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Employers need to reconsider award coverage of senior employees and those who had initially ‘fallen through the cracks’ after the Fair Work Commission (Commission) amended the Miscellaneous Award 2020, extending its coverage. The extended coverage in the Award applies as of 1 July 2020.
In reaching its decision, the Commission noted that the coverage provisions in the Miscellaneous Award had led to a misinterpretation of the scope of employees intended to be covered.
Considering the purpose for which it was first made, the Commission stated that the Miscellaneous Award was not intended to cover those classes of employees:
While clause 4.3 of the Miscellaneous Award expressly excluded coverage for those who were covered by other industry awards but did not contain classifications for certain roles, the Commission stated that this was never the intended result when the Miscellaneous Award was made. For example, under the previous clause 4.3 of the Miscellaneous Award, a security guard hired by a construction company to watch a building site overnight would not be covered by the Building and Construction General On-site Award as it does not contain a classification for security guards. The security guard would then also be excluded from coverage under the Miscellaneous Award because their employer was covered by an industry award.
The new coverage provisions of the Miscellaneous Award remove clause 4.3 completely and, whilst noting its presence is not necessary, partially kept clause 4.2 as a reminder of some of the types of employees the Miscellaneous Award is not intended to cover.
Whilst the terms of the coverage clause still include employers and their employees in the classifications who are not covered by any other modern award, the omission of 4.3 means that employees whose employers are covered by industry awards in which they are not classified may be covered by the Miscellaneous Award.
The clarification of the Miscellaneous Award’s coverage also left open the possibility of coverage for professional and managerial staff who have been historically award covered and are not covered by a modern award.
Reiterating the importance of protecting vulnerable classes of employees, the Commission warned employers that they should be ‘slow in concluding that such employees are excluded’ providing that this should only occur ‘after the receipt of detailed legal advice’.
If employers now have employees covered by the Miscellaneous Award, this means:
(a) qualifying employees will have access to unfair dismissal irrespective of their income;
(b) employees must be notified of the award coverage and classification; and
(c) the employer must comply with the terms of the Miscellaneous Award.
Failing to comply with the Miscellaneous Award could give rise to significant penalties and other legal claims.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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