Following a decision of a Full Bench of the Fair Work Commission earlier this year, the Fair Work Ombudsman has had to change its view on certain coverage issues relating to the Miscellaneous Award. In the decision, United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FCWFB 128, the Full Bench adopted a narrower interpretation of occupations that are excluded from coverage under the Miscellaneous Award than has been understood to apply.

Importantly for pet groomers employed by pet grooming businesses, this has resulted in a change in position regarding the Fair Work Ombudsman’s (FWO’s) advice concerning award coverage for this occupation.

The FWO has today published updated advice regarding award coverage for employees working as pet groomers for a pet grooming business. Please see our Library article Award coverage for pet groomers.

Background to the change

If an employee is not covered by an industry or occupation-based award, they may be covered by the Miscellaneous Award.

Determining coverage under the Miscellaneous Award can be complex and, until recently, there has been limited guidance from a Court or Tribunal about how the coverage provisions in the award are intended to operate.

On 12 January 2018, a Full Bench of the Fair Work Commission handed down a decision, United Voice v Gold Coast Kennels Discretionary Trust t/a AAA Pet Resort [2018] FCWFB 128, which took a broader approach to considering the exemption under clause 4.2 of the Award. The Full Bench found that employees will not be covered if they have not traditionally been regulated because they are a manager or a ‘specialist white collar professional’.[1]

The FWO has given careful consideration to the decision and its impact on our approach to Miscellaneous Award coverage generally. In particular we have reviewed our position on award coverage for different occupations the FWO has previously considered may be award-free.

Based on the principles in the Fair Work Commission decision, the FWO no longer considers employees working as pet groomers for a pet grooming business to be award-free. Rather, the FWO considers employees working as pet groomers for a pet grooming business to be covered by the Miscellaneous Award.

FWO’s compliance approach

A key concern for a number of employers affected by the flow on effects of the Full Bench Decision will be their compliance obligations.

As set out in our Compliance and Enforcement Policy, the FWO is always proportionate in our compliance and enforcement activities. While we will expect employers impacted by the Full Bench Decision to work with their employees, or former employees, to resolve any issues, we will not take serious enforcement action, such as litigation, where it is clear those employers have made every effort to comply with their obligations.

Importantly, employers should also be aware that the FWO is not the only party that can take legal action on these matters and we encourage all affected parties to work together to deliver the best outcomes possible for employers and their employees.

If any employers are concerned they may seek their own legal advice on the matter.

FWO assistance

I encourage you to share this information within your industry and refer to our Award coverage for pet groomers Library article.  Employers and employees can access information regarding pay and entitlements at www.fairwork.gov.au or can contact us for more personalised assistance.

Should you have any questions in relation to the FWO’s advice regarding employees working as pet groomers for a pet grooming business please email engage@fwo.gov.au.

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