Abstract
This paper examines the modern award application made in April 2021 by Menulog Pty Ltd., an app-based food-delivery platform, and charters the subsequent process which was handled by the Fair Work Commission, Australia's main industrial relations tribunal. This, ultimately unsuccessful, application for a new modern award was part of an organisational strategy that would have seen Menulog treat its delivery workers as employees rather than contractors, thereby deviating from established norms in this part of the gig economy. By invoking this rarely used provision of the Fair Work Act 2009, the platform set in motion an institutional process that would have led to gig work becoming part of the Australian industrial relations systems. In the paper, we analyse and contextualise the progression of Menulog's application using a qualitative socio-legal documentary analysis, drawing upon institutional work as our theoretical lens. We contribute to pluralist industrial relations debates by highlighting the challenges that industrial relations systems and actors face in bringing neoliberalising work practices like gig work into the fold. Moreover, we show how the actions of incumbent actors and the statutory responsibilities of the Fair Work Commission shaped the process and contributed to a largely unsatisfactory outcome for all involved.
Introduction
The preference of app-based platform firms (De Stefano, 2016) to engage workers as independent contractors rather than employees is a long-standing issue of contention in Australia (Forsyth, 2020) and overseas (Bogg, 2019). The contractor classification, which side-steps employment regulation, has been fundamental to platforms’ growth (Healy et al., 2017). In Australia's ridesharing and food-delivery industries, the contractor classification has withstood legal challenges (Fair Work Commission, 2018a, 2018b, 2020b, 2022b) – establishing contracting as a norm of gig work. In 2021, Menulog Pty Ltd. (Menulog) attempted to deviate from this norm by applying for the creation of a new modern award, a rarely used provision of the Fair Work Act 2009 (Cth) (FW Act). The application was part of an organisational strategy to engage the platform's workers as employees, but only on newly created terms rather than complying with a pre-existing modern award.
Menulog's application would have brought gig work, which simultaneously has made work more precarious and market-regulated, into the more socially protected domain of employment. Moreover, the platform's attempt to expand Australia's modern award system would, if it had been brought into effect, marked a radical change to this foundational feature of the Australian industrial relations system. Since the start of the Fair Work regime, the modern award system has been tightly managed by the Fair Work Commission (referred to as ‘the Commission’ and ‘FWC' below) with limited change. Award modernisation commenced in 2008 under the FWC's predecessor, the Australian Industrial Relations Commission, and replaced hundreds of state and federal multi-employer and enterprise awards with a national workplace relations system of 121 modern awards (Giudice, 2011; Stewart and Bray, 2020b) – which were reviewed on a 4-yearly basis up to 2018 (Rawling and Schofield-Georgeson, 2019). While the FW Act contains a provision that enables the Commission to create new modern awards (s157), the number of awards in the system has not been expanded. Instead, where gaps in coverage were identified, the preference of the Commission has been to extent the coverage of existing awards (Fair Work Commission, 2023: 44–51). As such, Menulog's application was not just about defying norms within the gig economy, but also instigating institutional change. As a result, the case provides an opportunity to examine the processes by which industrial relations institutions are changed or maintained within a pluralist paradigm.
In Australia, the institutional settings which primarily regulate employment are set by the Commonwealth and underpinned by the FW Act. The FW Act, building upon Australia's history of compulsory conciliation and arbitration (Dabscheck, 2001; Macintyre and Isaac, 2004; Stewart, 2011), provides the Commission with a leading role. One of the Commission's core functions is to oversee a layered system of work rules (Bray and Waring, 2005; Stewart and Bray, 2020a) that form a baseline of standards, drawn from National Employment Standards and modern awards. Gig platforms have largely avoided coverage by Australia's industrial relations regulatory system by classifying workers as contractors (Goods et al., 2019; Walker, 2021), not employees, thus circumscribing workers from employment protections. This circumvention of employment regulation, where gig workers are not entitled to the same minimum standards as employees such as minimum wages and protections from unfair dismissal, results in a cost saving for platforms (Barratt et al., 2020) and the neoliberalisation of work relations (Heery, 2016), where market forces, rather than social regulation, regulate work relations.
Contemporary debates around pluralism in industrial relations have deviated significantly since the mid-twentieth century, moving from problems of labour integration to investigating problems for labour created by increasingly neoliberal labour markets and regulation (Heery, 2016: 4), and ‘attempts to defend (and where possible extend) systems of labour market regulation from neoliberalism's corrosive force’. Gig work represents a new form of neoliberalising industrial relations (Cooper and Ellem, 2008), meaning Menulog's application provides an opportunity to examine how Australia's industrial relations system adapts to this change. Menulog's application is effectively operating in a liminal space, expanding neoliberalism to corrode the award system or expanding the award system to regulate neoliberalised work.
In this paper, we study Menulog's application through the theoretical frame of ‘institutional work’ (Lawrence et al., 2011), which is ‘the purposive actions of individuals and organisations aimed at creating, maintaining and disrupting institutions’ (Lawrence and Suddaby, 2006: 215). Institutional work's origins lie in neo-institutional debates and is part of a wider debate about the agency of actors surrounding institutional configurations, adaptions and re-configurations (Lawrence et al., 2011, 2013; Lawrence and Suddaby, 2006). In this case, Menulog, as an industrial relations actor and the main protagonist, sought to disrupt the norm of using contracting arrangements for gig work, and set out to bring this work back into the domain of employment. However, rather than adhering to existing structures in the form of the modern awards system, the company attempted to re-regulate rulemaking by creating a new modern award (an act of institutional work) with favourable rules which were unavailable to incumbent employers (e.g., in the transport industry). Menulog argued that these rules were necessary to compete with its rivals (such as Uber Eats) who rely upon contracting arrangements, and therefore do not need to abide by minimum employment standards. As will be shown, if Menulog's application would have been successful, it would have led to a downgrading of existing employment standards. Menulog's application instigated a process that prompted institutional work by other actors (including employer organisations and a trade union) who largely sought to stymie this disruption by opposing the institutional re-configuration.
We contribute to pluralist industrial relations scholarship by highlighting how institutional work helps explain how industrial relations systems adapt to neoliberalising work practices, and the extent to which these practices can be governed through preexisting arrangements (Heery, 2016). In this case, the gig economy had largely circumvented the industrial relations system, and in doing so challenged the system's ability to regulate this kind of work. By analysing the Fair Work Commission process in considering Menulog's application, we demonstrate that a system's capacity to do so depends on its design, the behaviours and interests of incumbent actors and broader competitive market dynamics. Moreover, we contribute to the institutional work literature by unpacking how institutional work plays out at the level of societal, formal institutions, in particular institutions related labour market regulation, which is an understudied level of aggregation (Hampel et al., 2017)
To better understand Menulog's application and why this case matters theoretically, we ask: How did the application process unfold? How, from an institutional work perspective, can we make sense of Menulog's application for the ‘On-Demand Delivery Services Award’ and how did incumbent actors respond to the application? What lessons can we learn about the adaptability of Australia's industrial relations rulemaking institutions?
To answer our research questions, we first introduce the theoretical lens used to analyse the actions and intentions of Menulog and other institutional actors. We briefly explain the socio-legal methodological approach used. In our findings, we detail how Menulog's On-Demand Delivery Services Award application unfolded, unpack the key issues at play, examine how incumbent actors responded to the application, and assess the role of the Fair Work Commission in managing the process. This is followed by a discussion and brief conclusion.
Theoretical lens
Industrial relations scholarship has a longstanding interest in the institutional arrangements that govern work (Dunlop, 1958; Webb and Webb, 1897) alongside the legislative and regulatory reforms which reconfigure them (Forsyth and McCrystal, 2023; Thelen, 2009). Here we define institutions as the ‘cognitive schema, normative guidance, and rules that constrain and empower social behaviour’ (Scott, 2008: 429), where non-conformity carries costs (Lawrence et al., 2011: 53) and apply it to the formal, national-level institutions governing work in Australia.
Since the mid-twentieth century, pluralism has been central to understanding industrial relations institutions. When introduced in Britain, industrial relations institutions adopted and supported pluralism to resolve problems of order, exchanging improved conditions and partial industrial democracy for relative industrial peace (Heery, 2016). However, as work relations neoliberalised, pluralist industrial relations shifted focus to ‘disorderly markets rather than disorderly workers’ (Heery, 2016: 4), examining the consequences of neoliberalised labour markets, such as increasing precarity or declining job quality (Cooper and Ellem, 2008; Godard, 2004). The gig economy represents a new form of neoliberalised work relations. In Australia, as well as many other developed market economies, gig workers this form of work does not receive employment protections (Stewart and Stanford, 2017). This situation reflects the largely successful, though by no means linear or uncontested, institutional entrepreneurship that food-delivery platforms in Australia engaged in (Veen et al., 2025). Despite some state governments attempting to improve the safety of food-delivery work through modest workplace health and safety initiatives and reforms (Bluff et al., 2023), work in this segment of the gig economy continues to see workers placed in market competition with each other, with no price floor and the transfer of most (non-WHS) work-related risks onto individual workers.
The form and consequences of institutional change are central to industrial relations scholarship, exemplified by enduring debates over the extent to which industrial relations systems have (or have not) converged over time (Howell and Givan, 2011; Kerr et al., 1960). While attention has been focused on the state's institutional role in generating change, non-state actors have been somewhat overlooked (for a notable exception, see Gooderham et al., 2014; Hyman, 2015). Cynically, Cradden (2014: 9) explains how when acting instrumentally, industrial relations actors’ aims are ‘to justify change to policies … that have become inconvenient … [or] to preserve unchanged that what serves their interest’. This underscores the capacity of industrial relations actors to engage in the process of rulemaking, engagement with the rules themselves, and by exercising influence within regulatory spaces (Gansemans et al., 2021; Kaine, 2016).
To explain how actors promote or resist institutional change we turn to neo-institutionalism. This approach gives primacy to actors’ agency, centring on the process of institutionalisation (DiMaggio, 1988), the ‘institutional work’ of actors (Lawrence et al., 2011; Lawrence and Suddaby, 2006), and the ability of actors to assume the role of ‘institutional entrepreneurs’ (Crouch, 2005; Pelzer et al., 2019). Institutional entrepreneurs break existing norms by attempting to establish new institutional orders (Battilana et al., 2009). Gig economy platforms do not merely diffuse technology, but ‘actively challeng[e] and creat[e] institutions in a way that an innovation becomes legitimate’ (Pelzer et al., 2019: 2). This has included aggressive litigation strategies, lobbying of policymakers, as well as the discursive mobilisation of consumers to create new institutional norms (Culpepper and Thelen, 2020; Witt et al., 2015).
The applicability of neo-institutionalism to Australian industrial relations prompts the recollection of significant historical cases. Persistent undercurrents of institutional work underpin legislative reforms, see certain matters brought before the Commission, have actors appear in test cases and the everyday activities that make up the broader system. However, this is brought into its starkest relief in cases where institutional work intends to transform industrial relations institutions, often deviating radically and swiftly from pre-existing norms, including the Robe River dispute, where the employer sought remedy through the judicial rather than conciliation system (Copeman, 1987), the Hamersley Iron dispute around closed shops (Thompson, 1987), and the Patricks dispute which saw the replacement of a unionised labour force with non-union workers (Dabscheck, 2000). These cases shifted institutional norms, with considerable expenditure of resources to achieve these aims. The application of an institutional entrepreneurship can be applied post-hoc to these disputes, while their legacy continues to shape rulemaking at work in Australia.
A problem with the institutional entrepreneurship literature, however, is its bias towards successful transformations, overlooking attempts which incur costs but do not result in (radical) institutional reconfiguration (Lawrence and Suddaby, 2006). Menulog's application, which was ultimately unable to secure the creation of a new modern award, draws our attention to the need to engage with institutional changemaking as a process that involves and affects other actors, who in turn may support or oppose attempts at institutional entrepreneurship.
Drawing upon institutional work allows us to unpack Menulog's attempt to reconfigure the industrial relations system. In doing so we show how actors seek to maintain or disrupt existing institutions while revealing responses of other (incumbent and institutional) actors to these attempts (Lawrence and Suddaby, 2006). Institutional work is premised on the notion of structuration (Giddens, 1984) and views institutional changemaking as a process, highlighting the presumed ‘intentionality’ and ‘effort’ of actors attempting to change institutions and other parties who may act in support or opposition to change (Lawrence et al., 2011). In pluralistic industrial relations research, this theoretical positioning reaffirms industrial relations actors’ agency in creating, disrupting, or reconfiguring institutional arrangements (Kochan et al., 1986; Walton et al., 1994).
Institutional work considers the ways in which individuals or organisations seek to shape institutional configurations, proactively or reactively, in pursuit of change or maintenance (Lawrence and Suddaby, 2006: 215). While industrial relations research tends to privilege collective actions and perspectives over individual ones (Wright, 2014), both are significant for institutional change (for a detailed discussion, see e.g., Lawrence et al., 2011: 53–55). As Lawrence et al. (2011: 55) argue, individuals play an important role in changing ‘institutions both as parts of and alongside social movements’. In Australia, some individuals, for instance, leaders of businesses or trade unions have had an outsized influence on institutional re-configurations. Individual workers, through their actions, can also influence or trigger a change to institutional arrangements. In the extreme, we have seen individual employees fundamentally altering employer obligations around workplace stress through litigation (Kozarov v State of Victoria [2022] HCA 12). Others managed to set in motion a series of events that led to the abolition of closed shop arrangements in the Western Australian mining industry (Ellem, 2017), highlighting the interrelatedness between individual and organisational choices and their implications for the institution. Here we predominantly focus on the actions of Menulog and the responses of other relevant actors within the Australian regulatory systems at the organisational level.
Institutional work helps us to better describe and capture the ‘process’ of changing or sustaining a system of pluralist industrial relations. In the Australian system, trade unions and employer organisations, as registered organisations under the Fair Work (Registered Organisations) Act 2009, maintain or challenge institutional arrangements. There is a long-standing history of unions, for instance, effecting change through major test cases (Gahan, 1996), which have led to gradual institutional reform (Thelen, 2009). Equally, the Commission, by performing its statutory tasks, upholds and maintains the existing institutional arrangements, but when given limited levels of statutory discretion (Boughey and Carter, 2022; Ross AO, 2016) the Commission can influence the trajectory of institutional change.
In this study, we focus on the modern award application made by Menulog, which was an act of institutional work and an attempt at institutional entrepreneurship, since the organisation wanted to create institutional change – bringing neoliberalised gig work into the Australian industrial relations systems. By using institutional work as our theoretical lens, we are better able to trace and unpack the subsequent process, managed by the Fair Work Commission, which also invoked institutional work from other, incumbent industrial relations actors. In the next section, we first outline our research methods and how we studied the application process.
Methodology
This single-case study (Yin, 2013) uses a qualitative socio-legal documentary analysis method (Mitchell and Fetter, 2003; Veen et al., 2022; Wright and Clibborn, 2019). To analyse Menulog's application we analysed publicly available documents that related to the various aspects of the case, including Menulog's application, Fair Work Commission (interim) decisions, statements, background papers and correspondence and interested parties’ (including employer organisations and union) notes, submissions, questions, and correspondence. Moreover, we considered public (media) statements of interested parties, media coverage, as well as relevant (publicly available) organisational documents. Being a case study, where the separation of context and phenomenon is difficult, the analysis is grounded in the broader development and regulation of the gig economy in Australia.
The findings are based on documentary analysis (Berg, 2009; Bowen, 2009), which proceed based on two themes, firstly parties’ statements about which rules should apply and what the rules should be for Menulog's delivery couriers as employees, and secondly which actors promoted or opposed various positions. A research assistant created a timeline and collated all publicly available documentation. This helped the authors analyse the (evolving) positions of interested parties. The research assistant also compared the terms of Menulog's proposed modern award against the other modern awards under consideration, namely, the Fast Food Industry (FFI) Award (Fair Work Commission, 2020a), the Road Transport and Distribution (RTD) Award (Fair Work Commission, 2020d), and the Miscellaneous Award (Fair Work Commission, 2020c), which was used for Menulog's employment pilot (discussed below). This approach is appropriate for the analysis of institutional work, as it simultaneously charts the attempted changes to the institutional environment and the responses of affected parties, capturing support or resistance. We used these documents to assess the application process, the interests of different actors, and to make sense of the outcomes.
In unpacking the application, we identify points of contention as to how current regulations might apply to gig work, but also how gig work spills over into the non-gig economy. In doing so, we consider the commercial realities of platform work, Menulog's competitors and how re-regulation of gig work would influence the current work practices of on-demand food-delivery platform contractors, employees, and other workers.
The institutional and industry context of Menulog's application
Menulog and the context of the Australian food-delivery sector
The gig economy is composed of online labour platforms who, as market makers, match consumers with workers, the work is commonly remunerated on a piece-rate basis (Barratt et al., 2020). Paying piece rates without breaching employment laws is possible due to workers’ independent contractor classification, arrangements preferred by most platforms (e.g., Uber, 2023). This has a neoliberalising effect on labour markets, sidestepping the industrial relations system and placing workers in price competition (Goods et al., 2019).
The on-demand food-delivery industry sees multiple platforms offer similar services, with labour costs being a major expense (Richardson, 2020). Within the industry most platforms are ‘three-sided’, matching consumers, restaurants and workers and are digital labour intermediaries (Barratt et al., 2020), while ‘two-sided’ food-delivery platforms match consumers to restaurants, with the restaurants responsible for deliveries.
In Australia, on-demand food-delivery grew to prominence through the second half of the 2010s, with the industry being worth an estimated $1.3 billion by revenue in 2023 (IbisWorld, 2024). Uber Eats, Menulog and DoorDash dominate market share. Menulog launched in Australia in 2006 as a ‘two-sided’ platform, and currently represents a hybrid model, engaging in both ‘three-sided’ and ‘two-sided’ market making. In 2018, the company started engaging couriers as independent contractors.
The industry has come under increased regulatory scrutiny (e.g., Industrial Relations Victoria, 2020) due to working standards (Workplace Express, 2021) and multiple worker deaths (Oom et al., 2021), which have been connected to the use of the contractor model (Goods et al., 2019). Platforms’ reliance on piece rates has been attributed to unsafe work practices, with food-delivery riders incentivised to perform deliveries as quickly as possible to maximise their income – whereby some, including the Transport Workers’ Union (TWU), have pointed out that the earning potential of these workers frequently falls below Australia's minimum wage for employees (Mahwinney et al., 2023).
The institutional landscape
Modern awards, the focus of this paper, under the FW Act, set minimum standards for employees on an industry, sectoral or occupational basis (Bray and Macneil, 2011; Stewart and Bray, 2020b), with their demarcations a product of historical trajectories as well as representing various industrial relations actors’ relative power and strategic choices (Fells, 1993). Their ‘coverage’, that is which award applies to which industry and organisations, is determined by the Commission. Coverage can, and often has been, contentious with demarcation disputes a longstanding feature of the Australian system (Isaac and McCallum, 1991).
Menulog's application was made in an industrial landscape with long-established norms around employment (Lansbury et al., 2007), and more recently established norms around gig work (Munton, 2022). In Australia, employment has historically been regulated either directly or indirectly through the award system, which alongside the national employment standards provides a baseline of terms and conditions for employees (Peetz, 2019; Stewart and Bray, 2020b). Menulog's application to create an On-Demand Delivery Services Modern Award (Menulog Pty Ltd, 2021a) goes against a decades-long trend which has seen the number of awards decrease (Stewart and Bray, 2020b), with awards having been ‘restructured’, ‘rationalised’, ‘simplified’ and ‘modernised’ since the 1980s (Macintyre and Isaac, 2004; Stewart and Bray, 2020b).
Gig platforms, both in Australia and globally, have presented themselves as disruptors of both labour and product markets. In Australia, the legal status of food-delivery workers has been highly contentious. Food-delivery work retains many elements historically associated with employment (Veen et al., 2020), resulting in the contractor classification being challenged by workers, trade unions, and labour activists (Forsyth, 2020; Minas and French). For instance, the TWU has supported legal cases of food-delivery workers who were terminated by platforms in the Commission (Fair Work Commission, 2017, 2018a, 2018b, 2021a; Fair Work Ombudsman, 2018) and the courts (Prosser, 2020). However, the Commission and judiciary, whose rules pre-date gig work, have largely upheld the contracting model (Munton, 2022), effectively establishing a new institutional norm. Notable exceptions were the adverse finding against Foodora (Fair Work Commission, 2018a), and Diego Franco's unfair dismissal application (Fair Work Commission, 2021a) which was initially upheld but overturned on appeal (Fair Work Commission, 2022b) – further affirming the legitimacy of the contractor model and entrenching the contractor model as a new institutional norm.
Application
In April 2021, Menulog's managing director told the Senate Select Committee on Job Insecurity ‘we have decided to work in the direction of an employment model (emphasis added)’ (Bellingen, 2021). The organisation opted for a staggered approach, initiating a pilot which would employ a small number of riders in Sydney under the Miscellaneous Award (Bonyhady and Wright, 2021), reflecting Menulog's parent company's then global strategy to employ couriers (Just Eat Takeaway.com, 2021). Menulog, in announcing the change, argued however that the modern award system was ill-equipped to deal with on-demand app-based food-delivery work: We hope that we can get to a point where we will find an industry award that's much more applicable to our industry. The big caveat in our plan is that we believe that the current modern awards that are out there are not suitable for the industry that we are working in. (Bellingen, 2021)
In June 2021, Menulog invoked the rarely used
1
s157 of the FW Act to request the Commission create the ‘On Demand Delivery Service Award’, contending ‘no operative award covers Menulog’ and accordingly sought to demarcate what activities the putative modern award would cover (Menulog Pty Ltd, 2021a: 5): the collection and delivery of food, beverages, goods or any other item, that are ordered by a consumer from third-party businesses that offer food, goods and other items for sale for immediate collection and delivery on an online or application-based platform, provided that:
(a) the collection and delivery is not of the employer's own food, beverages, goods or other items offered by it for sale; and
(b) the employer is not in the primary business of providing general transport or delivery services at large of food, beverages, goods or any other item that has not been purchased on its online platform.
Menulog requested the Commission state that creating an On-Demand Delivery Services Award was prima facie not contrary to the modern awards objective (s134) and make directions for the making of the proposed award. Under s151(b) of the FW Act, the Commission is obligated to ensure the new award would meet the modern award objectives (s134), providing a ‘fair and relevant minimum safety net of terms and conditions’.
The application set out the terms upon which Menulog's institutional work would be done, in pursuit of a new modern award that would re-regulate employment. Menulog sought new rules which occupied an institutional niche between the pre-existing employment regulation and the contractor model used by Menulog and its competitors.
In response to Menulog's application, the Fair Work Commission Full Bench (FWCFB) (Fair Work Commission, 2021b) in July 2021 issued a Statement, including provisional views and observations, requesting the opinions of interested parties as to whether employees in the proposed on-demand delivery industry were already covered by a modern award, and if so whether that coverage would meet the modern awards objectives or could be altered to do so. The potentially applicable awards were named the FFI Award (Fair Work Commission, 2020a), the RTD Award (Fair Work Commission, 2020d), and the Miscellaneous Award (Fair Work Commission, 2020c). In effect, the Commission asked incumbent actors whether a gig platform seeking to use employment arrangements should use an existing modern award (i.e., defending the status quo) or whether the system should be expanded, effectively inviting them to engage in institutional work. While fulfilling its obligations under the FW Act, the request for input also reflects a form of institutional work on the part of the Commission, with its provisional views and observations (Fair Work Commission, 2021b: at [11], [23], [29], [35], [39], [43] and [47]) shaping the terrain of the argumentation. The Commission, for example, signalled provisional support for Menulog's contention that the FFI Award was inappropriate [at 23], while characterising the Miscellaneous award as inappropriate [at 43] and remaining silent regarding the RTD Award [at 29], suggesting from the outset that the Commission potentially leaned towards institutional maintenance.
The responses from the interested parties
The Commission's request for opinions drew responses from interested parties, including the Victorian Government (2021), Australian Chamber of Commerce and Industry and Australian Business Industrial (2021), National Road Transport Association (2021), Australian Road Transport Industrial Organisation (ARTIO) (2021), Australian Industry Group (Ai Group) (2022), Transport Workers’ Union (TWU) (2021), a research team (Barratt et al., 2021) and a food-delivery driver (Clayton, 2021), whose responses to the threshold questions are presented in Table 1.
Summary of interested parties’ positions.
These responses reveal near-total unity objecting to the creation of a new On-Demand Delivery Services Award. Only Menulog, as the applicant, and the National Road Transit Association favoured a new award, with the latter agreeing that the RTD Award could apply but that a new modern award was warranted given the technological advancement that gig work represents. The other parties thus performed institutional work to resist the change that Menulog's application proposed, defending the existing institutional arrangements. Given that most respondents were registered organisations (employer organisations and trade unions), with long-standing interests and roles within the Australian industrial relations landscape (Macintyre and Isaac, 2004; Plowman, 1989), it appears they were acting instrumentally (Cradden, 2014) to maintain a system that meets their interests.
In response to the submission, the Commission issued a further Statement and Direction in August, expressing support for treating the matter as a threshold issue, namely ‘whether employers and their courier employees in the on-demand delivery services industry are currently covered by a modern award’ (Menulog Pty Ltd, 2021b at [1.2]), which had been advocated by the TWU (Fair Work Commission, 2021c at [10]-[11]). It further issued directions allowing parties to seek further clarification from Menulog, while asking the platform to submit evidence.
On 23 August 2021, Menulog (2021c) released an exposure draft of the proposed On-Demand Delivery Services Award. This draft set out proposed rules including types of employment and classifications, hours of work, wages, allowances, leave, dispute resolution and termination. The differences in the conditions between the proposed On-Demand Delivery-Services Award, the RTD Award and the Miscellaneous Award, as well as the issues Menulog identified with the RTD Award are compared in Table 2.
Comparison of significant terms of relevant awards.
PH = public holidays.
Timeline of the menulog modern award application.
The comparison of Menulog's exposure draft with the existing modern awards reveals the specific re-regulation the platform sought. From a working standards perspective, the terms proposed by Menulog for the On Demand Delivery Services Industry Award reflects a downgrade compared to the FFI Award and the RTD Award. For instance, penalty rates (a premium paid for working unsocial hours) on Sundays would have been reduced from 200% in the RTD Award to 135% of the base rate. Menulog further sought a 30-min minimum engagement period rather than the four hours required under the RTD Award. These reduced conditions would decrease costs and increase Menulog's temporal flexibility. This downgrading in the conditions of employment under Menulog's application should, however, also be considered in relation to its competitors. For instance, Uber Eats and DoorDash, both use independent contracting, meaning none of these worker entitlements apply.
The exposure draft resulted from ongoing discussions between the TWU and Menulog, highlighting that institutional work was also performed outside of the formal Fair Work Commission procedures: That this proposed exposure draft On Demand Delivery Services Industry Award does not identify those parts of the proposed award about which there is consensus, and those parts about which there is not yet consensus, should not be viewed as inconsistent with these assertions of positive and constructive discussions – we’re just not there yet. (Menulog Pty Ltd, 2021c: 1)
Effectively, Menulog attempted to get one of the major actors in this industry, the TWU, to co-author and endorse the proposed institutional change. Highlighting how the platform sought to build coalitions in support of the institutional change.
Following the Commission's (2021c) Statement and Directions, interested parties also had an opportunity to request clarification of Menulog as to coverage, and how the proposed award would operate, again requiring institutional work for all actors. In light of Menulog's response to subsequent questions (Menulog Pty Ltd, 2021b), and the December 6 hearing (2021d), the Commission (2022a) found in late January 2022 that neither the FFI Award nor the Miscellaneous Award applied, but that the RTD Award covered employers and their courier employees in the on-demand delivery services industry. The decision represented a partial defeat for Menulog. While the pursuit of its preferred outcome of a new award had failed, Menulog's actions had also set in motion a process that created the possibility of re-making the RTD Award, which could still create the desired downgrading employment rules via a different rulemaking mechanism.
In April 2022, Menulog detailed where, in its view, the RTD Award was inappropriate for on demand food-delivery, or fulfilling the modern awards objectives, and their view as to how an amended award would vary these conditions (Menulog Pty Ltd, 2022a, 2022b). The issues Menulog identifies with the RTD Award, summarised in the final column of Table 2, help reveal the original reasoning behind Menulog's application, reflecting the difficulty of competing with platforms who eschew employment. These deviations sought narrow coverage for these provisions to workers employed in this type of work and in particular industries. Other changes relate to the work process and specifics of the on-demand food-delivery industry (Goods et al., 2019). For instance, changes in the ordinary working hours would see, in relation to the original award, fewer hours where the employer would pay penalty rates. This has real implications for meeting the modern award objectives as this is fundamental to both working conditions and market competition, where Menulog's competitors are not paying for employment conditions.
These proposed changes were opposed by interested parties, for different reasons but reasons that speak to the pluralist compromise that the status quo represent. The TWU (2022) strongly opposed Menulog's claims that the RTD Award because of the effects on couriers, stating that: The criticisms are, in effect, an attempt by Menulog to extricate itself from the obligations imposed by the RTD Award to pay its courier employees penalty rates and overtime for performing delivery work at un-social hours and on weekends. (p. 1)
Further, the TWU argued ‘the road transport industry is an inherently dangerous one … A reduction in minimum rates payable to food-delivery employees is apt to place further pressure on those employees to perform work unsafely and work unsafe hours’ (p. 2).
Ai Group (2022) suggested that the proposed changes, by downgrading working conditions, would skew competitive dynamics in the courier industry, arguing that the changes would: Exclude all employers undertaking similar courier/delivery services as Menulog unless they are conducting their primary business on an online or application-based platform. This would have the apparent unintended consequence of ensuring a commercial advantage for Menulog against other traditional courier/delivery operators. (p. 3)
The ARTIO (2022) invoked the long history of institutional work and pluralistic compromises in setting out the RTD Award stating: The table lodged by Menulog could be categorised as their ‘ambit claim’ … attacking and reducing/removing the wages and conditions of employment of transport workers, established over a long period of time. (p. 1)
Part of ARTIO's submission also calculated the quantum of the reduction in entitlements under Menulog's proposed changes. If all of Menulog's suggestions were introduced the impact of remuneration for these so-called ‘on demand employees’ would reduce by a factor of 40% when compared to their entitlements as employees under the RTD Award, whilst at the same time losing many of the existing RTD Award protections. Further … [Menulog will] expect its employees to use their own vehicle and then be paid a pittance for such use. (p. 2)
It is also worth noting that actors like the TWU and ARTIO, who are often cast as representing opposing interests, both held objections to the proposed amendments. This reflects the actors’ desire to protect existing arrangements, which reflect their own historical compromises, rather than embrace the purported disruption and new way of working advocated by Menulog.
The institutional work of these incumbent actors can be seen as an act to defend the current institutional settings of employment. This was largely presented as avoiding the downgrading of worker rights for those already covered by the RTD Award. There is, however, an inherent tension with this argument, when Menulog's attempted institutional change is considered in relation to other food-delivery platforms as even a ‘downgraded’ form of employment under the RTD Award would reflect an upgrade in app-based food-delivery working conditions.
After Menulog outlined its preferred amendments to the RTD Award, the question remained as to whether these changes were compliant with the modern awards objectives. In March 2022, the Full Bench therefore sent the parties to conciliation with Commissioner McKinnon. Multiple interested parties including the TWU, AiG, ARTIO and ABL wished to engage in these proceedings. Seven conciliation hearings were listed between March 2022 and March 2024. A process requiring additional institutional work from all involved parties. While Menulog was unsuccessful in its initial objective of creating a new modern award for its part of the gig economy, its actions and institutional work have led to a situation whereby, through the conciliation, attempts were being made to retrofit gig work into the existing modern award system, reflecting incremental institutional reconfiguration, as outlined in Table 3.
By late October 2024, however, the FWC President convened another hearing, noting that ‘[t]his application has been on foot for some years now without actually getting anywhere’(Fair Work Commission, 2024a: 2). By now, Menulog's attempt to bring gig work into the industrial relations system had been overtaken by other developments, most notably the enactment of The Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. This new legislation allows for limited regulatory intervention in the Australian gig economy while simultaneously validating the norm that gig workers are contractors. It creates, in effect, a third category in Australia's industrial relations system of ‘regulated workers’, with ‘employee-like’ work including gig work having fewer protections than employment but more than in independent contracting outside of ‘employee-like’ work.
As part of the Closing Loopholes No. 2 reforms, the Road Transport Advisory Group (RTAG) was established. In November 2024, the Commission stated (2024b: 2) ‘[t]he function of the RTAG is to advise the FWC in relation to matters that relate to the road transport industry including “the making and varying of modern awards that relate to the road transport industry”’ while the Act now requires that ‘the President of the Commission “must consult, and have regard to the views, of the RTAG in determining priorities for the work of the Commission in relation to matters affecting the road transport industry”’. With the Commission's earlier decision in the proceedings finding that Menulog's operations were covered by the RTD Award, under the new regime, the Commission had no choice but to refer the matter to the RTAG, which is likely to require even more institutional work of the parties. At the same time, the Closing Loopholes No. 2 reforms have, as we will discuss further below, effectively further legitimised the contractor norm for gig work, preferred by Menulog's competitors.
Since mid-2021, Menulog deployed considerable resources in pursuit of institutional change to meet its interests. This included a media campaign, with a publicised launch of the employment trial (Bonyhady and Wright, 2021), legal representation and sustained engagement with the Fair Work Commission's procedures. Yet, by November 2024, the matter was still unresolved and pushed further down the road with the referral of the matter to the RTAG. In hindsight, Menulog's efforts bore relatively little fruit, provoked a strong response from other institutional actors who were committed to the established institutional positions.
Discussion
This study set out to examine Menulog's application for the creation of a new ‘On-Demand Delivery Services Award’ and how this process unfolded. Menulog's ultimately unsuccessful application highlights three significant issues for industrial relations scholarship. First, Menulog's institutional work was undertaken with a view to change the architecture and a foundational aspect of Australia's industrial relations system, namely the expansion of the modern award system. Menulog set out to bring one variant of neoliberalised gig work, app-based food-delivery work, into this system. Rather than conforming with existing institutional structures, the organisation pursued an institutional niche that sat between existing employment protections regulation and the contractor norm of the gig economy. The case reveals some of the tensions and incompatibilities of Australia's industrial relations institutions with the neoliberalised work practices of food-delivery platforms, raising questions for pluralist industrial relations debates. Second, our findings highlight the importance of the actions of Menulog, as the protagonist, as well as that of other, incumbent actors, whose institutional work, largely in opposition of a new modern award, stymied Menulog's intention to transition to employment arrangements under downgraded conditions. It shows the value of using institutional work as a theoretical lens to processually study industrial relations change, which enables scholars to focus on the process as well as the outcomes. Finally, the protracted nature of Menulog's modern application reveals that there are important lessons to be learned from the case about the functioning of Australia's industrial relations system, and its ability to deal with neoliberalised work practices. Below, we reflect on the length of the process, which saw institutional work in other domains overtake the modern award application proceeding.
The institutional work, performed by both Menulog and interested parties, reveals much about the gig economy's position vis-a-vis Australia's industrial relations system. This occurred in a context where contracting was entrenched, where Menulog and its competitors were not paying workers for hours worked, minimum engagement periods or other expenses associated with employment. Menulog's application effectively asked the pluralist industrial relations system, that is based on employment and rarely engages with contracting arrangements, to resolve questions of working standards and market competition. Indeed, Menulog challenged the status quo by arguing that the existing industrial instruments were inappropriate for its business in this increasingly neoliberalised labour market context, especially where the platform had to compete in a product market with other platforms that are unencumbered by employment regulation.
The domain in which the institutional work was done, that is, within the remit of the Commission, FW Act and modern award system, was fundamental to how the process played out. Menulog, in attempting to create an award, set in motion a tightly managed process whose form was dictated by the FW Act. This meant the organisation had to engage with the FWC, as an institution, which has ‘been constructed’ over decades and dealt with its request for institutional change. This placed the Commission, and the industrial relations system more broadly, in a difficult position with respect to its responsibilities under the modern awards objectives (see Fair Work Act, 2009), as any decision taken will have contrasting impacts on its multiple objectives. The interested parties, mainly incumbent actors, who responded to Menulog's application, as well as the Commission, treated employment as the institutional reference point. Consequently, the flexibilities sought by Menulog, to compete with other platforms, were treated as less important than the existing industrial rights and competitive dynamics of the road courier industry.
Pluralist industrial relations scholarship has long been focused on questions of (economic and social) order and (actors’) interests (Heery, 2016). With the attention increasingly geared towards challenges for labour, whereby regulatory intervention and institutions are often viewed as a panacea (Heery, 2016: 8), our case and engagement with the institutional work literature highlight the need for industrial relations scholars to critically reflect upon how institutions for labour come into place, which parties have an interest in them, and how they are maintained. In Australia, employer organisations and unions tend to be on opposite sides, yet as the institutional work perspective highlights, shared ‘interests’ but equally ‘threats’ can act as a trigger for heterogenous actors to collaborate (Hampel et al., 2017). In this particular case, Menulog's application posed a threat to the status quo, which most actors sought to maintain. It could be argued that the incumbent actors were operating instrumentally, defending a policy position that was working for them, avoiding complication and new competition. While interested parties were defending against the downgrading of employment due to their own institutional positions, they did not necessarily consider any potential upgrading of the terms and conditions of gig workers. As gig workers are initially excluded from protective regulations and institutions, this creates challenges where parties attempt to retrofit such institutions to include these workers.
So, what can we draw from Menulog's modern award application about the adaptability of Australia's industrial relations rulemaking institutions? Our findings highlight an interesting tension within Australia's industrial relations system, as the purpose of the award system is to provide employees with a fair and relevant safety net without compromising economic efficiency (Fair Work Act 2009, s134). However, for workers who sit in this regulatory no-man's-land of the gig economy, the system makes no accommodation. This suggests that the industrial relations system's ability to adapt to this new system was constrained, in part by who it considered as needing protection from ‘disorderly markets’ (Heery, 2016), which became a difficult, but imperative, question.
Finally, and underscoring pluralism as a process which is ‘done’ through institutional work, it is necessary to consider the timing and timeliness of the process. Menulog's application was submitted in a period of relative legislative stability and a federal election still over a year away, in April 2021. In October 2024, parties were still attending hearings. The process, at the time of publication in June 2025, remains unresolved, demonstrating the glacial speed with which Australia industrial relations institutions have engaged with the proposed change. While it is important that the process for the creation of the modern award is done correctly, it also spans a period where other platforms have signed the Memoranda of Understanding with the TWU and further, other platforms have completely exited the industry, and possibly most significantly, the Federal legislative reform has been enacted.
During the period in which the application was live, the election of a Labor government resulted in the passage of the legislation which regulates certain parts of the gig economy, including food-delivery, under the ‘employee-like’ provisions of the Closing Loopholes No. 2 Act. However, the passage of this reform suggests that the industrial relations system itself was unable to adapt, and it required institutional change to come from lawmakers. The reforms effectively represent lawmakers’ endorsement, and institutionalising, of contracting arrangements for digitally intermediated, relatively low-skilled work. This means that if gig workers are to become employees, it is likely that this will occur through platform voluntarism rather than state compulsion. This outcome, however, appears even less likely with the passage of the Closing Loopholes No.2 Act. This underscores institutional work takes time, but also that the elapsing of time can allow others to do institutional work and the effectiveness of any institutional work being done can be stymied over such time horizons.
Conclusion
Menulog's application to create an on-demand delivery services award was an unsuccessful attempt at institutional entrepreneurship and bridging the gap between two established institutional norms by trying to re-regulate employment in the context of the gig economy. Attempting to break from not one, but two, institutional norms meant that Menulog bore a cost, requiring the performance of institutional work, and provoked institutional work from other actors. The application, if successful, would have meant that the working arrangements which underpin food-delivery work on Menulog's platform differ greatly from Menulog's competitors, changing the dynamics and power relations between platforms, restaurants, couriers and customers.
Menulog's application, when viewed from an institutional work perspective, faced two major challenges. First, from the pre-existing modern award architecture, which the Fair Work Commission found already accommodated this form of work in the form of the RTD Award, putting the onus on the platform to show that the existing awards did not meet their needs. Second, the platform faced opposition from entrenched industrial relations actors, who performed institutional work in opposition to Menulog's attempts to expand and change the system, reflecting their stake and interests in maintaining the system in its current form. In short, Menulog's institutional work, while creating a disruption in the existing institutional arrangements of gig work, was ultimately hemmed in by rigid institutional processes and the efforts of incumbent actors.
As with all case research, the generalisability of the case is restricted. However, this case allows consideration of institutional work in an industrial relations context. Further, Menulog's strategy can only be considered through their public submissions, not first-hand. Despite this, the study shows how gig economy work relations are seemingly incompatible with the employment model given the apparent requirements for flexibility of the platforms. However, it also shows a lack of capacity to consider what these changes might mean for non-employees, even if they are ‘employee like’, meaning that further structural reforms are needed, which will face significant challenges from entrenched actors, but may finally protect those who currently sit outside the system.
Footnotes
Acknowledgements
We want to thank Ms Alexandra Roberts for her expert research assistance at various stages of the project, which was funded by the University of Sydney Business School Industry Partnership Grant.
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: Alex Veen's contribution was, in part, supported by an Australian Research Council Discovery Early Career Researcher Award (DECRA) Fellowship, project DE210100368 – Algorithmic management and the future of work: lessons from the gig economy. Tom Barratt's contribution was, in part, supported by an Australian Research Council Discovery Early Career Researcher Award (DECRA) Fellowship, project DE230101520 – Work Fragmentation in the Gig Economy.
