Pathmanathan Velusami v Rasier Pacific Pty Ltd

[2025] FWC 2942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Pathmanathan Velusami
v

Rasier Pacific Pty Ltd

(UDE2025/211)

DEPUTY PRESIDENT MASSON

MELBOURNE, 2 OCTOBER 2025

Application for an unfair deactivation remedy

Mr Pathmanathan Velusami (Applicant) has made an application under s 536LU of the Fair Work Act 2009 (the Act) alleging that he was unfairly deactivated by Rasier Pacific Pty Ltd trading as Uber.

On 23 September 2025 the Respondent filed its Form F89A response in which it raised the following jurisdictional objections. The application was made outside the 21-day filing period, the Applicant had not worked through or by means of a digital platform for a period of at least 6 months, and the Applicant was not a person protected from unfair deactivation under Part 3A-3 of the Act.

The matter was allocated to my Chambers on 23 September 2025 for determination. The Applicant identified the date of his deactivation as 28 April 2024. That date preceded the commencement date of Part 3A-3, that of 26 August 2024. By reason of the relevant transitional provisions, Part 3A-3 applies only to deactivations that occur after the commencement date. As such, it appears that the Applicant was not a person protected from unfair deactivation under Part 3A-3 of the Act. On 25 September 2025, correspondence was sent to the Applicant by my Chambers raising the threshold issue of whether Part 3A-3 applied to his deactivation and inviting submissions from him on that point. The Applicant was invited to respond by 5.00pm Wednesday 1 October 2025. The Applicant did not respond to the correspondence.

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:

(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.”

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.”

Item 124(1) of Schedule 1 to the Act relevantly states that;

“(1) Part 3A-3 Unfair deactivation or unfair termination of regulated workers applies to a deactivation or termination that occurs after commencement.”

Part 3A-3 was included in the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) and commenced operation on 26 August 2024.

It follows from the above that as the deactivation of the Applicant on 28 April 2024 preceded the date of commencement of Part 3A-3, he is not a person protected from unfair deactivation. His application must therefore be dismissed for want of jurisdiction.

Conclusion

For the reasons outlined above, I am satisfied that the Applicant is not a person protected from unfair deactivation. His application must be consequently dismissed. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Pathmanathan Velusami, filed an application for an unfair deactivation remedy against Rasier Pacific Pty Ltd, trading as Uber, under section 536LU of the Fair Work Act 2009. The dispute centres on Mr Velusami's claim that his deactivation from the Uber platform was unfair. Rasier Pacific Pty Ltd raised objections to the application, arguing that it was filed beyond the 21-day period allowed, that Mr Velusami had not worked through or by means of the digital platform for at least six months, and that he was not protected from unfair deactivation under Part 3A-3 of the Act.

The legal issues the court had to address included whether the application was made within the required period, whether Mr Velusami was protected from unfair deactivation, and whether his deactivation was consistent with the relevant codes. The court determined that Mr Velusami's deactivation occurred on 28 April 2024, before the commencement of Part 3A-3 on 26 August 2024. Consequently, he did not fall under the protection of Part 3A-3 of the Act. The court noted that the transitional provisions in the Act meant that Part 3A-3 only applied to deactivations occurring after its commencement date. The Applicant did not respond to the court's correspondence regarding this threshold issue, further undermining his claim.

The Deputy President concluded that Mr Velusami was not protected from unfair deactivation because his deactivation occurred before the relevant legislative provisions came into effect. Therefore, the court lacked jurisdiction to hear the application. The Deputy President dismissed the application for want of jurisdiction, indicating that an order to this effect would be issued alongside the decision. This outcome highlights the importance of timing in relation to the protections offered by Part 3A-3 of the Act.

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