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 - applicant initially performed Uber Eats work and then performed work as an Uber Driver Partner - requirement to have been performing work through or by means of a digital labour platform on a regular basis for a period of at least six months met - applicant was protected from unfair deactivation at the time of his deactivation from the Uber App.

• [1] Mr Bakar 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). Rasier Pacific Pty Ltd is the respondent to the application.

• [2] Rasier raised a jurisdictional objection. It contended that Mr Bakar is not protected from unfair deactivation because, at the time of his deactivation, he had not 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 six months. Mr Bakar submitted that he was protected from unfair deactivation.

• [3] On 1 July 2025, I held a hearing, by telephone, in relation to Rasier's jurisdictional objection. Ms Laura Tierney, Industrial Relations Lead at Uber Australia Pty Ltd, gave evidence in support of Rasier's jurisdictional objection. Mr Bakar 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] Rasier's jurisdictional objection concerns paragraph 536LD(c) of the Act.

• [7] The expression 'digital labour platform' is defined in s 15L of the Act. It provides:

(1) A digital labour platform means an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, where:

(a) the operator of the application, website or system:

(i) engages independent contractors directly or indirectly through or by means of the application, website or system; or

(ii) acts as an intermediary for or on behalf of more than one distinct but interdependent sets of users who interact with the independent contractors or the operator via the application, website or system; and

(b) any of the following processes payments referable to the work performed by the independent contractors:

(i) the operator of the application, website or system;

(iii) a person contracted, whether directly or through one or more interposed entities, by the operator or an associated entity of the operator to process the payments.

(2) A digital labour platform also means an online enabled application, website or system that is prescribed by the regulations for the purposes of this subsection.

(3) A digital labour platform does not include an online application, website or system prescribed by the regulations for the purposes of this subsection.

(a) an online application, website or system may be specified by name or by inclusion in a specified class or specified classes;

(b) an online application, website or system may be specified in respect of all forms of digital platform work, or in respect of specified forms of digital platform work."

• [8] 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."

• [9] 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.

• [10] 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."

• [11] 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."

• [12] In about July 2023, Mr Bakar entered into a services agreement with Portier Pacific Pty Ltd and commenced performing Uber Eats delivery work through the Uber online Application.

• [13] The operator of the Uber App is Uber Technologies Incorporated, an entity registered in the United States of America.

• [14] From July 2023 until 12 March 2025, Mr Bakar performed Uber Eats delivery work through the Uber App on a regular basis, only taking short breaks for reasons such as university exams, overseas travel, and family responsibilities. Mr Bakar was paid for such work by Portier.

• [15] On 5 March 2025, Mr Bakar entered into a services agreement with Rasier in order to be able to undertake work as an Uber Driver Partner through the Uber App. Mr Baker commenced such work on 12 March 2025, and performed such work on a regular basis until he was deactivated from the Uber App on 2 May 2025. Mr Bakar was paid for such work by Rasier.

• [16] In the period from 12 March 2025 until 2 May 2025, Mr Bakar undertook work as an Uber Driver Partner and did not undertake any Uber Eats delivery work.

• [17] At 3:50pm on 1 July 2025, after the hearing of the jurisdictional objection and just before this decision was about to be published, Rasier sought to withdraw its jurisdictional objection. Notwithstanding the withdrawal of that objection, the Commission needs to satisfy itself that it has jurisdiction under the Act to deal with a matter. For that reason and given the jurisdictional objection has been heard, I set out below my reasons for being satisfied that Mr Bakar was a person protected from unfair deactivation at the time he was deactivated from the Uber App.

• [18] There is no dispute that the work Mr Bakar performed as both an Uber Eats delivery driver and as an Uber Driver Partner was performed through or by means of the Uber App.

• [19] I accept Ms Tierney's evidence that the Uber App is a 'digital labour platform' within the meaning of s 15L of the Act. In particular:

(a) the Uber App is an online enabled application operated to arrange, allocate or facilitate the provision of labour services (s 15L(1) of the Act);

(b) Uber Technologies, as the operator of the Uber App, engages independent contractors indirectly through or by means of the Uber App (s 15L(1)(a)(i) of the Act); and

(c) Rasier processes payments referable to work performed by a person as an Uber Driver Partner. Portier processes payments referable to work performed by a person as an Uber Eats delivery driver. Rasier and Portier are contracted, whether directly or through one or more interposed entities, by Uber Technologies, as the operator of the Uber App, or an associated entity of Uber Technologies to process these payments (s 15L(1)(b)(iii) of the Act).

• [20] Ms Tierney also gave evidence, which I accept, that the Uber App is the only digital labour platform through which a person may perform work as an Uber Eats delivery driver or as an Uber Driver Partner.

• [21] Rasier contended that because Mr Bakar entered into separate contracts with separate companies (Portier and Rasier) to perform different work (delivering food for Uber Eats and delivering people as an Uber Driver Partner), the requirements of paragraph 536LD(c) of the Act have not been met. I do not accept this submission. Paragraph 536LD(c) of the Act does not differentiate between different types of work or different legal entities through which such work may be performed. Instead, the relevant focus of paragraph 536LD(c) is on the performance of work through or by means of a digital labour platform, or under one or more contracts, arranged or facilitated through or by means of the digital labour platform.

• [22] Mr Bakar performed work through or by means of the Uber App, being a digital labour platform, in the period from July 2023 until he was deactivated from the Uber App on 2 May 2025. There is no dispute, and I am satisfied on the evidence before the Commission, that the work performed by Mr Bakar through or by means of the Uber App in the six-month period leading up to Mr Bakar's deactivation (3 November 2024 to 2 May 2025) was performed on a regular basis. It does not matter that part of such work was performed for Portier (as an Uber Eats delivery driver) and part of such work was performed for Rasier (as an Uber Driver Partner). The work was performed regularly during that six-month period because it was performed multiple times almost every week during that period.

• [23] I am satisfied that, at the time of his deactivation on 2 May 2025, Mr Bakar had been performing work through or by means of the Uber App, being a digital labour platform, on a regular basis for a period of at least six months (s 536LD(c) of the Act). As a consequence and given there is no doubt that paragraphs 536LD(a) and (b) of the Act are satisfied in this case, Mr Bakar was a person protected from unfair deactivation at the time he was deactivated from the Uber App on 2 May 2025.

• [24] The matter is listed for directions, by telephone, at 4pm on 7 July 2025.

Mr A. Kumar, Solicitor from MIC Lawyers & Associates Pty Ltd, for the Applicant

Mr P. Will, Solicitor from Dentons Australia Ltd, 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]

Printed by authority of the Commonwealth Government Printer