T1686
IN THE TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984
This application by the Federated Clerks Union of Australia, Tasmanian Branch seeks the variation of Division A of the Broadcasting and Television Award to provide for 3 per cent occupational superannuation. In the hearing Mr Fry and Mr Abey indicated that following discussions between them a consent draft order was able to be presented to the Commission, exhibit TCI1, for endorsement. I have decided to accept the draft order insofar as it relates to the level of contribution required to be made by the employer, the arrangements for casual and part-time employees and the operative date which was specified to be 1 August 1989. On the question of the appropriate fund(s) to which employee contributions are to be made some observations by the Commission are relevant. The proposed clause in exhibit TCI1 is as follows:
In the majority of cases before me on occupational superannuation I have decided that the Commission, not the parties, should determine which fund or funds are to be included in the award. In the case of specifically nominated funds, the Commission has at times been required to arbitrate between the respective nominated funds preferred by one or other of the parties to a proceeding. In any event I have reserved unto the Commission as constituted in this matter the ability to examine and or review, even in consent matters, the appropriateness or otherwise of particular funds being included in an award. In my opinion open ended award arrangements which provide for the parties to rely on alternative complying funds without reference to the Commission or indeed without the requirement for award specification is not the manner in which I intend to treat these issues. The parties are at liberty to seek to include in the award appropriate exemption clauses or make application for the inclusion in the award of other specifically nominated funds. Mr Abey took exception to my approach in this matter. He submitted that - '... the principles do not say that you have to nominate a particular fund and it would be open to the parties to come along here and simply have item (ii) (in (c) above) as the nominated fund." In brackets mine I consider it to be a task of the Commission in these proceedings to satisfy itself that the principle on superannuation is complied with. That compliance in my view should find expression in the award in the sense that the actual fund(s) is/are nominated. Mr Abey contended - "...if the parties are in agreement that a clause should read "The contributions shall be made into a complying fund" then in my submission, the role of the Commission is at an end because it is not responsible to enforce that prescription." Transcript P39 Clearly the Commission does not have an enforcement role. However there is a requirement for the Commission to act within the public interest as set out in Section 36 of the Industrial Relations Act 1984. I found the approach of Mr Abey somewhat curious on this particular aspect because in my opinion it is indeed open to the Commission to determine that the outcome of matters discussed here should be reflected in the award, albeit that the parties may have a different view. In that context I rely upon the discretion of the Commission and my perception of public interest considerations. Accordingly, as in the end I was requested by the parties to arbitrate on the provisions to be included in subclause (c) as set out above, I have decided to include in (c) (ii) after July 1989 the words "and which is endorsed by the Tasmanian Industrial Commission". Clause (c) (iii) is deleted in toto. Leave is reserved to the parties to seek an exemption clause. Alternatively applications for an additional fund or funds to be included in the award may be made no later than 31 August 1989. The order is attached.
R.K. Gozzi |