Fair Work Act 2009

s.158 - Application to make a modern award

Application to make a modern award to cover the on demand delivery services industry.

[1] On 25 June 2021, the Commission received an application from Menulog Pty Ltd (Menulog) which seeks the making of a new modern award covering the 'on demand delivery services industry' (the Application).

[2] The Application includes a definition of the 'on demand delivery services industry' - also referred to in the Application as the 'On Demand Delivery Industry' and the 'On Demand Industry' - as follows:

'the on demand delivery services industry means the collection and delivery of food, beverages, goods or any other item, that are ordered by a consumer from third-party businesses that offer food, goods and other items for sale for immediate collection and delivery on an online or application-based platform, provided that:

(a) the collection and delivery is not of the employer's own food, beverages, goods or other items offered by it for sale; and

(b) the employer is not in the primary business of providing general transport or delivery services at large of food, beverages, goods or any other item that has not been purchased on its online platform.'

[3] On 12 July 2021 we issued a Statement[1] in which we outlined the legislative framework for making a new modern award and considered the Application in that context. We also expressed some provisional views about issues raised by the Application.

[4] Interested parties were invited to lodge written submissions responding to some or all of our provisional views at [11], [23], [35] and [43] of the Statement and the observations at [29], [39] and [47] of the Statement, by 4pm on Monday 9 August 2021. Reply submissions were to be filed by 4pm on Thursday 19 August 2021.

• 9 August 2021; in reply 19 August 2021

• Australian Chamber of Commerce and Industry and Australian Business Industrial - 9 August 2021

• National Road Transport Association

• Australian Road Transport Industrial Organisation - 9 August 2021

• Industry Group - 9 August 2021; in reply 19 August 2021

• Workers' Union - 9 August 2021; in reply 23 August 2021

• Victorian Government - 10 August 2021

• Dr Tom Barratt, Dr Caleb Goods and Dr Alex Veen - 9 August 2021

• Davis Clayton - 9 August 2021

[6] A Mention was held on Monday 23 August at 1pm. The transcript of the Mention is available here. A Background Paper was published to facilitate the discussion at the Mention.

[7] Our provisional view as to the matters the Commission must take into account before deciding whether or not to make a new modern award, was uncontested. In particular, it is common ground that the Fair Work Act 2009 requires that the Commission consider the following initial matters before deciding whether or not to make a new modern award covering the on-demand delivery services industry:

• Whether employers and employees in that industry are currently covered by a modern award.

• If there is current award coverage, whether the current award coverage of employers and employees in the industry meets the modern awards objective.

• If the current award coverage does not meet the modern award objective, whether, instead of making a new award, the Commission should vary an existing award to cover the relevant employers and employees (including considering whether any such existing award is appropriate for employers and employees in the industry).

[8] It is also common ground that if no other modern award covers employers and their courier employees in the on-demand delivery services industry, then the Miscellaneous Award 2020 (Miscellaneous Award) covers them.

1. Whether or not the Fast Food Industry Award 2010 (Fast Food Award) currently covers employers and their courier employees in the on-demand delivery services industry.

2. Whether or not the Road Transport and Distribution Award 2020 (Road Transport Award) covers employers and their courier employees in the on-demand delivery services industry.

3. If the Miscellaneous Award does cover employers and their courier employees in the on-demand delivery services industry, whether it provides a fair and relevant safety net for those employers and their courier employees.

[10] The TWU proposed that the question of whether the Road Transport and/or the Fast Food Award cover employees to whom the application relates should be determined as a threshold issue. The TWU submits that the answer to this question will 'frame the issues for determination by the Full Bench. At the Mention, there was broad support for the proposal advanced by the TWU.

[11] We agree that the question of whether the employers and their courier employees in the on-demand delivery services industry are currently covered by a modern award is a threshold issue. In particular, the question of whether or not the Fast Food Award and/or the Road Transport Award cover employers and their courier employees in the on-demand delivery services industry, is a threshold issue.

[12] The following directions are made in relation to the threshold issue:

• Interested parties are to file a note setting out any particular clarification they seek from Menulog regarding the coverage of the proposed award, by 4pm on Monday, 30 August 2021.

• Menulog is to file any evidence and submissions in respect of the threshold issue by 4pm on Monday, 18 October 2021.

• Interested parties are to file any evidence and submissions in reply by 4pm on Monday, 29 November 2021.

• The matter will be listed for Mention at 9:30 am (AEST) on Wednesday, 1 December 2021.

• The matter will be the subject of an oral hearing at 9:30 am (AEST) on Monday, 6 December 2021 (with 7 December 2021 reserved if necessary).

• Submissions to be filed in both Word and PDF formats and sent to amod@fwc.gov.au.

• The parties are granted liberty to apply to vary the above directions.

[1] [2021] FWCFB 4053

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