Coles wins underpayment case, as court backs supermarket over award rate issue

Supermarket giant Coles has been victorious over the Transport Workers Union as the Federal Court found two of its online delivery truck drivers has not been underpaid.

The TWU argued Coles had misclassified the two drivers under its retail agreement, rather than the more generous road transport award.

However, Justice Rolf Driver found the supermarket was correct in its decision, in a move which could have implications for other major retailers with online delivery services.

“The issue of the relevant and applicable industrial instrument is an important one because it impacts significantly on the online business of Coles,” Driver says in his decision.

Driver says he accepted that the Coles employees were rightly classified under the retail award because the tasks they performed were covered by the award, the training they had received and the potential for these employees to be promoted to other roles.

The drivers had been classified by Coles as customer service agents, in which their roles included stacking and driving trucks. However the drivers had also received training to work in-store and were able to be allocated in-store shifts.

Driver found it was in this capacity as a CSA, the employees were different to regular delivery drivers.

“This customer service focus is a key point of difference from other delivery modelsand a key driver of Coles’ move away from a third-party transport provider to the in-house model,” Driver says.

The employees were found to be similar in their duties as newspaper delivery workers, who are covered by the retail industry award.

TressCox partner Rachel Drew told SmartCompany the case highlights the difficulties which still exist in determining the right classification of employees.

“The award modernisation process was intended to address some of these types of issues. Believe it or not it used to be even more difficult,” she says.

“Overall, it is easier now to get the award right and to choose the right classification of an employee.”

However Drew says she’s not surprised the TWU decided to argue the workers should have been classified under the road transport award.

“I guess however Coles’ argument was that the workers were part of a retail business and the retail award ought to apply above that of the road transport award.”

The TWU issued a statement this morning saying it intends to appeal the Federal Court decision.

“Last week’s decision from the Federal Circuit Court must be challenged,” TWU assistant national secretary Michael Kaine says.

“The effect of this decision will see Coles Online drivers across Australia remain on dangerous terms and conditions.”

Kaine says the TWU will continue to “fight for fair rates and conditions at Coles Online”.

“With 330 deaths on Australian roads every year in truck-related crashes, ensuring that all transport workers have the appropriate rates, conditions and safety standards is a matter of worker and public safety,” he says.

“Fighting for Coles Online drivers’ right to be recognised as transport workers is a fight that needs to happen – not only to deliver safety and fairness for Coles Online drivers but also to ensure the safety of every Australian road user.”


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