Ch-ch-changes to the Miscellaneous Award – amendments to expand coverage

Employers take note: amendments to be incorporated into the Miscellaneous Award 2010 (Miscellaneous Award) on 1 July 2020 will extend the coverage of the award to more employees.

 

Who does the Miscellaneous Award currently cover?

The Miscellaneous Award covers lower paid or less senior employees who do not fit within the industry or occupational coverage of another award.  This acts as a safety net to ensure that those employees for whom a State based award had previously applied, would not be precluded from the protections of award coverage due to any omission or oversight during the award modernisation process.

Currently, the Miscellaneous Award excludes some employees from coverage. Clause 4.2 states that 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 goes on to further specify which employees the Miscellaneous Award is not intended to cover, stating:

"The award does not cover employees:

(a) in an industry covered by a modern award who are not within a classification in that modern award; or

(b) in a class exempted by a modern award from its operation,

or employers in relation to those employees.

It is apparent that this coverage is somewhat limiting.  For example, a cook is traditionally an award covered role.  However:

  • a cook working in the kitchen of a law firm would be excluded from coverage under Legal Services Award 2020 on the basis that there is no cook or food preparation related classification.
  • the cook would not be covered under Restaurant Industry Award 2020, on the basis that a law firm is not an employer in the restaurant industry.
  • under clause 4.3, the cook would not be covered under the Miscellaneous Award on the basis that they are working in an industry covered by a modern award and their role is not within a classification in that modern award.

Who will the Miscellaneous Award now cover?

In response, as part of the Fair Work Commission's (FWC) four yearly review, the FWC has clarified the coverage position, and in doing so broadened the scope of the coverage.

The FWC has opted to change clause 4.2 to remove the sentence "[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 …" . The provision will now read,

[this award] "… does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists".

Clause 4.3, as set out above, will be deleted entirely.

These changes will result in the Miscellaneous Award now covering employees who were traditionally excluded from coverage on the basis of the nature or seniority of their role. Similarly, those employees who perform work traditionally covered by an award, but excluded on the basis that they did not fall within the relevant occupational or industry award and further excluded from coverage under the Miscellaneous Award as a result of clause 4.3, will now be covered.

It is noted that managerial employees, and professional employees of the type listed by the amended clause 4.2, will still be excluded from coverage.

What should employers do?

If you have an employee who was traditionally award free, it is a good time to now reassess whether this employee remains award free, or if the Miscellaneous Award may now apply as a result of the amendments.

If you would like assistance with this assessment, please get in touch with the Employment team at McCabe Curwood.

Contributors

Elisa Blakers Lawyer