PN1

VICE PRESIDENT HATCHER: I'll take appearances. Mr Avallone, you appear for Menulog?

PN2

MR B AVALLONE: If it please the Commission.

PN3

VICE PRESIDENT HATCHER: Mr Gibian, you appear, with Mr Boncardo, for the Transport Workers Union?

PN4

MR M GIBIAN: May it please.

PN5

VICE PRESIDENT HATCHER: Mr Ward, you appear for ACCI and ABI?

PN6

MR N WARD: I do, your Honour.

PN7

VICE PRESIDENT HATCHER: And, Mr Ryan, you appear for the Australian Road Transport Industrial Organisation?

PN8

MR P RYAN: That's correct, your Honour.

PN9

VICE PRESIDENT HATCHER: And, Ms Paul, you appear for the Australian Industry Group?

PN10

MS V PAUL: Yes, your Honour.

PN11

VICE PRESIDENT HATCHER: Is that all the appearances?

PN12

MR AVALLONE: I believe so.

PN13

VICE PRESIDENT HATCHER: Mr Avallone?

PN14

MR AVALLONE: Thank you, Vice President. I thought I'd start today just by clarifying or make sure everyone's clear on why we're here.

PN15

We're here today because the Full Bench, consisting of Ryan J, Catanzariti VP and O'Neill C, in their 12 July 2021 statement, for the sake of it, it's [2021] FWCFB 4053, expressed the provisional view that the Act requires it, in to first consider some initial matters, before deciding whether to make a modern award covering the on-demand delivery services industry.

PN16

Those initial matters identified by the Full Bench were:

PN17

(1) whether employers and employees in that industry aren't currently covered by a modern award; (2) if there is current award coverage whether the current award coverage of the employers and employees in the industry meets the modern awards objective; and (3) if the current award coverage does not meet the modern award objective whether, instead of making a new award, the Commission should vary an existing award to cover the relevant employers and employees.

PN18

So that was three initial issues which were identified.

PN19

The Full Bench's 24 August 2021 statement, which is [2021] FWCFB 5227, at paragraphs 10 and 11, referring back to that, said that:

PN20

The TWU proposed that the question of whether the Road Transport and/or the Fast Food Award cover employees to whom the application relates should be determined as a threshold issue. The TWU submits that the answer to this question will frame the issues for determination by the Full Bench. At the mention there was broad support for the proposal advanced by the TWU.

PN21

And then, at paragraph 11, the Full Bench continued:

PN22

We agree that the question of whether the employers and their courier employees, in the on-demand delivery services industry, are currently covered by a modern award is a threshold issue, in particular 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 industry.

PN23

Directions were then made to deal with that threshold issue and that threshold issue only.

PN24

VICE PRESIDENT HATCHER: What power are we exercising in doing this, the threshold task?

PN25

MR AVALLONE: The power, ultimately, is a power to either made or not make a modern award. The power that the Commission's exercising in asking itself this question is a power to satisfy itself of a preliminary issue, if I can put it that way. It won't be - if what you're alluding to, Vice President, is whether there's an exercise of judicial power here, I don't know if that is what you're alluding to, but I think the answer to that is no.

PN26

VICE PRESIDENT HATCHER: Obviously no, but it simply means that we're, at this point, expressing an opinion about this threshold question, I think.

PN27

MR AVALLONE: That's right, so as to satisfy yourself as to what the existing award coverage is. Effectively this is, if I can split it up this way; stage 1 is this stage, the question of what is the award coverage. The next stage will be what should be. That's where arguments about the modern award's objective or achieving the modern award objective and the appropriateness of one award or some other award or a new award covering, as a matter of policy, comes into play.

PN28

The question here today, for the Full Bench, is really one of plain and simple construction of, effectively, two awards, the Fast Food Award and the Road Transport and Distribution Award. A question of construing the meaning of the scope clauses of those two awards, looking at the evidence as to whether this industry is an industry not covered by either of those two awards. Or, if you reach the view that it's covered by one of them, then that's the view that you reach.

PN29

That's by no means today preliminary or threshold issue, the determination of it is not going to be the end of the matter, one way or the other, but it will - as the TWU submitted, at an earlier stage, it will frame the rest of the debate, going forward.

PN30

I'm jumping well ahead of myself here, but I notice that in the TWUs submissions, and it might be about the last paragraph, there submission is that the matter, once the threshold issue is determined, it should go to conciliation. That's an eminently sensible suggestion because once the Full Bench gives that guidance as to what its view is, that is an appropriate time for the parties to go into conciliation, with the assistance of the Commission.

PN31

There's already been a lot of discussions between Menulog and the TWU and other interested parties, as well, as to what things might look like, going forward, but bringing everyone to the one table, with the assistance of the Commission, there's an awful lot to be said for that.

PN32

VICE PRESIDENT HATCHER: All right. Obviously we've read the written submissions, Mr Avallone.

PN33

MR AVALLONE: Thank you, Vice President. You've mentioned the written submissions, I do rely upon Menulog's written submissions, dated 18 October 2021. That cross-references some of the earlier submissions, and I rely upon them too. I also rely upon - there's a witness statement of Morton Bourke Belling, B-e-l-l-i-n-g, and Hatcher VP will recall that last week all bar one of the parties indicated they did not seek to cross-examine Mr Belling. The position, as of Friday, is that nobody sought to cross-examine him. In circumstances where he's not being sought for cross‑examination, I do tender the witness statement of Morton Belling.

PN34

VICE PRESIDENT HATCHER: All right. So the statement of Morton Bourke Belling, dated 18 October 2021, will be marked exhibit 1 on the proceedings.

EXHIBIT #1 WITNESS STATEMENT OF MORTON BELLING DATED 18/10/2021

PN35

MR AVALLONE: Mr Gibian has got something to say.

PN36

VICE PRESIDENT HATCHER: Yes, Mr Gibian. Before you do that, can we mark your client's statement first?

PN37

MR AVALLONE: Of course.

PN38

VICE PRESIDENT HATCHER: So there's no objection to the admission of that statement?

PN39

MR AVALLONE: I suspect I'm about to say what Mr Gibian's about to say about my client's statement, which there are large parts of it which - well, in relation to Mr Clayton's statement, there's large parts of it which I would submit don't actually touch upon the question of whether there's - the question for you today, in relation to Mr Clayton's, they touch on, in large part, whether he, working for various entities, is an independent contractor or an employee. That's not a question for today. In fact, it's not a question in the proceedings. But subject to that and some matters of weight, as to his opinions, I don't object to it.

PN40

VICE PRESIDENT HATCHER: All right. The statement of Davis Clayton, dated 28 November 2021, will be marked exhibit 2.

EXHIBIT #2 WITNESS STATEMENT OF DAVIS CLAYTON DATED 28/11/2021

PN41

VICE PRESIDENT HATCHER: Mr Gibian?

PN42

MR GIBIAN: Thank you, your Honour. I was just going to repeat, in short-form, what I said, I think, at the directions hearing last week, which was in relation to Mr Belling's statement. There are parts of it with which we would disagree, as a matter of fact, and it may be we would, if the matter progresses to a stage of a merit hearing, object to the admission of material of that type, based upon his capacity to make those assertions. But we don't regard it necessary as to contest those factual propositions or to object to the statement, for the purpose of the threshold question which is raised.

PN43

VICE PRESIDENT HATCHER: That is noted.

PN44

MR AVALLONE: Thank you, Vice President. Just by means of, I guess, a road map of where I propose to go today, I've already talked about the threshold issue and I'll just say one further thing in that, which is that there are aspects of the interested parties submissions which deal with questions beyond the threshold issue, and I could put into that bucket all of the submissions recently filed by the academics and part of that which is being dealt with or filed by ACCI and the ABI. I don't propose to respond to those today, because that's a question for another day.

PN45

What I propose to do with today is just to make the point that the two awards that the Full Bench is required to look at today are both industry awards, they're not occupation awards. I'll put some brief submissions about how the on-demand delivery services industry is different. It is new, it is something which did not exist when these awards were made, in 2008/2009, let alone when their predecessor awards, where they came from, were created in the decades before that. Something very brief on the principles to be applied and then, effectively, responding to the interested parties submissions filed last week. First the Road Transport and Distribution Award and, second, the Fast Food Award. And then something brief on where to from here, if I can put it that way.

PN46

The first of those points that I've really, in summarising it, said it, is that both these two awards are industry awards, they are not occupation awards. It is to - a lot of the material set out in the interested parties submissions really do focus on the tasks performed by the couriers, essentially going into whether they're within a classification in either award or not. That's not the correct starting point, it's not even the correct finishing point, I submit. The start and the end of it does need to be a focus on the industry. Because my submission is that both Menulog and the other employers in the on-demand - sorry, and the other companies which either are now or could soon be employers, in the on-demand delivery services industry, they are not in either of the two awards, particularly industries covered by those two awards.

PN47

Now, one other thing I should note is that, just in relation to that, another thing that this hearing today is not about, just so we're clear, the ACCI and ABI submissions, again near the end, start going into submissions about what awards might cover other employees in the on-demand delivery services industry. The clerical workers, the marketing people, everything else, that is not a question that the Full Bench needs to trouble itself with today, because those are not people proposed to be covered by the proposed new modern award.

PN48

The proposed modern award my client seeks for the industry is one that would cover couriers working in the on-demand delivery services industry. We acknowledge that there are other employees in the industry who most likely are covered by occupational awards. That's something that might be relevant later on, in stage 2, but it's not relevant today.

PN49

Just dealing with the point about the industry being different, I do submit that the evidence does support a finding that this is a new industry, a very new industry, which simply did not exist 10 or 13 years ago, 13 or 12 years ago, when the modern awards were being made. It is not simply a matter of using some fancy new technology on a phone to do exactly the same thing which had been done in the past and has been done ever since the combustion engine was created or, perhaps, since horses were born.

PN50

The on-demand delivery services industry is not simply moving something from point A to point B. It is a consumer‑facing, or a consumer‑focused industry, where it's the consumer who chooses what platform they're going to go onto, whether it's Menulog, Uber Eats, Deliveroo, or whatever, on the basis of the marketing and the experiences they've had before with that platform. They choose which platform they're going to use, they choose with restaurant, from that platform's stable, if I can put it that way, they're going to select food from, and they choose to have food, whether it's hot or cold, whichever it is, they choose to have it served to them, effectively ready to eat as a meal, right here right not, and t hat's the immediate or the on-demand part of it.

PN51

So it's that consumer choice that drives everything. It is very different, I submit, to the traditional road transport industry where, effectively, I might choose to buy a new jumper from Myer's, or some other store, it may be a little small business. I might jump onto their website and select to buy it. I click, I indicate I want it delivered and then, effectively, that's it from me. The supplier, in that traditional industry, engages a transport company to pick it up from point A and take it, ultimately, to point B. That's a very different - that involvement of the transport company is simply A to B.

PN52

Contrast that with what happens in the on-demand delivery services industry, which is that, again whether it's Menulog or one of its competitors, Menulog is involved in the marketing, it's involved in, effectively, marketing all of the restaurants or other businesses in its stable, if I can put it that way, it facilitates the sale, it acts as the agent for the restaurant or fast food outlet or other supplier, in relation to receiving the orders, receiving the monies, holding on to the monies and then, ultimately, dispersing the monies to the supplier, less a commission. What it doesn't do is the actual making of the food or the holding of title in the food or other items, what it must be.

PN53

But apart from that aspect, it really is, if I can put it this way, cradle to grave of the entire transaction, from the beginning to the end. It's not just that A to B part, somewhere in the middle.

PN54

VICE PRESIDENT HATCHER: But the award you seek only covers the drivers?

PN55

MR AVALLONE: Yes, or the couriers, because they might be bike riders as well.

PN56

VICE PRESIDENT HATCHER: So the question is, what industry is Menulog in, in respect of the drivers? That is, we're not looking at the totality of the business. We know that a business can be more than one industry simultaneously, as part of its operations. The question here is, what industry is Menulog in, with respect to its putatively employed couriers or drivers?

PN57

MR AVALLONE: Well, yes. And I submit that they are - well, they're in the industry that Menulog is in, and that is the on-demand delivery service industry.

PN58

The clerks, if I can put it that way, they're in the same industry, it just happens that they're covered by an occupation-based award. That's why, if there were debate about them, the answer would be they're covered by some other award, it's because it's occupation-based. But that doesn't stop those clerks from being in the same industry as their employer.

PN59

One other thing that I should note about the business model, or the services provided by the employers in the on‑demand delivery services industry, is that collection and delivery by an employee courier is not the only method of the food getting to the consumer, if I can put it in that slightly awkward way.

PN60

There are, depending on the preferences of the consumer, there are options for the consumer themselves to, after ordering it using the platform, or using the app, for the consumer to go and collect the food from the restaurant or the fast food outlet. If they choose delivery, some restaurants or fast food outlets exercise a choice to deliver it themselves to the consumer. The third option is that the platform provides the couriers. All of those options, I submit, are all part of the industry which Menulog and its competitors are in, regardless of how the food actually gets to the consumer.

PN61

Effectively, I submit that the thing of value, if I can put it that way, which the consumer is obtaining is hot (or cold) food right here right now. It's much like - it's very much like if I want into a restaurant or a fast food outlet and I ordered food, it came to me where I was sitting. Effectively, it's the same thing, but I choose to, as the consumer, request that food come to me, ready for me to consume, somewhere else.

PN62

VICE PRESIDENT HATCHER: What's new about that? I mean pizza companies have been delivering pizzas for as long as I can remember.

PN63

MR AVALLONE: They have, and that is work, if it were done by an employee, and this is an important point, Vice President, that you raise, that is delivery work which, if it were done by an employee of a fast food outlet, that's work that would be covered by the Fast Food Award,
because - - -

PN64

VICE PRESIDENT HATCHER: And if the pizza supplier contracted a courier company to do it, it would be covered by the Road Transport Award, wouldn't it?

PN65

MR AVALLONE: Well, no, I submit that that's not correct, because that is - well, (a) that's not quite the issue that's being dealt with by the Commission today, but that's a business model or an industry which just did not exist in 2008/2009, when these awards were happening. The models, when modern awards were made, in 2008 and 2009, so far as delivery of ready to eat food, ready to eat meals, if I can put it that way, were either your pizza shop that employs its own person to deliver it, they're covered by the Fast Food Industry Award, because they're a fast food outlet. Maybe there were some restaurants that were doing it, because the restaurant, and I'm grateful to I think it's ACCI, in their submission, I think it's at paragraph 11.11, off the top of my head, they point out that the Restaurant Industry Award, in the classifications, includes delivery of their food, if it's a restaurant that employs people. So that type of work, that delivery work, such as it existed in relation to ready to eat meals, was covered by their industry awards, for fast food outlets or for restaurants. There was a gap and remains a gap, I submit, in the award coverage. That gap existed precisely because this industry did not exist at the time.

PN66

So the Full Bench of 2008/2009 can't be blamed for leaving a gap. The genius of the Fair Work Act modern award system is that it does allow those types of gaps to be filled. They're filled, first, on a temporary basis, as I submit has happened in this case, given that no industry award covers the work, the Miscellaneous Award fills the gap, as a safety net award, if I can put it that way. But the Act provides for a new modern award to be made for a new industry, and that's what we're seeking to do.

PN67

If I can deal, just briefly, with the approach for the Commission, in dealing with the preliminary question, there should be no real dispute as to the principles of interpretation of awards. I note that ACCI and ABI draw in a number of New South Wales Commission decisions, regarding the construction of New South Wales awards. What I say about that is that the best course, the safest course, is to follow judgments of the Federal Court interpreting federal awards, and my client's submissions set out a passage from the recent Full Court decision in King v Melbourne Vic Centre Swimming Club, the appeal in that decision, [2021] FCAFC 123, at paragraphs 40 to 43. That also expresses support for the first instance - sorry, the principles expressed at first instance, by Wheelahan J. I refer there to Menulog's submissions, at paragraph 3.1 to 3.5.

PN68

Effectively, the task is one of construing the words of the award, but doing so, having regard to their context, including the industrial and the historical context of those words.

PN69

The judgment of White J, in Biz Industries v CFMMEU, again both the TWU and ACCI refer to, doesn't really change things, I submit. It was handed down after Menulog's submissions were filed, but so be it. Really it says the same thing, effectively, 'Construe the words, construe them in context and then have regards to the facts to see whether those facts support a finding that the employer, or the industry, is within the coverage of the award'.

PN70

One difference that does seem to be there, although it might only be a subtle difference, is the submission of the TWU, in last week's submissions, at paragraph 11 of their - at paragraph 11 the TWU submit that a principle expressed by the High Court, in Ridd v James Cook University, which is [2021] HCA 32, at paragraph 17, they submit, if I understand correctly, that that principle is only applicable to enterprise agreements. What the plurality said, in that paragraph there, was that:

PN71

Industrial instruments are not always drafted carefully by lawyers or professional drafters and, hence, the literal words of a provision might more readily be understood to have a meaning other than their ordinary meaning, if the context so suggests.

PN72

I do submit that that's a principle which applies in this case, not just two enterprise agreements. The plurality in that case footnote the well known judgment of French J, as his Honour then was, in City of Wanneroo v ASU, which is the 2006 decision, [2006] 153 IR 426 at para 57.

PN73

Now, of course, City of Wanneroo, both of those cases, but that City of Wanneroo was an award interpretation case. French J there repeated the well known principle that:

PN74

The words of an instrument, an industrial instrument in particular, are not to be read in a vacuum.

PN75

It was more prosaically put by Burchett J, in Short v Hercus, which I know your Honour's will know, but I'll give the citation for the record, [1993] Vol 40 FCR 511 at 517. The say that Burchett J put it more prosaically, was:

PN76

When the expression was transplanted it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment. There is no inherent necessity to read it as uprooted and stripped of every trace of its former significance, standing bare in alien ground.

PN77

That passage, I should say, is extracted in the TWU v Coles Supermarkets decision that is in the folders of authorities. It's extracted at paragraph 122 of the Coles Supermarkets decision.

PN78

Given that what we're now looking at, or what the Full Bench is looking at, are 2020 awards, which are, effectively, the 2010 awards renamed and modernised, but they're largely copied, or the scope clauses and the industry definitions, are largely copied from the previous sets of federal awards that existed before that. I do submit that the awards take with them that historical context. The words should not and must not be read as if in a vacuum.

PN79

In relation to, and I'm just moving now to the interested parties submissions about the Road Transport and Distribution Award. My client's submissions set out, at paragraph 4.2 of the Menulog submissions of 18 October, set out the words of clause 4.1 and 4.2 of the Road Transport and Distribution Award. I refer to and rely upon Menulog's submissions about each of those subparagraphs.

PN80

The clause, or subclause, which seems to be the focus of most attention from the interested parties, is clause 4.2(a). One matter to be wary of, when looking at the words of clause 4.2(a) of the Road Transport and Distribution Award, is that it does not use the words 'involving' at the start. If one were to look at the TWUs submission, around paragraph 17(i), and I think it comes up a little lower down as well, it's said by the TWU that:

PN81

The award covered is something involving transport by road, of goods.

PN82

Et cetera, et cetera. That word 'involving' is simply not there and the Commission should not read words into it.

PN83

VICE PRESIDENT HATCHER: So what's the significance of that?

PN84

MR AVALLONE: Well, it is, again, because it is an industry award, and I'll keep coming back to this point, one needs to look at what is the industry and what is the industry that these employers are in. I submit that the industry that these employers are in is not the industry of the transport, by road, of goods, wares, et cetera, et cetera.

PN85

VICE PRESIDENT HATCHER: Well, the expression 'road transport and distribution industry' is defined by reference to a number of business activities, isn't it?

PN86

MR AVALLONE: Well, they're business activities in that - transport by road, one might say that that's an activity, but it's still an industry award. One has to look at what is the industry that the employer is in. Is part of the activities of Menulog and its competitors, transport of something? Yes, it is. But that's not the industry that it's in, I submit. It's in much - - -

PN87

VICE PRESIDENT HATCHER: Isn't the main difference between an industry and an occupational award is that an occupational award looks at what the employees are doing, whereas an industry award looks at what the employer is doing?

PN88

MR AVALLONE: Yes.

PN89

VICE PRESIDENT HATCHER: In this award the industry, that is, what the employer is doing, is defined by reference to the business activities set out in 4.2.

PN90

MR AVALLONE: Yes.

PN91

VICE PRESIDENT HATCHER: There can't be any real doubt, can there, that whatever else it does, Menulog engaged in the business activity in 4.2(a)?

PN92

MR AVALLONE: I submit that it's not, and I can deal with that in two parts. The first part of it is effectively all of the words up to 'livestock', and then the second part is the words from 'including' onwards. In relation to the first part of it, I submit, on two alternate grounds, that Menulog and its competitors are not in that industry. The first ground is that when one looks at the business activities of the employer as a whole, it's not in that industry, it's in something much broader than just moving items, for want of a better word, from A to B. It is doing that whole cradle to grave of the transaction. It's doing the marketing, facilitating the ordering, acting as agent for the seller. Part of it is, or might or might not be, depending on the consumer's choice, facilitating the delivery and then dealing with the money afterwards, to make sure that the seller receives their money for the thing of value which they've made or sold.

PN93

It is much more than just (a) or (b), so that's my first basis for saying that part.

PN94

VICE PRESIDENT HATCHER: Just before you move on from that, don't the words after 'including' anticipate the very thing you've just said? For example, if we go to the Coles Supermarket case, if I remember that case correctly, the Federal Court found that Coles was in that industry and the award covered the employees in question and it became a question of what was the most appropriate award.

PN95

MR AVALLONE: It did - - -

PN96

VICE PRESIDENT HATCHER: Nobody would suggest that Coles is entirely or wholly or substantially a transport company but because it engaged in a particular business function, it fell within the carriage of this award.

PN97

MR AVALLONE: Can I answer that by, first, the intermediate step, if you don't mind, Vice President, because my answer will make more sense if I just finish off on the alternate argument that I make, in relation to the first part.

PN98

The alternate argument that I put, in relation to the first part, is that the phrase:

PN99

Goods, wares, merchandise, material or anything whatsoever, whether in its raw or natural state, wholly or partly manufactured state, or a solid or liquid or gaseous nature, or otherwise, and/or livestock.

PN100

That that phrase does not cover hot food, ready for consumption right here right now, and it does not cover cold food, be it ice cream or whatever else, ready for consumption right here, right now. Those words, I submit do need to be read in the context of this award and of the other awards made at the time, by the Commission, as part of an overall structure which did include, as I mentioned before, both the Fast Food Industry Award and the Restaurant Industry Award, which both include, for their employees of those fast food outlets and those restaurants, deliver of food. So food, I submit, whilst it's not expressly carved out there - sorry, delivery of food, obviously, in the context of fast food and restaurants, which are ready to be eaten straight away.

PN101

Do Coles sell food? Obviously yes they do. They might even sell, these days, packaged food which is ready to be popped into a microwave and warmed up, but what they don't sell is a meal, which is ready for the consumer to basically - to answer the door, to say, 'Thank you very much for the food', to put it on the table and to eat it.

PN102

VICE PRESIDENT HATCHER: So the words, 'Anything whatsoever' doesn't cover that?

PN103

MR AVALLONE: I submit it does not, no. Those words, 'Anything whatsoever', are to be construed in light of what comes before and that 'Goods, wares, merchandise, material', is such as not to cover a meal which is ready for consumption, hot or cold, right here right now.

PN104

VICE PRESIDENT CATANZARITI: Coles and Woolworths now sell ready to eat foods. They actually have a whole section, ready to eat. They have hot foods, they have stuff you use straight away. So do you say those foods aren't provided?

PN105

MR AVALLONE: I say that those foods, if they're the same foods that I'm thinking of in my Coles Local, Catanzariti VP, are foods which are - which need something else done to them. They might be ready to eat once I put them in the microwave.

PN106

VICE PRESIDENT CATANZARITI: No, I'm talking about even the local Woolworths here, has things like hot spring rolls ready to eat, hot chickens ready to eat, you don't need to do anything with them, chicken drumsticks, cold salads ready to eat, individualised. There's a whole lot of stuff they're now selling, this is part of their new marketing, in the last couple of years. So I'm having some trouble working out the carve outs from clause 42(a).

PN107

MR AVALLONE: If Coles were to engage with, one way or another, a third party, to do the delivery of that food, there might be a very interesting debate, I submit, about what industry those people are in. But what I understand of what your Honour is describing, it's a situation where the customer walks into the store, picks it up off the shelf and can basically pay for it and eat it right away, there's no delivery, whether by a third party or otherwise, involved in that.

PN108

The case that, Hatcher VP, you were describing, I think, was, effectively a Coles warehouse or whatever the modern language is, distribution centre, the modern language for a warehouse, but that was a warehouse for the types of goods, wares, merchandise, material that traditionally supermarkets sell, which is materials either sitting on a shelf or sitting in the fridge, but where something has to be done to them before they're ready for consumption.

PN109

VICE PRESIDENT HATCHER: What about ice cream?

PN110

MR AVALLONE: Well, ice creams usually sold by Coles, they'll be packaged ice creams, for starters. They're either going to be packaged in a tub, which is going to require, if it were me serving it to my children or one of the kids parents putting it in a bowl, and that's doing something to them, to make it ready for consumption. Ice creams that are sold in a packaged way, yes, they need to be unwrapped and I guess that's probably all. But I don't think there's any suggestion that Coles or Woolworths are using third parties to do that type of right here right now immediate delivery, or on-demand delivery, of those ice creams. They might be delivering ice creams to people, as part of a big shop, and there's one chilled bag sitting there, but it's very different to this, which is - well, the evidence of Mr Belling is that Menulog, as an example, delivers within an average of 9.2 minutes. So if it's an ice cream we're talking about, I, the consumer, wants an ice cream, I want it from - actually, I'm not sure where I want it from yet, I'll jump on the Menulog site, or I'll jump on the Uber Eats site, or Deliveroo, or whoever it is, yes, I'll go with that supplier there as well, choosing it. I want strawberry and a bit of rocky road, click, press a button and it's there at my front door, within 10 or 15 minutes. That's the right here right now part of the, or on‑demand part of the industry.

PN111

Now, I haven't forgotten, Vice President, you asked about the words, 'Including where the work is performed, ancillary to the principal business undertaken, or industry'. The first thing I say about that is that those words still do not remove the need to look at what is the industry or what is the business of the employer.

PN112

Second, and, again, this is putting the alternative, that when it refers to 'the work', that must be a reference tom 'Transport by road of goods' et cetera, et cetera. On the same what that the hot food or cold food right here right now, being provided - being facilitated by Menulog and its competitors, in the same way that that's not a good et cetera, et cetera, covered by the first part, that is not the work covered by the second part.

PN113

I keep coming back to it, but the words - I was using the words before, consumer‑facing or consumer‑focused, this is very much a consumption driven industry, immediate consumption driven.

PN114

In a sense, what is being provided by Menulog and its competitors is, effectively, the same experience that the consumer would receive if they walked into the restaurant or walked into the fast food outlet and ordered their food and had it delivered to them, by foot, sitting inside the restaurant or, perhaps, if they're down near Manly beach, delivered by road, because the waiter walks out on the street to take it to them, sitting under an umbrella, it takes that dine in experience and makes it a dine at home experience. But it's the experience - if anything's being transported, I submit that it's that experience, it's not goods, et cetera, within the meaning of the award, that's being transported.

PN115

If one, and again, I'm sorry, I think I might have repeated this point, one does need to look at those words, in the context of the other existing awards and in circumstances where other existing awards do cover that transport of dine in experience to a dine at home experience, for the fast food outlets and for restaurants, that does, I submit, support a finding that those words do not cover ready to consume food.

PN116

It really is the - as I might have said before, it is unsurprising that this industry is not one covered by existing awards, because the existing awards were written back in 2008 and 2009, based on federal awards that were their predecessors, from decades before, written at a time when this industry just didn't exist.

PN117

Just by way of another example, I mentioned already the Fast Food Industry Award and the Restaurant Industry Award that provide for delivery and that being not expressly carved out from the Road Transport Distribution Awards, there are other things, if I can use that word, or items, the delivery of which are covered by other awards, again which are not expressly carved out from this award. We mention them in paragraph 4.17 of my client's submissions. They include the delivery of newspapers, which is covered by the General Retail Industry Award, the Meat Industry Award, of course, 4.2(d)(ii) provides for delivery. The Timber Industry Award, of course, 4.2(b)(ii). Each of those three, and also the Fast Food Industry Award and the Restaurant Industry Award, do envisage or do make clear that delivery of things covered by those awards, are covered by those awards, not by the Road Transport and Distribution Industry.

PN118

VICE PRESIDENT HATCHER: So does the Fast Food Award have an exclusion?

PN119

MR AVALLONE: No.

PN120

VICE PRESIDENT HATCHER: Why do you say that? It seems to me that - - -

PN121

MR AVALLONE: Well, the Fast Food Award covers, I submit, and I'll come to this shortly, when one looks at the words and reads them in context, it covers fast food outlets. That's the exclusion. Sorry, the Fast Food Award says:

PN122

This award does not cover an employee excluded from award coverage.

PN123

The Fast Food Industry Award, in its definition of the fast food industry, says that it means:

PN124

The industry of taking orders for and/or preparation and/or sale and/or delivery of meals, snacks, beverages.

PN125

Et cetera, et cetera. And it goes on with another couple of dot points.

PN126

VICE PRESIDENT HATCHER: Why do you say the Road Transport Award is thereby excluded from coverage?

PN127

MR AVALLONE: Well, one has to - it comes, ultimately, to a question of looking at the business and looking at which industry it's in. If one were to look at a fast food outlet, like a McDonalds that might - or a pizza shop was your example before, Hatcher VP, a pizza outlet which does its own delivery, that's in the fast food industry. Delivery of the meals, et cetera, et cetera, by that outlet, is covered by this award.

PN128

My point is that - - -

PN129

VICE PRESIDENT HATCHER: It may get back to the Coles Supermarket situation where it's covered by two awards and then you get to fall back to the position of deciding which is the most appropriate. That is, on one view, even the Pizza Hut type concept, does Pizza Hut still exist, also falls under 4.2(a). That is, they transport goods, et cetera, by road, even when it's ancillary to their principal business. Both awards cover it and then, arguably, the fast food is the more appropriate award. But just on analysis of sheer coverage, it's probably the case, isn't it, that both awards cover it?

PN130

MR AVALLONE: I submit that the better view is that the two industry definitions are to be read, effectively, as, in this case to be dovetailing together. That the commission expressly took into account that fast food outlets do some delivery and clearly sought to cover them by the Fast Food Industry Award. It should be taken not to have intended to create this overlapping coverage and by that logic, the words, 'Goods, wares, merchandise', et cetera, et cetera, those words are to be read down, so as to implicitly exclude the delivery of fast food, because fast food, the delivery of that, is covered by the Fast Food Industry Award, if it's a fast food outlet.

PN131

So too with restaurants which is the, as I mentioned I think it was paragraph 11.11 of ACCIs submissions point out, that the Restaurant Industry Award deals with delivery of restaurant quality food, in the context where the same, or a Full Bench, at the same time, in making awards, using the same power, decided that delivery by restaurants of restaurant quality food, ready to consume straightaway, was covered by the Restaurant Industry Award. The words, 'goods, wears', et cetera, in the Road Transport and Distribution Industry Award should be interpreted so as to exclude that restaurant quality food ready to eat.

PN132

I openly acknowledge that what I'm describing here creates a gap in the award coverage. It creates a gap because it leaves - well, it doesn't leave people without an award, it leaves them with the Miscellaneous Award, if they're in this industry, the on‑demand delivery services industry award. It's completely understandable that, when one looks at the history, those people feel through to the safety net, or fell onto the safety net and are still on the safety net, because the industry just didn't exist, so the Full Bench couldn't make an award to cover them. But the Full Bench does, now, have an opportunity to make an award that covers them, and covers them specifically, to fill that gap.

PN133

VICE PRESIDENT HATCHER: Mr Avallone, just a question of fact, is it always the case that the food has to be ordered through Menulog?

PN134

MR AVALLONE: Well, yes. If they're using the Menulog app then, yes, it's only food which is delivered by Menulog. If it's through the Uber Eats app, then it has to be food that's delivered through Uber Eats.

PN135

VICE PRESIDENT HATCHER: As I understand it, not that I'm a big expert on this topic, but if you order KFC one option is to order it through the KFC app, so that is, you're ordering from KFC and then it can be delivered by Menulog or somebody else, is that right?

PN136

MR AVALLONE: That may well be. I must confess, our KFC is very close so, like Mr Ryan, I haven't ordered on the KFC app yet, because I pop around the corner and pick it up.

PN137

VICE PRESIDENT HATCHER: But if that's the case, what is Menulog doing, other than simply transporting an order between the customer and KFC, from KFC to the customer?

PN138

MR AVALLONE: My instructions are that it's possible, and I can only speak directly for Menulog, it's possible that that type of work is done by Menulog, but it's a very, very small part of what it does. That's, on the words of the industry definition that we are seeking for the proposed award, it would not cover it. The industry definition we've got, obviously in the application and I'm almost certain that we do in our submissions as well, the Menulog submissions of 18 October, at paragraph 2.1, have got the industry definition which we seek.

PN139

It means the collection and delivery of food, et cetera, that are ordered by a consumer, from third party businesses that offer food, et cetera, for immediate collection and delivery, on an online app or application-based platform.

PN140

VICE PRESIDENT HATCHER: So what in that excludes that scenario?

PN141

MR AVALLONE: If you just give me a moment, Vice President. I accept, Vice President that, on the plain words there, it doesn't carve it out and that might be necessary to carve it out. It would need to be carved out. That very small percentage of delivery work, if it's done through the consumer's app and they, the KFCs of the world, were to engage Menulog, or a competitor, to go and then do the delivery, that's starting to sound a bit closer to the Road Transport Distribution Industry. But it's certainly not the primary business and if it is part of the business it is, on my instructions, a very, very small part of it. That's not the intention that that be covered.

PN142

This is probably a good example of one of the areas which, when the parties go into conciliation and sit around a table to try to hammer something out, those types of issues can be refined and resolved. I don't think I have - well, I certainly don't have submissions to say that the draft award that's been put up by my client is the only award which - it must be made in precisely those terms, far from it. These are matters which there'll be differing views around the table, at the conciliation. One would hope that consent positions can be reached on a lot, perhaps most. One always hope springs eternal, all of the award that can be put up to the Full Bench for its consideration.

PN143

The reality is, there probably won't be agreement on everything and there'll be some minor matters for determination by the Commission. The precise wording of that scope might be one of the matters that has to be talked about at the table.

PN144

Just dealing, and I've not been referring, until now, to many specific paragraphs of my friend's submissions, but I'm seeking to deal with them in a thematic way, if I can express that way. But referring to a couple of paragraphs specifically, the TWU submissions, at paragraphs 34 to 36, I submit that they do, and I won't read them now, invite the Full Bench into error by focusing on the work done by individual employees. I shouldn't be singling out the TWU, because there are other interested parties who do it as well. By focusing on the work done by individual employees, when the focus really should be, as you said before, Hatcher VP, on the industry and on the work of the employer, because they are industry awards, not occupational awards.

PN145

Further to that, paragraphs 35 and 36 of the TWU submissions, they liken the work that's being done in the on‑demand delivery services industry, to old fashioned courier work, like the Hollis v Vavue(?) case of - we all remember the facts of that case, the Crisis Couriers bloke on a bike who runs into somebody, 'Sorry, mate, and rides off'. Yes, that type of work has been around for a while and that type of work which would be covered by the Road Transport and Distribution Award because it is simply somebody, whether it's the supplier/sender, or the customer/recipient engaging a courier company to go and get item X and deliver it from A to B. That's very different, I submit, to the overwhelming bulk of the work done in the on‑demand delivery services industry, which is not just go and get A, take it to B, it's the marketing, it's facilitating the order, it's taking the monies, holding the monies, facilitating the either collection by the consumer or the facilitating the delivery by the supplier itself, or option 3, organising the delivery by Menulog or its competitor and then, finally, the sending of monies. It's all of those things. It is simply not the same as get on the bike and pick up A to B.

PN146

If one focuses just on the employee, or in the case of Mr Davis, whether he's an employee or a contractor, it doesn't really matter, if one focuses just on the worker and what she or he is doing, then one might say what they're doing is not that different to what a Crisis Courier's bike rider is doing. But that would be the wrong approach and that's because these are industry awards, not occupation awards.

PN147

VICE PRESIDENT HATCHER: But there's no doubt, is there, that you can get a courier company to deliver a ready to eat meal to your premises?

PN148

MR AVALLONE: One could. If I were to - sorry, I keep using myself as an example, if I were to decide I really like that bakery down the street, I'm going to call them up and ask them to pop it in a bag and I'm going to, myself, call up a bike courier and ask him or her to go and get it. That would be - well, subject to the alternate submission that I put before, about the meaning of goods, et cetera, and whether that excludes ready to consume hot or cold food, subject to that alternate argument, it would be within the industry definition. But the defining point there, or the point of differentiation, of what I've just described, is me, as the consumer, directly engaging the pie shop. Me, as the consumer, directly engaging the courier company to do it, which is different to me using the app to engage a platform and then the platform markets to me, effectively, and handles all of the sale and the monies and everything else. It's doing a hell of a lot more and the customer, me, I am not doing any of the direct dealings with the pie shop or the courier company.

PN149

Just a final thing on the TWU submission, sorry, I know I'm about to repeat myself, but it's a point worth repeating. I do wholly endorse, and my client does wholly endorse the proposal that the parties go into conciliation once this matter - once this preliminary or threshold issue is determined.

PN150

The other interested parties have put submissions dealing with the Road Transport and Distribution Award as well. I can keep this very brief, because most of what they say is not adding much to what's already been put by the TWU. I do say this, though, that the ACCI and ABI submission really does start with the wrong starting point, which is to focus on the occupation or the work done by individual employees, and that's the mistake that I was talking about before. That really accounts for all of the ACCI submission, through to about paragraph 5.10.

PN151

One other point is that the - sorry, just one along the line, ACCI seem to rely, in putting arguments to the Commission about the construction of an award scope clause and an award definition that has been in the award since 2010 and, in fact, comes from predecessors that are decades older than that, ACCI and ABI seem to put a submission, at paragraph 5.5, that that scope clause and that industry definition should be construed, in light of a later document that came into existence, being a New South Wales determination of 2011.

PN152

The logic, dare I submit, respectfully just simply doesn't pass muster. The making of an industry determination by a New South Wales body, a couple of years after an award was made, cannot change the meaning of an award that was made in 2010.

PN153

Paragraphs 7.1 through 7.18 of the ACCI submission, they really repeat or cover the same ground or similar ground to the TWU. One thing that I do note is that the ACCI submission, it refers to mobile food vending being covered by the Road Transport Distribution Award, and, with respect, I do say that that submission, by ACCI is wrong.

PN154

I mean, clearly, mobile food vending is covered by the Road Transport and Distribution Award, but the work being done in this industry, the on‑demand delivery service industry, is not mobile food vending, within the meaning of that Act, and I refer there to the Menulog submissions, at 4.36 to 4.38. When one looks at the words, 'Mobile food vending', in their industrial and historical context, mobile food vending really is about mobile canteens, the Mr Whippy van is another example, if we're talking about ice cream. It is not this new industry, the on‑demand delivery services industry.

PN155

Paragraphs, again this is in the ACCI submission, 7.20 through to 7.23, they go back to the original error being made by ACCI and ABI, which is to focus on the occupations or the classifications of the employees in question and, as I already indicated, that's not where the focus should be, the focus should be on the industry of the employers.

PN156

The ARTIO and the Australian Industry Group, to the extent that they say something about the Road Transport Distribution Award, it's largely similar to what's been said by the TWU, and I repeat what I said in relation to that.

PN157

I do note, just while I mention the Australian Industry Group's submissions, the Australian Industry Group indicates, correctly I submit, that what's being dealt with today is only the threshold issue of current award coverage and that there may well be different considerations which may apply at future stages. I say that, of course, that's correct. The submissions about what should be award coverage and what should be the terms of a new modern award, they're matters for the future.

PN158

I was going to turn now to the Fast Food Industry Award and just put something in response to what's been put about that.

PN159

It seems that it's ACCI and ABI that's, primarily, putting submissions about the Fast Food Industry Award covering the on‑demand delivery services industry, and that's around paragraphs 8.1 to 8.20 of their latest submission. I submit that those submissions ought to be rejected.

PN160

I refer and really, largely, rely upon what's put in the Menulog submissions of 18 October, at paragraphs 5.1 through to 5.11, which examine the language and the context, including the arbitral history of the Fast Food Industry Award. And I submit, as explained there in better detail, the Fast Food Industry Award is and always was about fast food outlets.

PN161

So, yes, of course, if fast food outlets do their own delivery, the pizza shop, for example, using their own employees, then those employees are covered by the Fast Food Industry Award. But when one looks at the history of where it came from, that award, coming from - well, whichever way one looks at it, if one looks at the predecessor awards, which were respondency based awards, of course, covering various named fast food outlets, or if one looks at where the Fast Food Industry Award came from, in the award modernisation process, the award modernisation process was one where, initially, the Full Bench expressed a view that there should not be a Fast Food Industry Award, that there should just be one Retail Industry Award.

PN162

So the preliminary view expressed by the Full Bench was one of rejecting the submission that there should be fast food, community pharmacies, and there is one other carve out and I just, off the top of my head, can't recall what it was. That was what was published, a Retail Industry Award, that covered all of them. That was an exposure draft. Upon receiving further submissions about that, the Full Bench took a different approach, which was to have the general Retail Industry Award, with carve outs. One of those carve outs was the fast food industry.

PN163

But, clearly, I submit, that supports a finding that what was carved out was those employers which were otherwise conducting a retail operation. A bricks and mortar fast food outlet where people walk in and order their food and walk out again, or, in the pizza shop example, where there might be a delivery driver employed by the entity but, importantly, the outlet is selling its own food.

PN164

This does not - that scope of fast food outlets does not cover the Menulogs and Uber Eats of the world, and Deliveroo and all of the others, because the on‑demand delivery services industry platforms do not, themselves, make or hold title over the food that's being delivered. They're really facilitating the sale, their acting as agent for the sale, but they're not, themselves, the outlet in the industry. So too the Menulogs and Uber Eats are not in the restaurant industry either, because they're not a restaurant.

PN165

The other point is, of course, and again this is really putting the alternate, whilst fast food is a big part of the business of Menulog and its competitors, it is not the only part of the business. There's also that restaurant quality food. If the submission were accepted that seems to be being put, that is, by others, the submission that someone who is delivering fast food is therefore covered by the Fast Food Industry Award, that would - well, besides being wrong, in principle, because it's looking at the activities of the individual, it would lead to a situation where an employee would have to be asked, at the end of the day, 'Well, what did you deliver today? Did you deliver hot chips and pizzas, or did you deliver food from a top end restaurant?', and depending on the answer for that, your award coverage might change one day to the other. That simply can't be. One does need to look to the industry of the employer.

PN166

Really, I guess, it's just a general observation about the - the competing submissions that have been put by the interested parties, as to they're covered by this or they're covered by that, depending on which part of the activities one looks at, really does underscore, I submit, that the on‑demand delivery services industry just does not neatly fit into either Road Transport and Distribution or fast food. It doesn't fit because it's new and it was not envisaged when the existing awards were made.

PN167

Just a couple of other points that the - maybe more than a couple, that ACCI raise. Parts 10 and 11 of the ACCI submission really go back into the same error of focusing on the occupation and the work performed by individual employees. That's when they're putting in submissions about the Fast Food Industry Award, the clue is in the name, it is an industry award.

PN168

Paragraphs 11.13 and 11.14 of the ACCI submission seek to, if I understand what they say, they're describing the digital platforms used by the on‑demand delivery services industry as an artifice, and they submit that somehow - well, they seek to case aspersions on the motivation of Menulog, in making this application.

PN169

A couple of things, it does take one right back to the point about the on‑demand delivery services industry, which is said it is new, it is innovative, and that the platform is right at the centre of the industry, because the platform is not just - or it's not doing what - sorry, let me come at this from a different direction.

PN170

Are there people working in the road transport and distribution industry who use an app or a phone that tells them, 'Go and pick up item X and take it from A to B'? Yes, there are. The platform that's being used in the on‑demand delivery service industry is so much more than that, and it might not have that aspect at all. It's so much more than that because of all the items that I talked about before, or marketing, facilitating the ordering, receiving the monies, paying the monies and everything else, and it might not include the take from A to B part of it because, depending on the consumer's choice and the seller's choice, there might be collection by the consumer, there might be delivery directly by the outlet.

PN171

In relation to the - the digital platform, it's not the modern equivalent of a pager or a fax or a carrier pigeon and it would be a mistake to treat it as if it were.

PN172

In relation to Menulog's motivation in making this application for a new modern award, it's motivation is to seek an award which is fit for purpose for an industry which simply did not exist 12 years ago, and the many decades before that. It is about making a new modern award which is purpose built, not for the past but for the future. Menulog is really looking to seek the creation of an award which will facilitate employment in this area. It's a hotly debated issue between the TWU, in particular, and some of the operators, as to whether people are properly understood to be employees or independent contractors.

PN173

VICE PRESIDENT HATCHER: This is the next stage of the proceedings, isn't it?

PN174

MR AVALLONE: Yes, it is. Yes, I accept that.

PN175

So too parts 12 to 14 of the ACCI submission deal with issues that go well beyond the threshold issue as well, and I won't respond to those now, but to say this. The ACCI submission seems to finish at 14.6(c) with a submission that the application should be dismissed. That's clearly not, I submit - well, it cannot be on the table at this threshold issue. This is not a hearing of whether a modern award should be made, it is a threshold issue to be taken into account in those subsequent stages.

PN176

VICE PRESIDENT HATCHER: Just so I'm clear where we're going, if we were against you and we found that the road transport award applied, then that, from your perspective, would not be the end of the matter. That is, you'd still seek to engage in a process as to whether those conditions should be modified, in some way, to be better suited to the needs of your business?

PN177

MR AVALLONE: Yes, in short, but if I could just expand upon that.

PN178

VICE PRESIDENT HATCHER: Alternatively, you could still press an application that your businesses and businesses like it be carved out by a variation to the Road Transport Award.

PN179

MR AVALLONE: Yes. Exactly. That's what I was going to say. In that hypothetical world where you say you - sorry, I say it respectfully and intending to cover the Full Bench, if you were to express the view that the on‑demand delivery services industry is really just - well, it's within the coverage of an existing award, then the next stage would involve more discussions in conciliation and then, ultimately, if we have to argue, having an argument about whether possible outcomes could be, do nothing and that's the award and suck it up and deal with it, or vary the terms of that existing award, so as to accommodate the unique features of the on‑demand delivery services industry, maybe with a new part or a schedule or something like that, or maybe by varying the scope of that existing award to carve out the on-demand delivery services industry and create a new modern award, which is purpose built for the industry.

PN180

There might not be much difference, in substance, between that option 2 and option 3, if option 2 was a standalone part, but I guess the question would be, why have a standalone part when you can have a standalone award. But they're issues for later.

PN181

Again, that's where, as I've said a couple of times, the appropriate course is to - well, first, I submit that the Full Bench should find that, or come to the view that the on‑demand delivery service industry is not within the industry definition of either Road Transport Distribution Award or Fast Food, that's dealing with the threshold issue.

PN182

And the second direction, or the direction that it should make, is that the matter be referred to conciliation by a member of the Commission. Then there can be a report back process and anything else.

PN183

Subject to - I would see, or I may seek to put something in reply to what's put, but those are the submissions of Menulog.

PN184

VICE PRESIDENT HATCHER: Thank you.

PN185

We might just take a short adjournment, for about 10 minutes, so we'll resume at a quarter past.

SHORT ADJOURNMENT [11.02 AM]

RESUMED [11.16 AM]

PN186

VICE PRESIDENT HATCHER: Are you going next, Mr Gibian?

PN187

MR GIBIAN: I think so.

PN188

VICE PRESIDENT HATCHER: All right.

PN189

MR GIBIAN: As the members of the Bench know, the position of the TWU, with respect of the threshold issue, is that the employers in the proposed on‑demand delivery services industry, and relevant employees engaged as couriers, are covered by the Road Transport and Distribution Award and are not covered by the Fast Food Award. In the event contrary to that submission, they are covered by the Fast Food Awards in the classifications under the Road Transport and Distribution Award are the most appropriate classifications for the work performed.

PN190

To elaborate upon those submissions, I wanted to say something, briefly, about the nature of the industry described, and I was just going to go, briefly, to a couple of the documents attached to - the contractual documents, in short, attached to Mr Billings' witness statement, then I'll deal, in turn, with the Road Transport Award, and the Fast Food Award, briefly, by way of supplementation to the written submissions.

PN191

Can I start, if it's convenient, just by noting the definition of, or the proposed definition of the on‑demand delivery services industry and the award that was proposed by Deliveroo, which is a document, as I understand it, that was filed on 23 August 2021. The definition is also set out in my learned friend's written submissions and, as the members of the Bench will have seen, it seeks to define the industry to mean:

PN192

The collection and delivery of food, beverages, goods and any other items that are ordered by a consumer, from a third party business that offers the same for immediate collection and delivery, on an online application based platform.

PN193

Then it contains a couple of limitations, which I don't need to read.

PN194

There are three aspects that I just emphasise, by way of that definition. Firstly, is that as it is crafted it is plain that collection and delivery is central to the definition of the industry, that is, transport and certainly read with the definition of the employees to be covered as either drivers or riders or couriers, however so described. It is obvious that what is contemplated is transported by road.

PN195

Secondly, although there is obviously a concentration in the submissions and the evidence, upon prepared meals, the definition doesn't confine the application of the award to that type of product and, indeed, is sought to extend it to, 'Food, beverages, goods and any other item'. As a practical matter there is evidence that Menulog, at least, its business is not limited to the delivery of prepared meals, it delivers groceries, alcohol, beverages. As I'll come to in moment, Uber has a package business, package delivery business, operating through the same mechanisms.

PN196

The third point that we'd make is that there are then limitations, in short, on the types of collection and delivery functions which are to be covered, by reference to the immediacy of collection and delivery and then, in (a) and (b) of the proposed definition, excluding the collection and delivery of an employer's own, 'Food, beverages, goods and other items' and excluding the employer, in the primary business of what's described as general transport or delivery services, at large, of items not purchased through the online - it's own online platform.

PN197

The point we make, in that respect, is, although there's an exclusion of certain types of collection and delivery task, what remains and is clearly implicit in it, is transport, that is, collection and delivery, even though certain types are excluded.

PN198

As to the actual evidence as to the operation of Menulog and what are seen as comparable companies, in a broad sense it's obviously well understood and the contractual documents described it, that is, Menulog contracts with restaurants or other what they refer to as merchants, among other things, to provide delivery services. That is, to collect and deliver to the customer whatever meals or other goods are being delivered.

PN199

The customer, in their interaction with it, views items on the website, or through the phone app, and places an order. I think there is a pick up option by, by and large, in order for them to be delivered. That is, the purpose of the whole function is for items to be collected and delivered to the customer.

PN200

I note, in argument with my learned friend, there was the instance raised of KFC, as I understand it, that is, that it is possible to order, other than through the Menulog app, in this instance, or the Menulog online platform, directly from KFC and it, indeed, engages Menulog to undertake the delivery service, separate from having been purchased through the online platform.

PN201

I think it was suggested that there might be some exclusion, in that respect. I think that, perhaps, demonstrates the artificiality of endeavouring to isolate some aspect of delivery tasks undertaken by workers for this type of employer, from others, although there's not detailed evidence about that particular instance. I infer it's the same couriers that are delivering goods, whether they are purchased through the KFC app or website, or through Menulog's app or website, and performing the work in exactly the same way. The business activities in that part of it, at least, identical.

PN202

VICE PRESIDENT HATCHER: In my experience you can simply ring up restaurants and somebody will deliver it and it's not, necessarily, the restaurant that's delivering it. I can't remember which one, but I've seen these companies turn up when you ring the restaurant directly. I don't know how common that is.

PN203

MR GIBIAN: This was a matter I was going to come to very briefly, in relation to Menulog's documents, is that the interaction that the customer has is that they place an order to be delivered. Now, there is, as we understand it from the evidence, there can be arrangements for the restaurant or the fast food outlet, or whatever it might be, to themselves undertake the delivery task. Presumably one employed person, or by contracting some other company, or from Menulog to do so. But, from the customer's perspective, they perhaps don't care or even don't know by what mechanism the transport and delivery function is undertaken. They are contracting with Menulog for that to occur, and placing the order with Menulog for the delivery to occur. It's immaterial to the customer how that's done.

PN204

Could I just make a couple of observations, with respect to the contractual documents, which are attached to Mr Belling's statement, if the Full Bench has that available? I'll do so quickly.

PN205

There are, attached, a number of documents to Mr Belling's witness statement. I don't think it's sequentially numbered throughout but there is, at the top of each page, a reference to the annexure number.

PN206

Firstly, the restaurant contract is MBB2, which commences on page 68 of the bundle of documents I've released in the pdf format, is the restaurant agreement. The internal numbering in that document is pages 1 of 15 and following. Can I just note a couple of matters at page 3 of 15 of MBB2? There's a series of definitions. Can I note the definition of 'Delivery services', which means:

PN207

A service provided by a delivery partner to collect and deliver the orders from your restaurant to the customer.

PN208

And the definition of, 'Goods', that is, Menulog itself, in its own contractual documents uses the term 'goods' to mean and encompass:

PN209

Dishes, menu items and products provided by your restaurant.

PN210

The description of what Menulog will provide is then on page 5 of 15, under clause 1.2, indicates:

PN211

We provide -

PN212

Well, three matters, in substance. At (a) in clause 1.2:

PN213

Order processing services that enables customers to place orders.

PN214

Then, secondly, at (b):

PN215

The delivery service specified in section 5 where you've agreed to procure delivery services provided by the delivery partner.

PN216

That is part of what is contracted for, or at least can be contracted for, is the delivery service.

PN217

VICE PRESIDENT HATCHER: So the product is, what, the app, is it? 1.2(c) and 1.3(c).

PN218

MR GIBIAN: Yes, there's a definition of that. I think it's actually a device. It says:

PN219

A device or any software program or application provided that enables you to receive orders.

PN220

My general understanding, I must admit from other cases, is that the restaurant usually has an iPad type device, or Android equivalent, which has an app on it which communicates the orders received by Menulog or similar company.

PN221

Then the delivery services are dealt with at pages, after some redacted material, 14 and 15 within the same document. Page 14 deals with section 4, 'Self delivery and pick up', that is that's a circumstance in which Menulog is not undertaking the delivering function.

PN222

The only thing I wanted to observe about that is that clause 2, within section 4, imposes certain obligations on the restaurant with respect to delivery, so that is, perhaps, making the point that I made earlier that even where Menulog it not, itself, providing the delivery service, it is taking responsibility, in the sense of imposing obligations, with respect to timeliness and service and the like, so far as the delivery function is concerned.

PN223

Page 15 then sets out the delivery function, that is, where Menulog, itself, is performing that function. Most relevantly, at 2.1, it indicates it will use commercially reasonable efforts to have the order delivered to the customer.

PN224

VICE PRESIDENT HATCHER: So in that circumstance does the restaurant receive the payment itself, or is it still done by the app?

PN225

MR GIBIAN: I'm sorry, your Honour, in which instance?

PN226

VICE PRESIDENT HATCHER: For example, where the customer arranges to pick up the goods, rather than have them delivered, is payment still made through the app, or does the customer make payment at the - - -

PN227

MR GIBIAN: Through the app, is my understanding, yes, that is part of the function.

PN228

Then the - and I refer to these briefly, MBB4 is the courier contract, the purported independent contractor agreement. The first page of that document, I don't think it is actually internally numbered, sets out the scope of application, and I just note what's said at clause 1.2 and 1.3. Particularly, at 1.3, it indicates that the company, Menulog, has agreed with restaurants to use commercially reasonable efforts to procure independent contracts to collect and deliver foods and other goods from restaurants to customers. That's what is - how Menulog, itself, describes the business which it is seeking to engage a courier to perform work in.

PN229

The description of the work then in the employment contracts, which are used more recently by Menulog, for the purposes of its employee trial, are at MBB5 and, on the second page of the document, the description of the work that the employee is engaged to perform is to:

PN230

Deliver orders to customers in a timely and safe manner and in accordance with Menulog policies.

PN231

That being the central aspect of the work.

PN232

My learned friend is right, at least for the purposes of the industry aspect of the - leaving aside the classification aspect, the industry aspect of the coverage of the Road Transport Award, it is the functions of the employer that are to be examined but, of course, the functions of the employer, in part, are contributed to by what it engages people to do.

PN233

VICE PRESIDENT HATCHER: So, in this case, there's no doubt, on the face of the contracts, that Menulog offers a delivery service to the restaurants, and I'm contrasting that to the Uber contracts, which, at least on their face, said something different, that they were some sort of intermediary agent for both parties.

PN234

MR GIBIAN: Yes. My understanding is that Uber Eats have changed their contracts in that respect. At least the courier contracts, the contracts with the individuals, they describe it in a different way now, as I understand it.

PN235

VICE PRESIDENT HATCHER: Okay.

PN236

MR GIBIAN: But, yes, to be fair to Menulog, less dissembling in their contracts, in my respectful submission, as to the true nature of the arrangements. Yes, there is no doubt that that is the - what it contracts to provide. One then sees, with the courier contract and the employee contract, that it engages the couriers, purportedly, as independent contractors or employees, in order to fulfil that delivery service which it has contracted with restaurants or other merchants to provide.

PN237

I then just wanted to make a couple of observations about the contractual documents which are provided by Mr Belling, so far as other operators are concerned. A Deliveroo contract is at MBB6 to Mr Belling's statement.

PN238

On the first page of that document, it has pages numbered 1 of 32, initially, at the bottom right-hand corner, two-thirds of the way down that page, there's a reference to the purpose of the contract.

PN239

VICE PRESIDENT HATCHER: Sorry, is this the driver contract or the restaurant contract?

PN240

MR GIBIAN: It's the driver contract, as I understood it.

PN241

The objective is described as:

PN242

To link you to the restaurants we partner with and allow you to order -

PN243

I'm sorry, it's the customer contract. I'm sorry, the customer terms, I do apologise.

PN244

It's then indicated:

PN245

Where you order from a partner restaurant Deliveroo acts as agent, on behalf of the partner restaurant to conclude your order, from our application, and to manage your experience throughout. Once you have placed an order your items ill be delivered to you, by Deliveroo, or our partner restaurant, depending what the partner restaurant has selected.

PN246

So part of, at least, or a part of the contract that, or the business arrangement Deliveroo entered into is that it delivers - it contracts with the partner restaurant to make the delivery.

PN247

The second aspect that I wanted to emphasise in this contract is clause 6, which is at the bottom of page 2 and the top of page 3, under the heading, 'Delivery', which indicates that there are two methods of delivery, either an ASAP delivery or a scheduled delivery. So that is there is, within Menulog's submissions, a suggestion that this is always immediate delivery, there is, in fact, both options, so far as Deliveroo is concerned. You can schedule it in advance or make it an immediate delivery.

PN248

There is a little more dissembling, if I can use that term, in Door Dash and Uber's contracts, which are attached. The only other matter I wanted to identify, for the Full Bench, was within Uber's contracts, which are MBB8 to Mr Belling's statement, and the delivery aspect, there are page numbers 1 of 31, at the bottom of MBB8, the delivery aspect is then dealt with from page 15, where there's a heading, a third of the way down the page, 'Portier Pacific Pty Ltd, terms and conditions for Uber Delivery Australia', and towards the bottom of that page, the heading, 'Contractual relationships', and at the top of the following page, page 16, which indicates that:

PN249

These Uber delivery terms apply to the provision of delivery services by Portier Pacific, which are offered to you by the Uber branded application or website. The Uber delivery services provided by Portier Pacific, under these Uber delivery terms, do not include services provided by transport services.

PN250

Again, it's clear that what's been contracted for is the provision of a delivery service by an Uber company called Portier Pacific, which I think your Honours will be familiar with.

PN251

That, at page 18, there's a description of Uber delivery services, which encompass both Uber Eats and what's called Uber Connect. Uber Eats allowing the ordering of items, as defined below, and request for the delivery of those items and Uber Connect being a package delivery service, operated in the same way as we understand it, that is, you can arrange for Uber to deliver packages as well as deliveries from restaurants or fast food outlets, or restaurants and groceries, or liquor stores. There's further information about that, from page 20 onwards.

PN252

So, again, I make those observations to emphasise that although there's an understandable concentration of prepared meals and restaurant and fast food in the submissions, we're talking about an industry which is operating more broadly than that, at present.

PN253

Can I turn then to deal, first of all, with the Road Transport and Distribution Award? As the members of the Bench know, the definition, we say that Menulog and employers of the type sought to be described in the proposed coverage provision of the on‑demand award, fall within - or are employers in the road transport and distribution industry, for the purposes of clause 4.1, because they are employers, for the purposes of clause 4.2(a), of the definition of the road transport and distribution industry.

PN254

As is generally the case with an industry award, there are two questions. One is whether the employers are in the road transport and distribution industry and, secondly, whether the relevant employees are in classifications listed in, relevantly, schedule B to the Road Transport and Distribution Award. We didn't detect anything in Menulog's submissions which suggests that if, as an employer, these type of companies are covered by the Road Transport and Distribution Award that the couriers, sought to be defined in clause 12 of the proposed award, do not fall within the classifications in schedule B either being bicycle couriers or drivers of a vehicle, including a motorcycle of under 4.5 tonnes. We'll be corrected if we're wrong about that, but we didn't detect any submission, nor do we understand what sensible submission could be made that the employee's (indistinct) referred to as couriers would not fall within the classifications.

PN255

The issue then is the scope of the definition of the road transport and distribution industry, for the purpose of clause 4.2(a). We've set out, in the written submissions, from paragraphs 37, the most recent written submissions of 29 November, from paragraphs 37 to 47, some material in relation to the history of the making of that aspect of the Road Transport and Distribution Award. I don't need to go to it, but I would emphasise these aspects of it.

PN256

One is that the industry was described as intended to be - or the industry description was described as intended to be broad, rather than narrow. That the award was intended to be the general transport industry award, and that the description of the industry includes employers operating in other industries where the transport of goods, et cetera, by road, is ancillary to the principal business and undertaking.

PN257

In the deliberations in the award modernisation, the Full Bench specifically rejected the insertion of a majority clause, in relation to the ancillary aspect of the coverage. That is, it specifically rejected that there had to be a requisite proportion of the activities of an employer to involve the transport of goods, et cetera, such than an employer will be covered if they are engaged in that business activity to any extent. Utilising employees covered by the relevant classifications, of course.

PN258

In that respect, and I make one additional observation and that is by reference to Menulog's submissions, at paragraphs 4.17 and 4.18, and my learned friend repeated the matter today. That is, in short, to submit that the Road Transport and Distribution Award's coverage should, in some way, be read down, because there are, in a small number of other awards, delivery type classifications, or classifications that include delivery work. Reference was made to the Retail Award and the Fast Food Award, in that respect.

PN259

I don't need to take the Full Bench to it, but we provided a list of authorities and at tabs 8 and 9 of that bundle, there are two of the award modernisation decisions. Can I just note, in the first of those, that appearing under tab 8, at paragraph 100, and in the second of those, appearing under tab 9, at paragraph 171, the Full Bench specifically contemplated and embraced that there would apply, in circumstances in which, because of the ancillary coverage, the employer operated another industry and that there would be, albeit it said that there were a limited number of instances in which this was, in fact, the case, other modern awards which had some other delivery classifications.

PN260

Nonetheless, particularly at paragraph 171 of the second of those decisions, which was [2009] ARCFB 345, specifically contemplated that the Road Transport and Distribution Award would generally apply in those circumstances where employees were performing work in classifications covered by the Road Transport and Distribution Award.

PN261

So not only, as a matter of first principles, is it wrong - in the absence of an exclusionary provision, is it wrong to read down one award by reference to other awards that have been made, unless there's an exclusionary provision. Here we have the actual deliberations of the Full Bench in making the Road Transport and Distribution Award, which specifically contemplated that it would cover employers, albeit that they worked in other industries and albeit that there were, in a small number of instances at least, delivery type classifications in some other modern awards.

PN262

VICE PRESIDENT HATCHER: That's where the award picked up the former coverage of it. I think it was the Transport Workers (Mixed Industries) Award.

PN263

MR GIBIAN: Yes, and it did have a majority type provision and, as I say, the Full Bench decided not to include a majority type provision in the modern award, because of it nature as a modern award, and because of the limited number of transport type classifications which existed in other awards.

PN264

It generally envisaged that, albeit that it may be a manufacturer, or a restaurant or a retail outlet may employ a driver generally, that they would be covered by the Transport rather than another award. But certainly that the Road Transport and Distribution Award would cover that employer and, at most, it would come down to a most appropriate classification assessment. We set out some extracts in the submission, I wasn't going to read them, but that's what comes from those deliberations.

PN265

Now, Menulog's submissions seek to evade the extremely broad coverage, so far as transport functions are concerned, of the Road Transport Award in two ways, as we understand it. It claims its business, and similar ones, have new and different features to traditional road transport businesses. And, secondly, it says that food or prepared meals are not, 'Goods, wares, merchandise or material, or anything whatsoever', for the purposes of paragraph (a) of clause 4.2 of the Road Transport Award. Neither of those submissions ought be accepted. Can I deal with them in turn?

PN266

Firstly, I should note that we don't necessarily accept all that is said, as to what is said to be novel or different, so far as the operations of Menulog, and similar companies, are concerned. But even if one were to accept all of that, it doesn't assist in an argument that the Road Transport Award does not cover employers of that nature, if they are engaged in the transport of goods, by road.

PN267

There's, essentially, three reasons for that. Firstly, it starts at the wrong point. That is, it starts by - the argument starts with an archetypal view of what a transport employer is, and seeks to determine whether or not Menulog, and similar companies, fit within that conception, rather than starting with the terms of the award, which refer, in very general terms, the transport, by road, of goods, et cetera.

PN268

When one simply asks whether it is engaged in the business of the transport of goods, by road et cetera, the answer is, obviously, it is. It contracts to provide delivery services to restaurants and other merchants and it engages couriers or employed drivers or riders, in order to perform that transport function. Self-evidently, it does so by road.

PN269

What is said to be the distinctive features, in Mr Belling's evidence, of its operations rather emphasise, rather than detracting from the conclusion that it is engaged in transport. There are really three things he says, firstly, at paragraph 77 of his affidavit he says:

PN270

The critical difference is that a traditional service doesn't procure or otherwise facilitate the sales.

PN271

Presumably through the app and the website. That refers only to the mechanism by which the transport is brought about and does not, in any way, detract from the conclusion that the function, the business function engaged in by Menulog, is to facilitate the delivery, and that is what it has contracted to do.

PN272

Secondly, at paragraph 80, there's a reference to the immediacy or the time-sensitive nature of the deliveries. Again, that doesn't seem particularly distinctive. The award covers document delivery, medical - live organ transplants and the line. That's hardly a distinctive feature but, in any event, it just refers to the nature of the task rather than detracting from the fact that it involves transport by road.

PN273

Finally, there's a reference, in paragraphs 84 and 85, to what is said to be volatile demand and narrow delivery windows. Again, that only - it's not distinctive but, leaving that to one side, whether the demand is volatile or not, it nonetheless involves transport by road.

PN274

Secondly, the approach appears to suggest that the Commission has drafted modern awards without being conscious of the ways in which tasks or work will be undertaken or organised will change over time. Modern awards, as the Full Bench knows, are intended to be drafted to cover industries or occupations, in broadly defined ways. They are obviously drafted in circumstances in which the Commission is well aware that the methods of organisations are the matter of performance of work change over time and would not be interpreted as if they were intended to be static and only refer to transport tasks of the type that are, or precise nature of which are undertaken at particular points in time.

PN275

I don't need to go to it, but at tab 3 of the bundle of authorities we refer - we've provided, Cooperative Bulk Handling, dealing with the interpretation of union rules, which adopt that type of approach, and, at tab 12, to Norrie v New South Wales Register of Births, Deaths and Marriages, which, approaching the task of statutory interpretation, make clear that the proper approach to be adopted is as if there is a what's called a (indistinct) approach. That is, that the legislation is understood as contemplating change and being understood, in light of the language and understandings, at the particular time when it comes to be interpreted. In our submission, the same would be said of modern awards, intended to be general provisions of broad application across industries and occupations.

PN276

We don't even need to rely upon that type of approach. That is, we don't need to read anything in the definition, other than in accordance with its ordinary meaning. But all of those approaches are entirely contrary to what Menulog would ask the Commission to do, that is to - in fact, read down general terms to apply only to forms of business organisation of transport, as they applied at a particular point in time.

PN277

The third proposition, in this respect, is that, as we've said, Menulog doesn't deal with the ancillary aspect of the coverage of the - or the description of the Road Transport and Distribution Award, in paragraph (a) of clause 4.2, and the absence of any threshold in that respect.

PN278

Now, the only other aspect of its business, as we understand it, is that it operates an app and a website and does the ordering through that mechanism, which may not be the case for other transport companies.

PN279

The website and the app, in our submission, are properly seen as facilitating delivery. That is, that the whole purpose of the arrangement is to facilitate delivery. But even if one was to see that as a separate business, or a separate business activity, it is immaterial in that it is sufficient that it engages the transport of goods by road, et cetera, as per the Coles Online delivery cases demonstrated.

PN280

Unless there's anything further, very briefly, the argument that prepared meals are not, 'Goods, wares, merchandise, material or anything whatsoever', is impossible to reconcile with the general words that are used in the definition, and very deliberately used to cast the award in its broadest possible way. Again, we've made three points.

PN281

The first is that even if one is limited to looking at prepared meals, a meal which is put in a box and put in a bag is a 'good'. We've referred to definitions in other contracts, in sale of goods and the like contracts, in paragraph 21 of the written submissions, which make clear that a 'good' is generally any property capable of being sold as commodities of commerce capable of manual delivery. That is clearly what is meant in this context. That is, the context is it is referring to transport of goods by road. It's endeavouring to encompass anything that can be manually delivered by road. There's simply no reason for a narrower definition to be adopted. I've noticed that Menulog's own contracts describe the food it delivers as 'goods', according to its (indistinct) meaning.

PN282

In any event, it's obviously 'anything whatsoever' and there's no ejusdem generis approach that would narrow it further. We've referred to the authorities Cody v Wilson and Deputy Commissioner of Taxation v Clark, for example, in the written submissions, about the use of ejusdem generis approach. They made clear that there has to be some limited genus in order for that approach to be adopted. In any event, it is no more than an interpretive tool, that is, ultimately it's a matter of interpreting what was intended of the text, read in the context of the instrument as a whole.

PN283

Here, apart from anything else, the use of the phrase 'anything whatsoever' is emphatic and entirely contrary to there being any intent to limit the class. It's combined with the fact that, 'Goods, wares, merchandise and material' are, themselves, overlapping categories which are, it's plain, endeavour to cover every possible eventuality of things that are capable of being transported.

PN284

The fact that it then goes on to refer to:

PN285

Raw or manufactured items, in a liquid, gaseous, solid state, or otherwise.

PN286

Again makes clear that what is intended here is to cover every possible eventuality, in a manner which is entirely inconsistent with (indistinct) approach.

PN287

Thirdly, as we've made clear, by reference to the contractual documents and, indeed, Mr Belling's own evidence, they don't only delivered prepared meals, in any event, and there are other items.

PN288

So that I'm not failing to mention something, I did just want to refer to Zaider v Truck Moves, which was the case about - which is on the list, at tab 11, which was the case about the Truck Moves, which - I'm trying to use neutral language, moved from one place to another place vehicles, new vehicles, by getting someone to drive them from one place to the other place. It's tab 11 in the bundle that we provided. I just didn't want to be accused of not having been fulsome in this respect.

PN289

VICE PRESIDENT HATCHER: Does that have a page number in the bundle?

PN290

MR GIBIAN: Yes. It starts at page 368.

PN291

VICE PRESIDENT HATCHER: Yes.

PN292

MR GIBIAN: So the matter of Truck Moves operates, generally speaking at least, is that it is contracted by dealerships and the like, or transport companies, when a new truck arrives on a ship in Sydney, it moves it to Brisbane by getting someone to drive it, in short, in order to deliver it to Toll or whoever it might be.

PN293

The question was whether that type of business fit within paragraph (a), 'The transport of goods, et cetera, by road', or not. The answer was, ultimately, that it did not. Can I just refer to what, firstly, North and Jessop JJ said, at paragraph - they discount various things that the primary judge said and then, from paragraph 11, on page 4 of the judgment, page 374 of the bundle, their Honours said:

PN294

At base, the case came down to two - the sense in which the word 'transport' was used, in the Road Transport and Distribution Award. Was the word confined, as the respondent contended, to the concept of carriage, or did the word also encompass, as the appellant contended, the context of movement, where the corresponding verb was transitive.

PN295

That both meanings were available. Then, at paragraph 12, their Honours went on to say:

PN296

The coverage clause of the award refers not to transport simpliciter, but to the transfer of goods, wares, merchandise and material, notwithstanding that trucks considered as items, might come with the denotation of at least the first and third of these. The overall sense of the phrase is that of cargo or freight. The words refer, in our view, to things which are carried. In such a setting the most natural sense of the word 'transport' is to be understood is that of carriage, additional words 'anything whatsoever' expand the class, of course, but they are to be understood in the same sense as 'goods, wares, merchandise and material', they are, as words would say, to be ejusdem generis.

PN297

So two things about that. Firstly, it did suggest a ejusdem generis approach to the phrase 'anything whatsoever', but the genus there was 'cargo or freight', that is, anything that could be carried, in short. The distinction that was being made was between transporting something, indeed anything, and the driving of the vehicle itself. That was the distinction which was being drawn. It wasn't narrowing the concept of, 'Goods, wares, merchandise, material or anything whatsoever'.

PN298

That is made clear when one looks at the judgment of Flick J, in the same matter, particularly at paragraph 34, which is page 10 of the judgment, page 380, where his Honour examined the objective meaning of 'transport by road of goods'. I don't need to read it in full, but from five lines from the bottom of that paragraph his Honour said:

PN299

The phrase, 'Goods, wares, merchandise, material or anything whatsoever et cetera', is a means by which the product being transported was sought to be described, in as comprehensive a manner as possible.

PN300

Which we, with respect, embrace.

PN301

I also note, in that respect, the award was subsequently varied by the Commission to insert clause 4.2(j), to specifically encompass the type of business operation of Truck Moves undertakes. To the extent that the courts construed the definition in a way which excluded that specific type of business, the Commission consequently remedied that situation by a specific variation.

PN302

VICE PRESIDENT HATCHER: There's no doubt the award covers vehicle carrying so, leaving aside the fact that the trucks are driven, if it's carried on a vehicle it's a, 'Good, ware, merchandise, material or anything whatsoever'?

PN303

MR GIBIAN: Exactly. Exactly.

PN304

So the only distinction that was drawn there was the actual driving of the vehicle on the road did not involve carriage of anything and, therefore, with respect, we thought it was a somewhat narrow reading but, nonetheless, it didn't purport, by ejusdem generis approach, to limit the type of matter that could be covered. In fact, quite to the contrary. It's just - Flick J said, it endeavours to describe that matter in as comprehensive a manner as possible. That is plain from the text.

PN305

That's all I propose to say about the Road Transport Award. As I say, I don't apprehend there is any issue that work engaged as a courier, for the purposes of the proposed award, would not fit within the classifications of the Road Transport and Distribution Award. The arguments are on the industry side.

PN306

VICE PRESIDENT HATCHER: So just to be clear, is there any judgment involved as to whether one or either award if more appropriate? That is, the Fast Food Award uses the conjunction or, in describing the industry it covers. So, on one view, if you're delivering fast food you're covered by the Fast Food Award?

PN307

MR GIBIAN: Yes. Our principal submission is that the Fast Food Award does not apply to Menulog, or an employer of that type. In the alternative, if we're wrong about that, then it does come down to a most appropriate and we would say that the Road Transport Award is the most appropriate award for the work proposed for the courier classification in the proposed award.

PN308

VICE PRESIDENT HATCHER: It would clearly seem to be more appropriate for a business which covers (indistinct) both fast food and restaurant meals, and perhaps other things as well.

PN309

MR GIBIAN: Well, if it comes down to a most appropriate assessment, I think we essentially agree with ACCI's submissions, at paragraph 9.1 to 9.3 of their submissions. But, in short, there are three points why we say it is plain, we would say, that the most appropriate award would be the Road Transport Award.

PN310

This is, firstly, the work of the courier is solely transport work, that is for Menulog, or similar company. That is, all that worker does is collect and delivery food. In that circumstance, the specific transport classifications, which are dedicated specifically to that, or directed specifically at that, or that type of work, are the appropriate classification. That is to distinguish from the level 1 fast food group classification, which is a general classification for:

PN311

Any worker involved in the preparation and/or sale and/or ordering and/or delivery of fast food.

PN312

That's the first reason.

PN313

The second reason is that the circumstances of the employment or the work, in which it's performed, make the Road Transport Award more appropriate. That's because Menulog, or similar companies, are not engaged in the fast food industry. They don't prepare food, they don't fast food outlets that it operates. Even if the Fast Food Award is, contrary to our principal submission, capable of having application, on a strict literal reading, it is clearly primarily directed at fast food outlets that actually prepare and sell their own food. Where that's not the case, the Transport Award is more appropriate.

PN314

Thirdly, and that's perhaps, your Honour the presiding member raised, it's not only fast food, certainly, which is being delivered, it's also, for example, restaurant good or groceries, alcohol, beverages and the like, and, as you say, Uber has got a package delivery service as well, which is operated through the same mechanism.

PN315

In circumstances where the work is a broader transport type, we think it is plain that the Transport Award is more appropriate, has more appropriate classifications for the work contemplated by couriers, under the proposed on‑demand award.

PN316

Can I just, I skipped an argument, can I just say why we don't think the Fast Food Award applies, very briefly? As your Honour pointed out, the definition - it's again an industry award applying to the fast food industry. There's a definition, in clause 3, of the fast food industry, which is defined to mean:

PN317

The industry of taking orders for and/or preparation and/or sale and/or delivery of -

PN318

And then there are three dot points, the first being:

PN319

Meals, snacks and/or beverages which are sold to the public, primarily to be consumed away from the point of sale.

PN320

And then:

PN321

Takeaway foods and beverage packages sold and served in a manner so as to allow them to be taken away from the point of sale and consumed elsewhere.

PN322

And the third dot point refers to food courts in shopping centres and the like.

PN323

The argument, and I think ACCI makes this argument, is that a strict reading of the first dot point, the introductory words and the first dot point, is capable of encompassing:

PN324

The industry of the delivery of meals, snacks and beverages to be sold to the public, primarily to be consumed away from the point of sale.

PN325

We say that's not the better reading for three reasons. The first is that - the first dot point ought be read carefully, that is, it is referring to:

PN326

Meals, snacks and/or beverages which are sold to the publicly, primarily to be consumed away from the point of sale.

PN327

As we understand the distinctive feature of the Menulog, and similar companies, claim, is that they have expanded the type of merchant that sells meals for delivery. That is, that they are restaurants, not just fast food but restaurant meals, and I think my learned friend referred to taking away the experience of sitting in a restaurant. I don't know how factual that is, but leaving that to one side, that it is restaurant meals, in addition to fast food and pizzas and the like, which have traditionally been the subject of delivery, to expand it to restaurant meals.

PN328

Restaurant meals are not meals, snacks or beverages which are sold, primarily to the public, to be consumed away from the point of sale. They are, primarily, to be consumed at the restaurant and are not contemplated by what is - by that phrase.

PN329

Whilst Menulog and the like do deliver fast food as well, as we understand it, the focus of the business is not that, specifically, it is restaurant food specifically and now, obviously, groceries and other items. So we think a proper reading of the definition does not extend to mere delivery of restaurant or other meals, and the various types of other products that Menulog, and similar companies, deliver.

PN330

The second is that there are other features of the award which support a view that the reference to 'delivery', in the definition of the fast food industry, is a reference to delivery of the employers own products. I refer to clause 19.6(b), and to the reference to 'delivery outlet' in the award, that what is contemplated by way of delivery work, is delivery of the employer's own products. 19.6 deals with the transport allowance and the employee - it contemplates:

PN331

An employee may be engaged, primarily, to perform delivery duties.

PN332

But it's delivery duties of the employer's products to customers that is contemplated as the type of deliver work that would be undertaken, for the purposes of that award.

PN333

In the classifications, in schedule B, the delivery work is referenced to a delivery outlet, which is not the type of operation that Menulog, or similar companies, undertake.

PN334

Thirdly, we would endorse what is said in Menulog's submissions, from paragraph 5.5 to 5.11, which refer to the history, or set out some of the history of the making of the Fast Food Award, as an offshoot of the Retail Award, or retail industry, as contemplating, albeit, a delivery function, by the employers who actually operate fast food outlets and prepare fast food, albeit that they may engage persons to deliver that food.

PN335

For those reasons we would say the better view is that the Fast Food Award does not cover, at all, employees contemplated by the proposed on‑demand award, so one doesn't get to the most appropriate classification issue. But if the Full Bench were against us on that, we say it is clear that the Road Transport Award classifications are more appropriate to the nature of the work and the circumstances in which it is performed.

PN336

VICE PRESIDENT HATCHER: Does this (indistinct) question require us to look at the Restaurant Industry Award?

PN337

MR GIBIAN: I haven't looked, at any great detail, to the Restaurant Industry Award, I must say, because it wasn't raised. I think ACCI did refer to it. Perhaps if I could just take that on notice.

PN338

VICE PRESIDENT HATCHER: My very broad impression is that, perhaps it's just my style of eating, that companies like Menulog deliver more restaurant meals than they do fast food. Maybe I'm wrong about that.

PN339

MR GIBIAN: I think I might have said this, as I say, that's as I understood what they said was distinctive about their business, as opposed to traditional fast food delivery which, as your Honour pointed out, (indistinct) for a long time. Until relatively recently one couldn't generally either take away from or certainly order for delivery from a restaurant, what might be called - I know McDonald's say they're restaurants, but a more traditional type restaurant, if you know what I mean. And that that was, in a sense, the innovation or the broadening of the delivery work.

PN340

VICE PRESIDENT HATCHER: I think the restaurant industry is clear, that the employer has to be a restaurant.

PN341

MR GIBIAN: That would be my assumption. But, as I say, your Honour, I hadn't looked at it in any great detail, I must concede.

PN342

VICE PRESIDENT HATCHER: All right.

PN343

MR GIBIAN: We'd say one would ultimately read the Fast Food Award in the same way as that, when one actually looks at the words that are used. I accept that there is a literal reading which could lead to a contrary conclusion, but given the context and the history, and an actual examination of the words used, one would reach the view that the Fast Food Award doesn't cover, at all.

PN344

I think those were the only matters that I wish to raise, orally, on the threshold issue. We understand that if the Commission forms the view, consistent with our submissions, that the Road Transport Industry Award applies, that we understand Menulog proposes to continue with their application, they're entitled to do that, my client is happy to discuss that matter with Menulog. Whether it agrees there ought be any different conditions, or wages or the like, is obviously an entirely different matter, but we're obviously happy to have discussions about substantive issues.

PN345

VICE PRESIDENT HATCHER: All right, thank you.

PN346

Who wishes to go next? Mr Ward?

PN347

MR WARD: Thank you, your Honour.

PN348

Can I say, at the outset, we don't intend to be too long. We just want to address this question of the new industry, deal very briefly with some matters that arose, in relation to the Road Transport Award, deal a little bit with the Fast Food Award and the restaurant question raised by your Honour, the presiding member. And then, lastly, just a couple of quick points Mr Avallone made about how modern awards should be read.

PN349

Can I just say, at the commencement, that we rely on our submissions, as filed in the matter. Very clearly the question before the Commission today is the one your Honour the Vice President, famed his morning, which is which industry is Menulog in, in respect to its drivers, and that, very clearly is the question that we're here for.

PN350

Contrary to Mr Avallone's characterisation of our submissions, we sought to grapple with the two elements relevant to the award coverage question. One is, does the employer fit the definition of industry, in a relevant modern award and, if so, are the relevant employees covered by the classification structure. I don't intend to go to our submissions in any detail, other than to say that we've dealt with both parts of that proposition, contrary to what Mr Avallone said.

PN351

Essentially, as we understand it, the applicant is seeking to portray something as new, novel, an industry not previously contemplated, and is asking the Commission to focus on how they've characterised that, in distinction to industries currently regulated by a variety of existing modern awards.

PN352

We take issue with what was said this morning about the newness and we actually do take issue with what is said to be an industry, in the application, actually is an industry.

PN353

In terms of the newness, the primary focus this morning was on the delivery of cooked food or, occasionally, reference to cold food or cold food-related items. The delivery of cooked food was certainly not novel in 2008, during the modern award review process - sorry, the award modernisation process, which is self-evident from the fact that a variety of awards of this Commission, including the Restaurant Award and the Fast Food award contemplate the delivery of cooked meals and cooked foods. So the idea that somehow, because food is being cooked and delivered, is new, is a misconception.

PN354

The applicant uses a phrase, at 4.6 of its submissions, which it uses once and it never uses again. That phrase is, 'The food ecommerce industry'. It's possible to contemplate that there may well be evolving in Australia an industry which we might describe as the ecommerce industry, it's possible to contemplate that. The applicant themselves, at paragraph 8 of Mr Belling's statement, says that, 'The applicant employs some 500 employees'. It may well be that those employees, on the main part, are involved in ecommerce, in some fashion.

PN355

The actual attempt to describe the industry, relevant to this application, concerns 20 of those 500 employees, or to put it a different way, apparently there is a brand new industry relevant to 4 per cent of Menulog's workforce. That is a very strange contemplation that there could be an industry that's all of a sudden appeared, that regulates no more than 4 per cent of their workforce, when the great majority of their submission is about what's happening to the other 96 per cent of their workforce.

PN356

So, in our respectful submission, the Commission would approach the construction of their artifice with some care. It's not new and it's questionable whether or not, as defined, it is a new industry. It is, respectfully, an artifice to try and distinguish itself from the relatively obvious coverage under the Road Transport Award today.

PN357

In relation to the Road Transport Award, I want to make a few brief points. We did not assume that it was conceded that the work done by Menulog's couriers fell within the classification of the Road Transport Award. It was fairly clear, from their submissions, that that certainly wasn't expressly conceded, so we took some little time, in our written submissions, to describe and explain what couriers do and what the essential elements of courier work is.

PN358

We drew some assistance, in doing that, from the Courier and Taxi Truck Contract Determination, which is an instrument of the New South Wales Industrial Relations Commission, operating in a different context to employment. But it's useful in that that instrument is an industrial instrument which gives some informative assistance as to what courier work is and as, certainly, the Vice President probably will recall, that instrument has been in operation since 9 November 2001, when it was gazetted in Industrial Gazette 329, at page 248.

PN359

We simply thought it was necessary to spend some time discussing what courier work was, to ensure there was no debate that the work that Menulog's 20 couriers do fits within the classification, in the Road Transport Award and in, our view, can fit into the classification in the Fast Food Award, which I'll come to. I'm not sure, but I don't think that's an issue anymore in these proceedings.

PN360

Menulog's primary argument about the Road Transport Award appears to be that prepared food and prepared meals does not come within the definition in clause 4.2(a) of the award. I don't intend to restate what we've put in our written submissions, and Mr Gibian has dealt with that, at some length, today, other than to say a few things.

PN361

Like Mr Gibian, we draw the Commission's attention to the fact that the definition in the claimed award is broader than prepared food and meals and goes to goods or any other item. We note that Mr Belling's evidence indicates that while the goods and any other items are small in number, his evidence says that that's part of their business they're growing.

PN362

Certain things should be uncontroversial we hope. It should be uncontroversial that you do not have to be a transport company to be covered by the Road Transport Award. As has been stated by the Vice President this morning, the definition in the Road Transport Award is activity focused, and we simply need to be able to discern that the business activities of the company fall within that award.

PN363

The phrase 'goods', in the Road Transport Award is as broad a phrase as one can find, and I adopt Mr Gibian's submissions in that regard. At it's simplest definition it means articles of trade, and I reference our submissions at 7.10 in that regard. It would seem to us to be uncontroversial that, 'The carriage of food, beverages goods or any other item', as set out in the definition to the application, is contemplated by 'goods'.

PN364

The TWU have developed, in their submissions, a fairly lengthy explanation as to the history of the Courier Reform Awards, and conclude that the language in the Road Transport Award coverage clause should be read broadly. We adopt those submissions. That is, in our view, clearly the case.

PN365

We don't believe you have to get to the inclusion provision in the Road Transport Award, which had is genesis from a variety of Mixed Enterprises Award, most notably the New South Wales Mixed Enterprise Award. We think you can capture Menulog's business, as it operates in respect to its drivers, simply by the adoption of the phrase, 'Transport by road of goods', but to the extent that there might be any concern that the work of the couriers is a small part of their business, there's no doubt that the inclusion, at the end of 4.2(a) of the Road Transport Award answers the question, ensuring that even if the activity is ancillary to the principal business undertaking or industry of employ, it's included. So, in our view, the Road Transport Award, on any proper reading, has to apply.

PN366

Now, we've taken a slightly different approach to the fast food, and I'll just address that briefly. In some senses our fast food view is, perhaps, academic because we arrive, in any event, at the conclusion, that the Road Transport Award is the correct award. But I'll just deal with the fast food issue, in a little more detail, if I can.

PN367

If I could take the Commission to the definition of fast food, in the Fast Food Award. A number of things have been said about this, and we are slightly more comfortable with some and particularly uncomfortable with others. I think the general proposition that's been advanced as to why it doesn't apply is that we should read into that definition that it only applies to fast food outlets. We're very comfortable that the authorities allow the Commission to colour the language in the award, we're somewhat uncomfortable with the idea that the authorities allow the Commission to insert or remove words from the award.

PN368

The award doesn't say, 'It only applies to fast food outlets' and, in fact, relevantly, where it wants to actually describe an outlet or a physical establishment, it does so. In that regard, if one reads the definition, the first two definitions are agnostic on the question of establishment and the third dot point is quite precise on the question of establishment, in that it references:

PN369

Food courts and/or in shopping centres and/or in retail complexes, excluding coffee shops, cafes, bars and restaurants providing, primarily, a sit down service inside the (indistinct) establishment.

PN370

So to the extent that where the definition feels it's appropriate to call out the notion of an establishment, it does and - - -

PN371

VICE PRESIDENT HATCHER: What are we (indistinct), Mr Ward?

PN372

MR WARD: The third dot point, your Honour, 'Fast food industry.

PN373

VICE PRESIDENT HATCHER: I see.

PN374

MR WARD: Where it wants to call out the relevance of an establishment it does so. So, with respect, it's dangerous to read into the first two dot points that that refers to an establishment. So that's the reason we, at the outset, took a slightly different view to the other parties - I withdraw that, took a different view to the TWU and Menulog, on the application of this award.

PN375

Now, if I could just deal with two issues; one that arose from Mr Gibian, and one that arose from the Vice President.

PN376

Mr Gibian then took you to the first dot point, and suggested that, in some way, the construction of that dot point leads you to a conclusion that it must be talking about the fast food outlet. With respect, that dot point doesn't mention, in any way, shape or form, the employer's establishment. The concept there is a reference to the item being procured and that that item is sold to the public, primarily to be consumed away from the point of sale. There's no ability to read into that that that provision is, in any sense, talking about the business of the employer.

PN377

It may well be the case that during the pandemic a restaurant might have found itself having to deal with the conflict between the Restaurant Award and the Fast Food Award, if they had moved to simply sell fast food. That might well have been the case.

PN378

As to the Restaurant Award, I would say the Commission don't need to be troubled by it because the Restaurant Award, it its terms, is expressly limited to establishments. In that sense, and I apologise I don't have a copy with me, but the restaurant industry means:

PN379

Restaurants, reception centres, night clubs, cafes.

PN380

And it goes on. So the Restaurant Award isn't a matter of concern here because it is limited to the establishments.

PN381

So we take a slightly different view on the application of the Fast Food Award. As I said at the beginning, it might be said to be somewhat academic because, on the basis of the reconciliation clause in all modern awards, we came to the conclusion, and I note the TWU adopt those submissions in the alternative, we came to the conclusion that the Road Transport Award provides the better classification for employees than the Fast Food Award classification.

PN382

I think that should be uncontroversial. The Road Transport Award deals, expressly, with the notion of couriers and courier work. The Fast Food Award simply deals with the notion of people possibly undertaking deliveries of an activity within a particular, much broader, classification structure. So we do believe the Fast Food Award can apply to the activity that Menulog have described in their application, but that the reconciliation between the road transport and fast food leads you to road transport.

PN383

If I can just make two further very small points? Mr Avallone invited the Commission to adopt an approach of reading down the coverage clause of one award by reference to the coverage clause of another award. That would be an entirely dangerous approach to adopt and one that, on proper principles, shouldn't be available.

PN384

To the extent that the Commission understand that conflict will arise, from time to time, it's dealt with that very efficiently by including, in all modern awards, the reconciliation clause. But it would be a very dangerous exercise to start suggesting that one modern award coverage clause was written in contemplation of others. Without being too unfair to the Australian Industrial Relations Commission, the hurly burly nature of the award modernisation process didn't provide for that level of sophistication at all.

PN385

Can I close by simply saying this? It has to be acknowledged that it was unduly provocative of us to suggest the application should be dismissed. The Commission might excuse that small mischief. If the Road Transport and Distribution Award is found to apply, obviously it's a matter for the applicant, whether or not they wish to continue to try and pursue a new award, either in the terms sought or in amended terms or what might be a more practical approach, which is to make an application to vary the Road Transport Award and deal with that on its merits.

PN386

Unless there's any questions, those are our submissions.

PN387

VICE PRESIDENT HATCHER: Thank you.

PN388

Mr Ryan, are you next?

PN389

MR RYAN: Thank you, your Honour.

PN390

The ARTIO relies on its earlier submissions and supports the TWU submissions and also the joint ACCI/ABI submissions.

PN391

In terms of the threshold question posed by the Commission, 'Is there a modern award which covers on‑demand employees, as Menulog define it?', we say there is. 'If so, does it meet the modern award's objective by providing a fair and minimum safety net?', again we answer that question in the positive and we say that that award is the Road Transport and Distribution Award.

PN392

ARTIO's brief submission will focus on the practicalities around the road transport industry. Just indulge me with a little bit of history, I commenced in this industry in 1973, whilst studying. My task was to transport goods from point A to many and various customers around the city and suburbs of Sydney. I worked a day a week under the Transport Industry State Award. That's precisely what Menulog employees do, they move, 'Goods, wares, merchandise or anything whatsoever', from point A to point B. This is what the transport industry is about. It's conveying goods from one place to another place.

PN393

Menulog's argument that an application or an app makes all the difference, as though it changes the nature of the task. I'm hungry and I ring or order online, or contact a food delivery business to delivery a prepared meal from point A to point B. That's all it is. It's moving something from A to B. Again, the task of the road transport industry, and the Road Transport and Distribution Award 2020 which, along with its predecessors, regulates the work of employees in the road transport industry.

PN394

ARTIO submits that it should simply be a matter of reading the coverage clause and simply applying what is the clear intention of the old Australian Industrial Relations Commission, now the Fair Work Commission, in drafting this clause. That is, to ensure that the transport and delivery of goods, wares, merchandise and anything whatsoever, is covered by the Road Transport and Distribution Award.

PN395

To quote that guiding principle of common sense, if it walks like a duck, quacks like a duck, looks like a duck, it is a duck. That's precisely what we're dealing with here.

PN396

ARTIO notes that, currently, other on‑demand companies are delivering prepared foods and other goods, from supermarkets to consumers. ARTIO is also aware that companies use a contractor model, which is covered by owner/driver transport legislation or regulation in several states; in New South Wales, in Victoria and Western Australia. This is despite these laws being in place before the advent of the app‑based transport services.

PN397

It would be possible, if the Menulog application is successful, to have an award covering these on‑demand workers for employees, but the independent contractors, or so-called independent contractors, would be regulated by transport-related legislation.

PN398

In terms of some of Menulog's submissions this morning, your Honour, it was about getting something delivered right here right now. That's precisely what somebody who rings up and wants a mobile phone, they want it delivered right here right now. Are Menulog going to do that, under their 'goods or any other items', because that's what an express freight and courier companies and messenger companies currently do, with employees employed under the Road Transport and Distribution Award.

PN399

If the meal that is ordered is not delivered, then there is no provision of a service. It is the movement of the meal, from point A to point B that is critical to the exercise. All the other stuff, the marketing is how they choose to structure their business, but it's the transport task that provides the consumer with what they seek. That is clearly a task that is performed in the transport industry, under the Road Transport and Distribution Award.

PN400

Thank you, your Honour.

PN401

VICE PRESIDENT HATCHER: Thank you.

PN402

Ms Paul? You're on mute.

PN403

MS PAUL: I'm sorry, I just realised that, your Honour.

PN404

We rely on the submissions that we filed, with respect to this matter, and particularly at this stage. I do want to address just a couple of points and don't intend to reiterate our submissions, we're pretty clear as to where we stand.

PN405

The issue around the Road Transport Award, clearly there is (indistinct) both from the coverage clause, as well as when you look at the classifications, that the employees - the on‑demand, Menulog, could fall within that category in the industry, as well as when it comes to the classifications aspect, if that is needed, and we might come back to that bit later, if that is needed, the classifications, clearly, within the scope of the award as well.

PN406

The issue, though, is whether or not in the making of that award, if Menulog were around at that time, would there have been a different crafting. We just pose that as an issue that might be worth looking at, but we have no debate around the fact that the Road Transport Award appears to cover.

PN407

On the same token, I think we also want to stress that the outright dismissal of any concept that the Fast Food Award doesn't have any coverage, as being proposed by a number of parties, we say that's probably erroneous. There certainly is good cause for the Fast Food Award to be considered and to have coverage, and appear to have coverage. If we simply look at the definition of what the fast food industry is, and this is solely to the (indistinct) of the industry.

PN408

There's at least some comparison, obviously, between fast food and restaurant, and your Honour asked that question. The Restaurant Award deals solely and sits solely around the issue of a restaurant and the nature of service of food, in terms of the coverage clause. It doesn't go so far as the Fast Food Award does, which is not just around the fact that it's fast food, it's actually about the delivery of food. The Fast Food Award deals with that, by dealing with the fact that the industry is the taking of the order, the preparation, sale and/or delivery of, and the three dot points concerned.

PN409

We think that elevates that to being more appropriate to consider, if you wanted to look at the concept of food delivery, above that of restaurants, simply because it comes from the - the food is coming from the restaurant doesn't take away the nature of what appears to be, from the words of the Fast Food Industry Award, that it could very well fall into coverage.

PN410

The other issue, in relation to the Fast Food Industry Award (indistinct)the fact that it is fairly clear, around the delivery concept as well as on the basis of preparation and taking of orders. But what it as done is it throws up the issue that it, along with road transport, appear to have coverage of Menulog and the nature of the work that Menulog undertakes, as well as others in the industry. The evidence before the Commission is solely around food, and that, hence that issue - hence, I think the consideration goes towards looking at the Fast Food Award and weighing that up against the Road Transport Award.

PN411

The broader submission, your Honour, is the fact that the Fast Food Award has a sufficient level of nexus to apply. But notwithstanding that, we do actually - would suggest that, in terms of the case authority, where there are competing interests, as there obviously are between the two awards, and possibly if the Commission were minded to create a new award, that it comes down to the nature of the context of what the employees do and where the employees work, as shown by where there's competing interests in other awards, as identified in our submission.

PN412

In all of that, it does come down to what the employee does and where they're working. The evidence before the Commission at the moment, and that may obviously change when it gets to the next stage, has certainly been around the delivery of food.

PN413

If the Commission has no further questions, I rest on the basis of the submissions that we filed in this matter.

PN414

VICE PRESIDENT HATCHER: Thank you. I think that's everyone.

PN415

Anything in reply, Mr Avallone?

PN416

MR AVALLONE: Yes, and I'll endeavour to be brief, Vice President, thank you.

PN417

VICE PRESIDENT HATCHER: Perhaps start off with this point about classification coverage, is that conceded or not? That is, if it falls within the coverage the industry described, do you accept that the (indistinct) of employers would be covered by one of the classifications?

PN418

MR AVALLONE: Yes, if we are within - when I say 'we', I mean Menulog and other employers in the on‑demand delivery services industry. If they are considered to be within the industry, then these employees are within the classifications. As I said this morning, that's not the - well, it's certainly not the starting point of the analysis.

PN419

VICE PRESIDENT HATCHER: So the other thing is, in your submissions this morning there was a lot of talk about the uniqueness associated with delivering ready to eat meals, or meals for immediate consumption, and the restaurant experience and the like, but as Mr Gibian's reminded us, your proposed award goes well beyond meals into other areas.

PN420

MR AVALLONE: Well, the evidence of Mr Belling, and it's at paragraph 15 of his statement, is that food, whether that be from restaurants of fast food outlets, it's 95.9, let's call it 96 per cent of the business, and that's - I would submit that 96 per cent is the overwhelming part of it.

PN421

The other thing that I just note, in relation to the, I guess that 3 per cent, or the point was made by a couple of my friend's, there was reference to Uber Connect, which seems to be described as this package delivery business. That's a business model which is outside of the scope of the industry which we seek be covered by the award.

PN422

VICE PRESIDENT HATCHER: Why is that?

PN423

MR AVALLONE: The reason is, if I can take you to the definition of the industry which we seek, after the first comma - - -

PN424

VICE PRESIDENT HATCHER: What clause is it again? What part?

PN425

MR AVALLONE: This is in my submissions, it's a paragraph 2.1. So this is the Menulog submissions of 18 October, that set out the proposed definition. Going after the words, 'Any other item', and I acknowledge what's been said about that, and I repeat the 3 per cent or 4 per cent thing, after that comma:

PN426

That are ordered by a consumer, from third party businesses that offer -

PN427

And it goes on and on and on:

PN428

On an online or application based platform.

PN429

So it's about those food, beverages, goods or other items that are ordered by a consumer on an online or application based platform.

PN430

VICE PRESIDENT HATCHER: So what about Amazon, does that fall within the coverage?

PN431

MR AVALLONE: No, Vice President, because that would be a direct sale by the supplier. It's not a question of - and that's - well, the words that I've just skipped, which is:

PN432

By a consumer from third party businesses that offer food et cetera.

PN433

So Amazon is in a world where the consumer goes onto the Amazon website and they purchase something from Amazon and Amazon - - -

PN434

VICE PRESIDENT HATCHER: Do they purchase it from Amazon?

PN435

MR AVALLONE: Sorry?

PN436

VICE PRESIDENT HATCHER: Do they purchase it from Amazon?

PN437

MR AVALLONE: That's my understanding. I'm instructed that Amazon have a category called Online Marketplace, but, again, that would be a different kettle of fish, if I could put it that way.

PN438

VICE PRESIDENT HATCHER: I mean I'm just trying to work out what, precisely, is the question we're being asked to answer. You're not asking for a Menulog Award, you're asking for an award which covers a putative industry. So it seems to me if we're dealing with, on the face of that, coverage - proposed coverage clause, then we have to take in account beverages and goods and the like, and I'm just trying to think about what else that would cover, apart from what we've been talking about all morning.

PN439

MR AVALLONE: Yes, and Amazon - the Amazon example is not going to, besides the third party point that I raised, there's also the element of immediate collection and delivery. That's the right here right now. It's not an Amazon market seller sitting in America who puts something in a box to, one way or another, find its way.

PN440

VICE PRESIDENT HATCHER: So what are goods for immediate collection then, what does that cover?

PN441

MR AVALLONE: Well, there was reference before to supermarkets. I understand that some of the operators do enable the consumer to go onto - it may not be Menulog, it may be Deliveroo or Door Dash, or whoever, go onto the platforms app and, amongst the stable of suppliers there may be a supermarket or other business like that. The sale though, and this is the critical point, the sale is facilitated through the app, which belongs to whether it's Menulog or Uber Eats, the provider, if I can put it that way, or the platform. It's a sale that's, to use the language of the definition, that's ordered by a consumer on an online or application based platform. But, in that case, it is online or application based, through the on‑demand delivery services industry providers website, or their application.

PN442

So it is, I submit, different to the example that I used before, of someone jumping on the Myer's website and ordering something from them. It is different to that and it is different to a lot of things that may or may no have existed in the past.

PN443

I'm jumping, and this is because it's related to this. I think it may have been Mr Ward who made the observation that Menulog currently has 20 employees in the - working as couriers, who would be covered by the proposed award. That may well be the case that - well, it may or may not be that other operators out there have people who are properly construed as employees. The TWU clearly has the view and puts the view, and Mr Clayton or Mr Davis, the witness, puts the view that he's an employee. That may or may not be the case, but it would be a mistake to view this as some type of enterprise award, or proposed enterprise award, only covering a small percentage of - - -

PN444

VICE PRESIDENT HATCHER: I understand that. But you initially answered my proposition by reference to the fact that Menulog is 97 per cent food, but that doesn't seem to me to be the, necessarily, applicable frame of analysis because you're asking us to cast the net much more widely than Menulog and, therefore, we have to take into account other possibilities.

PN445

MR AVALLONE: Yes. And I cannot speak, and I cannot give evidence for the - well, I can't give evidence for anybody. The other operators, Deliveroo and Uber Eats, and others, have chosen not to be there. There's not evidence directly before you as to what their percentages are, all I can rely upon is the evidence that Mr Belling gives, based on his experience both with Menulog and its related companies and his more broad understanding of what's in the industry. But I do say that the service of Uber, doing package delivery, that that is something excluded from this.

PN446

VICE PRESIDENT HATCHER: I'm looking at the Amazon website, you can pay for different levels of priority so that - there's one level where it's basically delivered same day.

PN447

MR AVALLONE: Same day ain't 9.2 minutes, your Honour.

PN448

VICE PRESIDENT HATCHER: Okay.

PN449

MR AVALLONE: Sorry, I won't go further on that.

PN450

There was some reference to, or I think it was Mr Gibian referred to KFC, that you were asking about before, Hatcher VP. One thing is that my instructions are that KFC is not one of the partners that, or one of the sellers that Menulog engages in that service with. It may be Door Dash that they use for that type of work. But, in any event, on my instructions, if there is any of that delivery, as service, it's only 1 per cent of Menulog's business, at least, anyway. It's the de minimis. If that were being relied upon as somehow, in the words about ancillary to the principal business, ancillary still has to be something more that de minimis, I would submit.

PN451

Mr Gibian referred to the contract, which is at exhibit MBB2, and the fact that that, being a Menulog contract, had a definition of 'goods'. The first thing I'd submit is that that can't be taken to be an expression of a subjective view as to what the award means, or what a phrase in the award means. But even if it is, it clearly can't effect the proper interpretation of the award itself.

PN452

The words of the award need to be construed, obviously, in their context and according to their language. So too the reference to various cases that turn on the definition in particular statutes of what 'good' means, or on the context of that legislation. That does not particularly help the Full Bench in construing the meaning of the award. The award is to be construed in its context. That, I do - I refer back to my submission about construing the words of the Road Transport and Distribution Award, in the context of the broader award system that does acknowledge delivery in other industries not being covered by the Road Transport and Distribution Award.

PN453

Mr Gibian referred, I think it was to MBB6 and clause 6 of that, which provided for an option of either immediate delivery or scheduled delivery. The point there is that that's the choice of the consumer. The consumer gets to drive or to decide whether it's immediate or whether they want to ask for a restaurant meal to be delivered tomorrow, at 7 pm. That is the consumer‑focused, or consumer‑facing nature of this, that they get to choose, and they do that through the platform where they order it. It's not simply - it is different to get something from A to B and it gets here when it gets here.

PN454

Mr Gibian referred to a couple of award modernisation decisions which are set out at tabs 8 and 9 of the TWU folders. Again, I'd submit that both need to be read in the light of - those decisions and the awards made, as a result of those decisions, need to be read in the light or in the context of the broader award system and the framework that was put in place. Neither of those decisions say anything, of course, about the on‑demand delivery services, as an industry. The simple reason for that is because it did not exist. That's the gap which I submit exists, and at the second stage Menulog will submit should be filled by making a new award.

PN455

There is a reference, and I think it was by Mr Gibian, yes, I think it was Mr Gibian, referred to Mr Belling's evidence, at paragraph 77 and, if my note is correct here, it was said that the app, and I think it was said by somebody else as well, that the app is merely the mechanism - sorry, the mechanism by which a transportation is brought about. The app is much, much more than that. I refer back to what I said before about the app or the online model being the very basis as to how the order is generated, so from the marketing, the facilitating the order, holding the monies, paying the monies. It is overly simplistic, I submit, just to focus on the point A to point B.

PN456

VICE PRESIDENT HATCHER: Mr Avallone, this was in Mr Belling's statement, starting at 125, this trial group of employed couriers, are they employed on an exclusive basis? That is, they're only to do Menulog work?

PN457

MR AVALLONE: Yes. I think Mr Clayton, I'll have to check, Mr Davis Clayton, his - what he describes of being on several - he gives evidence, essentially, of being - I don't want to put words in his mouth, the - well, he's characterised by the bodies that engage him as contractors. I'm being careful about that because I don't know that he says that he's a contractor himself, but that's how he's characterised by them. He describes being, effectively, on the books of about six or seven different people and sitting on a park bench and seeing which one comes up.

PN458

That's not a model which Menulog is applying to its employees. I do know it's a trial at the moment and part of the purpose of this application is to try and make that model a sustainable one.

PN459

Mr Gibian referred to the Cooperative Bulk Handling and also the Norrie case, which are in the TWU submissions. I do submit that the Commission should be wary about relying upon cases which import rules of construction of union eligibility rules and apply them to the construction of awards. Of course union eligibility rules might be construed in a way which follow the development in which the union's members do their work, otherwise the union will end up with no one eligible to be its member.

PN460

Awards are different. Awards are stated to cover who they cover. They carry with them both benefits for employees and also costs for employers and the contravention of them comes with civil penalties. Care, I submit, should be taken with allowing the clauses, particularly the scope clauses, to be construed in some ambulatory way that lets it shift, over time.

PN461

Another point of difference, I guess, is that in the Cooperative Bulk Handling case that seemed to be in the context where if the union eligibility rule weren't given a moving definition, that eligibility might fall away. The road transport industry is not going to disappear overnight. What this is really about is working out what award covers something new which has appeared, not just a newer way of doing something.

PN462

VICE PRESIDENT HATCHER: Ms Paul set us the mental exercise of asking if industry had existed in the way you described it when the modern award was first made, how might they have worded it, any broader than it is, to cover it? I mean it's difficult to imagine what more you could say to make sure you cover everything. I mean they could have specifically said, 'It covers Menulog', I suppose, but I find it difficult to come up with a broader set of words that would have encompassed the industry, had it existed at the time.

PN463

MR AVALLONE: Well, it's not incredibly helpful to the Commission to imagine in the past something existed then which exists now and how might it have been dealt with. The fact is that it did not exist then. It may be that the Full Bench, well, we can't ask his Honour, and his understanding wouldn't have existed anymore, but we can't ask the late, great Giudice J what he might have done. I submit that it just doesn't help the Commission that much to imagine what could have been done then. But what I do say is this is not an industry that could have been in the contemplation of the Full Bench, because it simply didn't exist.

PN464

What clearly was in the contemplation of the Full Bench, when it made the modern award system, more generally, was that delivery of hot food, immediately to be consumed, was something covered by some other award, being either the Fast Food Award or the Restaurant Award, but only, of course, for the employers in that industry.

PN465

I'm repeating myself, but I submit that that does - - -

PN466

VICE PRESIDENT HATCHER: That leaves the result that the award modernisation Bench knew that there was a function of delivering hot, ready to eat meals, but deliberately left this lacuna in coverage. That doesn't make any sense.

PN467

MR AVALLONE: It didn't. It didn't leave a lacuna, as the facts existed at the time, because the only people who were, at the time, doing delivery of restaurant or fast food meal for immediate consumption, hot or cold, were restaurants and fast food. They were covered by - - -

PN468

VICE PRESIDENT HATCHER: What's the evidence of that?

PN469

MR AVALLONE: The evidence of Mr Belling, as to the existence of this industry and that it didn't exist before - - -

PN470

VICE PRESIDENT HATCHER: He's describing the particular industry constituted by what he categorised as the app and the marketing and the payment facility.

PN471

MR AVALLONE: Yes.

PN472

VICE PRESIDENT HATCHER: But if you just boil it down to the delivery of ready to eat meals, what evidence is there that business engaged in transport weren't doing that in 2009?

PN473

MR AVALLONE: Well, the best evidence I can submit is the evidence of Mr Belling. The examples you've given earlier today, Vice President, of pizza being delivered by pizza shops, it's almost something that can be taken judicial notice of, that that is something that has existed for a long time. It can, I submit, be inferred that that is the type of model that was - that should objectively be considered to have been in the mind of the Full Bench, when it provided for delivery, under the Fast Food Award, and something similar for delivery being in the Restaurants Award.

PN474

I submit that there was not a lacuna in 2008/2009, in relation to delivery of food, for immediate consumption, by third party businesses and the words about an online app, or being ordered on an online app, because that just didn't exist. There was no lacuna. The lacuna has emerged, over time, because the world's moved on, since 2008/2009. What Menulog is seeking that the award system do is catch up with the world moving on.

PN475

It was said, and I think it might have been Mr Gibian, but if it wasn't I apologise, that the app and the website is merely a mechanism to facilitate delivery. I submit that, again, it's much more than that. It is about facilitating the sales from the very beginning, and marketing the sales, as agent for the seller. It is not simply A to B, and that is an understanding. If the Full Bench took the approach that this is just about A to B, that would be to mistake the facts.

PN476

Reference was made to the decisions of Cody v Nelson and also to Deputy Commissioner for Tax v Clark, in relation to the principle of ejusdem generis, I submit that the genus is that of raw materials or other things which, effectively, may be traded or they may be transported, but they are not things immediately to be consumed, in the state of heat or cold, that food or - hot food or cold food might be in. That, again, comes back to that right here right now part of it, otherwise I repeat what I said before.

PN477

In relation to the Truck Moves decision that was referred to. I guess that's an example, I would submit, of putting - first there was the reference to the plurality to the principle of ejusdem generis applying to the relevant term in the award, and it is an example of the words of the award being given a meaning in their context and it not simply being, 'Well, there's a thing, it's a thing whatsoever, and it's being transported from here to there, it must therefor be within the words in a vacuum'. What I submit the Commission should do is to look at the words, in their context and, again, I've said it a few times, looking at it in the context of the overall award system.

PN478

A couple of things that were said by ACCI, it was said that the delivery of cooked food was not novel in 2008. Well, I accept that but, again, I'd submit that the industry, as we are seeking it to be covered, is something which did not exist in 2008, and it's that which Menulog seeks to be covered by a new award and submits that is not covered by the old world award that has been there for some time.

PN479

In relation to - sorry, I mentioned this very briefly before, I think it was Mr Ward's submission about there only being 20 employees in the trial, I deal with that at paragraphs 1.4 and 1.5 of the Menulog submissions.

PN480

It was said by Mr Ward that Menulog is seeking to read down the coverage, by reference to another award, and that's dangerous. What I simply submit is that the words of the award, whether that be the Road Transport and Distribution Award or the Fast Food Award, should be read in their context, and that context must include the terms and existence of other awards.

PN481

Mr Ryan, turning to the ARTIO submissions, but some brief submissions about the modern award objective, and I don't seek to engage with those submissions, because they really deal with stage 2 points.

PN482

It was said that all that's being done is A to B and, well, I repeat what I've said before, it's so much more than that.

PN483

Mr Ryan said something about the phone being delivered, and that's exactly what express freight delivery has done forever, or maybe not forever. Again, I direct the Full Bench's attention back to the industry definition. There is a world of difference, I submit, between me, as the consumer, ordering a phone from a supplier and then either the supplier or me engaging a transport company to transport it from A to B. That is very different to the industry definition, which involves me getting on the app or the website of an online delivery - sorry, on‑demand delivery services industry's platform and, through that, the entire transaction taking place. That is something very different.

PN484

The only other last thing is there was a reference, I can't recall now if it was, or which party referred to the owner/driver legislation in various states, my instructions are that the owner/driver legislation does not cover, well, at least Menulog, in relation to the work it does. I accept these are submissions from the Bar table, and I've not taking you to the terms, and my instructions are that Menulog, and the relevant employees, do not fall within the determinations - definition of courier, but I can't take it further than that.

PN485

Unless there be anything further, those are the submissions.

PN486

VICE PRESIDENT HATCHER: Mr Ryan, did you want to pass on a message to somebody?

PN487

MR RYAN: Yes. Could you pick that up for me. Thank you, your Honour.

PN488

VICE PRESIDENT HATCHER: I thank the parties for their submissions. We'll reserve our decision. We'll now adjourn.

ADJOURNED INDEFINITELY [1.08 PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 WITNESS STATEMENT OF MORTON BELLING DATED 18/10/2021........................................................................................................ PN34

EXHIBIT #2 WITNESS STATEMENT OF DAVIS CLAYTON DATED 28/11/2021........................................................................................................ PN40