The Fair Work Commission (FWC) is calling for any questions on the coverage of Menulog's proposed award for food-delivery gig workers and has set a timeline to consider threshold issues such as the current award that covers them and if it can instead be varied if not fit for purpose.
As the company pursues its bid for an award to support its shift from a model using independent contractors to engaging direct employees on award wages and conditions, it also emphasised it is a whole-of-industry proposition.
FWC President, Iain Ross said Menulog, the TWU and employer groups in attendance all agreed if the fast food or road transport awards did not cover the workers, "then it's the Miscellaneous Award".
"The question then becomes, well, which modern award is it, and does that modern award provide a fair and relevant safety net for this particular cohort of employees?" said Justice Ross.
“If it doesn't, what do you do? Do you vary an existing award or do you create a new one?"
Menulog maintains no industry or occupational modern award covers employers or employees in the on-demand delivery services industry, apart from the Miscellaneous Award as a safety net instrument.
The TWU and the Australian Road Transport Industrial Organisation say on-demand food delivery workers are covered by the Road Transport and Distribution Award, while the Ai Group disagrees with the FWC's provisional view that the workers do not appear to be covered by the Fast Food Award.
Academics, meanwhile, caution that creating a new award for on-demand delivery platforms like Menulog might give them a competitive labour cost advantage against "nearly identical" forms of work covered by current awards.
While the next step involves dealing with the threshold questions, Justice Ross said that parties also wanted clarification from Menulog about "who is proposed to be covered" by its suggested award and "some evidence" about how the company operates.
"That might be relevant to the question of which award is appropriate or which award might cover the operations," he said.
Menulog's lawyer, Kingston Reid partner Katie Sweatman, said the gig company is proposing a modern award to cover "employee couriers" at level 1 and a level 2 classifications, as set out in its exposure draft .
Sweatman said the company's application is "not simply about Menulog" and it is "not proposing that this is an enterprise award".
"Menulog can and will provide evidence about its own experience in this industry, but this is proposed to be an industry award," she continued.
Sweatman said the timetable needs to be "sufficient" to allow interested parties, including academics and potentially Menulog's competitors, to present evidence for the tribunal to "look at the industry of on-demand delivery services as we've defined it holistically".
"This is not simply an assessment of Menulog's business and how it participates in this industry."
Justice Ross in a statement this week said the tribunal agreed 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".
The tribunal will conduct a hearing on December 6.
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