[2022] FWCFB 5

The attached document replaces the document previously issued with the above code on 28 January 2022.

Typographical errors in clause references at paragraphs 9 and 14 corrected.

Modern Awards Team

Dated 28 January 2022

[2022] FWCFB 5
FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.158—Application to make a modern award

Menulog Pty Ltd
(AM2021/72)

VICE PRESIDENT HATCHER
VICE PRESIDENT CATANZARITI
COMMISSIONER O’NEILL

SYDNEY, 28 JANUARY 2022

Application to make a modern award – determination of threshold issue – whether employers and their courier employees in the on demand delivery services industry are currently covered by a modern award – Fast Food Industry Award 2010 – Road Transport and Distribution Award 2020.

Introduction

[1] On 24 June 2021, Menulog Pty Ltd (Menulog) filed an application pursuant to s 158 of the Fair Work Act 2009 (FW Act) which seeks the making of a new modern award under s 157(1)(b) of the FW Act to cover what the application describes as the “on demand delivery services industry”. The application, as filed, did not set out the terms of the award sought. However, it included the following definition of the proposed industry coverage of the award 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.”

[2] Menulog subsequently (on 23 August 2021) filed an “exposure draft” of the award that it sought, entitled the “On Demand Delivery Services Industry Award 2022”. The coverage clause in this draft (clause 4.1) provides that the award covers “employers throughout Australia in the on demand delivery services industry and their employees in the classifications listed in clause 12 to the exclusion of any other modern award.” There are two classifications of “Courier” provided for in clause 12, which term is defined as “an employee employed as a courier, driver or rider (howsoever described)”.

[3] Subsections 163(1) and (2) of the FW Act have relevance to Menulog’s application. They provide:

163  Special criteria relating to changing coverage of modern awards

Special rule about reducing coverage

(1)  The FWC must not make a determination varying a modern award so that certain employers or employees stop being covered by the award unless the FWC is satisfied that they will instead become covered by another modern award (other than the miscellaneous modern award) that is appropriate for them.

Special rule about making a modern award

(2)  The FWC must not make a modern award covering certain employers or employees unless the FWC has considered whether it should, instead, make a determination varying an existing modern award to cover them.

[4] In a Statement issued on 12 July 2021, 1 a differently-constituted Full Bench which then had carriage of Menulog’s application expressed some provisional views concerning the application. First, the Full Bench said that it provisionally considered the relevant effect of ss 163(1) and (2) to be that it was necessary for the following matters to be determined prior to consideration being given to the making of a new modern award to cover the on demand delivery services industry:

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

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

3. If the current award coverage does not meet the modern awards 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).

[5] Secondly, the Full Bench expressed some provisional views in relation to the above three matters. In relation to the first matter, the Full Bench said that its provisional view was that the Fast Food Industry Award 2010 (Fast Food Award) did not cover the industry as defined, but declined to express any view as to whether the industry was covered by the Road Transport and Distribution Award 2020 (Road Transport Award). The Full Bench also stated the provisional view that the industry would be covered by the Miscellaneous Award 2020 (Miscellaneous Award) if it was not covered by any other modern award. As to the second matter, the Full Bench confined itself to expressing the view that, if the Miscellaneous Award does cover the on demand delivery services industry, then it does not provide a fair and relevant safety net for that industry. As to the third matter, the Full Bench said only that further submissions and evidence would be required to inform its consideration as to whether an existing modern award should be varied to cover employers and employees in the industry as defined. The Full Bench made directions for the filing of further submissions in response to its provisional views and the other observations it had made.

[6] After the receipt of submissions from a range of parties, the Full Bench (as previously constituted) issued a further statement on 24 August 2021. 2 In that statement, the Full Bench noted that its earlier-stated provisional view as to the matters which the Commission must take into account before deciding whether or not to make a new modern award was not contested by any party, as was its provisional view that the Miscellaneous Award would cover the on demand delivery services industry if no other modern award covered the industry. The Full Bench then identified the following matters as being in contest:

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

2. Whether or not the 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.

[7] Having regard to these contested matters, the Full Bench said that the question of whether 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. It made directions for the filing of evidence and submissions in respect of this issue, and the matter was listed for hearing on 6 December 2021. The Full Bench was reconstituted prior to the listed hearing.

[8] This decision concerns the threshold issue identified in the 24 August 2021 statement. It is not in dispute that, while we cannot make a judicial determination in respect of the threshold question of award coverage, we are entitled to express and act on our opinion as to that question for the purpose of subsequently exercising our modern awards powers under the FW Act in respect of Menulog’s application. 3

Relevant award provisions

[9] The coverage of the Road Transport Award is prescribed by clause 4.1, which provides:

4.1 This industry award covers employers throughout Australia in the road transport and distribution industry and their employees in the classifications listed in Schedule A—Classification Definitions for Distribution Facility Employees and Schedule B—Classification Structure to the exclusion of any other modern award.

[10] Clause 4.2 of the Road Transport Award defines the expression “road transport and distribution industry” used in clause 4.1. That part of the definition relevant to the threshold issue is clause 4.2(a), which provides:

4.2 The road transport and distribution industry means:

(a) the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer;

. . .

[11] Clause 4.3 provides that the Road Transport Award does not cover employers and employees covered by the Mining Industry Award 2020, the Road Transport (Long Distance Operations) Award 2020 whilst undertaking long distance operations, the Transport (Cash in Transit) Award 2020 and the Waste Management Award 2020. Clause 4.7 provides (excluding the note, which is not of present relevance):

4.7 Where an employer is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.

[12] The classifications listed in Schedule B of the Road Transport Award (referred to in clause 4.1) include the following (underlining added):

[13] The term “courier” is defined in clause 2 of the Road Transport Award as follows:

courier means an employee who is engaged as a courier and who uses a passenger car or station wagon, light commercial van, motorcycle or bicycle or who delivers on foot, in the course of such employment.

[14] The coverage of the Fast Food Award is prescribed by clause 4.1 of the award, which provides:

4.1 This industry award covers employers throughout Australia in the fast food industry and their employees in the classifications listed in clause 17—Minimum weekly wages to the exclusion of any other modern award. The award does not cover employers in the following industries:

[15] The expression “fast food industry” used in clause 4.1 is defined in clause 3.1 of the Fast Food Award as follows:

fast food industry means the industry of taking orders for and/or preparation and/or sale and/or delivery of:

[16] Clause 4.7 of the Fast Food Award is in the same terms as clause 4.7 of the Road Transport Award.

[17] The classifications definitions in respect of the classifications referred to in clause 4.1 are set out in Schedule B. Schedule B includes the following classification (underlining added):

B.1 Fast Food Employee Level 1

B.1.1 An employee engaged in the preparation, the receipt of orders, cooking, sale, serving or delivery of meals, snacks and/or beverages which are sold to the public primarily to take away or in food courts in shopping centres.

B.1.2 A Fast Food Employee Level 1 will undertake duties as directed within the limits of their competence, skills and training including incidental cleaning and cleaning of toilets.

Evidence and submissions

Menulog

[18] Menulog’s position is that neither the Road Transport Award nor the Fast Food Award covers couriers employed in the on demand delivery services industry. In respect of that industry, as defined in its application, Menulog’s submissions noted the following matters:

•  the proposed coverage is not confined to the collection and delivery of food, let alone fast food;

•  the items are not sold by the employer itself, but are ordered by a consumer from third-party businesses that offer food, goods and other items for sale;

•  the consumer initiates the order, which is for immediate collection and delivery;

•  the items are ordered by the consumer on an online or application-based platform; and

•  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, meaning that the employer’s online platform is of critical importance in defining the industry.

[19] Menulog submitted that the key characteristics of commercial arrangements in the industry are as follows:

(a) There are commercial terms agreed between the operator (such as Menulog or its competitors Deliveroo, DoorDash or UberEats) and the merchant (such as a restaurant or a store).

(b) The operator engages in marketing activities, using the merchant’s name, logo and other intellectual property, to promote the merchant’s business.

(c) The operator provides an order processing service, which enables customers to place orders on the operator’s online or application-based platform, for items to be supplied by the merchant (not the operator).

(d) The “service” which the operator provides to the consumer is that the operator provides a way for the consumer to communicate the consumer’s orders for products to merchants (restaurants or other sellers), using the operator’s online or application-based platform.

(e) The operator provides an ordering device and/or software, programs or applications, which enable the merchant to receive orders.

(f) The operator acts as the merchant’s agent, for the sale of food and other products, being sales by the merchant to customers who place an order on the operator’s online or application-based platform.

(g) The operator acts as the merchant’s agent to accept, receive and hold credit card or debit card payments.

(h) The commercial terms between the operator and the merchant include various fees, and a commission, payable by the merchant to the operator.

(i) The operator holds the payments received from customers, less fees charged by the operator to the merchant, on behalf of the merchant, and pays those amounts to the merchant.

(j) The merchant prepares the items ordered by the customer, and it is the merchant which is responsible for fulfilling the order and for the quality of the relevant items.

(k) In addition to the services referred to above, the operator and the merchant can also agree for the operator to procure delivery services provided by a “delivery partner” (which might be an independent contractor or an employee). If such an agreement is reached whereby:

(i) the merchant prepares the items so that they are ready for collection, uses packaging suitable for delivery, and checks the order;

(ii) the operator procures delivery of the order to be provided by a delivery partner;

(iii) neither the operator nor the delivery partner takes legal ownership of the items to be delivered;

(iv) the operator may charge a fee/commission to the merchant, that may be different to (logically, higher than) the fee/commission charged if the operator had not procured the delivery services; and

(v) the operator may charge each customer a delivery fee/service fee.

[20] Menulog submitted that each operator’s online or application-based platform is central to the way that the on demand delivery services industry operates, in that the platform is not simply the means by which collections and deliveries are co-ordinated but is also the means by which sales are generated, consumers make their orders and merchants fulfil the customer’s order.

[21] In relation to the Road Transport Award, it was submitted that clause 4.2(a) was to be read in a context whereby, when the provision was initially drafted in the course of the award modernisation process conducted pursuant to Part 10A of the Workplace Relations Act 1996, the food e-commerce industry was in its infancy, the on demand delivery services industry the subject of the application was non-existent in Australia, and the subsequent proliferation of technology used in the “gig economy” could not have been contemplated. Menulog submitted that because the Road Transport Award was an industry award, the focus was necessarily upon the business of the employer rather than the work activities of the individual employees. The on demand delivery services industry is not, it submitted, an industry of the “transport by road” of items, but is rather an industry of marketing a third-party merchant’s items to consumers, accepting orders from consumers as an agent of the merchant (with the sale being made, from the merchant to the consumer, for immediate delivery) using an on-line or application based platform, accepting payment from the consumer on behalf of the merchant, and collecting/delivering the item immediately from the merchant to the consumer. This is a very different industry to the traditional “road transport industry” described in subparagraph 4.2(a) of the Road Transport Award, in that delivery is but one aspect of the process.

[22] Menulog also submitted that the delivery of prepared meals is not encompassed by the words “goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock” in clause 4.2(a) of the Road Transport Award. It submitted that “goods, wares, merchandise [and] material” are examples of raw goods and manufactured items and do not extend to prepared meals delivered for immediate consumption, and the words “anything whatsoever…” should be read as eiusdem generis with the preceding words. Menulog submitted that clauses 4.2(b), (c), (d) and (e) plainly do not describe the work of the on demand delivery services industry.

[23] In relation to the Fast Food Award, Menulog submitted that the award covers only fast food outlets (that is, producers of fast food), and not employers in the on demand delivery services industry which do not make the food which they deliver. The words “and/or delivery” in the definition of “fast food industry” in clause 3.1, read in context, are to be understood as referring to delivery by an employer which is itself a fast food outlet. Menulog also noted that, in any event, fast food is not the only item delivered by the on demand delivery services industry, and that the industry also delivers “higher end” restaurant meals as well as non-food items. It would be perverse, it submitted, for an employee in the industry who made some fast food deliveries in the course of a shift but also made deliveries of non-fast food items in the course of the same shift to be covered by the Fast Food Award, or for an employee to be covered by the Fast Food Award in respect of some shifts but not others depending upon what was delivered during the shift.

[24] In support of its case, Menulog filed a witness statement made by Morten Belling, the Managing Director, Australia & New Zealand of Menulog, dated 18 October 2021. 4 Mr Belling was not required for cross-examination by any party for the purpose of the determination of the threshold issue. In his witness statement, Mr Belling described the establishment and development of the Menulog business. He explained that at the time of its commencement in 2006, Menulog was “a pure self-delivery business, working with restaurant partners with their own delivery drivers to provide online ordering solutions.” It was only in 2018 that Menulog began engaging delivery drivers to “connect customers and restaurants”. Mr Belling said that such drivers are predominantly engaged as independent contractors but about 20 of them are engaged as employees. These drivers use bicycles, e-bikes, scooters, motorcycles or cars to perform their work. He said that Menulog currently operates in Australia with three business models:

(a) a customer collection model where customers place orders with restaurants and merchants but they opt to collect the order themselves rather than rely on delivery (the collection business);

(b) a pure marketplace model where customers place orders with restaurants and merchants that undertake their own deliveries to customers (the marketplace business); and

(c) an on demand delivery services model, launched in April 2018, where Menulog facilitates deliveries for restaurants and merchants through independent contractors and, in some instances in Sydney, employed couriers, engaged on a customer demand basis (the delivery business).

[25] Mr Belling said that, currently, Menulog has arrangements with over 27,000 businesses of which 95.95% are restaurants and fast food businesses, 3.18% are convenience and grocery businesses and 0.86% are bottle shops. He described in detail the platform which Menulog uses to take and process orders and to arrange delivery using its delivery couriers, and said that Menulog’s main competitors (Deliveroo, DoorDash, and Uber Eats) operated in fundamentally the same way.

[26] Mr Belling distinguished between on demand delivery services and “traditional courier services” in the following way:

“The critical difference between traditional courier services and on demand delivery services is that a traditional courier service provider does not procure or otherwise facilitate sales for restaurants and merchants. Rather, traditional couriers exist only to provide collection and delivery services, whether or not the items being collected and delivered are the subject of a sales transaction.”

[27] Mr Belling also pointed to the fact that in respect of the “vast majority” of transactions conducted in the on demand delivery services industry, the items being collected and delivered are immediately perishable and must be delivered within a short timeframe (on average, 9.2 minutes from the time the food is collected from the restaurant to the time it is delivered to the customer), and went on to say:

“In contrast to the immediately perishable nature of the items being delivered by on demand delivery couriers, traditional courier services offer typically same day delivery or delivery within three hours. This means that on demand delivery services are planning minute-by-minute deliveries for immediate consumption as contrasted with hour-by-hour, or day-by-day deliveries. Consequently, traditional couriers can also cover a much broader delivery area.”

[28] Mr Belling also compared on demand delivery to “road transport services” as follows:

“As with traditional courier services, the critical difference between road transport services and on demand delivery services is that a road transport provider does not procure or otherwise facilitate sales for restaurants and merchants. Rather, they exist only to provide collection, road transport and delivery services, whether or not the goods being collected and delivered are the subject of a sales transaction.

All of the above considerations for traditional courier services are reflective of the broader road transport delivery services industry, but are amplified by the fact that the delivery of items through the traditional road transportation services will typically be with even less immediacy.”

[29] These considerations, Mr Belling said, made it more difficult for the on demand delivery services industry, which faced greater volatility in demand, to plan for the delivery of services in an efficient way based upon reasonably consistent trends. Mr Belling also referred to statistical evidence to demonstrate that workers in the on demand delivery services industry were more likely to be younger, undertaking studies, temporary or permanent residents, speak a language other than English at home, have higher levels of education and work less average hours per week.

Transport Workers’ Union of Australia

[30] The position of the Transport Workers’ Union of Australia (TWU) was that the threshold issue should be determined on the basis that employees and employers who would be covered by the new award sought by Menulog are covered by the Road Transport Award, to the exclusion of any other modern award. The TWU submitted that Menulog and its competitors are in the road transport and distribution industry as they are employers which have as a core aspect of their business involvement in the transport by road of food, drinks and meals, which are goods, wares, merchandise or anything whatsoever for the purposes of clause 4.2(a) of the Road Transport Award. The TWU submitted that the work done by these employers and other entities in the “gig economy space” is analogous to and an outgrowth of ad hoc courier work, which had been a feature of the road transport industry for decades, and the on demand delivery services sector was the product of new forms of technology which have facilitated the arrangement and performance of what is, for all intents and purposes, ad hoc courier work using mobile phone and internet technologies without the interposition of human beings to manage and coordinate the work.

[31] The TWU submitted that Menulog’s submission that meals do not fall within the scope of clause 4.2(a) of the Road Transport Award should be rejected since, on the ordinary meaning of the words used, meals are goods, wares, merchandise or “anything whatsoever…”, and the eiusdem generis cannon of construction has no application to the rule. The TWU also submitted that Menulog’s submissions did not take into account that clause 4.2(a) applies to an employer whose principal business, undertaking or industry is not the road transport of goods but where the transportation of goods is ancillary to the employer’s business. This meant, it was submitted, that the Road Transport Award covered Menulog and its competitors even if the road transport of meals was only ancillary to its business.

[32] It was submitted that, contrary to Menulog’s “originalist” interpretative approach, it was irrelevant that the system for arranging work used by Menulog and its competitors may not have existed in its precise current form when the Road Transport Award was made. The work is plainly a form of ad hoc courier work which has been the subject of regulation by that award and its federal and state predecessors for decades and there is no proper basis to read the words goods, wares, merchandise and anything whatsoever as limited to goods, wares, merchandise and anything whatsoever which existed in 2009 when the Road Transport Award was made.

[33] The TWU agreed with the Commission’s preliminary view (and Menulog’s submission) that the Fast Food Award does not cover employers and courier employees in the on demand delivery services industry, and submitted that even if the Fast Food Award was capable of covering Menulog and its competitors, the classifications in the Road Transport Award are “more appropriate” for the purposes of clause 4.7 of the Road Transport Award and the Fast Food Award, such that the employees are covered by the Road Transport Award in any event.

[34] The TWU relied upon a witness statement made by Davis Clayton, a delivery rider/courier (using a bicycle or e-bike) and a member of the TWU, dated 28 November 2021. 5 Mr Clayton was not required for cross-examination by any party for the purpose of the determination of the threshold issue. Mr Clayton said in his witness statement that he currently performs work for Menulog, DoorDash, Deliveroo and Uber Eats, and had previously performed work for a number of other businesses in the on demand sector. In all cases, he said, he was engaged as an independent contractor. He described in his statement the engagement, training and work processes and expectations for the businesses he worked for, which he characterised as largely being the same overall across all of these businesses. In relation to the technology used by business in the sector, Mr Clayton said:

“In all cases, the application technology is available for download through the Apple store, Google Play store or similar platform. Generally, my On-Demand Delivery Employers would provide me with instructions about how to use and download the application.

There is no difficulty associated with downloading and installing any of the applications I use as provided by my On-Demand Delivery Employers. In every case, the applications are freely available and accessible once I was provided my login credentials. I do not require any special skill or training to access the applications or download them. There is no greater difficulty in downloading the application than downloading a game or weather application.

Further, once logged in, I do not require any special skill or knowledge to use the phone applications to accept and perform work. The applications are simple to use. Their design is such that any person can use the device irrespective of their level of education or experience. I have personally met and assisted several delivery workers who were undertaking deliveries using the On-Demand Delivery Employers’ phone applications with little knowledge of the English language.”

Australian Chamber of Commerce and Industry; Australian Business Industrial

[35] In their joint submission, the Australian Chamber of Commerce and Industry (ACCI) and Australian Business Industrial (ABI) contended that:

•  the Road Transport Award covers Menulog and its courier employees;

•  the Fast Food Award also covers Menulog and its courier employees;

•  the competing coverage between the two awards should be reconciled in favour of the Road Transport Award; and

•  there is nothing peculiar, unique or novel about the work of the courier employees of Menulog.

[36] The ACCI and ABI submitted that the delivery services provided by Menulog fit within the traditional conception and ordinary meaning of courier work, which has always had time sensitivity as one of its elements. Courier work, it was submitted, was clearly covered by the Road Transport Award, having regard to the terms of clause 4.2(a) and the courier classifications in Schedule B to the award. The ACCI and ABI also submitted that the Fast Food Award covered Menulog and its courier employees because Menulog is an employer within the “fast food industry” as defined in clause 3.1, since it takes orders and facilitates the delivery of fast food and since its courier employees fall within the Level 1 classification in Schedule B to the award. They submitted that, in respect of this competing coverage, the Commission should determine that the Road Transport Award is the award which should apply because the classifications in the Road Transport Award more closely represent the manner and environments in which work is performed and the nature and type of goods delivered in the on demand sector are broader than merely fast food.

[37] The ACCI and ABI submitted that Menulog’s reliance on its digital platform to indicate that it operates in a new industry was a “distraction” and “an artifice to perpetuate an illusion of peculiarity or uniqueness”. On a proper consideration of the business documents of Menulog (annexed to Mr Belling’s witness statement), it was submitted, it was evident that the provision of delivery services is the primary component of its business operations, and the digital platform is merely a tool by which requests for delivery services are facilitated and communicated to the courier, with the role of the courier being primarily concerned with the collection and delivery of goods.

Australian Industry Group

[38] The Australian Industry Group (Ai Group) submitted that employers and their courier employees in the on demand delivery services sector are covered by the Road Transport Award, since the sector falls within the definition of the road transport and distribution industry in clause 4.2(a) and the work of the employees is encompassed by the classifications in the award. The Ai Group also submitted that it was arguable that the Fast Food Award also covered the sector, and the Commission should avoid any overlapping coverage which might result through the use of the “most appropriate classification” provisions of each award.

Australian Road Transport Industrial Organisation

[39] The Australian Road Transport Industrial Organisation submitted that Menulog’s business plainly fell within the scope of clause 4.2(a) of the Road Transport Award. It submitted that this position was not affected by its use of online or “app” technology:

“The Menulog submission would have one believe that the use of an ‘app’ changes the transport task by making the delivery of the meal as simply the final step in a marketing exercise, rather than the most critical component of the transaction.

In para 4.10 of its submission, Menulog claim that the ‘online or application-based platform places the consumer at the centre of the process, in a way that is foreign to traditional forms of transport’.

ARTIO submits that the consumer is critical to any movement of ‘goods, wares or merchandise’, whether the transaction is generated by phone, facsimile, internet, application or any other means of communication - it is always about the successful transport and delivery of the item sought by the consumer.

ARTIO submits that the Menulog model, and the same applies to the other ‘on demand delivery companies,’ is about the transport and delivery of ‘food, beverages, goods or other items.’

Without the successful delivery of the ‘food, beverages, goods or other items’ there is no completion of the transaction and one can therefore assume that no payment would be deducted for such a service failure.”

Other submissions

[40] Joint written submissions were filed by three academic researchers: Dr Tom Barratt of Edith Cowan University, Dr Caleb Goods of The University of Western Australia and Dr Alex Veen of The University of Sydney. Insofar as their submissions addressed the issue of award coverage, they submitted that the provisions of the Fast Food Award or, failing that, the Road Transport Award, are applicable to the on demand sector.

Consideration

[41] Although there has, understandably, been a substantial degree of focus in the evidence and submissions about the specific operations of Menulog and, to a lesser extent, some of its competitors involved in meal delivery, the threshold issue with which this decision is concerned must be determined by reference to the coverage provision of Menulog’s proposed new award. We have earlier set out the proposed coverage provision. It has two elements: first, the requirement for the employer to be “in” the “on demand delivery services industry” (as defined) and, second, the requirement for the employee to be “in” the classifications in the proposed award. The drafting of the coverage provision for the proposed award in this way reflects the way in which the coverage provisions of industry-based modern awards, including the Road Transport Award and the Fast Food Award, are generally drafted. The question to be determined may therefore be framed in a twofold way as being whether the industry which the proposed award would cover aligns with or falls within the industry covered by either of the modern awards, and whether the classifications in the proposed award align with or fall within any of the classifications in either modern award.

[42] We will deal with the threshold question, framed in this way, in relation to the Road Transport Award first. In relation to industry coverage, the central element of the definition of the on demand delivery services industry proposed by Menulog is the business activity of “the collection and delivery of food, beverages, goods or any other item”. There is no express reference to the collection and delivery of such items necessarily occurring by road transport, but we take that to be implicit having regard to the classifications in the proposed award and the evidence about the means by which businesses in the industry conduct their operations. We consider that the business activity referred to clearly falls within that part of the definition of “road transport and distribution industry” in clause 4.2(a) of the Road Transport Award. The function of “collection and delivery” by road referred to in the proposed industry definition is one and the same thing as “transport by road” in clause 4.2(a), and “food, beverages, goods or any other item” in the proposed definition falls comfortably within the expression “goods, wares, merchandise, material or anything whatsoever…” etc. in clause 4.2(a).

[43] We reject Menulog’s submission that clause 4.2(a) does not encompass the on demand delivery services industry because the delivery of prepared meals does not constitute the transport by road of “goods, wares, merchandise, material or anything whatsoever…” etc. The most immediate objection to this submission is that Menulog’s definition of the on demand delivery services industry is not confined to the delivery of prepared meals, but extends to “food, beverages, goods or any other item”. Expressed at this level of generality, such delivery readily falls within the scope of clause 4.2(a). In any event, we reject the submission that prepared meals are not “goods, wares, merchandise, material or anything whatsoever…”. The meaning of the word “goods” is of very general and wide import and, in current usage, is taken to mean personal property of every kind with its essential feature being that it is moveable and therefore capable of manual delivery. 6 A useful although not exhaustive test for determining whether something can be characterised as “goods” is whether it is saleable.7 Certificates of title to land and share certificates;8 coins and banknotes;9 live eels;10 material excavated from a construction site;11 fresh veiled straw, poultry manure, cotton seed hulls, cotton seed meal and gypsum;12 and electricity and electrical power13 have all been held to constitute “goods”. We are therefore satisfied that meals prepared for sale and home delivery constitute “goods” for the purpose of clause 4.2(a) of the Road Transport Award.

[44] Even if prepared meals did not constitute “goods”, they would clearly fall within the words “…anything whatsoever…” etc. in clause 4.2(a), which appear to us to be drafted as a “catch-all” to cover anything that might not be encompassed by the terms “goods, wares, merchandise, material”. We reject Menulog’s submission that the eiusdem generis principle of construction has any application such as to permit these catch-all words to be read down in some way. The words “goods, wares, merchandise, material” used in clause 4.2(a) are all of the widest import and have overlapping meaning, and no genus was suggested by Menulog or is otherwise identifiable which might also attach to and limit “…anything whatsoever…” etc.

[45] The gravamen of Menulog’s case is that the various conditions and limitations contained in its proposed definition of “on demand delivery services industry” upon the words “the collection and delivery of food, beverages, goods or any other item” take it outside the scope of clause 4.2(a). These conditions and limitations may be identified as follows:

(1) The food, beverages, goods and items collected and delivered must be ordered by the consumer from a third party business.

(2) The third party business must offer the food, beverages, goods and other items for sale for immediate collection and delivery.

(3) The order must be placed by use of an online or application-based platform. Although this is not expressly stated in the proposed definition, we take it as implicit from Menulog’s evidence and submissions that the platform must be one operated by the employer, not the third-party business.

(4) The collection and delivery are not of the employer’s own food, beverages, goods or other items offered by it for sale.

(5) The employer must not be in the primary business of providing general transport or delivery services of items not purchased on its online platform.

[46] We do not accept that any of these conditions and limitations takes the “on demand delivery services industry”, as defined, outside the scope of clause 4.2(a) of the Road Transport Award. The first and fourth matters are entirely unremarkable: road transport businesses covered by the Road Transport Award typically carry goods produced and sold by a third-party business from that business to the consumer that ordered the goods. There is nothing in the language of clause 4.2(a) which would exclude the transport of goods in these circumstances. Nor is the second matter in any way remarkable: the road transport industry has always accommodated a variety of timeframes for delivery, and the courier sector in particular has long dealt with highly urgent and immediate deliveries. The applicability of clause 4.2(a) is not conditioned by the timeframe for delivery.

[47] The third and fifth matters concern the use of online or application-based platforms to take orders and allocate delivery work to drivers. There are two features of this use of digital platforms which are raised by Menulog’s submissions. The first is that this technology, which was developed to facilitate the ordering and delivery of products for immediate consumption, was not in use and could not have been contemplated at the time the Road Transport Award was made. This may be so, but it does not assist Menulog’s case. Nothing in the language of clause of 4.2(a), which is expressed in general and non-technical terms, confines the operation of the provision by reference to the type of technologies in use at the time the Road Transport Award was made. Thus, although the connotation of the words used in the provision will be fixed, their denotation may change in accordance with developments in technology. 14 The road transport industry has adopted a range of technologies over time but this has never been regarded as having any effect on the question of award coverage; for instance, in respect of communication with drivers and the allocation of work, the industry began to move from two-way radios to mobile phones and digital platforms back in the 1990s. No doubt the industry will over time begin using electric vehicles to an increasing degree. The language of clause 4.2(a) readily accommodates this.

[48] The second point made is that, in “on demand delivery services industry” as defined, the order for the third-party business’s product is received and processed through the employer’s digital platform rather than by the third-party business. Thus, the employer’s involvement in the process goes well beyond the mere collection and delivery of the meal or other items ordered by the consumer. The employer effectively markets the products of third-party businesses through its digital platform and provides the means by which the commercial transaction between the consumer and the third-party business is effected. However, we do not consider that this removes the industry as defined from the scope of clause 4.2(a). The industry definition proposed by Menulog only encompasses the delivery and collection of the identified goods, not the operation of the employer’s digital platform. Clause 4.2(a) provides in express terms that the award industry definition applies where the road transport work performed “is ancillary to the principal business, undertaking or industry of the employer”. Thus, to the extent that the collection and delivery of goods by an employer in the on demand delivery services industry may only be one part, even an ancillary or incidental part, of the employer’s business, clause 4.2(a) still applies to the collection and delivery functions. 15

[49] We therefore conclude that the “on demand delivery services industry”, as defined by Menulog, would comfortably fall within that part of the definition of the “road transport and distribution industry” contained in clause 4.2(a) of the Road Transport Award.

[50] There is no real contest and, in any event, we consider that the courier classifications in Menulog’s proposed award are encompassed by the classifications of Transport Worker Grade 1 (in respect of couriers on foot or using bicycles) or Transport Worker Grade 2 (for couriers using motorcycles or cars) in Schedule B to the Road Transport Award. We therefore conclude that the field of employment which would be covered by Menulog’s proposed award is currently covered by the Road Transport Award.

[51] We now turn to the Fast Food Award. It may be accepted that, read strictly literally, the definition of “fast food industry” in clause 3.1 of the Fast Food Award may encompass an employer that only takes orders for and delivers fast food without actually preparing it. That is a result of the disjunctive “or” used in the description of the industry in the chapeau to the definition as “…taking orders for and/or preparation and/or sale and/or delivery…”. However, this literal reading is inconsistent with the stated intention of the Full Bench of the Australian Industrial Relations Commission which made the Fast Food Award. In a decision issued on 19 December 2008, 16 the Full Bench set out the process by which it had arrived at the conclusion that a separate award for the fast food sector should be made:

“[279] A major proportion of the submissions on the retail industry exposure draft award concerned its scope and application. In our decision of 20 June 2008 we indicated that we proposed to consider all aspects of the retail industry, apart from real estate agencies and motor vehicle related retailing, as part of the priority stage.

[280] In response to that decision the Shop, Distributive and Allied Employees Association (the SDA) proposed a single award in the industry. The exposure draft adopted that approach while providing for variations for some parts of the industry in relation to classifications and hours. In our statement of 12 September 2008 we invited submissions on the inclusion of additional flexibilities to reflect current award and NAPSA provisions.

[281] In the subsequent consultations, employer groups continued to oppose the inclusion of fast food, beauty and hairdressing, meat retailing, and community pharmacies within the same award as applies to general retailing. In response to these submissions the SDA indicated that its approach, which was revised following our decision of 20 June 2008, was based on the Commission’s decision. Arising from consultations in relation to the Agriculture industry in Stage 2, employers who conduct stand alone nurseries also indicated their opposition to the inclusion of nurseries within a general retail award.

[282] The issue of the scope of the retail award raises important considerations concerning the objectives of award modernisation. The objective of reducing the number of awards applying in an industry carries with it the objective of rationalising disparate terms and conditions so that the resultant safety net is more uniform, consistent and fair. However, it is also evident that there are wide variations in terms and conditions in safety net awards and NAPSAs in the retail industry.

[283] The more awards with disparate provisions are aggregated the greater the extent of changes in the safety net. Changes may be able to be accommodated by a ‘swings and roundabouts’ approach, specific provisions relevant to part of the industry or transitional provisions. However, significant changes may also result in net disadvantage to employees and/or increased costs for employers. The publication of an exposure draft which sought to rationalise the terms and conditions across the various types of retail establishment provided a means whereby the impact of such an approach could be fully evaluated.

[284] We have considered these matters and the submissions of the parties and have decided to make separate awards for general retailing, fast food, hair and beauty, and community pharmacies. Further, we will exclude stand alone meat retailing and, at this stage, stand alone nurseries from the general retail award to enable those types of operations to be considered as part of the meat and agriculture industries respectively. The position regarding real estate agencies and motor vehicle related retailing will also be considered in subsequent stages.

[285] In reaching this decision we have placed significant reliance on the objective of not disadvantaging employees or leading to additional costs. We note that such an approach will not lead to additional awards applying to a particular employer or employee.”

[52] The original inclusion of the fast food sector in the then-proposed retail industry award is not suggestive of an intention that the sector was to be taken to include employers who did not actually produce and sell fast food. There are textual indicators in the Fast Food Award itself which confirm this:

•  clause 25.1 provides that the hours of work for employees as provided in clause 25 operate subject to legislated retail trading hours in each State or Territory, indicating that employers under the award are understood to be operating retail establishments;

•  clause 19.6(b) refers to an employee performing delivery “of the employer’s products” using their own motor vehicle and prescribes an allowance for this and, as such, does not contemplate that the products of any business but that of the employer will be delivered; and

•  the descriptor for the classification of Fast Food Employee Level 3 in Schedule B refers to an employee being appointed by the employer to be in charge of “a shop, food outlet or delivery outlet” – that is, a “bricks and mortar” business operation.

[53] Accordingly, we would prefer to read the chapeau to the industry definition in clause 3.1 as if it said: “fast food industry means the industry of taking orders for, preparing and selling (by direct provision to the customer and/or by delivery to the customer’s address) …”. If read this way, the “on demand delivery services industry” as defined in Menulog’s proposed award would not fall within the definition of “fast food industry” in clause 3.1 of the Fast Food Award and thus would not be covered by the Fast Food Award.

[54] However, even if the definition of “fast food industry” is to be read strictly literally, and acknowledging that the courier classifications in Menulog’s proposed award would fall at least in part within the classification of Fast Food Employee Level 1 in the Fast Food Award (because of the reference to an “employee engaged in the … delivery of meals, snacks and/or beverages”), we would nonetheless conclude that the Fast Food Award does not cover courier employees in the “on demand delivery services industry” as defined by reason of the operation of clause 4.7 of the Road Transport Award and clause 4.7 of the Fast Food Award. A conclusion that employers in the “on demand delivery services industry” fall (at least in part) within the scope of the coverage provided in clause 4.1 of the Fast Food Award would mean that there is overlapping coverage between that award and the Road Transport Award (based on our earlier conclusion as to the coverage of that award). Clause 4.7 in each award provides for the resolution of such overlapping coverage by requiring that “an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work.” There can in our view be no question that the classifications of Transport Worker Grade 1 or 2 (as applicable) are the most appropriate classification compared to Fast Food Employee Level 1 in the Fast Food Award. This is because the former classifications would apply to the work of collecting and delivering all the goods and items referred to in Menulog’s proposed definition of the “on demand delivery services industry”, whereas the latter classification could only cover couriers performing such work when they were delivering fast food, and not when delivering restaurant meals, alcoholic beverages or any other item. Even if a “major and substantial” test was applied to the application of the Fast Food Employee Level 1, this would still raise the possibility that the classification may not apply to an employee during particular shifts, or may apply to some employees of an employer but not others, depending on the variable balance of deliveries of fast food compared to other types of meals and other items.

Conclusion

[55] We conclude that the Road Transport Award currently covers employers and their courier employees in the “on demand delivery services industry” as defined in Menulog’s proposed award, and that the Fast Food Award does not cover such courier employees. It also necessarily follows from this conclusion that the Miscellaneous Award does not cover them by reason of clause 4.1 of that award.

[56] The next step in this matter is for consideration to be given as to whether the coverage of employers and employees in the “on demand delivery services industry” as defined by the Road Transport Award meets the modern awards objective in s 134(1) of the FW Act. However, we understand that Menulog and at least some other parties to the proceedings wish to undertake a process of consultation and/or conciliation in relation to the application prior to such consideration occurring. A directions hearing will be listed in the near future to facilitate this.

al of the Fair Work Commission with the memeber's signature.

VICE PRESIDENT

Appearances:

B Avallone of counsel on behalf of Menulog Pty Ltd.
M Gibian SC and P Boncardo of counsel on behalf of the Transport Workers’ Union of Australia.
N Ward on behalf of Australian Chamber of Commerce and Industry and Australian Business Industrial.
P Ryan on behalf of the Australian Road Transport Industrial Organisation.
V Paul on behalf of the Australian Industry Group.

Hearing details:

2021.

Sydney and Melbourne (via video-link):
6 December.

Printed by authority of the Commonwealth Government Printer

<PR737838>

 1   [2021] FWCFB 4053

 2   [2021] FWCFB 5227

 3   See Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29, 163 CLR 140 at 148-9

 4   Exhibit 1

 5   Exhibit 2

 6   AGL Victoria Pty Ltd v Lockwood [2003] VSC 453, 10 VR 596 at [69]

 7   Federal Commissioner of Taxation v Totalisator Administration Board of Queensland [1990] HCA 48, 170 CLR 508 at 511

 8   Re Kanbur Pty Limited and Darryl Iver Holt v John William Adams [1984] FCA 204, 3 FCR 192 at 205-6

 9   Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) [2013] NSWCA 470 at [132]

 10   Integrated Marketing and Export Development Grants Board [1980] AATA 51

 11   Transport Workers' Union of Australia, New South Wales Branch v Walkers Civil Engineering Pty Ltd [1998] NSWIRComm 624 

 12   Elf Farm Supplies Pty Ltd v Hawkesbury City Council & Anor [1999] NSWLEC 261 at [10], [14]

 13   State Electricity Commission of Victoria v Commissioner of Taxation [1999] FCA 1329, 96 FCR 22 at [22]-[23], [28]

 14   See Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32, 123 CLR 327 at 331; Dick Smith Electronics Pty Ltd v Commissioner of Taxation [1997] FCA 261

 15   Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148, 245 IR 449 at [17]-[23]

 16   [2008] AIRCFB 1000