Hire and Rental News - August 2018

50 HIRE AND RENTAL NEWS • EVENTS in FOCUS • AUGUST 2018 EVENTS in FOCUS ntil recently, some events hire companies weren’t covered by any Employee Modern Awards (or were covered under the Amusements Award) and registered workplace agreements or enterprise agreements have been sufficient, but in recent months Fair Work Inspectors have begun visiting hire companies to indicate which award is applicable to the business. This is becoming a major issue for many events companies because under certain awards, like the Retail Award, penalty rates on a Sunday are applicable. Penalty rates affect the industry adversely, especially across the events sector when workers work predominantly across weekends. Is it possible to convince the Fair Work Ombudsman /Commission the Retail Award is outside the hire sector because these businesses work predominantly on weekends and are adversely affected by penalty rates as a result? Brenton Allen answers some questions below. 1. What does the Retail Award specify? How is this applicable to the hire industry? As a general rule, whether employment is covered by a Modern Award turns on whether the ‘substantial character’ of Understanding the Retail Award and how it applies to the events sector Following up from the article last issue from MST Lawyers discussing modern awards and how members needed to be aware of complying with applicable workplace laws and employee Awards regarding employment entitlements, MST Lawyers’ Brenton Allen provides a little more detail around the two major applicable awards for employment in the Events sector. the employment falls within the scope of the coverage clauses of the Award. It is a question assessed by reference to the trade or business of the employer and all of its employees. A network of provisions define the coverage of the Retail Award including: 1. Clause 4.1 – which provides the Retail Award covers employers throughout Australia in the ‘general retail industry’; 2. Clause 3.1 – which defines the ‘general retail industry’ as the sale or hire of goods or services to final consumers for personal, household or business consumption; 3. Clause 16 and Schedule B – which describe the employment classifications covered by the Award. In particular, Schedule B provides the Retail Award covers: An employee performing one or more of the following functions at a retail establishment: • The sale or hire of goods by any means; • The delivery of goods. In general terms, the Retail Award is likely to apply to employees that assist with the hire and sale of goods (including, demonstration of goods, customer assistance and delivery of goods). ‘Retail establishment’ is not defined in the Retail Award, but its ordinary meaning is likely to be the premises of a retail business. I understand a number of HRIA members, in particular, those that predominantly install marquees and other party-related equipment at private functions may take the view the Retail Award should not have application because their employees spend the majority of their time offsite installing or delivering that equipment. Note: a Court may not accept this argument because it is settled that work need not be performed ‘on site’ in order for it to be performed ‘at a retail establishment’ (see a link to Transport Workers’ Union v Coles Supermarkets Australia Pty Ltd [2014] FCAFC 148 here (in particular, see paragraph 30)). The premises of a party hire business could be regarded as a ‘retail establishment’ and work done which emanates from there, including installation of, say, marquees and party- related equipment offsite, could therefore also be regarded as work done at a retail U