Important Award Development

There can be little doubt that many businesses and organisations were forced to confront unprecedented employment challenges last year due to COVID-19, including the need for stand downs and redundancies as well as understanding the rights and obligations associated with the new JobKeeper laws. An important development which may have been missed by many employers as they dealt with those challenges was the significant changes that occurred to the coverage provisions of the Miscellaneous Award from 1 July last year. These changes are likely to affect many employers.

What happened to the Miscellaneous Award?

In 2010, a total of approximately 120 modern awards were introduced which operate along industry and occupational lines to prescribe minimum terms and conditions of employment for those employees who fall within their specified coverage provisions.

Probably the most curious modern award that was introduced was the Miscellaneous Award 2010. In summary, it applied to all employees who fell within the specified classifications set out in the Award except for the following:

• any employees in an industry covered by a modern award who are not within a classification in that award. So, for example, any workers employed by a company involved in the building industry or the retail industry could not be covered by the Miscellaneous Award because of the existence of dedicated awards for those industries, even if the workers did not fall within any of the specified classifications of those awards;
• any 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.

Last year, the Fair Work Commission determined that the above coverage provisions of the Miscellaneous Award 2010 were inconsistent with the purpose of that Award. In particular, the Miscellaneous Award was originally intended to cover employees who were not covered by another modern award, but who performed work of a similar nature to those that had been historically covered by awards.

Therefore, the Fair Work Commission amended the coverage provisions of the Miscellaneous Award to remove the exclusion set out in paragraph (a) above in its entirety. Further, the Commission narrowed the exclusion set out in paragraph (b) above to simply provide that the Award does not cover ‘managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists’. These changes took effect from the first full pay period after 1 July 2020.

What does this mean for employers?

The changes to the coverage provisions of the Miscellaneous Award mean that the Award now applies to a much broader range of employees. In particular, employers who are covered by an industry award (for example, the General Retail Industry Award, Hospitality Industry Award, or Manufacturing and Associated Industries Award) may now also have employees who are covered by the Miscellaneous Award.

Therefore, if employers have not already done so, they should urgently undertake an audit to assess whether any of their employees may now be covered by the Miscellaneous Award. If any employees are covered by that Award, employers should take the necessary steps to ensure they are providing those employees with terms and conditions of employment at least as favourable as those prescribed by the Award, including in relation to minimum wages, overtime, penalty rates, loadings and breaks.

A failure by an employer to comply with an applicable award, including the Miscellaneous Award 2020, exposes the employer to significant sanctions, including fines of up to $66,600 per breach and orders for compensation.

Queries

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Disclaimer

This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.