Final stage 4 modern awards published; Miscellaneous Award coverage clarified: Freehills

Analysis

Final stage 4 modern awards published; Miscellaneous Award coverage clarified: Freehills

The final stage 4 modern awards have been published; and, in the process, the Miscellaneous Award coverage has been clarified, indicating ‘who’s in and who’s out’ of this award.

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The final stage 4 modern awards have been published; and, in the process, the Miscellaneous Award coverage has been clarified, indicating ‘who’s in and who’s out’ of this award.
 
This article was written by a Freehills IR specialist.
 
The key points to note are:
  • The AIRC published on 4 December the final versions of the stage 4 modern awards, including the much-anticipated Miscellaneous Award.
  • To the relief of many, the AIRC clarified the coverage of the Miscellaneous Award — a matter that has been unclear since publication of the exposure draft in September this year.
  • In the 4 December decision, the AIRC confirmed that the Miscellaneous Award is not intended to cover employees who have traditionally been excluded from award coverage, such as professional and managerial employees.
  • The amended provisions expressly exclude managerial and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
  • The AIRC also tweaked the Miscellaneous Award’s classification structure to remove reference to ‘graduates’.
  • While the amendment will ease the minds of some employers, there will still be scope for dispute in some sectors over the concept of ‘traditionally award-free’ employees.
 
Context
 
With the publication of the Stage 4 modern awards, the final round of modern awards has been completed in preparation for 1 January 2010 when the Rudd Government’s Fair Work safety net comes to life. The task has been enormous (and many said impossible). In the course of the award modernisation process, which began in March 2008, around 1560 federal and state awards have been reduced to just 122.
 
The Miscellaneous Award is designed to cover employees traditionally covered by awards who do not fall within the coverage of any other modern award.
 
Miscellaneous Award
 
The potentially wide umbrella of coverage in the exposure draft of the Miscellaneous Award (published on 25 September 2009) sent many employers into a panic, particularly in professional service firms. The coverage clause and classifications described in the draft award were arguably broad enough to catch employees in occupations and industries not covered by any other modern award (such as accountancy and human resources) despite these industries having no history of award coverage in Australia.
 
The AIRC noted in its decision that (almost without exception) the submissions made by employer representatives on the exposure draft raised genuine concern about the breadth of the coverage of the Miscellaneous Award and the possibility, even if inadvertent, of previously award-free employees being covered.
 
In response to these concerns, the AIRC decided to amend the Miscellaneous Award to clarify the classes of employee excluded from its coverage.
 
The AIRC alluded to the many and varied suggestions it received as to how the coverage could be clarified, but it ultimately settled on an amendment to the coverage provisions of the Miscellaneous Award.
 
New provision
 
The newly inserted provision states:
  • the award does not cover classes of employees who, because of the nature or seniority of their role, are traditionally award-free
  • this will include managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.
 
This amendment closely reflects the wording of the consolidated modern award request made by Julia Gillard as Minister for Employment and Workplace Relations, and also the wording of s143(7) of the Fair Work Act 2009, which deals with the terms to be included in modern awards.
 
Tertiary and trade
 
The guiding principles for the making of modern awards outlined in the Minister’s request stipulated that the making of modern awards was not intended to extend award coverage to classes of employees (such as managers) who have not traditionally been covered.
 
The AIRC has also responded to employer concern by amending the classification structure to replace references to ‘tertiary degrees’ with references to ‘trade qualifications’.
 
Coverage
 
The AIRC has described the coverage of the Miscellaneous Award as very narrow, and is likely to have a limited lifespan of application to employees in emerging industries.
 
The intention is that these employees will eventually be covered by an industry or occupation-specific modern award relevant to the emerging industry.
 
Still room for doubt?
 
The AIRC’s amendments to the Miscellaneous Award go a long way to clarifying its uncertain coverage. However, whether an employee’s role is one ‘traditionally covered by awards’ is still potentially open to debate. We can expect to see at least a few attempts by employees to claim coverage under the Miscellaneous Award.
 
Other Stage 4 awards
 
The 4 December decision also finalised the content of all other Stage 4 awards, covering industries such as legal services, labour hire, and restaurant and catering.
 
End Notes
 
Source: Article prepared by Freehills. This article was written by Kerryn Tredwell, senior associate, Sydney. 
 
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