1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Ramoz Marbeen v Portier Pacific Pty Ltd (UDE2026/120) DEPUTY PRESIDENT MASSON MELBOURNE, 4 MAY 2026 Application for an unfair deactivation remedy – application dismissed [1] Mr Ramoz Marbeen (Applicant) made an application on 6 March 2026 under s 536LU of the Fair Work Act 2009 (the Act) alleging that he was unfairly deactivated by Portier Pacific Pty Ltd trading as Uber Eats (the Respondent) on 2 March 2026. [2] On 25 March 2026, the Respondent filed its Form F89A response in which it raised the jurisdictional objection that the Applicant had not worked through or by means of a digital platform for a period of at least 6 months, and as such was not a person protected from unfair deactivation under Part 3A-3 of the Act. [3] On the basis of the materials filed by the parties, and in the absence of any contest over facts relevant to determination of the jurisdictional objection, I decided to proceed to determine the jurisdictional objection ‘on the papers.’ Background and evidence [4] Ms Raffoo states that the Respondent assigns each Driver Partner and each trip on the Respondent’s Uber Delivery Platform (the Platform) a unique identification (ID), which allows it to track account activity and confirm who is using the platform. She further explains that a duplicate account arises where the same individual signs up on the Platform using different personal details. This means that while the same individual operates the account, the use of different identifying information makes it appear as though a separate user has joined the Platform. She further states that each Driver Partner is allowed to hold only one account on the Platform at any given time and that creating another account using different personal details is treated as dishonest and fraudulent conduct under the Respondent’s Community Guidelines.1 [5] Ms Raffoo goes on to state that her review of the Respondent’s business records confirmed that between 19 November 2022 and 26 February 2026, the Applicant created duplicate accounts on the Platform. The first of these accounts was established by the Applicant on 19 November 2022 using the email address xxxxxxxxxxxxxxxxx 2 (Account 1) upon establishing which, the Applicant entered into a Delivery Partner Services Agreement [2026] FWC 1597 DECISION [2026] FWC 1597 2 (Australia) (the Services Agreement).3 According to Ms Raffoo, the Applicant commenced performing work on the Platform under Account 1 on 9 December 2022 and completed 558 orders before it was deactivated by the Respondent on 27 February 2026 when the Respondent identified it as a duplicate account. She further states that the last recorded delivery on the Platform using Account 1 was on 21 January 2023.4 [6] Ms Raffoo further states that the Applicant established a duplicate account on a separate digital labour platform operated by the Respondent on 26 February 2026 using the email address xxxxxxxxxxxxxxxxx (Account 2).5 The Applicant did not perform any work on Account 2 before it was deactivated on 27 February 2026. The deactivation of Account 2 followed an assessment by the Respondent of documents uploaded by the Applicant. That assessment identified that information contained in the uploaded documents did not match the records when validated against a trusted external source (for example, official government or regulator website or database).6 [7] Ms Raffoo explains that in the course of assessing Account 2’s documentation, the Respondent identified that the Applicant held another account on the Platform, being Account 1. As earlier stated by Ms Raffoo, the Respondent expressly prohibits the creation of multiple accounts, therefore Account 1 was deactivated on 27 February 2026, which the Applicant was notified of on 27 February 2026 in a Final Deactivation Notice.7 In the six months prior to deactivation of Account 1, the Applicant did not complete any work on the Platform, with the last recorded trip on Account 1 being 21 January 2023.8 [8] The Applicant states that he undertook work on the Platform in 2023 but that after this period his account was restricted, and he was unable to continue working. He says he later became aware that there was an outstanding balance payable by him on his account, which led him to engage with the Respondent to arrange for the account’s reopening so that he could pay the outstanding balance. He further states that the Respondent ‘reopened’ his account, following which he paid the balance of $59.94 and then proceeded to complete the necessary steps to resume working for the Respondent. He says that the account was permanently deactivated shortly after this and that he was not given an opportunity to continue working. He denies intentionally breaching the Respondent’s policies or submitting any fraudulent documents. He does not challenge the Respondent’s evidence that he did not do any work on the Platform in the six months prior to deactivation of Account 1.9 Consideration [9] Section 536LU(1) permits a person who has been deactivated to apply to the Commission, for an order under Division 4 granting a remedy. In dealing with an application, s 536LW identifies preliminary matters that must be considered by the Commission. They are as follows; “The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: [2026] FWC 1597 3 (a) whether the application was made within the period required in subsection 536LU(3); (b) whether the person was protected from unfair deactivation or unfair termination, as the case requires; (c) whether the deactivation or termination was consistent with the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.” [10] Section 536LD defines when a person is protected from unfair deactivation as follows; “536LD When a person is protected from unfair deactivation 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: (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.” [11] The Respondent’s jurisdictional objection in this matter concerns s 536LD(c) of the Act. [12] As identified by Saunder DP in De Araujo Mello,10 s 536LD(c) of the Act requires a point-in-time inquiry with the question being whether, at the time the person is deactivated, the “person has been performing work … on a regular basis for a period of at least 6 months”. The Deputy President went on to reason that “the provision is not concerned with whether the person has, at any point in the past, completed a six-month period of work. In contrast, paragraph 382(a) of the Act, which addresses protection from unfair dismissal, requires that the person has, at the time of their dismissal, “completed a period of employment … of at least the minimum employment period”. It is also well established on the line of cases decided on the construction and effect of s 536LD(c) that the focus is on the period of work immediately preceding the deactivation, rather than any earlier period. This was helpfully explained by Deputy President Colman in Jibril11 where the Deputy President reasoned as follows: “[5] Section 536LD(c) requires that a person has been performing work on the relevant platform for a period of at least 6 months, not for a cumulative total of 6 months over [2026] FWC 1597 4 time. It is also clear that the section is concerned with the person’s most recent period of work, which ended with deactivation. This is evident from the section’s use of the present perfect continuous tense (‘has been performing work’), which connotes a connection between the past and the present. Where there has been a previous episode of work on the relevant platform, it is necessary to determine whether this belongs to the same period that ended with the person’s deactivation. In this case, Mr Jabril’s earlier work on the Uber driver platform occurred years ago, from 2017 to 2019. Clearly, this was a different, much earlier period of work. It did not form part of the same period that ended with Mr Jabril’s deactivation on 12 March 2025.” [13] In calculating the period of work undertaken by an employee-like worker for the purpose of s 536LD9(c), it is also necessary to exclude periods of work undertaken prior to 26 August 2024. That is because of the effect of s 124 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 which provides: “Division 2 – Transitional provisions 124 Unfair deactivation and unfair termination … (2) 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.” [14] Clause 123 of Part 18 of Schedule 1 to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 defines “commencement” as “the commencement of item 238 of Part 16 of Schedule 1 to the amending Act”. Pursuant to s 2(1) of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, item 238 of Part 16 of Schedule 1 commenced operation on 26 August 2024. [15] It follows from the foregoing that the work performed by the Applicant on the Platform prior to 26 August 2024 is not to taken into account for the purpose of assessing whether he had been “performing work … on a regular basis for a period of at least 6 months” prior to his deactivation. [16] The meaning of the expression “performing work on a regular basis” in paragraph 536LD(c) is not defined in the Act but, as identified by Saunders DP at [10] in De Araujo Mello, the expression is taken to imply some form of repetitive pattern, an interpretation established by a long line of authority.12 The Digital Platform Deactivation Code (the Code) and the supporting Explanatory Statement issued by the authority of the Minister for Employment and Workplace Relations in relation to the Code, both provide guidance on the meaning of the expression. There have also been a significant number of recent cases before the Commission that have considered the meaning of the expression and applied it to the relevant facts of those cases. [17] The Applicant has raised that the alleged reactivation and subsequent deactivation of his account denied him an opportunity to undertake any work on the Platform. He argues that this [2026] FWC 1597 5 alleged unfairness bears upon the jurisdictional matter before me. It does not for the reasons that follow below. The Applicant has not raised any matters relevant to the jurisdictional matter before me. [18] It is unnecessary for me to traverse the Code, the supporting Explanatory Statement or the facts of the various decided cases dealing with s 536LD(c). That is because the present case does not require me to consider the Applicant’s pattern of work to determine whether it constitutes a ‘repetitive pattern.’ That is for the simple reason that the Applicant did not work at all in the six-month period prior to deactivation. In fact, as the unchallenged evidence reveals, his last recorded activity on Account 1 was on 21 January 2023. There was no work performed by the Applicant after 26 August 2024 that can be taken into account. As such, I am not satisfied that as of 27 February 2026, the Applicant had been performing work on the Platform on a regular basis for a period of at least six months. Conclusion [19] The Applicant is not protected from unfair deactivation because, as at the time of his deactivation, he had not been performing work on the Respondent’s Platform on a regular basis for a period of at least six months. It follows that his application for an unfair deactivation remedy must be dismissed. [20] An order giving effect to this decision will be issued concurrently with this decision. DEPUTY PRESIDENT Determined on the papers Printed by authority of the Commonwealth Government Printer <PR799674> 1 Exhibit R1, Witness Statement of Jessica Raffoo, dated 14 April 2026, at [4]-[5] 2 Exhibit R1, Annexure A 3 Exhibit R1, at [6]-[7], Annexure B & C 4 Exhibit R1, at [11]-[13] 5 Exhibit R1, at [14], Annexure E 6 Exhibit A1, at [14]-[16] [2026] FWC 1597 6 7 Exhibit R1, at [17] & [21] 8 Exhibit R1, at [18]-[19], Annexure F & G 9 Exhibit A1, Witness Statement of Ramoz Marbeen, at [1]-[10] 10 Application by Joao Pedro De Araujo Mello [2025] FWC 1628 at [17] 11 [2025] FWC 1289, at [5] 12 Yaraka Holdings Pty Ltd v Giljevic (2006) 149 IR 339 at [65]-[69] & [89]-[91]; Chandler v Bed Bath N’ Table Pty Ltd [2020] FWCFB 306 at [11]-[18]; Pang Enterprises Pty Ltd ATF Pang Family Trust v Sawtell [2006] FWCFB 4438 at [15-[17]; Bronze Hospitality Pty Ltd v Hansson [2019] FWCFB 1099 at [24]; Roche v Trustee for the Dolphin Unit Trust [2024] FWC 606 at [17]-[19]; WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [150]-[152]