DECISION

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Miscellaneous Award 2010
(AM2014/237)

4 yearly review of modern awards – Miscellaneous Award 2010 – coverage clause.

Introduction

[1] On 6 June 2019 the President of the Commission, Justice Ross, issued a statement 1 in which he identified a need to review the coverage provisions of the Miscellaneous Award 2010 following the Full Bench decision in United Voice v Gold Coast Kennels Discretionary Trust t/as AAA Pet Resort2 (Gold Coast Kennels). The President’s statement (at paragraph [7]) referred to the issues exposed by the Gold Coast Kennels decision as including whether:

(1) the coverage provisions of the award, and in particular the exclusionary provision in clause 4.2, are expressed in terms which provide sufficient clarity to employers and employees as to the scope of coverage;

(2) the coverage of the award is drawn in terms consistent with paragraph 4A of the Ministerial Request [pursuant to which the award was made]; and

(3) the award currently covers, or should cover, all employees who are not covered by another modern award and who are not excluded from award coverage by s 143(7) of the Fair Work Act 2009 (FW Act).

[2] The statement identified that this review could be conducted as part of the 4 yearly review of the Miscellaneous Award pursuant to cl 26 of Schedule 1 of the FW Act to the extent that this review had been commenced but not completed prior to 1 January 2018; alternatively the review could be conducted by the Commission on its own initiative pursuant to s 157 of the FW Act. The statement concluded by saying:

“[11] A Full Bench will be allocated to review the coverage provisions of the Miscellaneous Award and in doing so to give consideration to the above issues and any other issues that might be raised by interested parties.”

[3] The conduct of the foreshadowed review was subsequently allocated to us. On 3 July 2019 we issued directions for the filing of submissions and evidence which invited interested parties to address the following issues:

(a) the issues identified in paragraph [7] of the Statement issued on 6 June 2019 ([2019] FWC 3934);

(b) the question of whether clause 4.2 of the Miscellaneous Award does, or should, operate to exclude from coverage any identifiable class of employees falling within the scope of coverage delineated by clause 4.1;

(c) the question of whether clause 4.3 of the Miscellaneous Award does, or should, operate to exclude from coverage any identifiable class of employees falling within the scope of coverage delineated by clause 4.1; and

(d) any other relevant issues relating to the coverage provisions of the Miscellaneous Award.

[4] A number of parties filed submissions in response to these directions, but no party filed any evidentiary material. We conducted a hearing in relation to the matter on 26 November 2019. This decision provisionally determines the outcome of the review.

Award history and coverage

[5] The Miscellaneous Award was established in the course of the award modernisation process conducted by the Australian Industrial Relations Commission (AIRC) pursuant to Part 10A of the Workplace Relations Act 1996 (WR Act). Section 576C(1) of the WR Act required the award modernisation process to be conducted in accordance with an “award modernisation request” made to the President of the AIRC by the Minister. On 17 June 2008, the then Minister for Employment and Workplace Relations amended her award modernisation request (Ministerial Request) to include the following:

“4A. The Commission is to create a modern award to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards (including State awards). The Commission is to identify this award as such. This modern award is not to cover those classes of employees, such as managerial employees, who, because of the nature or seniority of their role, have not traditionally been covered by awards. The modern award may deal with the full range of matters able to be dealt with by any modern award however the Commission must ensure that the award deals with minimum wages and meal breaks and any necessary ancillary or incidental provisions about NES entitlements.”

[6] Following this amendment to the Ministerial Request, the AIRC award modernisation Full Bench on 25 September 2009 published a draft of the Miscellaneous Award. In a Statement issued on the same day, the Full Bench said in relation to the coverage of the proposed award:

“[81] We publish a draft Miscellaneous Award 2010… While the coverage clause has been drafted to include employees not covered by any other modern award a number of qualifications are also required. For example, the exposure draft excludes employees in an industry covered by another modern award but who are not in one of the classifications in that modern award or who are specifically exempted from it. There are also provisions ensuring that the general award does not overlap with modern enterprise awards or state reference public sector awards. Proposals for a transitional clause applying to some employees in Catholic Church related employment have not been adopted at this stage but will be considered further during the consultations.

[82] The classification structure is very general with only four levels. The first level is set at the minimum wage and applies to employees with less than three months service. The second level covers an employee with more than three months service. The third level requires trade or trade equivalent qualifications. The fourth level is for a graduate employee.

[83] The draft provides for full-time, part-time and casual employees and has flexible working hours provisions. The minimum wage levels have been set having regard to minimum wages for lower skill, trades and graduate employees in other relevant modern awards. A range of generally applicable allowances is also included.

[84] It is unclear which employees will be covered by this award. It may be that it will have application in some areas of the workforce which have not been covered by awards before. Section 576L of the WR Act provides that the Commission may only include terms in modern awards to the extent that they constitute a fair minimum safety net. Because there is doubt about the existing conditions of employees who might be covered we have taken a cautious approach. We have included some provisions found in modern awards of wide application but not included others so as to reduce the risk of significant cost and employment effects.”

[7] The terms of the Miscellaneous Award were finalised in a decision issued by the AIRC award modernisation Full Bench on 4 December 2009. 3 Prior to that, on 7 April 2009, the FW Act received royal assent. Section 143(7)(a) of the FW Act, which took effect on 1 January 2010, has at all times provided as follows:

(7)  A modern award must not be expressed to cover classes of employees:

(a)  who, because of the nature or seniority of their role, have traditionally not been covered by awards (whether made under laws of the Commonwealth or the States); or

(b) who perform work that is not of a similar nature to work that has traditionally been regulated by such awards.

Note:  For example, in some industries, managerial employees have traditionally not been covered by awards.

[8] In its decision of 4 December 2009, the AIRC Full Bench said in relation to the coverage of the Miscellaneous Award it made by that decision:

“[149] Although s.143(7) does not come into operation until 1 January 2010 it is clearly relevant to the coverage of modern awards generally and the coverage of the Miscellaneous Award in particular. Common to all of the provisions we have set out is the requirement that awards should not cover employees who because of the nature or seniority of their roles have traditionally not been covered by awards. Many different approaches and drafting techniques were proposed to encapsulate that requirement. We note also the implication in paragraph 4A of the consolidated request that an award should be created to cover employees not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards.

[150] A number of submissions canvassed the purpose or function of the award. The ACTU, for example, submitted that the functions of the award should be twofold. The first is to fill gaps in modern award coverage which became apparent during the process of setting aside award-based transitional instruments as required by the Transitional Act. The second function is to provide interim coverage for emerging industries pending the making of a new modern industry award or an appropriate extension to the coverage of an existing modern award. The Australian Government took a very similar approach, while stressing the importance to the economy of ensuring that employees who have not traditionally been covered by awards remain free from modern award coverage as well. In an earlier stage in the consultations ACCI proposed that the coverage of the award should not be settled until after an audit of modern award coverage to ascertain what if any gaps there are by comparison with the existing pattern of federal and state award coverage. AiGroup and ACCI both suggested that the award be limited to employees covered by a federal or state award or a Notional Agreement Preserving a State Award (NAPSA). AiGroup proposed in addition that industries and employers could be specified in a list attached to the award to permit new industries and employers to be added as necessary.

[151] Almost without exception employer representatives criticised the breadth of coverage in the exposure draft. They suggested that employees who have traditionally been excluded from award coverage, particularly professional and managerial employees, would be covered, including those deliberately excluded from modern award coverage in earlier stages of the modernisation process.

[152] We have considered all of the submissions and decided to include an additional paragraph in the coverage clause which more closely reflects the terms of the consolidated request and the Fair Work Act. The paragraph also contains some greater definition of the types of employees excluded. It reads:

‘4.2 The award does not cover 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.’”

[153] We deal now with conditions of employment. Our approach to conditions of employment is influenced by the nature of the award’s coverage. We agree with those who have suggested that the coverage of the award is very narrow and likely to be limited in time where emerging industries are concerned or where the expansion of coverage of a modern award is involved. Accordingly we do not think the award should contain a comprehensive safety net designed for any particular occupation or industry. Rather it should contain basic conditions only, leaving room for the application of an appropriate safety net in another modern award in due course. That said, there is still room for the exercise of considerable discretion in formulating appropriate wages and conditions.

. . .

[155] We have made some alterations to the classification structure. Consistent with the intent of alterations in the coverage clause we have deleted the graduate level and replaced it with an advanced trades/sub-professional classification at a lower minimum wage level…”

[9] In another part of the same decision, in relation to the Aquaculture Industry Award 2010, the Full Bench said:

“[19] We also note that the alterations to the coverage of the Miscellaneous Award 2010 should ensure that that award will not cover those parts of the aquaculture and fishing industries which have not previously been covered by awards and which are not covered by the Aquaculture Award 2010.”

[10] The Miscellaneous Award made by the AIRC Full Bench took effect on 1 January 2010. Its coverage clause has at all time since its commencement provided as follows:

4. Coverage

4.1 Subject to clauses 4.2, 4.3, 4.4, 4.5 and 4.6 this award covers employers throughout Australia and their employees in the classifications listed in clause 14—Minimum wages who are not covered by any other modern award.

4.2 The award does not cover 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.

4.3 The award does not cover employees:

(a) in an industry covered by a modern award who are not within a classification in that modern award; or

(b) in a class exempted by a modern award from its operation,

or employers in relation to those employees.

4.4 The award does not cover employees excluded from award coverage by the Act.

4.5 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.6 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.7 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.

4.8 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

[11] Clause 4.1 links the coverage of the award to its classification structure. The classification structure and definitions are set out in Schedule B to the Miscellaneous Award as follows:

Level 1

An employee at this level has been employed for a period of less than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 2

An employee at this level has been employed for more than three months and is not carrying out the duties of a level 3 or level 4 employee.

Level 3

An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.

Level 4

An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.

The Gold Coast Kennels decision

[12] The Gold Coast Kennels decision concerned an application for approval of an enterprise agreement covering a Queensland employer which operated a pet boarding and grooming business and its employees. The particular question which arose was whether, for the purpose of the application of the better off overall test, the employer’s business was covered by the Miscellaneous Award, as the relevant union contended, or no award, as the employer contended. At first instance, it was determined that no award applied. The union appealed the decision, and a Full Bench upheld the appeal and determined that the Miscellaneous Award covered the business.

[13] The question to be determined in the appeal required the Full Bench to construe the coverage provisions in clause 4 of the Miscellaneous Award – in particular, the exclusion from coverage contained in clause 4.2. In undertaking this task, the Full Bench said:

“[36] We have earlier set out clause 4.2 of the Miscellaneous Award, which establishes the exception from the general coverage provision in clause 4.1 which AAA Pet Resort relies upon to avoid the proposition that the award covers the Employees. It is necessary at the outset therefore to construe clause 4.2 having regard to its context and purpose. Before we turn directly to the text of clause 4.2, two observations may be made about the apparent purpose of the Miscellaneous Award based on the context of the award’s terms as a whole. First, the title of the award, the terms of clause 4.1, and the broad and generic nature of the classifications descriptors in Schedule B suggest that the purpose of the award is to provide minimum (and minimalistic) conditions of employment for a miscellaneous range of employers and employees, not identified by reference to any industry, business function or occupation, who are not covered by any other modern award. Second, the classifications descriptors make it clear that no classification applies to persons with a professional qualification or managerial responsibilities, that Levels 3 and 4 were to apply to trade-qualified employees, and that Levels 1 and 2 were to apply to low-skilled employees with no particular work qualification at all. Thus it may be inferred that the award was not intended to cover professional or managerial employees, and that it was intended to cover low-skilled employees as well as trade-qualified employees not covered by any other award. In respect of low-skilled employees, the low minimum rates of pay prescribed also tend to suggest that the award was intended to capture low paid workers not covered by another award.

[37] We consider that clause 4.2 has a plain meaning based on the ordinary meaning of the words used. The exclusion in clause 4.2 has two requisite elements. Stated in reverse order, they are:

(1) the classes of employees must not have been traditionally covered by awards; and

(2) this must have been because of the nature or seniority of their role.

[38] That is, it is not sufficient for the exclusion to apply that a particular class of employees has not traditionally been covered by awards where this is not attributable to the nature or seniority of the employees’ role.

[39] It may be accepted, as submitted by AAA Pet Resort, that the remainder of clause 4.2, “...including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”, cannot be read as exhaustively stating the scope of the exclusion. Nonetheless it is plain that the identified classes of employees are intended both to serve as examples to guide the interpretation and application of the clause and to constitute the principal classes of employees excluded. Thus “managerial employees” are a class of employees traditionally excluded from award coverage because of the “seniority of their role”, and the other identified classes are specialist white collar professionals traditionally not covered because of the “nature ... of their role”. To read the clause this way is consistent with the overall context of the award to which we have referred, including the lack of any classifications applicable to managerial or professional employees.”

[14] The Full Bench went on to say that the interpretation of clause 4.2 it preferred was consistent with the terms of the prohibition in s 143(7)(a), which contained the same double requirement as the exclusion in clause 4.2. 4 It was also consistent with the Ministerial Request and the AIRC award modernisation Full Bench decision of 4 December 2009.5

[15] The Full Bench found, based on this interpretation of clause 4.2, that the employer’s pet boarding business was not excluded from the coverage of the Miscellaneous Award for two reasons. The first was that pet boarding had, prior to the making of the award, been covered by State/Territory awards in New South Wales, Victoria and the Northern Territory, and basic animal care functions in veterinary practices and animal welfare institutions had also been covered by State awards in Queensland and Western Australia. Accordingly, it could not be said that the work of the employees in the employer’s business had “traditionally not been covered by awards”. 6 The second was that, in any event, there was no reason based on the “nature or seniority of their role” for such employees not to have been traditionally covered by awards. In this respect the Full Bench said:

“[49] … It is plain that the latter consideration of seniority has no relevance, and AAA Pet Resort was unable to identify anything about the nature of their roles which would cause them to be excluded from award coverage. Animal attendants of the type to which the Agreement would apply are, as earlier discussed, lower-skilled and modestly or low-paid employees of the type which ordinarily would be most suited to award coverage. There is nothing otherwise unusual about their employment which would render them unsuited to award coverage.”

[16] The Full Bench noted that the employer, together with the entire pet boarding and grooming industry in Queensland, had operated on the belief since the FW Act came into operation (and earlier) that they were award-free. His belief had in part been engendered by advice given by the Fair Work Ombudsman (FWO) in September 2010 to the following effect:

“Historically these occupations have not been regulated by an award in the state of Queensland.

The modern award applies to national system employers and their employees who are not covered by any other modern award. However there are a number of exclusions to these coverage provisions.

Clause 4.2 states that the modern award will not apply to employees who due to the nature of their work have traditionally not been covered by awards. We are of the view that an animal attendant or dog groomer engaged in a boarding kennel facility in Queensland will not be covered by the modern award due to this exclusion.

These employees will continue to be considered award free and entitled to the provisions of the National Employment Standards and the Fair Work Act 2009.”

[17] The Full Bench said in relation to this advice:

“[50] We note the apparent reliance by AAA Pet Resort (and other Queensland pet boarding businesses) upon the correspondence from the Fair Work Ombudsman dated 8 September 2010 to which we have earlier referred. One reading of the passage from that correspondence which we have quoted is that the exclusion in clause 4.2 of the Miscellaneous Award operated specifically in relation to pet boarding businesses in Queensland because such businesses had traditionally been award-free in Queensland. We reject the proposition that clause 4.2 could be interpreted or applied on the basis that it had a differential operation as between the various States dependent on the history of award coverage in each State. Nothing in the language of clause 4.2 suggests that it could be read as capable of operation in this fashion. The purpose of the establishment of modern awards was to set a nationally consistent minimum safety net for terms and conditions of employment throughout Australia. Section 154(1), which prohibits State-based differences in modern awards (subject to a transitional period provided for in s 154(2) which expired on 31 December 2014), militates against clause 4.2 being read in a way which would provide for State-based differences in the coverage of the Miscellaneous Award.”

[18] The employer had also placed reliance on some earlier decisions of the Commission approving enterprise agreements in the pet boarding and grooming industry in Queensland, but the Full Bench observed that these decisions were either determined on a different basis or did not give any specific consideration to the coverage of the Miscellaneous Award. Finally, the Full Bench dealt with the scope of the classification structure in the award, and its relationship to the award’s coverage, as follows:

“[53] We reject the alternative submission advanced by AAA Pet Resort that the Employees were not captured by clause 4.1 of the Miscellaneous Award because they did not fall within any of the classifications. As earlier discussed, those classifications were drawn in a broad and generic way in order to capture a miscellaneous range of employees not covered by any other modern awards. They do not refer in terms to any specific industry, occupation or work function, but that does not mean they were not intended to cover anybody. We consider that, on their ordinary meaning, the classification descriptors cover the Employees.”

Submissions

Australian Industry Group

[19] The Australian Industry Group (Ai Group) accepted that clause 4.2 of the Miscellaneous Award and s 143(7)(a) of the FW Act both had two required elements, namely that the classes of employees must not have been traditionally covered by awards; and this must have been because of the nature or seniority of their role. However, it submitted, clause 4.2 could not be interpreted in a manner that resulted in the narrowing of the proscription on coverage in s 143(7) and the Miscellaneous Award could not validly contain a coverage provision that would purport to provide coverage to the classes of employees described in s 143(7). The Ai Group also submitted that it was clear that the AIRC did not intend that only award-free employees in professional and managerial roles would be excluded from the award’s coverage, and referred in this connection to the AIRC’s stated intention that the award not cover those parts of the aquaculture and fishing industries (described by the Ai Group as “fin fish and shellfish farming in Tasmania and those employed in oyster farming in New South Wales”) which had not previously been covered by awards. Further, the examples given in clause 4.2 of the Miscellaneous Award could not guide the interpretation of s 143(7)(a) or restrict its scope, and full effect had to be given to the “or” in the expression “because of the nature or seniority of their role” in that provision.

[20] In respect of the issues identified in the Commission’s directions of 3 July 2019, the Ai Group submitted that:

•  the current coverage provisions are sufficiently clear, are consistent with the Ministerial Request and do not offend s 143(7) of the FW Act;

•  it supported the current exclusions in the Miscellaneous Award, and there was no need for additional classes of employees to be identified;

•  there was nothing in the FW Act which stated that modern awards must cover all employees other than those excluded from award coverage by s 143(7);

•  it is not appropriate for employees who have been excluded from coverage under the classification structure of an industry award or who are specifically exempted from an industry award, to be included within the coverage of the Miscellaneous Award;

•  for example, website designers were deliberately not included in the coverage of the Graphic Arts, Printing and Publishing Award 2010, and senior supervisors were expressly excluded from coverage under the Aluminium Industry Award 2010;

•  the coverage provisions of the Miscellaneous Award had mostly been applied in a sensible and practical manner by all relevant parties since it came into operation, and few issues had arisen prior to Gold Coast Kennels; and

•  it was not correct that the effect of Gold Coast Kennels was that the Miscellaneous Award covers all low-paid workers in unskilled jobs; rather, its coverage is very limited.

[21] In its reply submissions, the Ai Group submitted that s 163(4) of the FW Act was a definition provision for the purpose of s 163(1) and was not an operative provision setting out the permitted scope of the Miscellaneous Award. It also submitted that the mandate provided to the AIRC to develop the Miscellaneous Award was to “create a modern award to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards”, and to construe the purpose of the award as being to cover all employees not covered by another award and not excluded by s 143(7) would be to extend coverage beyond what was intended by the Australian Government at the time. The Commission should not determine that the Miscellaneous Award was intended to apply to all non-award covered employees who are not excluded from award coverage by s 143(7), since the full extent of the award-free segments of the workforce are currently unknown and, as such, it should not be assumed that the conditions of the award are appropriate to them. If any union wished to pursue a claim for any particular types of employees to be covered by a modern award, it may do so subject to the prohibition in s 143(7). The Ai Group opposed any removal of the list of exemplar occupations in clause 4.2 or the addition of a professional classification to the award.

Australian Business Industrial and the NSW Business Chamber

[22] Australian Business Industrial and the NSW Business Chamber (ABI) submitted that:

•  the coverage provisions of the Miscellaneous Award were sufficiently clear;

•  clause 4.1 made it clear that the award is intended to cover all employers in respect of those employees who are not covered by another award and who are covered by the classifications listed in the award;

•  the first two lines of clause 4.2 exempt certain employees from the award’s coverage to ensure compliance with s 143(7)(a), and go no further than is necessary to comply with s 143(7)(a), and the examples then given are uncontroversial and provide helpful guidance as to the scope of the exemption;

•  clause 4.3 identifies further categories of excluded employees, namely employees engaged in an industry covered by a modern award to whom no classification applies and employees that form part of a class of employees excluded from the coverage of a modern award, and these exclusions are concisely defined and operate by reference to objective criteria;

•  while the drafting of the coverage provisions used different terminology to the Ministerial Request, it was consistent with it;

•  they were unaware of any instances since 1 January 2010 where classes of employees had been identified who should have been award-covered pursuant to the Ministerial Request or who were not excluded by s 143(7) but were not covered by the Miscellaneous Award or any other modern award;

•  in any event mere inconsistency with the Ministerial Request would not provide a proper basis to vary the coverage provisions of the award;

•  while the coverage exclusion in clause 4.3 is not contained in s 143(7), it is likely that employees to which it applies do not perform work of a similar nature to that which has traditionally been regulated by awards;

•  clause 4.2 must be retained to ensure compliance with s 143(7), and the Gold Coast Kennels decision confirmed it operated appropriately in that respect;

•  the only alteration to clause 4.2 that might be merited is the addition of the sentence “This Award does not cover employees who perform work that is not of a similar nature to work that has traditionally been regulated by awards” in order to reflect s 143(7)(b);

•  clause 4.3(a) was intended to reflect customary industrial award coverage, consistent with the Ministerial Request, and clause 4.3(b) was designed to exclude those classes of employees expressly left out of a modern award because they have traditionally not been award-covered;

•  this issue was raised by the Australian Meat Industry Council (AMIC) in respect of meat inspectors and their exclusion from the Meat Industry Award 2010, and clause 4.3(b) was drafted specifically in response; and

•  if any class of employees that were award-covered pre-2009 have fallen outside the scope of the award system, this would appropriately be dealt with by varying the industry awards at the relevant time.

United Workers’ Union

[23] The United Workers’ Union (UWU) submitted that the coverage clause of the Miscellaneous Award is not clear, as was made apparent in the Gold Coast Kennels decision. Prior to that decision, the entire pet boarding and grooming industry in Queensland and elsewhere incorrectly considered itself to be award-free, and the FWO had given incorrect advice about this. Accordingly, the UWU submitted, there was value in reviewing clause 4.2 of the award to improve its clarity and to ensure that it only excludes the classes of employees noted in paragraph 4A of the Ministerial Request. In this respect, the UWU submitted that clauses 4.2 and 4.3 of the award exclude from coverage broader groups of employees than intended by the Ministerial Request and by s 163(4) of the FW Act, and that the award should cover all employees who are not covered by a modern award and who are not excluded from modern award coverage by s 143(7) of the FW Act.

[24] The UWU proposed that clause 4.2 be amended to reflect the construction of the clause set out in paragraph [37] of the Gold Coast Kennels decision and to remove the list of occupations. This, it submitted, would focus on the seniority and managerial functions of the employee rather than shortlisting likely excluded professions or specialised areas of work which might be subject to change or become redundant. There also might be a need to vary the higher classifications in the award in accordance with any clarification of the award’s coverage in respect of degree-qualified or professional employees.

[25] In respect of clause 4.3, the UWU submitted that it may be read as excluding employees otherwise falling within the scope of coverage delineated by clause 4.1 without any reasonable justification for doing so. The UWU pointed to two examples of this based on advice given by the FWO. First, the FWO advises that child minders employed in fitness centres are award-free because they are not covered by the industry award, the Fitness Industry Award 2010, which contains no relevant classification, and this means they are also excluded under clause 4.3 of the Miscellaneous Award. Second, the FWO advises that family day care employees are likewise award-free because there are no classifications applicable to them in the relevant industry awards, the Children’s Services Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010, and the exclusion in clause 4.3 of the Miscellaneous Award applies. The UWU identified cleaners employed in and by private correctional facilities and security guards not employed in the contract security industry as other possible examples. It submitted that these roles are not senior, they concern work of a type which has traditionally been regulated by awards, and there is no logical reason for them to be award-free. Clause 4.3, it submitted, permitted low and modestly-paid employees performing work traditionally covered by awards to be treated as award-free and disentitled to a range of award conditions including minimum award wages, penalty rates and overtime rates, and should be deleted.

Community and Public Sector Union

[26] The Community and Public Sector Union (CPSU) submitted that, as the Gold Coast Kennels decision demonstrated, the exclusions in clause 4.2 are not sufficiently clear. The list of examples of professional employees are excluded on the basis that they are not traditionally covered by awards, but in fact in some industries employees such as public sector lawyers and human resources and information technology specialists have long been award-covered. That leaves it unclear if clause 4.2 excludes these employees completely or only to the extent that they have not traditionally been covered by awards.

[27] The Miscellaneous Award was intended to cover four classes of employees, the CPSU submitted, which were:

(1) Employees covered by pre-reform awards who are no longer covered by these awards and who are not covered by another award. This included employees of Central and Northern Land Councils after the termination of their award and prior to the making of the Australian Government Industry Award 2016.

(2) Employees formerly covered by an enterprise award which ceased operation in 2013 for whom a modern award was not made, and no other modern awards covers them.

(3) Employees in industries that may not previously have been covered by an award, but who perform work of a similar nature to that which is traditionally award-covered, such as pet hostels.

(4) Employees in new or emerging industries who do not fall within the scope of an existing industry award. These employees may only temporarily be covered by the Miscellaneous Award until a new industry award is made or the coverage of an existing award extended.

[28] The CPSU submitted that the list of examples of excluded employees in clause 4.2 goes beyond the Ministerial Request because it includes employees who have traditionally been award-covered. It also submitted that the classification structure, by excluding all roles requiring professional qualifications, may exclude employees who have traditionally been award-covered. It further submitted that the Miscellaneous Award should cover all employees who are not covered by another modern award and who are not excluded from award coverage by s 143(7).

Australian Council of Trade Unions

[29] The Australian Council of Trade Unions (ACTU) made submissions in response to those made by the Ai Group and ABI. It submitted, contrary to the position of the Ai Group, that the Gold Coast Kennels decision (which rejected the views of a single member of the Commission and the FWO) strongly suggested the existence of ambiguity and inconsistency with the requirement in the modern awards objective that modern awards be simple and easy to understand.

[30] In response to ABI, the ACTU submitted that that there were two clear misalignments between the Ministerial Request and the coverage clause of the Miscellaneous Award: the first was that the award excludes all managerial employees whereas the request raises them only as a potential example, and the second is that clause 4.3 of the award explicitly excludes those excluded from or not included in other modern awards whereas the request is based on the different concept of the exclusion of employees who do not perform work of a similar nature to that which has traditionally been covered by awards. The ACTU submitted that clause 4.3 is not for that reason a proxy for limiting the award’s coverage to those classes of employees traditionally covered by awards, and if this was its intention it misfired.

Consideration

[31] We consider that the starting point of our consideration is necessarily s 143(7), the prohibition in which establishes an absolute limit to the potential coverage of the Miscellaneous Award irrespective of any other merit considerations. We note at this point that the relevant effect of s 137 read together with s 136(1)(b) is, to the extent that a coverage term in a modern award is expressed to cover classes of employees the subject of the prohibition in s 143(7), it has no effect.

[32] There are four conclusions which may be stated about the proper construction of s 143(7). The first is that it prohibits modern awards being “expressed to cover” the specified classes of employees. That is, the prohibition operates by reference to the terms in which the coverage provisions of a modern award are framed, and requires that such provisions, properly interpreted, not have the effect of extending coverage to the proscribed classes of employees. It does not require that the terms of the award coverage clause simply repeat or incorporate the words of the subsection, or that it contain an express exclusion of the proscribed classes of employees from the coverage of the award.

[33] Second, s 143(7) identifies in paragraphs (a) and (b) two separate classes of employees, separated by the disjunctive “or”. That means that if the coverage term of an award clause is expressed to cover employees falling in one or both of paragraphs (a) and (b), it offends the prohibition.

[34] Third, in relation to s 143(7)(a), we consider that the construction of the words “…those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards…” in clause 4.2 of the Miscellaneous Award adopted in paragraphs [37]-[38] of the Gold Coast Kennels decision is equally applicable to s 143(7)(a) (noting that clause 4.2 was evidently intended by the AIRC award modernisation Full Bench to reflect the terms of s 143(7)(a)). That is, on the plain meaning of s 143(7)(a), the class of employees the subject of the prohibition consists of those employees who:

(1) have not traditionally been covered by awards (State or federal); and

(2) have not traditionally so been covered because of the nature or seniority of their role.

[35] The class of employees in s 143(7)(a) therefore does not include employees who have not traditionally been covered by awards for a reason other than the nature or seniority of their role. The obvious and perhaps primary example of this would be employees performing new or emerging types of work who have not yet been the subject of any application or considered for award coverage. Another possible example is obscure groups of employees who have historically simply “fallen through the gaps” of award coverage.

[36] Fourth, the prohibited class in s 143(7)(b) consists of employees who perform work that is not a similar nature to work that has traditionally been regulated by awards – regardless of why this is the case, unlike s 143(7)(a). However, to fall within this class, the work must not be “similar in nature” - that is, not of a character, kind or sort that has a likeness or resemblance 7 - to traditionally award-regulated work. Thus, merely because employees perform work that is not the same as traditionally award-regulated work is not sufficient by itself to place them within the prohibited class in s 143(7)(b). It is also to be noted that s 143(7)(b) operates by reference to “work” that has traditionally been “regulated” by awards, unlike s 143(7)(a) which is concerned with employees traditionally not “covered” by awards. Thus employees who perform work which resembles in character or kind any work which has traditionally been the subject of award regulation will not fall within the excluded class.

[37] The issues arising in our review of the coverage provisions of the Miscellaneous Award primarily concern clauses 4.2 and 4.3. The first question which arises is whether these provisions are necessary to ensure that the Miscellaneous Award is not expressed to cover employees excluded from award coverage by s 143(7). An alternative way to frame this question is: does clause 4.1 (independent of the subsequent exclusions in clauses 4.2 and 4.3) conform with s 143(7)? This requires an examination of the existing clauses 4.1 and 4.4.

[38] We have earlier set out the terms of clause 4.1 and the discussion of its purpose and effect in Gold Coast Kennels. Reading clause 4.1 together with the classification structure set out in Schedule B of the award, it may in summary be read as encompassing employees performing lower-skilled, semi-skilled or trades-qualified work who are not covered by another modern award. It clearly does not include managerial or professional employees since these are not accommodated in the classification structure, in accordance with the express determination of the AIRC award modernisation Full Bench. That being the case, there is no strict legal necessity for any provision excluding such employees.

[39] On the basis of the material before us, it is difficult to say that clause 4.1 does not by itself conform with s 143(7). Dealing with s 143(7)(b) first, we consider that the work performed by employees covered by the award as described in the classification structure is work of a kind resembling that traditionally covered by awards – that is, lower-skilled, semi-skilled or trades-qualified work of a non-managerial, non-professional nature. No party before us was able to identify any credible example of employees falling within scope of clause 4.1 who are excluded from award coverage by virtue of s 143(7)(b).

[40] It is equally difficult to identify any classes of employees who might fall within the scope of clause 4.1 who are excluded from award coverage because of 143(7)(a). We will deal later in this decision with some groups of employees whom it was suggested might fall in this category. However the point that needs to be made at the outset is that even if any such classes are excluded from modern award coverage because of s 143(7)(a), and clause 4.1 of the Miscellaneous Award may be read as encompassing them, it does not follow that the award is expressed as covering them in contravention of s 143(7). That is because clause 4.4 excludes from the coverage of the award “…employees excluded from award coverage by the Act”. Clause 4.4 is a standard provision which appears in the coverage term of every modern award, and ensures (among other things) that no award is expressed to cover employees falling within the proscribed categories in s 143(7)(a) and (b).

[41] Having regard to the meaning and effect of clauses 4.1 and 4.4 of the Miscellaneous Award, it is therefore clear that clauses 4.2 and 4.3 are not necessary for the purpose of achieving compliance with s 143(7). What purpose do they therefore serve? Starting with clause 4.2, it does not appear to us to serve any legal purpose. The first part of the clause (“The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards…”), as earlier discussed, repeats the terms of s 143(7)(a) and, in that respect, overlaps with the exclusion in clause 4.4. It cannot be said that this part of the clause assists in providing clarity and guidance to users of the award since, in the case of the Gold Coast Kennels litigation, it appears that an entire industry sector in one State formed the incorrect view that it was excluded from the operation of the Miscellaneous Award in reliance upon this provision. That is a serious matter, since it is likely to have resulted in contraventions of s 45 of the FW Act and the underpayment of employees. An employer engaging low-paid employees performing lower-skilled manual work functions should be very slow to conclude that such employees are excluded by s 143(7) of the FW Act from award coverage, and this should occur only after the receipt of detailed legal advice concerning the FW Act and the relevant history of award coverage. Clause 4.4 effectively guides employers in this direction, but the first part of clause 4.2 may not.

[42] The second part of clause 4.2 (“including managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”) does not serve any legal purpose since, as already explained, the coverage of the award set out in clause 4.1, read with the classification structure, plainly does not include managerial or professional employees such that no exclusion of them from coverage is required. However we accept that it may serve a practical purpose of making it clear, for more abundant caution and without requiring an examination of the classification structure, that such employees are not covered by the Miscellaneous Award. We note the CPSU’s submission that some of the professional employees included in the list of examples have traditionally been the subject of award coverage, particularly in the public sector but in some cases elsewhere. We consider that any provision in the Miscellaneous Award expressing a specific exclusion of such employees from the coverage of the award should be included only on the basis that they are not encompassed by the coverage of the award delineated in clause 4.1, and not on the basis that they are necessarily excluded from award coverage by s 143(7)(a). As earlier stated, clause 4.4 addresses the exclusion from coverage of the classes of employees in s 143(7). Our provisional view is therefore that clause 4.2 should be varied to provide: “The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.”

[43] It was faintly suggested by the UWU and the CPSU that the classification structure of the Miscellaneous Award should be amended to include professional/managerial employees who are not excluded from award coverage by s 143(7) and who are not covered by any other modern award. We are not prepared to do this in an undirected and non-specific way as part of this review. If either union wishes that the Miscellaneous Award be varied to include classifications for professional/managerial employees who are capable of being covered by a modern award, it should do so by specific and separate application. Such an application would need to identify with precision the group of employees in question, and it would need to be demonstrated by reference to award history that any such group is not excluded from award coverage under s 143(7) and is not covered by another award.

[44] We turn now to clause 4.3. We do not accept ABI’s submission that the clause’s purpose is to serve as a proxy for employees excluded from modern award coverage under s 143(7)(b) because, as earlier explained, the function of achieving compliance with s 143(7) is fully achieved by clause 4.4. If that was its originally intended purpose, it is surplusage and redundant. It seems to us that the current and practical effect of clause 4.3 is to exclude from the coverage of the Miscellaneous Award employees who are permitted to be covered by a modern award, but who work in an industry covered by a modern award which either expressly excludes them from its coverage or does not contain a classification applicable to them. However the rationale for the exclusion of such employees from the coverage of the Miscellaneous Award, which as earlier explained only covers employees performing lower-skilled, semi-skilled or trades-qualified work, is not clear. The Ministerial Request which directed the making of the award did not require or suggest that any such provision be made. The AIRC under that request was required to make a modern award “…to cover employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards…”. As we have earlier explained, the coverage of the award as disclosed by clause 4.1 is in respect of employees performing work of a similar nature to that which has historically been regulated by awards. The only exclusion referred to in the request was in respect of managerial employees, and that was on the basis that they had not traditionally been covered by awards (and would thus be excluded from coverage by s 143(7)(a) when it came into effect). Because the effect of clause 4.3 is to exclude from the award’s coverage employees who are not covered by another modern award and who perform work of a similar nature to that which has historically been regulated by awards, we do not consider that was ever consistent with the Ministerial Request.

[45] The position may be illustrated with respect to two categories of employees referred to in the UWU’s submissions, namely cleaners and security guards. Such employees are not excluded from award coverage by s 143(7), since they have traditionally been the subject of award coverage; for example, there were common rule awards covering cleaners and caretakers in at least New South Wales (Miscellaneous Workers’ General Services (State) Award 8), Western Australia (Cleaners and Caretakers Award, 19699) and South Australia (Caretakers and Cleaners Award10). However there is no occupational modern award which covers all cleaners or security guards. The Cleaning Services Award 2010 and the Security Services Industry Award 2010 cover respectively cleaners employed by contract cleaning businesses and security guards employed by contract security businesses only. Some industry awards have classifications for cleaners and/or security guards directly employed by employers in the relevant industry: the Hospitality Industry (General) Award 2010 is an example of an award which contains both. However other industry awards do not contain these classifications. As an example, a building/construction business may directly employ a security guard to watch over a building/construction site in non-working hours, but the Building and Construction General On-site Award 2010 contains no classification for and therefore does not cover such an employee. This employee would not by virtue of clause 4.3(a) be covered by the Miscellaneous Award and would be award-free, notwithstanding that the employee is not excluded from modern award coverage by s 143(7).

[46] We can identify no intelligible industrial rationale for this outcome. With respect to cleaners and security guards, who generally perform lower-skilled duties for low or modest pay, we see no reason why the identity of their employer should make a difference as to whether such employees have the benefit of award entitlements or not. Being award-free means, among other things, that such employees have a lesser entitlement to minimum wages (being only entitled to the National Minimum Wage), and have no entitlement to penalty rates for working unsociable hours or for overtime, in circumstances where the work performed is the same as that of award-covered employees.

[47] Neither the AIRC award modernisation Full Bench’s statement of 25 September 2009 nor its decision of 4 December 2009 explain the rationale for clause 4.3. There is no suggestion that the outcome to which we have just referred was intended. Nor is there any indication that the Full Bench intended to make award-free employees who had previously been covered by an award.

[48] It might be added that clause 4.3 is likely to be difficult for a lay user of the Miscellaneous Award to readily understand and apply. In respect of any given employee, it requires, first, that the employee’s industry to be identified; second, that the modern award applicable to that industry (if any) be identified; and, third, that this industry award be perused to see if the employee is expressly excluded from the award’s coverage or if there is a classification applicable to the employee. Only once this is done can a conclusion be reached as to whether the exclusion in clause 4.3 is applicable.

[49] The Ai Group and ABI between them identified a total of five classes of employees that might be affected by any modification to the coverage provisions of the Miscellaneous Award:

(1) aquaculture employees not covered by the Aquaculture Industry Award 2010;

(2) staff employees engaged in senior supervisory positions excluded from coverage of the Aluminium Industry Award 2010 by clause 4.3(d) of that award;

(3) public relations professionals;

(4) website designers; and

(5) meat industry inspectors.

[50] In respect of the first category, said to consist of employees engaged in fin fish and shellfish farming in Tasmania or oyster farming in New South Wales, clause 4.1 of the Aquaculture Industry Award provides that it “applies throughout Australia to employers engaged in the breeding, production, farming and related harvesting of fish, shellfish, crustacea and marine vegetation and operations ancillary thereto including initial preparation for market and their employees in the classifications in Schedule B—Classification Structure”. No particular category of employee in the aquaculture industry is excluded. Clause 4.2 of the award contains the standard exclusion “The award does not cover an employee excluded from award coverage by the Act”. It appears therefore that the only excluded employees would be employees who are excluded from award coverage by virtue of s 143(7) of the FW Act. We infer that this is what the AIRC award modernisation Full Bench had in mind in paragraph [19] of its decision of 4 December 2009 (earlier quoted), which refers to “those parts of the aquaculture and fishing industries which have not previously been covered by awards and which are not covered by the Aquaculture Award 2010”.

[51] In its submissions, the Ai Group said this aspect of the decision arose from a written submission made by the National Aquaculture Council (NAC) on 18 October 2009 and oral submissions made on 26 October 2009, as part of the conduct of the award modernisation process. However it is far from clear that those submissions demonstrated that any particular segment of the aquaculture industry had traditionally been award-free. In its written submissions of 18 October 2019, the NAC’s primary contention was that the entire industry had predominantly been award-free and should remain so. The AIRC award modernisation Full Bench’s decision to make an Aquaculture Industry Award presumably involved a rejection of that proposition.

[52] In its oral submissions of 26 October 2009, the NAC did not contend that “fin fish and shellfish farming in Tasmania and those employed in oyster farming in New South Wales” had traditionally been award-free, as the Ai Group suggested in its submissions. Rather, we apprehend that it submitted the opposite: its concern was that these areas of the industry were the only sector which had traditionally been award-covered and that as a result they might be covered by the proposed Miscellaneous Award, in circumstances where the NAC was otherwise contending that the industry had been and should remain award-free. Thus the NAC said:

“…In essence what I would say to your Honours is that we would wish that the class of employees, being those employees as defined for aquaculture and wild catch fishing be expressly excluded from the coverage of this award. We say that because we find that the strange position, or I would call it strange, arises, that if 4.2(b) was pursued, as obviously AI Group and others intend to pursue it, it would have the impact of leaving some classes of employees, namely those employed in fin fish and shellfish in Tasmania and those in oyster farming in New South Wales clearly open to be covered by the Miscellaneous Award whilst the rest of those industries, depending on the outcome of next Friday, could well be award free.

The basis for this request goes to not even a question of fairness, but it would seem to me that it offends the spirit at least, if nothing else, of section 154, and my instructors believe that what we were trying to get away from was this sort of situation where, by whatever manner it occurs, we find shellfish farmers and fin fish farmers in Tasmania along with oyster farmers in New South Wales under a different level of regulation than the rest of the industry in Australia…” 11

[53] It is clear that “fin fish and shellfish farming in Tasmania and those employed in oyster farming in New South Wales” have traditionally been award-covered. In Tasmania, an award of the Tasmanian Industrial Commission, the Fish, Aquaculture and Marine Products Award, 12 applied to “the industries of producing and processing fish, aquaculture and marine products”, and included classifications for “Sea Based Finfish Farm Attendant”. Another award of the Tasmanian Industrial Commission, the Shellfish Industry Award,13 previously covered “the industry of producing live shellfish and includes the marine farming of oysters, mussels, clams, scallops and abalone”. In New South Wales, oyster farming was previously covered by an award of the NSW Industrial Relations Commission, the Oyster Farms, &c. (State) Award.14 Accordingly there can be little doubt that such employees are not excluded from award coverage by s 143(7) and are now covered by the Aquaculture Industry Award. The coverage terms of the Miscellaneous Award are not relevant to them.

[54] The second category consists of staff employees in a senior supervisory role who are excluded from coverage of the Aluminium Industry Award 2010 by clause 4.3(d) of that award (together with staff employees in managerial, professional or scientific roles). That exclusion was the result of a decision of the AIRC award modernisation Full Bench issued on 4 September 2009. 15 The rationale for the exclusion is not expressly stated in the decision, but we infer that it was because such employees had not traditionally been covered by awards. We have undertaken a preliminary examination of pre-modern award coverage of the aluminium industry. That examination suggests that earlier awards were generally made on an enterprise basis and did not include explicit classifications for staff employees in senior supervisory roles. Our preliminary view is therefore that such employees are excluded from modern award coverage by s 143(7)(a), and are excluded from the coverage of the Miscellaneous Award by the current clause 4.4. Any interested party which takes a contrary view may make further submissions in accordance with the direction at the end of this decision.

[55] The third category, public relations professionals, are currently excluded from the coverage of the Miscellaneous Award by clause 4.2, and that would continue to be the case under the modified clause 4.2 proposed above.

[56] The fourth category is website designers. To the extent that website designers are not covered by the Graphic Arts, Printing and Publishing Award 2010, we do not consider that by default they would necessarily be covered by the Miscellaneous Award. The Ai Group contends in its submissions that they were excluded from the coverage of the former award because there were no pre-modern awards covering work of this nature. If so, they are excluded from modern award coverage by s 143(7)(a) (unless the work was not award-covered because it was “new or emerging” as at 2009), and from the coverage of the Miscellaneous Award by the current clause 4.4. No modification to clause 4.2 or 4.3 would affect this. No party contradicted the Ai Group’s submissions concerning the pre-modern award coverage of website designers. Even if website designers are not excluded by s 143(7)(a), they are to our knowledge required to be degree or diploma-qualified. Such employees do not fall within the classification structure in the Miscellaneous Award, and are thus not within the scope of coverage in clause 4.1, regardless of any alterations which might be made to clauses 4.2 or 4.3. If any interested party disagrees with these conclusions, it may make further submissions in accordance with the direction at the end of this decision.

[57] In respect of meat inspectors, the position is a little more complex. Meat inspectors employed by the Australian Government have traditionally been award-covered, and are currently covered by the Australian Public Service Enterprise Award 2015. However, clause 4.3(a) of the Meat Industry Award 2010 exempts from its coverage “meat inspectors (being employees of an employer covered by this award who are engaged to perform duties equivalent to duties usually performed by AQIS Meat Inspectors)”. This exemption arose from a submission made by the AMIC in the award modernisation process on 12 June 2009 that such employees “by reason of their seniority and independent activity, were traditionally not covered by federal meat awards”. If this is correct, such meat inspectors would be excluded from award coverage by s 143(7) and from the coverage of the Miscellaneous Award by the current clause 4.4. While it is apparent that that privately-employed meat inspectors were traditionally not covered by awards, it seems unlikely however that this was because of their “seniority”, given that Australian Government inspectors were award-covered. The AMIC notably did not contend that private meat inspectors were excluded from award coverage because of the nature of their work. The more likely explanation is that award coverage simply failed to follow the fairly recent reform of the meat industry whereby export meat inspection was effectively privatised. If this is the case, then it may be that clause 4.3 in its current form serves to exclude meat inspectors from coverage under the Miscellaneous Award, and its deletion would affect that position. We invite further submissions about this in accordance with the direction at the end of this decision.

[58] Our provisional conclusion is that the inclusion of clauses 4.2 and 4.3 in the coverage term of the Miscellaneous Award results in the award not achieving the modern awards objective in s 134(1). In reaching that provisional conclusion, we have taken into account the required considerations in s 134(1) in the following way (using the paragraph designations in the subsection):

(a) The effect of clause 4.3 of the Miscellaneous Award is that it excludes low-paid employees contrary to the outcome intended by the Ministerial Request, and to that extent it does not meet the needs of the low-paid.

(b) We consider this to be a neutral consideration.

(c) We consider this to be a neutral consideration.

(d) To the extent that clause 4.3 currently excludes employees from the coverage of the award who would otherwise be covered, we do not consider that it promotes flexible work practices and the efficient and productive performance of work. As the Full Bench stated in 4 yearly review of modern awards – Proposed Helicopter Aircrew Award, the award does not provide a comprehensive safety net for any particular industry or occupation, but rather provides only for basic “catch-all” conditions, including a simplified and generic classification structure and a “fairly rudimentary” scheme of overtime rates and night-time and weekend penalty rates. 16 There is no feature of it which we consider would affect efficiency and productivity. Therefore this is a neutral consideration.

(da) Because clause 4.3 excludes from the award employees who would otherwise be covered, it means that such excluded employees do not have any entitlement to additional remuneration when working overtime, unsocial, irregular or unpredictable hours, weekends, public holidays or shifts.

(e) We do not consider this consideration to be relevant.

(f) The inclusion of employees within the coverage of the Miscellaneous Award who are currently excluded by clause 4.3 may have the result of increasing employment costs and the regulatory burden for some employers, but in the context where the award as earlier stated only provides for basic conditions of employment this is unlikely to be significant. Productivity is a neutral consideration.

(g) For reasons which we have set out earlier in this decision, we do not consider that clauses 4.2 and 4.3 are simple or easy to understand.

(h) We consider this to be a neutral consideration.

[59] Consistent with our reasons and conclusions set out above, our provisional view is that clause 4 of the Miscellaneous Award should be varied to provide as follows:

4. Coverage

4.1 Subject to clauses 4.2, 4.3, 4.4, and 4.5 this award covers employers throughout Australia and their employees in the classifications listed in clause 14—Minimum wages who are not covered by any other modern award.

4.2 The award does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists.

4.3 The award does not cover employees excluded from award coverage by the Act.

4.4 The award does not cover employees who are covered by a modern enterprise award, or an enterprise instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.5 The award does not cover employees who are covered by a State reference public sector modern award, or a State reference public sector transitional award (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)), or employers in relation to those employees.

4.6 This award covers any employer which supplies on-hire employees in classifications set out in Schedule B and those on-hire employees, if the employer is not covered by another modern award containing a classification which is more appropriate to the work performed by the employee. This subclause operates subject to the exclusions from coverage in this award.

4.7 This award covers employers which provide group training services for apprentices and trainees under this award and those apprentices and trainees engaged by a group training service hosted by a company to perform work at a location where the activities described herein are being performed. This subclause operates subject to the exclusions from coverage in this award.

[60] We will allow interested parties a period of 21 days to provide any evidence or submissions they wish to make in response to the provisional conclusions expressed in this decision. In particular, we invite parties which consider that the deletion of clause 4.3 would result in any particular class of employees being inappropriately covered by the Miscellaneous Award to make submissions, supported by evidence if necessary, seeking a specific exclusion of such a class from the coverage of the award. Such evidence and submissions will need to:

(1) identify with precision the class of employees in question;

(2) demonstrate that the class of employees are not excluded from modern award coverage by s 143(7) of the FW Act (and are thus not already excluded by the existing clause 4.4); and

(3) demonstrate that the minimum wage rates and conditions of employment provided for by the Miscellaneous Award are not appropriate for that class.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR716674>

 1   [2019] FWC 3934

 2   [2018] FWCFB 128

 3    [2009] AIRCFB 945

 4   [2018] FWCFB 128 at [41]

 5   Ibid at [41]-[43]

 6   Ibid at [47]-[48]

 7   Macquarie Dictionary definitions

 8   AN120344

 9   AN160064

 10   AN150028

 11   Transcript 26 October 2009, PNs 271-272

 12   AN170036

 13   AN170124

 14   AN120399

 15   [2009] AIRCFB 826 at [25]

 16   [2019] FWCFB 4748 at [62]