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 Tarig Ahmed Mohamedana Eltoum (the Applicant) has made an unfair deactivation application to the Fair Work Commission pursuant to s.536LU of the Fair Work Act 2009 (the Act) by filing a Form F89 - Application for an unfair deactivation remedy (Form F89). There were various names used to identify the respondent to the application in the Form 89, principal amongst them being 'Uber'. The Commission subsequently sent correspondence to a known employee of Uber Australia Pty Ltd attaching the Form F89. In reply, a Form F89A - Response to an Application for an unfair deactivation remedy (Form F89A) was received. The Form F89A indicated that the proper legal name of the digital labour platform operator responding to the unfair deactivation application is Raiser Pacific Pty Ltd. Accordingly, I have determined that it is appropriate to exercise the discretionary power in s.586 of the Act and correct the name of the respondent to the Applicant's unfair deactivation application so that it is henceforth recorded as being Raiser Pacific Pty Ltd (Respondent).

• [2] Section 536LG of the Act outlines that a person has been deactivated from a digital labour platform if they performed digital platform work through or by means of the digital labour platform, and the digital labour platform operator modified, suspended, or terminated their access to the digital labour platform, and the person is no longer able to perform work under an existing services contract.

• [3] Part 3A-3 of the Act governs the unfair deactivation of employee-like workers from digital labour platforms. Section 536LP(1) of the Act provides that the Commission may order a remedy for unfair deactivation if it is satisfied that a person was protected from unfair deactivation at the time of being deactivated and has been unfairly deactivated.

• [4] Section 536LD of the Act outlines when a person is protected from unfair deactivation, as follows:

"536LD 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."

• [5] The Applicant contends he was protected from unfair deactivation because at the time he was deactivated on 17 February 2025, he had worked through or by means of the Respondent's digital labour platform on a regular basis for a period of at least 6 months.

• [6] The Respondent contends that the Applicant is not a person "protected from unfair deactivation." Having regard to the considerations that follow, the Respondent is correct:

• 1. Part 3A-3 of the Act governing unfair deactivation applies to deactivations that occur after "commencement."[1]

1. The relevant definition of "commencement" is found in clause 123 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, reading as follows:

"the commencement of item 238 of Part 16 of Schedule 1 to the amending Act."

1. The "amending Act" is defined as the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

1. Section 2(1) of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 provides that the commencement of item 238 of Part 16 of Schedule 1 was 6 months after that Act received Royal Assent on 26 February 2024.

1. With its "commencement" therefore being 26 August 2024, Part 3A-3 of the Act applies to deactivations that occur after 26 August 2024.

1. Section 536LD(c) of the Act provides that a person is "protected from unfair deactivation" if they have worked through or by means of a digital labour platform on a regular basis for a period of at least 6 months at the time of their deactivation.

1. Clause 124(2) of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 relevantly provides:

"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."

1. Accordingly, even though the Applicant commenced as a driver using the Respondent's digital labour platform from as early as November 2016, clause 124(2) operates to exclude the work he performed before 26 August 2024.

1. The work performed by the Applicant prior to 26 August 2024 cannot be counted for the purpose of determining whether he had been performing work on a regular basis for a period of at least 6 months.

1. Having commenced operation on 26 August 2024, s.536LD(c) operates to prevent the unfair deactivation provisions having application to the Applicant unless he was deactivated after 26 February 2025.

• [7] I have noted that in the Form F89, the Applicant asserted that his deactivation from the Respondent's digital labour platform took effect on 17 February 2025. This was confirmed by both the Respondent in the Form F89A and in the evidence given by the Applicant at the determinative conference. The Respondent also produced what it described as being the "Deactivation Notice" by which it was said the Applicant was notified that access to his account on the Uber Driver Platform had been permanently removed on 17 February 2025.[2] The Applicant confirmed receiving this and further confirmed that he last performed work on the Respondent's digital labour platform on 5 February 2025. The Respondent's records also reflect this. I am therefore satisfied the Applicant last performed work for the Respondent on 5 February 2025 and was deactivated from the Respondent's digital labour platform on 17 February 2025.

• [8] Much of the Applicant's material and oral submissions focussed on the merits of the application he seeks to pursue. However, s.536LW of the Act requires me to decide certain other matters before considering the merits of his application. In this case, it is not necessary to determine whether the unfair deactivation application was made within the period required in s.536LU(3) of the Act (s.536LW(a)) because the Applicant is not protected from unfair deactivation (s.536LW(b)). As outlined above, the Applicant is not protected from unfair deactivation because the work he undertook prior to 26 August 2024 cannot be taken into account and he did not perform work on a regular basis for a period of at least 6 months thereafter, having not performed work for the Respondent after 5 February 2025 and having been deactivated on 17 February 2025. As the Applicant is not protected from unfair deactivation, his application must be dismissed.

Mr Tarig Ahmed Mohamedana Eltoum on his own behalf.

Melbourne (in person and by Video using Microsoft Teams).

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

[2] Witness statement of Emilee Fairlie dated 21 August 2025 at [10] and Annexure B.

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