The application should be dismissed because the Respondent reactivated the Applicant's access to the Uber Driver Platform on 19 May 2025."

[3] Pursuant to ss 582 and 615(1) of the Fair Work Act 2009 (Cth), Justice Hatcher referred the preliminary issue raised by Uber to this Full Bench for determination.

[4] On 28 May 2025, the following directions were issued to the parties:

1. The representatives for the parties are to confer for the purpose of seeking to reach agreement on a short statement of agreed facts in relation to the respondent's contention that the applicant's unfair deactivation application should be dismissed on the basis that the respondent has reactivated the applicant's account on the Uber Driver Platform (the Contention).

1. Assuming such a statement of agreed facts can be agreed between the parties, the respondent must file and serve a copy of the statement of agreed facts by 4pm on 4 June 2025.

1. By 4pm on 11 June 2025, the respondent must file and serve its written submissions in relation to the Contention.

1. By 4pm on 18 June 2025, the applicant must file and serve its written submissions in relation to the Contention.

1. By 4pm on 25 June 2025, the respondent must file and serve any written submissions in reply in relation to the Contention.

1. The Contention will be determined by a Full Bench of the Fair Work Commission on the basis of the statement of agreed facts and having regard to the written submissions filed by the parties in accordance with directions 1 to 5 above.

1. Documents may be filed in the Fair Work Commission by emailing them to chambers.saunders.dp@fwc.gov.au.

1. Liberty to apply is granted in the event that any party wishes to seek a variation of any of these directions.

[5] Mr Hotak and Uber agreed on the following facts in relation to Uber's contention that Mr Hotak's unfair deactivation application should be dismissed on the basis that it has reactivated Mr Hotak's account on the Uber driver platform:

(a) is a natural person capable of suing in their own name;

(b) resides at ... in the State of South Australia; and

(c) is an 'employee-like' worker, as that term is defined by section 15P of the Fair Work Act 2009 (Cth) (FW Act).

(a) is a corporation capable of being sued;

(b) has its registered office located at ... in the State of New South Wales;

(c) is part of the Uber Group of Companies; and

(d) is a 'digital labour platform operator', as that term is defined by section 15M of the FW Act.

On 18 November 2020, the Applicant commenced performing work through or by means of the digital labour platform operated by the Respondent (Uber Driver Platform). The Applicant's performance of work was subject to the terms of a services agreement between the Applicant, the Respondent, and Uber B.V. (being an entity in the Uber Group of Companies registered in the Netherlands). Under this agreement the Applicant would be known as a "Driver Partner" of the Respondent.

It was a term of the services agreement that the Applicant:

• (a) provide transport services safely and in a professional manner with due skill, care, courtesy and diligence; and

• (b) comply with the Respondent's Community Guidelines, policies and all laws that regulate or apply to the Applicant providing point-to-point transport services via the Uber Driver Platform.

It was a term of the Respondent's Community Guidelines that: "Riders and their guests, as well as drivers and delivery people, are prohibited from carrying weapons while using the Uber Marketplace Platform, to the extent permitted by applicable law. In addition, you can learn more about our global Firearms Prohibition Policy here."

As a digital labour platform operator, the Respondent was also required by Division 1 of Part 4 of the Passenger Transport Act 1994 (SA) Act to meet prescribed standards of safety of passengers and the public as a condition of its accreditation of Driver Partners.

On 24 March 2025 at about 11.00pm, the Applicant picked up a rider and two of their guests (three passengers in total) from Hindley Street. The Respondent received reports via the Uber Driver Platform from the Applicant and rider with respect to an alleged physical altercation (Alleged Safety Incident).

The rider complained the Applicant threatened them with a baseball bat.

The Applicant complained they required the riders and their guests to stop using drugs in their vehicle and asked them to leave the vehicle. They assaulted the Applicant from behind and exited the vehicle.

10. The Applicant denied possession of a weapon or threatening the rider and their guests.

11. The Applicant immediately called triple zero and formally reported their version of the

Alleged Safety Incident to the Hindley Street Police Station in Adelaide in the State of

South Australia. The Applicant's police report was assigned number SAP2500079573.

On 27 March 2025, the Applicant provided the Respondent with further details regarding the Alleged Safety Incident over the phone.

On 29 March 2025, the Respondent issued to the Applicant a preliminary deactivation notice (as that term is defined under section 11 of the Fair Work (digital labour platform Deactivation Code) Instrument 2024) regarding the Alleged Safety Incident (Preliminary Deactivation Notice).

On 29 March 2025, the Applicant responded in writing to the Preliminary Deactivation Notice.

The Respondent received the Applicant's response to the Preliminary Deactivation Notice and, on 8 April 2025, issued a final deactivation notice notifying the Applicant of their deactivation from the Uber Driver Platform.

On 9 April 2025, the Applicant commenced proceedings UDE2025/38 in the Fair Work Commission to apply for an unfair deactivation remedy.

On 24 April 2025, the Applicant, via their representative, commenced new proceedings UDE2025/53 in the Fair Work Commission to apply for an unfair deactivation remedy (New Application).

18. On 28 April 2025, the Applicant discontinued matter UDE2025/38.

1. On 5 May 2025, the Fair Work Commission served the New Application on the Respondent.

2. On 19 May 2025, the Respondent reactivated the Applicant's access to the Uber Driver Platform and the Applicant recommenced performing work as a Driver Partner of the Respondent.

3. Since the Respondent reactivated the Applicant's account on the Uber Driver Platform, the Applicant has completed over 150 trips."

[6] Both parties filed detailed written submissions in relation to the proper construction of the relevant provisions of the Act. For the reasons explained below, it is not necessary for us to deal with many of those submissions at this stage of the proceedings.

[7] In summary, Uber argues that Mr Hotak's unfair deactivation claim should be dismissed because:

• (a) Reactivation of account: Mr Hotak's account was reactivated on 19 May 2025, allowing him to resume work. Therefore, he is no longer "deactivated" within the meaning of 536LG(c) of the Act. As a result, the Commission cannot find that Mr Hotak "has been deactivated" under section 536LF(a) of the Act, which is a prerequisite for determining unfairness and granting relief. It follows, so Uber contends, that the application has no reasonable prospects of success and must be dismissed.

• (b) Limited remedies under the Act: The Act provides only one remedy for unfair deactivation: reactivation (ss 536LP and 536LQ of the Act). Only after an order for reactivation is made can the Commission consider ordering lost remuneration (s 536LQ(3) of the Act). The Act explicitly prohibits the Commission from ordering the payment of compensation to an applicant in unfair deactivation proceedings (s 536LP(3) of the Act).

[8] For these reasons, Uber submits that Mr Hotak's application has no reasonable prospects of success and must be dismissed.[1]

[9] Mr Hotak, who is represented by the Transport Workers' Union, submits that he "has been deactivated" within the meaning of s 536LG of the Act. Mr Hotak also submits that the premise of Uber's second argument - that the remedy of reactivation under s 536LQ(1) is limited, in the case of a worker whose access has been terminated, to reinstating access - is wrong. It is submitted that an "order for reactivation" is one that involves restoring the person to the position they would have been in but for the deactivation. The conferral of power is cast in broad terms and permits the Commission to make orders that achieve that restoration. It is not limited to an order that the worker be "reactivated". Further, Mr Hotak submits that the matters set out in s 536LQ(1)(a)-(c) are intended to be illustrative rather than exhaustive or conclusive of the types of orders the Commission can make in order to restore the person to the position they would have been in but for the deactivation.[2]

[10] After the parties' written submissions in chief were received by the Commission, the following communication was sent to the parties:

"...The respondent contends that Mr Hotak's unfair deactivation application must be dismissed because it has no reasonable prospects of success (paragraph 6 of the respondent's submissions dated 11 June 2025). The power for the Commission to dismiss an application on the basis that is has no reasonable prospects of success is found in s 587(1) of the Fair Work Act 2009 (Cth). However, s 587(2) of the Act was amended by the Fair Work Amendment (Closing Loopholes No. 2) Act 2024. Section 587(2) of the Act now provides:

"(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

Mr Hotak's unfair deactivation application is an application under s 536LU of the Act. Accordingly, s 587(2) of the Act seems to prevent the Commission from dismissing Mr Hotak's unfair deactivation application on the basis that it has no reasonable prospects of success.

The Full Bench makes the following directions to allow the parties an opportunity to address this issue:

1. By 4pm on 8 July 2025, Mr Hotak is directed to file and serve any submissions he wishes to make in relation to s 587(2) of the Act.

2. The time for the respondent to file and serve its reply material is extended to 4pm on 15 July 2025. The respondent may make any submissions it wishes to make in relation to s 587(2) of the Act in its reply submissions."

[11] Submissions addressing the s 587(2) point were filed on behalf of Mr Hotak on 8 July 2025. Mr Hotak submits that the clear import of s 587(2) of the Act is to carve out from the power under s 587(1) applications premised on the grounds in ss 587(1)(b)-(c) in relation to the classes of application detailed. Hatcher VP (as he then was) has explained the provision operates to prohibit the Commission exercising the power under s 587(1) on the grounds detailed in s 587(2).[3] Uber's application for dismissal of Mr Hotak's application is grounded on s 587(1)(c). It is not contended (and cannot be suggested) that the application was not made in accordance with the Act for the purposes of s 587(1)(a). None of the bases detailed in s 536LW apply. In the result, it is submitted that the Commission is precluded from dismissing Mr Hotak's application on the basis contended for by Uber and the matter should be programmed for a hearing on the merits.

[12] Uber's reply submissions dated 15 July 2025 address a range of issues, including the s 587(2) point. Uber submits that it does not rely on s 587(1) of the Act as the basis for dismissing Mr Hotak's application. Uber did not make any reference to s 587(1) in its Response or its written submissions in chief. Uber accepts that its written submissions in chief include a submission that Mr Hotak's "application has no reasonable prospects of success and must be dismissed", and says that the use of this phrase did not indicate reliance on s 587(1) but reflected Uber's assessment of the relative weakness of Mr Hotak's case.

[13] Uber contends that the Commission has a suite of powers available to it to determine the questions referred to the Full Bench. The starting point is that s 587(1) provides that the grounds set out in paragraphs (a) to (c) do not limit when the Commission may dismiss an application. This recognises that the Commission may dismiss an application based on other grounds. The Commission may make a decision as to how, when and where a matter is to be dealt with. Moreover, the Commission is not bound by any rule of procedure in relation to a matter before it. Uber submits that this confers a broad discretion on the Commission to determine the timing and procedure adopted in dealing with a matter.

[14] Uber submits that this procedural flexibility conferred on the Commission under the Act is in aid of the Commission fulfilling its obligation to perform its functions and exercise its powers in a manner which is quick, informal and avoids unnecessary technicalities and to take into account equity, good conscience and the merits of the matter. These provisions are generally "intended to be facultative, not restrictive" and their purpose is "to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals such technicalities or rigid rules of evidence or procedure".[4]

[15] For these reasons, Uber contends that the Commission had the power to make the directions made on 28 May 2025 under s 589 of the Act, and the Full Bench may exercise the function of determining these questions in accordance with s 615 of the Act. The issue of whether Mr Hotak has been "deactivated" within the meaning of s 536LG and whether Uber's decision to reactivate Mr Hotak's access to the platform limits the Commission's power to grant backpay under ss 536LQ(1) and (3) are separate discrete questions which may be dispositive of the entire controversy. In performing its functions, in conformity with the obligations under s 577(1) and 578(b) of the Act, the Commission was entitled to form the view that, if the separate questions were determined in Uber's favour, the directions made would have the evident benefit of potentially avoiding further and unnecessary time dealing with the overall merits of the case. It follows, so Uber contends, that the Full Bench has the power to answer the questions referred to in the directions made by the Commission on 28 May 2025.

[16] We decided not to accede to the request by Uber and Mr Hotak to have the matter listed for hearing, at this stage, so that the parties could make oral submissions. We consider that the parties were given a fair opportunity to make submissions in writing. Further, for the reasons explained below, the parties will be given another opportunity at the final hearing to make oral submissions on any point they wish to raise.

[17] This is not a case in which the Commission has been asked to embark on the separate determination of a particular issue in the proceedings.[5] Instead, Uber is seeking the summary disposal of the proceedings on the basis that Uber reactivated Mr Hotak's access to the Uber driver platform on 19 May 2025.

[18] Uber's written submissions in chief contend that Mr Hotak's "application has no reasonable prospects of success and must be dismissed".[6] Uber's submissions do not make any reference to s 587(1) of the Act. But s 587(1) of the Act is the only source of power which the Commission has to dismiss an application on the basis that it has no reasonable prospects of success. The Commission may dismiss an application on other grounds. However, we do not consider that any other grounds have been identified or relied on by Uber.

[19] Section 587(2) of the Act imposes a clear injunction on the Commission not to dismiss an unfair deactivation application made under s 536LU of the Act on the ground that the application has no reasonable prospects of success. It follows that we must not dismiss Mr Hotak's unfair deactivation application on the ground that the application has no reasonable prospects of success.

[20] For the reasons given, we reject Uber's contention that Mr Hotak's unfair deactivation application should, at this stage of the proceedings, be dismissed on the basis that Uber has reactivated Mr Hotak's account on the Uber driver platform.

[20]

[21] The matter will now be programmed for final hearing to deal with the merits of the application and the relief sought by Mr Hotak. The submissions made by the parties concerning the proper construction of the relevant provisions of Part 3A-3 of the Act, as well as the impact of Mr Hotak's account having been reactivated on the Uber driver platform, will be considered at the final hearing.

[1] Uber's submissions dated 11 June 2025 at [6].

[2] Mr Hotak's submissions dated 18 June 2025.

[3] Munjoma v Salvation Army (NSW) Property Trust as Trustee for the Social Work [2013] FWC 3337 at [29]. See also Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [41] and [49] and Tripathy v Tricor Services (Australia) Pty Ltd [2024] FWCFB 371 at [36].

[4] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49], [74] -[77], [108], [179]; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [15]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [103].

[5] See, for example, Arrowcrest Group Pty Ltd v Gill [1993] FCA 541; (1993) 46 FCR 90.

[6] Uber's submissions dated 11 June 2025 at [6].

Printed by authority of the Commonwealth Government Printer