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A Full Bench of the Fair Work Commission (“FWCFB”) has issued a Determination varying the coverage clause of the Miscellaneous Award 2010 from 1 July 2020.   It might result in some employees previously thought to be award-free in fact being covered.
Previously, it had been interpreted (from the way the coverage clause was drafted) that if an employee was in an industry covered by a modern award but did not come within a classification in that modern award, they could not be covered by the Miscellaneous Award.

In the 2018 decision in United Voice v Gold Coast Kennels Discretionary Trust t/as AAA Pet Resort,1 (“Gold Coast Kennels”), employees previously thought to be award-free were found to be captured by the Miscellaneous Award. The bench formed a view that the coverage clause of the that award should be reviewed to determine whether the scope of coverage could be made clearer for employees and employers – and whether it covers, or should cover, all employees who are not covered by another modern award and who are not excluded from award coverage by s 143(7) of the Fair Work Act 2009 (Cth).

The Miscellaneous Award was created “to provide minimum (and minimalistic) conditions of employment for a miscellaneous range of employers and employees, not identified by reference to any industry, business function or occupation, who are not covered by any other modern award”. However, it always excluded professionals and managerial employees.2

The resultant Full Bench review has clarified coverage to make it clearer that this safety net award will apply to employees in roles similar to others covered by awards, even if they work in an industry covered by an award that has no classification to cover them.

The classifications caught by the Miscellaneous Award extend only as high as trade qualified employees. It does not cover technical, professional and managerial employees.
An example could be a security guard or cleaner working not in the relevant contracting industry awards but working for an employer in a manufacturing plant. Because they were not caught by a classification in the Manufacturing and Associated Industries and Occupations Award, they were thought to be award free (subject to any continuing Award Based Transitional Instrument).

If you have any employee at trade level or below who you consider is award-free, you should contact us for specific advice.   Require further information/assistance? If you require further information or advice, please contact one of our consultants.

1 [2018] FWCFB 128
2 Gold Coast Kennels para 36

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