Full Bench Rules on When Deactivation Takes Effect
Gopal Bandameeda v Amazon Commercial Services Pty Ltd [2025] FWCFB 182
A Full Bench of the Fair Work Commission has considered when a deactivation takes effect under s 536LU (3) (a) of the Fair Work Act 2009 (Cth). Section 536LU (3) (a) regulates the 21-day time limit within which unfair deactivations must be lodged. It mirrors s 394 (2) (a) which serves the same purpose for unfair dismissal applications.
However, there are significant differences between a dismissal from employment and deactivation from a digital labour platform. Among other things, the termination of employment is a fundamental requirement of dismissal - but a deactivation can involve the modification, suspension or termination of access to a digital labour platform.
What was the issue?
Hennings Lawyers represented the applicant, an “employee-like worker” who performed delivery work. He sourced this work through Amazon Flex, a digital labour platform and the respondent to the application.
When an issue came to the respondent’s attention, it suspended his access to the platform on 7 April 2025 and issued a preliminary deactivation notice in accordance with the Digital Labour Platform Deactivation Code. On 8 April 2025, the respondent made a decision to terminate the applicant’s access.
The respondent acknowledged that the applicant was already without access, but also informed the applicant that access would terminate in 31 days (on 9 May 2025) when he would no longer be able to perform deliveries through the platform. The applicant appealed and on 9 April 2025, the respondent confirmed its decision remained unchanged.
The applicant did not lodge an unfair deactivation application until 4 May 2025. Consequently, the Full Bench was required to consider when the deactivation took effect and, if an extension was required, whether exceptional circumstances supported such an extension.
What is deactivation?
Section 536LG of the Fair Work Act 2009 (Cth) provides that person has been deactivated from a digital labour platform if:
the person performed digital platform work through or by means of the digital labour platform; and
the digital labour platform operator modified, suspended, or terminated the person's access to the digital labour platform; and
the person is no longer able to perform work under an existing or prospective services contract, or the ability of the person to do so is so significantly altered that in effect the person is no longer able to perform such work.
Which Deactivation?
The Full Bench sought supplementary submissions dealing with the deactivation on 7 April 2025 which arose due to the suspension. However, it determined that deactivation can occur on a number of occasions because a deactivation is triggered when a suspension, modification or termination of access occurs which means an employee-like worker can no longer perform work under a services contract. The decision identified that the deactivation consequent upon the termination of access was the relevant deactivation because it was the latest or last deactivation, chronologically. The submissions of both the applicant and the respondent aligned with this view.
When Relevant Deactivation Took Effect
However, the applicant contended that the notice was ambiguous - on the one hand stating it was immediate, on the other, saying it would take effect on 9 May 2025. Alternatively, the applicant said that the appeal outcome of 9 April 2025 was the point of finality regarding his ability to perform work under services agreements via the digital labour platform. The respondent asserted that the deactivation that took effect as a result of the termination on 8 April 2025 because nothing changed from that point in terms of the applicant’s ability to deliver through the platform.
Ultimately, the Full Bench agreed that the notice and communications in relation to the termination on 8 April 2025 were ambiguous. However, it determined that the outcome of the applicant’s appeal communicated on 9 April 2025 resulted in a further deactivation which took effect on that date and was the relevant deactivation:
We consider that [the applicant] was deactivated, for a second time, on 9 April 2025 in relation to the termination of… access to the Amazon Flex app. The ambiguities which we have identified above in relation to the email sent by Amazon to [the applicant] on 8 April 2025 would have led a reasonable person in [the applicant’s] position to be unsure as to whether, on 8 April 2025, his access to the Amazon Flex app had been terminated and he no longer had the ability to perform work under the Amazon Flex Terms of Service Agreement. On 9 April 2025, however, the notice from Amazon to [the applicant] that he “remain[ed] ineligible to deliver with Amazon Flex and will not be able to sign in to the Amazon Flex app” was sufficiently clear to lead a reasonable person in [the applicant’s] position to understand that his access to the Amazon Flex app, being the digital labour platform through which he performed work for Amazon, had been terminated and he no longer had the ability to perform his delivery work under the Amazon Flex Terms of Service Agreement. It follows that s 536LG (b) and (c) of the Act were satisfied on 9 April 2025 in relation to the termination of [the applicant’s] access to the Amazon Flex app.
Exceptional Circumstances and Grant of Extension
The applicant lodged the application on 4 May 2025, 4 days outside the expiry of the 21-day period on 30 April 2025. Consequently, the Full Bench was required to consider whether there were exceptional circumstances for the 4-day delay, having regard to the criteria in s 536LU (4).
Reason for the Delay
The Full Bench found that the applicant’s health and carer’s responsibilities weighed in favour of a finding of exceptional circumstances.
Whether the person first became aware of the deactivation after it had taken effect
The applicant was aware of the deactivation on the date it took effect following the outcome of his appeal on 9 April 2025, meaning this was a neutral factor in considering whether there were exceptional circumstances.
any action taken by the person to dispute the deactivation or termination
A mistaken application to the Victorian Small Business Commission, numerous emails to the respondent and the appeal ultimately decided on 9 April 2025 constituted clear action to dispute the deactivation. This weighed in favour of exceptional circumstances.
prejudice to the regulated business (including prejudice caused by the delay)
The Full Bench acknowledged the absence of any prejudice to the respondent but found this a neutral factor - as with the same criteria in unfair dismissal applications, the mere absence of prejudice does not weigh in favour of a finding of exceptional circumstances.
merits of the application
The Full Bench found that the merits were a neutral factor in relation to consideration of whether there were exceptional circumstances. However, the decision acknowledged that there were genuine issues in dispute in the application.
fairness as between the person and other regulated workers in a similar position
Given the small number of applications to date and at the same time, this was a neutral factor in considering whether exceptional circumstances existed.
any processes specified in the Digital Labour Platform Deactivation Code
As with considering the merits, the Commission acknowledged that there are genuine issues in dispute in relation to compliance with the Code - but found this a neutral factor.
Ultimately, the Full Bench found that there were exceptional circumstances for the 4-day delay in lodging the application.
The application is now set to be one of the first, if not the first application determined on the merits under the new unfair deactivation legislation introduced into the Fair Work Act 2009 (Cth) by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.
TAKEAWAYS
Lodge an unfair deactivation application without delay as soon as your ability to deliver or perform work through a digital labour platform is affected for more than seven days - regardless of whether this is because of suspension, modification or termination of your access.
Respond to a Preliminary Deactivation Notice if you receive one, ensuring you do so within the required time - or that you request additional time within which to respond.
Dispute the decision to deactivate you with the digital labour platform, if you consider it to be unfair - make sure you do this in written form like emails.
Clearly identify in any application to the Fair Work Commission the particular deactivation to which the application relates, including:
a) the date;
b) the action taken to cause the deactivation (ie, suspension, modification, termination of access); and
c) the work you were unable to perform (eg, scheduled deliveries, rids, etc).
Hennings Lawyers can assist employers, employees, gig workers and others with applications in the Fair Work Commission.
