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Introduction

In a very interesting article by Samantha Maddern and Shannon Walker from, law firm Norton Rose Fulbright Australia, explains how the award that covers those employees not covered by an award are covered by the Miscellaneous Award has been changed.

On 12 February 2020 the Fair Work Commission (Commission) amended the Miscellaneous Award 2010 with effect from 1 July 2020. The changes extend the coverage of this Award to traditionally award-free employees with potentially far reaching consequences for some employers.

Existing coverage

The Miscellaneous Award is intended to be a safety net for lower paid or less senior employees who aren’t caught by the usual industry or occupational modern awards. Clause 4.1 states:

Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14 …. who are not covered by any other modern award.

The coverage of the Miscellaneous Award has always been somewhat limited (and difficult to fathom) because:

  • the employee must fall within a classification listed in clause 14 (although the classification definitions in Schedule B are very general, as set out below);
  • under clause 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; and
  • clause 4.3 excludes both employees in an industry covered by a modern award who are not within a classification in that modern award, and employees in a class exempted by a modern award from its operation, and their respective employers.

For example, a security guard employed by a construction company to perform security work would not be covered by any modern award because:

  • the employer is not in the industry of security (being a construction company) so the Security Services Industry Award 2010 does not apply;
  • the Building and Construction General (On-site) Award 2010 cannot apply as there is no security guard classification; and
  • the Miscellaneous Award cannot apply because of the exclusion in clause 4.3 of that Award (excluding coverage of employees in an industry covered by a modern award who are not within a classification in that modern award).

Extended coverage

In its 4-year review of the Miscellaneous Award, the Commission determined that its coverage should be extended by striking out the following words in clause 4.2 and deleting clause 4.3 altogether:

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.

The consequence of these changes is that the Miscellaneous Award may now apply to:

  • more senior employees (though not managerial or professional employees) who were traditionally excluded from award coverage; and
  • other employees performing award work traditionally covered by an award, but previously excluded from award coverage either because they did not fall under an industry or occupational based modern award or because of the exception in clause 4.3 which has now been deleted.

Implications for employers

Employers with employees who have traditionally been considered to be ‘award free’ should assess whether the Miscellaneous Award might now apply and, if so, whether a review of their terms and conditions of employment is now warranted to ensure compliance with the Award, which contains provisions on overtime, penalty rates, meal breaks and consultation, for example.

The classifications in the Miscellaneous Award are set out below:

Level 1: An employee who has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 2: an employee who has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 3: an employee who has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4: an employee who has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.