Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - Applicant not protected from unfair deactivation - Application dismissed.

• [1] Mr Muhammad Osama has made an application under s.536LU of the Fair Work Act 2009 (the Act) for an unfair deactivation remedy. The Respondent to Mr Osama's application is Didi Mobility (Australia) Pty Ltd (Didi).

• [2] In his Form F89 - Application for an unfair deactivation remedy, Mr Osama states that he commenced working through or by means of the digital labour platform 'probably mid of 2022' and that his deactivation took effect '[a]round 7th May 2025'.[1] Mr Osama says that this was a temporary suspension. Didi objected to Mr Osama's application on two grounds. The first ground was that Mr Osama has not been deactivated pursuant to s.536LG of the Act. The second objection was that Mr Osama was not a person protected from unfair deactivation as he is not a person who has been performing work through or by means of the digital labour platform on a regular basis for a period of at least 6 months. This Decision deals only with this second jurisdictional objection.

• [3] Following a Mention and Conference with the parties, I issued Directions for the filing of material with respect to the jurisdictional objection that Mr Osama had not been performing work on a regular basis for a period of at least 6 months. At the Mention, both parties indicated that it was their preference that the matter be 'determined on the papers'. Having considered the material filed by the parties,[2] I determined it appropriate that the matter be determined based on the material filed.

• [4] For the reasons that follow, I have determined that Mr Osama is not a person protected from unfair deactivation.

• [5] Section 536LW of the Act sets out the initial matters to be considered prior to considering whether a deactivation was unfair.

536LW Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 536LU(3);

(b) whether the person was protected from unfair deactivation or unfair termination, as the case requires;

(c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires."

• [6] Section 536LD of the Act outlines when a person is protected from unfair deactivation:

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.

• [7] Didi says that Mr Osama commenced work through the digital labour platform 'on or around 18 August 2021'.[3] It is Didi's evidence that its records show that between 26 August 2024 and 9 February 2025, Mr Osama did not perform any work, and that from between 10 February 2025 to 6 May 2025, Mr Osama performed work via the labour platform for 13 different weeks.[4]

• [8] Didi also say that Mr Osama has been able to use the digital labour platform for work since 7 May 2025 without restriction.

• [9] In correspondence to the Commission, Mr Osama wrote to request that his application for an unfair deactivation be considered 'despite not having worked regularly on the digital labor (sic) platform for the minimum six-month period'.[5] Mr Osama says that:

Consideration of equity and fairness supports reviewing cases where procedural irregularities or unfair treatment are evident, even if the six-month work threshold has not been met (sic) I would still be covered under general protection

• [10] A person is protected from unfair deactivation only if they have met the criteria under s.536LD of the Act. I must decide whether a person is protected from unfair deactivation before determining the merits of an application (s.536LW of the Act). On the evidence before me, it is clear that Mr Osama has not performed work through or by means of a digital labour platform on a regular basis for a period of at least 6 months. On this basis, I cannot consider that Mr Osama is a person who is protected from unfair deactivation. The application for a remedy from unfair deactivation is therefore dismissed and an Order[6] to this effect shall be issued with this Decision.

[2] Fair Work Act 2009 s.536LX.

[3] Respondent's Submissions of 30 June 2025, page 5.

[6] PR789711.

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