Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd
[2014] FCCA 4
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRANSPORT WORKERS' UNION OF AUSTRALIA v COLES SUPERMARKETS AUSTRALIA PTY LTD | [2014] FCCA 4 |
| Catchwords: INDUSTRIAL LAW – Fair work – claim of underpayments – liability – question of coverage of relevant industrial instrument – three possible applicable instruments – consideration of principles relevant to the determination of which is the applicable instrument. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.15AB, 46 Workplace Relations Amendment (Transition To Forward With Fairness) Act 2008 |
| Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 Australian Timber Workers Union v Monaro Sawmills Pty Ltd (1980) 42 FLR 369 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Skilled Engineering Ltd [2003] FCA 260 Carpenter v Carona Manufacturing Pty Ltd (2002) 122 IR 387 CFMEU v Dyno Nobel Asia Pacific Limited [2005] AIRC 622 CFMEU v John Holland Pty Ltd (2010) 186 FCR 88 City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union (2006) 153 IR 426 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation(1979) 24 ALR 658 Dilworth v Commissioner of Stamps [1899] AC 99 Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union (AIRCFB, PR956868, 14 July 2005) Re Porter; Re TWU (1989) 34 IR 179 Re Request from the Minister for Employment and Industrial Relations – 28 March 2008 (2009) 181 IR 19; [2008] AIRCFB 345 Tucker v Digital Diagnostic Imaging Pty Ltd [2011] FWA 1767 TWU v Coles [2013] FWCFB 276 |
| Applicant: | TRANSPORT WORKERS' UNION OF AUSTRALIA |
| Respondent: | COLES SUPERMARKETS AUSTRALIA PTY LTD (ACN 004 189 708) |
| File Numbers: | SYG 432 of 2012 SYG 433 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 31 July, 1-2 August, 12-13 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Gibian |
| Solicitors for the Applicant: | Maurice Blackburn |
| Counsel for the Respondent: | Mr S Wood SC, with Mr M Felman |
| Solicitors for the Respondent: | Herbert Smith Freehills |
ORDERS
The applications filed on 28 February 2012 are dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 432 of 2012
SYG 433 of 2012
| TRANSPORT WORKERS' UNION OF AUSTRALIA |
Applicant
And
| COLES SUPERMARKETS AUSTRALIA PTY LTD (ACN 004 189 708) |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By two applications filed on 28 February 2012, the Transport Workers Union of Australia (TWU) commenced proceedings pursuant to the Fair Work Act 2009 (Cth) (Fair Work Act) in which it alleges that two of its members, Mr Stevan Gajdobranski and Mr Cory Michael have been underpaid by the respondent (Coles) by reference to various provisions of the Road Transport and Distribution Award 2010 (Road Transport Award) in contravention of s.45 of the Fair Work Act. The alleged contraventions concern a failure to pay wages and other entitlements such as overtime, allowances and penalty rates. The proceedings were dealt with concurrently.
By agreement between the parties and the Court, this judgment deals with the liability of Coles and not quantum. It is not in dispute that Mr Gajdobranski and Mr Michael were not paid in accordance with the Road Transport Award whilst employed by Coles.[1]
[1] Mr Gajdobranski remains an employee of Coles and Mr Michael is now employed by the TWU.
The key issue to resolve is whether the employment of Mr Gajdobranski and Mr Michael was regulated by the Road Transport Award or by the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2008 (2008 EBA) or the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2011 (2011 EBA). There is a further question whether the relevant industrial instrument applicable to Mr Gajdobranski and Mr Michael was the General Retail Industry Award 2010 (Retail Award).
The parties agree that the TWU can only succeed in its action if the Court finds that the relevant industrial instrument is the Road Transport Award.
The procedural history of this matter is somewhat complex. On 28 March 2012 Coles applied for the TWU proceedings to be stayed permanently, or alternatively until related proceedings in the Fair Work Commission (FWC) were determined.[2] I listed that Application in a Case for hearing on 15 May 2012 but, by agreement with the parties, the proceedings were stood over generally several times in the expectation that the related proceedings before the FWC might resolve the issue of award coverage. In the event, that expectation was not met because, although Coles was apparently partially successful before Vice President Watson,[3] on appeal the Full Bench found (in disallowing the appeal on what appears to have been a technicality) that Vice President Watson’s decision was made without jurisdiction.[4]
[2] Fair Work Australia proceedings C2012/2384; DR2012/171 and C2012/2841.
[3] Coles v TWU [2012] FWA 8772.
[4] TWU v Coles [2013] FWCFB 276.
Undaunted, Coles then sought the summary dismissal or permanent stay of the TWU proceedings in this Court based upon the findings made by Vice President Watson concerning the application of the 2008 and 2011 EBAs, on the basis that those findings (whilst made without jurisdiction) had not been set aside by the Full Bench. Coles’ assertion was that the findings by Vice President Watson caused an issue estoppel or alternatively, the TWU proceedings were an abuse of process. I heard argument on that issue on 25 March 2013 and, in a short oral judgment, I dismissed Coles’ application. In short, I rejected the proposition that an issue estoppel arose from observations made by an administrative tribunal acting in excess of its jurisdiction. I further rejected the proposition that an issue estoppel could arise from observations by an administrative tribunal that are not essential to a finding by the tribunal of a want of jurisdiction. I also rejected the proposition that the TWU proceedings were an abuse of process. Indeed, both Vice President Watson and the Full Bench recognised, at various points in their decisions, the appropriateness of the issue between the parties being resolved by the Court.
The pleadings and evidence
The TWU relies upon its statement of claim filed on 28 February 2012, while Coles relies upon its defence filed on 10 May 2013. The TWU filed a reply to that defence on 24 May 2013. The parties also rely upon the following affidavits:
a)three affidavits by Cory Phillip Michael made on 19 December 2012, 23 January 2013 and 12 July 2013;
b)three affidavits by Stevan Gajdobranski made on 4 January 2013, 15 February 2013 and 23 July 2013;
c)an affidavit of Michael Doherty filed in court by leave on 1 August 2013;
d)two affidavits by Martin Adrian Lord made on 21 June 2013 and 17 July 2013;
e)an affidavit by Sarah Mulder made on 20 June 2013;
f)an affidavit by Phillip Dobbins made on 20 June 2013;
g)an affidavit by Gary Arabian made on 21 June 2013;
h)an affidavit by Basil van Greunen made on 21 June 2013; and
i)two affidavits by Therese Walton made on 13 February 2013, received over the objections of counsel for Coles.
All of the deponents except for Mr Doherty and Ms Walton were cross-examined on their affidavits. I also received the following exhibits:
a)A1 - Letter from TWU to Fair Work Australia dated 27/03/2012;
b)A2 - Safe Driving DVD;
c)A3 - Employer Injury Claim;
d)R1 - Applicant's supplementary submissions (Fair Work proceedings);
e)R2 - Map of Coles storage room;
f)R3 - Colour coded map of Coles storage room;
g)R4 – Induction DVD;
h)R5 – Manual Handling DVD
The parties also made extensive written and oral submissions.
Consideration
I am most grateful for the assistance provided by the submissions of counsel for both parties in this matter. The issue of the relevant and applicable industrial instrument is an important one because it impacts significantly on the online business of Coles.
The Court must address one or more of the following three questions and not necessarily in the order listed.
First, did either the 2008 EBA[5] or the 2011 EBA[6] apply to Messrs Michael and/or Gajdobranski during the period in which it is alleged that Coles breached the Road Transport Award (Relevant Period)? If the Court determines that these instruments at all times applied to Messrs Michael and/or Gajdobranski during the Relevant Period, the TWU’s claim cannot succeed. This is because Item 28(1) of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) (in relation to the 2008 EBA) and sub-sections 57(1), 206(1) and 206(2) of the Fair Work Act (in relation to the 2011 EBA) excludes the application of modern awards such as the Road Transport Award to an employee (other than their base rates of pay) while an enterprise agreement (such as the 2008 EBA or the 2011 EBA) applies to that employee.[7]
[5] See Tab 3 of the TWU’s Tender Bundle.
[6] See Tab 4 of the TWU’s Tender Bundle.
[7] Mr Michael and Mr Gajdobranski were at all times paid above the base rate in the Road Transport Award. There is no alleged breach of this Award in relation to the base rate of pay.
Coles submits that both the 2008 EBA and the 2011 EBA applied to Mr Michael and Mr Gajdobranski during the Relevant Periods.
Secondly, did or does the Road Transport Award in fact cover the employment of Mr Michael and Mr Gajdobranski? If the Road Transport Award does not cover Mr Michael’s or Mr Gajdobranski’s employment, then even if the 2008 EBA or 2011 EBA did not apply to them, the TWU’s claim cannot succeed. This is because the TWU’s claim is premised on Messrs Michael and/or Gajdobranski’s employment being covered by the Road Transport Award. Coles submits that the Road Transport Award does not cover it (and hence did not cover Messrs Michael and/or Gajdobranski during the Relevant Periods).
Thirdly, if the Road Transport Award does cover Mr Michael and Mr Gajdobranski, does a different modern award, the Retail Award[8] also cover Mr Michael and Mr Gajdobranski. If the Retail Award does cover Mr Michael and Mr Gajdobranski, is this coverage to the exclusion of the Road Transport Award (such that the Road Transport Award does not apply to their employment)? This may require the Court to determine whether the Retail Employee Level 1 classification within the Retail Award or the Transport Worker Grade 2 classification within the Road Transport Award most appropriately applies to the work performed by Mr Michael and Mr Gajdobranski and the environment in which that work was normally performed. If the Court determines that a Retail Employee classification within the Retail Award most appropriately applies to Mr Michael and Mr Gajdobranski, again the TWU’s claim cannot succeed as the Road Transport Award will not apply to them (and hence no obligations would be imposed on Coles in respect of Mr Michael and Mr Gajdobranski).[9] Coles submits that the relevant classification in the Retail Award covers Mr Michael and Mr Gajdobranski and the Retail Employee Level 1 classification more appropriately applies to Mr Michael and Mr Gajdobranski.
[8] See Tab 2 of the TWU’s Tender Bundle.
[9] See Fair Work Act, s. 46.
The onus of proof of the elements of the contravention alleged in these proceedings is on the TWU.[10] The burden of proof on the TWU is on the balance of probabilities.[11] In dealing with the allegations against Coles on the balance of probabilities, I must take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged.[12] Having regard to the fact that the contravention of the Road Transport Award is a civil penalty provision, the allegations against Coles in this respect are of a highly serious nature. For this reason, any evidence that establishes the contravention by Coles of the Road Transport Award must be cogent and not produced by “inexact proofs, indefinite testimony or indirect references”.[13]
[10] Australian Timber Workers Union v Monaro Sawmills Pty Ltd (1980) 42 FLR 369 at 371 (Sweeney and Evatt JJ). Note that the TWU expressly pleaded in both proceedings that neither Mr Michael nor Mr Gajdobranski’s employment was covered by either the 2008 EBA or the 2011 EBA: see [11] of each statement of claim.
[11] See Evidence Act 1995 (Cth) (Evidence Act), s.140(1).
[12] See Evidence Act, s.140(2).
[13] See LHMU v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [13] (Logan J).
This case involves the operation of various industrial instruments (that is, two modern awards and two enterprise agreements) made under two versions of federal industrial legislation. The two modern awards are the Road Transport Award and the Retail Award. The two enterprise agreements are the 2008 EBA and the 2011 EBA. It is useful to set out some legislative background and context to these industrial instruments.
Modern awards
In March 2008, following a formal request from the Minister for Employment and Workplace Relations under Part 10A of the Workplace Relations Act 1996 (Cth) (Workplace Relations Act) (a new Part introduced under the 2008 amendments to the Workplace Relations Act), the Australian Industrial Relations Commission (AIRC) began a process of rationalising over 1500 national and state-based awards with 122 industry or occupational awards. This process was known as the Award Modernisation process. The terms of modern awards were required to be consistent with any directions specified in the Minister’s Award Modernisation request.[14] Amongst other things, the Award Modernisation request directed that modern awards not disadvantage employees.[15]
[14] See Workplace Relations Act, s.576N(2).
[15] See Request from the Minister for Employment and Workplace Relations dated 28 March 2008 at clause 2(c).
A “modern award” is defined in s.12 of the Fair Work Act to mean a modern award made under Part 2-3 of the Fair Work Act. A modern award is made by the FWC (the body previously known as the AIRC)[16]. Modern awards provide for terms of employment for employees who are covered, with their employer, by the award, and to whom the award applies at the relevant time.[17] Part 2-3, Division 3, Subdivisions B and C of the Fair Work Act set out the terms that may and must be included in a modern award.
[16] Fair Work Act, s.132.
[17] See Fair Work Act, s. 46.
A modern award must include coverage terms[18] – that is, terms that set out the enterprises to which the modern award relates and the employers, employees and organisations that are covered by the award. Coverage terms extend on their face to numerous employers and their employees, usually within a particular industry or calling.
[18] See Fair Work Act, s.143A.
Section 45 of the Fair Work Act, which is a civil remedy provision, prohibits a person from contravening a term of a modern award. This means that a contravention of the award can incur a pecuniary penalty,[19] which is what the TWU seeks, in part, in these proceedings.[20]
[19] See Fair Work Act, s.546.
[20] See [27] of the Statement of Claim.
Enterprise agreements
An “enterprise agreement” is defined in s.12 of the Fair Work Act as either a single enterprise or multi-enterprise agreement. Enterprise agreements are dealt with in Part 2-4 of the Fair Work Act.
A single enterprise agreement is an agreement between an employer and its employees, or some of its employees, or an organisation of employees, that effectively provides for terms of employment for employees who are covered by that agreement.[21] Part 2-4, Division 5 sets out mandatory terms to be included in an enterprise agreement.
[21] See Fair Work Act, s.172.
These agreements are made by the employer and employees who are employed at the time and who will be covered by the agreement by negotiation.[22]Employees vote on whether to approve the agreement.[23] The agreement must be subsequently approved by the FWC.[24] The agreement is not, however, made by the FWC. The 2011 EBA is an enterprise agreement made under Part 2-4 of the Fair Work Act.
[22] See generally Fair Work Act, Part 2-4 Div 3.
[23] See Fair Work Act, s.182.
[24] See generally Fair Work Act, Part 2-4 Div 4.
Enterprise agreements that were made under the former Part 8 Division 2 of the Workplace Relations Act[25] (known then as collective agreements, of which the 2008 EBA is one) remain in force by operation of Item 2 of Schedule 3 of the Transitional Act until replaced,[26] or otherwise terminated by agreement[27] or by the FWC.[28] Union collective agreements (a type of collective agreement, of which the 2008 EBA is one) under the Workplace Relations Act were made by an employer and one or more employee organisations (that is, unions) which had at least one member whose employment in a single business (or part of a single business) of the employer was subject to the agreement, and whom that organisation was entitled to represent.[29] The collective agreement was required, in effect, to be assessed by the then Workplace Authority against the no-disadvantage test. If the collective agreement passed this test, it came into operation.[30] Once in operation, the collective agreement “bound” the employer; all persons whose employment was, at any time when the agreement was in operation, subject to the agreement; and, if the collective agreement was (amongst others) a union collective agreement, the union(s) with whom the employer made the agreement.[31]
[25] See Workplace Relations Act, Part 8. Note that under Part 8 of the Workplace Relations Act, enterprise agreements were known as workplace agreements.
[26] Transitional Act, Item 30(2) Schedule 3.
[27] Transitional Act, Item 15 Schedule 3.
[28] Transitional Act, Item 16 Schedule 3.
[29] See Workplace Relations Act, ss.328 and 333.
[30] See Workplace Relations Act, s.347.
[31] See Workplace Relations Act, s.351.
Interaction between modern awards and enterprise agreements
It is quite common for an employee’s terms and conditions of employment to be covered by both a modern award and an enterprise agreement. Crucial to the interaction of these instruments are the Fair Work Act concepts of “coverage” and “application” of modern awards and enterprise agreements:
a)a modern award “covers” an employee, employer, organisation or outworker entity if the award is expressed to cover the employee, employer, organisation or outworker entity;[32]
b)a modern award “applies to” an employee, employer, organisation or outworker entity if the modern award covers them; is in operation; and no other provision of the Fair Work Act provides or has the effect that the modern award does not apply to them;[33]
c)an enterprise agreement made under the Fair Work Act “covers” an employee or employer if the agreement is expressed to cover (however described) the employee or the employer. An enterprise agreement “covers” an employee organisation (that is, a union) if the organisation gives notice under s.183(1) that it wishes to be covered by the agreement and the FWC notes in its decision to approve the agreement that the agreement covers the organisation;[34]
d)a collective agreement made under the Workplace Relations Act (as a transitional instrument under the Transitional Act) “covers” the same employees, employers and other persons that it would have covered (however described in the agreement or the Workplace Relations Act) if the Workplace Relations Act had continued in operation.[35]The Workplace Relations Act did not use the terminology of “coverage” – rather, it referred to employees who would be “subject” to an agreement;[36]
e)an enterprise agreement made under the Fair Work Act “applies to” an employee, employer or employee organisation if the agreement is in operation; and the agreement covers them; and no other provision of the Fair Work Act provides or has the effect that the agreement does not apply to them;[37]
f)a collective agreement made under the Workplace Relations Act (as a transitional instrument under the Transitional Act) “applies to” the same employees, employers and other persons the agreement covers as would, if the Workplace Relations Act had continued in operation, have been required by the Workplace Relations Act to comply with the terms of the instrument or entitled under the Workplace Relations Act to enforce terms of the instrument.[38] Similarly, the Workplace Relations Act did not use the terminology of “application” – rather, it referred to employees, employers and unions “bound by” an agreement.[39]
[32] See Fair Work Act, s. 48(1)
[33] See Fair Work Act, s. 47(1).
[34] See Fair Work Act s. 53(2)
[35] See Transitional Act Item 3(1) of Schedule 3.
[36] See, for example, Workplace Relations Act s. 328(a).
[37] See Fair Work Act, s. 52(1).
[38] See Transitional Act, Item 3(2) of Schedule 3.
[39] See Workplace Relations Act, s.351.
Importantly, neither a modern award nor an enterprise agreement can:
a)impose obligations upon a person, and a person cannot contravene its terms, unless the award or agreement “applies to” the person;[40] nor
b)give a person an entitlement unless the award or agreement “applies to” the person.[41]
[40] See Fair Work Act, ss.46(1), 51(1).
[41] See Fair Work Act, ss.46(2), 51(2).
There are rules in the Transitional Act and the Fair Work Act governing the interaction between these two types of industrial instruments:
a)in relation to enterprise agreements made under the Workplace Relations Act (that is, the 2008 EBA) - Item 28(1) of Schedule 3 of the Transitional Act excludes the application of modern awards to an employee (other than their base rate of pay) while an enterprise agreement (made under the Workplace Relations Act) applies to that employee (although the modern award will continue to “cover” them);
b)in relation to enterprise agreements made under the Fair Work Act (that is, the 2011 EBA) - ss.57(1), 206(1) and 206(2) of the Fair Work Act exclude the application of modern awards to an employee (other than their base rates of pay) while an enterprise agreement (made under the Fair Work Act) applies to that employee (although the modern award will continue to “cover” them).
Coles Online business
Coles Online is in the business of providing “an online shopping service allowing customers to place orders and receive delivery of fresh, ambient (or room temperature) and frozen groceries direct from the store via the Coles Online website”.[42]
[42] Lord 21/6/2013 at [7].
The overall organisation and operation of the Coles Online business is described in some detail in the evidence of the Head of Operations – Coles Online, Mr Lord in his second affidavit[43] at [7]–[18] and in material from the Coles Online website annexed to the affidavit of Mr Doherty.[44] In essence, a customer purchases products through a website, the purchase order is communicated electronically to a handheld device used by staff at a store proximate to the customer’s point of delivery, the products are collected or “picked”[45] from the shelves by Coles’ employees known as “personal shoppers”, prepared and packed in crates in the “Online Room” at the relevant store,[46] and loaded onto a truck and delivered by Coles employees currently designated as Customer Service Agents (CSAs).
[43] Lord 21/6/2013.
[44] Doherty 1/8/13, annexure MD1-MD4.
[45] Lord 21/6/2013 at [22].
[46] Lord 21/6/2013 at [26].
The Coles Online business appears to have been developed in or around 1999 and evolved over time.[47] Prior to 2010, Coles contracted out the delivery element of the Coles Online business to Linfox[48] (and subsequently some other transport businesses).[49] Coles started to employ delivery drivers, the “Coles Delivery” model, from approximately February 2010,[50] and engaged some of the delivery drivers formerly employed by those transport companies (including Linfox),[51] such as Mr Gajdobranski.[52]
[47] Lord 21/6/2013 at [35].
[48] Lord 21/6/2013 at [36]; Walton 18/2/2013 at [8].
[49] Lord 21/6/2013 at [37].
[50] Walton 18/2/2013 at [8]; Lord 27/3/2012 at [8]; Lord 21/6/2012 at [38].
[51] Walton 18/2/2013 at [8].
[52] Gajdobranski at [1]–[5].
The reasoning behind the Coles Delivery insourced model
I observed during the hearing that it is important to understand the insourcing model.[53] In introducing Coles’ Delivery insourced model:
a)Coles was primarily motivated by a desire to provide improved customer service to its Online customers.[54] When Mr Lord commenced his position within Coles Online in 2006, the Online business was not profitable, was not sustainable, was using third party operators for both warehousing the goods to be delivered and also for transporting these goods to the customer. The Online service offered a small, restricted range of products to customers and provided “disappointing at best, appalling at times customer service”.[55] In this respect, in responding to a question from me about whether the objective was to bring the store to the customer, Mr Lord said, “Very much indeed. We are trying – trying, we are succeeding in giving customers who do not want to or don’t have the time to shop at one of our shops, to have that service done for them.”[56] The use of Coles employees trained by Coles to provide outstanding customer service (set against the backdrop of Coles’ expectation that a customer should not be able to differentiate between the overall in-store service proposition and that offered by the store’s Online Department)[57] has seen significant growth in customer compliments since the move away from third party logistics providers.[58]
b)Coles was also motivated by a desire to improve flexibility across the Online Department and more broadly across other departments in stores. By training CSAs in general in-store tasks (like all other store team members), and in personal shopping duties (like all other Online team members), Coles can allocate CSAs to perform shifts in the store as required. This gives Coles greater flexibility to meet and deal with additional customer demands, while at the same time giving CSAs a greater understanding of other departments of the store[59] (which assists in the performance of their duties).[60] Coles did not consider that this could be achieved with some employees working for Coles and others for third party operators.[61]
[53] Transcript (T)30.42.
[54] Lord 2 at [39] and Annexure ML-29 (page 342).
[55] T138.29-.33.
[56] T139.19-.22.
[57] Mulder at [14]; van Greunen at [8]; Arabian at [16].
[58] Lord 2 at [39]-[40].
[59] Lord 2 at [42].
[60] Dobbins at [41]; Mulder at [11].
[61] Lord 2 at [41].
The performance of personal shopping duties by CSAs where possible was implemented in tandem with the rollout of the Coles Delivery model.[62] This was a significant departure from the duties performed by third party operators prior to Coles’ insourcing of the Delivery Function, and was communicated to Coles’ online customers by way of, amongst other ways, responses to online customer feedback. For example, a representative of Coles Online posted the following statement on the Coles Online website on 28 September 2011 in response to a Coles Online customer querying the change from third party operators to CSAs:[63]
Thanks Dee, You might like to know that for each new van we put into our operation we recruit four new team members to meet customers [sic] needs. All of the contractors are invited to re apply [sic] for a Customer Service Agent role within our team. Some do stay on to join us other choose to stay with their current employers or try new opportunities.
The role of a CSA with Coles is very different to what the contractors were previously asked to do, the CSA's that now work in your vans also shop your groceries. They have a far greater involvement in the end to end process and service of your order. (emphasis added)
[62] van Greunen at [10]; Arabian at [39]; Lord 2 at [43].
[63] Michael 1 at Annexure CM2 (page 17).
The background to the employment by Coles of the CSAs lends support to the appropriate award classification being one that can cater to a flexible role encompassing a range of duties both in the store and at the customer’s premises which is fundamentally customer-service focused. Coles contends that the Retail Employee Level 1 classification meets those requirements, while the Transport Worker Grade 2 classification does not.
For its part, the TWU emphasises the driving role of CSAs. There are two delivery windows Monday to Saturday, and one on Sunday[64] “structured to maximize Coles’ ability to meet the diverse delivery needs of its customers … and hence are a critical part of Coles’ ability to retain customers in a competitive market”.[65] As Mr Lord observes, “the activities of the Online Department are time critical throughout”,[66] and “on time delivery is our core customer measure”.[67]
[64] Lord 21/6/2013 at [16].
[65] Lord 21/6/2013 at [16].
[66] Lord 21/6/2013 at [15].
[67] Lord 21/6/2013 at [13].
There are two core positions dedicated to the Coles Online business: Personal Shoppers, who are employed to undertake personal shopping (“the task of picking the items from the supermarket shelves that have been ordered by the customer”),[68] and the delivery personnel, such as Mr Michael and Mr Gajdobranski. The CSA position was created, in the words of Mr Lord, to take over the delivery function formerly being undertaken by Linfox and other transport operators,[69] however there has developed some overlap between the two functions.
[68] Lord 21/6/2013 at [22].
[69] T146.29-33.
Work of Customer Service Agents
Mr Michael and Mr Gajdobranski each gave evidence that they were told at the time of employment that they were to be employed as a “driver”. Mr Michael gives uncontested evidence that it was made clear to him that the position was one of a driver[70] and of having been informed at his final interview that:[71]
[70] Michael 12/7/13 at [22].
[71] Michael 19/12/12 at [2].
… we have decided to employ you as a driver.
Mr Gajdobranski’s evidence was that when he was working as a driver with Linfox[72] making deliveries for customers who had ordered groceries from Coles Online, he was asked to take up what he describes as a “driver” position with Coles.[73] Mr Gajdobranski’s oral evidence was that he was told by the Online Manager, Suzie Mason, that he would be employed as a “truck driver”.[74]
[72] Gajdobranski at [1]–[5].
[73] Gajdobranski at [5].
[74] T101.35.
The TWU also referred to evidence that CSA positions are advertised as a “driver” position. Mr Dobbins, for example, gives evidence of having learned of a vacant CSA position via an advertisement on seek.com.au that “described the roles as a Coles Online delivery driver performing home deliveries to Coles Online customers.”[75] The oral evidence of Mr Dobbins was that he understood he was applying for a position as a delivery driver.[76]
[75] Dobbins 20/6/13 at [7].
[76] T216.4.
The TWU also pointed to various documents produced by Coles itself which describe the role of the CSA as being that of a “driver”. For example, the Customer Agreement required to be entered into by a Coles Online customer and the Frequently Asked Questions page on the website inform members of the public goods could be returned with the “driver” if the customer was not satisfied with the quality of the goods.[77]
[77] Doherty 1/8/13, annexure MD3 page 6 and MD4 page 9.
By way of summary, a driving shift involves a CSA doing the following:
a)the completion of “pre-delivery tasks”, including the performance of a check on the safety aspects of the truck[78] (a 4.5 tonne gross vehicle mass rigid truck),[79] and loading the truck with crates[80] (Mr Gajdobranski’s evidence was the crates are “already loaded and sealed”[81] at that time – Mr Michael’s evidence was “each customer’s order was filled by a personal shopper”)[82] and cool storage items obtained from a dedicated cool room;[83]
b)if there is time, the CSA will assist the other CSAs to load their truck;[84]
c)performing the deliveries to customers and engaging with them as required[85] (for example checking identification if the sales involve alcohol or tobacco products,[86] completing sales using a mobile EFTPOS machine),[87] noting they do not accept cash;[88]
d)the CSA’s role is solely to deliver the goods that have been ordered by the customer on the Coles Online website and is not able to sell any additional products to the customer at point of delivery;[89]
e)returning the emptied crate to the truck and continuing with the remaining deliveries until the daily deliveries are complete;[90]
f)the CSA remains out on the road until all deliveries have been completed and then returns to the store, refueling the truck, unloading the empty crates, returning the keys, equipment (such as the GPS) and paperwork.[91]
[78] Gajdobranski at [30]–[31]; Michael at [25]; Lord 21/6/2013 at [19(h)].
[79] Lord 21/6/2013 at [19(b)].
[80] Lord 21/6/2013 at [19(b)].
[81] Gajdobranski at [32]; Lord 21/6/2013 at [26].
[82] Michael 19/12/2012 at [22]–[23].
[83] Gajdobranski at [32]–[33]; Michael at [23].
[84] Gajdobranski at [33]; Michael at [24]; Lord 21/6/2013 at [27].
[85] Lord 21/6/2013 at [28]-[31].
[86] Gajdobranski at [36]; Lord 21/6/2013 at [29].
[87] Gajdobranski at [36]; Lord 21/6/2013 at [31].
[88] Lord 21/6/2013 at [31].
[89] T167.19-25.
[90] Gajdobranski at [36]-[37]; Michael [31].
[91] Gajdobranski at [38]; Michael at [32]; Lord 21/6/2013 at [33].
The driving shifts for CSAs are broken into two shifts: morning, which commences at 5.00am, and afternoon, which commences at 2.00pm,[92] consistent with the delivery windows available to customers.
[92] Gajdobranski at [8]; see also Lord 21/6/2013 at [16].
Mr Gajdobranski’s evidence was that he was working as a driver with Linfox[93] prior to taking up what he describes as a “Driver” position with Coles on 1 February 2011.[94] He stated that he performed the same duties with Linfox as he does with Coles[95]. Mr Gajdobranski continues to perform driving work for Linfox, making deliveries to customers of Woolworths/Safeway who have ordered groceries online. His evidence is that there is no difference between the work as a CSA and the work for Linfox[96].
[93] Gajdobranski at [1]–[5].
[94] Gajdobranski at [5].
[95] Gajdobranski at [2].
[96] Gajdobranski 23/7/2013 at [3]-[6].
CSAs are also required to perform instore duties on “shopping shifts”. There does not appear to be any real dispute that in a practical sense this has only recently (and notably after these proceedings were commenced) become a feature of the work of a CSA[97]. The performance of shopping shifts is highly variable. For example, at the Coles Endeavour Hills store, no CSA performed regular personal shopping shifts as of August 2011 and only six of 222 CSAs performed a rostered personal shopping shift as of June 2012.[98] The “Coles Delivery” model was adopted more than three years ago. As at mid June 2013 “approximately 62% of CSAs nationally complete at least one[99]” four hour “shopping shift” per week.
[97] Lord 21/6/2013 at [43]-[45].
[98] Arabian 21/6/13 at [40].
[99] Lord 21/6/2013 at [44].
Mr Michael gave evidence that he never performed shopping duties prior to leaving his employment with Coles in July 2011 (except for in initial training) other than on one occasion.[100] Mr Gajdobranski’s evidence is that he started to perform a shopping shift between July and November 2012. The period prior to that “was all related to delivering to customers. I did not do a shopping shift”,[101] and “Until July 2012, apart from when I was in training, I did not perform any work as a personal shopper”.[102] Mr Michael’s evidence was to a similar effect.[103]
[100] Michael 19/12/2012 at [22].
[101] Gajdobranski at [10].
[102] Gajdobranski at [14].
[103] Michael 19/12/2012 at [6].
When rostered on a shopping shift, the workers commence at 7.00am.[104] The work is “labour intensive”,[105] loading and stacking crates,[106] as Mr Lord described it “consolidating customer orders in the Online Room within the physical store in preparation for delivery”.[107] Mr Gajdobranski’s evidence was that on these shifts “I may be required to physically enter the store and select stock and use the gun to scan the barcodes and pack the stock”[108] (emphasis added). In Mr Gajdobranski’s experience, the “shopping shift” does not involve using a point of sale cash register, or engaging in customer service in the store.[109]
[104] Gajdobranski at [40].
[105] Gajdobranski at [40].
[106] Gajdobranski at [40].
[107] Lord 21/6/2013 at [19(a)].
[108] Gajdobranski at [41].
[109] Gajdobranski at [43].
The TWU contends that the transport functions of packing, loading and delivering the products purchased by Coles Online customers is the primary and central function of a CSA: as Mr Lord described it, the “Delivery Function” “constitutes the primary duties of a CSA”. On his evidence “the duties” of CSAs are the consolidating and delivery of orders:[110] the shopping and other in-store functions are the “additional duties” associated with the operation of the Online Department.
[110] at [19(a) – (h)], the “Delivery Function”.
The CSA job descriptions, both dated September 2009 and June 2012 describe the “Primary Function” of the CSA role in this way:[111]
·to provide an outstanding home delivery service to all customers;
·to ensure the accurate and timely delivery of Coles Online orders;
·to work together with the store team to maximise customer satisfaction.
[111] Lord 21/6/13, annexure ML15 and ML16.
The TWU contends that Mr Lord accepted in his oral evidence that the “Delivery Function” constituted the “primary”, “highest priority”, “most important” and “main feature” of the job of a CSA.[112] Mr Lord properly accepted that, to the extent that additional duties are performed by CSAs, those duties are lesser in priority to the delivery functions and would only arise if all delivery duties had been performed. Mr Lord adopted the phrase:[113]
[112] T161.20-30 and 170.19-30.
[113] T172.10-41.
Online work first, non-online work second ...
That is in reality ambiguous, as the personal shopper role is itself critical to the online business.
Evidence to the effect that the delivery function was given priority in the work of CSAs was also given by Mr van Greunen and Mr Arabian.[114] Similarly, Ms Mulder, former Online Department Manager at Endeavour Hills observed:[115]
I prioritised delivery duties (as delivering customer orders and providing customer service was the most important aspect of the CSA role).
[114] Cross-examination on 12 September 2013.
[115] Mulder 20/6/13 at [19].
Even where CSAs (unlike Mr Michael and Mr Gajdobranski) are rostered to work one “shopping shift” per week, that work constitutes only four hours out of their working time for the week. Furthermore, the stated rationale for rostering CSAs to perform a “shopping shift” is to improve the performance of the delivery function by assisting the drivers to become familiar with products.[116]
[116] Mulder 20/6/13 at [11]; T174.15-16.
I received in evidence a Workers Compensation report made with respect to an injury sustained by Mr Dobbins whilst working as a CSA which described Mr Dobbins’ position as “Online customer service agent (Delivery Driver)” and the main tasks performed by Mr Dobbins described as follows:[117]
[117] Exhibit A3.
Truck Driving; Delivering goods to customers for Coles Online.
Mr Lord described “on time delivery [as] our core customer measure” and that “it is critically important to the Coles Online business that the scheduling of these customer orders ensure that they arrive within their requested delivery window”.[118] His evidence over [14]-[16] of his second affidavit demonstrates that the entire delivery time structure, and consequently the rostering structure of the CSAs, “are structured to maximise Coles’ ability to meet the diverse delivery needs of its customers (who may require deliveries early in the morning or late at night to fit within their schedules), and hence are a critical part of Coles’ ability to retain customers in a competitive market”.
[118] at [13].
The Coles Endeavour Hills store did not have an “Online” department prior to January 2011.[119] When advertised, the CSA positions were described as “a Coles Online delivery driver performing home deliveries to Coles Online customers”.[120] Consistent with this position and the critical role of the CSA within the business model, CSA performance is assessed, in part, on “their on-time delivery rate”.[121] Clearly, for the business of Coles, the timely and appropriate performance of the delivery duties of CSAs is the central feature of the Coles Online business.
[119] van Greunen at [6].
[120] Dobbins at [7].
[121] Van Greunen at [32].
The recruitment, training and performance management procedures applied to CSAs
The TWU submits that the training and induction provided to CSAs places emphasis upon the delivery function and driving tasks of the position within a general framework of customer service. The training provided at the time Mr Michael and Mr Gajdobranski commenced employment provided for six days of training and on-the-job assessment, five of which were specifically dedicated to the driving and delivery functions of the CSA.[122] The only part of the training dedicated to other duties involved training in “personal shopping” on the final day which Mr Lord described as being able to be delivered in 45 minutes.[123]
[122] Lord 21/6/13, annexure ML27.
[123] T183.20-31.
Coles submits that its recruitment processes illustrates a strong focus on customer service in the selection of appropriately qualified prospective CSAs, as follows:
a)advertisements for the CSA role refer to CSAs “caring passionately” about customer service;[124]
b)presentations delivered to prospective CSAs at group interviews:
i)focus on CSAs providing “outstanding customer service” and being “the face of Coles Online”; and that a CSA “builds positive relationships with their customers so they come back to us again and again”;[125] and
ii)note that Coles looks for prospective CSAs with (amongst other things) “a passion for customer service”, “personality”, “team work”, “clear, concise communication”, “professional presentation”, “confidence and independence”, “physical fitness”, and “driving experience and confidence” (but not transport industry experience);[126]
c)the activities which prospective CSAs are required to perform during group interviews focus on customer service scenarios including personal shopping tasks performed in the store;[127]
d)the factors used by store management to assess a candidate’s suitability for the CSA role relate to their communication skills and customer service aptitude;[128] and
e)the Coles Interview Guide (used by store management in conducting one-on-one interviews) asks questions focusing on the candidate’s experiences of customer service.[129]
[124] van Greunen at [20].
[125] Annexure PD-1 (p.7). Mr Michael admitted in cross-examination that at the group interview he saw a presentation similar to Annexure PD-1, although he did not recall specifically the reference to a passion for customer service or CSAs being the professional presentation as the face of Coles (T51.9-.32). Mr Gajdobranski also admitted at the group interview that he saw some of the material contained in Annexure PD-1 (T102.1-103.26).
[126] Annexure PD-1 (pages 10-11).
[127] Dobbins at [13]-[15] and Annexure PD-2, Arabian at [14], van Greunen at [24]. Mr Gajdobranski conceded in cross-examination that he completed the activities contained in Annexure PD-2 (T103.36-.42).
[128] Arabian at [14], van Greunen at [24].
[129] Annexure BVG-1. See also van Greunen at T296.32 – 297.24.
Further, store management (at the Endeavour Hills store, and more broadly across Coles Online)[130] look primarily for customer service aptitude in recruiting CSAs. While basic driving confidence is required, transport industry experience is not considered by Coles to be essential for the role.[131]
[130] Dobbins at [32]-[36]; Arabian at [14]-[16]; Lord 2 at [40], [50]-[53]; Mulder at [14], [23]; van Greunen at [20]-[27].
[131] Dobbins at [36]; Arabian at [17].
The training requirements which Coles provides to CSAs show a similar retail and customer service focus, as follows.
a)all CSAs are given the same basic induction and training as any other store team member. They are trained in safe work practices that apply in the store, and are trained on the safe use of equipment in the store;
b)the workbooks which CSAs are required to complete during their general in-store training pose questions around a range of customer service topics including knowledge of the various Coles branded products; customer interaction and engagement; fresh produce quality; filling and rotating stock; and food safety;[132]
c)the Online Department-specific workbook which applied when Mr Michael and Mr Gajdobranski were recruited and first trained expressly states that working in-store is a “fundamental part of the role of a Customer Service Agent”.[133] The current Online Department-specific workbook (in which Mr Gajdobranski has been retrained)[134] similarly notes that working in store is a fundamental part of the CSA role, and notes also that performance of at least one dedicated personal shopping shift per week is compulsory for CSAs.[135]
[132] Arabian at [19]-[24]. Mr Arabian gave evidence in cross-examination that he had observed inductions by “popping in” for 10, 15 or 20 minutes at any point in time in the induction process (T260.20 – 261.20). See also Lord 2 at [56] and Annexures ML-21 and ML-22.
[133] Annexure ML-27, p.331.
[134] Arabian at [26(e)].
[135] Annexure GA-3 p.29. Note that Coles is unable to strictly enforce this requirement across all stores due to recruitment challenges as described above.
Similarly, the relevant indicators used by Coles Online in its performance management of CSAs bear out the importance of customer service for the CSA role. CSA performance at Endeavour Hills is measured by way of delivery observation (assessing how the CSA deals with the customer, and whether the CSA provides the level of customer service which the customer would receive in-store);[136] and customer experience surveys.[137] While delivery KPIs form part of each Online Department’s overall performance assessment,[138] CSAs are not disciplined for not meeting delivery windows where the reason relates to customer service, safety or is otherwise outside of the CSA’s control.[139]
[136] Mulder at [23(a)].
[137] Mulder at [23(b)]; van Greunen at [32]; Arabian at [55]; Lord 2 at [69] and Annexure ML-30.
[138] Lord 2 at [66]-[70].
[139] Mulder at [23(c)]; van Greunen at [32]; Arabian at [55].
By reason of the above, it is clear that customer service is a critical element to the role of the CSAs, such as Mr Michael and Mr Gajdobranski. The work performed by Mr Michael and Mr Gajdobranski, that is, the Delivery Function and, in the case of Mr Gajdobranski, shopping and other in-store duties, is done in an environment in which customer service is a critical factor. In this context, Coles submits that a classification which specifically sets out the performance and functions at a “retail establishment”, all of which relate to the ultimate sale of retail goods to a customer, is significantly more appropriate than a classification in the Road Transport Award, which is restricted simply to “driving”.
Driving is nevertheless essential to the CSA role. The CSAs are, unsurprisingly, required to undertake specific training and assessment in relation to their driving tasks, including watching a Safe Driving DVD, completing a written assessment and undertaking a “CSA driving practice assessment”.[140] The Safe Driving DVD is a training tool specifically for and addressed to “professional drivers”. The CSAs are the only staff employed at the Endeavour Hills site who drive a vehicle as a part of their duties and, in consequence, are subject to drug and alcohol testing.[141]
[140] Lord 21/6/13 at [55].
[141] Van Greunen at [33].
Some of Coles’ witnesses, particularly Mr Lord,[142] attempted to suggest that Coles does not require truck driving experience for recruitment as a CSA. Mr Lord accepted, however, that he did not know the criteria in fact applied as he is not directly involved in recruitment.[143] The assertion made by Mr Lord is inconsistent with the position description applicable until June 2012 which required “previous truck driving experience”.[144] That has since been removed. The powerpoint presentation given at the interviews for CSA positions indicated that Coles was looking for people with “driving experience and confidence”.[145] In any event, Mr Lord, Mr Arabian and Mr van Greunen accepted that, no matter how good their customer service skills, Coles would not employ a person unless it was confident the person could safely and competently drive the truck.[146]
[142] Lord 21/6/13 at [19].
[143] T159.1-15.
[144] Lord 21/6/13, annexure ML16.
[145] Dobbins 20/6/13, annexure PD1 page 11.
[146] T179.28-41; Cross-examination on 12 September 2013.
For these reasons, the TWU contends that the evidence demonstrates that the major and substantial and principal purpose of the employment of Mr Michael and Mr Gajdobranski (and CSAs generally) is as a truck driver loading and unloading and delivering goods ordered by customers through the Coles Online website.
Coles stresses that Mr Michael and Mr Gajdobranski were engaged during the relevant period as “Service Assistants” (a position now known as “Store Team Member”) performing the role of a CSA.[147] They were not engaged as “drivers”. The contracts of employment signed by both Mr Michael and Mr Gajdobranski noted that their employment conditions were set out in the 2008 EBA.[148] Their contracts of employment also stated “You may be requested to perform other duties/positions in line with your skills and competencies as requested by Coles Supermarkets”. Mr Michael gave evidence in cross-examination that he signed his contract of employment and that this, and the fact that Mr Michael’s employment conditions were set out in the 2008 EBA, were the basis upon which he accepted employment.[149] Mr Gajdobranski gave evidence that he signed the contract of employment and that he read and agreed to the conditions contained within that contract.[150] Mr van Greunen, when offering Mr Michael the CSA role, told him that the role involved shopping in the store.[151]
[147] Arabian at [57] and Annexure GA-5, and [61] and Annexure GA-7; Dobbins 20/6/13 at [42] and [46], Mulder at [25] and [29]; van Greunen at [28]-[31].
[148] Arabian at [57] and annexure GA-5, and [61] and annexure GA-7.
[149] T49.9-.35.
[150] T99.35-.46.
[151] van Greunen at [29]. This evidence was not disturbed in cross-examination of van Greunen (T298.25 – 299.30)
Use of CSAs in other departments and promotion of CSAs
Coles emphasises that it intends for CSAs to be flexible and be able to perform a range of duties in the store as illustrated by the number of CSAs who perform tasks in other in-store departments, or have been promoted to management roles both within the Online Department and other in-store departments.[152] That CSAs are given the same opportunity to participate in Coles’ Retail Leaders program (which prepares team members for management roles within the store), and in fact take up this opportunity, lends further support to that view.[153] Again, Coles submits that this points to an environment which is more appropriately covered by the Retail Employee Level 1 classification.
[152] Lord 2 at [71]-[73] and Annexure ML-32 (pages 451-459).
[153] Lord 2 at [74] and Annexure ML-32 (pages 451-459).
One example of this was Mr Dobbins, who moved from a CSA role into a stock hand role, and was subsequently promoted to the role of Online Duty Manager.[154]
[154] T262.9 – 32.
CSAs perform duties falling within three separate (albeit related) categories:
a)consolidation of customer orders in the store, delivery of Coles products picked from the store shelves to customers who have ordered those products through Coles Online and providing customer service at the customer’s premises (together, the Delivery Function);
b)personal shopping duties in the store (including providing customer service as required);
c)other general duties in the store.
Each of the duties falling within these categories is set out in detail below. As will be apparent, all of the above duties involve the CSA providing customer service and are associated with the operation of the particular Coles store at which the CSA is employed.
However, Coles accepts that the primary purpose, or primary function, for which the CSAs are employed is to perform the Delivery Function. It is this function which is to be closely examined to determine if Mr Michael and Mr Gajdobranski perform duties “associated with the operation of the store”.
That the Delivery Function is the principal purpose of the CSA role – that is, that it involves the provision of customer service by way of delivery of goods and customer assistance at the customer’s premises – is supported by an analysis of the factors set out in Tucker v Digital Diagnostic Imaging Pty Ltd[155] as follows:
a)the contents of any job description, position description or job advertisement;
b)both the current job description applicable to CSAs (dated 6 June 2012) and the previous iteration (dated 21 September 2009) describe the primary function of the CSA role as “to provide an outstanding home delivery service to all customers; to ensure the accurate and timely delivery of Coles Online Orders; and to work together with the store team to maximise customer satisfaction”.[156] These position descriptions were available on Coles’ internal intranet and were made available to store teams on request.[157] Mr Lord gave evidence that it was intended that the position description would reflect the actual duties performed by the CSAs.[158] Mr Lord was cross-examined on the primary function of the CSA role as outlined in the position description and his evidence was not disturbed in this respect;[159]
c)possession or absence of particular qualifications and whether such qualifications are necessary to the exercise of the primary functions that are performed;
d)the current CSA position description provides that customer service experience is essential, while previous delivery experience is non-essential.[160] While an earlier iteration of the position description notes that both previous truck driving experience and a previous customer service role are required to meet the position objectives,[161] truck driving experience has never been required by Coles Online in practice.[162] Merely a standard automatic drivers licence and driving confidence are required from a driving experience standpoint.[163] Moreover, Coles bases its CSA recruitment decisions on customer service aptitude rather than transport industry experience (and did so during the time Mr Michael and Mr Gajdobranski were recruited).[164] That is, Coles will recruit a prospective candidate with no transport industry or delivery experience if they show strong customer service aptitude. Conversely, Coles will not recruit a prospective candidate with strong transport industry experience if they do not possess the requisite level of customer service aptitude.[165] Mr Lord gave evidence that, provided the CSA could competently drive the truck safely and passed a criminal records check, this would satisfy Coles.[166] Further, Mr Mulder gave evidence that when interviewing and recruiting for CSAs, she did not ask about the potential CSA’s driving experience.[167] Further, Mr Arabian gave evidence that he would, in the interview, gain an “idea of their background, their history, and…their demeanour”.[168] Mr Arabian says that the initial interview process is to make sure CSAs “have customer service skills first”.[169] Further, Mr van Greunen gave evidence that he did not ask applicants about their vehicle driving experience;[170]
e)the level of importance and relevance of particular duties in the context of the employing organisation’s overall purpose;
f)Coles’ overall purpose is that of retail and customer service. This was admitted by Mr Michael.[171] Coles considers CSAs to be an extension of the store – that is, the face of Coles to that store’s online customers – and expects CSAs to provide the same level of customer service at the customer’s premises as would be provided by another store team member to a customer within the store.[172] As Mr Lord said in examination in chief, “The CSAs are the face of our business. They’re technically the only person that makes physical contact with our customers.”[173] That is, CSAs are considered in the same manner as any other store team member from a customer service standpoint.[174] In this regard, a CSA is the modern incarnation of the home delivery service provided by milkmen, butchers, bakers and grocers in years past.[175] This customer service focus is a key point of difference from other delivery models[176] and a key driver of Coles’ move away from a third party transport provider to the in-house model.[177]
[155] [2011] FWA 1767.
[156] Annexures ML-15 (page 4) and ML-16 (page 6).
[157] T159.30-.33 (ML).
[158] T160.6-.27.
[159] T162.1-.32.
[160] Annexure ML-15 (page 4).
[161] Annexure ML-16 (page 6).
[162] Dobbins at [7], [36]; van Greunen at [20]-[21], [24]; Arabian at [10], [17]; Lord 21/6/13 (Lord 2) at [19].
[163] Dobbins at [7]; van Greunen at [21]; Arabian at [10], [17]; Lord 2 at [28].
[164] Dobbins at [34]-[36]; van Greunen at [21]-[27]; Arabian at [14]-[16]; Lord 2 at [40], [50]-[52].
[165] Dobbins at [36]; Arabian at [17].
[166] T178.40-179.5.
[167] T195.29-.30.
[168] T256.3 – 6.
[169] T259.30.
[170] T275.16.
[171] T46.30.35.
[172] Dobbins at [10] and Annexure PD-1 (page 7); Mulder at [14]; Arabian at [16].
[173] T158.1-.4.
[174] van Greunen at [8].
[175] Lord 2 at [51].
[176] Dobbins at [34].
[177] Lord 2 at [39]-[40].
The Delivery Function
The Delivery Function encompasses the following tasks:
a)the CSA reports for work at the store;[178]
b)the CSA is given a physical manifest, or a digital equivalent, which effectively contains the orders to be delivered in a particular delivery run. These orders are stored in either the Online room, the chilled room or the freezer room, depending on the particular goods contained within the order. All of these rooms are located at the store;[179]
c)the CSA will then walk into the store car park, locate their allocated van and perform safety checks;[180]
d)CSAs then consolidate (that is, gather together the goods comprising the orders from the various temperature zones) and load the orders into the vans in conjunction with other Store Team Members. CSAs are expected to assist other CSAs in loading their vans.[181] Mr Michael admitted in cross-examination that the consolidation task occurred in the online area of the store, which was within the store premises. Mr Arabian identified the online area in the store on the map comprised of Exhibit GA-1 to Mr Arabian’s statement[182] and this evidence was not disturbed in cross-examination.[183] Mr Lord also gave evidence in chief that the consolidation task occurred in the store. Further, there were requirements for the online team to work together to ensure that all the ambient goods were placed together, the chilled goods were placed on top and the frozen goods were put with the right orders on the right van ready to go. Mr Lord gave evidence that there were “cold chain compliance issues” and that it was important for the team to work together to ensure that chilled products are not at an ambient temperature for more than 20 minutes before they are put in the back of the single chilled temperature van;[184]
e)the CSA arrives at the delivery address and takes the order at least to the door of the home of the customer, unloading the order at the kitchen bench or another location if the customer requests (such as a pantry or fridge).[185] Mr Michael conceded in cross-examination that the delivery of goods to the premises could involve taking the goods into the house. If the customer asked the CSA to take the goods to their kitchen or just inside the door, then the CSA would do that. Mr Michael also conceded in cross-examination that there might be occasions where it would be necessary for the CSA to put the orders away for a customer in their pantry or fridge, for example, if a customer is extremely elderly or disabled.[186] Further, Mr Arabian gave evidence that if it is the customer’s first delivery, the CSA is expected to go through the invoice with the customer;[187]
f)if necessary, the CSA performs identification checks for any alcohol or tobacco included in the order.[188] This was admitted by Mr Michael in cross-examination;[189]
g)if necessary, the CSA processes the transaction using a mobile EFTPOS machine;[190]
h)the CSA explains the invoice to the customer and answers any questions that the customer might have regarding their order.[191] One of the questions that may be asked by the customer is in relation to substitute groups. This occurs where the goods the customer had ordered were not available and a substitute for those goods was provided for the customer. Mr Michael conceded in cross-examination that if a customer asked about this, he would venture to help the customer in relation to their enquiry where he could;[192]
i)the CSA then returns the trolley and crates to the van, records the van refrigerator temperature and time, and drives to the next address;[193]
j)once all of the deliveries are completed, the CSA returns to the store and reports for further in-store duties as required and if time allows.[194]
[178] Dobbins at [27]; Mulder at [7]; Arabian at [28], Lord 2 at [27]. Note that Mr Lord, although in a senior management position, is able to give evidence on the tasks that are encompassed by the Delivery Function. Mr Lord gave evidence that he attends the stores, certainly at peak trading periods, and “we roll our sleeves up and do the work”. Further, Mr Lord says that he would probably be in stores 1½ to 2 days a week and gives an example of a week where he will be in stores for 4½ days and will undertake two van accompaniments on Tuesday and Wednesday next week. Mr Lord says, “That’s not uncommon for me” (T143.19-.36). Similarly, Ms Mulder, although also in a management role, gave evidence that she had assisted in the deliveries on ten occasions or more (T197.31-.43). Mr Arabian went out on the road with a CSA as part of his training (T262.41 – 263.10). Mr van Greunen accompanied a CSA on a single occasion sometime in January 2011 (T287.11 – 26).
[179] Dobbins at [27]; Mulder at [7]; Arabian at [28], Lord 2 at [27] and see also Exhibit GA-1 to Arabian.
[180] Dobbins at [27]; Mulder at [8]; Arabian at [28], Lord 2 at [19(h)].
[181] Dobbins at [27]-[28]; Mulder at [8]; Arabian at [28]-[29] and T250.1 – 43, Lord 2 at [19(b)].
[182] see Exhibit R-3.
[183] T244.25 – 249.46.
[184] T162.44-163.6.
[185] Dobbins at [29]-[30]; Mulder at [10]; Arabian at [31], Lord 2 at [30].
[186] T76.7-.35.
[187] T265.27 – 34.
[188] Dobbins at [30]; Mulder at [10]; Arabian at [30], Lord 2 at [29].
[189] T76.37-.41.
[190] Dobbins at [30]; Mulder at [10]; Arabian at [30], Lord 2 at [31]. While Mr Lord gave evidence that approximately 25 per cent of customers pay using the MEFTPOS terminal at the point of delivery, Mr Michael stated in cross-examination that this only happened 15 per cent of the time. However, Mr Michael concedes that it is possible that he under-estimated how often customers paid using MEFTPOS (T77.33-78.33). See also Lord 2 at [31].
[191] Mulder at [11]; Arabian at [31]-[32]; Lord 2 at [32].
[192] T79.20-.30.
[193] Dobbins at [31]; Arabian at [33].
[194] Dobbins at [32]-[33]; Mulder at [12]-[13]; Arabian at [34]; Lord 2 at [33].
Coles submits that these duties, that is, the Delivery Function, are duties associated with the operation of the Coles store. The reasons for this are as follows:
a)the CSA starts and finishes the shift at the store;
b)the vans, crates, mobile equipment and paperwork are collected from and returned to the store;
c)the CSA delivers goods that are sourced and collected from the store;
d)the consolidation and packing duties performed by the CSAs are physically performed at the store itself; and
e)the sales made through Coles Online are attributed to the particular store from which the goods are sourced and collected.[195] Further, the tax invoice provided to the customer includes the actual physical store from which the goods were obtained.[196]
[195] Lord 2 at [48].
[196] T154.15-.19 (ML).
By reason of the matters referred to above, Coles contends that the duties encompassed by the Delivery Function performed by Mr Michael and Mr Gajdobranski, taken as a whole, were “duties associated with the operation of the store”.
Satisfying this criterion is, in Coles’ submission, itself sufficient to establish the application of each of the 2008 and 2011 EBAs at the relevant times. Further, having regard to the list of indicative duties included in the “Service Assistant” and “Store Team Member” classifications within the 2008 and 2011 EBAs respectively,[197] Mr Michael and Mr Gajdobranski performed (or could reasonably have been directed to perform) the following duties as part of the Delivery Function:
a)“Customer service and assistance”. Mr Michael and Mr Gajdobranski regularly performed these duties at customer premises when performing delivery tasks; and
b)“Operation of ‘point of sale’ terminals”. Mr Michael and Mr Gajdobranski regularly performed these duties when processing mobile EFTPOS sales.[198]
c)“Point of sale duties”. Mr Michael and Mr Gajdobranski regularly performed these duties at customer premises when performing delivery tasks, given that under the Customer Agreement, title to the goods passes “upon delivery (or upon collection) and payment of the goods to the Delivery Address …”.[199] Sub-section 22(1) of the Goods Act 1958 (Vic) provides that “where there is a contract for the sale of specific or ascertained goods the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred”. Therefore, in accordance with the Customer Agreement, the title in the goods is transferred at the point of delivery.[200]
[197] Note that the above duties supplement, but do not limit, the meaning of “duties associated with the operation of a store”.
[198] Dobbins at [30]; Mulder at [10]; Arabian at [30]; Lord 2 at [31]; Michael 19/12/12 (Michael 1) at [39]; Gajdobranski 1 at [36].
[199] Michael John Doherty 01/08/2013 at Annexure MD-3 (page 5). See also T155.26-.44, where Mr Lord gave evidence that the customer must accept the Customer Agreement in order to place an order. See also clause 6 of the Customer Agreement, which provides that credit for the value of any goods sent back with the driver or Coles’ team member is applied to the customer’s next order. This is in circumstances where a customer is unhappy with the goods and sends the goods back with the driver who must return it to the store (T156.33-157.46).
[200] The same principle applies in New South Wales: see Sale of Goods Act 1923 (NSW), s.22(1).
Personal shopping and other instore duties
Although the Delivery Function is the primary purpose of the CSA role, it is important to identify personal shopping and other additional in-store duties (both for the sake of completeness, and because it is relevant to the issue of which Award applies should it be necessary for the Court to determine that issue). These in-store duties are an important part of the CSA role.[201] This is initially reflected in the training and induction provided by Coles to CSAs (including Mr Michael and Mr Gajdobranski) on commencement of their employment.[202] In addition to the specific delivery training given to CSAs, this training also included:
a)the same initial training and general induction given to all Coles store employees;[203] and
b)training on the use of equipment that is used in the store and training for duties that are performed in the store.[204] Mr Michael conceded in cross-examination that he was trained in shopping duties.[205] Mr Michael conceded in cross-examination that the initial training “was all basically in-store based”.[206] Mr Michael also conceded in cross-examination that the modules of his training as set out in Annexures GA-2 to Mr Arabian’s statement at page 12 related to in-store activities.[207] Mr Gajdobranski also conceded in cross-examination that he completed his basic initial training.[208]
c)refresher training, which also included training for duties that are performed in the store.[209]
[201] Dobbins at [44], Mulder at [27] and [29], van Greunen at [29]; Lord 2 at Annexure ML-27 (page 331).
[202] Lord 2 at [54]-[65] and Annexures ML-21 to ML-29; Dobbins at [17]-[21] and Annexure PD-3; Arabian at [19]-[26] and Annexures GA-2 and GA-3.
[203] Arabian at [20]-[26].
[204] Lord 2 at [55]-[56] and Annexures ML-21 and ML-22; Dobbins at [17]; Arabian at [20], [23]-[26] and Annexures GA-2 and GA-3. See also the training DVDs “Welcome to Coles” (MFI “R-4”) and “Manual Handling” (MFI “R-5”). These DVDs cover the same material as those DVDs referred to at GA-2 (on page 2) (T278.31 – 35, 280.1 – 8).
[205] T52.34-.38.
[206] T59.43-60.6.
[207] T68.10-.20.
[208] T106.4-.12.
[209] In relation to Mr Michael, see Annexure GA-2 to Arabian’s affidavit at pp.11-13. See also T67.32-68.20. In relation to Mr Gajdobranski, see Annexure GA-2 to Arabian’s affidavit at pp.22-24, Annexure GA-3 to Arabian’s affidavit at pages 25-83 and T109.16-.28.
This approach mirrors the way in which Coles trains its Store Team Members working in other departments within the store. All Store Team Members (including CSAs) are given the same basic in-store training and general induction, and are then trained in practices and procedures specific to their departments.[210] Evidence was led of the written materials contained in this training at Annexure ML-27 to Lord 2. At page 331 to this exhibit, the materials state: “Working in store is a fundamental part of being a Customer Service Agent. The CSA will be placed in store to learn the general shopping process.” In cross-examination, Mr Michael conceded that he engaged in training for one day (with a buddy) in-store to learn the general shopping process.[211]
[210] Dobbins at [17]-[18]; Arabian at [20]-[21]; Lord 2 at [42], [54]-[65].
[211] T61.10-.23.
The training materials in Annexure ML-27 detail,[212] the tasks that were trained in on each day of the training induction. Each of these days comprised training “in store”, training in “vehicle loading”, training in “delivering” and training again in “in store” (in relation to duties after the deliveries had been undertaken). The materials also illustrate that there was a store tour on day 1 of the training.[213]
[212] at pages 339 to 358.
[213] at pages 335 to 336 of Annexure ML-27. Note that Mr Michael conceded in cross-examination that he had been trained in the materials at ML-27, particularly in relation to pages 334 and 336 (T62.20-.46), in the materials at pages 339-343 (T63.6-.15), in the materials at pages 347-349 (T65.25-66.32) and in the materials at page 357 (T66.43-67.4). Mr Gajdobranski also admitted in cross-examination that Annexure ML-27 was a fair summary of the training he first undertook (T108.5-.46).
Coles communicates the importance of in-store duties to the CSA role to prospective CSAs prior to the commencement of their employment, as follows:
a)the presentation delivered to prospective CSAs during group interviews, which notes that the CSA role involves assisting Personal Shoppers in selecting and packing items in the store for Coles Online customers;[214]
b)the letters of offer issued to CSAs, which include a term to the effect that, “You may be requested to perform other duties/positions in line with your skills and competencies as requested by Coles Supermarkets”.[215] As discussed above at [65], in the case of Mr Michael and Mr Gajdobranski, these letters of offer were read, signed and accepted;[216]
c)at least in the case of Mr Michael, the requirement to perform in-store tasks was further communicated at the point that the job offer was made.[217]
[214] Dobbins at [10] and Annexure PD-1 (page 7).
[215] Lord 2 at [53] and Annexure ML-20 (page 13).
[216] Arabian at [57] and Annexure GA-5 (pages 86-91), and [61] and Annexure GA-7 (pages 97-102).
[217] van Greunen at [29].
Personal shopping duties encompass the following tasks:[218]
a)the CSA enters the Online Room of the store and takes their allocated personal data terminal (PDT) which contains the details of the orders which the CSA will pick during that shift, and the corresponding “licence plates” (which attach to the crates in which the items will be placed and which identify those items as being part of a particular customer order);
b)the CSA takes a trolley and crates, walks out into the main body of the store and begins picking customer orders from the shelves. The CSA can pick up to eight orders at any given time. They will not pick the entire order, rather, they pick those items which fall within their allocated area of the store. Mr Michael conceded in cross-examination that this was part of the shopping duties and that it was in the public area of the store where other customers are choosing their goods;[219]
c)when the CSA finishes those orders, they return to the Online Room, place the crates in the Online Room in preparation for consolidation and delivery, take a new batch of licence plates and repeat the process. Mr Michael conceded in cross-examination that this was part of the shopping duties;[220]
d)if a CSA is approached by a customer whilst performing shopping duties and asked a question about the location of a product, they are expected to take the customer to the particular product (in the same way that any other Coles employee is expected to respond). Mr Michael conceded in cross-examination that this was part of the shopping duties.[221]
[218] Dobbins at [21] & [33], Mulder at [16]-[17], Arabian at [37]-[38], Lord 2 at [21]-[26].
[219] T82.4-.17.
[220] T82.11-.13.
[221] T82.23-.31.
A CSA performs the duties described above in the same manner as other Online Department team members (that is, Personal Shoppers). Coles’ expectations of a CSA’s customer service performance in the store is the same as those it holds of other Online Department team members, and Store Team Members in other departments of the store.[222]
[222] Dobbins at [17]-[19], [37], [39]; Mulder at [15]-[17]; Arabian at [20]-[21], [36]-[38], [48]-[54]; Lord 2 at [42], [45], [54].
All CSAs are trained to perform personal shopping duties, and can be required to perform them as part of the CSA role as required.[223] Both Mr Michael and Mr Gajdobranski admit that they performed personal shopping duties during their training.[224] Mr Gajdobranski performed personal shopping duties:
a)on an ad hoc basis on a number of occasions from as early as October 2011;[225] and
b)on a weekly rostered basis since July 2012.[226] The reason why Mr Gajdobranski and the other CSAs at Endeavour Hills began performing personal shopping duties on a weekly rostered basis was that around this time, there was an increasing number of CSAs in the Online Department (which was not the case prior to mid-2012).[227]
[223] Mulder at [27], [29]; Arabian at [59], [62].
[224] Arabian at [23]-[24] and Annexure GA-2, and [25]-[26] and Annexure GA-3; Michael 1 at [6], [18]; Gajdobranski 1 at [14].
[225] Mulder at [26]. Mr Dobbins was also rostered on shopping shifts while he was a CSA on an ad hoc basis from September 2011, and then on a regular basis in December 2011 (T219.4-.38). Mr Arabian gave evidence that Mr Gajdobranski asked for additional shifts “anywhere else” in the store (T228.6 – 14).
[226] Dobbins at [47]; van Greunen at [13]; Arabian at [47], [59].
[227] T2267.25 – 33.
While there are some CSAs who do not perform personal shopping duties (such as Mr Michael), a significant proportion of CSAs do perform personal shopping duties (whether on a rostered or ad hoc basis). As already noted, at 18 June 2013, 62 per cent of CSAs performed personal shopping duties at least once per week on a rostered basis.[228] Where CSAs do not perform personal shopping duties, this is not because those duties do not form part of the CSA role. Rather, it is due to other factors including:
a)a shortage of CSAs;[229]
b)as in Mr Michael’s case, the CSA having particularly strong customer service skills and hence being utilised for duties with a greater degree of customer interaction.[230] In this respect, I observed during the hearing that “Coles makes an effort to ensure, as far as practicable, that all customer service agents do some in-store work, including as in-store – as personal shoppers. But they do, as a practical matter, permit a degree of specialisation.”[231]
c)the CSA’s existing roster being incompatible with a rostered shopping shift, and the CSA being unwilling to alter that roster;[232]or
d)a particular manager’s willingness to assign a CSA to alternative in-store duties (such as assembling crates) based on that CSA’s preferences.[233] This was the case, for example, with Mr Michael.
[228] Lord 2 at [44] and Annexure ML-18. Mr Dobbins also gave evidence that over the last eight months (prior to the date of him swearing his affidavit) in his opinion 50 per cent of CSAs were doing rostered shopping shifts at least once a week (T220.26-.39). See also Dobbins at [24].
[229] Mulder at [19]-[20]; van Greunen at [10]-[12]; Arabian at [43]-[44]; Lord 2 at [44].
[230] Arabian at [62].
[231] T122.8-.11.
[232] Mulder at [21(b)].
[233] Arabian at [48].
It is useful to examine the indicative tasks listed for the “Service Assistant” classification in clause 4.1.1(o) of the 2008 EBA. There is no reference to any delivery function, driving or transport function. The duties of “customer service and assistance”, “operation of ‘Point of Sale’ terminals”, “preparation for sale of fresh foods and merchandise” or “receipt and storage of stock and produce” do not describe duties performed by CSAs and are, on their ordinary meaning, referrable to work undertaken entirely within the retail store and the sale of goods to customers present in the retail store.
The objective background facts at the time when the 2008 EBA was negotiated were that CSAs were not employed by Coles. The delivery functions of the Coles Online business were being performed by truck drivers engaged by external contractors. In those circumstances, it is unsurprising that the indicative tasks of the classification of “Service Assistant” do not refer to the delivery or transport duties. It cannot have been the intention of the parties that the “Service Assistant” classification apply to the work of the CSAs, that is, the performance of delivery functions.
This is a case where the following statement by Curlewis J in Wills v Hartland is appropriate:[367]
Let us stop for a moment to consider what really takes place on the hearing of an application for an award. The applicants put before the Board a statement of the work done by the various classes for whom they desire wages and conditions fixed. The Board makes an award for the classes to which its attention is drawn. I am now asked to hold that a Board must be deemed to have foreseen every contingency that can ever arise, and to have prescribed that every one who cannot be shown to be something else is to be deemed to be a journeyman. Every award is a bed of Procrustes[368], into which every employee is to be fitted, however manifest it may be that the case of such an employee could never have been considered by the Board. (emphasis added)
[367] [1917] AR (NSW) 410 at 412 (adapted to the circumstances of enterprise bargaining).
[368] Procrustes was a mythical bandit in classical antiquity who invited passersby to spend the night and then cut off their arms and legs in order to fit then into his iron bed.
Assessed objectively, having regard to the words used in the 2008 EBA and the context in which the Agreement was made, I cannot accept a conclusion that the parties intended that the job functions of a CSA (which are primarily directed at driving and delivery work) fall within the “Service Assistant” classification.
The 2008 EBA was never intended to cover the work performed by CSAs and the description of the duties associated with the classification of “Service Assistant” should not be construed so as to apply to the work of CSAs. Because it never covered the work of CSAs, it can never have applied to CSAs, notwithstanding that employees such as Messrs Michael and Gajdobranski were required to sign contracts of employment which represented incorrectly that it did.
The 2011 Agreement does not “apply”
The position with respect to the 2011 EBA is even clearer. First, it is clear from the terms of the 2011 EBA that there was no change to the coverage of the 2008 EBA. Secondly, the employees of Coles were expressly advised in the negotiations for the 2011 EBA that it was not intended to cover CSAs.[369] CSAs were not given a “notice of representation rights” in relation to the Agreement and did not vote on the Agreement. Indeed, it was not until after the 2011 EBA was approved (early September 2011),[370] that Coles and the TWU (and the SDA) commenced negotiations in relation to an enterprise agreement to cover the work of CSAs. Coles then provided the requisite “notice of representation rights” to CSAs.[371]
[369] Walton 18/2/2013 at [11], annexure TW4.
[370] Walton 18/2/2013 at [13].
[371] Walton 18/2/2013 at [15].
The “Coverage” clause of the 2011 EBA confirms, as with the 2008 EBA, that it “shall be binding … in respect of all classifications in this Agreement whether members of [the SDA] or not”. Again, the classifications are outlined in clause 4.1 and the only potentially applicable classification is the generic “Store Team Member”[372] capturing “a team member engaged to perform a range of duties associated with the operation of a store”, (noting the non-exhaustive list of duties said to be within that “range”; the list is identical to the list of duties of a “Service Assistant” in the 2008 Agreement).
[372] clause 4.1.1(i).
Again, in the context of an Agreement that was negotiated after express representations to the workforce that CSAs were not to be covered, despite the fact that CSAs had been employed (with more employment to follow over the life of the agreement), it strains the language of the 2011 EBA to the point of incredulity to contend the parties intended to capture the sort of loading and unloading and delivery activities performed by CSAs within the words “a range of duties associated with the operation of a store”, such as customer service and assistance or other general store duties.
The 2011 EBA was never intended to cover the work performed by CSAs, and I find, never did. Because it never covered the work of CSAs, it can never have applied to CSAs.
Does the Retail Award apply?
The next issue is whether the Retail Award applies to Mr Michael and Mr Gajdobranski.
I have found that the Road Transport Award cannot cover Coles (and hence cannot cover CSAs) because Coles is not an employer covered by the Road Transport Award. This is because Coles is not a business that operates “substantially” within the road transport and distribution industry.
For the reasons which follow, even if the Road Transport Award can cover the employment of Mr Michael and Mr Gajdobranski as CSAs, the Retail Award applies to their employment. This is because the Retail Award also covers their employment and contains the more appropriate classification (thus “trumping” the coverage of the Road Transport Award).
The Retail Award is expressed in clause 4.1 to cover “employers throughout Australia in the general retail industry and their employees” as outlined in the classifications structure.
Coles falls within the “general retail industry” as defined in clause 3.1 of the Retail Award as it is principally and substantially engaged in the “the sale or hire of goods or services to final consumers for personal or household consumption including: food retailing, supermarkets, grocery stores …”.
For a CSA to also be covered by the Retail Award, they must fall under one of the Retail Award classifications. As noted above at [15], Coles submits that CSAs fall under the Retail Employee Level 1 classification within the Retail Award.
Clause B.1.1 of Schedule B of the Retail Award sets out the Retail Employee Level 1 classification. This classification relevantly covers “an employee performing one or more of the following functions at a retail establishment”, which functions include:[373]
a)“the pre-packing or packing, weighing, assembling, pricing or preparing of goods or provisions or produce for sale”. CSAs regularly perform these functions while performing personal shopping tasks;
b)“the sale or hire of goods by any means”. CSAs regularly perform this function when delivering customer orders (which completes the sale where payment has been made online), and when processing payments via mobile EFTPOS;
c)“the receiving, arranging or making payment by any means”. CSAs regularly perform this function when processing sales via mobile EFTPOS;
d)“the recording by any means of a sale or sales”. CSAs regularly perform this function when processing sales via mobile EFTPOS and by recording delivery of customer orders on their manifest;
e)“the wrapping or packing of goods for despatch and the despatch of goods” (emphasis added). CSAs regularly perform this function when consolidating orders as part of personal shopping duties, and when loading vans as part of the Delivery Function;
f)“the delivery of goods” (emphasis added). CSAs regularly perform this as part of the Delivery Function.
[373] Lord 3 at Annexure ML-33 (p.38).
Further, clause B.1.3 of the Retail Award lists indicative job titles for employee within the Retail Employee Level 1 classification. These relevantly include (amongst others):
a)Driver; (emphasis added)
b)Assembler; and
c)Door-to-door salesperson.
While Coles does not consider CSAs to be appropriately classified as door-to-door salespeople, the inclusion of this indicative job title strongly supports the view that the requirement to perform functions “at a retail establishment” is not intended to be narrowly read as requiring all functions to be performed at the “bricks and mortar” premises.
The TWU seeks to avoid this conclusion through a detailed analysis of the coverage provisions of the Retail Award. The “general retail industry” is defined in clause 3.1 to:
a)mean “the sale or hire of goods or services to final consumers for personal or household consumption including” various types of stores, including supermarkets”;
b)include three classes of work activity not falling within that general class; and
c)excludes a list of stores that would otherwise fall within that general class.
In YZ Finance Co Pty Ltd v Cummings,[374] McTiernan J (with whom Taylor J and Windeyer J agreed), expressly affirmed the following passage from Dilworth v Commissioner of Stamps:[375]
The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to 'mean and include', and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.
[374] (1964) 109 CLR 395.
[375] [1899] AC 99 at 105-206.
Courts have, from time to time, cautioned against focusing on the ordinary meaning of the word “includes” when used in a statutory definition. For example, Young CJ, Starke and Gray JJ said in Cohns Industries Pty Ltd v Deputy Federal Commissioner of Taxation[376] observed:
When the word 'includes' is used in a definition section, it is generally used to enlarge the meaning of the word it describes, that is to say, to bring within the word something that would otherwise not be within it: Savoy Hotel Co v London County Council [1900] 1 QB 665 at 669. The classic statement is of course to be found in the advice of the Privy Council in Dilworth v Comr of Stamps [1899] AC 99 at 105, which was quoted by the learned trial judge. Yet in a passage that is worth quoting, Kitto J has warned against taking that statement so literally as to reduce the inquiry to a consideration of the meaning of the word 'includes'. In YZ Finance Co Pty Ltd v Cummings[1964] HCA 12 ; (1964) 109 CLR 395 at 401-2; [1964] HCA 12 ; [1964] ALR 667 at 670, Kitto J said 'Unlike the verb "means", "includes" has no exclusive force of its own. It indicates that the whole of its object is within its subject, but not that its object is the whole of its subject. Whether its object is the whole of its subject is a question of the true construction of the entire provision in which the word appears. The well-known statement of Lord Watson in Dilworth v Comr of Stamps [1899] AC 99 at 105, 106, should not be taken so literally as to reduce the inquiry in a case like the present to an inquiry into the meaning of the word 'means and includes'. But a provision in which it appears may or may not be enacted as a complete and therefore exclusive statement of what the subject expression includes. A provision which is of that character has the same effect as if 'means' had been the verb instead of 'includes'. The question whether a particular provision is exclusive although 'includes' is the only verb employed is therefore a question of the intention to be gathered from the provision as a whole.
[376] (1979) 24 ALR 658 at 660.
But as the concluding observations of Kitto J in YZ Finance reflects, that caution arises when the word “includes” is the only verb employed.[377]
[377] see also Hepples v Commissioner of Taxation (1990) 22 FCR 1 at 21.
In the definition of general retail industry, the word “means” (notably here used in contradistinction to “and includes” and “but does not include” in the remainder of the definition) is intended to operate as a word of limitation, restricting the scope of the industry to “the sale or hire of goods or services to final consumers for personal or household consumption”. The list of store types that follows need not be construed as an exhaustive list, the list being merely descriptive of stores that would ordinarily fall within the general class of stores engaged in “the sale or hire of goods or services to final consumers for personal or household consumption”.
In the absence of any words of extension, the general retail industry would mean “the sale or hire of goods or services to final consumers for personal or household consumption” and no more: the definition would be exhaustive. That defined class involving “the sale or hire of goods or services to final consumers for personal or household consumption” is followed by the words:
and includes:
·customer information and assistance provided by shopping centres or retail complexes;
·labour hire employees engaged to perform work otherwise covered by this award; and
·newspaper delivery drivers employed by a newsagent”,
·but does not include: …”
The word “includes” in this context is clearly intended to extend the otherwise defined class and in a limited way: it adds three limited areas not ordinarily captured within ordinary meaning of the words used to describe the general class. None of those three additional elements of the definition are otherwise engaged by the expression “the sale or hire of goods or services to final consumers …”. The definition then continues to specifically exclude (by use of the device “but does not include”), a list of stores, that would otherwise fall within the general class: namely, “the sale or hire of goods or services to final consumers for personal or household consumption”.
The foregoing analysis does not, however, assist the TWU. Mr Michael and Mr Gajdobranski (and other CSAs) are in my view engaged in “the sale or hire of goods or services to final consumers …”. The function of the CSAs is and at all material times has been the selection, consolidation and delivery of goods ordered or purchased directly by the consumer over the Coles Online website. The Coles Online business seeks to provide a seamless process of ordering, selection, consolidation and delivery of supermarket goods. CSAs are at least potentially involved in the whole process. This includes the delivery of and completion of the sale of goods (at least in the case of goods which had been ordered, but not paid for). Their work is performed in the general retail industry as defined and they can be covered by the Retail Award.
If I were wrong in my finding that the Road Transport Award does not apply, it would be necessary to reconcile the overlap between the Retail Award and the Road Transport Award. To paraphrase clause 4.8 of the Road Transport Award, the question is whether the award classification [in the Road Transport Award is the] most appropriate [classification] to the work performed by [the Workers] and to the environment in which [the Workers] normally performs the work. This would involve considerations akin the consideration of the “major and substantial” or “principal purpose” tests.
The test for competing award coverage
Clause 4.8 of the Road Transport Award and clause 4.7 of the Retail Award provide that “where an employee is covered by more than one award, an employee of that employer is covered by the award classification which is most appropriate to the work performed by the employee and to the environment in which the employee normally performs the work”. There do not appear to be any cases that have applied this particular clause. Further, there is no guidance in the Fair Work Act as to how to apply a clause such as this where more than one modern award may be said to apply to the employment of a particular employee.
Prior to the introduction of modern awards in 2010, it was generally accepted that the “principal purpose” test was appropriately used to resolve the question of competing award coverage (that is, where classifications within two separate awards both cover the work).
In Softplay Pty Ltd v Department of Industrial Relations (Inspector McMahon),[378] the Full Bench of the NSW Industrial Relations Commission (in Court Session) considered the array of authorities on competing award application. Glynn J observed:[379]
To try to determine the appropriate award coverage, one looks, in context to both the purpose of the enterprise from the employer’s point of view, and to the duties actually undertaken by employees in the implementation of that purpose. The purpose of the enterprise, without which purpose there would be no employment offered at all, is a pointer to, but is not necessarily determinative of, the principal duties undertaken by the employee.
[378] (1999) 94 IR 175.
[379] at 190.
However, the “principal purpose” test in resolving issues of competing modern award coverage has been replaced by the “most appropriate award classification” test as described above. That the principal purpose test has been superseded by the modern award “most appropriate classification” clause is consistent with recent FWC Full Bench authority and ought be preferred.
In Re TCFUA and Solaris Paper Enterprise Agreement 2010,[380] the Full Bench confirmed[381] that the Timber Award 2010 was the relevant award for the purposes of the Better Off Overall Test on the basis that its more specific coverage of tasks performed by employees was preferable to the more general coverage within the Textile, Clothing and Footwear Award 2010. The Full Bench also examined[382] the history of the making of the Award. The Full Bench did not adopt a principal purpose test.
[380] (2011) 202 IR 256 (Solaris Paper).
[381] at [25].
[382] at [19].
Similarly, in AWU v Coffey Information Pty Ltd,[383] the Full Bench did not apply (or indeed refer to) the principal purpose test when considering[384] the interaction between competing modern awards. In Coffey, the Full Bench was required to consider whether the Commissioner at first instance had used the appropriate award for the purposes of applying the “Better Off Overall” test (a requirement for approval of enterprise agreements). In line with the approach in Solaris Paper (although not referring to that case), the Full Bench in Coffey[385] placed weight upon the more specific classifications within the technical stream of the Manufacturing Award rather than the more general classifications within the On-Site Award.
[383] [2013] FWCFB 2894.
[384] at [22]-[23].
[385] at [24]-[26].
In the TWU’s submission, the classifications in the Road Transport Award, and the Grade 2 driver in particular, are the most appropriate. There are said to be three reasons for that:
a)whilst the duties of a CSA may in some instances extend beyond the “Driving Function” as defined by Mr Lord in his evidence (at [19]), on any view of the evidence the Driving Function is the primary function of a CSA;
b)the working environment of the CSAs is, in substance, that of a driver: their core duties are the consolidation of loads for delivery, and the loading and unloading and driving of the 4.5 tonne truck; and
c)the history of industrial coverage for employees who perform work as a driver as an ancillary to the principal business, undertaking or industry of the employer, and notably “Coles G J & Co Ltd” itself.
The first two of these reasons is said to be adequately illustrated by the evidence. The third element requires a discussion of the industrial instruments that were consolidated into the Road Transport Award, and in particular the Transport Industry (Mixed Industries) Award 2002 (“the Mixed Industries Award”). I have already rejected it at [158] above but for the purposes of this discussion I consider it further.
The Mixed Industries Award can be traced through the Transport Industry (Mixed Industries) Award 1984 (1984) 294 CAR 169, the Transport Industry (Mixed Industries) Award 1970 (1970) 135 CAR 911, the Transport Workers (General) Award 1959 (1959) 91 CAR 344, the Transport Industry (General) Award 1950 (1950) 66 CAR 984, the Transport Industry (General) Award 1940 (1940) 43 CAR 913 and so on. “Coles G J & Co Ltd” was a respondent to the award prior to 1934.[386]
[386] (1934) 33 CAR 857 at 892.
Since 1934 the classifications contemplated by the mixed industries award (and its predecessors) extended well beyond mere delivery drivers to include a “Driver-Salesman”, entitling them to additional remuneration because they were required to act as salesmen of goods conveyed in the vehicle driven by them and for receiving and accounting for money.[387] As Detheridge CJ observed “I think it is reasonable that [for these reasons the Driver-Salesman] should also receive a further small addition to make his rate nearer to that of a salesman in a shop”.[388]
[387] (1934) 33 CAR 857 at 867.
[388] (1934) 33 CAR 857 at 867.
I accept that truck driving is demanding and skilled work. In 1959, in what was described as the first occasion for many years of the values on which an award was based, Commissioner Austin determined a claim for a substantial marginal increase and in doing so described some of the features of the workers covered by the then Transport Workers (General) Award 1959. The Commissioner referred to the responsibility associated with what were then “bigger vehicles, bigger population, keeping abreast of regulations and rules, pedestrian problems etc, all of which increased responsibility”,[389] the laborious[390] nature of the work associated with manual handling goods in the transport function, the driving reactions and high tension[391] associated with driving vehicles, and otherwise observed:
This is an industry that is dependent on individual application more so than most industries. I know of no other industry where the major part of each day, in most instances, needs the services of capable and trustworthy employees who perform the work for which they are paid without constant supervision.
There is no doubt in my mind that the responsibility briefly outlined, not overlooking many other factors that contribute, to some degree, enlarges this most valuable attribute in this industry. I might add that any deficiency on this phase of employment would result in a less successfully operated industry.
Another factor which supports the claim is the individual application, in nearly every instance, and contact with clients in reception and delivery by employees. This industry is dissimilar to other industries, chiefly due to the fact that employees have to carry out all functions of their employment singly.
One cannot lightly dismiss the value of an employee to his employer in the transport industry, notwithstanding the type of work on which he is engaged. Some make deliveries to suburban homes, others to stores and the like. Heavy haulage from wharves and manufacturing points all entails, more completely than in most other industries, intimate individual representation between the owner of the vehicle and the parties whose goods are being carried which, joined to “responsibility” herein referred to, satisfies me that on these aspects of the case there is justification for marginal increases.
[389] (1950) 91 CAR 344 at 348, 351.
[390] (1950) 91 CAR 344 at 350.
[391] (1950) 91 CAR 344 at 350.
That a CSA may be required to demonstrate customer service when delivering goods purchased through Coles Online does not of itself render the retail worker classifications more appropriate to the work of CSAs: interaction with customers, including in “suburban homes” involving intimate individual representation with the ultimate consumer was always a feature of the work of those delivery drivers covered by the Mixed Industries Award (and its predecessors) and engaged on delivery work ancillary to the main business of the employer.
The primary function of a CSA is that of a delivery driver. The functions of a delivery driver consume the bulk of their working time, and the environment in which they spend the bulk of their working time is the truck, the loading bay where the trucks are loaded, and the “Online Room” where the customer orders (most likely picked or “personally shopped” by others employed specifically for that task) are consolidated. The TWU contends that the work performed by CSAs is centrally directed to the transport of goods by road as an ancillary part of the retail business conducted by Coles.
The TWU submits that the work of a CSA involving the loading and unloading of large volumes of produce using manual handling tools such as “dollies”, generally picked and packed by others in crates, and delivered using a 4.5 tonne truck, is far more closely aligned to a warehousing and distribution type function than that of a retail worker who occasionally delivers a consumer’s shopping: it is the sort of role contemplated traditionally by the Mixed Industries Award, and embraced now in that aspect of the definition of road transport and distribution industry involving the transportation by roads of goods etc, as an ancillary function to the business of an employer that generally operates in another industry, such as the retail industry.
As the earlier extracts from the Road Transport Award decision make clear, the work of employees such as the CSAs employed by Coles (the transporting of goods performed as an ancillary function of an employer’s principal business), is what the Mixed Industries Award was in earlier times designed to deal with and the TWU contends something similar was what was contemplated by the Full Bench in the definition of the road transport and distribution industry. However, it is in my view significant that the AIRC in 2009 refused to import into the Road Transport Award the majority clause from the Mixed Industries Award. That superseded award cannot, in my view, provide any material guidance to resolve the question.
The TWU nevertheless submits that, for the reasons it gives, if it were necessary to so decide, the classifications in the Road Transport Award are more appropriate for the CSA work. The TWU contends Mr Michael and Mr Gajdobranski are employed to drive 4.5 tonne trucks in the performance of that work, and that type of truck is appropriately captured within the classification descriptor of a Transport Worker, Grade 2 within the Road Transport Award. On that basis, the Road Transport Award would be the most appropriate award applicable to the work of Mr Michael and Mr Gajdobranski. For the reasons which follow, however, I am unable to accept that submission.
Why the Retail Employee Level 1 classification is more appropriate to the CSA role
Coles submits, and I accept, that the award classification in the Retail Award that covers CSAs is the most appropriate classification to the work performed by the CSAs and the environment in which the CSAs normally performed their work (as compared with the relevant classification in the Road Transport Award). This is for the following reasons:
a)the tasks performed by CSAs are more specifically set out in the Retail Award;
b)the reasoning behind Coles’ move to the Coles Delivery insourced model;
c)the recruitment, training and performance management procedures applied to CSAs;
d)the use of CSAs in other departments within the store, and the promotion of CSAs to management roles in the Online Department and other departments in the store; and
e)the background to the making of the Retail and Road Transport Awards also supports Coles’ position that the Retail Award most appropriately applies.
I address these points in further detail below.
The tasks performed by CSAs
As has already been discussed, the indicative tasks and job titles within the Retail Employee Level 1 classification specifically cover the tasks of a CSA. This degree of specificity supports the Retail Award as most appropriate.[392] The fact that each CSA is a team member of a particular retail store and performs a range of tasks at their particular store provides a further important connection with the Retail Employee Level 1 classification. Even when undertaking delivery tasks, CSAs are involved in the consolidation of orders in the store with other team members and perform the customer service and transaction processing tasks which would ordinarily be performed by team members in the physical store. In short, the CSA role does not simply involve the collection and delivery of goods from a warehouse. Further, CSAs do not generally perform any driving tasks other than those performed in discharging the delivery function.[393] By way of example, CSAs do not undertake driving tasks to or from Coles’ suppliers or its distribution centres.[394]
[392] see Solaris Paper and AWU v Coffey Information Pty Ltd outlined above.
[393] Arabian at [35], Lord 2 at [34].
[394] Arabian at [35].
This analysis reflects the approach taken by the majority in Nornews Pty Ltd v Everett.[395] In that case, an employee of a regional newspaper whose responsibilities included preparing newspapers for delivery and effecting deliveries was held to be covered by a federal publishing industry award rather than the relevant state transport award.[396] In reaching that conclusion, the majority rejected the employee’s argument that he was not engaged in publishing because the bulk of his work was that of transport and delivery. The majority gave weight to the appellant’s evidence that home delivery work fell within the scope of publishing and that the respondent was engaged by the appellant’s Publishing Department.[397]
[395] (1998) 81 IR 76.
[396] see at 87.8.
[397] see at 87.6.
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.[398] 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.
[398] The silence within the Transport Worker Grade 2 classification in respect of non-driving tasks is particularly notable when compared with the classifications of Distribution Facility Employee Levels 1 and 2 also found within the Road Transport Award. These classifications go into some detail regarding general warehouse duties in a distribution centre in addition to driving duties. That the Transport Worker Grade 2 contains no equivalent detail around non-driving tasks suggests that the classification is intended to cover employees that are employed to provide driving services only.
Of course, it does not follow that CSAs must be paid at that level. Indeed, I would think that the truck driving skills required of CSAs, which are both central to their role and additional to the usual tasks performed in store by them and other employees, ought to be adequately and appropriately recompensed. For example, I note that a forklift operator is classified as a Level 2 retail employee and a driver selling stock falls within the Level 3 retail employee classification. This suggests that the Level 3 classification may be the most appropriate. That is, however, beyond the scope of these proceedings and the point was not argued.
The industrial background favours the Retail Award
Making of the Retail Award
The industrial background also favours the application of the Retail Award. The history surrounding the making of the Road Transport and Retail Awards indicates that retail roles encompassing driving functions are not intended to fall within the scope of the Road Transport Award where the Retail Award otherwise applies.
This is borne out by comparing the final form of each of the Retail and Road Transport Awards with the draft awards proposed by the TWU and its accompanying submissions to the FWC during the Award Modernisation process.
In respect of the Retail Award:
a)at [2.5] of its submission to the AIRC in respect of the Retail Award dated 1 August 2008, the TWU argued that “the modern retail award should specifically exclude transport workers”.[399]
b)at [2] of its submissions to the AIRC in respect of the exposure draft of the Retail Award dated 7 November 2008,[400] the TWU supported the position that a shop assistant who occasionally performs deliveries should be subject to the Retail Award, while an employee engaged to perform driving tasks on a consistent basis should fall under the Road Transport Award. In this regard, the TWU submitted[401] that the job title of “driver” should be removed from the list of indicative titles, and that the phrase “delivery of goods” should be amended to read as “occasional delivery of goods”.
[399] Lord 3 at Annexure ML-49 (page 173).
[400] Lord 3 at Annexure ML-50 (page 174).
[401] at [5].
In respect of the Road Transport Award:
a)at [12] of its submissions to the AIRC in respect of the Road Transport Award dated 31 October 2008, the TWU argued that the Road Transport Award must necessarily be of a hybrid nature. The proposed draft Award included a coverage clause[402] encompassing “drivers and loaders of all power-propelled vehicles and trolleys, drays, carts and floats engaged in the carriage of goods, merchandise and the like”.[403]
b)at [17] and [19] of its supplementary submissions to the AIRC in respect of the Road Transport Award dated 27 February 2009, the TWU expressed concern over the ancillary coverage provisions of the draft Road Transport Award, and proposed a coverage clause[404] extending award coverage to “drivers and loaders of all powered vehicles engaged in the transport of goods, wares, merchandise, material or anything whatsoever …”.[405]
[402] clause 4.1.
[403] Lord 3 at Annexure ML-51 (p.195).
[404] at Annexure TWU9 to those supplementary submissions.
[405] Lord 3 at Annexure ML-52 (pp.235-236, 271).
None of the TWU’s proposed amendments are reflected in the terms of the Retail Award or the Road Transport Award. In short, the TWU submissions were not accepted. This supports the interpretation that the Retail Award applies to employees of retailers even though their jobs comprise a substantial degree of driving and delivery functions. Further, the Road Transport Award was not intended to be the award which necessarily covered employees who performed any form of driving duties irrespective of the circumstances.
Conclusion on the Award Questions
For all of the reasons above:
a)the Road Transport Award cannot cover Coles (and hence cannot cover CSAs); and
b)even if the Road Transport Award could cover CSAs, the Retail Employee Level 1 (or higher) classification is the more appropriate classification for CSAs for the purposes of clause 4.7 of the Retail Award (and hence the Road Transport Award could not apply to CSAs).
As the Road Transport Award does not apply to Mr Michael and Mr Gajdobranski, they are not entitled to any overtime, allowances or penalties provided by that award. The TWU’s claims must therefore fail.
I will order that the applications be dismissed.
I certify that the preceding two hundred and forty-one (241) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 February 2014
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