Menulog have decided enough is enough and are attempting to form their own Modern Award.
Menulog is arguing that their unique service offering delivery of food, beverages, or goods on an online or app-based platform requires the Fair Work Commission to treat them as their own industry in of themselves.
This award, if approved, would cover many familiar names – Uber Eats, Deliveroo, DoorDash,. Workers for these businesses have been historically considered as independent contractors, often working for multiple food delivery providers. Recent cases suggest otherwise.
If the award is approved, it may well bring delivery drivers under the coverage of an award as an employee, entitling them to minimum terms of employment.
Steps of the Fair Work Commission
However, this process will be difficult and problematic.
The Commission are going to look at:
- characteristics of the industry – in particular what is so unique?
- whether this requires terms and conditions different to modern awards already in place
- does this need to be different or can a variation to an existing modern award be enough.
A hearing on this matter is scheduled for late August 2021.
Here are some tips for Employers to consider if they wish to have a go at creating their own Modern Award:
Tip 1 – Consider whether there is a current award which applies
- Review the terms of existing awards, taking into consideration their coverage clauses.
- Review the classifications under the awards identified, to see if they match the work performed by workers, or contemplated to be performed; and
- Consider whether the existing award covers the business and its employees.
Tip 2 – Consider whether the new award is likely to meet the modern award’s “objective”
- Gather information and statistics on the industry and its workforce;
- Assess whether the award is likely to increase workforce participation in Australia;
- Determine the impact of the new award on employment levels, inflation and sustainability, performance and competitiveness of Australia’s economy.
Tip 3 – Consider whether an existing award can be changed instead of creating a new one
- Ascertain the existing award which is most similar to the business;
- Determine whether the award, if changed, could cover the business and its employees;
- Listing the attributes of the business’ industry that differentiate it from the industries or classifications covered by the existing award; and
- Consider whether the different attributes require a new award, or whether additional flexibility can be provided under the existing award.
Sound confusing? You can read more here on the Menulog Application.
At NB Lawyers – Lawyers for Employers, determining award coverage and advising on methods of engaging workers forms part of our day-to-day work. We welcome inquiries from employers in emerging industries or fields to contact us to discuss whether their industry may fall under existing awards, or whether a new award should be considered.
Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.