The Fair Work Commission have made changes, in effect from 1 July 2020, to the Miscellaneous Award 2020 to cover a broader range of workers, including many that previously would not have been covered by any Modern Award.
In making this decision, the Fair Work Commission re-emphasised the importance of employers carefully considering award coverage for their employees and that employers should be “slow to conclude” that employees are excluded from Award coverage.
Who did the Miscellaneous Award previously exclude?
Previously, the Miscellaneous Award 2010 excluded:
- staff who “because of the nature or seniority of their role have not traditionally been covered by awards” (clause 4.2); and
- employees whose industry was covered by an industry Award, even if their specific role was not covered by that Award (clause 4.3).
For example, the operation of clause 4.3 meant that a security guard hired by a construction company to watch a building site overnight would not be covered by any Award. They would not be covered by the relevant industry Award – Building and Construction General On-site Award – because it does not contain a classification for security guards, and they also would not have been covered by the Miscellaneous Award 2010 because their employer’s industry was covered by another Award.
What changes have been made?
The Fair Work Commission has removed clause 4.3 entirely from the new Miscellaneous Award 2020. Meaning employees in the circumstances described above will not be excluded from coverage under the Miscellaneous Award 2020.
The Fair Work Commission also removed the exclusion contained in 4.2 for staff in senior positions, meaning it is now possible for the Miscellaneous Award 2020 to cover senior employees and managerial staff that had not previously been covered by any award.
The Miscellaneous Award 2020 will continue to exclude accountants and finance, marketing, legal, human resources, public relations and information technology specialists from its coverage.
What does this mean for employers?
Employers should carefully consider the applicability of the changes to the Miscellaneous Award 2020 to the classification of their employees.
It is possible that many employees previously exempt from Award coverage are now covered by the Miscellaneous Award 2020, in which case:
- employees may have access to unfair dismissal, regardless of their income;
- employers must notify those employees of the award coverage and classification; and
- employers must comply with the terms of the Miscellaneous Award 2020, including in relation to wages and other entitlements.
If you have employees which you consider not to be covered by an award, we recommend that you consider whether they may now fall under the Miscellaneous Award 2020.
We are happy to assist in assessing Award classifications, and advising on your obligations.
