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Fair work prompts confusion over optometry pay awards

05/03/2019By Myles Hume
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Optometry Australia has sought legal assistance amid claims the Fair Work Ombudsman (FWO) published confusing and conflicting statements relating to Awards coverage of some optometry staff.

The move follows a post on the FWO website stating that optometry practice staff - including those in administration, sales and optical dispending positions - should be classified and renumerated under the Health Professionals and Support Staff Award 2010 (HP&SS Award).

According to Optometry Australia (OA), this was problematic because most, if not all, its members have applied the General Retail Award 2010 to support staff. OA is conducting research to determine key differences between the Awards classifications.

“This post has caused a lot of confusion in the industry as 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),” an OA press release said.

“It also lacks the necessary detail to explain the basis for this assumption and how it was reached. 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.”

OA has engaged commercial law firm Industry Legal Group to work with the FWO to produce clearer guidelines on optometry practice Award coverage.

Fair Work Ombudsman (FWO) website
Fair Work Ombudsman (FWO) website

“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 statement on Award coverage to reduce any further confusion,” the OA statement said.

“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.”

OA stressed that the FWO’s post was not legal advice and could be disputed. It would be up to the courts to determine which Award applied to an individual business and its employees.

Insight sought clarification from a FWO spokesperson who would not make comment and referred the matter to its website.

Interestingly, the day Insight made enquiries to the FWO the information was edited to include a banner stating that the extent of coverage under the Health Services Award was currently the subject of proceedings in the Fair Work Commission’s Four Yearly Review Decision [2018] FWCFB 7350.

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According to the FWO, the outcome of these proceedings could impact on the FWO’s advice on coverage for professionals such as optometrists. The FWO has since confirmed it made the edit on the same day as the Insight inquiry.

“The FWO will be reviewing its advice at the conclusion of these proceedings. In the interim, you may wish to seek your own legal advice on this issue,” the FWO’s post concluded.

OA CEO Ms Lyn Brodie said it was positive that the issue would now be considered as part of an official review.

“There is now a mechanism in place to enforce decision-making, and as the proceedings are in the Fair Work Commission rather than just advice by the Ombudsman, they will be binding (which should assist with reducing member uncertainty over this issue),” she said.

n the meantime, Brodie said OA would soon update members with results of the benchmarking work and provide a second general update through its regular communication channels.

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