Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - whether applicant was protected from unfair deactivation - requirement to have been performing work on a regular basis for a period of at least six months not met - application dismissed

[1] Mr Muhammad Farooq performed work for Rasier Pacific Pty Ltd trading as Uber from 22 June 2024 until he was deactivated on 18 January 2026. On 7 February 2026, Mr Farooq applied to the Commission for an unfair deactivation remedy under the Fair Work Act 2009 (Cth).

[2] Uber contends that Mr Farooq is not protected from unfair deactivation because at the time of his deactivation, he had not been performing work on the Uber digital labour platform on a regular basis for a period of at least six months.

• [3] Before the Commission can deal with the merits of an application under s 536LU of the Act, it must be satisfied (amongst other things), that the applicant was a person protected from unfair deactivation.[1] One of the requirements for a person to be protected is that they must have worked through or by means of a digital labour platform for a period of at least six months.[2] The relevant six-month period is the most recent period of work which ended with the deactivation.[3]

[4] The Digital Labour Platform Deactivation Code provides guidance on "the circumstances in which work is performed on a regular basis" (as required by s 536LJ of the Act). Section 18 of the Code sets out:

"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."

[5] I issued directions for the parties to file materials addressing Uber's contention. Uber filed the witness statement of Ms Laura Tierney, Industrial Relations Lead. Ms Tierney's evidence relevantly provides that in the six months leading up to Mr Farooq's deactivation, Mr Farooq:

(a) completed an average of 16.6 hours of paid work each month;

(b) completed an average of 1.11 days of paid work each week; and

(c) did not perform any work for Uber for 17 out of the 26 weeks.

[6] Mr Farooq did not challenge Ms Tierney's evidence. Mr Farooq confirmed that his hours performing work for Uber varied depending on his personal availability. Mr Farooq did not otherwise address the issue of whether he had performed work on a regular basis. Mr Farooq asked the Commission to deal with the substantive issue of whether his deactivation was unfair.

[7] On 11 March 2026, my Chambers wrote to Mr Farooq to explain the principles in [3] of this Decision. Mr Farooq was given a further opportunity to file relevant materials. On 23 March 2026, my Chambers advised the parties that based on Ms Tierney's unchallenged evidence, I had reached the provisional view that Mr Farooq had not performed work for Uber on a regular basis in the six months before he was deactivated. Mr Farooq did not respond to this email. On 24 March 2026, my Chambers advised the parties of my view that the matter could be determined on the papers, and that if either party sought to be heard on the matter, they should contact Chambers. Neither party objected.

[8] Given Ms Tierney's unchallenged evidence, I affirm my provisional view that Mr Farooq had not performed work on a regular basis for the six months leading up to his deactivation. I have reviewed the table of Mr Farooq's engagements with Uber in Ms Tierney's evidence, and Mr Farooq's engagements are intermittent and spread out. I have given weight to the fact that for 17 out of the 26 weeks leading up to Mr Farooq's deactivation, Mr Farooq did not perform any work for Uber at all. This means that in the six months leading up to Mr Farooq's deactivation, he did not perform work for 65% of that time.

[9] Given my finding above, Mr Farooq is not protected from unfair deactivation because, as at the time of his deactivation, he had not been performing work for Uber on a regular basis for a period of at least six months. Mr Farooq's application for an unfair deactivation remedy must therefore be dismissed.

[1] Fair Work Act 2009 (Cth) s 536LD.

[2] Ibid s 536LD(c).

[3] See: Application by Ibrahim Jibril Adbi [2025] FWC 1289; Application by Mr Sherif Wagih Mahmoud Elsheikh [2026] FWC 248; Application by Satbir Singh [2026] FWC 409.

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