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HomemibusinessIndustrial Relations Changes

Industrial Relations Changes

The industrial relations scene has changed again. Accepting that change is nearly always difficult and changes in this area are especially so, the changes made need to be right. In time, the recent developments have the potential to make the requirements for employers and employees clearer and easier to manage. However, the short term position is somewhat different. The level of uncertainty about the effect and implementation of the Fair Work Act and Modern Awards is fairly high. It would seem there is a need for most employers in the optical industry to review the administration of their staff and make some changes, but what changes?

From 1 January 2010, many private employers and employees in NSW, QLD, TAS and SA moved onto the national workplace relations system and the Fair Work Act 2009. VIC, NT and ACT employees are already covered by the Fair Work Act. WA sole traders, partnerships, or other unincorporated entities remain outside the national provisions.

The national system provides workers with:

  • A set of 10 minimum National Employment Standards (NES)
  • Modern awards that apply nationally for specific industries and occupations
  • A national minimum wage order (where it applies)
  • Protection from unfair dismissal for most employees (there are exceptions)

From 1 January 2010, employees falling under the national system will be covered by the NES and possibly a modern award, a state award or state employment agreement (if you’re employed in a referring state), or an existing employment agreement. Employees covered by instruments other than modern awards are still entitled to the minimum employment standards of the NES. Employees under State Awards will still be covered by those Awards until December 2010 when they expire and modern awards apply.

The National Employment Standards will apply to your employment terms and conditions, even if you have an existing state-based agreement or award

The only agreements that can now be made are “enterprise agreements” where an employer negotiates with a group of employees. It is important to note that all agreements in the form of collective agreements, AWAs (Australian Workplace Agreements) and ITEAs (Individual Transitional Employment Agreements) continue to apply until they are terminated or replaced.

So what does all of this mean? It will depend on your particular circumstances, but essentially if you are an employer or an employee, with a few exceptions such as WA, you are covered by the national system. The National Employment Standards will apply to your employment terms and conditions, even if you have an existing state-based agreement or award. In most cases, existing agreements or awards continue to apply until they end or are terminated.

There are some important changes to know about that apply to all workers from 1 January 2010:

  • Flexible working arrangements – an employee parent who has children under school age can request changes to working hours, rosters, locations and other arrangements. There has to be “reasonable business grounds” for refusing the request.
  • Parental Leave Doubles – Employees have always been able to request 12 months unpaid leave but now they can ask for a further 12 months in some circumstances. Reasonable business grounds” of refusal again applies. Redundancy Pay – If you have more than 15 employees, the employee entitlements when made redundant are now specified.
  • Fair Work Information Statement – All new employees must be given this statement prepared by the Fair Work Ombudsman, but it might be prudent to give it to everyone.
  • Unfair dismissal – Small businesses are no longer protected after the first 12 months of employment. There is a “Small Business Fair Dismissal Code” that employers with less than 15 full time equivalent staff should read carefully.

Modern Awards – Your workplace may now be covered by a Modern Award. You need to know which one and make sure your employees are provided with the working conditions it contains. Exactly which award (if any) might apply has not been clearly determined at this stage. Only orthoptists are specifically mentioned as an eye care industry-related profession. There are however some awards that could apply.

There are two modern awards that might apply to optometrists and support staff. These are the Health Professionals and Support Services Award 2010 MA000027, and the General Retail Industry Award 2010 MA00004.

It is probable that optometrists are not covered by the Health Professionals Award even though it would seem like a good fit. The Fair Work Ombudsman advises that as optometrists had no award previously and the profession is not specifically mentioned in the Award, there is probably no coverage. Many optometrists fall outside the salary exclusion point of AUD$108,300 per annum and common salaries for newer members of the profession exceed the award rates by some way. Optometrists are covered by the 10 National Employment Standards. If you have written agreements with your staff (which is wise) you will need to amend them to reflect these entitlements.

Other practice staff present a more complex situation. As with optometrists, the NES conditions apply to all staff. Fair Work Australia says that if you were under an award before January 2010, in most cases you should continue under that award until December 2010 when the Modern Awards apply. If employment was covered by a state employment agreement, that agreement continues until it expires or is terminated. Practice employees who were not covered by an award or agreement may or may not now be covered by a Modern Award. There are two possible awards:

  1. The Health Professionals and Support Services Award 2010 MA000027 has categories that could apply to optical assistants and receptionists.
  2. The General Retail Industry Award 2010 MA00004 might alternatively apply depending on the job specifications.

Both awards are similar in their conditions and salary levels. The problem is that optical support staff is not mentioned in either award, and like optometrists, might not be covered at all when state awards or agreements expire.

The Fair Work Ombudsman’s advisors suggest the Retail Award might be an appropriate option for support staff, but also say quite clearly that this is not legal advice. Sorting out the detail of the Fair Work Act 2009 will take time. More awards are being added by Fair Work Australia and amendments are being made constantly. In the short term there is a need to ensure you comply with the national employment standards and you will need to consider how these changes affect your business specifically. Those of us with expired or terminating agreements might need to make some decisions, but for most, what is clear is that we need more clarity.

Mark Overton Bsc MBA, is the Managing Director of Ideology Consulting and has 28 years of experience working in both public and private business. Mark has an extensive portfolio of experience in general management, consulting and professional service roles. Mark has consulted to over 400 businesses across Australia including public hospitals, Federal government medical research institutions and professional associations and has lectured at universities.