Changes to Employee Cover- Miscellaneous Award 2010

There has previously been significant uncertainty about what employees are covered by the Miscellaneous Award 2010. The decision of the Full Bench of the Fair Work Commission (Commission) of 25 March 2020 (Decision) has provided some further clarification on this issue.

The Decision has resulted in a number of changes being made to the Miscellaneous Award, which have expanded the scope of the Miscellaneous Award. These changes will take effect from the first pay period after 1 July 2020.

Nature of the changes.

As from 1 July 2020, the Miscellaneous Award will be amended in the following manner (In the below extract the words which the Commission decided to delete are highlighted in bold): 

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.

What does the decision mean?

Before the Decision, any employee working in an industry that is covered by an Award but whose role did not fall within the classifications specified therein was normally not protected by any Award. In particular, this was due to the then clause 4.3 of the Miscellaneous Award.

Such employees were therefore normally only protected by the standard conditions that are set out in the Fair Work Act 2009 (Cth) - the standard minimum wage and so on.

The Decision has changed that position. In particular, as detailed above, the exclusions in the former clause 4.3 of the Miscellaneous Award have now been deleted. In so deciding to make this deletion, the Commission gave the example that they could not see any “intelligible industrial rationale” why a cleaner and security guard who is not covered by the Cleaning Services Award 2010 and the Security Services Industry Award 2010 respectively should not receive any Award coverage at all because of clause 4.3.

In deciding to amend the Miscellaneous Award in this manner, the Commission also noted that it had not received any submissions:

• which identified any class of employees or employers, or any industries, that would be adversely effected by the changes to clause 4; or
• that the deletion of the limitations in clause 4.3 would cause any classes of employees to be inappropriately covered by the Miscellaneous Award.

The result of the Decision is that many more employees will now be covered by the Miscellaneous Award, rather than not having any protection from any Award. In particular, a large number of employees will be protected under the Miscellaneous Award if their role does not fall within the classifications set out in the Award that governs their industry (provided that they are not excluded from coverage).

Such employees who are so now covered by the Miscellaneous Award will therefore now have broader protection beyond the basic protections that are set out under the Fair Work Act.

Can we help?

Are you an employer who needs to know whether some of your staff are now covered by the Miscellaneous Award? Do you need assistance in complying with your obligations under the Miscellaneous Award?

Are you an employee who needs to know whether you are now protected by the Miscellaneous Award? Perhaps you need to know what additional protections now apply to you?

Our skilled commercial lawyers are able to assist you in relation to these queries.

Please feel free to make an appointment with one of our commercial lawyers today.