IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application for award or variation of award

Tasmanian Confederation of Industries
(T.2728 of 1990)

RESTAURANT KEEPERS AWARD

Exemptions from Superannuation

In this matter the Tasmanian Confederation of Industries (TCI) seeks to take advantage of a proviso contained in Clause 30A of the Restaurant Keepers Award which provides that employers may seek exemption from making occupational superannuation contributions into the approved funds known as HOST PLUS or TASPLAN.

The relevant subclause provides as follows:

"(d)   Exemption

An employer may seek exemption from making contributions into either of the nominated approved funds in the following circumstances:

i) where employees subject to this award represent a minority of the total employees and contributions are already being made into an approved fund (as defined) in respect of the majority of employees in any one establishment; or

(ii) where the fund subject to the exemption application is an approved fund which was established prior to 1 January 1990 and Occupational Superannuation contributions equivalent to 3% of ordinary time earnings were being paid on behalf of all employees in the establishment covered by this award prior to 1 January 1990 and have continued to be paid since that date; or

(iii) where an emoloyer can demonstrate a special and compelling circumstance to justify the use of an approved fund other than either of the nominated approved funds. "

And TCI rely upon d (ii) to justify a list of 15 employers being exempted on the basis of them already having employees covered by an alternative approved fund prior to 1 January 1990.

The Federated Liquor and Allied Industries Employees Union of Australia, Tasmanian Branch (FLAIEU) consented to exemptions being granted to 15 of those employers on the basis that they meet the requirements of the award.

In these circumstances the following employers are granted an exemption provided they continue to make occupational superannuation contributions to the alternative approved fund appearing next to their name, i.e.

The FLAIEU objected to the granting of similar exemptions to two employers, i.e. Holloway Enterprises, trading as Mures Fish Centre, Victoria Dock, Hobart (Mures) and Hayes Catering Pty Ltd of Cat & Fiddle Arcade, Hobart (Hayes).

Since there was no agreement in respect of these two employers, argument from both sides was put to the Commission.

Whilst the facts concerning Mures were largely non-specific I have concluded that this employer commenced to make 3% occupational superannuation contributions into the Chamber of Commerce Industry Superannuation Fund as from August 1989, in respect of all full-time employees and has continued to make regular contributions to such employees. However, prior to the making of the award provision (effective from 1 January 1990) this employer was unable to anticipate that certain casual hire employees were to also qualify. As a consequence Mures did not include such persons in the superannuation scheme for a time. However I am assured that contributions have been made by the employer in respect of all eligible casual employees as well as full-time employees, at least from the time the award provision was introduced.

In these circumstances I believe that a case has been made out to support the granting of an exemption in the manner sought but provided the alternative approved fund is used. And the award will be varied accordingly.

I turn now to the application as it relates to Hayes Catering Pty Ltd.

This question was debated at some lengths on 2 October 1990, but at the end of the day the parties concerned agreed to my suggestion that they further confer and let me know the result.

Written advice was received on 29 November 1990 to the effect that Hayes Catering Pty Ltd is now content to contribute to TASPLAN, an approved occupational superannuation fund which is stipulated in the award. Accordingly the earlier request for an exemption no longer applies and requires no decision.

Operative Date

In those cases where exemptions have been granted and other funds substituted the variation will of necessity apply from 1 January 1990.

Order is attached.

A Robinson
DEPUTY PRESIDENT

Appearances:
Mr K Brotherson with Mr D Goldsmith for the Tasmanian Confederation of Industries
Mr N J Sherry for the Federated Liquor & Allied Industries Employees' Union of Australia, Tasmanian Branch

Date and Place of Hearing:
1990
Hobart
2 October