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 Panwar 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 Panwar 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 Panwar denies that he was not protected from unfair deactivation.

• [3] On 4 June 2025, I held a hearing, by video conference, in relation to whether, at the time of his deactivation, Mr Panwar had been performing work on the Uber Eats digital labour platform on a regular basis for a period of at least six months. Ms Laura Tierney, Industrial Relations Lead at Uber Australia Pty Ltd, gave evidence in support of Uber Eats' jurisdictional objection. Mr Panwar 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] The plurality in SZTAL v Minister for Immigration and Border Protection[1] succinctly described the contemporary approach to statutory construction:

"The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected."[2](footnotes omitted)

• [8] The observations of Gageler J in SZTAL are also important:

"The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".

Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation" "is in that respect a particular statutory reflection of a general systemic principle"."[3] (footnotes omitted)

• [9] Taking a purposive approach to construction is also required by s 15AA of the Acts Interpretation Act 1901 (Cth). It requires that a construction that would promote the purpose or object of the Act is to be preferred to one that would not promote that purpose or object. The purpose or object of the Act is to be taken into account even if the meaning of a provision is clear. When the purpose or object is brought into account an alternative interpretation may become apparent. If one interpretation does not promote the object or purpose of the Act, and another does, the latter interpretation is to be preferred.[4] Of course, s 15AA requires one to construe the legislation in the light of its purpose, not to rewrite it.[5]

• [10] 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[6], 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."

• [11] 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."

• [12] 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.

• [13] 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.[7] Further, although the word "regular" is not being used as a synonym for "uniform", "constant", "frequent" or "often",[8] 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.

• [14] 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."

• [15] 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."

• [16] On 28 October 2023, Mr Panwar commenced performing work through the Uber Delivery App. Mr Panwar undertook a few deliveries for Uber in late October 2023 and then did not perform any work on the Uber Delivery App until January 2024.

• [17] The deactivation of Mr Panwar's account on the Uber Delivery App took effect on 23 April 2025.

• [18] The following table shows the number of days Mr Panwar performed work on the Uber Delivery App in the period from 26 August 2024 until his deactivation on 23 April 2025:[9]

• [19] Mr Panwar says that the hours he worked for Uber in the period between 4 June 2024 and his deactivation on 23 April 2025 are set out in the table below:

• [20] Based on the figures in this table, Mr Panwar calculates that he worked, on average, 80.3 hours per month for Uber in the period from 4 June 2024 until his deactivation on 23 April 2025. Mr Panwar says that this exceeds the 60 hours per month average referred to in the Code.

• [21] I accept the accuracy of the information in the table set out in paragraph [19] above insofar as it records the dates on which Mr Panwar performed work for Uber but not insofar as it records the hours worked by Mr Panwar. The "hours worked" column in the table has been calculated by taking the total time during which Mr Panwar was logged on to the Uber Delivery App, regardless of whether Mr Panwar was undertaking deliveries for Uber at those times. The total time an Uber driver is logged on to the Uber Delivery App is shown on screen shots available to an Uber driver as "online" time.[10] It is apparent from data and other evidence adduced by Uber that an Uber driver such as Mr Panwar is paid from the time they accept a trip, after which they pick up the delivery, to the time they drop off the delivery.[11] I consider that this is the time that an Uber driver is performing work on the Uber Delivery App for Uber. While an Uber driver may remain logged on to the Uber Delivery App for up to 12 consecutive hours, the time between the drop off of one delivery and the acceptance of the next delivery does not constitute the performance of work. This is consistent with section 18(4) of the Code. It follows that the "hours worked' figures in the table at paragraph [19] above and Mr Panwar's calculation that he worked, on average, 80.3 hours per month are inflated and do not represent the actual work performed by Mr Panwar on the Uber Delivery App.

• [22] Mr Panwar took time off working for Uber to travel overseas to India from 20 June 2024 to 23 July 2024. He returned to India to seek social support because he had suffered a breakdown in his relationship.

• [23] Mr Panwar stopped working for Uber in October 2024 because he was suffering from depression and the advice from his doctor was not to drive after taking antidepressant medications. Mr Panwar says that the cause of his medical condition was the fact that his childhood friend was diagnosed with a debilitating liver disease in October 2024 and he had recently gone through a relationship breakdown.

• [24] In the period from 26 August 2024 until 17 October 2024, Mr Panwar performed work on the Uber Delivery App for an average of 4.1 days per week.

• [25] In the period from 18 October 2024 until 24 December 2024, Mr Panwar did not perform any work on the Uber Delivery App.

• [26] In the period from 25 December 2024 until 23 April 2025, Mr Panwar performed work on the Uber Delivery App for an average of 4.3 days per week.

• [27] In the period from 26 August 2024 until 23 April 2025, Mr Panwar performed work on the Uber Delivery App for an average of 3.1 days per week. This takes into account the fact that Mr Panwar performed no work for Uber in the period between 18 October 2024 and 24 December 2024.

• [28] In the six-month period prior to Mr Panwar's deactivation on 23 April 2025, he performed work on the Uber Delivery App for an average of 2.8 days per week.

• [29] The work undertaken by Mr Panwar for Uber prior to 26 August 2024 cannot be taken into account in determining whether he had been, at 23 April 2025, performing work for Uber on a regular basis for a period of at least 6 months.[12]

• [30] I am satisfied on the evidence that Mr Panwar performed work for Uber on a regular basis in the periods from (a) 26 August 2024 until 17 October 2024 and (b) 25 December 2024 until 23 April 2025. The frequency with which Mr Panwar worked for Uber during each of these periods, coupled with his pattern of working numerous days on most weeks, demonstrates that he was performing work on a regular basis in each of the periods from (a) 26 August 2024 until 17 October 2024 and (b) 25 December 2024 until 23 April 2025.

• [31] Although 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", Mr Panwar did not perform any work for Uber for a period of about two months and one week from 18 October 2024 until 24 December 2024. This nine-week period represents more than one-third of the 26-week period with which paragraph 536LD(c) of the Act is concerned. Because of this extensive period during which no work was performed, I am not satisfied that, as at 23 April 2025, Mr Panwar had been performing work on the Uber Delivery App on a regular basis for a period of at least six months. I consider that Mr Panwar performed work for Uber on a regular basis for two separate periods,[13] but these separate periods cannot be added together to make a period of at least six months.

• [32] I reject the submission advanced on behalf of Uber that the Commission should consider whether Mr Panwar had a reasonable expectation of continuing work on a regular basis in assessing whether he was protected from unfair deactivation. The concept of a reasonable expectation of continuing work on a regular basis comes from s 384(2) of the Act, which is concerned with when casual employment counts towards a period of employment for the purpose of determining the minimum employment period under the unfair dismissal provisions of the Act. Parliament has elected not to include the concept of a reasonable expectation of continuing work in Part 3A-3 of the Act. This tells strongly against the argument that a reasonable expectation of continuing work on a regular basis is relevant to an assessment of whether a regulated worker is protected from unfair deactivation.

• [33] Mr Panwar 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 Panwar's application for an unfair deactivation remedy must be dismissed.

[1] [2017] HCA 34 (Kiefel CJ, Nettle and Gordon JJ)

[2] Ibid at [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223 at [76] - [86]

[4] Huntsman Chemical Company Australia Pty Limited [2019] FWCFB at [12]

[5] Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at [235]

[6] [2025] FWC 1289

[7] 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]

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

[9] Page 73 of the Hearing Book is the basis for the figures from 21 October 2024 to 14 April 2024. Pages 111 to 118 of the Hearing Book is the basis for the figures from 26 August 2024 to 14 October 2024.

[10] See, for example, page 83 of the Hearing Book.

[11] See, for example, page 39 of the Hearing Book.

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

[13] 26 August 2024 to 17 October 2024 and 25 December 2024 until 23 April 2025.

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