The Fair Work Ombudsman (FWO) recently posted on the FWO website that all optometry practice staff, including optometrists are to be classified and remunerated under the Health Professionals and Support Staff Award 2010 (HP&SS Award).
Optometry Australia (OA) has moved to clarify this post, which has caused confusion in the industry because it conflicts with earlier advice from FWO advisers as well as advice from other parts of its website (for example, the find my award tool).
According to OA, the post also lacked the necessary detail to explain the basis for this assumption and how it was reached.
In a statement, OA said:
We believe that it would have been more accurate for the FWO to say that the HP&SS Award is one of the Awards which MAY apply to optometry staff depending on the individual circumstances.
It is important for Optometry Australia (OA) members to understand that the FWO’s post (and advice) is not legal advice and may be disputed. Determining the appropriate Award coverage involves assessing whether the employer/employee is covered by the coverage clause in the Award and whether the employee is employed under a classification within the Award. This involves an assessment of the nature of work and ascertaining the principal purpose for which the employee was employed.
Optometry Australia has engaged Industry Legal Group to liaise with the FWO about this issue to see if all parties can work together to produce clearer guidelines
Depending on the circumstances, the Retail Award may be more appropriate than the HP&SS Award and vice versa. Alternatively, both Awards may apply to different employees within a business.
Optometry Australia has engaged Industry Legal Group to liaise with the FWO about this issue to see if all parties can work together to produce clearer guidelines on Award coverage for the industry and its members.
While the HP&SS Award appeared to be the most logical fit when the Modern Awards were being introduced, optometrists were not expressly listed alongside other professions in the classifications.
Given that many optometrists were paid above Award rates, Awards largely became a moot point as many optometrists were put on salary contracts with set off clauses (i.e. clauses which set off the optometrists salary against any applicable Award or legislative entitlement). Also, as some optometrists are paid above the high-income threshold (currently $145,400) the Awards do not apply.
In our experience – having spoken with many OA members – most, if not all employers, have been classifying and remunerating their sales, reception and optical dispensing staff under the General Retail Award 2010 (Retail Award). The rationale for this is that most of these practices operate in the retail industry and there is clear coverage under the Retail Award for their business and staff.
What does the FWO post mean for members?
As mentioned above, while the FWO does provide general advice to the public on Award coverage, it is not legal advice and cannot be relied upon in the event of a dispute and/or claim. This does not mean that the advice should be ignored. However it should be vetted.
Industry Legal Group is liaising with the FWO to provide them with further background information on the industry and its members with the hope that the FWO can release a more accurate statemen on Award coverage to reduce any further confusion.
As Award coverage comes down to the interpretation of the Award (which can vary), it will ultimately be for a Court to decide which Award applies to an individual business and its employees.
In the meantime, employers can mitigate the risks of a dispute or claim by being aware of the differences between Award coverage clauses and obtaining independent legal advice.
For optometrists who receive the high-income threshold or above, the Awards will not apply.
For all other optometrists and optical staff, Industry Legal Group will also be conducting a benchmarking exercise to compare the rates and classifications of General Retail Award against those in the HP&SS Award. Until the confusion with Award coverage has been clarified, this will be a useful tool for employers who decide to pay their employees the higher of the two rates so that they are better off overall.
In the meantime, if members have any questions or concerns about Award coverage, they are encouraged to contact Industry Legal Group to discuss. We will continue to update members as we progress including releasing the details of the benchmarking exercise.
Industry Legal Group
Industry Legal Group provides OA members with workplace relations and legal advice. Contact Industry Legal Group on (AUS) 1300 101 391 or firstname.lastname@example.org if you require any assistance.
This document is intended for general information purposes only and should not be regarded as legal advice. Please contact Industry Legal Group if you require legal advice.