Australia Gig Work Deactivation Protections: Progress and Pitfalls After Five Months

Executive summary

Five months into the operation of Australia gig work deactivation protections, introduced through the federal Digital Labour Platform Deactivation Code and the new unfair deactivation jurisdiction commenced, the first run of cases reveals a system that sets real procedural guardrails but also tripwires that many workers are hitting. Early Fair Work Commission (FWC) decisions show applications failing on threshold points (deadlines, commencement dates, and the 6-month “regular work” rule), even while Members criticise platforms’ bot-like communications. Meanwhile, NSW has layered on a transport-sector regime that does go further on minimum standards, but tries to avoid direct clashes with the federal scheme. Overall: the framework is maturing, but its design choices are already shaping outcomes in ways policymakers and platforms should heed.

What the federal Code actually requires (and when it applies)

The Fair Work (Digital Labour Platform Deactivation Code) Instrument 2024 requires platforms, in most conduct/capacity cases, to: give a deactivation warning; issue a preliminary deactivation notice that states the reasons and the worker’s right to respond and request a discussion; fairly consider any response; and, if proceeding, issue a final deactivation notice with sufficient information for a reasonable person to understand it. There are narrow exceptions for example., serious misconduct, certain short suspensions for safety/investigation reasons. Communications must be in writing and workers must have enough access to respond.

But these protections only bite if the person is an “employee-like worker” who has been working regularly for at least six months and the deactivation happened on or after 26 Feb 2025 (with the six-month clock counted from 26 Aug 2024). The FWC’s guidance also puts a hard 21-day filing deadline after deactivation. None of this is forgiving.

Early Case Law: How the Fair Work Commission Is Applying Australia Gig Work Deactivation Protections

Out-of-time filing: Derow v Raiser Pacific Pty Ltd [2025] FWC 2062 (18 July 2025)

Mr Derow lodged 12 days late. The Deputy President described Uber’s automated support as “inane” and “mind-numbing” but still refused to grant an extension, stating that workers must file within 21 days even if they are pursuing internal reviews. There is no “stop-the-clock” in the Code.

Pre-commencement and 6-month rule: Fang v Raiser Pacific Pty Ltd [2025] FWC 1917 (4 July 2025)

If deactivation occurred before 26 Feb 2025, the jurisdiction doesn’t apply. Even where a worker argues the “final” decision arrived later, the FWC has treated the earlier removal of access as the operative act. Separately, the six-month regular-work requirement is measured from 26 Aug 2024 and focuses on the most recent period of work up to deactivation.

A narrow win- on jurisdiction only: Bakar v Raiser Pacific Pty Ltd [2025] FWC 1874 (2 July 2025)

In Bakar, the FWC found the six-month requirement was met where the worker’s various Uber/Uber Eats work all ran “through or by means of the Uber App.” This is significant, but it’s a gatekeeping ruling, not a merits win ordering reinstatement.

Takeaway: So far, the leading reasons applications fail are late lodgement, pre-commencement deactivations, and not meeting the six-month test. In other words, structure and timing, not just fairness are determining outcomes.

NSW’s Overlay: Broader Standards Beyond Federal Australia Gig Work Deactivation Protections

The Industrial Relations Amendment (Transport Sector Gig Workers and Others) Act 2025 (NSW) was assented to on 9 April 2025. It extends Chapter 6 of the NSW IR Act to transport-sector gig workers on digital labour platforms, empowers the NSW IRC to set contract determinations on rates, allowances, rostering-type conditions, representation rights (including delegate leave), and addresses things like tolls and routes. It also defines “digital labour platform” and makes principal-contractor responsibilities explicit.

Crucially, the Act includes conflict-management provisions:

• The NSW IRC must not reinstate a contract if the person was protected from unfair deactivation under the federal Fair Work Act at the time—limiting duplication with the FWC’s deactivation jurisdiction.
• The NSW IRC must not deal with certain disputes if an FWC employee-like worker minimum standards application is on foot and likely to cover the same cohort.

NSW argues this is complementary to federal law; industry warned of a “duplicative regime” and a “legal minefield” during consultation, but the Bill ultimately passed and is now Act No. 20 of 2025. The government’s consultation and passage history confirm the timing.

Policy critique: where the federal design is biting and how NSW changes the calculus

1. The 21-day cliff-edge
   The FWC is enforcing the statutory deadline without much elasticity, even when platform comms are dysfunctional. The Code does not pause the clock for internal appeals or require platforms to tell workers about the FWC deadline in plain terms. If the federal aim was a “fair process,” a hard stop that penalises workers who pursue the platform’s own process first undermines that aim.
2. Anchoring eligibility to fixed historical dates
   Tying “regular work for six months” to 26 Aug 2024 and limiting deactivations to on/after 26 Feb 2025 creates a large pre-commencement cohort with no remedy, and makes gaps in engagement fatal (e.g., medical breaks). The Commission has read “regular work” as your most recent continuous period, which can be quite unforgiving.
3. Serious-misconduct and short-suspension carve-outs
   These are reasonable in principle, but without strong investigative standards they risk becoming a backdoor to avoid the warning/response process. The Code lists what may be a valid reason and when warnings can be skipped, but does not mandate independent evidence thresholds before relying on complaints.
4. Automated comms as a fairness trap
   The Code allows written communications via the platform, provided access is adequate. In practice, templated responses and queue triage can delay meaningful engagement well past the 21-day limit. The FWC has now put platforms on notice- “inane,” “mind-numbing” but won’t save a late claim.
5. NSW’s Chapter 6 expansion: complementary but complex
   NSW now enables minimum standards for transport-sector gig work (including potential roster-like conditions) through the NSW IRC while trying to avoid s 109 inconsistency by stepping back where the FWC is already seized. For platforms, this means dual compliance: federal deactivation process + possible NSW pay/conditions determinations. For workers, it adds a standards lever that does not depend on individual unfair-deactivation litigation..

Practical Guidance for Navigating Australia Gig Work Deactivation Protections

For platforms

• Hard-wire the 21-day timer into deactivation workflows; include a clear banner in all notices: “You may apply to the FWC within 21 calendar days.” Track and surface this to agents.
• Reduce automation latency. Establish escalation SLAs so a human review and responds within a few days of any deactivation dispute. Keep Bliss/CRM logs clean; assume they will be scrutinised.
• Audit Code artefacts: warning content, preliminary/final notices, reason sufficiency, and records of considering responses.
• Prepare for NSW Chapter 6 contract determinations (rates, allowances, route/tolls, delegate leave). Map principal-contractor obligations and supply-chain exposure.

For workers and their reps

• File first, appeal later (or do both). Lodge Form F89 promptly—don’t wait for the platform’s internal review to finish.
• Evidence matters. Keep screenshots/emails of notices, timelines, and support threads; the FWC is weighing these heavily.
• Check eligibility early. Confirm deactivation date (on/after 26 Feb 2025) and six-month regular work (counted from 26 Aug 2024). If close to the line, file anyway and argue jurisdiction.

What to watch next

• FWC “regulated worker” program build-out. The July 2025 FWC update highlights ongoing cases on minimum standards (last-mile, food delivery) and an upcoming Major Case on unfair contract terms (hearing set 1 Sept 2025). Expect more definitional clarity and cross-over with NSW’s Chapter 6 space.
• First full merits deactivation orders. We still haven’t seen a high-profile order re-activating a worker after a contested hearing. When one lands, it will likely hinge on (i) whether the Code process was followed to the letter and (ii) whether the reason was genuinely “valid.”

Bottom line

Australia has moved quickly to graft due-process norms onto platform work. That’s real progress. But the regime’s strict gateways and no-tolling deadline mean early justice has mostly turned on procedural compliance, not substantive fairness. NSW’s Chapter 6 expansion gives transport-sector workers a second policy lever on conditions, while (mostly) steering clear of federal deactivation rules. The next six months should tell us whether these two systems cohere or collide.

Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.