PN1

JUSTICE ROSS: Good afternoon. If I go through the appearances that I have. Mr Calver for NatRoad; Mr Ryan for RTO; Mr Arndt for ACCI, ABI and the New South Wales Business Chamber; Mr Vasuki for the Australian Industry Group. We have two observers. There are a number of people representing Menulog. Who will be speaking out of that group?

PN2

MS K SWEATMAN: Good afternoon, your Honour, Sweatman, initial K, from Kingston Reid, I will be seeking permission as you require to represent Menulog. I am attending here today with Mr McElroy and Mr Fredericks from the company.

PN3

JUSTICE ROSS: Thank you. And for the TWU, who will be speaking for them?

PN4

MR BONCARDO: If your Honour pleases, Boncardo, initial P. To the extent permission is required given the terms of rule 12 I seek permission to appear on behalf of the TWU. I am instructed today by Ms Biviano and Mr Kaine, my client's national secretary. He is also online.

PN5

JUSTICE ROSS: Thank you. I don't think permission is required, but in any event it's only a mention. If it becomes an issue it can be dealt with later. Does everyone have a copy of a background paper that was circulated late this morning that just seeks to characterise the issues that are contested and the matters that appear to be common ground. Is there anyone who doesn't have a copy of that? No? All right.

PN6

At paragraph 4 of that document it records the fact that from a review of the submissions it appears that the matters that the Commission must take into account before deciding whether or not to make a new modern award that's uncontested. That's the matter set out at paragraph 11 of the Full Bench's statement of 12 July.

PN7

The ACCI notes or advances an additional threshold matter, and the TWU emphasises that prohibited effect of section 163(2), but save for those two glosses there is no contest around the substance of what those preliminary matters are. It also appears to be common ground that if no other modern award covers the employers and their courier employees who are the subject of the application then the Miscellaneous Award covers them.

PN8

The contested matters are set out at paragraph 9 of that background paper. They are in substance whether or not the Fast Food Award applies to the employers and employees who are the subject of this application, and whether or not the Road Transport Award covers those employers and employees, and finally, and you only get to (3) if the answer to (1) and (2) is 'No', then the third issue is on the basis that the Miscellaneous Award covers these employers and employees then does it provide a fair and relevant safety net.

PN9

In its submission the TWU proposes that the preliminary matters of whether or not the Road Transport and/or the Fast Food Award cover the employees to whom the application relates that question should be determined as a threshold question, because then it will frame the issues for later determination, and as you note from the first provisional view, which is set out at paragraph 1, item 1 in the background paper, in deciding whether or not to make a new modern award the first question is whether the employers and employees concerned are currently covered by a modern award.

PN10

So on that basis it would seem that the TWU's framing of those issues as threshold issues is correct, and the final paragraph in the background paper said that other interested parties would be invited to comment on the TWU's proposal, that is that those matters be determined as threshold issues, and what directions do you propose for the hearing and determination of those issues.

PN11

Now, of course whilst that threshold issue is being determined that doesn't preclude the parties continuing, particularly the TWU and Menulog, continuing to pursue their direct discussions about the content of any award should it be made. The first issue then for any interested party is what do you say about the TWU's proposal and what directions should be made in that regard. So perhaps if I go firstly to - it's the TWU's proposal, Mr Boncardo, so unless you have changed your mind I don't need to detain you about it. I think I would go to Menulog first and then to the other employer bodies. Ms Sweatman, what do you say about the TWU's proposal?

PN12

MS SWEATMAN: Thank you, your Honour. Yes, we accept that there will need to be a threshold question determined given the diversity of views as to what, if any, existing award coverage there is. We did have some preliminary discussions with the TWU earlier this morning about what a timetable could look like in light of that, whether the Commission would be assisted by a timetable under which the parties produce evidence to assist the Commission to determine what, if any, award covers the employees currently. Yes. So we have proposed a timetable which would see an initial 12 weeks for parties to file evidence and then a further 12 weeks following that for any evidence in reply.

PN13

While that might on the face of it appear to be quite a long timetable taking into account that there is emerging evidence in this area, and given the number of parties who are interested in this area and express an interest to conduct research or to gather evidence to assist the Commission we considered that that would be an appropriate timetable. Ms Biviano and I weren't able to circle back to understand whether that is a timetable that's agreeable to the TWU, but certainly that's what we propose as a starting position.

PN14

JUSTICE ROSS: All right. Thank you, Ms Sweatman. Mr Boncardo, do you have a view about the timetable?

PN15

MR BONCARDO: Yes, your Honour. It's far too relaxed, to use perhaps an inapposite term. The factual issues, with respect, are not complex ones. The matters set out in Menulog's application which describes its operation are not, at least so far as my client is concerned, fundamentally in contest as between the TWU and Menulog, and I don't apprehend from reading the submissions of the other interested parties that there is really no contest as to what is involved in the provision of on demand delivery, food delivery services. It's really a question, your Honour, of legal characterisation and a determination as to whether or not the Fast Food and/or the Road Transport Industry Awards cover the employees the subject of the application.

PN16

We don't understand that there would need to be significant evidence led on that threshold issue. The facts are fairly narrow in compass and it is really a question of legal characterisation. So we would see a delay of 24 weeks as being proposed by Menulog as exorbitant and entirely unnecessary and would propose in the alternate that the parties have perhaps (audio malfunction) going first a period of somewhere between two to three weeks to put on evidence and submissions, with a further period of two to three weeks being allocated to the other interested parties to file any evidence and submissions that they may wish to rely upon, and the matter set down for a hearing, which I would apprehend would not take much longer than half a day to a day given the narrowness of the threshold issue.

PN17

JUSTICE ROSS: All right. Well, I suppose the observation I would make is it's not your application, so the speed at which it moves at is really - primarily it's the applicant's interest that would be affected, but I hear what you say about the scope of it and we will hear from the various other parties about both the threshold questions and the timeframe. I might go to you first, Mr Arndt.

PN18

MR ARNDT: Thank you, your Honour. From the chamber of ABI and New South Wales Business Chambers perspective we don't have any issue with the determination of the threshold issue first. It seems like a sensible course. In terms of the timing we don't have a view as to the competing timetables put forward by the TWU and Menulog. I would say though however that it does seem like the threshold issue is one of characterisation, and doesn't strike me as something that would need, or at least I haven't turned my mind to what types of evidence would need to be produced to determine those threshold issues.

PN19

The only thing from the perspective of the parties I represent it would need a really precise definition about who the employees that the application is said to relate to. So I note that a template or draft order has been placed on the Commission's website today, an exposure draft filed by Menulog that has a framework of who the proposed award would seek to apply to. So long as that was clarified the scope of which the employees to which the award is to relate to is clarified we would have no issue being able to comply with either Mr Boncardo's timetable or the timetable proposed by Ms Sweatman.

PN20

JUSTICE ROSS: Mr Arndt, when you say clarified do you mean it's been clarified in the material that's been filed today?

PN21

MR ARNDT: No, I wouldn't say that.

PN22

JUSTICE ROSS: Isn't it the further clarification that you seek?

PN23

MR ARNDT: I would assume that the clarification would be on the face of the materials that would be initially filed by Menulog anyway. It just strikes me as one of the difficulties that all parties, including those who we represent faced in filing the initial submissions, was that we weren't entirely sure - obviously Menulog is a large company with a relatively well known place in the market - but we weren't entirely sure as to precisely what employees, which individuals would be covered by the award. So, so long as that was clarified or identified we wouldn't see any problem in proceeding from that point. I must admit, your Honour, I haven't closely read the exposure draft that's been placed on the website today, so I can't make any comment as to whether - - -

PN24

JUSTICE ROSS: Yes. No, I understand that.

PN25

MR ARNDT: - - - the position clear.

PN26

JUSTICE ROSS: Yes. It was only provided this morning and was only published relatively recently. So from your perspective you agree with the determination of the threshold issues as proposed by the TWU is a sensible way to proceed. If I can characterise the rest of your submissions you don't really mind which of the various propositions on timeframe is adopted, but you have raised that when Menulog comes to file its submissions on those threshold issues it would assist if clarity was provided regarding the employees to be covered by the proposed award. And then perhaps more importantly, also who is not proposed to be covered, so - - -

PN27

MR ARNDT: Exactly. So the parties and the Commission are put in a submission where they can make some intelligible submissions as to whether the Road Transport Award, or the Fast Food Award applies to those employees.

PN28

JUSTICE ROSS: All right, thank you. Mr Vasuki, for the Australian Industry Group, what do you want to say about these issues?

PN29

MS PAUL: (No audible reply).

PN30

JUSTICE ROSS: I think you're on mute. Yes.

PN31

MS PAUL: Sorry, your Honour. The Ai Group's position is per our submissions, that they were done within the context of not seeing the actual award - - -

PN32

JUSTICE ROSS: Yes.

PN33

MS PAUL: Which you have (indistinct), as you've already identified. I guess we take a slightly different view. We don't see that there's any necessity, I guess, for the sort of predetermination in the matters, both about which is the appropriate award. We say it could be held by way of course after the determination of whether or not a new award can be made, and particularly in light of the fact that we now have a new award to actually review. But realistically, I guess, as you've already pointed out, your Honour, this is the application by Menulog. This will be a matter that we're happy to go with, Menulog's proposition. But our issue would be that as this award could likely impact a number of other participants in the industry, and the broader industry, as such, at some point, it's not always not - if there may be other participants in this industry that operate on the same basis.

PN34

We would say that the first and more proper course as actually Menulog are filing, the reasons for the making of the award and the matter of whether it's Transport of Fast Food Award, really can fall after that. But we will take on board what the Commission has actually said with regards to that. We will probably be in a much better position once we have had the opportunity of looking at the award that's been filed today to any great extent, and we will reserve our rights in relation to coming and maybe addressing any of these issues further. But to that extent we would also have no issues around which of the proposals the Commission is minded to award around timing.

PN35

JUSTICE ROSS: I'm not sure I follow your argument that we should first decide whether we can make an award. We can't do that - based on the provision view which you've accepted, we can't do that until we ascertain whether the relevant employers and employees are currently covered by a modern award. So just as a matter of logic I think we've got to be concerned with that matter first.

PN36

MS PAUL: I guess, your Honour, my view is that it would be best to actually - if we could have all of the evidence put forward around both of those issues and have it determined in the sequence, as you've suggested, without necessarily splitting the two separate sort of hearings, in that sense.

PN37

JUSTICE ROSS: Yes - - -

PN38

MS PAUL: To some extent, your Honour, our position is the fact that we still, other than getting the award today, it's not accompanied by any reasons or submissions to support that or to support, for the matter, in terms of which award would be applicable. And we do think that that might be a matter that's looked at in totality, rather than segregation.

PN39

JUSTICE ROSS: Yes. I will discuss it with the Full Bench and I'll get the transcript of the mention. Speaking for myself though, I think the question of which award might cover these employees is a fairly fundamental one and until you decide that, what would be the purpose of putting all the parties to the expense of responding to a particular proposed award and its terms until you know the earlier questions? Because you've got to at least get through - well one, is there a current modern award with coverage, and does that then meet the modern award objective for that industry in the sector; and if it doesn't, what do you do? Do you vary an existing award or do you create a new one? So I think you've gone straight to the end game, if you like, and there seem to be some steps on the way, that's all.

PN40

MS PAUL: Your Honour, I'm not disagreeing with that. It's just the unique circumstances of the fact that there isn't an award that actually covers this particular industry, per se, I think creates a slight difference to be considered, bearing in mind it is actually one - - -

PN41

JUSTICE ROSS: Yes but - - -

PN42

MS PAUL: And there may be a whole bunch of other operators that are potentially unaware of this, as well.

PN43

JUSTICE ROSS: Sure. No, no, sure. But them being unaware of it is - well, the fact that we are dealing with it by this threshold method, if that's the proposition, well that gives them longer to become aware of it. But it's not the case that there is no modern award that currently covers this group. All of you agree that if it's not the - well, in fact, Ai Group contends that it's the Fast Food Award but leave that aside for a moment, you all agree that if it's not Fast Food or Road Transport then it's the Miscellaneous Award. So if there isn't a modern award that covers, 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.

PN44

MS PAUL: Your Honour, I've got no further to add other than that point. And I would like to say we don't disagree with that point of view. It was just an alternate proposition, your Honour.

PN45

JUSTICE ROSS: All right. Let me go to the RTO and then that road.

PN46

MR RYAN: Thank you, your Honour. RTO takes the view that very plainly there is an award that covers this work at hand. It's the Road Transport and Distribution Award. We're happy to go down that track that the TWU suggested. But at this stage we have a firm view that the Fast Food Industry Award is not applicable because Menulog, those employees are employed by Menulog, not by fast food operators; and secondly, we still need some more detail that provides detail around Menulog's actual operations. I'm still one of those people who, if I'd ordered some food I'll get in my car and go and collect it. So I don't quite understand precisely how Menulog and others do meet that need, other than Menulog pick up a parcel and deliver it from A to B. And that's what the transport industry does. That's what it's about. So I'm happy to get some further and better particulars from Menulog on their operations, and happy to meet the timetable that the Commission suggests and if it's eight or twelve weeks, that's fine. If the Commission pleases.

PN47

JUSTICE ROSS: Thanks, Mr Ryan. Mr Claver? Mr Calver? I think you're on mute. I'll just see if my Associate can get Mr Calver.

PN48

MR CALVER: Thank you. I think the Commission muted me, your Honour, sorry.

PN49

JUSTICE ROSS: Right.

PN50

MR CALVER: If it pleases the Commission, in relation to the threshold issue we have no problem with that being determined as a preliminary matter. We are anagnostic on timing and we agree that further evidence being filed in this matter will assist to determine that threshold question.

PN51

JUSTICE ROSS: All right, thank you. Ms Sweatman, can I go back to you. You've heard what's been said. If the next step in the proceeding is to deal with these threshold questions, a number of parties have indicated they'll be seeking clarification from your client about who is proposed to be covered, and also to see some evidence about how Menulog operates. And that might be relevant to the question of which award is appropriate or which award might cover the operations. You've also heard the TWU view that it isn't going to take twelve weeks. It'd be fair to say most of the other parties are a bit agnostic about the timing. Do you maintain that you require twelve weeks, or are you inclined to accept a lesser period, perhaps not as short a period as Mr Boncardo was advocating, but some other period between two weeks and twelve?

PN52

MS SWEATMAN: Yes, thank you, your Honour. I can answer the question that Mr Arndt asked, quite quickly which is that the proposed modern award is proposed to cover couriers, employee couriers. There's a level 1 and a level 2 courier that is proposed. We acknowledge that each of the interested parties would not have had an opportunity to digest the award as proposed but we'd sought to make that clear in our application and in our two sets of submissions that have been filed. With respect to Ms Paul's question about the reasons why the application has been made again, I had hoped that that had been made sufficiently clear through Menulog's application and its submissions that the reason it's made this application is to address the situation where there is not clear - and we say there is no award coverage and we consider that it is appropriate that the Commission make a modern award to cover this industry.

PN53

Flowing from that, what I would say to Mr Ryan's question, and I think to (indistinct) back to the timeframe that has been proposed by the TWU, Menulog is not proposing that this is an enterprise award. This is not simply about Menulog. Menulog can and will provide evidence about its own experience in this industry, but this is proposed to be an industry award. And so the timetable set by the Commission needs to be sufficient to allow interested parties to - it may or ay not include Menulog's competitors but certainly the academics and other people who've been interested in this industry, to present evidence so that the Commission is able to look at the industry of on-demand delivery services as we've defined it holistically, and this is not simply an assessment of Menulog's business and how it participates in this industry.

PN54

And so we do maintain that there needs to be an appropriate timeframe for that. The academics don't appear to be here today but have expressed a great interest. The academics who have filed submissions have expressed interest in providing further information to the Commission around this point, and we do think it is important that this is an industry-focussed evidence assessment, and not simply an assessment on Menulog's business in isolation.

PN55

JUSTICE ROSS: Thank you. What do you say about the timeframe?

PN56

MS SWEATMAN: I maintain that the timeframe that we have proposed is appropriate and it's proportionate to allow all of the different interested parties to provide evidence and have input into what the industry represents, and considered holistically, what is the current award coverage, so that there is an assessment made not simply about whether Menulog's employee careers are currently covered by an award but rather whether any employee courier is employed by any other business. And we acknowledge that to our knowledge, there are no other on-demand delivery platforms that are offering employment at this time, but if such employers did exist, what would be the current award coverage covering their couriers.

PN57

JUSTICE ROSS: All right, thank you. Just before I go back to the TWU, Ms Paul, I wanted to apologise for managing to butcher your name. It was around the other way in the appearance sheet in front of me, so I thought it was Mr Paul Vasuki rather than yourself.

PN58

Mr Boncardo, can I go to you? Is there anything finally you wanted to say about what's transpired?

PN59

MR BONCARDO: Your Honour, only to make four points. Ms Sweatman, I think, quite appropriately acknowledged that the only food delivery company that engages its workers, we say, correctly as employees, is Menulog. So the notion that an extended period is required for other interested parties is one which we don't think has much to commend it in circumstances where unfortunately companies such as Uber, Deliveroo and Door Dash inaccurately, in my client's view, characterise their workers as independent contractors. Secondly that there is, certainly from my client's perspective, a need for an element of expedition in determining the threshold question as, at least so far as my client is concerned, the award that has always covered, to the exclusion of both the Fast Food Industry Award and obviously the Miscellaneous Award, are workers in this sector has been the Road Transport Award.

PN60

Additionally, your Honour, any discussions between the parties, and certainly my client, will continue with progressive discussions with Menulog throughout this process, but any (indistinct) would, we think, we assisted by the Commission's determination of the threshold issue, as soon as possible. Unless your Honour has any further questions those are the matters that I would place on record in relation to the question (indistinct).

PN61

JUSTICE ROSS: All right, thank you. If there is nothing else from any party I'll adjourn. I will confer with my colleagues on the Full Bench and we'll issue some directions, probably tomorrow or Wednesday. I can indicate that they will be around the hearing and determination of the threshold issues. It is also likely that they would include, as a first step, so I wanted to put you on notice now, that within a week those parties other than Menulog who seek clarification about the employees to be covered by the proposed award, should identify or file a short submission indicating what their understanding is of those who are to be covered, and what is the clarification, if any, that they're seeking.

PN62

I'd suggest that as a first step because it's better to do it upfront and then Menulog can respond to that, rather than having it come out in reply submissions some time down the track that there's insufficient clarity, or further information is sought around a particular issue. So for the various employer interests, and perhaps the TWU, other than Menulog, if they can give some consideration to that. It may be that you don't seek any clarification and it's clear to you. But if it's not then you should, within a week, identify what clarification you seek from Menulog. Nothing further? I think the TWU indicated it was happy to participate in conciliation. I'll leave that up to the TWU and Menulog and see how your discussions go. But if at any stage your think that might assist then just get in touch with my chambers.

PN63

MR BONCARDO: If your Honour pleases. Thank you.

PN64

JUSTICE ROSS: Nothing further? All right, thank you, very much. I'll adjourn.

ADJOURNED INDEFINITELY [1.38 PM]