Archive, Industry News

Little discernable heat follows court ruling on Coles truck drivers

Decision-makers and custodians unfazed despite apparent unfairness of the court ruling.


There appears to be little political or industrial appetite to question the Federal Court’s full bench pronouncement that Coles Online delivery drivers are retail workers.

The upshot of the decision is that drivers working for firms where transport is an ancillary task risk multi-skilling or multi-tasking themselves into different awards at a lower level and less pay.

The recent full bench decision backing a single judge’s determination that the work-profile of the drivers place them more properly under the retail award than the road transport and distribution award garnered basic responses from the Federal Government and the Opposition, while the Transport Workers’ Union (TWU) is yet to say what, if anything, it will do.

The judges’ held the decision was correct, despite accepting that the drivers’ main task was to transport and deliver. They accepted that the drivers’ new work involved a series of other tasks that were covered by the retail award.

In doing so, they discounted the aspect of the transport award that states the road transport and distribution industry includes work performed that is ancillary to the principle business of the employer.

They backed previous rulings that a worker’s main and most time-consuming task is not the preponderant factor.

Following ATN’s query on what the decision might mean for award coverage of drivers who take on other tasks when working in industries other than transport and logistics,  a spokeswoman for employment minister Eric Abetz would only say: “I’m advised it’s not practice to provide commentary on court decisions or speculate on their possible future implications.”

It was a similar story from the office of Opposition employment spokesman Brendan O’Connor.

According to Fair Work Australia, awards apply to employees “depending on the industry they work in or the job that they do” and that “a business can be covered by more than one award depending on the jobs the employees do”.

The Fair Work Ombudsman (FWO) says it is common for an employee’s role and for a business to evolve over time.

“For example, a successful take-away food shop may grow overtime to become a restaurant and this change of circumstance would lead to a change in Award coverage,” a spokesperson for the FWO says.

“It is simply not possible for us to determine the precise moment a business may or may not change from one thing to another. We would have to consider each case on its own merits.”

The spokesperson says that when an employee’s role changes, employers need to check the relevant award to ensure they are complying.

“In circumstances where an employee’s role evolves over time and there is no definite point in time where a change from one classification to another has occurred, we would recommend that employers regularly consider the nature of the business, the tasks being performed and the provisions contained in modern awards,” the spokesperson says.

“As a regulator we aim, in line with the recommendations of the Productivity Commission, to be proportionate in any actions we take.  Where employers have made a genuine attempt to comply with their Award obligations we will work with them to achieve an appropriate outcome. 

“To do this we will need to consider the facts of each matter brought to us, just as the Federal Court has done in the Coles matter.”

Previous ArticleNext Article
  1. Australian Truck Radio Listen Live
Send this to a friend