By Kelly Godfrey

The Miscellaneous Award 2010 (Award) has been amended. As such, from the first full pay period on or after 1 July 2020, the Award will now apply to many employees who were not previously covered by a modern award.

Senior employees may now be covered by the Award

While managerial or professional employees (including accountants and finance, marketing, legal, human resources, public relations and information technology specialists) will continue to be excluded from coverage under the Award, the Fair Work Commission (FWC) has deleted the previous exclusion that applied to senior employees who, because of the nature or seniority of their role, have not traditionally been covered by a modern award. This opens up the possibility that some senior staff who are not managerial or professional employees may now be award-covered.

Why were changes made to the Award?

The changes were made because it was found that certain occupations that had previously been covered by an award in the pre-modern award environment were not covered by a modern award. This was due to an exclusion that existed in the previous version of the Award. The exclusion meant that in circumstances where an employer’s industry was covered by a modern award and an employee’s position did not fall within a classification in that modern award, the Award would not apply to cover the shortfall.

For example, security guards who, before the introduction of the modern award system, had traditionally been award-covered, were sometimes not covered under the modern award system. For instance, security guards employed by a building and construction employer to patrol the worksite in non-working hours were award-free because the Building and Construction General On-site Award 2010 does not contain a classification for security guards. As the employer was not in the industry of security (being a building and construction company), the Security Services Industry Award 2010 did not apply to those security guards. Since the employer had an award (i.e. the Building and Construction General On-site Award 2010) that operated in its industry, the Award could not operate to cover those security guards who were not covered by the Building and Construction General On-site Award 2010. This left security guards award-free if employed by construction industry employers.

On 25 March 2020, the Fair Work Commission (FWC) held that this shortfall (and many others like it) needed to be corrected and was inconsistent with the purpose of the Award. The purpose of the Award was to cover employees who were not covered by another modern award, but performed work that had been historically covered by an award.

What do employers need to do now?

You need to check whether any of your currently award-free employees will now be covered under the Award. If some previously award-free employees are now covered, then you need to check what employees are currently being paid and receiving as entitlements, and ensure they now meet the requirements of the Award. The classifications outlined in the Award are broad and do not exclude senior employees. So, this means many previously award-free employees may now be covered by the Award.