Mr Mian Abu Bakar v Rasier Pacific Pty Ltd Summary

[2025] FWC 2278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Mr Mian Abu Bakar
v

Rasier Pacific Pty Ltd

(UDE2025/59)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 5 AUGUST 2025

Application for an unfair deactivation remedy – revocation of earlier decision re whether applicant was protected from unfair deactivation – applicant initially performed Uber Eats work and then performed work as an Uber Driver Partner – requirement to have been performing work through or by means of a digital labour platform on a regular basis for a period of at least six months.

By consent, the parties request that I revoke my earlier decision in which I concluded that Mr Bakar had been, at the time of his deactivation on 2 May 2025, performing work through or by means of the Uber App, being a digital labour platform, on a regular basis for a period of at least six months (s 536LD(c) of the Fair Work Act 2009 (Cth)).[1] The resolution of this issue in favour of Mr Bakar led to my finding that Mr Bakar was a person protected from unfair deactivation at the time he was deactivated from the Uber App on 2 May 2025.

As the parties have consented to the revocation of my earlier decision, I will provide only brief reasons for exercising my discretion to do so.

My earlier decision was based on evidence given by Mr Bakar and unchallenged evidence given by Ms Laura Tierney, Industrial Relations Lead at Uber Australia Pty Ltd, including that the Uber App is the only digital labour platform through which a person may perform work as an Uber Eats delivery driver or as an Uber Driver Partner.[2]

I also accepted Ms Tierney’s evidence that the operator of the Uber App is Uber Technologies Incorporated, an entity registered in the United States of America. Notwithstanding the evidence given by Ms Tierney about this matter, there is now a suggestion that the respondent may be the digital labour platform operator, not Uber Technologies, which is not a party to these proceedings and has not been served with application or any material filed in the proceedings. Further, if Uber Technologies is the operator of the Uber App in Australia, there are concerns about the extent to which any remedy could be imposed on the respondent.

Mr Bakar and the respondent have reached an agreement to settle these proceedings. Mr Bakar has filed a notice of discontinuance.

For the reasons explained above, I consider it appropriate to exercise my discretion under s 603 of the Act to revoke my earlier decision. The question of whether an applicant who has performed some work as an Uber Eats delivery driver and other work as an Uber Driver Partner meets the requirement of having performed work through or by means of a 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 six months is open for determination in other proceedings, based on the evidence adduced in those proceedings.

Orders will be issued in conjunction with this decision (PR790386).

The hearing of the revocation application scheduled to take place at 10am on 7 August 2025 is vacated.

DEPUTY PRESIDENT

[1] [2025] FWC 1874

[2] Ibid at [20]

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Mr Mian Abu Bakar versus Rasier Pacific Pty Ltd involved an application for an unfair deactivation remedy under the Fair Work Act 2009. Mr Bakar had been deactivated from the Uber App, which operates as a digital labour platform, and he sought protection under the Act. The initial decision in the case found that Mr Bakar was protected from unfair deactivation as he had performed work through the Uber App on a regular basis for at least six months. However, this decision was subsequently revoked by consent of both parties. The revocation was based on new evidence suggesting that the respondent, Rasier Pacific, might be the operator of the Uber App in Australia, rather than Uber Technologies, which was not a party to the proceedings. This raised concerns about the enforceability of any remedy against the respondent.

The key legal issue in this case was whether Mr Bakar met the criteria for protection from unfair deactivation, specifically the requirement to have performed work through a digital labour platform on a regular basis for a period of at least six months. The initial finding was that Mr Bakar had met this requirement, but the revocation of this decision left the issue open for future determination. The Deputy President of the Fair Work Commission exercised their discretion to revoke the earlier decision due to the new evidence and the consent of the parties. The revocation was made to allow the issue of whether Mr Bakar met the criteria to be determined in future proceedings based on the evidence presented therein.

The Deputy President concluded that it was appropriate to revoke the earlier decision because of the new evidence suggesting that Rasier Pacific, not Uber Technologies, might be the operator of the Uber App in Australia. This raised concerns about the enforceability of any remedy against the respondent. The Deputy President noted that the question of whether Mr Bakar met the criteria for protection from unfair deactivation was now open for determination in other proceedings, based on the evidence adduced in those proceedings. As the parties had reached an agreement to settle the current proceedings, Mr Bakar had filed a notice of discontinuance, and the scheduled hearing for the revocation application was vacated.

Mr Mian Abu Bakar v Rasier Pacific Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established