Long break, quick deactivation: Ruling could reshape how you manage contingent workers
An Uber driver took almost nine weeks off, was deactivated on return, and the Fair Work Commission ruled on 20 April 2026 he remained protected.
The case, Ravi Kiritbhai Bhadaliya v Uber Trading AS Uber Australia [2026] FWC 1403, is an early test of Australia's new gig worker protection laws, and the outcome has direct implications for any business working with people on a non-traditional basis.
Mr Bhadaliya had been driving for Uber since December 2020. His account was deactivated on 9 February 2026. The respondent, Rasier Pacific Pty Ltd trading as Uber, argued that he was not protected under the Fair Work Act 2009, because he had not been performing work on the platform on a regular basis for the required six-month period. The trigger for that argument was an absence of almost nine weeks, from 9 December 2025 until 7 February 2026, during which Mr Bhadaliya was travelling to India and performed no work at all. He was deactivated shortly after returning, on 9 February 2026.
The numbers, however, told a different story. Across the six months leading up to his deactivation, Mr Bhadaliya had worked an average of 4.46 days per week and 69.43 hours per month on the Uber driver platform, comfortably exceeding both thresholds set out in the Digital Labour Platform Deactivation Code. The Code deems a worker to be working on a regular basis if they average at least 60 hours of paid work per month, or at least three days per week. Mr Bhadaliya cleared both.
Uber's response was to argue that those thresholds do not operate in isolation. Its submission was that s 18(5) of the Code qualifies the thresholds in ss 18(2) and (3), so that even a worker who clears both averages can still fall outside the "regular basis" requirement if they have had a significant break — such as nine weeks — during which they performed no work at all.
Deputy President Saunders rejected that construction. The Commission found there is no language in s 18 of the Code to support reading ss 18(2) and (3) as subject to, or qualified by, s 18(5). The decision drew a deliberate textual contrast: ss 18(2) and (3) use the definite expression "is taken to perform that work on a regular basis," while s 18(5) uses the softer formulation "may be taken to perform work on a regular basis." It would, the Commission found, strain the language of s 18 to conclude that the definite expression is subject to, or qualified by, the softer one. The Code's thresholds therefore operate as a deemed standard across the full six-month period, not a week-by-week checklist. If the averages are met, the worker is taken to have been working on a regular basis.
The decision also drew a clear line around what the provisions are not designed to cover. As the ruling put it, "if a person performs work sporadically, occasionally or on an ad hoc basis, they would not be regarded as performing work on a regular basis."
The decision also addressed an important threshold question about the nature of the six-month period itself. Consistent with Deputy President Colman's earlier reasoning in Jibril [2025] FWC 1289, the Commission confirmed that s 536LD(c) of the Act is concerned with a single, continuous period of work immediately preceding deactivation — not multiple past periods that cumulatively add up to six months. On the facts, this point was not in dispute: Mr Bhadaliya's relevant period of work ran continuously up to his deactivation, interrupted only by his time in India.
In dismissing Uber's objection, Deputy President Saunders pointed to the underlying purpose of the framework as set out in the Explanatory Statement to the Digital Labour Platform Deactivation Code, which states that the framework "is intended to protect employee-like workers who perform work through or by means of a digital labour platform sufficiently often, or in a readily identifiable pattern of work." The Deputy President endorsed that characterisation, finding that paid work performed on average for at least 60 hours each month or three days each week constitutes work performed "sufficiently often" so as to satisfy the regular basis requirement.
The matter was subsequently referred to conciliation, with the substantive question of whether Mr Bhadaliya's deactivation was unfair yet to be determined.
One detail worth noting: the Commission confirmed that work performed before 26 August 2024, when the unfair deactivation provisions formally commenced under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, cannot be counted towards the six-month threshold. In this case, that was not determinative, as Mr Bhadaliya's relevant six-month period fell entirely after that date.
What the case makes plain for people and workforce managers is this: the six-month window is assessed on averages across the whole period, not on whether a worker showed up every single week. An absence of almost nine weeks does not automatically reset a worker's protected status if their overall work pattern still meets the threshold. Equally, a long absence cannot be used to invoke s 18(5) of the Code to undo averages that otherwise clear the ss 18(2) and (3) thresholds. Before making a deactivation decision, particularly following a period of inactivity, checking the averages across the full six months is essential. Acting on the assumption that a long absence signals the end of the engagement, without doing that check, is now a demonstrable legal risk under Australian law.
