Most Read Contributor in Australia, September 2016
In a decision with major implications for employers employing
delivery drivers, a Full Court of the Federal Court (in
Transport Workers Union of Australia v Coles Supermarkets of
Australia Pty Ltd  3 November 2014) determined that:
Coles' employee delivery drivers or Customer Service Agents
(CSAs) are covered by the Road Transport and
Distribution Award 2010 (Transport Award);
the CSAs are also covered by the General Retail Industry Award
2010 (Retail Award); and
as the relevant classification under the Retail Award is the
most appropriate to the work performed by the CSAs and the
environment in which they work, the Retail Award and not the
Transport Award applies to them.
The court also determined that two Coles retail based enterprise
agreements (EAs) did not cover the CSAs.
The CSAs, a relatively new category of employees for Coles, were
employed following the establishment of online shopping and
Coles' online website. Prior to that, Coles contracted out
delivery driver work to transport providers, including Linfox.
Modern award coverage has significant effects for employees and
employers including not only the provision of minimum terms and
conditions of employment but also a base line for the better off
overall test in making enterprise agreements.
It is often the case that an employer may be covered by more
than one award. Traditionally, the approach taken by the courts in
determining which award applies in such circumstances is to
consider the major and substantial purpose of the work being
The approach taken by the courts in determining which award
applies for modern awards is: what is the award classification
which is most appropriate to the work performed and the work
Interestingly, it was noted that the primary function of the
CSAs is delivery driving but they also perform other duties such as
preparing and packing crates and loading and unloading from
The court held that the primary judge erred in determining that
the Transport Award did not cover Coles as the road transport and
distribution industry includes work that is ancillary to the
principal business and Coles' principal business, whilst
clearly a retail business, includes transport.
The court also held that the Retail Award also covers Coles as
the general retail industry means the sale of goods and services to
final consumers including food retailing, supermarkets and grocery
The real issue of the case was the determination of which of the
two modern awards apply to the CSAs and that is determined by
considering which award classification is most appropriate to the
work performed by the CSAs and their work environment.
The court held that the primary judge was correct in determining
that the relevant classification under the Retail Award was a more
comprehensive match with the work performed by the CSAs than the
relevant classification of the Transport Award. A Retail Employee
Level 1 is defined as an employee performing one or more of various
functions including the wrapping or packing of goods for despatch,
the delivery of goods and work that is incidental to or in
connection thereto. A Transport Worker Grade 2 is much narrower and
is simply defined as the driver of a rigid vehicle (including a
motor vehicle) not exceeding 4.5 tonnes gross vehicle mass.
The court also held that the EAs had no application to the CSAs
as the first EA came into existence when CSAs were not employed by
Coles and the second EA had no application as the CSAs did not vote
on approving it.
This decision has important implications for employers who
employ delivery drivers.
Whilst it may be assumed by that delivery driver employees are
covered by the Transport Award, they may be covered by a different
modern award and that different award may apply to them if it
contains a classification that is most appropriate to the work
being performed and the environment in which they work.
Given the narrow definitions of the classifications under the
Transport Award, it may be the case that other modern awards that
apply to an employer may pick up delivery driver employees.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).