Miscellaneous Award — who’s covered?

Q&A

Miscellaneous Award — who’s covered?

The modern Miscellaneous Award 2010 did not extend award coverage to those employees who were traditionally not award covered employees.

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The modern Miscellaneous Award 2010 did not extend award coverage to those employees who were traditionally not award-covered employees.
 
This question sent to WorkplaceInfo highlights this point.
 
We are a firm of consultants with most employees being professionally qualified.
 
Their duties cover a disparate range of professions, from town planning and civil engineering, to building project managers and quality assurance specialists.
 
These employees have traditionally been award free; however, it has come to our notice there is now a Miscellaneous Award which was introduced last year under the modern award system.
 
Is the Miscellaneous Award intended to be a ‘catch-all’ award (ie that covers an employee who is not covered by any other modern award?)
 
The decision by the (then) Australian Industrial Relations Commission (AIRC) in December 2009 clarified the coverage of the new Miscellaneous Award
 
That decision confirmed the Miscellaneous Award is not intended to cover employees who have traditionally been excluded from award coverage, such as professional and managerial employees.
 
The provisions expressly exclude managerial and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
 
Professionally qualified employees such as town planners, building managers and quality assurance specialists would generally come under the category of ‘professional employees who have traditionally been excluded from award coverage’. This means these employees remain award free and their conditions of employment are subject to the National Employment Standards (NES) and any relevant state or territory statute (eg long service leave).
 
Note: employees previously covered by state awards
 
It should be noted that the Miscellaneous Award could potentially cover an employee previously covered by a Div 2B state reference award, where the employee’s duties are not covered by a modern award.
 
Employees who were under a state award prior to 1 January 2010 remained under the relevant state award (Div 2B) until 1 February 2011, after which the relevant modern award applied.
 
This award relates to an employer whose business is unincorporated (eg sole trader, partnership, certain trusts, and only entered the Fair Work system because of the relevant state government’s referral of its WR powers).
 
Occupations potentially in this category include cleaners, caretakers, or gardeners, and whose business is not primarily or exclusively cleaning, caretaking or gardening (mixed enterprises).
 
The states that referred their WR powers on 1 January 2010 were New South Wales, Queensland, South Australia and Tasmania. Western Australia did not refer its powers to the Commonwealth.
 
Source: Paul Munro, IR Consultant.
 
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