It is important for both employers and employees to know how awards apply in the workplace. The various industry awards, National Employment Standards (NES) and the Fair Work Act 2009 (Cth) work together to dictate the rights and obligations of employees and employers in the workplace. Specifically, awards set out the minimum conditions of employment and pay rates for the employees it covers. This article will explore the criteria that an employee must satisfy to be covered by an award.
When Does an Award Cover an Employee?
An award will cover an employee if the following three conditions are met:
- The employee works in an industry or business which the award covers; and
- The employee works in a job classification that the award covers; and
- The employee does not work in a job or industry that the award excludes.
Employees should review the “Coverage” clause in the award to find out if it covers them. This clause usually lists the industry that the award covers. You can then look at the “Definitions and Interpretations” clause to see how that award defines that industry.
For example, the Hair and Beauty Award covers employees throughout Australia in the hair and beauty industry. The award defines this industry as the following:
- Hair cutting, styling and dying;
- Manicures and pedicures;
- Lash and brow tinting; and
- Facial and other body treatments.
The “Coverage” clause also excludes certain employees. These exclusions include those covered by:
- Modern Enterprise Awards; or
- Enterprise Agreements; and
- Those covered by more than one award where the other is more appropriate to the work performed by the employee.
2. Job Classification
Employees should look at the “Classifications” clause as they must also fall within the job classification of the award.
For example, some of the classifications of the Hair and Beauty Award include:
- Beauty therapists;
- Makeup artists;
- Nail technicians; and
Each of these classifications has different training requirements such as certificates or diplomas.
The award could exclude the employee if he or she works in a certain job or industry. For example, the following employees are excluded by the Hair and Beauty Industry Award:
- Hairdressers in the general retail, theatrical, amusement and entertainment industry;
- Spray tanners; and
- Tattoo artists.
Employees who earn more than the high-income threshold of $138,900 per year are also excluded.
What If There is a Dispute About Award Coverage?
Employees who have a dispute about how the award applies should look at the “Dispute Resolution” clause in the award.
For instance, the Hair and Beauty Industry Award states that the parties must attempt to resolve the dispute between the parties involved and the relevant supervisor or senior levels of management. If the dispute remains unresolved at the workplace, one of the parties may refer it to the Fair Work Commission. The process at the Fair Work Commission may involve mediation, conciliation and consent arbitration.
Award Free Employees
A registered agreement may cover employees who are not covered by an award. They may also have an employment agreement, but they will always be entitled to the national minimum wage and the NES.
Awards will cover an employee if they work in an industry and job classification which the award states it will cover. The employee must also not work in a job or industry that the award explicitly excludes. Employees who are in disagreement with their employer about the award should attempt to resolve the dispute internally using the mechanism as set out in the award.
Still unsure about whether an award applies to you? Get in touch with our employment lawyers on 1300 544 755 or fill out the form on this page.
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