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T2243

 

IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

 

T No. 2243 of 1989

IN THE MATTER OF AN APPLICATION BY THE FEDERATED CLERKS UNION OF AUSTRALIA, TASMANIAN BRANCH TO VARY FUEL MERCHANTS AWARD

   
 

RE: 3% OCCUPATIONAL SUPERANNUATION

   

COMMISSIONER P A IMLACH

HOBART, 9 July 1990

   

REASONS FOR DECISION

   

APPEARANCES:

 
   

For the Federated Clerks Union
of Australia, Tasmanian Branch

- Mr D Fry

   

For the Transport Workers' Union

of Australia, Tasmanian Branch

- Mr B Hansch and
Mr G Warn

   

For the Tasmanian Confederation
of Industries on behalf of
Tasmaid Foods Pty Ltd

- Mr K Brotherson and
Mr S Clues

 

DATE AND PLACE OF HEARING:

 

1990.
Hobart:
February 9;
May 28;
June 27.

 

This was an application by the Federated Clerks Union of Australia, Tasmanian Branch (FCU) for a 3Z occupational superannuation provision to be inserted in the Fuel Merchants Award (the Award). There were three hearings.

Mr D ,Fry appeared for the FCU and as an authorised agent for the National Union of Storeworkers, Packers, Rubber and Allied Workers, Tasmanian Branch (NUW). Mr Fry sought for the claimed superannuation provision to be applied to every employee covered by the Award except drivers specified in Clause 8 - Wage Rates under Group I - classification 2 and Group II subclause (B). He advised that there was agreement as to the terms of the provision sought, but as it turned out, such agreement and its operative date did not extend to anything less than the whole of the award coverage.

Mr B Hansch, who appeared for the Transport Workers' Union of Australia, Tasmanian Branch (TWU) supported the FCU's submissions and in so doing advised that the TWU did not wish to proceed with a superannuation claim for drivers in the Award because it was awaiting a decision in the Produce Award which could well predicate what happens in this Award.

The Tasmanian Confederation of Industries (TCI) represented originally by Mr K Brotherson and then by Mr S Clues opposed the application on the basis that it did not cover all employees covered by the Award. The TCI submitted that acceptance of the application as it stood would lead to a multiplicity of funds being prescribed in the Award and it submitted such would be against the superannuation principle enunciated in the original March 1987 National Wage decision on the matter1. The TCI also submitted that an inequity would occur in that some employees covered by the Award would be receiving the benefits of a superannuation contribution before the TWU members covered by the Award. Reference was made to a recent decision in the Chemists Award2 which rejected the very thing being proposed by this application.

The parties confirmed that agreement had been reached as to the wording of the new provision (and a draft order would be submitted) but, agreement had not been reached as to which employees it should apply and the date for implementation. I think it is fair to say that there had been agreement for 1 April 1990 to be the operative date, but so far as the TCI was concerned such date was contingent upon the agreement applying to all employees covered by the scope of the Award.

The unions sought 1 April 1990 as the operative date.

The parties were reconvened for a final hearing mainly to hear argument as to the operative date as some strong disputation on the subject had occurred between the FCU and the TCI.

Eventually the Commission was requested by the parties to arbitrate on the two outstanding items.

The disputation arose because the original draft order which had been forwarded to the FCU by the TCI after the second hearing had specified 1 April 1990 as the operative date. The TCI had later sought to confirm that the date quoted in the draft order was a mistake; it should never have been in the draft.

It is my assessment that the TCI made a genuine mistake with the date specified in the draft order and, that being so, I do not accept the arguments of the unions as to the operative date. It is clear from the beginning of this matter that the TCI was only ever agreeable to the operative date claimed if the proposed amendments applied to all employees covered by the Award.

There being no agreement as to the operative date I believe (as submitted by Mr Clues) I am constrained by the Superannuation Principle and the operative date shall be that of this decision.

As to the other item, whether or not the proposed amendments will apply to all employees, I have decided that they will only apply to those covered by:

(a) in Group I - SELLER OF WOOD AND/OR COAL

    classification 1. Bench hand and all others not elsewhere provided; and

(b) in Group II - SELLER OF OIL FUELS AND THE DISTRIBUTOR OF PETROLEUM PRODUCTS

    subclause (A) - STOREMAN; and
    subclause (C) - CLERKS

in Clause 8 - Wage Rates.

I believe more than enough time has elapsed for a mutual agreement to have been reached on this application. Whilst I am sure all parties would prefer to have the whole of this award settled in one amendment in relation to superannuation, it would be unfair to deny any longer to the FCU and NUW members involved the standard occupational superannuation benefits.

The Award will be amended, operative from the date of this decision in the terms agreed by the parties and applicable only to those employees previously mentioned. As a result, except for the driver classifications found in Group I - classification 2. and in Group II subclause (B) - DRIVERS, all employees under the scope of the Award will be eligible for occupational superannuation payments.

Presumably once the superannuation application currently under consideration in matter T.2129 of 1989 in the Produce Award is settled an appropriate application will be made for the drivers in this Award.

An order is attached.

 

P A Imlach
COMMISSIONER

1 Print G6800
2 T.2284 of 1990