The Case

In 2016, Domino’s Pizza Enterprise Ltd (Domino’s) had a ‘Delivery Driver of the Year’ competition (the Competition), where its best pizza delivery driver could win a prize of $15,000. In 2015, Ms Hart had won the competition and won a new car.

The Competition was assessed by the number of deliveries, customer feedback and data recorded through Domino’s GPS system. Ms Hart did not win the 2016 competition and was disappointed by her second place prize of a $1,000 fuel voucher. So she made an application under s739 of the Fair Work Act 2009 (Cth) (FW Act) to the Fair Work Commission (FWC) disputing the outcome and alleging that Domino’s had breached the Domino’s Enterprise Agreement.

Verdict

The FWC dismissed Ms Hart’s application, indicating:

• the FW Act only granted jurisdiction to the FWC to hear the dispute if the Agreement required or allowed it;
• the dispute was over whether Domino’s used correct data in the Competition in deciding the winner, which was not a matter set out in the Agreement;
• there was no clause in the Enterprise Agreement stating that the FWC could deal with disputes over incentive schemes;
• Domino’s’ obligation under the FW Act to keep accurate records did not apply to the Competition, because it was completely discretionary in nature; and
• the dispute was not one that was required or allowed to be dealt with under the Enterprise Agreement and hence the FWC had no jurisdiction to hear the dispute.

Lessons For You

Dispute resolution procedures in enterprise agreements do not generally apply to workplace competitions or discretionary incentive or bonus schemes. However, just to be sure, employers should ensure:

• they carefully draft the dispute resolution procedures in their enterprise agreements; and
• discretionary competitions, incentives and bonuses are drafted carefully to make it clear they are discretionary in nature and the employer has no obligation to pay it or award a prize. That said, employers must exercise their discretion fairly on the basis of any stated criteria and not capriciously.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.