On 1 January of this year, 123 modern awards came into effect. Employers need to identify which of these modern awards covers their employees. This can be a challenging task. In most cases, the content does not entirely replicate the content of the previous federal and state awards which have now been replaced.
Here are four useful tips to assist.
Tip 1 check the name
A good starting point is to look at the name of the award. Although it is not possible to determine the issue on the name alone, it will usually narrow the field to those awards which are more likely to apply to the relevant industry or occupation.
Most modern awards are industry based. That is, they apply to a specific industry or sector (e.g the Aged Care Award and the Banking Finance and Insurance Award).
Some modern awards are occupation based. That is, they apply to a person employed in a particular occupation (e.g the Clerks Private Sector Award 2010).
Tip 2 check the coverage and classifications
Once you have identified the likely award(s), check the coverage clause of each (usually located at clause 4).
Typically there is a description of the industry to which the award applies and of the employees. The classification structure of the award will often be relevant to working out whether the employees are covered by the award, so check the classification definitions as well.
If the classification structure does not contain a description which corresponds to the work of your employee(s), it is possible that there is an occupation based award which is more appropriate. For example, the Clerks Private Sector Award is appropriate to an employee performing clerical duties for an employer engaged in the manufacturing industry.
However, the Aged Care Award is more appropriate to a clerical employee working in the aged care industry. Similarly, the Banking Finance and Insurance Award would be more appropriate to an employee performing clerical duties in the banking, finance or insurance industries.
Tip 3 check definitions
Modern awards frequently contain definitions of terms which are used within the award.
Often there is a definition of the industry to which the award applies. In most awards, definitions can be found at clause 3.
If the industry definition does not seem appropriate or relevant to your business, then it is likely that the award does not apply and so the search should resume.
Tip 4 resolving overlap
There are likely to be occasions in which an employer is covered by multiple awards.
Article witten by John Stanton, Partner, Australian Business Lawyers and Mary Rofail, Lawyer, Australian Business Lawyers.
To resolve overlap, most awards contain a sub-clause within clause 4 which provides that the employee should be covered by the award classification which is most appropriate to the work performed and to the environment in which the employee normally performs the work.
If in doubt seek out professional advice.