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Fair Work reaches decision on legal saga that threatened optometry salaries

The Fair Work Commission has delivered an inconclusive decision regarding pay awards coverage for optometrists. However, Optometry Australia (OA) is encouraged by the ruling after initial fears it may drive down wages, particularly for graduates whose $80,000 salaries could have dropped to as low as $53,000 per year.

For more than two years, OA has been working to protect the financial interests of optometrists after it discovered a note on the Fair Work Ombudsman (FWO) website stating the Health Professionals and Support Services (HPSS) Award was applicable to optometrists and staff such as optical dispensers and administration employees.

OA subsequently engaged the services of Industry Legal Group (ILG), initially flagging concerns over the risk of possible underpayment claims concerning front of house staff, with many employed under the General Retail Award.

Lyn Brodie.

OA and ILG held meetings with the FWO in early 2019. Even though the FWO held firm in its position, it indicated practices would not be penalised over a staff member being employed under a different award (retail), as long as they passed the ‘better off overall test’ against what had suddenly been decided as the correct award (HPSS).

Soon after, the FWO then announced the HPSS Award was subject to a four-yearly review that may impact optometrists. Later, in December 2019, a provisional decision was published, but it did not expressly exclude optometrists from the HPSS Award.

As a result, OA held concerns about how optometry inclusion under the HPSS Award could impact its members. The organisation stated this created further uncertainty for optometrists who, it argued, have traditionally been award-free due to the nature and seniority of their role. With this in mind, OA said Fair Work’s provisional decision was not consistent with the aim of the award modernisation process.

OA was particularly concerned about the financial ramifications for optometrists if they fell under the HPSS Award. A survey the organisation conducted in 2018 found the majority of Australian optometrists earned $130,000- plus per year (excluding super), with the estimated average being $106,000 for employees and $110,000 for employers.

For graduates, a 2019 survey found over 55% were earning $80,000 or more, and more than 25% were earning more than $90,000.

“Instead of acting as a safety net, the minimum rate of pay under the HPSS Award, if adopted, may significantly decrease the salaries currently being offered and paid which is particularly concerning for a profession where the highest pay rates for employee members are already not considered commensurate with the complexity and responsibility borne by practitioners,” OA warned.

“For example, a graduate with a master’s degree entry would receive approximately $50,000 per annum under the HPSS Award. The minimum rates of pay under the HPSS Award are significantly less than members are currently receiving. As such, the HPSS Award is not required to provide a fair and relevant minimum safety net of terms and conditions relating to wages.”

Status quo maintained 

Recently, OA alerted members that a final hearing before the Full Bench of the Fair Work Commission concerning which health professional occupations should not be covered by the HPSS Award was held on 27 October 2020 and a decision issued on 24 November 2020. It effectively opted to maintain the status quo, meaning optometrists could continue to operate as they were.

However, OA CEO Ms Lyn Brodie said the ultimate decision to “neither exclude these occupations [optometrists and dentists] from the coverage of the HPSS Award, nor include them on the List of Common Health Professionals in Schedule B of the Award” meant the position regarding award coverage for optometrists remained slightly unclear.

“Whilst we would have preferred a more definitive outcome, we have also been preparing for such a decision and as the status quo has effectively been maintained we believe the news is overall positive for optometrists and the industry,” she said.

“Given the earlier 2019 decision that the list of professionals in the HPSS Award is indicative, our legal advice has been that the prudent approach would be to at least benchmark optometrists against the HPSS Award to ensure they are no worse off. That is until there is a definite decision to the contrary such as the express exclusion of optometrists from the HPSS Award.

“The Commission’s decision implies that individual employers can decide if optometrists are employed within award conditions or individual employment contracts. The most important aspect is that these contracts cannot leave an optometrist – or any practice staff – in a worse off position than if employed under award conditions.”

Brodie said it was important to protect optometrists’ salaries.

“Optometry Australia is run by optometrists for optometrists, and ensuring that working in the profession remains financially viable for our members is of course very important. We share similar concerns to other professional bodies such as the Australian Medical Association that inclusion in the HPSS Award may see wages driven down.”

She added: “As with any organisation we don’t discuss operational finances but for clarity, very minimal funds were spent lodging the submission as the process was very straightforward with no court appearances necessary.”

If optometrists were still unsure about their employment obligations or rights, OA has urged members to contact its HR partner Industry Legal Group for free legal advice. Information on this service along with more information on the issue, templates, benchmarking assistance and award rates can be found on its website or optometrists can contact the OA office.

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