The Fair Work Ombudsman (FWO) has held firm in its view regarding pay Awards coverage for optometry support staff, in a move that could have financial and legal repercussions for many practices.
Following months of confusion and uncertainty, Optometry Australia (OA) posted an announcent to its website on 18 June advising that it had reached a position on the appropriate Awards classification for staff in administration, sales and optical dispensing positions.
“During our meeting with the Fair Work Ombudsman they were quite firm in their position that optometry practice support staff (as well as optometrists) should be provided coverage under the HP&SS Award,” the statement said.
“Given that there is currently no definitive ruling to the contrary, it is Optometry Australia’s position that the most risk adverse approach would be to adopt the Fair Work Ombudsman’s position on coverage.”
Since February, OA and the FWO have been working to clarify the correct Awards classification and remuneration for optometry support staff.
Confusion arose after FWO published a four-line press release on its website, stating the HP&SS Award is applicable to all optometry practice staff.
At the time, OA labeled the FWO’s stance as confusing and conflicting with previous advice; exacerbated by the fact most employers had been applying the General Retail Award 2010 to support staff.
OA and its legal representatives from Industry Legal Group (ILG) met with the FWO in March to explain the existing rationale behind adopting the retail award, including the nature and structure of optometry practices.
Following the meeting, OA CEO Ms Lyn Brodie admitted more work was needed to ensure “a meeting of the minds”. However, it now appears the FWO has not been persuaded in any way that the General Retail Award is applicable to optometry.
OA has since undertaken a benchmarking exercise to compare the differences between the awards, and the potential impact of change. It found there were differences between penalty, loading and overtime rates, and main pay rates were “slightly higher” under HP&SS Award.
“Overall the costs to business were comparable albeit slightly higher under the HP&SS Award. Following this logic, employers who pay staff under the higher HP&SS Award rates would be at less risk of an underpayment claim,” the OA statent said.
“Should you continue to pay your support staff under the Retail Award, just be mindful that at some future point the Fair Work Ombudsman or the Fair Work Commission may deem you to be paying under the incorrect Award.
“Should that happen the Fair Work Ombudsman have advised that they will undertake a ‘no harm’ test, in that they will simply ensure that the employee has not been disadvantaged in any way by virtue of their coverage under the Retail Award versus the HP&SS Award.”
When Insight queried Brodie about the number of practices that might be impacted, and the significance of the decision, she said: “as with any award, this award is applicable to all practices”, without providing further detail.
Asked for OA’s reaction to the FWO’s response, she added: “Our role is to provide clarity and to take a considered risk management approach. It recognises that optometry staff as being bedded within the health sector.”
Over the coming weeks, OA and ILG are expected to release indicative descriptors for each award classification under the HP&SS Award to help employers determine the most appropriate coverage for their support staff.
When finalised, these will be distributed to all members, practice owners and managers, and will include further information on how to communicate with employees about the changes and ensure practices comply with all provisions under the HP&SS Award.
A FWO spokesperson said the original press released in on the authority’s public online library rains “unchanged”.
“Our approach to any compliance and enforcement issue is set out in our Compliance and Enforcement Policy. We have no further comment.”
Assessing the magnitude of this issue, Workplace Law managing director Ms Athena Koelmeyer told Insight it could be significant for the industry.
“It is possible that all optometrist support staff paid under the retail award have been incorrectly classified and potentially underpaid. These difficulties do crop up fairly regularly, but not on such a large scale,” she said.
“Unless the practice is prepared to have the fight in court about the correct Award application, the least risky path is to reclassify the employees. In doing this, it should be noted that there could be a back pay issue for up to six years if the employees were paid less than the new award classification rates over that period.”
Koelmeyer said she was not surprised the FWO maintained its stance on the issue, stating the authority takes its time to make decisions, and is confident in its own research unless an error is identified. “In the circumstances where the coverage has been contested, we would hope that it was unlikely that the FWO would actively pursue technical breaches resulting from the application of the wrong award, although if it did, penalties may apply.”