The modern awards introduced in Australia back in 2010 included a Miscellaneous Award. There had been nothing like it before. This award was supposed to cover employees who were not covered by another modern award who performed work of a similar nature to work historically regulated by awards.
The Miscellaneous Award was designed to fill the gaps. But ten years on, we still commonly refer to award-free employees, and not just managerial and professional ones. We have an established practice of trying to squeeze non-traditional workers into classifications in industry awards, and if they don’t fit, we deem them award-free.
So why hasn’t the Miscellaneous Award been doing its job?
There has been an exemption under the Award for ‘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 phrase ‘because of the nature or seniority of their role’ has been interpreted widely to mean ‘if they weren’t award employees before 2010, they aren’t award employees after 2010’. This interpretation no longer applies.
Just as the effects of COVID19 struck, the Commission decided to cut that phrase out of the Miscellaneous Award as it was always intended that the following classes of employees would be picked up by the Miscellaneous Award:
- employees performing new or emerging types of work; and
- obscure groups of employees that had historically fallen through the cracks of award coverage.
Do you employ lower-skilled, semi-skilled or trades-qualified employees and currently treat them as award-free? Take a look at the Miscellaneous Award 2010 to review whether you need to change your approach.