Clerks Award - An Explainer31 July 2020
The various classifications of the Clerks Award can cause confusion. Tom Earls of Fair Work Lawyers clears up some common areas of conflict.
The Clerks – Private Sector Award 2020 (the Award) covers employees that mainly carry out clerical and administrative duties. This article is intended to provide assistance to architectural firms to understand the boundaries of this award.
Award coverage is derived from the ‘principal purpose’ of an employee’s engagement, considered by reference to their duties and responsibilities, and the circumstances in which they perform the work.
The Award is an occupational award, covering employees who are “wholly or principally engaged in clerical work” for private sector employers including, relevantly, architect firms.
Clerical work includes administrative duties of a clerical nature, such as recording, typing, calculating, invoicing, billing, receiving and answering calls, handling cash, operating a telephone switchboard and attending a reception desk. Importantly, the Award does not cover every office role. There is an obvious amount of ‘grey area’ in terms of what is and what is not clerical work, and this is something that is regularly litigated, with significant cross-over between ‘office’ duties that are not clerical, particularly more senior tasks and professional or managerial positions.
To help clear up confusion, we have prepared a non-exhaustive table summarising the characteristics and typical duties / skills of each classification. For a more comprehensive list, see the Fair Work Commission website.
To classify an employee, employers need to consider the level of competency and skill that the employee is required to exercise in performing their work, and not by reference to the amount they perform any particular duties. Where an employee’s principal purpose extends beyond these limits in terms of exercising professional or managerial functions, it is likely that the employee is not covered by the Award even if some of their duties are included on this list.
If an employee is paid comfortably above the award minimum and with a suitably drafted contract of employment (such as the ACAA contract) this is less of a risk. However, where an employee is remunerated close to, or below, a minimum classification, specific advice should be sought.
Common areas of conflict
Managerial employees are not covered by the Award. However, merely giving a position that title is insufficient. There is clear tension between a senior (ie Level 4/5) employee and an Office Manager. Indicators of a managerial position are duties that exceed those of an employee engaged principally in clerical work (see table).
Managerial positions are characterised by having an elevated level of executive and decision-making powers, with administrative functions being ancillary. This may include significant supervisory functions, managing staff (e.g. hiring, counselling and disciplining), and being responsible for budgets.
Note: the fact that a person’s role includes performing duties covered by the Award is relevant but not determinative. It is a question of determining the essence of a position.
Qualified accountants using their qualification are award-free as their primary purpose is to exercise skills of a professional nature. Similarly, a Finance Manager would likely be award-free. However, as with the office manager position, the position must be as a matter of substance ‘managerial’ or professional. For example, researching and analysing data, developing (as compared to populating) accounts, financial reports, auditing financial transaction and documents, and recommending financial actions are likely to take the function outside of clerical coverage as opposed to activities that are clerical in nature with peripheral accounting functions.
Tom Earls is a Founding Partner of Adelaide-based Fair Work Lawyers.