In a statement issued earlier this week,1 the Full Bench of the Fair Work Commission has provided its provisional views in response to an application submitted last month by Menulog Pty Ltd (Menulog) for the creation of an ‘On Demand Delivery Services Award’ (Proposed Award).

The Proposed Award seeks to cover those employers and employees operating in the ‘On Demand Delivery Services’ industry (On Demand Industry), defined in Menulog’s application as follows:

“… 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.”

Menulog’s application follows the company’s well-publicised decision to move away from the independent contractor model to an employment model. Menulog is currently in the early stages of trialling the employment of workers under the Miscellaneous Award 2020 however, Menulog has pleaded in its application that the objectives of the Fair Work Act 2009 (Cth) would best be met by the application of an award contemplating the On Demand Industry “as opposed to reliance on a safety net award”.

In its statement, the Full Bench noted that before deciding whether to create the Proposed Award, the following preliminary matters must be considered:

1. Is the On Demand Industry currently covered by a modern award?

The Full Bench agreed with Menulog that the Fast Food Industry Award 2010 did not cover employers operating in the On Demand Industry and their employees. However, the Full Bench did not express a view as to the potential coverage of the Road Transport and Distribution Award 2020, noting that Menulog simply submitted that this award should not, rather than does not, cover them. It was accepted that if no other award covered these employers and employees, the Miscellaneous Award 2020 would apply.

2. If a modern award does cover employees and employers in the On Demand Industry, does it meet the modern awards objective?

With respect to the Road Transport and Distribution Award 2020, the Full Bench recognised that it was insufficient for Menulog to simply differentiate the On Demand Industry from the broader transport industry. Rather, the Full Bench noted that Menulog would have to demonstrate that the characteristics of the On Demand Industry necessitated different terms and conditions to those stipulated by the Road Transport and Distribution Award 2020 or any other award. Notably, the Full Bench concurred with Menulog’s view that the Miscellaneous Award 2020 did not meet the modern award objective as it did not provide a fair and relevant safety net for those operating in the On Demand Industry.

3. Instead of creating a new award, should an existing award be varied to cover the On Demand Industry?

The Full Bench noted that it required further information to determine whether an existing modern award should be varied to cover the On Demand Industry.

What’s Next?

Interested parties are invited to lodge written submissions with respect to the provisional views raised by the Full Bench in its statement. A Mention hearing will be held on 23 August 2021.

Readers should watch this space for updates as to the progress of Menulog’s application.