Federal Court confirms Coles drivers are retail workers


Performing detailed additional duties means different award, lower pay and lower level under appeal ruling

Federal Court confirms Coles drivers are retail workers
Coles has won a Federal Court appeal victory for its online service.

 

The Federal Court appears to have cemented a hole in the Transport and Distribution Award’s retail distribution coverage in favour of the Retail Award.

In its judgement on a Transport Workers’ Union (TWU) appeal against a single judge’s finding in Coles’ favour, three judges of the court have effectively ruled that a number of functions a worker performs outweighs the primary task a worker does when the relevant award is to be decided.

The case relates to coverage of "consumer service agents" (CSAs), who have duties other than driving, for whom the TWU argues Transport Worker Grade 2 is the appropriate designation.

Despite backing the judge’s acceptance that "the primary function and major and substantial employment of CSAs is to load and drive a truck and deliver goods to customers who have placed orders through the Coles Online website", the judges note that 'driver' is one of the "indicative job titles which are usually within the definition of a Retail Employee Level 1".

They say they are "unable to fault" the judge’s reasoning, given CSA duties "may include stacking collapsible crates in the Online Room of the store; consolidating orders in the Online Room; loading 'dollies' with consolidated orders in the Online Room of the store in preparation for the next delivery run; looking for missing items in the back store room; general cleaning in the store room or other areas of the store; preparing paperwork in advance of the next delivery run; washing vans; returning groceries back to store shelves; putting away shopped orders into the various temperature controlled zones within the store; shelf restocking; and trolley collection. CSAs also assisted in stocktake duties performed every six months. These duties involved counting the stock on shelves, marking stock and entering information onto a computer."

The judge’s ruling continues: "In light of the scope of clause B.1.1 of the Retail Award, all tasks performed by CSAs described earlier, including delivery driving tasks and van loading and unloading, fall within the Retail Employee Level 1 classification. This is because the Retail Employee Level 1 classification encompasses both ‘delivery of goods’ and ‘packing of goods for despatch and despatch of goods’.

"By contrast, delivery driving tasks are the only aspect of the CSA role that could fall under the Transport Worker Grade 2 classification. The Road Transport Award merely describes that classification as Transport Worker Grade 2 – Driver of a rigid vehicle (including a motorcycle) not exceeding 4.5 tonnes gross vehicle mass. No detail is provided around the types of tasks associated with that classification. Moreover, the indicative job title (driver) covers only one component of the wide range of tasks performed by CSAs. This component is in any event covered equally by the Retail Employee Level 1 classification within the Retail Award as described above."

In his initial response, TWU assistant national secretary Michael Kaine lashed out at the approach of Coles.

"Coles has now resorted to the courts to increase profits by limiting the conditions of transport workers," Kaine states, adding: "Coles has approached this matter in the same way it has continued to bully and squeeze suppliers throughout the Coles supply chain."

He reiterates a continuing call for Coles to "abandon its opposition to the Road Safety Remuneration Tribunal and work cooperatively with employers, drivers and the TWU to ensure safe outcomes for all workers".

For its part, Coles has expressed the hope that the TWU will accept the decision.

"We are pleased that the Full Federal Court has recognised the wide ranging duties performed by our Coles Online customer service agents, and has decided that the Retail Award applies to the CSA role and not the Road Transport and Distribution Award," a spokesman says in a statement.

"We have always believed that the CSA role has more in common with other team members who work elsewhere in our stores than those of a transport worker."

 

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