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T4608 and T4642

         

    TASMANIAN INDUSTRIAL COMMISSION

    Industrial Relations Act 1984
    s23 application for award or variation of award

    Tasmanian Chamber of Commerce
    and Industry Limited
    (T4608 and T4642 of 1993)

    RETAIL TRADES AWARD

 

PRESIDENT F. D. WESTWOOD

1 NOVEMBER 1993

Variation of award - occupational superannuation - exemption

REASONS FOR DECISION

Applications T4608 and T4642 of 1993 were lodged by the Tasmanian Chamber of Commerce and Industry Limited (TCCI) seeking to amend the Superannuation exemption provisions in the Retail Trades Award. Mr Clues informed the Commission that he represented three companies seeking exemption under the provisions of Section 32(1B) of the Act, to enable them to use alternative funds other than those nominated by the award. The businesses seeking exemption were Routleys Pty Ltd, Lloyd Arnold, and Tasmanian Office Equipment.

At the commencement of proceedings Mr Clues informed the Commission that application T4642 incorporated application T4608, and asked that the matters be joined for the purpose of hearing.

He drew the Commission's attention to new sub-sections of Section 32 of the Act. Subsection (1B) states:

"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 emp loyees. "

New Section (1D) states:

    "For the purpose of subsection (IB), "complying superannuation fund" means a fund -

    (a) that is in receipt of a current notice under the Occupational Superannuation Standards Act 1987 of the Commonwealth stating that the fund has satisfied the superannuation fund conditions in relation to the most recent completed year of income; or

    (b) the trustees of which certify that they propose to take the required action under that Act to obtain a notice of compliance in relation to the current year of income;"

In order to satisfy the requirements of the Act, the Chamber tendered an exhibit - in two parts. The first addressed Application T4608, and incorporated a copy of a statutory declaration by those employees of Routley's Pty Ltd subject to the Retail Trades Award, indicating their choice and intention to have all occupational superannuation contributions made by Routleys Pty Ltd on their behalf, paid into the Group Ten Superannuation Fund. In this regard a copy of a letter from the Insurance and Superannuation Commission (ISC) dated 24 September 1993 was tendered, indicating that for the year of income 1990/91 the fund satisfied the relevant conditions.

By letter dated 11 October, to the TCCI, Mr McDougall, Executive Director of the Tasmanian Chamber of Retailers, also indicated his Chamber's support for Routley's application. A copy of this letter was included in Exhibit TCCI.1.

Mr Clues, in addressing Application T4642, indicated that a variation was sought also in relation to Lloyd Arnold and Tasmanian Office Equipment. The second part of the exhibit contained copies of statutory declarations by employees of Lloyd Arnold and by employees of Tasmanian Office Equipment. The former employees indicated a choice and intention to have all occupational superannuation contributions made by the employer on their behalf into National Australia FlexiSuper, and the latter nominating their choice of National Australian Flexi Super Plus. It was submitted that both funds were complying funds in accordance with the Occupational Superannuation Standards Act and its regulations, and documentation purporting to demonstrate that fact for the year 1991/92 was tendered, including a letter from the ISC dated 22 June 1993.

Mr Griffin, for the Shop, Distributive and Allied Employees Association, questioned the relevance of a certificate in relation to the year 1990/91, as stated in the compliance certificate for the Group Ten Superannuation Fund. Mrs Dowd, for the Australian Municipal, Administrative, Clerical and Services Union, expressed similar concern. She was also concerned that there was no way in which it could be assessed whether duress had been imposed on employees in the signing of declarations.

Whilst I understand the reservations expressed by Mrs Dowd and Mr Griffin about the certificates of compliance, they appear to relate to the most recent completed year of income as determined by the ISC and as such meet the definition of a complying superannuation fund.

So far as the question of duress is concerned, without evidence or advice to the contrary I accept at face value the submissions of Mr Clues that the individual employees all wanted their superannuation contributions paid into the fund nominated by the employer.

Accordingly the applications to vary are approved with effect from the date of hearing, i.e. 22 October 1993.

As agreed during the hearing, the application, as amended, also sought to remodel the exemption provisions of the Superannuation clause to accommodate the new legislative provisions. Those amendments are approved also.

The appropriate order is attached.

 

Appearances:
Mr S. Clues for the Tasmanian Chamber of Commerce and Industry
Mr P. Griffin for the Shop, Distributive and Allied Employees Association,Tasmanian Branch
Mrs H. Dowd for the Australian Municipal, Administrative, Clerical and Services Union

Date and Place of Hearing:
1993
Hobart
October 22