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Stalemate continues over optometry industry pay awards

17/04/2019By Myles Hume
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Optometry Australia (OA) has met with the Fair Work Ombudsman (FWO) to address confusion over optometry Awards coverage, but admits more work is needed to clarify the issue.

OA CEO Ms Lyn Brodie and legal representatives from Industry Group Legal met with the FWO on March 28 to discuss what it described as conflicting and confusing information published on the FWO website regarding appropriate Award application for optometry practice employees.

The FWO’s website created uncertainty earlier this year after an article stated optometry practice staff - including those in administration, sales and optical dispensing positions - should be classified and remunerated under the Health Professionals and Support Staff Award 2010 (HP&SS Award).

This was problematic, according to OA, because most, if not all, its members have applied the General Retail Award 2010 to support staff. While pay rates are similar between the two Awards classifications, differing entitlements and penalties may affect OA’s members.



“The main issue is that FWO were quite sure of their position until we started describing business scenarios [and] they realised it wasn’t straight forward, even suggesting a ‘case-by-case’ basis for assessment. We need certainty for members – and clarity – so will continue to work through the matter.”
OA CEO Lyn Brodie

Brodie told Insight that while the FWO meeting was “productive”, both organisations were yet to reach a resolution.

“We have some work ahead of us to ensure ‘a meeting of the minds’ around our shared understanding of the role of optometrists, optical dispensers and other practice support staff employed in optometry practices in retail settings across Australia, and how this may impact advice around award coverage,” she said.

“The main issue is that FWO were quite sure of their position until we started describing business scenarios [and] they realised it wasn’t straight forward, even suggesting a ‘case-by-case’ basis for assessment. We need certainty for members – and clarity – so will continue to work through the matter.”

Following inquiries from Insight in February, the FWO amended the information to state the extent of coverage under the Health Services Award is the subject of proceedings in a Fair Work Commission four-yearly review. It was said this could impact on the FWO’s advice on coverage for professionals such as optometrists.

Despite this, Brodie said the FWO’s current position remains that the HP&SS Award should be applied to all optometrists, optical dispensers and other practice support staff. However, it appears the FWO could provide some leeway.

“If any OA member is contacted by a FWO officer in the interim to conduct an audit and/or in relation to Award coverage, we strongly recommend that they contact Optometry Australia so that the matter can be referred to our contacts within the FWO who are across the matters raised in this article, and assistance provided by our human resource lawyers,” Brodie said.

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“The FWO assured us that as long as businesses are following an Award, they would be willing to work collaboratively to find a resolution.”

Brodie said OA and the FWO agreed the matter was complex. OA has been invited to lodge a further submission on the matter, which could be forwarded to the Fair Work Commission to be considered as a part of the four-yearly review of modern Awards under their Modern Award Review process, or as part of a separate application.

“Optometry Australia is currently preparing submissions to provide to the FWO to assist its representatives to better understand the duties and responsibilities of optometrists, optical dispensers and practice support staff within an optometry practice in a retail setting,” Brodie said.

Insight sought comment from the FWO, however, a spokesperson said: “We do not comment on engagement with stakeholders, and have no other comments in relation to your questions.”

Potential legal ramifications

Workplace Law managing director Ms Athena Koelmeyer told Insight that incorrect Award classification could result in underpayment of staff entitlements. Employees were entitled to recover underpayments, either with the assistance of the FWO or without, with the limitations period in most jurisdictions being six years.

“Six years’ worth of back pay is a significant impost for one employee – let alone multiple employees.  Of course, the back pay does not simply apply to rates of pay, but to accrued entitlements, superannuation and other employment benefits.

There are also civil penalties that can be imposed by Courts for failure to comply with the Award,” she said.

“The maximum penalty for a corporation is currently $63,000. Of course, the worst case for an employer is a prosecution by the FWO for failing to comply with Award entitlements.”

In resolving the issue, Koelmeyer said the FWO might make a determination and then issue it as a binding outcome to the industry. She said employers would be expected to comply and the industry should anticipate audits and spot checks about a year thereafter.

Alternatively, she said the FWO may provide guidance to the industry that each operation should obtain their own legal advice as to Award coverage, however, this approach may not alleviate uncertainty.

“It might be worth the industry considering making an application to vary one of the modern awards to make the coverage more clear and certain.  While this takes time, it will produce a certain outcome eventually,” she added.

 

More reading:

Fair work prompts confusion over optometry pay awards

 

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