Fair Work Act 2009

s 536LU - Application for an unfair deactivation remedy

Unfair deactivation application - s 536LU - jurisdictional objection - Applicant not an 'employee-like worker' - Respondent's system not a 'digital labour platform' - application dismissed.

[1] On 19 January 2026, Sarah Linda Jooste (the Applicant) made an application to the Fair Work Commission under s 536LU of the Fair Work Act 2009 (Cth) (the Act) for an unfair deactivation remedy. The Applicant purports having commenced work through or by means of the digital labour platform of the Respondent, Scribefire TMS T/A Scribefire Pty Ltd, on 25 June 2025 and that her deactivation took effect on 14 January 2026. The Respondent has objected to the application on the basis that the Applicant was not a person protected from unfair deactivation, within the meaning of s 536LD of the Act. Specifically, the Respondent has objected to the application on the grounds:

(a) the Applicant was not an 'employee-like worker', within the meaning of s 15P the Act; and/or

(b) the web-based portal utilised by the Respondent was not and is not a 'digital labour platform', within the meaning of s 15L of the Act; and/or

(c) the Respondent was not and is not a 'digital labour platform operator', within the meaning of s 15M of the Act; and/or

(d) even if the Applicant was an employee-like worker and the web- based portal utilised by the Respondent was and is a digital labour platform and the Respondent was and is a digital labour platform operator, the Applicant had not, as at 14 January 2026, been performing work through or by means of the 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.

• [2] Having considered the evidence and submissions of the parties, including but not limited to the Applicant's reference to the Closing Loopholes No.2 legislation[1] and the background to such reforms, I have concluded, on balance, that the Applicant was not an 'employee-like worker', within the meaning of s 15P of the Act. This is because the Transcription Management System (TMS) utilised by the Respondent, is not a 'digital labour platform' as that term is understood by reference to s 15L of the Act.

[4] With regard to the background of the matter, the Applicant, appropriately in my view, acknowledged that the evidence of Jodie-Anne Mouritz, Founder, Owner, and Managing Director of the Respondent (Mouritz), accurately described the operations of the Respondent, including the use of the TMS.

[5] The Applicant contends that the TMS is a digital labour platform for the purpose of s 15L of the Act. The Respondent disputes this characterisation of the TMS, and whilst the parties disagree on this point and on whether the Applicant was an 'employee-like worker' and whether the Respondent was a 'digital labour platform operator', in addition to whether the Applicant had met the minimum period of six months, the Applicant did not challenge Mouritz's evidence in cross examination.

[6] The starting point is an overview of the Respondent's operations, premised largely on the evidence of Mouritz.

• [7] The Respondent is an Australian transcription provider that delivers 'accurate and secure' transcripts to government agencies, investigative bodies, legal professionals and corporate organisations.[2] It operates within a structured governance framework designed to protect sensitive information and maintain high quality standards.[3] Transcription services extend to the court proceedings, and include recorded interviews, hearings, investigations, and other formal proceedings where information security and accuracy is said to be critical.[4]

[8] The Respondent utilises a web-based portal called a TMS that performs the following functions/tasks:

(a) electronic storage of client files;

(b) acts as a storage medium for some clients who upload their files directly to the Respondent's website link (30% of invoicing);

(c) allows suppliers to indicate their availability;

(d) allows employees of the Respondent to send an allocation notification to a supplier and mark that supplier as being assigned an order;

(e) allows suppliers to download an audio file and see a deadline;

(f) allows suppliers to upload a transcription; and

• (g) prepares invoices for orders that attract a per audio minute rate.[5]

[9] The Respondent clarified that the following functions or tasks are not performed using the TMS:

(a) recruiting and negotiating supply agreements, which is done through communication outside of TMS;

(b) sourcing clients;

(c) storing the Respondent's policies or hosting mandatory privacy and security awareness training;

(d) retrieving recordings from emails or client portals and uploading to TMS (70% of invoicing);

(e) making decisions about which supplier will be allocated an order;

(f) sending push notifications directly from TMS to suppliers when an order is allocated, as this is communicated in the form of an auto-generated email;

(g) production of the transcript, which is done outside of TMS (for example, through Microsoft Word);

(h) general communication between employees and suppliers outside of the allocation of orders and uploading of transcripts;

(i) preparing invoices for orders that attract a rate that is anything other than a per audio minute rate, for example per 100 words (folio);

(j) paying suppliers; and

• (k) communicating termination of supplier agreements to suppliers.[6]

[10] The process for allocating client orders starts with the client placing an order with the Respondent. Mouritz gave evidence that:

(a) 70% of the transcripts the Respondent invoices are orders that they receive outside of the TMS, for example a client will email one of the Respondent's employees letting the Respondent know what jobs they have for the Respondent. The employee will then go into the client portal, retrieve the audio files and upload them into the TMS; and

• (b) for the other 30% of transcripts the Respondent invoices, the clients upload their files to a link on the Respondent's website which drops it into a waiting area in the TMS. Once the Respondent receives a file that way, one of the Respondent's employees will match the recording with a client, assess what the file is, create a glossary and decide which template is required by manually inspecting the file.[7]
• [11] Once a task is allocated in the TMS, one of the Respondent's employees or Mouritz herself, will manually allocate it to a supplier in the TMS.[8] The Respondent employs several employees who have general responsibility for the administrative processes surrounding the day-to-day production of transcripts, including the allocation of orders to suppliers and delivery of transcripts to clients.[9]

• [12] Regarding the allocation, the Respondent's employees do this by viewing the list of orders in the TMS and allocating an order to a supplier manually by reviewing the supplier's availability (on the TMS) and how suitable the Respondent thinks the supplier would be for the order.[10] Mouritz stated that the allocation is completely discretionary and a supplier marking themselves as available does not guarantee that the Respondent will allocate an order to them.

• [13] If the Respondent allocates an order to a supplier, they would do so through the TMS. A notification email would issue through the TMS to the supplier, which would contain the details of the order and the deadline.[11] The supplier would then log into the TMS and download the audio recording and template. As well as being contained within the email notification to the supplier, the TMS also contains details of the order including the deadline for delivery of the transcript.[12]

• [14] The supplier produces the transcript using any tools at their disposal subject to the confidentiality, information security and cyber security obligations in the 'Supplier Agreement', such as using speech assistance, artificial intelligence within the parameters of the 'Supplier Agreement' or manually typing directly.[13] All transcripts are to be provided by the supplier to the Respondent in the format of either 'docx' or '.pdf', and are produced outside of the TMS. Once the transcript is produced, the supplier uploads it to the TMS and the Respondent's employees can see it appear in the list of orders on the TMS.[14]

• [15] The Respondent's process for providing the transcript to a client is manual.[15] According to Mouritz, the Applicant was marked as a 'number two' on its system, meaning that the Respondent had flagged her as a supplier who is generally considered reliable but the transcript is not released to the client without one of the Respondent's employees reviewing the transcript first for technical compliance.[16]

• [16] Once the Applicant had uploaded a transcript to the TMS, it was reviewed by one of the Respondent's employees and if there were errors, it went back to the Applicant because, as set out in the Supplier Agreement, the Respondent only purchased complete digital products, that is, transcripts which are accurate, complete and compliant with technical specifications.[17]

• [17] As to sourcing clients for the Respondent's services, approximately 90% of the Respondent's customers are sourced via formal tender or existing marketplace relationships and referrals.[18] The Respondent does not advertise or market its services and its website is referred to by the Respondent as a 'simple landing page'.[19]

• [18] To obtain a client via a tender, Mouritz finds the tender on a tender publishing website, for example the State or Federal Government tender websites.[20] Mouritz then prepares the tender herself, generally using Word or Excel, and submits it through the client's website or tender portal, as required. The process of engaging clients occurs entirely outside the TMS platform.

• [19] To receive payment for a transcript charged per audio minute, the Applicant was required to log into the TMS, tick each order that she wanted to invoice the Respondent for and click 'generate invoice'. The TMS would then generate an invoice for her and email a PDF copy of the invoice to the Applicant.[21]

• [20] Mourtiz explained that there was an end-to-end plug-in which communicated between the TMS and Xero which effectively imported the information on the invoice from the TMS into a draft invoice in Xero, which she would then check and approve - if correct. Mouritz would then log into her internet banking and pay the invoice.[22]

• [21] Where the Applicant completed transcripts via payment per folio, the Applicant would be required to conduct her own word count using Microsoft Word and create her own invoices using her own system outside of TMS. The Applicant would then email that invoice to Mouritz using the Respondent's accounts email. If the invoice was correct, then Mouritz would manually log into her internet banking and pay the invoice.[23]

• [22] Once a supplier was paid, a remittance advice was emailed to the supplier through Xero.[24]

2.5 The Applicant's engagement and work with the Respondent

• [23] Mouritz gave evidence that the Respondent's suppliers are engaged through word of mouth, with no advertising engaged in by the Respondent.[25]

• [24] On 18 June 2025, the Respondent's employee 'Elicia' emailed the Applicant from the Respondent's 'tms1 email', which Mouritz has access to, enquiring about her experience and charge rate.[26] Mouritz noted that as with all suppliers, the Respondent does not set the rate. When the Respondent entered negotiations with the Applicant, the Respondent asked the Applicant what her rate was.[27]

• [25] On that same day, the Applicant responded outlining her experience, rate, availability and the equipment she had. The rate the Applicant provided was a folio rate, which is a rate for every 100 words. Specifically, $1.90 per 100 words for delayed orders (generally more than 24 hour turnaround) and $2.10 per hundred words for same day or 24 hour turnaround.[28]

• [26] Mouritz explained that the Respondent paid suppliers per audio minute for general transcription orders and per folio for court orders.[29] Mouritz further explained that because most of the orders placed with the Respondent are based on a per audio minute, on 24 June 2025, Elicia emailed the Applicant asking her to confirm her fee per minute of audio recording.[30]

• [27] Mouritz said that following the negotiations regarding the Applicant's rate, on 25 June 2025, the Respondent issued to the Applicant a 'Supplier Agreement Transcription Services' (Supplier Agreement) for the rate of $2.20 per audio minute.[31] The Applicant signed and returned the Supplier Agreement the same day via email along with some queries about its wording.[32]

[28] The Supplier Agreement included the following terms:

(a) the Respondent engaged the Applicant to provide a 'complete digital product' in the form of a transcript which is entire and accurate to the extent permitted by the quality of the recording (clause 6 of the Supplier Agreement); and

(b) the Applicant's fee is $2.20 per audio minute, which is the rate provided by the Applicant and noting that the Applicant does not charge GST (clause 7 of the Supplier Agreement).

• [29] On 26 June 2025, Elicia requested the Applicant's bank details to create a Xero profile. Xero is the accounting and payroll software used by the Respondent. The Applicant complied with the request.[33]

• [30] On 26 June 2025, Elicia emailed the Respondent's policies and procedures to the Applicant, including, amongst other policies, the Information Security Policy and Availability Calendar Turnaround Times,[34] and on that same date, the Applicant completed the Privacy & Security Awareness Training for the Respondent.[35]

• [31] Five practice files were allocated to the Applicant on 26 June 2025 via email. According to Mouritz every supplier must complete these practice files so that the Respondent can assess the supplier's suitability and ability to comply with the Respondent's style guide before being assigned a client order.[36]

• [32] On 27 June 2025, the Respondent created and activated a profile for the Applicant in the TMS and Microsoft Teams.[37] Elicia is said to have emailed the Applicant granting access to Microsoft Teams.[38]

• [33] The first date the Applicant marked herself available in the calendar on the TMS was 22 July 2025.[39] The Respondent started allocating client orders to the Applicant from that date.[40]

• [34] On 7 October 2025, the Applicant expressed an interest in producing court transcripts for the Respondent and Mouritz onboarded her accordingly.[41]

• [35] On 10 November 2025, the Respondent's employee emailed the Applicant an updated supplier agreement for court files, which was the same as the Supplier Agreement except that the rate was $2.20 per 100 words (folio) (Court Files Supplier Agreement).[42]

• [36] Between 17 November 2025 and 21 November 2025, the Applicant and 'Isobel' engaged in an email discussion clarifying that the Applicant's rate is $2.20 per audio minute for general transcription and $2.20 per 100 words for Court transcripts. As Court transcripts are invoiced outside of the TMS, Isobel explained that the Applicant would need to manually create and email her invoice to the accounts email. Isobel offered to issue a further contract specifying the per minute rate for general orders and the per folio rate for court orders, which the Applicant indicated was not necessary.[43]

• [37] On 16 December 2025, the Applicant sent to Mouritz an email expressing that she was happy with the per folio rates compared with the last big company she worked for. The Applicant wanted to restructure her rates so that all her orders were subject to her per folio fee, including general transcription orders. Mouritz stated that as she was on leave until the end of December, the Applicant's new rates were negotiated in early January 2026 and implemented by increasing the Applicant's rate in the TMS.[44]

• [38] Between 22 July 2025 and 14 January 2026, the Respondent engaged the Applicant each week except the week ending 28 September 2025, although her transcription hours varied weekly.[45]

• [39] Mouritz gave evidence that following concerns about the Applicant's professionalism, she suspended the Applicant's access to TMS and informed her via email that she was reviewing her engagement and would inform her of the outcome.[46] On 15 January 2026, Mouritz emailed the Applicant and notified her that the Respondent was terminating the Supplier Agreement with 30 days' written notice, and no further work would be allocated to her.[47]

• [40] Prior to considering the specific provisions relevant to this matter, it is necessary to consider the general rules of statutory interpretation. The plurality in SZTAL v Minister for Immigration and Border Protection[48] described the contemporary approach to statutory interpretation in the following terms:

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.[49] (footnotes omitted)

• [41] As observed, a statutory provision is to be construed consistently with the language and purpose of the provision, having regard to its statutory context.[50] 'Context' is understood in its widest sense to include surrounding statutory provisions, the mischief that the statutory provision in question is intended to remedy,[51] and extrinsic materials and legislative history.[52]

• [42] Words with an apparently clear, ordinary or grammatical meaning may be ascribed a different legal meaning if the context for the provision points to factors that tend against the ordinary usage of the words of the provision.[53]

• [43] It is well settled that regard can be had to extrinsic materials to assist in understanding the text of a provision.[54] Section 15AA of the Acts Interpretation Act 1901 (AI Act) requires that a construction that would promote the purpose or object underlying the Act be preferred to a construction that would not do so. Determination of the purpose of relevant statutory provisions may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.[55]

• [44] As to the types of extrinsic material that may be considered in interpreting legislative provisions, s 15AB of the AI Act sets out a non-exhaustive list that relevantly includes explanatory memoranda, the second reading speech and Hansard.[56] The second reading speech of a Minister, while not determinative of a provision's interpretation, is regarded as 'deserving serious consideration' and is 'an aid to interpretation'.[57]

• [45] When interpreting definitions, it is important to appreciate that the ordinary meaning of a defined term is notionally displaced by the act of defining the term within a statute,[58] albeit, its ordinary meaning cannot be treated immaterially.[59]

• [46] In Kelly v The Queen[60], McHugh J stated the following about interpreting definitions:

.. the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definitions applies, the better -I think the only proper - course is to read the words of the definition into the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

[47] 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, establishing procedures for dealing with unfair deactivation that are quick, flexible, informal and address the needs of regulated businesses and regulated workers, and provide remedies if a deactivation or termination is found to be unfair, with an emphasis on reactivation (s 536LC of the Act).

[48] A person who has been deactivated may apply to the Commission for an order under Division 4 of Part 3A-3 (s 536LU(1) of the Act). Any such application must be made within 21 days after the deactivation took effect (s 536LU(3)(a) of the Act). However, the Commission has a discretion to extend time for an unfair deactivation application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters specified in s 536LU(4)(a) to (g) of the Act.

[49] The Commission must decide three initial matters before considering the merits of an unfair deactivation application (s 536LW of the Act). First, whether the application was made within the period required in s 536LU(3); second, whether the applicant was protected from unfair deactivation; and third, whether the deactivation was consistent with the Digital Labour Platform Deactivation Code.

[50] Whilst the Applicant made her application within the prescribed statutory period, the Respondent asserts that she was not protected from unfair deactivation for several reasons. To recap, those reasons include that the Applicant was not an 'employee-like worker', the web-based portal utilised by the Respondent was not and is not a 'digital labour platform', and/or the Respondent was not and is not a 'digital labour platform operator'.

[51] Section 536LD of the Act sets out the protection from unfair deactivation in the following terms:

Section 536LD When a person is protected from unfair deactivation

A person is protected from unfair deactivation at a time if, at that time:

(a) the person is an employee - like worker; and

(b) the person:

(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.

4 Whether the Applicant was an employee-like worker

[52] To discern whether the Applicant was an 'employee-like worker', it is necessary to consider several statutory definitions that are relevant to Part 3A-3 of the Act.

[53] Starting with the expression 'employee-like worker', this term is defined in s 15P of the Act, in the following terms:

(a) the person is:

(i) an individual who is a party to a services contract in their capacity as an individual (other than as a principal), and performs work under the contract; or

(ii) if a body corporate is a party to a services contract (other than as a principal)-- an individual who is a director of the body corporate, or a member of the family of a director of a body corporate, and performs work under the contract; or

(iii) if a trustee of a trust is a party to a services contract in their capacity as a trustee (other than as a principal)--an individual who is a trustee of the same trust and performs work under the contract, whether or not the individual is a party to the contract; or

(iv) if a partner in a partnership is a party to a services contract in their capacity as a partner (other than as a principal)--an individual who is a partner in the same partnership and performs work under the contract, whether or not the individual is a party to the contract; and

(b) the person performs all, or a significant majority, of the work to be performed under the services contract; and

(c) the work that the person performs under the services contract is digital platform work; and

(d) the person does not perform any work under the services contract as an employee; and

(e) the person satisfied 2 or more of the following:

(i) the person has low bargaining power in negotiations in relation to the services contract under which the work is performed;

(ii) the person receives remuneration at or below the rate of an employee performing comparable work;

(iii) the person has a low degree of authority over the performance of the work;

(iv) the person has such other characteristics as are prescribed by the regulations.

(2) In this Part, a reference to an independent contractor includes a reference to an individual who is an employee-like worker within the meaning of subsection (1).

(3) Regulations made for the purposes of subparagraph (1)(e)(iv) may specify that a person must have all or only one or some of the characteristics prescribed.

(4) For the purposes of determining whether an individual satisfies the criteria specified in paragraph (1)(e), the effect of a minimum standards order, minimum standards guidelines or a collective agreement applying to, or covering, the individual is to be disregarded.

[54] It is not the case that the Respondent takes issue with the Applicant having been an individual to a 'services contract'. It is the Respondent's position that the Supplier Agreement was a services contract under which the Applicant, as an individual who was party to the Supplier Agreement in her capacity as individual, performed work under that contract, therefore satisfying s 15P(1)(a)(i) of the Act. Furthermore, the Applicant performed all, or a significant majority of the work under the Supplier Agreement (satisfying s 15P(1)(b) of the Act) and did not perform any of that work as an employee thus also satisfying s 15P(1)(d).

[55] Leaving aside for one moment s 15P(1)(a), (b), (d) and (e) and s 15P(2), (3) and (4), the statutory definition of 'employee-like worker' itself contains further defined terms, including a 'services contract' and 'digital platform work'. Turning to that latter term, 'digital platform work' as referred to in s 15P(1)(c), is defined in s 15N of the Act as follows:

(a) work performed by an independent contractor, where:

(i) the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and

(ii) payment is made for that work; or

(b) work prescribed by the regulations for the purposes of this subsection.

(2) Digital platform work does not include work prescribed by the regulations for the purposes of this subsection.

(3) For the purposes of paragraph (1)(b) and subsection (2), work may be specified by name or by inclusion in a specified class or specified classes.

[56] Again, the statutory definition itself adopts words, which are then in turn attributed a statutory definition, namely a 'digital labour platform'. What then is a 'digital labour platform'? It is, according to s 15L of the Act, the following:

(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;

(ii) an associated entity of the operator;

(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.

[57] The Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Explanatory Memorandum) when considering the insertion of the new definition of 'services contract' into the Act, noted that the definition would include the requisite constitutional connection (namely the constitutional bases for new Chapter 3A - paragraph 51(xx) of the Constitution). As part of the explanation for the newly defined term, at paragraph [1068] of the Explanatory Memorandum, the following was stated:

The intent of this definition is to clearly capture operators of 'horizontal' or 'marketplace' digital labour platforms which may intermediate a services contract made between a worker and an individual but is not itself a party to it. There are examples of such digital labour platforms in the care sector.

[58] At paragraphs [1074] to [1077] of the Explanatory Memorandum the definition of 'digital labour platform' is explained in the following terms:

1074. Subsection (1) would insert a new definition of 'digital labour platform' into the FW Act. It would mean an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, where:

• the operator of the application, website or system:

a. engages independent contractors directly or indirectly through or by means of the application, website or system; or

b. 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

• the operator of the application, website or system processes aggregated payments referable to the work performed by the independent contractors.

1075. Subsections (2) and (3) would insert regulation-making powers, enabling an online enabled application, website or system to be prescribed as a digital labour platform, or to be excluded as not a being digital labour platform.

1076. Subsection (4) would specify that an application, website or system may be specified by name or by inclusion in a specified class or specified classes or in respect of all forms of digital platform work, or in respect of specified forms of digital platform work.

1077. The definition of digital labour platform is intended to be deliberately broad to ensure that it can capture new market structures and forms of work as they emerge. It is not intended to capture online classifieds where there is not a payment processed, or digital platforms that facilitate the sale of goods.

[59] At paragraph [1172] of the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Revised Explanatory Memorandum), the intent of the definition of 'services contract' mirrored that at paragraph [1068] of the Explanatory Memorandum. Similarly, paragraphs [1179] to [1182] mirrored that of [1074] to [1077] of the Explanatory Memorandum.

[60] At paragraph [1183] of the Revised Explanatory Memorandum, the meaning attributed to 'digital platform operator' is explained and at paragraphs [1184] to [1186], attention is directed to the explanation of the term 'digital platform work'. The meaning of 'employee-like worker' is addressed at paragraphs [1187] to [1193] of the Revised Explanatory Memorandum with an illustrative example provided as follows:

Illustrative example: Care sector digital labour platform Jim works as an independent contractor providing services on a gig platform in the care sector called GigCare. GigCare operates as an online-enabled marketplace, where contractors pay a fee to operate on the platform and must agree to terms of service that place obligations on how they use the platform and interact with clients found on the platform. GigCare's platform provides a platform for communications between the parties and processes payments from clients to Jim.

GigCare's platform is a digital labour platform because it acts as an intermediary between Jim (and other contractors) and clients, and it processes payments. If a union representing Jim and similar contractors applies to the FWC for a minimum standards order in relation to work that he and those similar contractors performs through the GigCare platform, the FWC will also need to consider whether those similar contractors are employee-like workers, including because they have low bargaining power, comparatively low pay or a low degree of authority over their work.

• [61] Whilst the Full Bench in Bandameeda v Amazon Commercial Services[61] ('Bandameeda'), considered the meaning of 'deactivated' in s 536LG of the Act, the decision illuminates, in part, that the term 'digital labour platform' refers to the method by which the employee-like worker accessed or was engaged to perform the work undertaken':

[39] The first element of the definition of "deactivated" in s 536LG(a) addresses whether the employee-like worker 'performed digital platform work through or by means of the digital labour platform.' This element directs attention to both the nature of the work undertaken and the method by which the employee-like worker accessed or was engaged to perform that work. (bold for emphasis)

[62] As to the method of the work, the Full Bench further explained at paragraph [41], insofar as deactivation is concerned, that the third limb of the definition of 'deactivated' in s 536LG(c) of the Act centres on whether the employee-like worker retains the ability to perform work under a services contract. The Full Bench explained that when read in context, it is evident that the 'work' referred to in s 536LG(c) is the 'digital platform work [undertaken] through or by means of the digital labour platform' mentioned in s 536LG(a) of the Act. The Full Bench expressed that ordinarily, when an employee-like worker's access to the digital labour platform is suspended or terminated, they will no longer be able to perform work under their services contract. This is because the digital labour platform typically serves as the sole conduit through which the worker becomes aware of, and accepts, offers of digital platform work. The Full Bench noted that exceptions may arise, including the example of where a delivery worker may have the capacity to perform work finalising deliveries of goods which were offered to and accepted by the worker prior to the suspension or termination of access to the digital labour platform.

[63] The case law therefore suggests that the 'digital labour platform' is the method by which the employee-like worker accessed or was engaged to perform that work and typically it serves as the sole conduit through which the worker becomes aware of, and accepts, offers of digital platform work.

• [64] To date, one can perceive cohesion between the illustrative example provided in the Revised Explanatory Memorandum and those circumstances where the applicant to an application under s 536LU is a delivery person or partner, or a driver partner. For example, in Bandameeda, the applicant was a delivery partner who used the 'Amazon Flex app' to find out about delivery work which was available for acceptance'. The applicant in that case had accepted delivery work and was delivering an envelope, which, once delivered, the applicant took a photograph of and uploaded the photograph to the Amazon Flex app. In Hotak v Rasier Pacific Pty Ltd[62] ('Hotak'), the applicant performed work through or by means of the respondent's digital platform. Essentially, in Hotak, a rider had requested a trip via the Uber Rider Platform. The technology platform operated by the respondent in Hotak connects riders with drivers by use of 'Uber's' algorithm - that is the algorithm matches the rider request to a nearby available driver based on factors such as proximity albeit the matching technology considers many more real-world factors and engages in batched matching, whilst a dynamic pricing model is also adopted. In the illustrative example in the Revised Explanatory Memorandum, the care worker was required to pay a fee to the digital labour platform operator to operate on the platform whilst agreeing to terms concerning how they used the platform and interacted with clients found on the platform. GigCare's platform was said to provide a platform for communications between the parties and processed payments from clients to Jim. In that respect, it acted as an intermediary between the care worker (and other contractors) and clients, and it processed payments, much akin to the circumstances in Hotak.

• [65] Turning to whether the Respondent's TMS constitutes a 'digital labour platform', it is important to bear in mind that which was said in Kelly v The Queen, namely, that the function of a statutory definition is not to enact substantive law but is to provide aid in construing the statute, and nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment.[63] As to the definition of 'digital labour platform', the Revised Explanatory Memorandum discloses that its meaning is intended to be deliberately broad to ensure that it can capture new market structures and forms of work as they emerge.

[66] Whilst the Revised Explanatory Memorandum discloses that the term 'digital labour platform' is intended to be deliberately broad, it is not the case that it encompasses within its remit the TMS for the following reasons.

[67] The first consideration is whether the TMS is an 'online enabled application, website or system'. It would appear on first blush that term 'online enabled application' is itself self-contained. Whilst the term is not defined in the Act, its ordinary meaning can be understood to be software that requires, operates with, or benefits from, an internet connection to function -fully or in part. That the word 'online' does not stand alone from 'enabled application' is further reinforced by the notion that in respect to 'website', the word 'online' would appear to have no utility. After all, a 'website' is understood to be online - the word 'online' therefore proving unnecessary. However, it thereafter remains unclear whether the word 'system' is similarly confined to a system that requires or otherwise benefits from an internet connection. Here there is much to be said for the proposition that the general word 'system' in s 15L(1) should be construed ejusdem generis with the specific types of digital labour platforms that preceded it and are referred to in s 15L(1) such that the word 'system' refers to an 'online system'. Attributing such meaning to the word would thereafter accord with the reference in s 15L(1)(a) of the Act, where the word 'online' is no longer adopted but instead reference is simply made to 'application, website or system' - presumedly all of which are referrable to being 'online'.

• [68] It was uncontroversial that the TMS is a web-based portal and I accept the Applicant's evidence that she logged into that same portal from her computer and that the TMS did not function without internet connection.[64] In the absence of other evidence to assist, I find, on balance, that the TMS can be considered software that requires or uses an internet connection to function, either fully or in part - hence the reference to 'web-based' (online) and 'portal' (software), or otherwise is a 'website' or a 'system' - as that term is understood by reference to paragraph [67] of this decision. It is unclear from the evidence whether the TMS is fully online, online-enhanced, or requires a one-time internet connection for activation or to verify a licence and can then run offline. Notwithstanding, the TMS meets the statutory definition of being either an 'online enabled application, website or system'.

[69] That the TMS falls within the ambit of an 'online enabled application, website or system' is insufficient for it to be considered a 'digital labour platform'. A 'digital labour platform means an 'online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services' in the circumstances outlined in s 15L(1)(a) and (b) of the Act.

• [70] Unlike some of the examples provided at paragraph [64] of this decision, the TMS does not, contrary to the Applicant's contention, operate to arrange, allocate or facilitate the provision of 'labour services', within the meaning of s 15L(1) of the Act. This is clear from the evidence of the Applicant and Mouritz, that evidence being that the Applicant provided to the Respondent a digital transcript. The Applicant gave evidence that she was required to complete the transcript according to a set format and that if the transcript did not conform to the exact requirements of the style manual, it would be 'rejected' and sent back for completion.[65] Similarly, reflecting that the Respondent purchased from the Applicant a completed transcript, the Supplier Agreement[66] between the two parties stipulated the following as 'Background':

• Scribefire has requested Sarah Jooste (GEN) to supply, and Sarah Jooste (GEN) has agreed to supply, the Deliverables to Scribefire during the Term.

• • This Agreement records the terms of Sarah Jooste (GEN)'s appointment as a supplier of the Deliverables to Scribefire and the terms applicable to each Order.[67]

[71] Clause 6 of the Supplier Agreement set out that regarding 'Deliverables':

Sarah Jooste (GEN) is engaged to deliver the following in accordance with Quality Assurance Standards as described in the Annexure A, or as further detailed in an Order:

• A complete digital product in the form of a transcript which is entire and accurate to the extent permitted by the quality of the recording, compliant with RSB Transcription Manual and supplied as a digital file in the format detailed in an Order ("Deliverables").

[72] Whilst the fee payable under the Supplier Agreement was referrable to '$2.20 per audio minute plus GST (if applicable)' it was also the case that some transcripts were paid at a folio rate, namely a rate for every 100 words. What was therefore being purchased by the Respondent was not labour services per se but rather a product in the form of a transcript, which was priced in accordance with an audio minute or folio rate. This establishes one reason why the TMS is not a digital labour platform.

[73] If it were, however, the case that 'labour services' were purchased by the Respondent instead of a product in the form of a transcript, I am nevertheless not persuaded that the TMS 'operated to arrange, allocate or facilitate the provision of labour services'. The word 'operated' in this context does not suggest that a person operates or acts upon the online enabled application, website or system to arrange, allocate or facilitate the provision of labour services. It is the online enabled application, website or system itself that operates to arrange, allocate or facilitate the provision of labour services. By way of rudimentary example only, there is not a person sitting within, say, Uber, manually matching rider or delivery with a driver or delivery partner. The online enabled application, website or system does that itself- meaning it, the digital labour platform, operates to arrange, allocate or facilitate. It follows that the TMS is not an 'online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services'.

• [74] Turning to the TMS, Mouritz gives unchallenged evidence that whilst the suppliers place their availability in the TMS, ultimately once a client order is received (whether through email or through the TMS), one of the Respondent's employees or Mouritz herself manually allocates it to a supplier in the TMS.[68] The Respondent employs employees responsible for allocating orders to suppliers. As noted in the evidence of Mouritz, the allocation of a transcript order to a supplier is a discretionary decision made by an employee of the Respondent or Mouritz, and that discretion may be exercised by the Respondent where a supplier marks themselves as available in the TMS and the Respondent considers them suitable for the product required. As noted by the Respondent, availability does not guarantee allocation of a transcript order to the supplier.

• [75] The Respondent's employees allocate by viewing the list of orders in TMS and manually allocating it to a supplier by reviewing the suppliers' availability (on TMS) and how suitable the Respondent thinks the supplier would be for the order.[69] As found, it is not the case that the TMS itself arranges, allocates or facilitates the provision of 'labour services' - matching supplier with transcript order.

[76] In and of itself, it is not sufficient that an online enabled application, website or system is operated to arrange, allocate or facilitate the provision of labour services to constitute a 'digital labour platform'. As noted, one of the two elements in s 15L(1)(a) of the Act must be met. The first, in s 15L(1)(a)(i) of the Act, is that the operator of the application, website or system 'engages' 'independent contractors' directly or indirectly through or by means of the application, website or system. It is noted that an 'independent contractor' under s 12 of the Act is not confined to an individual. For present purposes there appears to be no suggestion from the parties that s 15L(a)(ii) is enlivened.

[77] The Respondent presses that the word 'engages' read in the context of s 15L(a)(i) of the Act, refers to the formation of the relationship of principal and independent contractor through the Supplier Agreement, because the word 'engage' means to employ someone. It premises its submission upon the word 'engage' (an independent contractor) requiring something more specific than 'arranging', 'allocating' or 'facilitating the provision of the labour services' under the Supplier Agreement.

[78] Section 15L(1)(a)(i) expresses that the operator (of the application, website or system) 'engages independent contractors directly or indirectly...' and s 15L(1)(a)(ii) expresses that the operator 'acts as an intermediary for or on behalf of more than one distinct but interdependent sets of users who interact with independent contractors or the operator via the application, website or system'. It is within that context of s 15L(1) and the broader context of Part 3A-3 of the Act that the word 'engages' is to be construed.

[79] Whilst s 15L of the Act provides the meaning of 'digital labour platform', s 15M provides the meaning of 'digital labour platform operator' and s 15N provides the meaning of 'digital platform work'.

[80] The term 'digital labour platform operator' in s 15M refers to the operator of a digital platform, being an operator that enters into or facilitates a services contract under which work is performed by 'employee-like workers'. It is observed that 'employee-like worker' is defined in s 15P of the Act, with s 15P(2) noting that a reference to an independent contractor in Part 1-2 (Definitions) includes a reference to an individual who is an employee-like worker within the meaning of s 15P(1).

[81] As to 'digital platform work' that term is defined under s 15N as follows:

(a) work performed by an independent contractor, where:

(i) the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and

[82] When the context of Part 3A-3 is considered, including by reference to the preceding statutory definitions, the word 'engages' would appear to have been attributed the ordinary meaning of the word. However, the ordinary meaning of the word 'engages' is not confined to one particular meaning generally. It includes several, of which the following extracted from the online Macquarie Dictionary, appear the most relevant to the context of Part 3A-3:

...1. To occupy the attention or efforts of (a person, etc): she engaged him in conversation.

2. to secure for aid, employment, use, etc,; hire: to engage a worker; to engage a room.

[83] It is understood that under s 15M of the Act, a digital labour platform operator is an operator of a digital labour platform that enters into a services contract or facilitates a services contract, under which the work is to be performed by an employee-like worker. In contrast, s 15LA(i) of the Act adopts the word 'engages', a verb which would appear to refer to something other than just the operator entering into the services contract with an employee-like worker - whether directly or indirectly through the digital labour platform.

[84] The digital labour platform must provide the method or means by which the work is performed by the independent contractor under the services contract or the work performed by the independent contractor under the services contract is arranged or facilitated though or by means of a digital labour platform: see s 15N of the Act. When one considers the word 'engages' in s 15L(1)(a) of the Act in the context of s 15N(1)(a)(i) of the Act, it would appear that the verb 'engages' extends not to, or not only to, securing the use of the independent contractor or hiring the independent contractor or entering in the services contract with the independent contractor at one temporal point, but, to an operator's ongoing use (or engagement) of the independent contractor where the online enabled application, website or system, operates to arrange, allocate or facilitate the provision of labour services by those same independent contractors whether directly or indirectly.

• [85] In light of the Objects so described in s 536LC of the Act and the express words of the relevant provisions examined, it would appear an oddity that a business might circumvent the statutory label of being a 'regulated business'[70] and a 'digital labour platform operator', by simply entering into a services contract under which the work is performed by the employee-like worker, outside of the digital labour platform - that is, for example, by email (as was the case before me) - notwithstanding that an online enabled application, website or system operates to arrange, allocate or facilitate the provision of labour services.

• [86] If, however, the word 'engages' is limited to the meaning pressed by the Respondent, then it is the case that the Respondent did not 'engage' the Applicant through or by means of the TMS in respect of entering into the services contract. Mouritz gave unchallenged evidence that the Respondent does not contract the services of the suppliers through or by means of the TMS. All of this is done by email correspondence, with Mouritz giving evidence that the Respondent's suppliers are engaged through word of mouth, with no advertising engaged in by the Respondent.[71] Further, Mouritz gave unchallenged evidence that it is only once the contract has been entered into between the Respondent and supplier that the supplier is provided access to the TMS by the Respondent.

[87] If, however, the word 'engages' has a broader meaning as described above, then it is still the case that the TMS does not fall within the meaning of digital labour platform in s 15L of the Act for the reasons outlined in paragraphs [72] and [73] of this decision.

[88] In light of my conclusion that the TMS is not an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services, it proves unnecessary to further consider whether the Applicant was an employee-like worker. This is because s 15P(1)(c) specifies that a person is an employee-like worker if the work the person performs under the services contract is 'digital platform work'. The Applicant did not perform work that was 'digital platform work' because the TMS was not a digital labour platform.

• [89] On the basis of the above reasons, I have found that the Applicant was not an employee-like worker as contemplated by s 15P of the Act and therefore she was not a person protected from unfair deactivation, within the meaning of s 536LD of the Act. It follows that the Applicant's application for an unfair deactivation remedy is dismissed. An Order[72] to that effect issues concurrently with this decision.

[1] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth).

[2] Witness Statement of Jodie-Anne Mouritz dated 11 February 2026 (Mouritz Statement) [6].

[48] (2017) CLR 362 (Kiefel CJ, Nettle and Gordon JJ).

[49] Ibid 368 [14]; also see Australian Mines and Metals Association Inc v CFMMEU [2018] FCAFC 223; (2018) 268 FCR 128, 146-9 [76]-[86].

[50] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ).

[51] R v A2 [2019] HCA 35; (2019) 269 CLR 507 ('R v A2'), 521 [33] (Kiefel CJ and Keane J, with whom Nettle and Gordon JJ concur at 554 [148]).

[52] Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495, 503 [13] (Kiefel CJ, Nettle and Gordon JJ).

[54] See Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1, [5] (Allsop CJ); such a position was recently recognised by the Full Bench of the Fair Work Commission in Application by Mining and Energy Union re Goonyella Riverside Mine [2025] FWCFB 134, [59]-[60].

[55] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, 389 [25] (French CJ and Hayne J).

[56] For the purposes of s 40A of the Fair Work Act 2009 (Cth), ss 15AA and 15AB of the AI Act were in force on 25 June 2009.

[57] Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 518 (Mason CJ, Wilson and Dawson JJ).

[58] Office of the Premier v Herald and Weekly Times Pty Ltd [2013] VSCA 79; (2013) 38 VR 684, 700 [61 - footnote 70], discussing Pearce and Geddes, Statutory Interpretation in Australia (LexisNexis, 7th ed, 2011), [6.60], 247.

[59] Heffernan v Comcare [2014] FCAFC 2; (2014) 218 FCR 1, 9-10 [46].

[60] [2004] HCA 12; (2004) 218 CLR 216, 253 [103] (McHugh J).

[61] [2025] FWCFB 182.

[62] [2025] FWCFB 214.

[64] Digital Hearing Book, 9-10 [3.9]-[3.12].

[70] Fair Work Act 2009 (Cth) s 15F.

[72] PR798331.

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