T3847
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 TFGA Industrial Association FARMING AND FRUIT GROWING AWARD
Labour on-costs - 3% occupational superannuation - exemptions REASONS FOR DECISION This application, made by the TFGA Industrial Association (the Association), was for the Farming and Fruit Growing Award (the Award) to be varied to provide for certain employers to be exempt from contributing to the fund nominated in the Award, Tasplan. The Association canvassed the details of the exemptions sought by the employers who had been contributing to other funds, said to be approved in accordance with the Commonwealth Operational Standards for occupational superannuation funds, prior to the deadline date set in the Award, 1 January 1992. The details tabled were: Employer Alternate Fund Contributions E A Hirt & Co. P/L. AMP Superleader Plan 22.12.86 Linden Pty Ltd ) Superannuation Fund .06.61 In support of its submission that all the alternate funds proposed were approved as required, the Association produced copies of relevant correspondence from the director of the Commonwealth Superannuation Commission (the Director) advising each employer that the relevant fund satisfied the requirements of the Commonwealth Occupational Superannuation Standards Act 1987. In the first instance, I am satisfied that the Association's application, in each case, complied with the detailed procedure set out in the superannuation clause in the Award. The Australian Workers' Union, Tasmania Branch (the Union) confirmed that prior discussions between the parties had taken place, but the Union would not agree to the exemptions sought. Basically the reasons for the Union's objections to the proposed funds were: · Tasplan was a better fund by comparison. · Duplication of funds was undesirable because of the itinerant nature of many workers covered by the Award. · In some cases the letters from the Director were out of date and hence not acceptable. · Two of the (Companies) employers involved were representing that the company directors were employees: this was against the Award since the directors were not "classified" in the Award as required. In response to the Union's objections the Association pointed out that it was trying to gain exemptions clearly available to eligible employers under the Award's prescriptions. The Association also noted there were only seven exemptions being sought whereas the Award covered about two thousand employees. The Association also submitted that a director of a company could still be paid legally by the Company as an employee of the Company carrying out the work of classifications in the Award. I am satisfied that the Association, on behalf of the employers nominated, has complied with the Award's requirements for exemptions, in particular: · I accept that the funds nominated in the application are "Approved Funds" as specified in the Award: in so doing I decide that the production of a letter from the Director acknowledging a particular fund is acceptable evidence of compliance as an "Approved Fund". I do not accept the Union's contention that it is necessary for the latest renewal letter to be produced. I do this for the reasons that such has been acceptable in previous applications for exemption; to require the latest letter would imply continuous submission of such letters and I believe, once a fund has gained recognition the onus ought to be on the Union to show that it has been withdrawn. I note that, in any case, since the hearing, the Association has produced copies of later letters from the Director. · In the circumstances of this application, it is not appropriate for the Commission to be comparing the relative economic or financial advantages of one fund over another as the Union sought to have the Commission do. In the first place the very existence of the exemption provisions in the superannuation clause implies that exemptions ought to be granted if those applying can demonstrate compliance. The deadline date also implies that it is a fair thing for those who provided superannuation contributions before the advent of the Award clause to be granted exemption. In this context the Commission has already acknowledged the Union's submission and specified Tasplan and the Australian Farm Superannuation Plan as the only funds permitted (apart from the relatively few exemptions available to those who had previously implemented superannuation schemes). In all the foregoing context I do not accept the Union's argument that there would be duplication. Secondly, generally speaking, the Commission's role is not to balance the economic performance, nor the technical advantages of one fund against another: such comparisons are the stuff of insurance salesmanship and for individuals to decide upon what is financially acceptable to them. I do foresee there will come a time when an application will be made for a nominated fund to be removed from an award and replaced with another because of manifest mismanagement of the monies invested or even fraud, but such would be an extreme case: it is certainly not so here. · As to the superannuation schemes for the two companies in which the directors are recipients of contributions as employees, I note that such an arrangement is both a technicality and a fiction. I do not see that the arrangement is against the Award as the directors may be paid by the Company in accordance with the Award. Again I do not see it as appropriate for the Commission to be testing the eligibility of persons claiming to be employees in this matter: I accept the submissions of the Association in this regard. The application for exemptions is granted in full operative from 19 August 1992. An order is attached.
P A Imlach Appearances: Date and place of hearing:
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