s.536LU - Application for an unfair deactivation remedy

• [1] Mr Pathmanathan Velusami (Applicant) has made an application under s 536LU of the Fair Work Act 2009 (the Act) alleging that he was unfairly deactivated by Rasier Pacific Pty Ltd trading as Uber.

• [2] On 23 September 2025 the Respondent filed its Form F89A response in which it raised the following jurisdictional objections. The application was made outside the 21-day filing period, the Applicant had not worked through or by means of a digital platform for a period of at least 6 months, and the Applicant was not a person protected from unfair deactivation under Part 3A-3 of the Act.

• [3] The matter was allocated to my Chambers on 23 September 2025 for determination. The Applicant identified the date of his deactivation as 28 April 2024. That date preceded the commencement date of Part 3A-3, that of 26 August 2024. By reason of the relevant transitional provisions, Part 3A-3 applies only to deactivations that occur after the commencement date. As such, it appears that the Applicant was not a person protected from unfair deactivation under Part 3A-3 of the Act. On 25 September 2025, correspondence was sent to the Applicant by my Chambers raising the threshold issue of whether Part 3A-3 applied to his deactivation and inviting submissions from him on that point. The Applicant was invited to respond by 5.00pm Wednesday 1 October 2025. The Applicant did not respond to the correspondence.

• [4] Section 536LU(1) permits a person who has been deactivated to apply to the Commission, for an order under Division 4 granting a remedy. In dealing with an application, s 536LW identifies preliminary matters that must be considered by the Commission. They are as follows;

"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."

• [5] Section 536LD defines when a person is protected from unfair deactivation as follows;

"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] Item 124(1) of Schedule 1 to the Act relevantly states that;

"(1) Part 3A-3 Unfair deactivation or unfair termination of regulated workers applies to a deactivation or termination that occurs after commencement."

• [7] Part 3A-3 was included in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced operation on 26 August 2024.

• [8] It follows from the above that as the deactivation of the Applicant on 28 April 2024 preceded the date of commencement of Part 3A-3, he is not a person protected from unfair deactivation. His application must therefore be dismissed for want of jurisdiction.

• [9] For the reasons outlined above, I am satisfied that the Applicant is not a person protected from unfair deactivation. His application must be consequently dismissed. An order to that effect will be issued with this decision.

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