1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy MD Redyan Ahmed v Portier Pacific Pty Ltd (UDE2026/70) COMMISSIONER MCKINNON SYDNEY, 21 APRIL 2026 Application for an unfair deactivation remedy – whether protected from unfair deactivation – not performing work on a regular basis for at least 6 months – application dismissed [1] On 10 February 2026, Mr MD Redyan Ahmed applied in time under s.536LU of the Fair Work Act 2009 (the Act) for an unfair deactivation remedy from Portier Pacific Pty Ltd trading as Uber. Section 536LD of the Act provides that a person is protected from unfair deactivation at a time if, at that time: (a) the person is an employee-like worker, and (b) the person performs work: (i) through or by means of a digital labour platform operated by a digital labour platform operator, or (ii) 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. [2] The Commission may only order a person’s reactivation if it is satisfied that the person was protected from unfair deactivation at the time of being deactivated.1 There is no dispute that Mr Ahmed was an employee-like worker, that he performed work through Uber’s delivery platform under a services contract arranged by Uber, and that his access to the Uber platform was suspended on 27 January 2026 and terminated in February 2026. Mr Ahmed’s application puts the date of termination as 7 February 2026, but the final deactivation notice provided by Uber confirms the date of termination as 6 February 2026. [3] The question is whether on 6 February 2026, Mr Ahmed had been performing work through the Uber platform on a regular basis for a period of at least 6 months such that I can be satisfied that he was protected from unfair deactivation at that time. I answer the question ‘No’. [2026] FWC 1360 DECISION [2025] FWC 1360 2 Work history [4] Mr Ahmed registered on the Uber platform and accepted the Uber Eats – Delivery Person Agreement (Australia) on 28 January 2025. He performed his first delivery on the platform on 1 February 2025. [5] Uber has provided data with the dates and times that Mr Ahmed completed trips on the platform. Mr Ahmed does not dispute the accuracy of Uber’s data. Together with the trip log data, Uber has provided two summary tables of Mr Ahmed’s average hours worked per month and average days worked in each week. It has not provided detailed information about how it has arrived at its calculations. [6] In its initial submissions, Uber calculated that in the 6-month period immediately preceding 6 February 2026, Mr Ahmed worked: 1. an average of 16.3 hours per month, and 2. an average of 2.31 days per week. [7] These figures were subsequently revised upwards to an average of 21.72 hours per month and 2.43 days respectively on the basis that the 6-month period should be counted from 27 July 2025 to 27 January 2026. Uber submits that this is the relevant 6-month period because Mr Ahmed’s access to the Uber platform was suspended on 27 January 2026 and from this date, he was no longer able to perform any work on the platform. This gives rise to a question about what the relevant 6-month period is, given that the meaning of ‘deactivation’ in s.536LG includes both the suspension and termination of a person’s access to digital platform work. [8] There is no authority directly on point, but for the most part, decisions of the Commission have proceeded on the basis that the relevant deactivation date is the date identified in the application. In Mr Ahmed’s case, that is the final deactivation date. I have proceeded on the same basis, but in case it is necessary to do so, I have also considered whether the position would be any different if the 6-month period were taken not to include the period between the suspension and termination of Mr Ahmed’s account access when no work was performed. [9] Returning to the average hours and days calculated by Uber above, I agree with Uber’s revised calculation in relation to the average number of days worked per week if the relevant 6-month period starts on 27 July 2025. If the relevant period is counted back from the date of final deactivation, it is instead 6 August 2025 to 6 February 2026, and the average days worked in this period is 2.27 days per week. [10] There is an apparent miscalculation of the hours per month worked by Mr Ahmed in the figures provided by Uber. On Uber’s calculations, Mr Ahmed worked an average of: • 16.3 hours per month, if the 6-month period is counted from 6 August 2025; and • 21.72 hours per month, if the 6-month period is counted 27 July 2025. [11] On my own analysis of the trip log data, the actual monthly averages are 7.81 hours per month and 8.37 hours per month respectively. The discrepancy can be attributed in part to the fact that Uber pays its drivers by reference to trip performed rather than time worked. In Mr Ahned’s case, several trips overlap in time, presumably because he collected multiple orders at or around the same time before delivering individually to customers. [2026] FWC 1360 3 [12] This goes some way, but does not entirely explain, the difference between Uber’s average monthly hours calculations and my own calculations derived directly from the trip logs. According to Uber, if the earlier time window is used instead of the later one, the monthly average hours worked increases by 5.42 hours per month (21.72-16.3). But the change in timeframe only adds a total of 3.35 hours for the entire 6-month period, or an average of 0.56 hours per month (or 0.67 hours per month not excluding time worked but counted twice because of overlapping trips performed by Mr Ahmed). In the absence of any explanation for the discrepancy, I have proceeded on the basis that the trip logs are the most reliable source of data for this purpose. [13] The data shows that in each of the respective 6-month periods, the amount of work performed by Mr Ahmed was below what the Digital Labour Platform Deactivation Code2 (Code) deems to be work on a regular basis (3 days per week and 60 hours per month respectively), although I note that the Code is not exhaustive in this regard. [14] Mr Ahmed says if a 5-week break in service from 1 December 2025 to 8 January 2026 is excluded from the count, his average days worked meets the description of at least 3 days per week. The submission overlooks an additional week not worked in November 2025, but is mathematically correct in one of the two available scenarios: that is, where the total number of days worked over the period from 27 July 2025 to 27 January 2026 is divided by 21 weeks and 2 days (instead of the 26 weeks and 2 days used by Uber). This gives an average number of days worked of 3.01 days per week. If the same calculation is applied to the period from 6 August 2025 to 6 February 2026, the result is an average of 2.8 days worked per week. But regardless of the calculations, the submission cannot be accepted. The assessment of whether work performed was on a regular basis for a period of at least 6 months for the purposes of s.536LD is directed to a single, whole 6-month period inclusive of any breaks in work performed. [15] Mr Ahmed also submits that his monthly and weekly average figures should be calculated to include the total duration he was ‘actively seeking and waiting for trip requests’, rather than only the time he was actively completing trips. Again, the submission cannot be accepted. Under section 18 of the Code, time spent waiting or between tasks is not counted as time worked: ‘(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’ [16] Mr Ahmed’s trip history is set out in the Annexure to this decision. On my analysis, the trip history does not reveal a discernible repetitive pattern of work for a period of at least 6 months. Mr Ahmed mostly worked on at least 1 day of each week and performed at least 1 trip on each day that he worked, except for 1 week in November 2025 when no work was performed and a 5-week period over December and early January when he was overseas. The days that Mr Ahmed worked, and the times, and the duration of work, were irregular. The number of days worked each week varied. His shortest day of work was 6 minutes, and his longest day of work was 2 hours and 24 minutes. Mr Ahmed worked mostly in the evening, but sometimes he worked in the middle of the day or later in the night. There was no regular pattern of days, or [2025] FWC 1360 4 times, or duration for at least 6 months although there were times during the relevant periods when there was more consistency than at other times. As Mr Ahmed confirmed during the hearing, he worked when it suited him alongside his university studies and other commitments. Conclusion [17] On the evidence, I am not satisfied that Mr Ahmed performed work on the Uber platform on a regular basis for at least 6 months either preceding 6 February 2026 or 27 January 2026. For most of the respective 6-month periods, his work pattern is better described as irregular, or ad hoc. It follows that I am not satisfied that Mr Ahmed was protected from unfair deactivation at the relevant time. [18] The application is dismissed. COMMISSIONER Appearances: Mr MD R Ahmed on his own behalf. Mr J Clarke of Dentons Australia for the Respondent Hearing details: 2026. Sydney by video using Microsoft Teams: April 8. Printed by authority of the Commonwealth Government Printer <PR798795> 5 Annexure - Trip History – MD R Ahmed 27 July 2025 – 6 February 2026 Week Week start Date Total days Days worked Su M T W Th F Sa Start time No. of trips Mins /day Mins /week Hrs worked /week 1 27-Jul-25 27-Jul-25 3 Sun 6.08pm 6 50 29-Jul-25 Tues 7.26pm 5 39 31-Jul-25 Thurs 9.12pm 3 30 119 1.98 2 03-Aug-25 3-Aug-25 4 Sun 6.51pm 9 82 7-Aug-25 Thurs 6.45pm 2 26 8-Aug-25 Fri 6.08pm 12 82 9-Aug-25 Sat 5.49pm 19 144 334 5.57 3 10-Aug-25 13-Aug-25 3 Wed 7.38pm 1 19 14-Aug-25 Thurs 5.55pm 18 128 16-Aug-25 Sat 9.01pm 1 11 158 2.63 4 17-Aug-25 17-Aug-25 1 Sun 8.18pm 1 18 18 0.30 5 24-Aug-25 24-Aug-25 5 Sun 7.05pm 6 63 25-Aug-25 Mon 14 67 27-Aug-25 Wed 6.10pm 12 81 29-Aug-25 Fri 7.27pm 4 49 30-Aug-25 Sat 7.05pm 4 18 278 4.63 6 31-Aug-25 3-Sep-25 3 Wed 5.14pm 19 115 4-Sep-25 Thurs 10.11pm 1 11 5-Sep-25 Fri 6.58pm 9 64 190 3.17 7 07-Sep-25 9-Sep-25 3 Tues 5.31pm 11 74 11-Sep-25 Thurs 7.19pm 5 46 12-Sep-25 Fri 6.47pm 6 59 179 2.98 [2026] FWC 1360 6 8 14-Sep-25 14-Sep-26 3 Sun 8.22pm 2 13 18-Sep-25 Thurs 7.31pm 3 21 19-Sep-25 Fri 7.27pm 6 43 77 1.28 9 21-Sep-25 26-Sep-25 2 Fri 6.58pm 6 49 27-Sep-25 Sat 6.53pm 9 75 124 2.07 10 28-Sep-25 2-Oct-25 1 Thurs 6.33pm 4 29 29 0.48 11 05-Oct-25 6-Oct-25 4 Mon 5.28pm 9 69 7-Oct-25 Tues 7.32pm 3 43 10-Oct-25 Fri 9.00pm 3 16 11-Oct-25 Sat 7.47pm 5 45 173 2.88 12 12-Oct-25 12-Oct-25 2 Sun 1.58pm 18 136 15-Oct-25 Wed 8.21pm 1 6 142 2.37 13 19-Oct-25 19-Oct-25 5 Sun 7.39pm 4 52 20-Oct-25 Mon 5.59pm 2 13 22-Oct-25 Wed 8.30pm 1 8 23-Oct-25 Thurs 7.41pm 3 48 24-Oct-25 Fri 6.27pm 13 73 194 3.23 14 26-Oct-25 30-Oct-25 3 Thurs 7.31pm 3 28 31-Oct-25 Fri 6.34pm 1 7 1-Nov-25 Sat 7.03pm 5 45 80 1.33 15 02-Nov-25 2-Nov-25 3 Sun 7.07pm 6 68 7-Nov-25 Fri 7.15pm 6 60 8-Nov-25 Sat 7.26pm 6 49 177 2.95 16 09-Nov-25 14-Nov-25 2 Fri 7.14pm 8 62 15-Nov-25 Sat 9.19pm 2 35 97 1.62 17 16-Nov-25 0 0 0 0 0.00 [2026] FWC 1360 7 18 23-Nov-25 23-Nov-25 3 Sun 12.13pm 6 48 27-Nov-25 Thurs 7.36pm 5 44 29-Nov-25 Sat 1.17pm 6 53 145 2.42 19 30-Nov-25 30-Nov-25 1 Sun 7.09pm 3 36 36 0.60 20 07-Dec-25 0 0 0 0 0 0.00 21 14-Dec-25 0 0 0 0 0 0.00 22 21-Dec-25 0 0 0 0 0 0.00 23 28-Dec-25 0 0 0 0 0 0.00 24 04-Jan-26 9-Jan-26 2 Fri 8.45pm 1 7 10-Jan-26 Sat 7.17pm 7 83 90 1.50 25 11-Jan-26 11-Jan-26 4 Sun 10.35am 3 25 13-Jan-26 Tues 7.57pm 1 20 15-Jan-26 Thurs 7.18pm 3 19 17-Jan-26 Sat 1.00pm 1 27 91 1.52 26 18-Jan-26 18-Jan-26 4 Sun 7.00pm 5 59 21-Jan-26 Wed 8.37pm 2 41 22-Jan-26 Thurs 8.49pm 2 26 24-Jan-26 Sat 8.43pm 3 40 166 2.77 27 25-Jan-26 25-Jan-26 3 Sun 8.47pm 2 22 26-Jan-26 Mon 4.04pm 5 77 27-Jan-26 Tues 8.39pm 2 16 115 1.92 28 01-Feb-26 2-Feb-26 0 *denotes days worked in the week starting on the aligned date [2026] FWC 1360 8 1 Act, s.536LP 2 Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024