Fair Work Commission Adopts “Liberal” View on Uber Driver’s Regular Work

The Fair Work Commission (FWC) has taken a broad approach to the concept of “regular work” in a recent decision involving an Uber driver, confirming that platform workers do not need to meet rigid weekly hour or day thresholds to qualify for unfair deactivation protections.

The case concerned an Uber driver who had been active on the platform since January 2019. On 25 May 2025, Uber deactivated his access.

Within two days, he filed an unfair deactivation claim, seeking compensation for lost earnings. Although Uber restored his account on 2 June, the driver pressed ahead with his application.

Fair Work Commission Adopts “Liberal” View on Uber Driver’s Regular Work

Uber challenged the claim on two fronts. First, it argued the driver had not been working “on a regular basis” for the six months leading up to his claim, as required by section 536LD of the Fair Work Act 2009. Second, it said that since his account had been reactivated, he was no longer “deactivated” within the meaning of section 536LG.

Commissioner Damian Sloan rejected Uber’s first objection, applying a “liberal” interpretation of what constitutes regular work. He drew on the Digital Labour Platform Deactivation Code, which sets out examples such as completing 60 hours a month or working three days per week. However, the Code also recognises that gig workers often vary their schedules to accommodate family responsibilities, study, or vehicle maintenance.

Uber presented trip logs showing the driver averaged 30.6 hours a month and just under three days per week, contending this fell short of the benchmarks. But the Commission found the company had placed too much weight on strict numerical thresholds.

What mattered, Sloan held, was that the driver’s weekend work formed a “readily identifiable pattern.” He worked every weekend, sometimes Friday to Sunday, sometimes Saturday and Sunday, with occasional variations around public holidays and personal responsibilities.

The Commission accepted that such a pattern was consistent with the realities of digital platform work. Sloan noted the explanatory statement to the legislation: Parliament intended to protect workers who engaged “sufficiently often, or in a readily identifiable pattern of work.” Uber’s argument, he said, ignored the significance of the second limb of that test.

By construing “regular” liberally, Sloan found the driver had indeed been working to “some form of repetitive pattern” over the relevant six-month period. As a result, the first jurisdictional objection failed.

On Uber’s second objection—that a reactivated worker cannot claim unfair deactivation—the Commission stayed the proceedings pending the outcome of the Full Bench appeal in Hotak v Rasier Pacific Pty Ltd, where the same issue is under consideration.

The decision underscores that “regular” does not mean rigid. Gig workers who organise their hours flexibly, particularly around weekends or recurring times, may still fall within the protective scope of unfair deactivation laws.

Case reference: Jai Phillipps-Lewis v Rasier Pacific Pty Ltd [2025] FWC 2398 (15 August 2025).