s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether applicant was protected from unfair deactivation - requirement to have been performing work on a regular basis for a period of at least six months not met - application dismissed.

• [1] Mr Mello has made an application to the Fair Work Commission for an unfair deactivation remedy pursuant to s 536LU of the Fair Work Act 2009 (Cth). Portier Pacific Pty Ltd trading as Uber Eats is the respondent to the application.

• [2] Uber Eats contends that Mr Mello is not protected from unfair deactivation because, at the time of his deactivation, he had not been performing work on the Uber Eats digital labour platform on a regular basis for a period of at least six months. Mr Mello denies that he was not protected from unfair deactivation.

• [3] On 10 June 2025, I held a hearing, by telephone, in relation to whether, at the time of his deactivation, Mr Mello had been performing work on the Uber Eats digital labour platform on a regular basis for a period of at least six months. Ms Emilee Fairlie, Senior Manager, Industrial Relations Lead at Uber Australia Pty Ltd, gave evidence in support of Uber Eats' jurisdictional objection. Mr Mello gave evidence opposing the jurisdictional objection.

• [4] Part 3A-3 of the Act governs the unfair deactivation or unfair termination of regulated workers. The objects of Part 3A-3 include establishing a framework for dealing with unfair deactivation of employee-like workers that balances the needs of regulated businesses and the needs of regulated workers (s 536LC(1) of the Act).

• [5] The Commission may order a remedy for unfair deactivation if it is satisfied that the person was protected from unfair deactivation and the person has been unfairly deactivated (s 536LP(1) of the Act). Section 536LD of the Act governs when a person is protected from unfair deactivation. It provides:

"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."

• [6] Uber Eats' jurisdictional objection concerns paragraph 536LD(c) of the Act.

• [7] Paragraph 536LD(c) of the Act requires a point-in-time inquiry. It asks whether, at the time the person is deactivated, the "person has been performing work ... on a regular basis for a period of at least 6 months". The provision is not concerned with whether the person has, at any point in the past, completed a six-month period of work. In contrast, paragraph 382(a) of the Act, which addresses protection from unfair dismissal, requires that the person has, at the time of their dismissal, "completed a period of employment ... of at least the minimum employment period". The emphasis on determining, at the time of deactivation, whether the person "has been performing work ... for a period of at least 6 months", indicates that paragraph 536LD(c) focuses on the period of work immediately preceding the deactivation, rather than any earlier period. Additionally, the reference to "a period" in paragraph 536LD(c) suggests that the inquiry is concerned with a single period of work, not multiple periods of work that cumulatively add up to "at least 6 months". This construction of paragraph 536LD(c) is consistent with the decision of Deputy President Colman in Jibril [2025] FWC 1289, where the Deputy President reasoned as follows:

"[5] Section 536LD(c) requires that a person has been performing work on the relevant platform for a period of at least 6 months, not for a cumulative total of 6 months over time. It is also clear that the section is concerned with the person's most recent period of work, which ended with deactivation. This is evident from the section's use of the present perfect continuous tense ('has been performing work'), which connotes a connection between the past and the present. Where there has been a previous episode of work on the relevant platform, it is necessary to determine whether this belongs to the same period that ended with the person's deactivation. In this case, Mr Jabril's earlier work on the Uber driver platform occurred years ago, from 2017 to 2019. Clearly, this was a different, much earlier period of work. It did not form part of the same period that ended with Mr Jabril's deactivation on 12 March 2025."

• [8] Any period of work undertaken by an employee-like worker prior to the commencement of operation of the amendments which introduced the unfair deactivation provisions into the Act on 26 August 2024 must not be counted for the purpose of determining whether the person has been performing work on a regular basis for a period of at least 6 months. So much is clear from clause 124 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. It provides:

(2) For the purpose 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."

• [9] Clause 123 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 defines "commencement" as "the commencement of item 238 of Part 16 of Schedule 1 to the amending Act". Pursuant to s 2(1) of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, item 238 of Part 16 of Schedule 1 commenced operation on 26 August 2024.

• [10] 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.[1] Further, although the word "regular" is not being used as a synonym for "uniform", "constant", "frequent" or "often",[2] 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.

• [11] The Digital Labour Platform Deactivation Code has been made in accordance with s 536LJ(1) of the Act. Amongst other things, the Code deals with "the circumstances in which work is performed on a regular basis" (s 536LJ(2)(a) of the Act). The Code relevantly provides:

"Part 3 - Matters relating to deactivation generally

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."

• [12] The Explanatory Statement issued by the authority of the Minister for Employment and Workplace Relations in relation to the Code also provides guidance in relation to the concept of the performance of work on a regular basis. It relevantly provides:

"Part 3 - Matters relating to deactivation generally

Section 18 - Circumstances in which work is performed on a regular basis

1. Subsection 18(1) 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.

1. A note to subsection 18(1) references the 6-month eligibility requirement in paragraph 536LD(c) of the Act for a person to be protected from unfair deactivation.

1. Part of the object of Part 3A-3 of the Act (Unfair deactivation or unfair termination of regulated workers) is to establish a framework for dealing with unfair deactivation of employee-like workers that balances the needs of regulated businesses and regulated workers (see paragraph 536LC(1)(a) of the Act).

1. Section 536LP of the Act provides that the Commission may order a person's reactivation if it is satisfied that the person was protected from unfair deactivation at the time of deactivation and the person has been unfairly deactivated.

1. Section 536LD sets out when a person is protected from unfair deactivation. A person is protected from unfair deactivation if, at that time, the person has been performing work through or by means of a 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. The Act does not define the term 'regular basis' and it therefore adopts its ordinary meaning, having regard to the context in which it appears.

1. 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.

1. Subsection 18(2) provides that 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.

1. Subsection 18(3) provides that an employee-like worker who completes, on average, paid work on 3 days of each week through or by means of a digital platform is taken to perform that work on a regular basis.

1. Subsection 18(4) provides that 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.

1. A note to subsection 18(4) states that an effect of this subsection is that time spent waiting for work, or between tasks constituting the work, is not counted. For example, where an employee-like worker remains logged onto an app between jobs, waiting to accept the next job, the time spent waiting does not constitute paid work.

1. 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.

1. Subsection 18(6) provides that this section does not limit the circumstances in which work is taken to be performed by an employee-like worker on a regular basis.

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.

Example 3 - employee-like worker does not perform work on a regular basis

A food delivery driver performs work through a food delivery platform. The driver registers with the platform in January but only logs on and performs work via the platform once in January, three times in March and once in May. The driver commences working more regularly and performs at least 15 hours of paid tasks per week in June before being deactivated in July.

As the driver is only performing work on an ad hoc basis, with no readily identifiable pattern to the work, the driver has not been performing work on a regular basis for a period of at least 6 months."

• [13] On 16 March 2020, Mr Mello commenced performing work through the Uber Delivery App. Mr Mello continued performing work through the Uber Delivery App from 16 March 2020 until 1 August 2021.

• [14] From 2 August 2021 until 9 February 2025, Mr Mello did not perform any work for Uber.

• [15] From 10 February 2025 until his deactivation took effect on 6 March 2025, Mr Mello performed work for Uber on a regular basis, working between four and six days each week.

• [16] The work undertaken by Mr Mello for Uber prior to 26 August 2024 cannot be taken into account in determining whether he had been, at 6 March 2025, performing work for Uber on a regular basis for a period of at least 6 months.[3]

• [17] Mr Mello performed work on a regular basis during the four-week period from 10 February 2025 until his deactivation on 6 March 2025. However, for the other 22 weeks of the six-month (26 week) period leading up to his deactivation on 6 March 2025, Mr Mello did not perform any work for Uber. Because of this extensive period during which no work was performed, I am not satisfied that, as at 6 March 2025, Mr Mello had been performing work on the Uber Delivery App on a regular basis for a period of at least six months.

• [18] Mr Mello is not protected from unfair deactivation because, as at the time of his deactivation, he had not been performing work on the Uber Delivery App on a regular basis for a period of at least six months. It follows that Mr Mello's application for an unfair deactivation remedy must be dismissed.

[1] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; (2006) 149 IR 339 at [65]- [69] & [89]-[91]; Chandler v Bed Bath N' Table Pty Ltd [2020] FWCFB 306 at [11]- [18]; Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell [2006] FWCFB 4438 at [15-[17]; Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 at [24]; Roche v Trustee for the Dolphin Unit Trust [2024] FWC 606 at [17]- [19]; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [150]- [152]

[2] Yaraka Holdings Pty Ltd v Giljevic [2006] ACTCA 6; (2006) 149 IR 339 at [68]

[3] Clause 124 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024

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