Are your award-free employees about to be covered by the Miscellaneous Award?

Are your award-free employees about to be covered by the Miscellaneous Award?

Are your award-free employees about to be covered by the Miscellaneous Award?

From 1 July 2020, the reach of the Miscellaneous Award 2020 will be significantly extended to cover many employees who were previously deemed to be award-free.

The Miscellaneous Award was created to cover employees who were not covered by another modern award, but who performed work of a similar nature to those that have historically been award-covered.

However, the Miscellaneous Award expressly excluded from its coverage those employed in an industry covered by a modern award who were not within a classification in that modern award.   This resulted in many low-skilled, semi-skilled or trade qualified workers being left without award-coverage (and, therefore, access to entitlements such as overtime rates, penalty rates, allowances and annual leave loading) simply because their employer operated in an industry covered by an industry-wide award.

In a ruling on 25 March 2020, the Fair Work Commission decided that the current exclusion was inconsistent with the purpose of the Miscellaneous Award.

The changes mean that the coverage of the Miscellaneous Award aligns with the original purpose of the Award.  As a result of this ruling, all national system employees who are not covered by another award but who perform work that is low-skilled, semi-skilled or which requires a trade qualification and which is not of a managerial or professional nature will be covered by the Miscellaneous Award.

For employers, this decision means that they must now reassess whether any of their award-free employees will, from the first pay period after 1 July 2020, be covered by the Miscellaneous Award.  In such cases, we recommend that employers enter into new employment contracts with employees to ensure that employers comply with all of their obligations under the Miscellaneous Award.

The FWC ruled in March that the coverage provisions of the MA should be changed as follows because it was inconsistent with the original intention of the MA:

What is changing?

The changes to the Miscellaneous Award are set out below (the text “struck through” is being removed from the Award):

4.2 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.

4.3 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.

Melissa Fitzpatrick

1/07/2020

This article has been prepared by WR Law. The information provided should not be relied upon as legal advice. You should speak with Rosa Raco directly about your specific circumstances via email rraco@wrlaw.com.au or phone 03 54996131.