FEDERAL COURT OF AUSTRALIA

Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    In the judgment from which the present appeal has been brought (Transport Workers’ Union of Australia v Coles Supermarkets Australia Pty Ltd [2014] FCCA 4) the primary judge in the Federal Circuit Court of Australia (“the FCCA”) was required to decide whether, as alleged by the appellant (“the TWU”), some employees of the respondent (“Coles”) had been underpaid wages, overtime, allowances and penalty rates prescribed by the Road Transport and Distribution Award 2010 (“the Transport Award”), a “modern award” within the meaning of s 12 of the Fair Work Act 2009 (Cth) (“the FW Act”).

2    To decide that question the primary judge was required to consider and resolve the following questions:

1.    Did the Transport Award cover and apply to the employment in question (“the employment”)?

2.    Did a different modern award, the General Retail Industry Award 2010 (“the Retail Award”) cover the employment? If so, did it apply to the exclusion of the Transport Award?

3.    Did either of the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2008 (“the 2008 EBA”) or the Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Ltd Retail Agreement 2011 (“the 2011 EBA”) cover and apply to the employment to the exclusion of the operation of any modern award?

3    Our consideration of the issues on the appeal has been greatly assisted by the comprehensive judgment of the FCCA, both as to the facts of the matter and the identification and analysis of the legal issues.

4    Each of the 2008 EBA and the 2011 EBA was or is an enterprise agreement as defined by s 12 of the FW Act. If either applied, it did so to the exclusion of any modern award (FW Act, s 57(1)). The primary judge concluded that neither the 2008 EBA nor the 2011 EBA covered or applied to the employment. That finding was to the advantage of the TWU, whose case was however rejected on other grounds which it now challenges. Against the possibility that the challenges succeed, Coles filed a Notice of Contention to the effect that one or both of the 2008 EBA and 2011 EBA apply to the employment. If that contention was upheld it would provide an independent reason why the appeal must be dismissed.

5    We have decided that the appeal must be dismissed in any event but, for reasons we will explain in due course, we would not have been inclined to uphold the Notice of Contention.

6    Before we deal with the legal issues on the appeal, and the Notice of Contention, we will summarise the factual position, drawing upon matters revealed by the judgment of the FCCA about which there was no challenge.

The facts

7    In about 1999 Coles established an “online business” as an aspect of its retail supermarket business. The primary judge recorded:

Coles Online business

29.    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”.

30.    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, … and in material from the Coles Online website … 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” from the shelves by Coles’ employees known as “personal shoppers”, prepared and packed in crates in the “Online Room” at the relevant store, and loaded onto a truck and delivered by Coles employees currently designated as Customer Service Agents (CSAs).

31.    The Coles Online business appears to have been developed in or around 1999 and evolved over time. Prior to 2010, Coles contracted out the delivery element of the Coles Online business to Linfox (and subsequently some other transport businesses). Coles started to employ delivery drivers, the “Coles Delivery” model, from approximately February 2010, and engaged some of the delivery drivers formerly employed by those transport companies (including Linfox), …

(Footnotes omitted.)

and:

36.    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”), and the delivery personnel, … The CSA position was created, … to take over the delivery function formerly being undertaken by Linfox and other transport operators, however there has developed some overlap between the two functions.

(Footnotes omitted.)

and:

42.    The driving shifts for CSAs are broken into two shifts: morning, which commences at 5.00am, and afternoon, which commences at 2.00pm, consistent with the delivery windows available to customers.

(Footnote omitted.)

and:

46.    When rostered on a shopping shift, the workers commence at 7.00am. The work is “labour intensive”, loading and stacking crates, … “consolidating customer orders in the Online Room within the physical store in preparation for delivery”. …

(Footnotes omitted.)

and:

52.    Even where CSAs … 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.

(Footnote omitted.)

8    The primary judge was, accordingly, satisfied that the driving and delivery function was the central and critical role of a Customer Service Agent (“CSA”). However, in further findings to which we will refer in due course, the primary judge also concluded that those driving and delivery functions did not constitute the full range of duties actually performed, nor the full range of duties for which CSAs were trained and which they could be required to perform.

9    The primary judge accepted that the central and primary functions of CSAs were driving and delivery functions. Thus, the primary judge found:

56.    … The training … 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. …

(Footnote omitted.)

and:

223.    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. …

(Emphasis in original.)

Award coverage and application

10    The FW Act deals separately with the circumstances in which an award “covers” an employer and employees and those in which an award “applies” to an employer and employees.

11    Section 47 of the FW Act states when a modern award “applies to” employment and s 48 states when a modern award “covers” employment. Sections 47(1) and (3) and s 48(1) and (5) provide:

47    When a modern award applies to an employer, employee, organisation or outworker entity

When a modern award applies to an employee, employer, organisation or outworker entity

(1)    A modern award applies to an employee, employer, organisation or outworker entity if:

(a)    the modern award covers the employee, employer, organisation or outworker entity; and

(b)    the modern award is in operation; and

(c)    no other provision of this Act provides, or has the effect, that the modern award does not apply to the employee, employer, organisation or outworker entity.

Note 1:    Section 57 provides that a modern award does not apply to an employee (or to an employer, or an employee organisation, in relation to the employee) in relation to particular employment at a time when an enterprise agreement applies to the employee in relation to that employment.

Note 2:    In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

…

Modern awards apply to employees in relation to particular employment

(3)    A reference in this Act to a modern award applying to an employee is a reference to the award applying to the employee in relation to particular employment.

(Emphasis in original.)

48    When a modern award covers an employer, employee, organisation or outworker entity

When a modern award covers an employee, employer, organisation or outworker entity

(1)    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.

Note:    In a modern award, coverage of an outworker entity must be expressed to relate only to outworker terms: see subsection 143(4).

…

Modern awards cover employees in relation to particular employment

(5)    A reference to a modern award covering an employee is a reference to the award covering the employee in relation to particular employment.

(Emphasis in original.)

12    It is important to note that awards only cover and apply to employees in relation to “particular employment” (s 47(3); s 48(5)).

13    Under the FW Act awards are no longer made in reliance upon the conciliation and arbitration power in s 51(xxxv) of the Constitution, but under other heads of power, principally the corporations power in s 51(xx) of the Constitution (see the Work Choices Case, New South Wales v Commonwealth (2006) 229 CLR 1). As awards no longer depend on specific employer respondency, the possibility exists for overlap in award coverage. Modern awards (the Transport Award and the Retail Award are no exceptions) therefore contain a provision to the following effect:

Where an employer 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.

(Transport Award cl 4.8; Retail Award cl 4.7).

14    Thus, if both the Transport Award and the Retail Award cover Coles in relation to the employment, the award classification which is “most appropriate” to the work of the employees and to the “environment” in which the work is normally performed will be the award classification which covers and applies to that work.

The Transport Award

15    The primary judge decided that the Transport Award did not apply to the employment. That finding was fatal to the case of the TWU. It is challenged on the present appeal and represents the starting point in the analysis.

16    Clause 4.1 of the Transport Award provides:

4.1    This industry award covers employers throughout Australia in the road transport and distribution industry and their employees in the classifications listed in clause 15 – Classifications and minimum wage rates to the exclusion of any other modern award.

17    The “road transport and distribution industry” is defined by cl 3 of the Transport Award (relevantly here) as follows:

road transport and distribution industry means:

(a)    the transport by road of goods, wares, merchandise, material or anything whatsoever whether in its raw state or natural state, wholly or partly manufactured state or of a solid or liquid or gaseous nature or otherwise, and/or livestock, including where the work performed is ancillary to the principal business, undertaking or industry of the employer;

…

(Emphasis added.)

18    The classification in Schedule C of the Transport Award which was said to be apposite to the employment of CSAs was Transport Worker Grade 2, which incorporated the classification of:

Driver of a rigid vehicle (including a motor cycle) not exceeding 4.5 tonnes gross vehicle mass (GVM)

19    The primary judge correctly acknowledged that:

155.    … The enterprise of an employer can have more than one character and be in more than one industry. …

20    The primary judge recorded:

151.    I accept on the evidence that the Coles Online business involves “the transport by road of goods [etc]”. …

and:

153.    Coles acknowledges that the transport function might be ancillary to the business of Coles for the purposes of the coverage clause of the Road Transport Award …

but went on to decide that Coles was not covered by the Transport Award because the “substantial character” of its business was not transport but selling supermarket products to retail customers.

21    The “substantial character” test is one which was developed and expressed by the High Court in relation to union eligibility rules (see R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 at 135; Re Federated Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (1976) 51 ALJR 266 at 268-9; R v Moore; Ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470 at 484-5). In our view, the “substantial character” test was not the appropriate test for deciding whether the Transport Award applied.

22    The test that should be applied is to discern the objective meaning of the words used bearing in mind the context in which they appear and the purpose they are intended to serve. Here, the definition in question expressly extended to work ancillary to the principal business. That was the true question for examination.

23    The employment in question fell comfortably within the road transport and distribution industry as defined by cl 3 of the Transport Award, and therefore within the coverage of the Transport Award stated in cl 4. The work in question was transport of the requisite kind and was ancillary to the principal business of Coles.

24    We are satisfied therefore that the TWU succeeds in its first challenge on the appeal.

The Retail Award

25    Although the finding by the primary judge that the Transport Award did not apply to the employment was fatal to the TWU case, his Honour very appropriately went on to consider the other elements of that case, and Coles’ response to it.

26    The primary judge examined the terms and operation of the Retail Award and concluded that it covered the employment. He then concluded that a classification in that Award was, in any event, a more appropriate classification than the relevant classification in the Transport Award so that even if the Transport Award had covered the employment it would not in the end cover the particular work in question. Those findings are challenged on the appeal.

27    Clause 4.1 of the Retail Award provides (relevantly here):

4.1    This industry award covers employers throughout Australia in the general retail industry and their employees in the classifications listed in clause 16—Classifications to the exclusion of any other modern award. …

28    Clause 3 of the Retail Award defines “general retail industry”, in part, as follows:

general retail industry means the sale … of goods or services to final consumers for personal or household consumption including:

•    food retailing, supermarkets, grocery stores;

…

(There are further inclusions, and exceptions, which do not require attention here).

29    The classifications to which cl 4.1 refers are to be understood by reference to a detailed explanation of the duties and roles performed within particular classifications which is set out in Schedule B. Schedule B provides that a “Retail Employee Level 1” is:

B.1.1    An employee performing one or more of the following functions at a retail establishment:

…

•    the wrapping or packing of goods for despatch and the despatch of goods;

•    the delivery of goods;

…

•    work which is incidental to or in connection with any of the above.

…

B.1.3    Indicative job titles which are usually within the definition of a Retail Employee Level 1 are:

…

•    Driver,

…

•    Trolley Collector,

…

•    Door-to-door Salesperson, and,

…

30    We have included the job titles of “Trolley Collector” and “Door-to-door Salesperson” to deal with one argument advanced by the TWU. The TWU argued that it was intended that the work of a Retail Employee Level 1 be performed either “within the four walls” of a shop or, at least “at” a retail establishment. In our view, the first proposition may be dismissed by reference to the three job titles above. Equally, it is clear that not all work must be physically performed at a retail establishment. It is sufficient if a retail establishment is the base or location of the employment, even if work is performed away from the retail establishment – e.g. driver and door-to-door salesperson. CSAs start and finish at a retail establishment. They are based at a retail establishment. They make deliveries from the retail establishment. The primary judge was correct to find that the employment was covered by the Retail Award.

31    The primary judge was also correct to find that, if the Transport Award had covered the employment, the more appropriate classification was Retail Employee Level 1 under the Retail Award and not Transport Worker Grade 2 under the Transport Award, for the reasons which were given by the primary judge, and to which we refer hereunder.

32    The primary judge found that CSAs were trained in a range of tasks and may be required from time to time to carry out tasks other than driving or delivery on either an ad hoc or a rostered basis.

33    The findings include the following:

76.    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. …

(Footnote omitted.)

(“personal shopping” is essentially picking and packing for delivery)

82.    All CSAs are trained to perform personal shopping duties, and can be required to perform them as part of the CSA role as required. …

(Footnote omitted.)

and:

84.    In addition to delivery duties and personal shopping duties, some CSAs … also perform general duties in the stores. These duties may include stacking collapsible crates in the Online Room of the store; consolidating orders in the Online Room; loading “dollies” with consolidated orders in the Online Room of the store in preparation for the next delivery run; looking for missing items in the back store room; general cleaning in the store room or other areas of the store; preparing paperwork in advance of the next delivery run; washing vans; returning groceries back to store shelves; putting away shopped orders into the various temperature controlled zones within the store; shelf restocking; and trolley collection. CSAs also assisted in stocktake duties performed every six months. These duties involved counting the stock on shelves, marking stock and entering information onto a computer.

(Footnotes omitted.)

34    When the primary judge turned to examine the question of whether Transport Worker Grade 2 or Retail Employee Level 1 was the more appropriate award classification his Honour was influenced by the fact that the latter classification appeared to be a more comprehensive match with the work of CSAs than the former. His Honour said:

229.    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. 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. …

(Footnote omitted.)

and:

231.    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”.

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

(Footnote omitted.) (Emphasis in original.)

35    We are unable to fault this approach. It appears to us that the primary judge applied himself diligently to the comparison and evaluation which was required. On the facts found by the primary judge we would reach the same conclusion.

36    The related conclusions that the Retail Award applied to the employment, and that the classification of Retail Employee Level 1 was a more appropriate classification than Transport Worker Grade 2, provided a further reason for the primary judge to conclude that the TWU case should be dismissed. Our agreement with those conclusions means that the appeal must be dismissed and we will so order.

37    Nevertheless, we propose in deference to the parties’ arguments to give brief attention to the Notice of Contention.

The Notice of Contention

38    As we earlier recorded, the primary judge rejected arguments by Coles that either the 2008 EBA or the 2011 EBA applied to the employment. By its Notice of Contention, Coles sought to challenge those findings.

39    In Kucks v CSR Ltd (1996) 66 IR 182 (“Kucks”), Madgwick J said (in a passage, the first part of which is frequently quoted, but the second part less so):

Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

40    Although those observations were made in relation to the construction of awards they have been treated as a useful statement about the construction also of industrial agreements. They remain relevant in that context provided that the construction of “agreements” made and certified under the FW Act does not become diverted by any assumption (which might once have been justified when industrial agreements were entirely consensual – and made between employers and unions) that they should be treated as a form of bargain between agreeing parties. As a Full Court pointed out recently in Toyota Motor Corporation Australia Limited v Marmara [2014] FCAFC 84:

88    … Under the FW Act, an enterprise agreement is an agreement in name only. Those who, by s 172(2), are empowered to “make” an enterprise agreement are the employer and “the employees who are employed at the time the agreement is made and who will be covered by the agreement”. A contract lawyer would assume that those persons would be parties to the agreement, and that the assent of all of them would be necessary for the agreement to be “made”. But the lawyer would be wrong on both counts. The FW Act does not identify the employer, or any employee, as a “party” to an enterprise agreement. Further, notwithstanding the specific empowering terms of s 172, it is not necessary for all the employees who are employed at the time an agreement is made and who will be covered by the agreement to assent to the terms of the agreement. Once a majority of those employees have agreed by voting, the agreement must be sent to the Commission for approval and, if approved, thenceforth applies to all the employees in the relevant group, even those who did not agree, and even those, subsequently taken into employment, who were not part of the relevant group at the time the vote was taken under s 182.

89    In his reasons, the primary Judge said that “Toyota contended and it was not disputed, that an enterprise agreement made under the FW Act is a form of delegated legislation”. … However, although the FW Act provides that an enterprise agreement is “made” otherwise than by the Commission, the Act does more than merely impose conditions upon, and give additional legal effect to, an agreement made between private parties. The effect of the legislation is to empower the employer and the relevant majority of its employees to specify terms which will apply to the employment of all employees in the area of work concerned. The legal efficacy of those terms will arise under statute, not contract, and, as mentioned above, will be felt also by those who did not agree to them. Someone, such as an employee subsequently taken on, who had nothing to do with the choice of the terms or the making of the agreement, will be exposed to penal consequences under s 50 if he or she should happen to contravene one of the terms. When viewed in this way, it is not difficult to share in the perception that an enterprise agreement approved under the FW Act has a legislative character.

41    It is in accordance with those circumstances, and authority binding on this Court, to bear steadily in mind the second element of the passage quoted above from Kucks.

42    In Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241, the High Court dealt with the proper approach to the construction of an industrial agreement, made under the previous statutory arrangements, between an employer and two unions. Gleeson CJ and McHugh J said:

2    The resolution of the issue turns upon the language of the particular agreement, understood in the light of its industrial context and purpose, …

43    Gummow, Hayne and Heydon JJ emphasised that a contentious provision of the agreement could be properly construed only if:

50    … due account is taken of each of the matters we have mentioned: the other provisions found in cl 55 and elsewhere in the Agreement, and the matters of legislative background to which we have referred.

44    Kirby J said:

66    … In the interpretation of the Constitution and of legislation, Australian courts have passed beyond the age of the magnifying glass. No longer do courts (or industrial tribunals) seek to give meaning to contested language considered in isolation from the context in which the words are used and the purpose for which the words were apparently chosen. Nowadays, the same insistence on context, as well as text, permeates the approach to interpretation that is taken to legally binding agreements . Indeed, before this approach became normal in the courts, in the interpretation of contested instruments it was often the approach adopted for the construction of industrial texts. This was in keeping with an inclination of such tribunals towards practical, as distinct from purely verbal, constructions in that area of the law’s operation.

67    In the present case, the Union’s submission was that these generalities were all very well, but that in the end, the Court had to give effect to the language of the Agreement. Clearly, this is correct. Interpretation is always a text-based activity. …

(Footnotes omitted.)

45    In the search for an objective intention arising from the language used in an instrument of the present kind (i.e. 2008 EBA and 2011 EBA) it is relevant to bear in mind the context in which the instrument came into existence. In some cases that context might show that a particular construction or operation was unlikely to have been intended.

46    In the present case, Coles stressed that industrial agreements and other instruments may legitimately extend and apply to new fact situations, relying on observations of Gibbs CJ in R v Isaac; Ex parte Transport Workers’ Union of Australia (1985) 159 CLR 323 (“Isaac”) at 331. In the passage from Isaac upon which Coles relied, (which canvassed the proper construction of a union rule) Gibbs CJ emphasised the primacy of “the ordinary meaning of the words of the rule”. However, giving primacy to the text does not deny the importance of understanding the context in which an instrument is made, and which it is intended to address, nor the utility of bearing in mind the facts as they are known at the time the instrument is drafted.

47    The 2008 EBA was made between Coles and two unions. It provided in cl 1.6.1:

1.6.1    This Agreement shall be binding upon Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited, (“the Company”) and the Shop, Distributive and Allied Employees’ Association (“the Union”) in respect of all classifications in this Agreement whether members of the Union or not.

48    The classification claimed by Coles to embrace the work of CSAs was “Service Assistant” which was defined as follows:

(o)    “Service Assistant” shall mean a permanent team member engaged to perform a range of duties associated with operation of a store, including:

–    customer service and assistance;

–    trolley collection;

–    operation of “Point of Sale” terminals;

–    preparation for sale of fresh foods and merchandise;

–    stock replenishment;

–    general cleaning in accordance with normal position requirements but not including cleaning of toilets, window exteriors, or washing of floors, except for the removal of occasional spillages;

–    receipt and storage of stock and produce;

–    other general store duties;

–    incidental clerical and administrative duties on a needs basis;

–    merchandising, point of sale duties;

–    floor walking;

–    food preparation/cooking;

–    preparation, presentation and maintenance of floral arrangements.

49    It will be noted that there is no reference to driving or delivery. At the time the 2008 EBA was made Coles contracted drivers and delivery work to Linfox. CSAs were not employed until 2010.

50    The primary judge analysed Coles’ contention, that the 2008 EBA applied in terms to the employment and work of CSAs, as follows:

182.    The classifications are outlined in clause 4.1, and the classification relied upon by Coles is that of “Service Assistant”. The key to the classification is the description of “a team member engaged to perform a range of duties associated with operation of a store”, including a list of activities then set out including floor walking, stock replenishment, preparation, presentation and maintenance of floral arrangements, preparation for sale of fresh foods and merchandise, and otherwise customer service and assistance, operation of “Point of Sales” terminals, and other general store duties.

183.    It strains the language of the instrument to bring the work of CSAs within the classification. While there is ambiguity, I am inclined to the view from the language used that the intention of the classification of “Service Assistant” is to capture employees performing duties within a store, not someone working outside a store undertaking deliveries. However, the primary function of CSAs is in a general sense to undertake duties “associated with the operation of a store”. The primary function and major and substantial employment of CSAs is to load and drive a truck and deliver goods to customers who have placed orders through the Coles Online website. It is possible but unattractive to construe the classification of “Service Assistant” in the 2008 EBA as applying to persons subsequently employed as CSAs.

184.    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.

185.    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.

(Footnote omitted.)

51    We see no error in this analysis and we would not have been prepared to interfere with it if we had been required to decide this issue.

52    The position about the 2011 EBA is even clearer, even though by the time it was made the employment of CSAs had commenced.

53    The 2011 EBA was negotiated between Coles and three unions. Clause 1.4.1 provided:

1.4.1    This Agreement shall be binding upon Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited, (“the Company”) and the Shop, Distributive and Allied Employees’ Association (“the Union”) in respect of all classifications in this Agreement whether members of the Union or not.

54    The 2011 EBA was expressed to substitute for the 2008 EBA because cl 1.4.3 provided:

1.4.3    This Agreement shall operate in complete substitution of any Award or Agreement, whether State or Federal, previously covering such team members as are provided for within the classifications contained herein.

55    However, under the FW Act the terms of the 2011 EBA were required to be notified to employees who would be covered by it (FW Act, ss 173, 180) – those employees were entitled to vote and a majority of valid approving votes were required (FW Act, ss 181, 182).

56    Owing to disagreement with the TWU about whether CSAs should be covered by the 2011 EBA, Coles did not initially intend that they should be covered by it and they were given no chance to vote for (or against) its approval. Later, Coles came to the view that the terms of the 2011 EBA applied to CSAs but it was accepted in argument on the appeal that, if that belief was correct, the CSAs were denied their right to vote. The 2011 EBA would be invalid in that circumstance. That would leave the 2008 EBA in operation. We do not need to explore this issue further because we do not accept that the terms of the 2011 EBA apply to the employment or work of CSAs.

57    The classification in the 2011 EBA which was said by Coles to apply to CSAs was “Store Team Member”. That position is defined in identical terms to “Service Assistant” under the 2008 EBA as follows:

(i)    “Store Team Member” shall mean a team member engaged to perform a range of duties associated with operation of a store, including:

–    Customer service and assistance;

–    Trolley collection;

–    Operation of “Point of Sale” terminals;

–    Preparation for sale of fresh foods and merchandise;

–    Stock replenishment;

–    General cleaning in accordance with normal position requirements but not including cleaning of toilets, window exteriors, or washing of floors, except for the removal of occasional spillages;

–    Receipt and storage of stock and produce;

–    Other general store duties;

–    Incidental clerical and administrative duties on a needs basis;

–    Merchandising, point of sale duties;

–    Floor walking;

–    Food preparation/cooking;

–    Preparation, presentation and maintenance of floral arrangements.

58    Leaving aside that element of the reasoning of the primary judge set out earlier which brought to account the fact that CSAs were not employed by Coles in 2008, the reasons given by the primary judge for finding that the 2008 EBA did not cover the employment and work of CSAs apply with equal force to the terms of the 2011 EBA, although an opposite conclusion would take the matter nowhere.

59    If it was necessary to do so we would dismiss the Notice of Contention.

Orders

60    The appeal will be dismissed.

Associate:

Dated:    3 November 2014