1 Fair Work Act 2009 s.536LU - Application for an unfair deactivation remedy Ibrahim Jibril (UDE2025/31) DEPUTY PRESIDENT COLMAN MELBOURNE, 9 MAY 2025 Application under s 536LU – six month requirement not met – application dismissed [1] Ibrahim Jibril has made an application under s 536LU of the Fair Work Act 2009 (Act) in which he contends that Uber Australia Pty Ltd unfairly deactivated him from the Uber driver digital labour platform. He seeks an order from the Commission that Uber Australia reactivate him under s 536LP. Rasier Pacific Pty Ltd submits that it is the proper respondent to the application, because it is the entity that operates the Uber driver digital platform. I find that this is the case. Rasier Pacific objects to the application on the ground that Mr Jibril was not a person ‘protected from unfair deactivation’ as defined in s 536LD of the Act, because he had not been performing work through or by means of the platform, or under a contract or contracts facilitated through the platform, for a period of at least 6 months. [2] Rasier Pacific submitted that it entered into a services agreement with Mr Jabril on 16 November 2024, and that Mr Jabril commenced performing work as a driver partner through the Uber driver platform on 26 November 2024. On 12 March 2025, Rasier Pacific deactivated Mr Jibril’s account. Rasier Pacific said that, as at the deactivation date, Mr Jabril had been performing work through or by means of its platform for three and a half months, well short of the six-month period required by s 536LD(c). [3] Mr Jabril agreed that he had been performing work on or through the Uber driver platform for 3 and a half months, but said that from 2017 to 2019 he had worked on the Uber driver platform in both Melbourne and Sydney, and had various accounts, including for Uber- X, Uber Black and Uber Eats. He said that, when this earlier period of Uber work was added to his recent work, he had a total of well over 6 months of work. [4] Section 536LD states: 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: [2025] FWC 1289 DECISION [2025] FWC 1289 2 (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. [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 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. [6] Mr Jabril was not a person protected from unfair deactivation because he had not been performing work through or by means of the Uber driver platform, or under a contract or contracts facilitated by the platform, for a period of at least 6 months. The requirement of s 536LD(c) is not met. His application is therefore dismissed. DEPUTY PRESIDENT Hearing details: 2025 Melbourne (by telephone) 9 May Printed by authority of the Commonwealth Government Printer <PR787162>