The digital platforms that power the gig economy have fundamentally reshaped the British labour market, challenging traditional legal definitions of employment. A central issue is whether the intermittent and flexible nature of this work can ever be considered “regular and systematic” enough to merit core protections. A recent, authoritative ruling has settled this matter, confirming that a worker’s engagement should be assessed on the basis of its actual, discernible pattern over time, rather than a rigid set of hours or days. This decision is a landmark moment, signalling that a liberal and practical interpretation of “regular and systematic” will prevail, ensuring that on-demand workers are not arbitrarily excluded from the basic entitlements enjoyed by conventional employees.
Introduction: A Modern Reality Check on Regularity
The way Australians work has evolved far beyond the traditional nine-to-five model. As technology reshapes the employment landscape, particularly through digital platforms like Uber, Deliveroo, and DoorDash, so too must our legal interpretations of employment entitlements and protections. This shift has sparked intense debate over who qualifies as a “regular” worker and whether these individuals, many of whom work part-time, casually or flexibly, are entitled to lodge unfair dismissal or deactivation claims.
At the heart of this discussion lies the Fair Work Commission’s (FWC) recent interpretation of the phrase “on a regular basis” in the groundbreaking case of Jai Phillipps-Lewis v Rasier Pacific Pty Ltd [2025] FWC 2398. The ruling marks a clear indication that the Commission is prepared to apply a broad, liberal, and practical construction of the term “regular,” one that reflects the realities of modern work arrangements, particularly within the gig economy.
This case has now become a lodestar for those seeking to understand what qualifies as “regular” in the eyes of the law, particularly when a worker’s engagement isn’t perfectly consistent or full-time, but rather structured around weekends, peaks in demand, or personal circumstances such as caregiving, study, or vehicle availability.
The Jai Phillipps-Lewis Case: A Gig Worker Stands His Ground
Mr. Phillipps-Lewis had been using the Uber platform since January 2019. His account was suspended on 25 May 2025, prompting him to file a claim with the Fair Work Commission two days later under the new unfair deactivation provisions in Part 3A-3 of the Fair Work Act 2009 (Cth).
Although Uber reactivated his access by 2 June 2025, the claim proceeded on the basis that his initial deactivation was unlawful. Uber lodged two jurisdictional objections:
- That he had not performed work on a regular basis for the six months preceding his application, as required under s.536LD; and
- That his reactivated status meant he was no longer “deactivated” under s.536LG.
While the second objection is being stayed pending the outcome of the Hotak v Rasier Pacific Pty Ltd Full Bench decision, Commissioner Sloan firmly rejected Uber’s first argument.
The Evidence
Uber submitted detailed logs showing Mr. Phillipps-Lewis worked an average of 30.6 hours per month and around 2.92 days per week, below the Code’s indicative thresholds of 60 hours per month or three days per week.
However, Mr. Phillipps-Lewis argued that his schedule was consistently focused on weekends, and that life responsibilities, such as family duties and vehicle maintenance, occasionally necessitated variations.
The Decision
Commissioner Sloan determined that the driver’s work demonstrated a readily identifiable pattern, which had persisted consistently over time. While Uber emphasised raw numbers, the Commission looked at qualitative patterns, such as:
- Routinely working Fridays, Saturdays, and Sundays.
- Demonstrated intention and ability to engage with the platform consistently.
- Schedule variability that reflected modern gig work flexibility, not disengagement.
The conclusion was clear. Even where hours varied or did not meet the exact thresholds suggested in the explanatory materials, the pattern of engagement was sufficient. Mr. Phillipps-Lewis was performing work “on a regular basis.”
Dissecting s.536LD: A Gateway to Legal Protections
Section 536LD is a threshold provision. It essentially asks whether a digital platform worker qualifies for protection under the unfair deactivation provisions by proving:
- They have been performing work “on a regular basis.”
- The work period spanned at least six months continuously leading up to the application.
The legislation does not define “regular”, leaving it to the Commission and courts to interpret based on context, legislative intent, and precedent. The Phillipps-Lewis ruling affirms that “regular” should not be read narrowly or with mathematical rigidity. It should be interpreted with practical common sense and with an awareness of the varied ways workers now engage with employment.
This is particularly important in a post-COVID era, where flexible, intermittent, and hybrid work models have become mainstream.
The Purpose and Power of the Digital Labour Platform Deactivation Code
The Digital Labour Platform Deactivation Code, a legislative instrument tied to Part 3A-3 of the Fair Work Act, sets out guidelines to ensure that workers are not subject to arbitrary or procedurally unfair deactivation. It’s designed to:
- Support gig workers who rely on platforms for income.
- Prevent platforms from unilaterally terminating access without due process.
- Define what constitutes “regular” work, while also acknowledging the unique characteristics of gig work.
The Code provides examples of what “regular” might look like:
- 60 hours per month of paid work.
- 3 or more days per week.
- A pattern of work that is identifiable, even if inconsistent in volume.
Importantly, these are not fixed tests. Commissioner Sloan reinforced this by stating that Uber placed too much weight on the 60-hour threshold. It is not a hard rule, but a guidepost.
Procedural Safeguards Now Mandated for Platforms
Beyond qualifying for jurisdiction, workers must also be afforded procedural fairness in the deactivation process. The Code requires platforms to:
- Provide preliminary notices with clear reasons for potential deactivation.
- Allow workers a chance to respond before any final decision is made.
- Issue a final notice explaining the outcome and rationale.
Uber’s failure to follow a transparent process in Phillipps-Lewis’s case demonstrates the broader issue at play. Too often, platforms act like algorithmic overlords, cutting access with no warning, explanation, or appeal mechanism.
These procedural gaps are exactly what the new Code is designed to remedy.
What “Regular and Systematic” Means in Real-World Employment
The phrase “regular and systematic” is a cornerstone of Australian industrial law, particularly for casuals seeking unfair dismissal protections under s.384(2) of the Fair Work Act. Now, with the extension of similar concepts to employee-like digital platform workers, its importance has taken on a new dimension.
For decades, the Commission and courts have resisted narrow or rigid interpretations of regularity. Instead, the emphasis has been on real-world working arrangements, taking into account how a job functions in practice rather than how it appears on paper.
In Phillipps-Lewis, Commissioner Sloan made it clear that regularity does not require:
- Uniform hours each week
- Full-time commitment
- No breaks or absences
What is required is that the work occurs according to a discernible pattern or arrangement that reflects mutual engagement over time.
Key criteria for regular and systematic work:
- Predictability: Does the worker perform work on known days, even if just weekends?
- Continuity: Has the pattern continued for at least six months without major, unexplained breaks?
- Intent: Does the worker appear committed to engaging with the platform regularly?
These factors can be satisfied in a wide variety of ways. For example, a delivery driver who works only during school hours on weekdays, or a rideshare driver who logs in almost exclusively on weekends to avoid weekday traffic, may both be seen as engaging regularly if their work follows a recognisable, ongoing rhythm.
Casual Workers and Precedents that Shaped the Test
One of the most influential precedents remains Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019, in which a casual hospitality worker claimed unfair dismissal. Despite not having a fixed schedule, the Commission concluded she worked:
- On a pattern that repeated consistently over time.
- On an understanding that work would continue.
- In circumstances where both employer and employee behaved as if the relationship was continuing.
Another example is WorkPac Pty Ltd v Rossato [2020] FCAFC 84, which delved into expectation and conduct. While that case focused more on conversion entitlements for casuals, it set a tone for assessing engagement based on what actually occurred, rather than just the label on a contract or app profile.
Fitting the Gig Economy into Traditional Legal Frameworks
The Phillipps-Lewis decision highlights a pivotal moment in how the Fair Work Commission is interpreting long-standing legal concepts through the lens of modern digital work arrangements. Australian workplace laws, originally drafted for more traditional and predictable employment relationships, are now being flexed and adapted to accommodate platform-based, on-demand, and intermittent work models.
In the past, there was considerable uncertainty for gig workers trying to access protections under the Fair Work Act. Many believed that unless they were working full-time hours, or every single week without fail, they would not be considered “regular” workers. That uncertainty has now been significantly reduced.
The Commission’s approach in Phillipps-Lewis affirms that “regular and systematic” engagement doesn’t demand rigidity. It simply requires a discernible pattern over time—something the Commission says should be interpreted liberally, practically, and with an understanding of how platform work operates.
What might “regular and systematic” look like in practice?
While every case will turn on its individual facts, here are some indicative examples of how the Commission might apply the Phillipps-Lewis reasoning:
- A student who consistently performs rideshare work every Friday and Saturday, with occasional breaks during exam periods, may still be considered regular.
- A parent working three fixed afternoons a week to fit around school pick-up times, even if some shifts are missed due to illness or family emergencies, could still demonstrate systematic engagement.
- A driver who alternates between Uber, DiDi and Ola, but maintains a stable Tuesday and Saturday schedule with Uber alone, may be able to show regularity despite multi-apping.
- A regional driver who picks up gigs during tourism weekends, logging in three weekends a month consistently, may be treated as having a predictable pattern of engagement.
- A worker who supplements their part-time job with food delivery every weekday from 6pm to 9pm, but skips occasional holidays or low-demand periods, might still meet the test under this broader interpretation.
These examples illustrate how varied modern work patterns can be, and how the law is now beginning to recognise that regularity does not require perfection, uniformity, or inflexible hours.
Strategic Takeaways for Workers, Platforms, and Legal Advisers
For Workers
- Keep a record of your work patterns and hours. Screenshots, logs, or pay summaries can all assist if you need to prove regularity.
- Do not assume that working part-time or on a casual basis excludes you. If you follow a pattern, you may still qualify.
- Act quickly. The unfair deactivation application period is capped at 21 days.
For Platforms
- Avoid placing undue reliance on numeric thresholds such as hours or days. The Commission will consider overall patterns.
- Ensure procedural fairness by following the Code: give warnings, provide opportunities to respond, and document decisions.
- Recognise that digital control mechanisms, like ratings systems and algorithms, may be seen as establishing expectations of regularity.
Read more: What Are Your Rights When Working From Home & Returning To The Office?
Conclusion: Toward a More Inclusive Understanding of Workplace Patterns
It is also critical to remember that unfair dismissal and unfair deactivation claims must be lodged promptly. In most cases, the Fair Work Commission imposes a strict 21-day deadline from the date of dismissal or deactivation. Missing this deadline can mean losing the right to bring a claim, regardless of the merits of the case. Workers need to be alert to this timeframe and seek advice immediately if they believe they have been treated unfairly.
The Fair Work Commission’s decision in Phillipps-Lewis is more than a jurisdictional ruling. It is a statement about the future of work. Modern employment is less about rigid, continuous hours and more about ongoing, recognisable patterns of engagement. For gig workers, this case represents a shift toward inclusion, ensuring they are not unfairly excluded from basic protections.
At A Whole New Approach, we know how stressful it can be to face deactivation or dismissal when your livelihood depends on flexible work. We have helped thousands of workers across Australia understand their rights and take action through the Fair Work Commission. Whether you are a rideshare driver deactivated overnight, a food delivery worker suddenly locked out of your app, or a casual employee unsure about your eligibility to make a claim, we can help you navigate the process.
We also know that every case is unique. For some, the issue will be proving a regular weekend pattern. For others, it may be showing that working around childcare or study commitments still amounts to systematic engagement. Our experience tells us that the Commission is willing to listen to the lived realities of workers if the evidence is clear and presented well. That is where we come in.
How We Can Help
- We analyse your work patterns and present them as evidence of regularity.
- We prepare strong submissions that highlight both legal precedent and your individual circumstances.
- We assist with gathering supporting material such as trip logs, screenshots, income summaries, and correspondence.
- We advocate for procedural fairness when platforms cut off access without warning.
Examples of Support
- If you are a student who drives weekends only and were deactivated, we can help demonstrate that your pattern of work still counts.
- If you are a parent balancing school runs and gig work, we can build the argument that your three-afternoon routine is systematic engagement.
- If you are a multi-app worker who relied heavily on Uber during certain times, we can emphasise that your Uber work itself had a stable rhythm.
- If you are a regional driver tied to seasonal demand, we may help show that your tourism-focused schedule is nonetheless regular and predictable.
Our team is available Monday-Friday for a free and confidential consultation. We will explain your options clearly, prepare your case professionally, and fight to secure the outcome you deserve.
Call us today to discuss your situation. Don’t wait until it’s too late, your rights and your livelihood are worth protecting.
