Deactivation Disputes Enter a New Era: Case Law Begins to Shape Gig Worker Protections

With the introduction of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, new protections for gig economy workers have been introduced to the Fair Work Act 2009 (FW Act), allowing certain digital platform workers to challenge ‘unfair deactivation’. These reforms, which came into effect earlier this year, aim to ensure that workers relying on digital platforms are not unjustly removed from such apps.

To be protected under the new unfair deactivation provisions, a worker must meet specific eligibility requirements. These include:

• Performing paid work via a digital platform;
• Working on a regular basis for at least six months, starting from 26 August 2024;
• Being deactivated on or after 26 February 2025;
• Earning less than the contractor high income threshold (currently $183,100); and
• Meeting at least two of the following conditions:
  • Having low bargaining power;
  • Receiving low pay (comparable to employees);
  • Having low control over how, when, or where the work is performed.

Workers who satisfy these conditions are considered “employee-like” and are entitled to protections under this division. As such, digital platforms, under the Digital Labour Platform Deactivation Code (the Code), must now follow fair procedures before deactivating a worker’s access. Under this division, a platform provider must have a valid reason prior to deactivating a worker, whilst also giving the worker a ‘deactivation warning’  and an opportunity to respond to any such concerns prior to deactivation. Deactivations due to serious misconduct may be exempt from these requirements, but failing to follow the Code can lead to legal consequences, such as reinstatement orders or costs for lost earnings.

Cases under this new division are slowly starting to come out, which provide guidance on how the Fair Work Commission (FWC) will determine such matters. Most recently in the case of Musharaf Waheed v Rasier Pacific Pty Ltd[1], the FWC determined that unfair deactivation cases will largely follow unfair dismissal cases due to the similarity in the language of the provisions.

Two cases before the FWC earlier this year tested how these provisions may be applied. In Mian Abu Bakar v Rasier Pacific Pty Ltd[2], the FWC examined whether Mr Bakar, who had worked as both an Uber Eats delivery driver and an Uber rideshare driver, qualified for protection. Uber argued that he did not meet the six-month requirement, since his work was split across two roles and contracting entities. However, FWC ruled that Mr Bakar’s continuous engagement with the Uber platform was most relevant, not the specific nature of the work. As he had worked regularly from November 2024 to May 2025, the Commission found that he met the criteria and was protected from unfair deactivation. The FWC later revoked this decision at the request of the parties due to uncertainty about who exactly was the operator of the Uber App in Australia, and whether it was the US owned entity or the named respondent[3]. The uncertainty affected whether the respondent was in fact the digital labour platform operator and, consequently, whether any remedy could be imposed on it.

A different outcome arose in Priyansh Singh Panwar v Portier Pacific Pty Ltd[4]. Mr Panwar also sought protection under the new provisions, claiming he had worked regularly through the Uber Eats platform. However, the FWC found that a nine-week gap in his activity broke the continuity required under the FW Act. Moreover, while Mr Panwar had logged many “online” hours, the FWC clarified that only time actively spent delivering counted as work. As he failed to meet the six-month continuous work requirement, his claim was dismissed.

Finally, in the case of Hasnain Ali v Portier Pacific Pty Ltd [5] the FWC upheld the deactivation of an Uber delivery driver whose customer satisfaction rating dropped by the 85% minimum requirement. The FWC noted that the respondent had given notice, warnings, a preliminary deactivation notice, and a final deactivation notice in accordance with the Code, and therefore the deactivation was not unfair in all the circumstances.

These cases demonstrate that FWC’s approach in this relatively new area. For digital platforms, these reforms represent a shift toward greater accountability. Deactivation is no longer a private business decision; it is now subject to oversight and legal standards.

HR Legal are able to advise on obligations in respect to gig workers for employers or those operating digital platforms. Contact us today for assistance.

[1] [2025] FWC 2787

[2] [2025] FWC 1874

[3] [2025] FWC 2278

[4] [2025] FWC 1578

[5] [2025] FWC 3243

Share:

This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.