The effect of a recent Fair Work Commission (FWC) decision is that very few employees will be receiving just the minimum wage.
Industrial awards have long formed part of the safety net of employee conditions in Australia, particularly for non professionals and managers. However, this coverage has historically been confined to particular occupations and industries, often depending on their degree of unionisation. This hotch potch of awards was modernised and federalised in 2010. One of the outcomes was the creation of the Miscellaneous Award 2010. Contrary to the title, the Miscellaneous Award does not cover all employees not otherwise covered by a specific award (just as the Professional Employees Award does not cover all professionals). It excludes those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards.
The common view has been that the Miscellaneous Award only covers lower paid employees who were award covered before 2010. However, a recent FWC Full Bench decision (United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort) has turned this view upside down. Despite there being no significant history of award coverage, the FWC held that animal attendants at pet resorts are the type of lower skilled and modestly paid employees of the type most suited to award coverage and were covered by the Miscellaneous Award. The FWC said there must be something unusual about a person’s employment to exclude them from coverage.
The FWC made this finding despite the employer having a letter from the Fair Work Ombudsman providing assurance that there was no award coverage. It is clear from the decision that views expressed by the Fair Work Ombudsman are not binding or always influential on the FWC.
Most supervisors, managers and professionals (but not all) will continue to be excluded from award coverage. However, virtually all low paid workers will be entitled to award pay rates and conditions (including overtime, penalty rates and allowances). IT and web based industries are likely to be most affected as are other niche industries (eg pet minding) and jobs (eg some nannies and salespeople). Employers should seek advice to clarify their award coverage position, check award requirements to make sure they are meeting payment obligations and consider any backpay obligations. Concerned employees should also seek advice about their entitlements.