Company’s lawyer tells Fair Work Commission Australia’s existing road transport award does not recognise on-demand nature of industry
Menulog has argued that existing employment law was not designed with on-demand delivery riders in mind, as it urges the Fair Work Commission to establish a new award as part of its push to become the first gig economy company to make its workers full employees.
Menulog announced in April it would make its delivery riders full employees, rather than contractors, which would entitle them to award wages and other protections that gig workers do not have.
The company’s Australian managing director, Morten Belling, has previously said the move to fully employ workers may cost the company more, but was necessary to “meet its moral obligations”.
However, Menulog says the current award system is not suitable and has applied to the Fair Work Commission to create an “on-demand industry award”.
The case was heard before the full bench of the commission on Monday, with the company arguing the role was too different to be covered by the existing fast food or road transport and distribution awards.
Barrister acting for Menulog, Brendan Avallone, told the commission the existing awards predated the on-demand delivery industry.
“It is new, it is something which did not exist when these awards were made in 2008-2009, let alone when their predecessor awards were created in the decade before that,” he said.
Unlike other roles in fast food, riders are not employed by the restaurant providing the produce, he said, while the road transport award did not recognise the on-demand nature of delivery riders.
However, the Transport Workers’ Union argues that delivery riders could be covered by the road transport and distribution award.
In a submission earlier this month, the TWU said the introduction of an app to organise what would otherwise be considered courier deliveries did not change what had been a decades-long practice covered by the existing award.
“Menulog and its competitors who provide on-demand food delivery services are in the road transport and distribution industry as they are each employers involved in the transport by road of food, drinks and meals which are goods, wares, merchandise or anything whatsoever ... The transport by road of food, drinks and meals represent the core aspect of their businesses and plainly bring these employers within the coverage of the RTA,” the submission stated.
TWU national secretary, Michael Kaine, said in a statement that existing rights for transport workers must not be undermined.
“We welcome Menulog’s acknowledgment that appropriate rights and standards in the industry must be put in place, but we must ensure that existing terms and conditions for transport workers are not undermined,” he said. “If we can get that balance right in the award system, then we will also still need to ensure that others, like Uber Eats and Deliveroo, stop deliberately misclassifying work.”
The commission will decide whether one of the existing awards is appropriate, whether they could be modified, or if a new award is warranted.
The commission reserved its decision on Monday. Should Menulog be successful, it would not ultimately decide the award but rather inform discussions between Menulog, the TWU and others over the path forward, Avallone said.