicant was protected from unfair deactivation - jurisdictional objection - whether requirement to have been performing work on a regular basis for a period of at least six months met - objection dismissed

• [1] Jai Phillipps-Lewis has been performing work through the Uber Driver Platform ("Platform") since January 2019. He does so under a services agreement that he entered into with Rasier Pacific Pty Ltd ("Uber") in December 2018.

• [2] Uber removed Mr Phillipps-Lewis' access to the Platform from 25 May 2025 until 2 June 2025. It is not presently necessary to explore the reasons for which it did so and whether it was entitled to do so. He has continued to perform work through the Platform since 2 June 2025.

• [3] On 27 May 2025, Mr Phillipps-Lewis made an application to the Fair Work Commission for an unfair deactivation remedy pursuant to s 536LU of the Fair Work Act 2009[1] ("Application"). He seeks compensation for the earnings he claims he lost in the period during which he was unable to access the Platform.

• [4] Uber has raised two jurisdictional objections to the Application (together, "Objections"). First, it contends that as at 25 May 2025, Mr Phillipps-Lewis had not been performing work on the Platform on a regular basis for a period of at least six months, as required by section 536LD(c) ("First Objection"). Second, it contends that Mr Phillipps-Lewis was not "deactivated" within the meaning of section 536LG ("Second Objection"). In addition to the Objections, Uber argues that the Commission does not have the power to award Mr Phillipps-Lewis the remedy he seeks. On these grounds, Uber requests that the Commission dismiss the Application.

• [5] However, Uber submitted that in the event that I dismissed its First Objection, the determination of the Second Objection should be "stayed, or alternatively, determination of those issues reserved until a later date".[2] The premise of the submission was that there are proceedings on foot in the Commission which may have a bearing on my determination of the Second Objection.[3]

• [6] It is my understanding that in those proceedings the Full Bench will be required to determine whether an employee-like worker is "deactivated" within the meaning of section 536LG if their account has been reactivated. This is, in broad terms, the basis of the Second Objection.[4]

• [7] I arranged for an email to be sent to the parties on 31 July 2025, which informed them that I had formed the provisional view that in respect of the Second Objection I should proceed as suggested by Uber. The email requested Mr Phillipps-Lewis's views on that provisional view. In an email he sent to my Chambers later that day, he stated that he agreed with that view. I have determined to proceed accordingly.

• [8] As a result, this decision relates only to the First Objection.

• [9] I have determined to dismiss the First Objection. These are my reasons.

• [10] To order a remedy in unfair deactivation proceedings, the Commission must be satisfied of two things: that the applicant was a person protected from unfair deactivation, and that the person was unfairly deactivated: section 536LP(1).

• [11] Section 536LD defines when a person "is protected from unfair deactivation" in these terms:

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.

• [12] The First Objection concerns section 536LD(c).

• [13] Section 536LJ(1) requires the Minister to make a code to be known as the Digital Labour Platform Deactivation Code ("Code"). The Code must deal with a number of matters including "the circumstances in which work is performed on a regular basis": section 536LJ(2)(a). On 3 December 2024, the Minister for Employment and Workplace Relations made the Code.[5]

• [14] Section 18 of the Code provides 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.

• [15] The Explanatory Statement issued by the authority of the Minister in relation to the Code ("Explanatory Statement") relevantly provides:

"110. The overarching framework in which paragraph 536LJ(2)(a) sits is intended to protect employee-like workers who perform work through or by means of a digital labour platform sufficiently often, or in a readily identifiable pattern of work. It is not intended that workers who only perform work through or via a platform occasionally, or on an ad hoc basis, should be protected from unfair deactivation under the Act.

115. Subsection 18(5) provides that 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. For example, an employee-like worker who typically performs works on 3 days each week over a 6-month period may be juggling many responsibilities in addition to work via the platform. The fact that the worker may not perform work in a few weeks in this period due to having a break or meeting caring responsibilities or study requirements does not mean that the worker has not been performing work on a regular basis. This reflects the way in which workers engage with digital platform work.

Illustrative examples: Circumstances in which work is performed on a regular basis

Example 1 -employee-like worker performs work on a regular basis

An aged care worker performs work through a care platform to supplement their income as a casual employee of an aged care provider. The worker registers with the platform in January and agrees to perform work for three separate clients under services contracts with each of them. The worker performs approximately 15 hours of paid work for all but two of the weeks in the period from January to August prior to the worker being deactivated. The worker did not perform any work in these two weeks because either they or their client was unwell. The number of hours and the days on which work was performed differed each week. However, the worker still performed work sufficiently often (approximately 15 hours a week) so that the worker has performed work on a regular basis for a period of at least 6 months.

Example 2 -employee-like worker performs work on a regular basis

A rideshare driver registers with a digital labour platform in February. Over the next 9 months, the driver performs work on 3-4 days each week, before the driver is deactivated in November. Each week, the days on which the driver works differ, as do the number of hours of work performed on each day. Despite these differences, there is a readily identifiable pattern to the manner in which the driver performs work (ie, on a weekly basis). The driver has therefore performed work on a regular basis for a period of at least 6 months."

• [16] In Mr Priyansh Singh Panwar v Portier Pacific Pty Ltd[6] ("Panwar"), Deputy President Saunders observed:[7]

"The expression 'performing work on a regular basis' in paragraph 536LD(c) is not defined in the Act. There is, however, a long line of authority to support the proposition that the expression is intended to imply some form of repetitive pattern. Further, although the word 'regular' is not being used as a synonym for 'uniform', 'constant', 'frequent' or 'often', the frequency with which a person works may be relevant to the regularity of the performance of their work. If a person works frequently or often (e.g. six days a week), it is likely that they will be regarded as performing work on a regular basis. But it is not necessary for work to be performed frequently or often in order for the work to be performed on a regular basis. For example, a person who works from 6am until 6pm every Thursday is likely to be regarded as performing work on a regular basis even though the work may not be considered to be performed frequently or often. Conversely, if a person performs work sporadically, occasionally or on an ad hoc basis, they would not be regarded as performing work on a regular basis." (Footnotes omitted)

• [17] The Commission has accepted that the term "regular" should be construed liberally.[8] It has done so in the context of determining whether a casual employee has been engaged on "regular and systematic basis" for the purposes of section 384(2)(a) in the context of the Commission's unfair dismissal jurisdiction. But I see no warrant for adopting a different approach to the term as it appears in section 536LD(c).

Was Mr Phillipps-Lewis "performing work on a regular basis"?

• [18] There was no dispute between the parties that Mr Phillipps-Lewis had been performing work through or by means of the Platform for a period of at least six months immediately prior to 25 May 2025. The controversy was whether he had been performing work "on a regular basis" during that period.

• [19] Uber relied on a statement of Emilie Fairlie, the Senior Manager, Industrial Relations at Uber Australia Pty Ltd. Her evidence included a "trip log" of the work performed by Mr Phillipps-Lewis in the six months period to 25 May 2025.[9] Ms Fairlie gave evidence that in that period, Mr Phillipps-Lewis completed, on average, 30.6 hours of paid work each month and performed paid work on an average of 2.92 days per week. Mr Phillipps-Lewis did not dispute that evidence and I accept it.

• [20] However, in his own statement, Mr Phillipps-Lewis stated:[10]

"Between 24 November 2024 and 25 May 2025, I worked consistently on Fridays, Saturdays, and Sundays. Any variation in this routine was due to unavoidable factors such as public holidays, family obligations, or necessary vehicle maintenance."

• [21] The work pattern that Mr Phillipps-Lewis described is borne out by Ms Fairlie's evidence. The "trip log" shows that Mr Phillipps-Lewis performed work in every week for the period to which it relates, always including the weekend. On 11 occasions he worked Friday to Sunday. In nine weeks he worked only on the Saturday and Sunday. Of the remaining weeks, he worked twice from Friday to Monday, twice from Thursday to Sunday, and once from Thursday to Monday (Easter 2025).

• [22] Uber placed significant reliance on the fact that Mr Phillips-Lewis did not meet the circumstances in sections 18(2) and (3) of the Code. In that context, it drew my attention to paragraph 110 of the Explanatory Statement and highlighted in particular the words "sufficiently often". It submitted:[11]

"Illustrative examples contained in the Explanatory Statement aide to demonstrate that the Applicant did not perform work on the Uber Driver Platform on a regular basis. Against those illustrative examples, the Applicant clearly failed to meet the requisite thresholds to be considered to have performed work on the Uber Driver Platform sufficiently often."

• [23] Uber further contended:[12]

"The Applicant's performance of work cannot be regarded as regular against any metric, and the Applicant's performance of work was insufficient to qualify the Applicant for the protection intended by the overarching framework in which paragraph 536LJ(2)(a) of the FW Act sits.

Further, ...in the decision of Panwar, Deputy President Saunders held that the word 'regular' is not being used in paragraph 536LD(c) of the FW Act to be synonymous with words such as 'uniform', 'constant', 'frequent' or 'often'. Likewise, the Respondent submits that the Applicant's submission that he performed work on a 'consistent' basis cannot be held to mean the same as performing work on a 'regular' basis in satisfaction of subsection 536LD(c) of the FW Act or section 18 of the Code. A 'holistic view' of the Applicant's work performance on the Uber Driver Platform can only result in a determination that the Applicant performed approximately half of the work necessary to be taken to have performed work on the Uber Driver Platform on a regular basis."

• [24] The evidence is clear (and there is no controversy) that in the six months prior to 25 May 2025, Mr Phillipps-Lewis did not complete an average of 60 hours of paid work each month or perform paid work, on average, on 3 days in each week. However, those facts do not have the significance for which Uber contended.

• [25] Uber referred to sections 18(2) and (3) of the Code as providing "circumstantial guidance".[13] On one reading, however, its submissions could be read as elevating those sections to the level of preconditions to be met before an employee-like worker can be regarded as having performed work on a regular basis. This is reflected in the submissions that Mr Phillipps-Lewis "failed to meet the requisite thresholds to be considered to have performed work on the Uber Driver Platform sufficiently often" and that he "performed approximately half of the work necessary to be taken to have performed work on the Uber Driver Platform on a regular basis" (my emphasis). That said, I will approach the submissions as being intended to emphasise the gap between Mr Phillips-Lewis' work patterns and those referred to in section 18(2) (noting that Mr Phillips-Lewis' average days of paid work per week are not far under those to which section 18(3) refers).

• [26] Section 18 of the Code "sets out...some circumstances in which work is taken to be performed by an employeelike worker on a regular basis" (my emphasis): section 18(1). Two of those circumstances are described in sections 18(2) and (3). But section 18(6) makes it clear that the section "does not limit" the circumstances in which the Commission may find that work is performed on a regular basis. That is, meeting the circumstances described in sections 18(2) or (3) (stressing the disjunctive) is sufficient to be taken to have performed work on a regular basis, but is not necessary. In deciding whether the employee-like worker has performed work on a regular basis in other circumstances, the Commission will be guided by the principles outlined above.

• [27] In that context, I do not consider that the Explanatory Statement assists Uber. Its emphasis on the words "sufficiently often" in paragraph 110 of the Explanatory Statement, combined with its reference to "the requisite thresholds", seemed to invite a conclusion that "sufficiency" was to be determined by what was necessary to meet the circumstances in sections 18(2) or (3) of the Code. Again, meeting those circumstances is not a necessary requirement.

• [28] In any event, Uber's submissions ignored the words that immediately follow "sufficiently often", that is "or in a readily identifiable pattern of work". Mr Phillipps-Lewis' engagement every weekend was "readily identifiable". In this regard, his situation would appear to be analogous to the circumstances described in illustrative example 2 in the Explanatory Statement.

• [29] Further, paragraph 115 of the Explanatory Statement assists Mr Phillipps-Lewis, to the extent that he gave evidence as to the circumstances which might lead to a "variation in [his] routine" (as reproduced above). The situations he described are consistent with those referred to at paragraph 115 as being reflective of "the way in which workers engage with digital platform work".

• [30] Finally, applying a liberal construction to the term "regular" necessitates a finding that Mr Phillipps-Lewis was engaged on such a basis. There was clearly "some form of repetitive pattern", to adopt the language of Deputy President Saunders in Panwar. On no proper analysis can Mr Phillipps-Lewis be said to have performed work "sporadically, occasionally or on an ad hoc basis".

• [31] For these reasons, I dismiss the First Objection.

• [32] I order that these proceedings be stayed pending a decision of the Full Bench in the matter of Mohammad Shareef Hotak v Rasier Pacific Pty Ltd, Matter UDE2025/53.

• [33] I direct that within seven days of a decision in Matter UDE2025/53 being handed down, Rasier Pacific Pty Limited is to apply to my Chambers to have this matter relisted for directions.

[1] In this decision, all references to "sections" are to provisions of the Fair Work Act 2009, unless stated otherwise

[2] Respondent's Submissions in Reply, par 16

[3] Mohammad Shareef Hotak v Rasier Pacific Pty Ltd, Matter UDE2025/53

[4] The Full Bench may also be required to determine whether, if an account has been reactivated, a payment can be made for any period for which the employee-like worker did not have access to the relevant digital labour platform. That is another matter in contention between Mr Phillipps-Lewis and Uber.

[5] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024

[6] [2025] FWC 1578

[7] [2025] FWC 1578 at [13]

[8] Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339; [2006} ACTCA 6 at [68], quoted with approval in Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell [2006] FWCFB 4438 at [16], Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 at [24], Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 at [11], Roche v Trustee for the Dolphin Unit Trust [2024] FWC 606 at [17]

[9] Statement of Emilie Fairlie, Annexure D

[10] Statement on Jai Phillipps-Lewis, 16 July 2025

[11] Respondent's Submissions in Reply, 31 July 2025, par 8

[12] Respondent's Submissions in Reply, 31 July 2025, pars 12-13

[13] Respondent's Submissions in Reply, 31 July 2025, par 11

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