Salman Tariq

[2025] FWC 3034

[2025] FWC 3034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.536LU - Application for an unfair deactivation remedy

Salman Tariq

(UDE2025/243)

DEPUTY PRESIDENT FAROUQUE MELBOURNE, 13 OCTOBER 2025

Unfair deactivation application – jurisdictional objection – deactivation occurred prior to 26 August 2024 – no jurisdiction for Commission to deal with application – application dismissed

Background

1. Mr Salman Tariq has applied to the Fair Work Commission (the Commission) under s.536LU of the Fair Work Act 2009 (Cth) (the FWAct) for an unfair deactivation remedy.

1. Section 536LU is within Part 3A-3 (Unfair deactivation or unfair termination of regulated workers) of the FW Act.

1. Mr Tariq alleges that he was deactivated by Portier Pacific Pty Ltd (the respondent) on 13 March 2019. The respondent accepts that Mr Tariq was deactivated, albeit it identified the date of deactivation as being 7 March 2019. However, it is clear that there is no dispute between the parties about the fact that the deactivation occurred in March 2019.

1. The respondent has raised several jurisdictional objections to the application.

1. One of those objections is that Part 3A-3 does not apply to a deactivation that occurred prior to commencement of that Part.

1. On 30 September 2025, my chambers emailed Mr Tariq, referring to the jurisdictional objection summarised in paragraph 5 above, and provided him an opportunity to make written submissions in relation to the objection. Mr Tariq was also informed that the Commission intended to deal with the jurisdictional objection on the papers and without a hearing.

1. On 9 October 2025, Mr Tariq emailed my chambers and indicated that he had no submissions to make on jurisdiction. The Commission then informed the parties that it reserved its decision. As there is no factual dispute that Mr Tariq was deactivated by the respondent in March 2019, the jurisdictional objection may appropriately be dealt with on the papers.

Consideration

1. Part 3A-3 of the FW Act was enacted by amendments made by Part 16 of Schedule 1 of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act2024 (Cth) (the Amending Act).

1. Part 18 of Schedule 1 of the FW Act deals with transitional provisions relating to amendments made by Part 16 of Schedule 1 of the Amending Act.

1. Clause 124 of Part 18 of Schedule 1 of the FW Act relevantly provides as follows:

124 Unfair deactivation and unfair termination

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

…

1. Clause 123 of Part 18 of Schedule 1 of the FW Act defines commencement as follows:

123 Definitions
In this Part:
…
Commencement means the commencement of item 238 of Part 16 of Schedule 1 of the amending act.

1. By operation of item 22 of s 2(1) of the Amending Act, item 238 of Part 16 of Schedule 1 of the Amending Act commenced on 26 August 2024.

1. Having regard to the statutory provisions of the FW Act and the Amending Act as set out above, it is apparent that Part 3-3A of the Act has no application to a deactivation which occurred prior to 26 August 2024.

1. Consequently, given that Mr Tariq’s deactivation occurred in March 2019, Part 3-3A has no application to Mr Tariq’s deactivation. Therefore, the Commission has no jurisdiction to deal with Mr Tariq’s application under s 536LU.

1. I order that the Mr Tariq’s application to the Commission under s 536LU be dismissed.

DEPUTY PRESIDENT

Hearing details:

Determined on the papers.

Printed by authority of the Commonwealth Government Printer

<PR792537>