Clarifying the scope of the Miscellaneous Award 2010

WHO SHOULD READ THIS

• Employers who employ individuals in the pet grooming industry or other lower income workers.

THINGS YOU NEED TO KNOW

• The Miscellaneous Award does not cover employees who, due to the nature or seniority of their position, have not traditionally been covered by an award in any jurisdiction.

WHAT YOU NEED TO DO

• When it comes to questions of award coverage, always seek advice to understand whether the Miscellaneous Award may apply.

In a recent decision, the Fair Work Commission (FWC) has clarified the coverage of the Miscellaneous Award 2010 (Miscellaneous Award) extending its operation beyond what was previously thought to be more limited coverage.

Background

A full bench of the FWC has found that pet care workers covered by a Queensland pet resort enterprise bargaining agreement should have been assessed against the Miscellaneous Award, and not classified as award free.

The decision, which quashed approval of Gold Coast Discretionary Trust’s (Trust) AAA Pet Resort Enterprise Agreement (Agreement), turned on whether workers covered by the Agreement were excluded from coverage of the Miscellaneous Award.

Clause 4.2 of the Miscellaneous Award states ‘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.’

The Trust submitted that workers covered by the Agreement were excluded from the Miscellaneous Award because in Queensland people in similar positions had never been award covered.

United Voice in response argued that clause 4.2 would not apply as awards in other states have regulated workers in similar roles.

Decision

In handing down its decision, the FWC clarified that when determining whether an industry or role has been traditionally covered by an award, the coverage of awards across all Australian jurisdictions must be considered.

The FWC ultimately held that although the work covered by the Agreement has not traditionally been award covered in Queensland, the Miscellaneous Award would still apply because awards in other states have historically regulated work of a similar nature.

Significance of decision

This decision has called into question the coverage of the Miscellaenous Award and specifically, its catch-all intent.

In practise, the FWC is generally hesitant to promote the Miscellaenous Award, often recommending instead that employees be loosely classified under another award or be award free.
While the practical value of the Miscellaneous Award remains unsettled, cases such as this will be useful in continuing to define its purpose and coverage.

If you would like further information on this matter please contact a member of the Employment Relations and Safety team. With the expansion of our Employment Relations and Safety practice into Sydney, we would like to introduce you to Partner Scarlet Reid and her specialist team, including Senior Associates Tom Reaburn and Nathan Roberts. Find out more about the Employment Relations and Safety team here.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.