Jul

19

The Miscellaneous Modern Award

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Miscellaneous Award 2010

The Miscellaneous Award 2010 came into force on 1 January 2010. It is intended to cover those employees who are not covered by another modern award, and perform the type of work traditionally covered by awards.

 

Who is covered

The Award covers those employees that fit within the classification section of the Award. These classifications are purposely vague. There are four levels based on length of service and trade qualifications.

The Award also covers:

  • labour hire employees in the classifications set out in the Award;
  • employers providing group training services for apprentices and trainees under the Award;
  • apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where activities covered by the Award are performed.

 

Who is not covered

The award does not apply to employees who are covered by another award, or to employees who are “excluded”.

An “excluded employee” means (at clause 4.2):

“…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 definition of an excluded employee also extends to:

  • employees in an industry covered by a modern award but whose role is not within the award classification;
  • employees exclude from award coverage by the Fair Work Act 2009;
  • employees covered by a modern enterprise award;
  • employees covered by a State public sector award.

 

The Miscellaneous Award in practise

The Award is claimed to be a “catch-all” award, however the practical value of it is yet to be determined. In practise, Fair Work Australia are reluctant to promote the Award, recommending instead that employees be loosely classified under another award or be award free.

 

Employer’s Obligations

Employers are responsible for identifying which modern award (if any) is applicable to their employees. More than one modern award may apply to a single company.

If an employer cannot determine which modern award applies, the employees could either:

  • Fall within the scope of the Miscellaneous Award 2010; or
  • Be ‘award free’ employees.

An “award free” employee is an employee who is not covered under any modern award, including the Miscellaneous Award 2010. Such employees are still entitled to the protection under the National Employment Standards.

It is vital that employers are mindful of their obligations towards employees by duly placing them under the correct award (if applicable). Failure to comply could result in back payment of wages and fines of up to $6,600.00 for an individual and $33,000.00 for a company.

 

Conclusion

The Miscellaneous Award 2010 is an ambiguous Award with limited scope, and its applicability should be carefully considered. For advice on this Award or any other employment law matter, please contact Tony Pattinson at Ferguson Cannon Lawyers.

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Category: Employment Law, Fact Finders, General

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