Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether Code compliance

[1] On 14 November 2025, Mr Mehsam Amad applied in time under s.536LU of the Fair Work Act 2009 (Cth) (the Act) for an unfair deactivation remedy from Portier Pacific Pty Ltd trading as Uber Eats (Uber Eats). Section 536LF of the Act provides that a person has been 'unfairly deactivated' if the Commission is satisfied that:

(a) the person has been deactivated from a digital labour platform; and

(b) the deactivation was unfair; and

• (c) the deactivation was not consistent with the Digital Labour Platform Deactivation Code[1] (the Deactivation Code).[2]

• [2] The Commission may order a person's reactivation if satisfied that they were protected from unfair deactivation at the time of being deactivated, and that they have been unfairly deactivated.[3] The Commission cannot order the payment of compensation to the person except that in appropriate cases, an order may be made to restore lost pay (s.536LQ).

[3] There is no dispute that Mr Amad has been deactivated from the delivery platform of Uber Eats within the meaning of s.536LG of the Act; that the final deactivation took effect on 28 October 2025; and that Mr Amad was protected from unfair deactivation at that time.

[4] The question is whether I am satisfied that the deactivation was not consistent with the Digital Labour Platform Deactivation Code. The answer is 'Yes' for the reasons below.

Was the deactivation consistent with the Deactivation Code?

[5] A deactivation will be consistent with the Deactivation Code if the digital labour platform operator complied with the Deactivation Code in relation to the deactivation at the time of deactivation (s.536LJ). This requires the platform operator to follow the 'code process' in Part 2 of the Deactivation Code in relation to a proposed deactivation for reasons of work-related conduct or capacity to work (Deactivation Code, s.7). The code process does not apply to deactivation for serious misconduct. Mr Amad's deactivation was not for serious misconduct.

[6] The reason for Mr Amad's proposed deactivation was low satisfaction ratings. As this was a reason related to his conduct in performing work through the Uber Eats platform, the code process must have been followed for the deactivation to be consistent with the Deactivation Code. For reasons that will become apparent, it is only necessary to consider at this juncture whether Uber Eats complied with Sections 11 and 13 of the Deactivation Code.

[7] Section 11 (giving preliminary deactivation notice): A preliminary deactivation notice was given to Mr Amad on 16 October 2025. The notice specified the reason for the notice as being that his rating continued to be below the minimum customer satisfaction rating for his city. It said that Uber Eats was considering terminating Mr Amad's access to the Uber Driver app and that Mr Amad had a right to respond to the notice within 7 days and to submit a request within 2 days for a discussion with a representative of Uber Eats. These were reasonable periods of time in the circumstances of the case, and Mr Amad took advantage of the opportunity provided by responding to the notice in writing on 16 October 2025 and requesting a discussion. The preliminary deactivation notice specified that Mr Amad was entitled to appoint a person (other than a lawyer acting in a professional capacity) to provide him with support or representation. It told him the reason for the notice, that Uber Eats was considering terminating his access to the Uber Eats platform, and that Mr Amad had rights to respond and request a discussion about the notice and to appoint someone to support or represent him. I am satisfied that Uber Eats complied with section 11(1) of the Deactivation Code.

[8] Delivery people can view their average rating at any time through an application provided for that purpose. However, it emerged in evidence that the practice of Uber Eats is not to provide a record of a delivery person's last 100 trips before the person is asked to respond to a preliminary deactivation notice. This puts them in a position of effectively having to 'show cause' in the dark: they may or may not remember or have records of particular trips or issues over the relevant period. In my view, the provision of sufficient information to enable understanding of an overall low rating includes being provided with the record of ratings used to calculate the measure. Without this information, it will be difficult to offer any meaningful response to a deactivation notice for consideration. In Mr Amad's case, that difficulty was apparent in his attempt to recall and explain from memory the deliveries that may have contributed to a below average rating. For this reason, I am not satisfied that Uber Eats complied with section 11(2) of the Deactivation Code.

[9] Section 13 (steps after preliminary deactivation notice): On 16 October 2025, Mr Amad responded to a preliminary deactivation notice given to him in accordance with the Code in writing. He explained that the drop in his rating was because of a 'few rare incidents' that did not reflect his usual performance. In the previous 6 weeks, he said he had received only two 'thumbs down'. Mr Amad explained the circumstances of the thumbs down ratings. In relation to the first, he explained that his delivery took longer than expected because a third delivery was added to his trip and it was peak hour (5pm). In relation to the second, Mr Amad explained that the complaint was that the order was cold and that this was caused by system delays resulting in the restaurant preparing the food long before it was collected. Mr Amad said he had picked up the order straightaway and delivered it to the customer. Mr Amad also noted frequent verification requirements on the Uber Driver App and his prompt responsive action. Mr Amad recounted an incident the day before where he had left a delivery at the door of a building as per instructions. He said he left the order there when the customer did not respond to his message for collection and the customer later reported the order as missing.

[10] Mr Amad explained that before these incidents, his rating was going up. He had been acknowledged by Uber Eats for increasing his ratings to 82%. He noted that a few bad ratings seemed to lower his percentage much faster than good ratings raised it. He said that he had been with Uber Eats for almost 4 years and worked hard to deliver food safely and respectfully. He said he valued his work with Uber Eats and that the few negative incidents were not reflective of his usual good service. He asked for another chance to keep delivering as Uber Eats was his primary source of income and he was very loyal to the platform. He later added photographs to his response showing evidence of customer 'tips' as evidence of good service where no ratings were provided and a screenshot of mail from Uber Eats about his good ratings.

[11] On 20 October 2025, Mr Amad had a telephone 'discussion' with someone in the 'ANZ EDR Team' in response to his request for same. The phone call occurred within a reasonable time of the request for discussion. The name of the person Mr Amad spoke to is not apparent. Notes of the exchange record only Mr Amad's contribution, and the undisputed evidence of Mr Amad was that the nature of the exchange was a listening exercise - that is, Mr Amad spoke and the person listened and took notes (either by themselves or perhaps with the help of an artificial intelligence tool). Mr Amad went over the same ground as in his written response. He added that Uber Eats could verify that he made the delivery reported as missing by checking camera footage and suggested a one-month probationary period to improve his ratings.

[12] On or about 28 October 2025, 'Farhin', a person in the Uber Eats' Community Operations team, reviewed Mr Amad's case. This involved:

1. verifying the authenticity of images provided by Mr Amad;
2. finding those images 'NOTRELEVANT' to the deactivation;
3. confirming Mr Amad's ratings levels of 78% and 78.1% 'post warning'
4. noting the issue of a soft warning on 14 May 2025, education on 14 May 2025 and a final warning on 16 June 2025;
5. stating that Mr Amad received at least 20 additional ratings with an average rating of 70% after the final warning; and
6. declaring that the available evidence submitted (photo) and statement of Mr Amad was checked but provided no information to overturn the decision or support the investigation.

[13] After taking these steps, Farhin decided to confirm the original deactivation decision as 'correct' because the earner had a total count of 78% out of the Review Center policy threshold of 85%.

• [14] It is apparent from this history, and corroborated by the electronic records of Uber Eats, that there was no actual discussion between Mr Amad and the representative he spoke to on 20 October 2025. There was no critical or even general examination by argument, or debate, or any balanced presentation of different points of view.[4] Section 13 of the Code allows a worker to request for a representative of the platform operator to be available 'to discuss' the preliminary deactivation notice. If a request is made, the operator must make a representative available 'for discussion'. I am not satisfied that the steps taken in this case were consistent with section 13 of the Code so far as it relates to subsections 13(4)-(5) (Discussion with operator's representative). Although a representative of Uber Eats was made available to Mr Amad over the telephone on 20 October 2025, their role was not to engage in any type of discussion with him but rather to hear and record what he had to say.

[15] I am also not satisfied that the consideration of Mr Amad's response by the human representative of Uber Eats, Farhin, was undertaken in a manner consistent with subsections 13(7) and (8) of the Code. Firstly, it was not possible for Farhin to consider a discussion that had been requested by Mr Amad but had not actually occurred for the reasons above. Secondly, the findings made by Farhin were affected by numerous errors. The wrong date was given for the 'education notice'. Reference to the 'soft warning' on 14 May 2025 overlooked the fact that Mr Amad had been told to disregard communications of that date because of system errors and had been issued with a replacement soft warning on 16 May 2025. The notes recorded that Mr Amad had received 'at least 20 ratings' after his final warning on 16 June 2025 with an average rating of 70%. The record of Mr Amad's last 100 trips produced by Uber Eats shows that Mr Amad received 64 ratings after the that time, and that 15 of those were 'thumbs down', giving an average 'thumbs up' rate of 77%.

[16] The rate of error is strong evidence that consideration of Mr Amad's request was cursory at best. No enquiries were made to ascertain if any of Mr Amad's explanations had merit. Mr Amad's claim of having only received two thumbs down ratings in the past 6 weeks, and his explanations for those ratings, reasonably warranted further enquiries to assess and verify the claims before closing the case, for example, by checking if any defective orders were reported in relation to Mr Amad in the period, or if he logged any issues with the Uber Support team. Even if the errors and lack of meaningful consideration were ultimately not material to the outcome, Mr Amad was entitled to have his response properly considered before a final decision was made.

[17] As I am not satisfied that Uber Eats complied with sections 11(2) or 13 of the Deactivation Code, Uber Eats did not follow the 'code process' in Part 2 of the Deactivation Code in relation to the deactivation of Mr Amad's access to the Uber Eats platform. I am satisfied that the deactivation was not consistent with the Deactivation Code.

[18] For reasons explained on transcript on 4 March 2026, an opportunity will now be provided to the parties to file materials in relation to whether the deactivation was unfair.

Ms R M'Gee of Dentons Australia for the Respondent.

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

[2] Fair Work Act 2009 (Cth), s.536LF

[3] Act, s.536LP

[4] Application/Notification by Australasian Meat Industry Employees Union, The (007V) [2015] FWCFB 5228, citing the definitions of 'discussion' in the Macquarie Definition and the Concise Oxford Dictionary

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