Assisted by Kristina Tato
The Fair Work Commission (FWC) as a result of its four-yearly review of the Modern Awards has made significant changes to the Miscellaneous Award 2020 (Miscellaneous Award) which employers need to be aware of. As at 1 July 2020, the coverage of the Miscellaneous Award was extended and its expansion means that more employees who were not previously covered under the Miscellaneous Award and deemed Award-free, may now be covered.
Previous Coverage
The FWC determined that the coverage in the Miscellaneous Award did not adhere to FWC objectives and were not appropriate. The Full Bench found that the understanding under the previous provisions resulted in a misinterpretation of the scope of the Miscellaneous Award and who it intended to cover.
Clause 4.2 of the Award:
The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
Clause 4.3 of the Award states that it does not cover employees:
- in an industry covered by a modern award who are not within a classification in that modern award; or
- in a class exempted by a modern award from its operation,
or employers in relation to those employees.
New Provisions
The FWC Full Bench decision saw an alteration to clause 4.2 and saw clause 4.3 removed completely.
Clause 4.2 of the Award:
The award does not cover those classes of employees who,
because of the nature or seniority of their role, have not
traditionally been covered by awards including managerial
employees and professional employees such as accountants and
finance, marketing, legal, human resources, public relations and
information technology specialists.
It remains that managerial and professional employees are not covered under the Miscellaneous Award. However, the removal of the wording that an employee is excluded because of the nature or seniority of their role, consequently expanded the coverage of the Miscellaneous Award.
Clause 4.3 has been removed completely. Its removal means that roles that were previously excluded under the Miscellaneous Award, because its employers were covered under an industry award and the employees' role was not covered under that industry award, will now be covered under the Miscellaneous Award.
Effect of the New Provisions
The Full Bench used the following examples to demonstrate the effect of these changes.
Example 1: Security Guard employed by a Construction company
A security guard employed by a Construction company under the previous provisions would be excluded from coverage under the Miscellaneous Award. The security guard is not covered under the Security Services Industry Award 2010 (coverage limited to employers carrying out security under a contract with another business). Further, the relevant industry award covering the employer, Building and Construction General (On-site) Award 2010, does not include security guards in its coverage. The previous provision (clause 4.3) excludes the security guard from being covered as the employer is already covered by the relevant industry award, Building and Construction General (On-site) Award 2010.
As this clause has now been removed, as at 1 July 2020, the Miscellaneous Award is now applicable to these types of employees.
Example 2: Cleaner employed by a real estate business
A cleaner employed by a real estate business would not be covered under the Cleaning Services Award 2010 (coverage limited to employers carrying out cleaning under contract with another business). Further, the relevant industry award covering the employer, Real Estate Industry Award 2010, does not include cleaners in its coverage. The previous provision (clause 4.3) excludes the cleaner from being covered as the employer is already covered by the relevant industry award, Cleaning Services Award 2010.
As this clause has now been removed, as at 1 July 2020, the Miscellaneous Award is now applicable to these types of employees.
The changes made to the Award and the expansion of its coverage are now in line with the original purpose of the Award and the changes have casted a wider net covering more employees who were previously deemed Award-free.
What this means for you?
Employers should check the Award coverage and importantly consider whether its employees are now covered under the Miscellaneous Award 2020. This is significant as it is possible that those previously deemed as award-free employees including senior employees, can now fall under the Miscellaneous Award 2020. It has been extended to cover employees who were excluded from coverage under the Fair Work Act and not already covered by another Modern Award, up to and including those holding an advanced trade qualification.
It's vital that employers undertake a re-assessment of its employees to ensure that they are in compliance with the relevant award. Where it is determined that the Miscellaneous Award now applies, employers need to ensure that employees are notified and that the terms of the Miscellaneous Award are complied with i.e. consultation obligations, requests for flexible working arrangements, minimum rates, dispute resolution etc.
You can read the FWC decision made on 25 March 2020 here and the decision made on 12 February 2020 here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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