Hire and Rental News - August 2018

51 HIRE AND RENTAL NEWS • EVENTS in FOCUS • AUGUST 2018 EVENTS in FOCUS establishment. 2. Why might HRIA members consider themselves not covered by the Retail Award? As described above, some employers, in particular, party-hire employers, may seek to distinguish themselves from characteristic retail outlets (such as a clothes store) on the basis the substance of their operations (including, for example, the installation of party-related equipment) are performed away from their head office. 3. Why or when does the Amusements Award not cover the hire industry? The Amusement, Events and Recreations Award 2010 is expressed to cover employers that operate certain sporting, exhibition, amusement and recreational complexes, including employers engaged in the ‘supply, preparation, marking out, fabrication, installation, erection or dismantling of exhibition stands or associated componentry for the trades and public promotions industry’. That said, unfortunately, it is somewhat of a grey area and there is limited case law that defines the interaction between the Retail Award and Amusement Award. In each case, consideration should be given to individual businesses and their particular circumstances, rather than considering which modern award applies to the industry as a whole. 4. Is there anything, legally speaking, stopping a hire industry member from not applying the Retail Award to its employees? This will depend upon individual circumstances of the individual business and their trade. For example, the General Retail Industry Award 2010 would not apply to a mechanic (this employee may be covered by the Manufacturing and Associated Industries and Occupations Award 2010). 5. What could happen if they don’t? Application of the incorrect modern award can expose an employer to back payment of Award entitlements, interest and, in serious cases, pecuniary penalties. Employers should also consider non-financial consequences of non- compliance (including, for example, reputational and brand damage). 6. What would have to happen to get this Award ruling changed? As discussed above, the interaction between the Retail Award and Amusement Award is one of limited judicial consideration. We are considering available options to simplify award – coverage for members at present (while an arduous undertaking, one option may be to apply for a variation to the coverage clauses of the Retail Award, or for the creation of a new modern award, through section 157 of the Fair Work Act). 7. What should members do now? Since modern award coverage can be complex (and the modern award system does not necessarily embrace a ‘one size fits all’ approach), we suggest, at present, members contact HRNet for a confidential discussion about their individual circumstances. Another viable solution to award coverage may be to implement an enterprise agreement to cover multiple HRIA members. Businesses covered by an enterprise agreement will generally not be subject to the application of modern awards. MST Lawyers: 03 8540 0266 or visit: www.mst.com.au or call HRNet on 1800 HRIA HR (1800 474 247).