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The employment practices of many optometrist employers are set to be impacted with changes resulting from the Fair Work Act 2009 coming into operation from 1 January 2010. Optometrist employers need to understand the changes and take action to ensure they are meeting new obligations.

 

 

From 1 January 2010:

  • New modern awards will commence to operate and these will replace the current state-based awards.
  • The new National Employment Standards (NES) will commence and replace the current Australian Fair Pay and Condition Standards. These relate to basic entitlements such as annual leave, personal leave, carers leave, parental leave and the like.
  • Employers will be required to provide new employees with a Fair Work Information Statement

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Do the changes apply to you?

The changes will apply to most optometrist employers, specifically:

  • Employers in all states and territories who are 'Constitutional Corporations' i.e. generally Pty Limited companies or employers through a trust where the trustee is a Pty Limited company.
  • All employers, including partnerships and individuals in the ACT, NT and Victoria.
  • All other states (SA, NSW, TAS and QLD) except WA have referred, or are in the process of referring, their Industrial Relations powers to the federal government. Once completed, this will mean that non 'constitutional corporation' employers in all states except WA will fall under the federal system and the new NES and other requirements will apply. Although there are some transitional arrangements relating to the new modern awards (details below).

New Modern Awards

Currently, most employers in the industry are subject to essentially state-based awards. The Australian Industrial Relations Commission has conducted a process of rationalising the many thousands of awards into around 120 'modern awards'.

These modern awards will replace the current state awards which apply commencing:

  • On 1 January 2010 for all 'Constitutional Corporation' employers and all employers in the ACT, NT and Victoria.
  • On 1 January 2011 for all non 'Constitutional Corporation' employers (generally partnerships or individuals) in all other states except WA

There is no new modern award applying to Optometrists. They are award-free, meaning that they are not regulated by an industrial instrument, however some of their employment conditions may be prescribed by minimum standards.

The nature of your practice’s operation will determine which modern award will apply to your other staff.

If you sell goods by retail the new General Retail Industry Award 2010 will likely apply, including to your clerical staff.

If you do not conduct retail activities, the new Clerks Private Sector Award 2010 will likely apply.

Download the latest version (as of 16 December) of:

These awards may change, access up-to-date versions of the awards here.

It is critical that you review the applicable award in detail and commence to apply the required minimum standards. Without limiting the importance of understanding the entire award, employers should take particular note of:

  • The definitions as to what is a casual employee and what is a part-time employee. A casual would usually not have predictable hours of work.
  • The new rostering requirements
  • Hours of work, penalty rates and overtime requirements
  • The requirement under the General Retail award to enter into Individual Flexibility Agreements with an employee if you wish to pay an 'all up' rate of pay inclusion of entitlements such as annual leave loading, overtime or penalty rates.
  • The ability under the Clerks award to have an annualised salary.
  • New allowances, annual leave loading and casual loading.

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National Employment Standards (NES)

On 1 January 2010 the 10 NES will replace the Australian Fair Pay and Condition Standards. The NES is a safety net that all national system employers must comply with irrespective of an employee’s salary. Some of these standards will have an impact on your practice, particularly the changes to parental leave and an employee’s ability to request flexible working hours. Be prepared for these changes and seek advice if you are uncertain.

Summary of the NES:

Maximum weekly hours of work - The NES provide for a maximum of 38 ordinary hours of work for full time employees. Employers can ask an employee to work more than 38 hours. The request must be reasonable.

Hours can still be averaged. The NES do not limit the period over which hours are averaged if done in accordance with a modern award or enterprise agreement. If an employee is not covered by a modern award or enterprise agreement, then hours can only be averaged over a six month period. Previously hours could be averaged over a 12 month period.

Reasonableness of extra hours over 38 hours per week depends on matters such as an employee’s health and safety, their personal circumstances (including family responsibilities), the nature of the business, compensation payable for working extra hours (either extra compensation or a level of remuneration that reflects an expectation of longer hours), notice of the request, patterns in the industry and the employee’s role or level of responsibility.

Requests for flexible working arrangements - A new entitlement that parents or carers of children under school age can request in writing a change in working arrangements to assist with the care of the child.

Employees must have worked for the employer for at least 12 months before making such a request.  Casuals can make the request but must be long term casuals with an expectation of ongoing employment.

An employer must respond to an employee’s written request in writing within 21 days. If the request is refused an employer must set out the reasons for refusing.

An employer can only refuse a request on reasonable business grounds. The Act does not tell us what reasonable business grounds are, however the explanatory memorandum to the Act indicates they are to be assessed according to the particular circumstances that apply when the request is made including, for example, the effect a change would have on the business including financial and any impact on efficiency, productivity or customer service, an inability to organise work among other staff or to recruit a replacement, or the practicality of the request.

This could have a significant effect on your practice if current applications by Tribunals of similar terms are utilised as it may only be in a minimum of cases that an employer could refuse.

Parental leave - the NES continues to provide for unpaid parental leave for permanent employees who have worked for an employer for at least 12 months (at the time leave commences) and will now provide leave for long term casuals with an ongoing expectation of employment. The leave is available to employees who will have responsibility for the care of the child.

The NES increase the total amount of unpaid parental leave an employee can request from 12 to 24 months.

Each parent can take up to 12 months unpaid leave (to run consecutively) or one parent can request up to 24 months’ leave.
There is an entitlement to a maximum of three weeks concurrent unpaid parental leave around the time of a child’s birth/ adoption.

An employee can request the additional 12 months leave after the first 12 month period. The employee must give the employer at least four weeks’ notice, which in my view is a concern as it gives the employer very little time to plan around the increased leave. For instance a replacement or temporary employee may have been engaged on a 12 month contract and already planned to leave by that time.

An employer can refuse a request for an additional period of parental leave (after the first 12 month period) on reasonable business grounds. The employer must provide the employee with reasons for refusing.

The NES introduces parental leave for same sex de facto partners.

Employees must give their employer ten weeks’ written notice of the proposed parental leave start and end dates. An employee wishing to extend a period of parental leave must give the employer 4 weeks notice.

Annual leave - Annual leave entitlements remain the same, ie four weeks annual leave.

The NES changes accrual methods and the concept of service for the purpose of calculating the entitlement. Leave is accrued as and when ordinary hours are worked.

All employees can cash out annual leave, provided an accrued balance of at least 4 weeks leave remains.

An award or agreement can also deal with cashing out. However, if an employee is not covered by an award or agreement the employer and employee must agree to the cashing out. An employer cannot exert undue influence on an employee to cash out leave.

Personal/carer’s and compassionate leave - The amount of personal leave remains the same.

Casual employees are not entitled to any paid leave but may be entitled to take two days unpaid personal/carer’s or compassionate leave at a time.
Personal/carer’s leave accrues at the rate of ten days per year. The number of days paid carer’s leave that an employee can use is no longer capped at ten days a year.

Leave can be cashed out under provisions in modern awards and agreements provided a minimum of 15 days remain, but employees not covered by such instruments cannot cash out this leave.

Community service leave - Unpaid leave for eligible community service activity, such as jury duty or voluntary emergency management must be provided.

Employers will have to pay full time and part time employees undertaking jury duty for a period of up to ten days. They are to be paid at their base rate of pay for ordinary hours of work.

Long service leave - For the moment, long service leave will continue to be regulated by state and territory legislation, awards and agreements. It is envisaged we will move to a nation system, which in my view should be encouraged.

Public holidays - payment when an employee is absent on prescribed public holidays is still required.
An employer must pay an employee’s base rate of pay for ordinary hours that would have otherwise been worked on that day.

An employer can request an employee work on a public holiday. An employee can refuse. However the request and refusal must be made on reasonable grounds. The reasonableness test is similar to the one applied in respect of additional weekly hours of work.

The Queen’s birthday holiday has been added to the list of prescribed public holidays. The list now includes the following eight days: 1 January (New Year), 26 January (Australia day), Good Friday, Easter Monday, 25 April (Anzac day), the Queens birthday (as per state or territory), 25 December (Christmas) and 26 December (Boxing day).

Notice of termination and redundancy pay- The NES provide for written notice of termination and now a guaranteed entitlement of redundancy pay to all employees.

The NES does not change the current minimum period of notice that an employer must provide.  The period of notice required remains based on length of service (from one week where an employee has up to a year’s service, progressing to four weeks’ notice where an employee has more than five years’ service and an additional week for an employee who is older than 45 and who has worked for the employer for at least two years).

The NES sets out a new compulsory minimum redundancy pay scale, providing for four weeks’ pay for employees with one to two years’ service progressing to 16 weeks for employees with 9 to 10 years service.

An employer does not have to pay any redundancy pay under the NES if it is a small business (fewer than 15 employees) or the employee being made redundant has less than one year’s service.

The new NES can be accessed here

Fair Work Information Statement

A copy of the Fair Work Information Statement must be provided to all new employees after 1 January 2010.

We recommend employers provide the statement to current employees as a matter of prudence. Download the current version (as of December 16) of the Fair Work Information Statement here.

If you would like further information about the Fair Work Bill or other employment related matters, please contact This email address is being protected from spam bots, you need Javascript enabled to view it who heads our Employment Law and Occupational Health and Safety practice

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