The attached document replaces the document previously issued with the above code on 13 August 2025.

[2025] FWC 2370

Fair Work Act 2009

s.536LU - Unfair Deactivation

• [1] On 22 April 2025, Mr. Umair Azwar made an application to the Fair Work Commission under s 536LU of the Fair Work Act 2009 (Cth.) (the Act) for a remedy, alleging he had been unfairly deactivated from his engagement with Rasier Pacific Pty Ltd (RP).

• [2] RP has raised a jurisdictional objection that Mr. Azwar was not a person protected from unfair deactivation. It argues Mr. Azwar did not work through the Uber digital platform, on a regular basis for a period of at least 6 months as required by s 536LD(c).

• [3] On 31 July 2025, the jurisdictional objection was heard by way of Determinative Conference using Microsoft Teams. Mr. Azwar attended, represented himself and gave evidence. RP was represented by Mr. Adam Liskowski, a solicitor from the firm Dentons Australia on my leave. Ms. Emilee Fairlee, the Senior Manager, Industrial Relations of RP also attended and gave evidence.

• [4] RP argued Mr. Azwar had not completed "on average, 60 hours paid work each month through or by means of a digital labour platform" under s 18(2) of the Fair Work (Digital Labour Platform Code) Instrument 2024 (the Code). He had therefore not performed "work on a regular basis" as required by s 536LD(c) of the Act.

• [5] RP filed trip logs of Mr. Azwar's trips for the period from 4 October to 6 March 2024, the date he received his preliminary deactivation notice. It transpired that Mr. Azwar had performed work through the digital platform from 12 September 2024. During the hearing, I asked RP to provide the trip logs for the period from 12 September until 4 October and those trip logs were provided.

• [6] I asked Mr. Liskowski whether the trip logs in evidence established that Mr. Azwar had completed on average paid work on 3 days each week under s 18(3) of the Code. Mr. Liskowski was not in a position to assist me.

• [7] I informed the parties my Chambers would analyse the trip log data and calculate the average days of paid work each week Mr. Azwar performed. My chambers subsequently made the calculation, and, in the interests of natural justice, I forwarded that calculation for the review and critique of the parties. I also expressed some preliminary views and invited written submissions on the meaning of s 18(3) of the Code.

• [8] Written submissions were then provided by both parties on the s 18(3) question.

• [9] Mr. Azwar performed work for Uber Eats from October 2022 until September 2024.[1]

• [10] On 12 September 2024, Mr. Azwar signed up and created an Uber Driver App account on the digital labour platform operated by RP (Uber Driver App). On the same day, Mr. Azwar entered into a Driver Partner Services Agreement (Australia) with RP and Uber Technologies Inc. (an entity registered in the United States of America) by digitally accepting the terms of the Services Agreement on the Uber Driver App.[2]

• [11] Mr. Azwar first performed work obtained through the Uber Driver App on 15 September 2024.[3]

• [12] RP suspended Mr. Azwar's Uber Drive account on 4 April 2025. From that date, Mr. Azwar was unable to perform trips on the Uber Driver App. A deactivation notice was sent to Mr. Azwar on 4 April 2025. The deactivation of Mr. Azwar's account on the Uber Driver App took effect on 11 April 2025 when his final deactivation notice was sent.

• [13] There is a dispute between the parties as to the hours Mr. Azwar was performing work for RP.

• [14] Ms. Fairlee, whose witness statement was received into evidence stated, "in the six months prior to deactivation" from 4 October 2024 until 4 April 2025, Mr. Azwar worked "an average of 36.4 hours of paid work per month".[4] Her witness statement attached fifteen pages of trip logs for the 4 October 2024 until 4 April 2025 period[5] (the first trip logs). Her witness statement attached a table entitled "Respondent's Record of Average Hours Worked by the Mr. Azwar in the 6 months prior to deactivation".[6]

• [15] During the hearing, I asked RP to provide me with the trip logs for the period from 15 September 2024, the first day he performed work for RP until 3 October 2024 the date of the first trip log. I also requested I be provided with a calculation of the average hours of paid work per month Mr. Azwar had performed from 15 September 2024 to 4 April 2024. I adjourned the proceedings for a short period to enable these documents to be provided.

• [16] RP's solicitors provided me with four pages of the trip logs for the period 15 September 2024 until 3 October 2024 which was received into evidence as R2. The solicitors also provided me with a new average based on the hours of paid work each month for the period from 15 September 2024 to 4 April 2025. According to RP, the average hours of paid work each month Mr. Azwar performed for the period from 15 September 2024 to 4 April 2025 was 33.7 hours.

• [17] The average hours of paid work each month Mr. Azwar had performed for the six months to his deactivation from 4 October to 4 April 2025 was 34.6 hours.

• [18] Mr. Azwar provided a "working hours summary" in his response to the jurisdictional objection which was received into evidence. This stated:

Approximate total online hours: 52 hours (Slightly Lower hours due to seasonal vacation period)

Approximate total online hours: 37 hours (Slightly lower for the same seasonal reasons)

Approximate total online hours: 70 hours (Work activity resumed above to normal levels)

Average Working Hours (October 2024 - March 2025) (Last 6 months record)

For the most recent 6-month period from October 2024 to March 2025, my online working hours are as follows:

Average monthly working online hours: approximately 68 hours.

• [19] In his oral evidence, Mr. Azwar accounted for the difference in hours between his calculation and the RP's was because when he was logged in to the Uber Driver's App he was available for work. He regarded the periods of "stand by" as working. He refers to this argument in his written material:

"I strongly object to the Respondent's method of calculating my working hours solely based on "trip duration" or active driving time. This approach is misleading and does not reflect the true nature of platform work. As an Uber driver-partner, my working time includes all online hours, during which I am logged into the Uber app, actively available, and waiting to accept trips. This period is essential to the business model of the platform and is analogous to on-call or standby time in traditional employment. By excluding my online hours and considering only trip duration, the Respondent has significantly underestimated my actual monthly working hours. My records clearly show that I consistently maintained over 60 hours per month on average (specifically, approximately 60.8 hours from October 2024 to March 2025), proving I worked on a regular basis ... dependency on the platform for income.

AVERAGE DAYS PAID WORK PER WEEK UNDERTAKEN BY MR. AZWAR

• [20] The analysis of the trip logs conducted by my Chambers on the average days of paid work per week that Mr. Azwar worked from 15 September 2024 until 4 April 2025 led to the production of the following table which was forwarded to the parties:

• [21] That table demonstrated that:
  • Of the 29 weeks worked from 15 September 2024 until 4 April 2025, Mr. Azwar worked 3 or more days on 23 of those weeks. The average days worked per week was 4.76 days.
  • For the period from 4 October 2024 to 4 April 2025 Mr. Azwar has worked 3 or more days on 20 of those 27 weeks and his weekly average is 4.33 days.

• [22] Both Mr. Azwar and RP "accept"[7] that Mr. Azwar "performed on average, paid work on 3 days of each week for the periods 15 September 2024 to 4 April 2025, and 4 October 2024 until 4 April 2025"

• [23] Mr. Azwar submits this establishes he has performed work on a regular basis consistent with s 18(3) of the Code.

• [24] RP do not concede this point. It argued:

"...nothing in the terms of the Code or Part 3A of the Act prescribes that an employee like worker is required to perform a least 3 trips on a day for that day to be considered as 1 of the 3 days for the purpose of assessing whether the employee like work is taken to perform paid work on a regular basis within the meaning of s 18(3) of the Code."

• [25] Section 536LD of the Act provides that a person is protected from unfair deactivation, at a time if, at that time:

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.

• [26] Section 536LJ provides the Minister must, by a legislative instrument, make a Digital Platform Deactivation Code (the Code) which deals with a series of matters including "the circumstances in which work is performed on a regular basis" (by s 536LJ(2)(a)).

• [27] On 3 December 2024, Minister Murray Watt, the Minister for Employment and Workplace Reform met his obligations under s 536LJ by publishing the Code which included section 18 headed "circumstances in which work is performed on a regular basis". It states:

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.

What is performing work through a platform on a "regular basis"?

• [28] There is a logical analogue in the Act which may inform the meaning of "regular basis" in s 536LD. That is, the assessment of the pattern of work of a casual for their service to count as a "period of employment" under s384 of the Act. That requires the casual employee to be a "regular casual employee" in s384(2)(a)(i).

• [29] In the context of s 384, "regular" is:
  • • Taken to be "construed liberally";[8]
  • • Taken to "imply some form of repetitive pattern and does not mean frequent, often, uniform or constant";[9] and
  • • constituted by frequent though unpredictable engagements.[10]

• [30] There are fundamental differences in the engagement of employee-like workers through a digital platform and casual employees. Platform workers themselves choose whether they engage and provide work. Casual employees are requested by their employer to provide work which they have the option to refuse. Despite these differences, as the word "regular" is used to assess a pattern of work in 386, authorities relevant to that term can provide a useful analogue to the meaning of "regular basis" in s 536LD.

• [31] The plain meaning of the words on a "regular basis" are not the end of the matter. The drafters of these amendments prescribed that the Minister was required by legislative instrument to "deal" with the "circumstances in which work is performed on a regular basis" [s 536LJ (1) and (2)(a)]. Given the status of a legislative instrument, the Code must be considered to assist in the interpretation of "regular basis" in 536LD.

• [32] The Code "sets out some circumstances" in which platform workers are taken to perform work on a regular basis [18(1)]. It then sets out two particular circumstances where the worker is "taken to have performed work on a regular basis":
  • Where a platform worker "completes on average, 60 hours paid work each month through the...platform [s 18(2)]; or
  • Where a platform worker "completes on average, paid work on 3 days each week through or by means of a" ...platform [s 18(3)]

• [33] The Code is not an exhaustive list of circumstances in which work is taken to be performed by a platform worker on a regular basis [s 18(6)]. It follows there is some life in the plain meaning of "regular basis" in s 536LD(c) beyond the circumstances provided for in the Code.

• [34] "Paid work" for the purposes of s 18 is a reference to the time spent undertaking the work for which the platform worker is entitled to be paid [s 18(4)]. This reinforces the definition of paid work in Dictionary in s 12 of the Act which provides that "paid work" is "work for financial reward or gain".[11]

• [35] The regularity of the work is not taken to be broken if the worker "elects in some weeks not to perform any work through or by means of the platform" [s 18(5)].

Did Mr. Azwar work an average of 60 hours per month?

• [36] It is clear from the text and context of s 18(3) of the Code that an average of 60 hours of paid work for each month is taken to be work on a "regular basis". That is, an average of 60 hours work per month can be regarded as work on a 'regular basis" for the purposes of s 536LD(c).

• [37] Having regard to the meaning of paid work in the Act, and the terms of s 18(4) of the Code, it is clear Mr. Azwar's "stand by" argument that the calculation should include all the time he was logged onto the app cannot succeed.

• [38] The calculation of hours of paid work is only during periods "for which he is entitled to be paid". Namely, on trips. I therefore accept RP's analysis that over the entire period of his activation he worked an average of 33.7 hours per month. For the period of six months to his deactivation from 4 October to 3 April 2025 he worked an average of 34.6 hours per month. It follows Mr. Azwar fell well short of the average of 60 hours per month required by s 18(2) of the Code.

Did Mr. Azwar perform work on a regular basis, and did he complete on average paid work on 3 days a week?

• [39] RP concedes Mr. Azwar "performed on average, paid work on 3 days of each week for the periods 15 September 2024 to 4 April 2025, and 4 October 2024 until 4 April 2025".

• [40] Section 18(4) provides that a reference to "time spent completing paid work" is a reference to time spent "undertaking the work for which he was entitled to be paid". Section 18(3) requires no more than paid work is completed on an average of 3 days each week. The completion of one trip is "paid work". It conforms with the definition of paid work in the Act and in 18(4). If the worker completes one trip, they are undertaking the work for which they are entitled to be paid.

• [41] Furthermore, in so far as the plain meaning of work on a "regular basis" in s 536LD(c) includes a "repetitive pattern", then undertaking an average of three trips on three separate days each week conforms with the plain English meaning of those words in s 536LD(c).

• [42] The parties agree the trip logs establish Mr. Azwar "performed on average, paid work on 3 days of each week for the periods 15 September 2024 to 4 April 2025, and 4 October 2024 until 4 April 2025".

• [43] I find Mr. Azwar performed work through the digital platform "on as regular basis over a period of at least six months" because he completed "on average, paid work on 3 days each week by means of a digital platform" as required by s 18(3) of the Code".

• [44] Mr. Azwar is a person protected from unfair deactivation under s 536LD. The jurisdictional objection of RP is dismissed. I will list the matter for a case management hearing in the near future.

[1] DCB 27 from Mr. Azwar's Formal Response to the Respondent's Jurisdictional Objection. This period is not relevant to the question in this jurisdictional objection.

[2] DCB 3 from the Witness Statement of Emilee Fairlee dated 1 July 2025 at paragraph 3. This Statement was received into evidence as "R1".

[3] Ibid Fairlee Statement at paragraph 4.

[7] This is the expression RP used in its further submissions at paragraph 3.

[8] Shortland v. Smiths Snackfood Co Ltd [2010] FWAFB 5709 [11].

[9] Yaraka Holdings Pty Ltd v. Giljevic ( 2006) 149 IR 399 [65].

[11] Section 46 of the Acts Interpretation Act 1901 prescribes that expressions used in a legislative instrument have the same meaning as in the enabling Act.

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