T4451
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Tasmanian Chamber of Commerce and Industry Limited CARRIERS AWARD
Labour on-costs - 3% occupational superannuation - exemption REASONS FOR DECISION This was an application by the Tasmanian Chamber of Commerce and Industry Limited (the Chamber), made under Section 23 of the Act, for an exemption to be provided in the superannuation clause in the Carriers Award (the Award) allowing the employees of Tennant Removals Pty Ltd of Midway Point to have their superannuation contributions paid into the fund known as Tasplan. In support of the application the Chamber referred to Section 32 (1B) of the Act which specifies: 'In making or varying an award in relation to payment of contributions to a superannuation fund, the Commission must not refuse to make or vary that award if the superannuation fund - (a) is a complying superannuation fund; and (b) is one which the Commission is satisfied meets the wishes of employees.' The Chamber produced an exhibit which included copies of (a) a letter of the Commonwealth Insurance and Superannuation Commission, dated 22 April 1993, confirming that the fund Tasplan (for the 1991/92 income year) had satisfied the relevant fund conditions set out in the Occupational Superannuation Standards Act 1987 and (b) a letter under the heading of Tennant Removals Pty Ltd (the Company) from the Company to the Chamber seeking to use Tasplan and signed by four persons said to be employees of the Company. The Chamber submitted that the evidence in the exhibit was sufficient to show that the requirements of Section 32 (1B) of the Act had been met and, therefore, the application should be granted. The Transport Workers' Union of Australia, Tasmanian Branch (the Union) objected to the application and said that the fund prescribed in the Award, the TWU Superannuation Fund, was an industry fund which covered almost every employee in the transport industry in Australia; this meant that when employees went from one job to another, a not uncommon event in the transport industry, their superannuation coverage was automatic and continuous. Moreover, in nearly all cases the TWU Fund would be the only one available. The Union also said that the Company had previously claimed it had no employees and relied only on contractors to do its work. The Union further claimed that no contributions had been paid into the TWU Superannuation Fund by the Company at any time up to the date of the hearing. As to the signatures of the employees the Union was of the view that they were probably put in through ignorance and the Commission should satisfy itself as to just how much the employees were aware of their rights and entitlements before they signed the letter submitted. However, the Union did not challenge the veracity of the signatures relied upon. The Union said that no approach had been made to it by the Company nor the employees. The Union strongly opposed the application. The Chamber, in response, submitted in particular that the employees had put their signatures to the letter and the Commission must accept that as evidence of their wishes. The Chamber also said that the Act allowed the employees to apply and the Commission had no discretion in the matter once the requirements of the Act had been met. There was also no evidence of duress or anything else to allow a discretion, the Chamber noted. I accept the Chamber's submissions. On the evidence before the Commission I am satisfied that the requirements of Section 32 (1B) of the Act have been met: the Union was unable to counter that situation. The Award will be amended as requested operative from the first full pay period to commence on or after 8 July 1993. An order is attached.
P A Imlach Appearances: Date and place of hearing: |