Determining whether your employees are award-free

In a recent case before the FWC,[1] an appeal to quash the approval of the AAA Pet Resort Enterprise Agreement considered whether employees were covered by the Miscellaneous Award 2010 as opposed to being classified “award-free”. It was submitted that the pervious commissioner erred in finding that the employees were not covered by an award.

The employer, which operates a luxury pet resort accommodation, provides pet boarding and grooming services. The employees are categorised into Level 1,2 and 3 Animal Attendants, with pay rates ranging from $17.70 per hour up to $23.00 per hour. It was the employer’s view that pet attendants were “award-free” in Queensland. During the appeal, it was argued by United Voice, who brought the appeal, that the employees were in fact covered by the Miscellaneous Award 2010. The Union contended, that to be excluded from the Award, the FWC must be satisfied that the employees must not have been traditionally covered by an award and this must have been because of the nature and seniority of their roles.

United Voice submitted that the type of work being carried out by the AAA Pet Resort employees had previously been covered by various awards in Victoria, New South Wales, Northern Territory and Western Australia. Whilst it was acknowledged that there has never been an applicable award in QLD, the FWC rejected the employer’s reliance upon correspondence with a FWO representative which affirmed that pet boarding businesses were excluded from the Miscellaneous Award because such businesses had traditionally been award-free in Queensland. Additionally, the FWC commented that the purpose of establishing the federal awards system was to set a nationally consistent minimum safety net for terms and conditions of employment Australia-wide. 

The FWC referred to the principle that the purpose of the Miscellaneous Award is to “provide minimum 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”. As such, it was found that the Miscellaneous Award was applicable to the employees, and the decision to approve the Enterprise Agreement, which had not been assessed against any BOOT analysis, was quashed and remitted for redetermination.

Lessons for Employers

  • Do you know what award applies to your employees?
    • Refer to clause 4 of the award (also known as the ‘Coverage clause’) to check the industry and/or type of employees covered /not covered by the award.
    • Check the classification levels that cover the work that employees perform. This is contained in a schedule to the award.
  • Ensure that entitlements are provided in accordance with the terms of the award provisions. Otherwise, employers may be exposed to underpayment claims and penalties for breaching the award under the FWA.
  • Generally, the Miscellaneous Award is taken to exclude senior employees such as managers and professional employees such as accountants/financial advisors, marketing, legal, human resources, public relations and information technology specialists. In saying that, each case should be considered based on its individual circumstances.

[1] United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort (C2017/4888) (12 January 2018).

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