Protections for employee-like workers – the Digital Labour Deactivation Code

Summary

Amendments to the Fair Work Act in February 2025 introduced the Digital Labour Deactivation Code, giving gig-economy workers new protections against unfair platform deactivations. The Fair Work Commission has already enforced the Code, recently reinstating an Uber driver after finding the company failed to follow required deactivation procedures.

In February 2025 the Fair Work Act 2009 (Cth) (the Act) was amended to incorporate a Digital Labour Deactivation Code (the Code). Essentially, this Code protects employee-like workers (such as Uber Eats, Door Dash and Menulog drivers) from unfair deactivations.

What is an employee-like worker?

An employee-like worker is a person with at least two of the following attributes:

• low bargaining power;
• pay at or below the rate received by an employee doing similar work; or
• a low degree of authority over the performance of work.

Employee-like workers can include individuals who deliver food or products through a delivery app such as Uber Eats, or who perform tasks or care services in the gig economy.

What does the Code protect?

The Code sets out that to be protected from unfair deactivation the following must apply:

• you are an employee-like worker; and
• you perform work:
  1. through a digital labor platform operator (operator); or
  2. under a services contract arranged or managed through an operator; and
• you have been working regularly for at least 6 months; and
• your annual earnings are less than $183,100.00.

The Act defines a digital platform as a website or system that is used to facilitate work performed by independent contractors (e.g. Uber & Door Dash).

An employee-like worker is considered deactivated if the operator has changed, suspended, or terminated their access to the platform. It is considered unfair deactivation if the Fair Work Commission is satisfied that the deactivation was unfair and not consistent with the Code. However, the operator is not required to follow the Code where the deactivation is due to serious misconduct.

What does the Code say?

• Before deactivating an employee-like worker, the operator must issue a deactivation warning, stating that the worker is at risk of deactivation due to concerns about their conduct or capacity. The notice must give the worker a reasonable opportunity to remedy the matter.
• A deactivation warning is not required if the operator reasonably determines that the worker’s conduct or capacity requires immediate suspension.
• If the issue persists after steps (1) or (2), the operator must issue a preliminary deactivation notice. The notice must specify that the worker is being considered for termination, allowed an opportunity to respond, request a discussion with the operator and have a support person.
• Following this, a human representative of the operator must consider any response provided by the employee-like worker and undertake any further inquiries that are reasonably necessary.
• Fith, the operator may then decide to take no further action or terminate. If the latter is to occur, the operator is required to issue a final deactivation notice setting out the grounds for the termination. An employee-like worker will have 21 days from the date of the deactivation or termination to lodge an application to the Fair Work Commission (see section 536LU of the Act).

Operators should follow this process strictly, as failing to do so can significantly increase the risk of an unfair deactivation outcome. Recently, the Fair Work Commission reactivated an uber driver after determining that Uber had failed to follow the required Code procedures.

Case example

Sajid Saleem Warraich v Raiser Pacific Pty Ltd Trading AS Uber [2025] FWC 3338

Mr Warraich had been an Uber driver since 10 March 2021 and since then received five complaints between December 2022 to May 2025. Mr Warraich denied all five of the accusations, however Uber responded in the following manner:

• On 24 May 2025, Uber temporarily suspended his access;
• On 30 May 2025, Uber issued a deactivation notice; and
• On 7 June 2025, Uber deactivated Mr Warriach.

In the decision handed down by Commissioner Pearl Lim, she found that Mr Warraich’s deactivation was unfair. First, Mr Warraich was not provided a deactivation warning. The notice provided on the 24 May 2025 did not warn Mr Warraich that he risked being deactivated due to conduct or capacity. Neither did the notice contain sufficient information to enable a reasonable person in Mr Warraich’s position to understand the reason for the deactivation warning, or how to remedy it. Additionally, the exception within the Code did not apply, as Uber did not have reasonable grounds/evidence to form its opinion that Mr Warraich’s access to Uber should be immediately modified.

The amendments establish important new protections for employee-like workers. Accordingly, operators should ensure that their processes are consistent with the Code to minimise the risk of deactivation claims.

If you need assistance with any aspects of employment law, please contact Bharath Balasubramanian or Roland Blackstone, Partners in our Dispute Resolution Team for further advice.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.