Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Application for an unfair deactivation remedy - applicant did not perform work for at least 6 months - not a person protected from unfair deactivation - application dismissed

• [1] Mr Umer Shehzad has applied to the Commission for an unfair deactivation remedy from Portier Pacific Pty Ltd t/as Uber Eats (Uber) under s.536LU of the Fair Work Act 2009 (the Act). There is no dispute that Mr Shehzad has been deactivated from the Uber Eats delivery platform (the Uber platform), within the meaning of s.536LG of the Act. Although Uber submits that the deactivation occurred on 3 June 2025 when Mr Shehzad's access was formally deactivated, I consider the deactivation to have taken effect on 22 May 2025 when Mr Shehzad's access to the Uber platform was suspended. From this time, Mr Shehzad was no longer able to perform work on the Uber platform.

• [2] Before deciding the merits of the matter, three preliminary matters must be decided. The first is whether the application was made in time. The second is whether Mr Shehzad was a person protected from unfair deactivation. The third is whether the deactivation was consistent with the Digital Labour Platform Deactivation Code (the Deactivation Code).[1]

• [3] The application was made within 21 days of deactivation as required by s.536LU(3). Although the application was made in time and Mr Shehzad was entitled to apply to the Commission as a person who has been deactivated, Uber submits that Mr Shehzad is not a person protected from unfair deactivation. This is because he did not perform work through the Uber platform for at least 6 months. Separately, Uber submits that the work Mr Shehzad did perform was not work "on a regular basis". It refers in this regard to section 18 of the Deactivation Code.

• [4] This decision is about the whether Mr Shehzad is a person protected from unfair deactivation. I find the answer to be 'No' because Mr Shehzad did not perform work through or by means of the Uber platform for at least 6 months. It is not necessary to decide whether Mr Shehzad performed work on a regular basis during this period. These are my reasons.

Was Mr Shehzad protected from unfair deactivation?

• [5] Under s.536LD of the Act, a person is protected from unfair deactivation if, at the relevant time, they:
  1. are an employee-like worker, and
  2. perform work either directly or under a services contract arranged or facilitated through or by means of a digital labour platform operated by a digital labour platform operator, and
  3. have been performing that work under contract on a regular basis for a period of at least 6 months.

• [6] Mr Shehzad registered for work on the Uber platform on 25 June 2024 by entering into a services contract with Uber titled 'Uber Eats - Delivery Person Agreement Australia'. It appears that at the time, he was living in Wollongong and the jobs he was being offered through the Uber platform were too far away for him to accept. Mr Shehzad's first trip on the Uber platform was completed some 4.5 months later on 11 December 2024. From 11 December 2024 until 20 May 2025, Mr Shehzad worked an average of 2.3 days per week (with the actual days worked ranging from 0 to 5 over the period). He was the only person performing work under the services contract with Uber and can be taken to have been an 'employee-like worker' for the purposes of s.536LD.

• [7] Mr Shehzad's account was suspended by Uber on 22 May 2025. He did not perform any work through or by means of the Uber platform after that time. Mr Shehzad's account was formally deactivated on 3 June 2025 and his application to the Commission was made on 5 June 2025.

• [8] On the facts, the period during which Mr Shezhad performed work on the Uber platform was 5 months, 1 week and 4 days. This does not (and cannot) include the time between entering into the services contract with Uber on 25 June 2024 and the commencement of work on 11 December 2024. During this period, there was no performance of work by Mr Shehzad under his contract with Uber.

• [9] Mr Shehzad meets only two of the three conditions for protection from unfair deactivation as summarised above. At the time he was deactivated from the Uber platform, Mr Shehzad was an employee-like worker (s.536LD(a)). He was performing work through the Uber platform under a services contract with Uber (s.536LD(b)). However, Mr Shehzad had not been performing work on the Uber platform for a period of at least 6 months (s.536LD(c)). For this reason, he is not protected from unfair deactivation.

In the circumstances, I am not satisfied that the conditions for making an order to reactivate Mr Shehzad to the Uber platform are met. The application for an unfair deactivation remedy is dismissed.

[1] Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024

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