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 upheld - application dismissed

• [1] Mr Dugan 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 is the respondent to the application.

• [2] The Respondent contends that Mr Dugan 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 (the App) on a regular basis for a period t least six months. Mr Dugan denies that he was not protected from unfair deactivation.

• [3] On 28 October 2025, I held a hearing, via Microsoft Teams, in relation to whether, at the time of his deactivation, Mr Dugan had been performing work on the App on a regular basis for a period of at least six months. Ms Emilee Fairlie, Senior Manager, Industrial Relations at Uber Australia Pty Ltd, gave evidence in support of the Respondent's jurisdictional objection. Mr Dugan 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 (s536LP(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] Respondent's 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:

"Division 2 - Transitional provisions

124 Unfair deactivation and unfair termination

...

(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 s536LJ(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] There are multiple and inconsistent dates provided by both Mr Dugan and Uber regarding when Mr Dugan commenced performing work on the the App. The Parties themselves appear uncertain, with various dates falling in either 2020 or 2021. In any event, the precise commencement date is not material to the determination of this matter. Accordingly, I make no finding as to the exact date on which Mr Dugan commenced performing work on the App.

• [13] In December 2024, Mr Dugan was experiencing mechanical issues with his vehicle that he says significantly impacted his capacity to work.

• [14] In February 2025, Mr Dugan travelled to Turkey for three weeks to visit family.

• [15] During the period 2 December 2024 - 17 March 2024, Mr Dugan performed paid work on the App on just 6 days.

• [16] On 31 May 2025, Mr Dugan's account was suspended, and subsequently deactivated 10 June 2025.

• [17] The following table shows the number of days Mr Dugan performed work on the App in the six months prior to his deactivation (period from 2 December 2025 until his deactivation on 10 June 2025).

• [18] In the six-month period prior to his deactivation on 10 June 2025, Mr Dugan performed paid work on the App:

(a) for an average of 1.77 days per week; and > > (b) for an average of 27.16 hours per month.

• [19] Mr Dugan performed no paid work on the App for 11 out of the 26 weeks, being the periods:

(i) 7 December 2024 to 11 January 2025; > > (ii) 17 January 2025 to 20 February 2025; and > > (iii) 22 February 2025 to 19 March 2025 > > amounting to a total of 11 out of the 26 weeks.

• [20] Mr Dugan submits that he has had a continuous engagement and long -term work history with Uber. He contends that he has been continuously engaged on their platform since May 2020.[3]

• [21] Other than for three weeks in February, when he travelled to Turkey to visit his family, Mr Dugan says he was unable to work from December 2024 to 20 March 2025 due to significant mechanical issues with his vehicle, which directly impaired his ability to perform deliveries. He contends that this was not a voluntary break in employment, but an unavoidable period of absence caused by the vehicle's failure.

• [22] Mr Dugan submits that upon purchasing a new vehicle on 14 March 2023, he recommenced a more regular pattern of work, thereafter, working an average of 3.6 days per week for the 11 weeks commencing 17 March 2025 through to his deactivation on 26 May 2025.

• [23] Mr Dugan drew my attention to a number of recent decisions of the Commission that have considered the circumstances in which an employee-like worker is said to have performed work on a regular and systematic basis. These authorities have been taken into account.

• [24] Uber submits that although Mr Dugan performed work for a least six months prior to his deactivation date, he did not perform that work on a "regular basis" as required under s 536LD of the Act.

• [25] Uber drew my attention to a number of recent decisions of the Commission that have considered the circumstances in which an employee-like worker is said to have performed work on a regular and systematic basis. These authorities have been taken into account.

• [26] There is no dispute that Mr Dugan had performed work on the platform since at least 2021, however, any work undertaken prior to 26 August 2024 cannot be taken into account in determining whether he had been, as at the date of his deactivation, performing work for the Respondent on a regular basis for a period of at least 6 months.[4]

• [27] The average days and hours worked by Mr Dugan in the six months leading up to his deactivation was below the indication given in the Code as to what is considered as work on a regular basis. However, the Code does not limit the circumstances in which work may be found to be performed by an employee-like worker on a regular basis.

• [28] Mr Dugan characterises the 11-week break in his performance of work as a "temporary absence due to personal circumstances".

• [29] 18(5) of the Code provides that a regulated worker may still be found to have performed work on a regular basis for a period of at least six months if they "elect, in some weeks, not to perform any work through or by means of the platform". The Explanatory Statement issued by the authority of the Minister for Employment and Workplace Relations in relation to the Code (Explanatory Statement), provides further guidance on this point at paragraph [115] which relevantly provides:

"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."

(Emphasis added).

• [30] It is clear from section 18(5) of the Code that a regulated worker may still be found to have performed work on a regular basis for a period of at least six months if they "elect, in some weeks, not to perform any work through or by means of the platform". This provision clearly acknowledges the need of all workers, regardless of how they are engaged, to take breaks and respond to unplanned emergencies - and in different circumstances may have applied to the three week break Mr Dugan took when he travelled to Turkey to visit his family, however, Mr Dugan did not perform any work for Uber for a period of nearly three months.

• [31] Whilst I appreciate Mr Dugan's mechanical issues may well have significantly impacted his capacity to perform work, I do not find that the non-performance of work between December 2024 and 20 March 2025 constitutes a valid break in engagement as contemplated by section 18(5). I am not satisfied that such a lengthy period can be justified as a mere break or emergency. Further, other than the evidence concerning the purchase of a new vehicle there is no substantial evidence demonstrating that Mr Dugan was having his car repaired or was otherwise unable to work for the duration of this period.

• [32] Consistent with application by Priyansh Singh Panwar [2025] FWC 1578 (Panwar), I consider that Mr Dugan performed work for Uber on a regular basis for two separate periods, (26 August - 2 December 2024 and 20 March - 31 May 2025) but these separate periods cannot be added together to make a period of at least six months.

• [33] In the present case, I am satisfied on the evidence before the Commission that Mr Dugan had not been, as at the time of his deactivation, performing work for Uber on a regular basis for a period of at least six months. The evidence does not establish a repetitive pattern to the work undertaken by Mr Dugan for Uber during the six-month period leading up to his deactivation.

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

Mr A. Liskowski, legal representative from Dentons Australia Limited, for the Respondent

[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] P.26 of the DCB - Applicant's Submissions

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

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