IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

Each of the four applications before the Commission seek inclusion in the Retail Trades Award of an appropriate superannuation provision consistent with the Commission's guidelines presently in place.

Consultation failed to bring about total agreement although there was no dispute regarding the concept of an occupational superannuation provision being inserted in the award. The principal area of disagreement related largely to the methodology to be employed by employers seeking exemption from the proposed nominated funds to be included in the award.

There was also disagreement regarding identity of the superannuation funds to be nominated.

In addition the Transport Workers' Union pressed for a flat money amount to be prescribed. This was intended to be in substitution for the standard 3% payment referred to in the current wage fixing principles as the ceiling rate of contribution to be made by an employer on behalf of each employee.

Apart from the issue of likely requests for exemptions, including the question of how and by whom those requests should be considered, debate about the number and identification of approved funds appeared to boil down to the philosophical, albeit understandable, desire by unions to nominate a particular fund. In this regard each organisation opted for either a scheme established for the class of employee represented by that organisation, or a fund established for employees engaged in a particular industry.

But as all funds first need to be "approved" in accordance with the requirements of the Commonwealth Operational Standards for Occupational Superannuation Funds, it is difficult to justify a proliferation of preferred funds being included in awards. This is particularly so bearing in mind that almost any reputable scheme that meets the Commonwealth criteria will in the long term generally provide a similar benefit to an employee.

The one possible exception to this rule might be where an industry fund may seem to be appropriate for those employees working within the industry concerned or industries cited in the Scope Clause of the award. But where the award or parts of it are extended by regulation into quite unrelated industries, there might be some justification for including in the award to be extended in this way provision for contributions to be made to some general-purpose fund. In this State that known by the acronym "TASPLAN" might be one such fund.

TASPLAN is jointly managed by the Tasmanian Trades and Labor Council and the Tasmanian Confederation of Industries. It is arguable therefore that such a fund could be nominated in those circumstances to cater for those within the industry. It might also be appropriate where the award (or part of it) is extended to other industries or occupational groups that are external or unrelated to the industries covered by the award.

Having reached this conclusion I have decided that in this case "REST", being the "industry" superannuation fund established for the majority of retail trades' employees, together with TASPLAN which is a general-purpose fund, will, on balance, adequately cater for the needs of not only those within the industry but also for those who take wage rates or other conditions from the Retail Trades Award.

Having formed this prima facie opinion, there needs to be acknowledged that already there is in existence a number of employer-sponsored schemes that either have or may obtain Commonwealth endorsement as approved schemes. In such circumstances provision should and will be made for applications for exemption from making contributions to the nominated funds to be considered by the parties cited as Parties and Persons Bound by the award. In this regard I accept in principle the agreed procedures identified as items 1 and 2 in Exhibit A tendered during proceedings by Mr Targett. Nevertheless it must be acknowledged that agreement may not be reached in every instance where an exemption is requested. For that reason suitable provision will be made for the resolution of disputes by resort to the statutory dispute-settling procedure referred to in Section 29, 30 and 31 of the Act.

By invoking Sections 29 et seq. of the Act, scope will exist for unregistered employers to access the Commission along with those who are registered. But it needs to be understood that in those circumstances any decision of the Commission can and will be limited to a declaration that an exemption should or should not be allowed under the procedure explained in either items 1 or 2 of Exhibit A.

It follows from the foregoing that the detailed, yet lucid argument presented by Mr Pallas on behalf of the National Union of Storeworkers, Packers, Rubber and Allied Workers, Tasmanian Branch, for inclusion of the Labour Union Co-operative Retirement Fund as a third nominated scheme to which contributions might be paid is rejected. Having so decided the proposed exemption procedure set out in his Exhibit F is also rejected except to the extent that the final paragraph in Exhibit F might be modified and incorporated in the award.

As already stated, an aggrieved employer may then have an unfavourable decision of the committee reviewed by the Commission constituted pursuant to Section 29 or 30 of the Act. In those circumstances the Commission will only determine whether or not an exemption shall or should have been granted. To do otherwise would be contrary to Section 31 of the Act. However, this Commission is powerless to prevent a registered employer making application pursuant to Section 23 of the Act should he be minded to do so.

This leaves for consideration the detailed argument presented by Mr Hansch for a flat money payment of $14 per week for full time Transport Workers' Union members or those eligible for membership. The payment sought was to be paid to the Transport Workers' Union Superannuation Fund. In presenting argument in support of his position, almost all of the exhibits tendered by Mr Hansch demonstrated that under the Federal industrial jurisdiction a flat money amount - originally set at $12, and then rising to $13 and then $14 dollars per week (and $2.80 for casuals) - has been a feature of Federal superannuation awards covering transport workers.

Moreover, on at least two occasions a Superannuation Full Bench convened for that purpose had stated that neither the original $12 nor the subsequent $13 contribution offended the superannuation provision contained in the wage fixing guidelines. Those guidelines are identical with the principles adopted by this Commission and provide for a ceiling payment of 3% for the purpose of occupational superannuation.

While it is true no information was made available to the Commission regarding the level of over-award payments, clearly the awards made by the Federal Commission for transport workers did exceed 3% at the lower wage levels. However, on balance the flat $12 and current $14 may not have been significantly in excess of the average transport worker's wage. Understandably Mr Hansch sought the same provision in these proceedings.

As I see the position, for this Commission to refuse the Transport Workers' claim could result in a roping-in application being filed for extension of the Federal Award to even more Tasmanian employers, including in this case many of the employers bound by this award (as extended). Should that happen, many TCI members and Retail Traders' Association members would be bound to a Federal award.

This Commission has recently experienced Federal intervention (albeit by consent of the parties) in another matter. The effect of that was to leave the Commission powerless to regulate wages and working conditions for a significant group of Tasmania employees. For that reason I am not prepared to facilitate further Federal intrusion into what is and should clearly remain a State-regulated industry. Accordingly I invite employers to settle this matter with the TWU by either agreeing to a flat money amount to be paid to either REST or TASPLAN. Alternatively they might be prepared to agree to a flat money amount to be paid to the Transport Workers' Union Superannuation Fund.

For my part I would favour a flat payment to REST or to TASPLAN (or if an exemption is granted, to some other nominated scheme). But I will only decide this issue should agreement not be forthcoming.

The Commission was urged by Mr Pallas to determine an earlier operative date than the proposed 1 June 1989 agreed to by the employers, SDAEA and the FCU. In this regard he reminded the Commission that the issue of superannuation had been the subject of an application filed as long ago as August 1988.

While I have some measure of sympathy for Mr Pallas's concern in this regard, in deciding to refuse retrospectivity I have been persuaded by Mr Fry's submission that while the outcome of negotiations was not as palatable as the unions would have wished, the fact remains that what was achieved as a compromise representing the best deal that was acceptable to both employers and employees. It is fundamental to industrial relations practice that the parties live with what has been agreed to in an atmosphere free from duress. Mr Fry indicated that operative date was one of the items upon which a compromise had been reached.

Having now decided that there shall only be two award-nominated funds (unless the parties agree to also include the TWU scheme) into which contributions shall be paid, it will be necessary to draft an appropriate award variation giving effect to this decision. The relevant parts of Exhibits A and F might therefore be suitably adapted or adopted for this purpose. However, as indicated during proceedings consequent on a request having been made to that effect, a drafting conference will be scheduled in order to settle an appropriate order giving effect to the Commission's decision. Any obvious deficiencies in the attached draft can be rectified during that conference.

L A Koerbin
PRESIDENT