IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

This application by the Federated Liquor and Allied Industries Employees' Union, Tasmanian Branch, seeks ratification of a substantially agreed proposal to include in the Licensed Clubs Award a provision relating to superannuation. In addition, the Commission is required to determine a non-agreed issue regarding eligibility of casuals and part-time employees to participate in the proposed scheme.

The proposition is, as has been stated, generally supported by the Registered Clubs of Tasmania Co-operative Society Limited and the Tasmanian Confederation of Industries on behalf of members, save that there is no agreement regarding the wish of the union to have all casual and part-time employees regarded as "eligible employees"; that is, an employee that is to be regarded as an employee in respect of whom a club should make a superannuation contribution.

Before indicating whether the agreed matters will be approved for inclusion in the award it is first necessary to deal with the main point at issue; that is the question of the minimum employment periods that would need to be worked before casual and part-time employees became "eligible employees".

Insofar as part-time employees are concerned, I believe the award prescription is reasonable. This means that to be regarded as an eligible employee for the purposes of superannuation contribution payments a person must work not less than 12 hours per week on not less than 3 days per week. Where work is carried out over the 7 days, any 3 days may be counted, but hours worked must be actual and not notional hours - e.g. actual hours worked on a Sunday may be counted but only in terms of actual hours worked and not equivalent or penalty hours.

As to the question of casuals, I can see some substance in Mr. Edwards' argument that if around 500 weeks' contributions of approximately $1 per week would need to be worked before the employee concerned qualified for other than, as Mr. Edwards put it, "a deferred payment", there would appear to be no real value in including casuals at all in a so-called superannuation scheme.

However, some casuals work elsewhere in the industry for different employers and for varying periods; collectively an individual may work for more than 12 hours on more than 3 days of the week when his total time in the industry is aggregated. In these circumstances it would be unfair to deprive individuals of participation in a superannuation scheme merely because he or she was unable to obtain permanent part-time work with the same employing club.

Given that in arbitrarily determining cut-off points, anomalies can and do occur regarding those who are borderline cases, I am of the opinion that provided satisfactory evidence can be shown to an employer that a casual employee is working on average not less than 12 hours per week in the industry (the number of days does not matter), each employer should include that employee in his register. But the onus of demonstrating that the 12-hour test can be satisfied should rest upon the employee or his representative. Thus an employee who works a total of 12 actual hours per week on average with one, two or even more employers in this industry, subject to satisfying his employer of his total employment, should be entitled to have each of his employers in the licensed clubs industry make pro rata contributions on his behalf. However, I would add one important proviso: to my mind it is quite illogical to include the standard casual loading or part-time loading in the ordinary time earning rate upon which 3% contribution is payable. In the absence of agreement I would not be prepared to approve weekend penalties, overtime, shift allowance, service pay, site allowances or any other additions of that kind for the purposes of determining the ordinary time rate upon which the 3% calculation should be made.

Add-ons of the kind referred to relate to the environment in which an employee works and frequently compensate for stated disability considerations. On retirement, none of these apply. Moreover, a casual waiter, for example, on retirement is no different to a permanent waiter on retirement. Each is a retired worker. Just as weekend penalties are paid in compensation for working weekends, so too is a casual employee's base rate "loaded" for the peculiarities of casual work, such as the non-application of sick and annual leave, or the non-payment of public holidays.

In this regard I do not believe this Commission should consider itself bound to accept the "Club Plus" provision regarding "calculation" of ordinary time.

Should an employer choose to agree to contributions calculated on that basis, that would be his decision. But weekend penalties, shift allowances and the like are industrial matters that relate directly to compensating employees for actual working or environmental conditions.

Over-award payments are likewise given and withdrawn at the discretion of an employer. They do not relate to the classification or work value of the job itself.

It would not be reasonable to expect insurance companies, in establishing superannuation schemes, to be so much concerned with the industrial niceties regarding award terminology as they might be expected to be concerned with, say, determining the return on amounts invested.

Ordinary time rates or the equivalent terminology has been judicially interpreted to mean many things and offers little help in this regard.

I am of the opinion, therefore, that in line with the well-settled and established State Employees' Retirement Benefit Fund scheme presently applicable to State employees, ordinary time should mean just that. Allowances, such as certificate allowances, commuted allowances and matters of that kind may be included for the purposes of superannuation contributions, but only at the request of employees. Moreover, if such allowances are included, contributions are payable by the employees and not the employer.

In view of the foregoing, I am not at this stage prepared to arbitrate in terms substantially different from the thrust of the R.B.F. scheme. I therefore refer this matter back to the parties. If they agree, as they have been able to in relation to full-time employees, I will of course approve that agreement. If they do not and I am required to decide the matter, my decision will not favour the proposal requested by the parties in relation to full-time employees. In my view superannuation premiums payable for any wage add-ons should be met by the individuals, not the employer.

I am also of the opinion that an employee whose only income, regardless of the hours worked (provided that employment is regular) should likewise be regarded as an "eligible employee" for the purposes of superannuation contributions. I have in mind persons in smaller communities where the options for employment are extremely limited and who, for that reason, are able to obtain only casual employment at the local club or perhaps hotel.

Without some dispensation of this kind, those persons would rarely, if ever, qualify for superannuation, however described. But the main test in the circumstances should be the "regularity" of the employment. I feel that one or two days per week or per fortnight, spread over a reasonable period of time, might fairly be regarded as "regular work".

I realise that in the circumstances I have now described, employees of this class may fall into the category opposed by the employers. Mr. Edwards also suggested that payments of, to use his own words, "such miniscule contributions" would not really be payment on account of superannuation, but more in the nature of deferred pay. In fact, he referred to this as a "lunatic situation". However that may be, there can be more than one view taken on the definition of lunatic.

Mr. Edwards also questioned inclusion of junior casuals or junior part-time employees in the proposed scheme. In this regard he suggested that the main purpose of superannuation is to provide some sort of reward for long service. If that is the case, then why exclude juniors who are just commencing their career? At what point should contributions commence? Should they commence when a junior attains full-time employment, or perhaps when employed as a trainee under a traineeship agreement?

It seems to me that all of these questions might best be answered by the parties themselves, having regard for, among other things, the nature of the industry; the work patterns of employees; whether or not staff turnover is of major concern to the industry, and whether there is traditionally a high staff movement between this and other related or unrelated industries.

The other matter of concern to the parties was the question of respondency. Appendix A to the proposed award variation will include a list of all licensed clubs in Tasmania, whether or not they are members of the Registered Clubs Co-operative Society, but excluding members of the Tasmanian Confederation of Industries.

Appendix B will contain the names of all licensed clubs in Tasmania who are members of the Tasmanian Confederation of Industries.

Different operative dates will apply to those clubs cited in Appendix A from those cited in Appendix B.

The operative date for the purposes of making contributions of 1.1/2 per cent will, by agreement, be retrospective to 1 June in the case of clubs cited in Appendix A.

So far as Appendix B is concerned, employers cited therein will commence contributions from 30 June 1988.

Employers cited in Appendix A and Appendix B will hold the first instalment of their contributions, namely 1.1/2 per cent, from 1 June or 30 June as the case might be, until 30 September 1988 when the second instalment of 1.1/2 per cent (making a total of 3 per cent on behalf of each employee) shall be due and payable, together with arrears dating from either 1 June or 30 June. This, I understand, is an agreed position and needs no arbitration by the Commission.

Insofar as a small number of the clubs cited in Appendix A do not appear to be members of any organisation, they will be bound in accordance with Appendix A. This decision is taken with some reluctance having regard for the fact that they are unable to access this Commission to put a case for or against the proposal. This is so because they are not members of any organisation. However, the FLAIEU indicated during proceedings that every club, whether a member of an organisation or not, was circulated with a claim for superannuation and afforded every opportunity to present a point of view to the union. No club will therefore be able to claim to have been aggrieved because it was unaware of the fact that a superannuation proposal was in prospect. Any non-consenting club that is not a member of the Registered Clubs of Tasmania Cooperative Society Limited or the TCI, but who wishes to object, will need to do so on the grounds of incapacity to pay. In those circumstances it must either present its case via a registered organisation, or seek an exemption by direct negotiation with the union.

Any member of the TCI who was at 1 May 1988 a member of that organisation will be bound by Appendix B, whether or not that club has resigned or intends to resign its membership during the intervening period.

Any club cited in Appendix A as a member of the Registered Clubs Cooperative Society or a non-member, shall make contributions in accordance with Appendix A, whether or not that club resigns its membership of the RCCS or becomes a member of a registered organisation in the intervening period.

For all of these reasons I propose referring back to the parties the matter of casuals and part-time employees, indicating at the same time that insofar as the remaining full and part-time employees are concerned, the award will be varied in accordance with Exhibit A, as amended by Exhibits B and C.

Should the parties be able to reach agreement with respect to casuals and persons who may or may not be regarded as part-time, including juniors, in a short period of time, that agreement will be embodied in the proposed variation.

If further debate is necessary as a consequence of this decision, opportunity will be given in due course for this to take place, but it is unlikely that this could occur before September. Meanwhile this matter shall be regarded as part-heard pending further advice from the parties.

L.A. Koerbin
PRESIDENT