17 May THE FORGOTTEN AWARD
A recent decision of the Full Bench of the Fair Work Commission has demonstrated that the coverage of the Miscellaneous Award 2010 is wider than previously thought.
The recent decision of United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort  FWCFB 128 (‘United Voice v AAA Pet Resort”) has demonstrated that the coverage of the Miscellaneous Award 2010 (“Miscellaneous Award”) is wider than previously thought. Specifically:
1. employees who have never been covered by a Modern Award in a certain state or territory, may be covered by the Miscellaneous Award if their work or similar work was covered by a pre-modern award elsewhere; and
2. even if no pre-modern award covered such employees, they may be considered covered by the Miscellaneous Award, unless, because of the nature or seniority of their position (see below) they are not award covered.
Accordingly, if your business is not in an industry covered by a Modern Award and your employees do not fall within any occupations covered by a Modern Award, this does not automatically mean that your employees will be “award free”. Employers need to carefully assess whether their employees are actually “award free” as the terms and conditions of the Miscellaneous Award may apply.
WHAT IS THE MISCELLANEOUS AWARD AND WHO DOES IT COVER?
The Miscellaneous Award covers “employers throughout Australia and their employees in the classifications listed in clause 14 – Minimum wages who are not covered by any other modern award”. It does not, however, apply to employees who, because of the nature or seniority of their position, have not previously been covered by an award in any jurisdiction (e.g. highly paid professional or managerial employees). The Award is a “catch all” type Modern Award which exists to capture positions that have historically been covered by any pre-modern awards, but which are not specifically covered by any Modern Award.
The Full Bench of the Fair Work Commission (“Commission”) in United Voice v AAA Pet Resort, considered an appeal from a decision that employees covered by the AAA Pet Resort Enterprise Agreement 2017 were award free. The employees were animal attendants in a pet grooming and boarding business in Queensland.
Animal care employees had not historically been covered by a Modern Award in Queensland (with the exception of veterinary practice) and were not an industry or occupation covered by a Modern Award.
The employer argued the employees were not covered by any Modern Award, including the Miscellaneous Award when the Commission was assessing whether the enterprise agreement met the Better Off Overall Test (“BOOT”) and the enterprise agreement was approved on that basis.
The Full Bench on appeal, overturned this decision on the basis that the employees were covered by the Miscellaneous Award. It held that:
1. despite the animal care employees not being covered by a award in Queensland, they had been covered in other states and territories (i.e. Victoria, New South Wales and the Northern Territory);
2. in New South Wales, Western Australia and Queensland, there had been awards which covered employees performing similar animal care duties in the context of veterinary practice; and
3. even if the employees were not historically covered by an award, this was not due to the nature and seniority of their position as they:
(a) were “lower skilled” and “modestly or low-paid” employees which would ordinarily be suited to award coverage; and
(b) there was nothing “unusual” which would make them “unsuited” to award coverage.
WHAT DOES THE DECISION MEAN?
This decision means that when employers are considering award coverage they must consider:
1. pre-modern awards that applied in their own state as well as other states and territories across Australia;
2. whether employees perform work of a similar nature to work traditionally covered by a pre-modern award; and
3. if employees were not covered by a pre-modern award, why were they not covered? For example, did they hold a senior or highly paid position.
If your employees do fall within the coverage of the Miscellaneous Award, you need to ensure that you comply with the relevant obligations set out in the Miscellaneous Award with respect to those employees. For example, the Award contains a provision that requires employers to consult with employees if they are introducing a major workplace change (e.g. redundancies).
If you are unsure whether your employee will be covered by the Miscellaneous Award and/or need assistance understanding what your businesses obligations under the Award are, contact the team at HR Law for advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.