In a continuing uncertain environment, the Fair Work Commission’s (FWC) temporary variations to a number of modern awards sunsetted on 30 June 2020, but a lifeline has been extended, with the extension of the operation of a number of the temporary variations, with differing effects.
In the midst of the Commission’s efforts to provide employers and employees with temporary relief, planned changes to scope the Miscellaneous Award took effect from 1 July, with the effect that very few non-managerial/professional employees will be left without safety net modern award entitlements.
COVID-19 still warrants variations to award – FWC
In welcome news, the FWC has decided to extend the period of operation of the COVID-19 related variations to modern awards.
On 28 March this year, the FWC granted a joint application from employers and unions to vary the Clerks Award to help manage the challenges COVID-19 was placing on business and employees (read about the changes in our article here).
The FWC also granted similar variations to the Hospitality and Restaurant Industry Awards, the Vehicle Repair Award and a number of others. On its own motion, it varied a further 99 awards. The variations include an entitlement to unpaid ‘pandemic leave’ and the flexibility to take twice as much annual leave at half pay.
The temporary changes were due to end on 30 June 2020. However, the FWC has granted an application by parties to extend the application of the variations to between one and 12 months.
The FWC has extended the operation of the variations as follows:
| Award | Extended variation sunset date |
| Fast Food Industry Award 2010 General Retail Industry Award 2010 Hair and Beauty Industry Award 2010 Storage Services and Wholesale Award 2020 |
31 July 2020 |
| Aboriginal Community Controlled Health Services Award 2020 Aged Care Award 2010 Ambulance & Patient Transport Industry Award 2020 Health Professionals and Support Services Award 2020 Medical Practitioners Award 2020 Nurses Award 2010 Pharmacy Industry Award 2020 Social, Community, Home Care and Disability Services Industry Award 2010 Supported Employment Services Award 2020 |
Until further order of the Commission |
| Live Performance Award 2010 | 30 June 2021 |
| Air Pilots Award 2020 | 31 December 2020 |
| The Commission has made a provisional view to extend the operation of Schedule X which was included in a number of modern awards and provided for unpaid pandemic leave and capacity to take annual leave at half pay to also be extended. To understand the status of the modern award that covers your business, contact us for further advice or alternatively check the current version of the modern award on the FWC website. | FWC’s provisional view is to extend the operation of the variations until 30 September 2020. Final decision will be made by Friday 3 July 2020. |
No More Gaps – changes to the Miscellaneous Award effective 1 July
A Full Bench of the FWC, presided by Vice President Hatcher, recently confirmed its decision to vary the coverage of the Miscellaneous Award. The decision has wide ranging impacts for employers and employees, particularly those covered by industry awards that had confined classification descriptors.
The decision is effective from 1 July 2020.
What exactly has changed?
The key change is who is excluded from coverage of the Miscellaneous Award. Historically, it has not covered an employee whose employer was covered by an industry award, but who did not fall into one of the classification levels therein. The Commission has now removed this exclusion.
Who does the Miscellaneous Award now apply to?
The Miscellaneous Award covers employers in Australia and their employees who:
- Fall into the classification levels in the award; and
- Who are not covered by any other modern award.
It is designed to cover those employees who perform work that has traditionally been award covered but have somehow slipped through the cracks of award coverage.
However, the Miscellaneous Award does not cover:
- managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists;
- employees who perform work that is not of a similar nature to work that has traditionally been regulated by awards; or
- employees who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether Commonwealth or State awards).
Determining whether someone falls into these last two categories (Fair Work Act Exclusions) should be approached carefully. This is particularly so for low-paid employees performing lower-skilled manual work functions.
Who is the decision particularly relevant to?
The decision is most relevant for employers who employ people who are not managerial or professionals, but who consider those employees to be award free. It is possible those employees are covered by the Miscellaneous Award. For employers entering into bargaining, the extended application of the Miscellaneous Award may have implications on the assessment of the better off overall test for cohorts that have previously been assessed on the basis that they are award free.
To determine if an employee is covered by the Miscellaneous Award, you need to ask:
- Does the employee work with a level of supervision and responsibility that means their position falls into the classification levels in the Miscellaneous Award?
- Are they covered by any other modern award?
- Are they managerial or professional employees?
- Are they excluded from modern award coverage by the Fair Work Act Exclusions?
If the answer to the first question is ‘yes’, but ‘no’ to the remaining questions, then the position is now likely covered by the Miscellaneous Award. Answering the last question can be difficult and may require a detailed historical analysis of whether the work they perform has ever been regulated by awards.
Katie Sweatman
Partner
+61 3 9958 9605
[email protected]
Peter Willink
Lawyer
+61 2 9169 8413
[email protected]