Miscellaneous Award Summary 2020

In this article, we detail some of the key provisions in the Miscellaneous Award Summary 2020 including what sorts of businesses it covers, the different levels of employee classifications under the Award and guidance on employee entitlements.

Employment Innovations advises a large number of organisations in this sector and has produced this Miscellaneous Award Summary 2020 to help employers cut through the complexities of the award.

If you require any assistance in understanding your rights or obligations under the Award, please contact us.

Table of Contents

Coverage

The Miscellaneous Award is designed as a “catch-all” award to cover employees throughout Australia who are not covered by any other modern award. 

There is an important exception, however, in that the Award states that “it does not cover managerial employees and professional employees such as accountants and finance, marketing, legal, human resources, public relations and information technology specialists”. Those employees are likely to be award-free, if no other award applies to them.

Determining whether someone would be deemed to be a “managerial or professional employee” is a difficult process. An approach the Fair Work Commission / the courts have taken in the past is to refer to the long list of professional employees in the Australian and New Zealand Standard Classification of Occupations (ANZSCO).

If the role is listed there, it is likely to be deemed a “professional” role and therefore the Miscellaneous Award cannot apply. Confusingly, very similar roles may not always be considered to be of the same status. A salesperson in the Information and Communications Technology  (ICT) industry is deemed a professional employee under the ANZSCO classifications, but a salesperson selling cars is not.

Similarly, determining whether someone would be deemed to be “managerial employee” is a difficult task, but employees who are preliminary engaged in management tasks rather than being “on the job” or “on the tools” would likely to be found to be managerial employees, and so outside the scope of the Miscellaneous Award.

It should also be noted that just because someone works in a finance/marketing/HR team does not mean that someone is deemed to be a professional employee (and excluded from the coverage of the Award). A junior employee doing administrative work in a marketing team (for example) is unlikely to be subject to the exclusion under the Miscellaneous Award and so would either be covered by the Miscellaneous Award or the Clerks – Private Sector Award 2020.

Lastly, we note that the classification structure under the Miscellaneous Award only extends up to Level 4, which is described as follows: “An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.”  Senior employees who require degree-level qualifications to perform their role are likely to be outside of the scope of the Award, but it is not possible to have a clear-cut rule on this – much will depend on the nature of the role itself. 

As a rule of thumb, if there is no other award that applies to a relatively junior, non-managerial role, it is likely to be covered by the Miscellaneous Award.

If you require assistance in determining whether a particular role is caught by the Miscellaneous Award, please contact us.

National Employment Standards

The National Employment Standards (NES) contains minimum terms and conditions which apply to each employee, regardless of whether they are also covered by the Miscellaneous Award. 

The Award states that the employer must ensure that copies of the Award and the NES are available to all employees to whom they apply. A convenient place to do this is having links to the Award and the NES written within an employee’s employment contract.

Individual Flexibility Arrangements

An employer and an individual employee may agree to vary the application of the terms of the Miscellaneous Award relating to any of the following in order to meet the genuine needs of both the employee and the employer:

1. arrangements for when work is performed;
2. overtime rates;
3. penalty rates;
4. allowances;
5. annual leave loading.

This agreement can only be made without coercion or duress, after the individual has commenced employment with the employer. It must result in the employee being better off overall at the time the agreement is made.

If an employer wishes to initiate an agreement they must give the employee a written proposal and take reasonable steps (including providing a translation to an appropriate language) to ensure that the employee understands the proposed agreement.

An agreement must be in writing setting out the name of the employee and employer, signed by both the employer and employee (if the employee is under 18, then their parent or legal guardian) with a record of the agreement provided to the employee and kept by the employer which:

1. states the names of the employer and the employee; and
2. identifies the award term, or award terms, the application of which is to be varied; and
3. sets out how the application of the award term, or each award term, is varied; and
4. sets out how the agreement results in the employee being better off overall at the time the agreement is made than if the agreement had not been made; and
5. states the date the agreement is to start.

An agreement may be terminated at any time by written agreement between the employer and employee, after a notice period of 13 weeks. 

Back to top of page

Requests for Flexible Working Arrangements

Employee may request change in working arrangements

An employee can request for a change in working arrangements under section 65 of the Fair Work Act.

This section of the Fair Work Act provides for certain employees to request a change in their working arrangements because of their circumstances. An employer may only refuse such a request for a change in working arrangements on ‘reasonable business grounds’, as detailed below.

Responding to the request

Before responding to a flexible working arrangement request, the employer must discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:

1. the needs of the employee arising from their circumstances;
2. the consequences for the employee if changes in working arrangements are not made; and
3. any reasonable business grounds for refusing the request.

The employer must give the employee a written response to an employee’s request within 21 days, stating whether the employer grants or refuses the request. 

If the employer refuses the request, then the written response must include details of the reasons for the refusal.

If the employer refuses the request, the written response must:  

• Include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.
• State whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and
• If the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

Any disputes that may arise with regard to this matter should be dealt with following the Consultation and Dispute resolution section of the Miscellaneous Award. 

Types of Employment and Classifications

Types of employment

The Miscellaneous Award provides for three employment types:

Offers and requests for casual conversion

Offers and requests for conversion from casual employment to full-time or part-time employment are provided for in the NES. Certain casual employees must be offered conversion to permanent employment after 12 months of service, see our guidance here.

Classification level

An employee covered by the Miscellaneous Award will fall into one of four classification level’s. An employee’s classification is usually based on their level of skill, autonomy, responsibility and / or qualifications. Each classification has a minimum base hourly / weekly base rate associated with it.  A higher classification means that the minimum rate for that classification will be higher. The four levels are:

Breaks

An employee must not be required to work for more than 5 hours without an unpaid meal break of at least 30 minutes.

Back to top of page

Wages and Allowances

The minimum rates of pay are set out in clause 15 of the Award, with a further summary in Schedule A.

Apprentices

A person employed by an employer immediately prior to entering into a training agreement as an adult apprentice (ie an apprentice who is 21 years of age or over at the commencement of their apprenticeship) must not suffer a reduction in their minimum wage by virtue of entering into the training agreement, provided that:

• the person has been an employee in that enterprise for at least 6 months as a full-time employee; or
• 12 months as a part-time or regular casual employee immediately prior to commencing the apprenticeship.

Apprentice conditions of employment

Where an apprentice is required to attend block release training for training identified in or associated with their training contract, and such training requires an overnight stay, the employer must pay for the excess reasonable travel costs incurred by the apprentice in the course of travelling to and from such training. However, this will not apply where the apprentice could attend an alternative Registered Training Organisation (RTO) and the use of the more distant RTO is not agreed between the employer and the apprentice.

Excess reasonable travel costs:

• include the total costs of reasonable transportation (including transportation of tools where required), accommodation costs incurred while travelling (where necessary) and reasonable expenses incurred while travelling, including meals, which exceed those incurred in travelling to and from work.
• do not include payment for travelling time or expenses incurred while not travelling to and from block release training.

The amount payable by an employer for excess travel costs section may be reduced by an amount the apprentice is eligible to receive for travel costs to attend block release training under a Government apprentice assistance scheme. This will only apply if an apprentice has either received such assistance or their employer has advised them in writing of the availability of such assistance.

All training fees charged by an RTO for prescribed courses and the cost of all prescribed textbooks (excluding those textbooks which are available in the employer’s technical library) for the apprenticeship, which are paid by an apprentice, shall be reimbursed by the employer:

• within 6 months of the commencement of the apprenticeship or the relevant stage of the apprenticeship; or
• within 3 months of the commencement of the training provided by the RTO,

whichever is the later, unless there is unsatisfactory progress.

An employer may meet these obligations by paying any fees and/or cost of textbooks directly to the RTO.

Attending training

An apprentice is entitled to be released from work without loss of continuity of employment and to payment of the appropriate wages to attend any training and assessment specified in, or associated with, the training contract. Further, such hours are to be regarded as time worked for the employer for the purposes of calculating the apprentice’s wages and determining the apprentice’s employment conditions. 

No apprentice will, except in an emergency, work or be required to work overtime or shift work at times which would prevent their attendance at training consistent with their training contract.

Junior minimum rates

The Miscellaneous Award allows for employees below the age of 21 to be paid a lower rate of pay, as follows:

Higher duties

An employee who is performing duties of a higher classification than theirs for more than 4 hours, on any one day or shift must be paid the minimum hourly rate for that higher classification for the whole day or shift.

Payment on termination of employment

The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

• the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and
• all other amounts that are due to the employee under the Miscellaneous Award and the NES.

An employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice. See Termination of employment section for more information. 

State and Territory long service leave laws may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.

Allowances

Employers must pay to an employee the allowances the employee is entitled to under clause 17 of the Miscellaneous Award. A summary of the amount of each allowance is found in Schedule B to the Award.

Overtime and Penalty Rates

The Miscellaneous Award provides for higher rates of pay to be paid when an employee works long hours, early in the morning, late at night, on weekends or on public holidays.

Overtime

All time worked in excess of the hours indicated in the below table is overtime; and must be paid at the rate of 150% of the relevant minimum rate for the first 3 hours and 200% of the relevant minimum rate after 3 hours.

The casual loading is not paid for overtime hours worked.

Time off instead of payment for overtime

Where an employee works overtime hours in a particular pay period, they may have it mutually agreed with the employer that they receive time off equivalent to the overtime hours worked, instead of it being paid as overtime. To do this an agreement will need to be made in writing, on each occasion and state the following:

• the number of overtime hours worked which are to be compensated for as time off; and when those hours were worked;
• that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
• that, if the employee requests at any time, the employer must pay the employee, for overtime covered by the agreement but not taken as time off, at the overtime rate applicable to the overtime when worked;
• that any payment mentioned in the bullet point above must be made in the next pay period following the request.

The period of time off that an employee is entitled to take is the same as the number of overtime hours worked. For example, an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

If an employee takes time off in lieu instead of being paid for overtime, then the time off must be taken:

• within the period of 6 months after the overtime is worked; and
• at a time or times within that period of 6 months agreed by the employee and employer.

If time off for overtime that has been worked is not taken within the period of 6 months, the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

The employer must keep a copy of any written agreement (including electronic means) as an employee record.

If, on the termination of the employee’s employment, time off for overtime worked by the employee has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

Penalty rates

Employees are entitled to the following rates when working their ordinary hours at unsociable times:

Leave and Public Holidays

The Miscellaneous Award states that annual leave is as provided for in the National Employment Standards, which means permanent employees are entitled to four weeks of annual leave (pro-rata for part-time employees).

Shift Workers are defined as “employees who work ordinary hours over 7 days of the week and are regularly rostered to work on Sundays and public holidays,” and are entitled to five weeks of annual leave.  

Annual leave loading 

Employees are entitled to be paid an annual leave loading whenever they take annual leave of the greater of:

• 17.5% of their base rate of pay; or
• The weekend penalty/shift work rates they would have earned during the period of annual leave.

It may be possible to include this payment in a “rolled-up” or “flat” rate of pay – but please contact us for further advice.

Annual Close Down

Employees may be required to take annual leave as part of a close-down of their operations (e.g. Christmas break), by providing at least 4 weeks’ notice.

Annual leave in advance

The Miscellaneous Award provides for employees and employers to agree for annual leave to be taken in advance of its accruing and any annual leave owing to be deducted from an employee’s termination pay. This agreement must be agreed in writing, detailing the amount of leave to be taken, the date the leave will be taken and signatures of both parties.

Excessive leave accruals

The Miscellaneous Award states that an employee can be required to take annual leave where they have “excessive leave” accrued. The Award defines this to mean more than 8 weeks paid annual leave (or 10 weeks paid annual leave for a shiftworker).

If an employee has excessive leave accrual, the employer and employee must confer with each other to genuinely reach an agreement on how to reduce or eliminate the excessive leave accrual.

If after genuinely trying to reach an agreement, the employee refuses to take paid annual leave, the employer can direct the employee in writing to take period/s of annual leave. However, strict rules apply under the Miscellaneous Award including:

• the employee cannot be required to take leave if their leave balance would be less than 6 annual leave weeks;
• the employer cannot require to employees to take a period of annual leave of less than one week; and
• the employer must not require the employee to take a period of paid annual leave beginning less than 8 weeks, or more than 12 months after the direction is given.

Cashing out annual leave

Employees are permitted to cash out annual leave if:

• There is a separate written agreement between the employee and employer;
• The agreement does not result in the employee’s remaining accrued entitlement to paid annual leave being less than 4 weeks; and
• The maximum amount of accrued annual leave being cashed out in any period of 12 months is 2 weeks.

Personal/Carers Leave

The Miscellaneous Award states that the entitlement to personal/carer’s leave is outlined in the National Employment Standards which is:

• 10 days paid leave for full-time employees; and
• Pro-rata for part-time employees.

Other leave

The Miscellaneous Award states that the following types of leave are available, as outlined in the National Employment Standards including

• Compassionate leave;
• Parental leave and related entitlements;
• Community service leave; and
• Family and domestic violence leave.

Public Holidays

The Miscellaneous Award states that public holiday entitlements are available as outlined in the National Employment Standards. This means that an employee is entitled to be absent from work on a day that is a public holiday and can only be required to work where the requirement is reasonable.

Permanent employees are entitled to be paid for absence on a public holiday, if the public holiday falls on a day that they would ordinarily have worked.

An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the National Employment Standards.

Consultation and Dispute Resolution

Consultation about major workplace changes

The Miscellaneous Award provides that employers must follow strict guidelines when consulting employees regarding:

• Major workplace changes;
• Changes to rosters or hours of work; and
• Dispute resolution.

If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on the employees, the employer must:

1. Give notice of the proposed changes to all employees and their representatives who may be affected
2. Discuss with affected employees and their representatives (if any)
   • The introduction of changes; and
   • Their likely effect on employees
   • Measures to avoid or reduce the adverse effects of the changes on employees

For the purpose of discussion, the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including;

1. Their nature; and
2. Their expected effect on employees; and
3. Any other matters likely to affect the employees.

The employer should promptly consider any matters raised by the employees or their representatives about the changes in the course of discussion.

Termination of employment

An employer must give an employee notice of termination of at least the minimum period stated below, according to the period of continuous service of the employee.

An additional weeks’ notice is to be provided to an employee if they have had at least two years’ continuous service and are at least 45 years of age.

The notice of termination required to be given by an employee is the same as the above table, except that the employee does not have to give an additional notice based on their age.

Employees who do not provide sufficient notice

If an employee who is at least 18 years of age or older does not give the period of notice required under the Miscellaneous Award, then the employer may deduct from their wages due to the employee under the award, an amount that is no more than one weeks’ wages for the employee.

Job Search Entitlements

Where an employer has given notice of termination to an employee, the employee must be allowed time off without loss of pay of up to one day for the purpose of seeking other employment.

Redundancy

The Miscellaneous Award states that redundancy payments are required as outlined in the National Employment Standards, this means where the business has 15 or more employees, permanent employees will be entitled to the following redundancy payment if made redundant. Employers with less than 15 employees are not required to make redundancy payments:

The Miscellaneous Award also contains provisions regarding:

• Transferring to lower paid duties when being made redundant;
• Giving employees the right to end their employment period early if being made redundant; and
• Having paid time off when looking for new employment.

Back to top of page

How Employment Innovations can help

If you require assistance with dealing with disciplinary issues concerning staff, Employment Innovations can help. Our HR Advisors will be able to guide you through each step of the disciplinary process and we have template documents (e.g. direction to attend a disciplinary meeting, written warning, letter of termination, etc) available as part of our subscription packages.

You might also be interested in

General Retail Award pay rate changes from 1 March 2021

Services for Australian retailers & the Retail Industry

Modern Awards | knowledge base

About Employment Innovations

Employment Innovations is one of Australia’s leading providers of employment services designed to increase productivity and ensure compliance. Its services and solutions include all the tools that every Australian small to medium sized employer needs – including workplace advice, legal services, payroll solutions, migration, human resource management and HR software.

Disclaimer

The information provided in these knowledge base articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.

This knowledge base article will change over time, as Modern Award legislation relating to this Industry or Occupation is passed by the Fair Work Commission. Originally published on 21 January 2021 and last updated on 22 March 2022.

SUBSCRIBE TO OUR NEWSLETTER