Outdoor sector, national update: Please forward to your networks

The Fair Work Ombudsman (FWO) recently released a statement of advice relevant to outdoor leaders and outdoor business operators who are not covered by an existing industry or occupation-based award.

The advice states that if an employee is not covered by an industry or occupation-based award, they can/may be covered by the Miscellaneous Award. This applies to different occupations the FWO has previously considered may be award-free, including outdoor leaders.
This is after the Full Bench of the Fair Work Commission earlier this year, made a decision regarding a particular case, that has an effect across many sectors, including the outdoor sector.
A link on the FWO relevant to this advice can be found at Award coverage for outdoor leaders.
The Australian outdoor sector, represented by each of the state government recognised peak bodies – Queensland Outdoor Recreation Federation, Outdoors WA, Outdoors NSW, Recreation SA and Outdoors Victoria, the Outdoor Council of Australia and the Australian Camps Association have met via teleconference to discuss our joint response.
In particular, we are interested in the FWO’s viewpoint on how the Miscellaneous Award might be best applied to commonly encountered characteristics of outdoor programs, for example journey based / multi day programs (including overnights), meal breaks, on call situations etc.
While there is no inference that outdoor sector employers are currently in breach of their obligations, in light of this latest advice from the Fair Work Ombudsman it may be expedient for outdoor sector employers to check their compliance requirements.
  • We suggest that outdoor sector employers discuss this advice with their staff, and that staff discuss it with their employers as an initial action.
  • The FWO recommend that all affected parties work together to deliver the best outcomes possible for employers and their staff.
  • Our intent is to help inform the FWO so that any subsequent information they provide to outdoor sector workers and employers is consistent and practical in its application.
  • Therefore, we recommend that any questions or concerns about awards, contracts or EBAs be directed to an independent expert for advice or to the FWO via engage@fwo.gov.au.
If you are based in Victoria and there are general reflections or comments that you would like to feed back, please connect with CEO Andrew Knight, at ceo@outdoorsvictoria.org.au
25th Sept

Update – award coverage for outdoor leaders [SEC=UNCLASSIFIED]

Good afternoon

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 outdoor leaders, this decision has provided greater clarity in regards to award coverage for this occupation in cases where outdoor leaders are not covered by an industry or occupation-based award.
The FWO has today published updated advice regarding award coverage for outdoor leaders. Please see our Library article Award coverage for outdoor leaders.

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 confirms its view that outdoor leaders, who aren’t otherwise covered by an industry or occupation-based award, can 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 outdoor leaders 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 outdoor leaders please email engage@fwo.gov.au.
Fair Work Ombudsman
Fair Work Info line 13 13 94 www.fairwork.gov.au
Share this: