s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - jurisdictional objection - whether applicant was protected from unfair deactivation - whether applicant had been performing work on a regular basis for a period of at least six months prior to deactivation - objection upheld

• [1] Tasin Laskar worked as a Delivery Person through the Uber Eats App (Platform) until his account was deactivated with effect from 6 February 2026. He made an application to the Fair Work Commission for an unfair deactivation remedy pursuant to section 536LU of the Fair Work Act 2009[1] (Application). He seeks an order that Portier Pacific Pty Ltd (Uber Eats) reactivate his access to the Platform.

[2] Uber Eats raised a jurisdictional objection to the Application. It contends that as at 6 February 2026, Mr Laskar had not been performing work on the Platform on a regular basis for a period of at least six months. It follows, Uber Eats submits, that Mr Laskar was not a person protected from unfair deactivation and was therefore not entitled to make the Application (Objection).

• [4] The evidence the parties filed in respect of the Objection did not give rise to "facts the existence of which is in dispute", meaning that I was not required to conduct a conference or hold a hearing in relation to the Objection.[2] Consequently, at Uber Eats' suggestion and with Mr Laskar's consent, I have determined the Objection on the papers.

• [5] The Commission may order a remedy for unfair deactivation if it is satisfied of two things: that the applicant was a person protected from unfair deactivation, and that they were unfairly deactivated.[3]

[6] Section 536LD defines when a person "is protected from unfair deactivation" in these terms:

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.

[7] The Objection concerns section 536LD(c).

• [8] Section 536LD(c) requires a point-in-time inquiry. It is not concerned with whether the person has, at any point in the past, completed a six-month period of work.[4] It requires that a person has been performing work on the relevant platform for a period of at least six months, not for a cumulative total of six months over time. The section is concerned with the person's most recent period of work, which ended with deactivation.[5]

[9] Uber Eats led evidence to the following effect:

(1) Mr Laskar began performing work as a Delivery Driver through the Platform on 2 February 2025. His access to the Platform was suspended on 17 January 2026. This was the last day on which Mr Laskar performed work through the platform. He was deactivated with effect from 6 February 2026.

(a) Mr Laskar performed work through the Platform from one to seven days per week (at an average of 4.86 days per week) from the week commencing 1 December 2025 to the week commencing 12 January 2026 (a total of seven weeks); and

(b) he performed no work through the Platform in the prior 19 weeks.

[10] Mr Laskar did not dispute that evidence. He submitted that there had been unexpected changes to his visa status, which prevented him from engaging in paid work, including working through the Platform.

[11] In the six-month (26 week) period immediately prior to his deactivation on 6 February 2026, Mr Laskar performed work for Uber Eats in only seven weeks. I note that those weeks were consecutive and I accept that for that period Mr Laskar performed work on a regular basis.

[12] However, he performed no work through the Platform in the relevant period prior to that. To my mind it does not matter that Mr Laskar was unable to work. Given the extensive period during which no work was performed, I am not satisfied that, as at 6 February 2026, Mr Laskar had been performing work on the Platform on a regular basis for a period of at least six months.

[13] It follows that at the time of his deactivation, Mr Laskar was not a person protected from unfair deactivation.

[1] In this decision, all references to legislative provisions are to provisions of the Fair Work Act 2009, unless stated otherwise

[2] Section 536LX

[3] Section 536LP(1)

[4] Joao Pedro De Araujo Mello v Portier Pacific Pty Ltd [2025] FWC 1628 at [7]

[5] Ibrahim Jibril [2025] FWC 1289 at [5]

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