IN THE TASMANIAN INDUSTRIAL COMMISSION

Decision Appealed - See T2111

Industrial Relations Act 1984

These four matters concern applications for 3% occupation superannuation consistent with the terms and limitations of the current Wage Fixation Principles.

All parties were encouraged to negotiate a mutually acceptable package in relation to the broadly based claims submitted, and pending some resolution of the matters - several adjournments were granted.

When last before the Commission on 20 July the four applicants, i.e.: -

presented a document containing details of a proposed new award provision relating to 3% occupational superannuation.

The document provided that an employer shall make an occupational superannuation contribution equivalent to 3% of ordinary time earnings (as defined) into an approved superannuation fund in respect of all eligible employees (as defined) as from 1 October 1989. It further provided, inter alia, that contributions are to be made into either of the following nominated approved funds: -

- Retail Employees Superannuation Trust; or

- TASPLAN

Provision was made for exemptions for employers who already provided Occupational Superannuation under another approved fund which was established before 1 July 1989, provided the following procedure is followed: -

An employer seeking exemption shall, not later that 15 August 1989: -

(i) Pursuant to Section 29 of the Industrial Relations Act 1984 make application to the Industrial Commission.

(ii) Application shall contain the following information: -

(iii) Any application shall in the first instance be considered by the union(s) party to the Award which in each case have constitutional coverage for the class of employee affected. Where the union(s) agree with the application, the exemption will be granted.

(iv) Where agreement is not reached, the matter shall be heard and determined by the Commission.

(v) An employer may choose to forego consideration of his application by the union(s) and have the matter determined in the first instance by the Commission.

And a special general exemption was recognised in respect of an employee who belongs to the religious fellowship known as "Bretheren" provided such employee holds a certificate issued by the Registrar pursuant to Section 32(9) of the Act.

Such an employee may nominate an alternative complying fund into which the contributions shall be paid.

However, the four applicant organisations requested that the draft proposals only apply to divisions A, C, D and E of the award.

Division A has application to:

Division B applies only to Pharmacists

Division C applies only to Photographic Supplies

Division D applies only to Clerks

Division E applies only to Shop Assistants (Retail)

Division F applies only to Drivers

The Tasmanian Confederation of Industries (TCI) and the Pharmacy Guild consented to the variation of the award in the terms proposed by the applicants, including the exclusion of Division B because separate mutually acceptable private arrangements generally apply in this professional area.

However the TCI argued against the exclusion of Division F.

Whilst the Transport Workers Union (TWU) had appeared in earlier proceedings and registered its opposition to Division F being made part of any provisions in relation to occupational superannuation, no appearance was entered on the final day of hearing.

The TWU's reason for seeking that its members be excluded from any such provision in the Chemists Award was based upon its stated intention of seeking provisions under a federal award, presumably to achieve a more favourable result in terms of greater level of employer contributions, i.e. more than 3% of ordinary earnings and a requirement that employers presently covered by the Chemists Award in Tasmania be required to pay contributions into the TWU scheme in addition to any other scheme already determined by this Commission.

Such reasons alone are not persuasive and I point out that in the event that a federal award is made it will in any case bind all employer and employee organisations made party to it, and to the extent of any inconsistency, automatically prevail over any State award which would otherwise have application.

Mr Brotherson's case for inclusion of Division F of the award as part of the proposal contained the following: -

1. It would be impracticable to exclude driver classifications covered by Division F because the reality is that storeman/drivers are employed.

2. In some cases employers employ persons covered by Divisions A, C, D, E and F of the Chemists Award. Consequently such employers should not have to observe different provisions in relation to some classifications of employees.

3. Driver classifications would be utilised by a very small minority of employers, compared to other classifications covered by the award, and of those employed, not all would be TWU members.

4. Exclusion of Division F would be inconsistent with the thrust of current Wage Fixation Principles and decision of both the Tasmanian and Australian Industrial Relations Commissions. And in this regard reliance was placed upon quotes from the decision1 of Keogh D.P. handed down in Melbourne on 30 June 1989, concerning a similar type of dispute which arose in relation to the TWU and employers covered by the Metal Industry Award 1984.

Comfort was also sought to be derived from two decisions handed down by Mr Commissioner Gozzi. Both concerned disputes concerning the TWU and choice of superannuation fund.

The first of such matters arose whilst dealing with the Meat Trades Award and Abattoirs Award2, dated 26 January 1989, and the second concerned a Section 29 dispute involving the TWU and the Electrolytic Zinc Company and the decision3 is dated 18 July 1988

I am satisfied that the proposed award variation sought for the introduction of provisions relating to employer contributions of 3% of ordinary earnings into an approved fund is consistent with the requirements of current Wage Fixation Principles and with the public interest criteria pursuant to Section 36 of the Act. And the claim is granted in respect of Divisions A, C, D and E of the award, consistent with the agreement of the parties.

Having allowed ample opportunity to the parties to amicably resolve the question of provision of occupational superannuation for employees covered by Division F, and being now satisfied that the parties are unable to negotiate an agreement consistent with the Principles, I propose arbitrating upon this one outstanding question.

My primary concern in this matter is that the outcome is wholly consistent with current Wage Fixation Principles.

And in this regard I emphasise that the proposal which I have endorsed thus far is totally consistent with the superannuation principle, both as to quantum and the recognition and acceptance of only approved superannuation schemes to receive contributions which do not involve the equivalent of a wage increase in excess of 3% of ordinary time earnings of employees.

A further important element of the Principles is that no employer should be forced to make contributions for its employees to a multiplicity of funds. This is to be found in the following quote to be found in the Australian Commission's decision4 of March 1987 at page 23, paragraph e, inter alia: -

"The first is that any fund which complies with the Commonwealth's Operational Standards for Occupational Superannuation Funds and which has received the appropriate preliminary listing for taxation purposes from the Commissioner for Occupational Superannuation, could be determined as an appropriate fund by the Commission. The second is that it seems reasonable that no employer should be forced to make contributions for its employees to a multiplicity of superannuation funds."

Employers covered by Divisions A, C, D and E of the Chemists Award will now be required to contribute to either "R.E.S.T." or "TASPLAN" in respect of the vast majority of their employees.

It seems unreasonable to deny employers the opportunity to contribute to the same fund in respect of the small remainder of their workforce. And in this regard I adopt and endorse the comments made by Keogh D.P. in a case which has sufficient comparability to be relevant. In that matter (already referred to 5) the following is to be found at page 6: -

"Given the magnitude of the area covered by the agreed settlement, and the fact - not contested - that NUW members normally comprise a minority of employees in the establishments affected, the Commission is not prepared to vary the agreed settlement in the manner sought by the NUW. To do so would not only give NUW members a measure of choice in excess of other employees but would also have the potential to cut across other key features of the agreed settlement. For example, it could cut across the provision that an employer "shall not be compelled to contribute to more than one fund".

Nor is the Commission prepared to make an order in terms of the agreed settlement which does not apply to the NUW. To do so would delay the introduction of superannuation benefits for NUW members who do not already receive this benefit in this industry and provide potential for further industrial disputation."

I also accept the views expressed by Mr Commissioner Gozzi in his decision6 of 18 July 1988, dealing with superannuation and choice of funds, when he said at page 3: -

I do not accept Mr Bacon's submission that employees' choice should be confined and limited to a separate choice being made by members of each and every union represented at the respective location, ie Risdon and Rosebery.

The outcome of that type of approach may well result in a plethora of funds. Conceivably, the membership of each union could vote for a different scheme. By no stretch of the imagination could that approach be regarded as satisfactory.

and later: -

"Accordingly, in finding against the union in this matter I have had regard for the fact that the majority of employees have maintained their preference for the WERAF scheme. In those circumstances no reasonable justifiable grounds remain to give effect to a proliferation of funds."

Finally I believe that as a matter of equity it would be wrong to exclude from benefits those employees covered by Division F of the award, regardless of whether they are TWU members or belong to some other organisation, as in all likelihood they could be on the evidence presented to me.

For these reasons I decide that superannuation provisions contained in Exhibit T1 shall have application to Division F of the Chemists Award, in addition to Division A, C, D and E.

DATE OF OPERATION

This decision shall have effect as from the first full pay period to commence on or after 1 October 1989.

ORDER

The Order concerning details of this decision is attached.

A. Robinson
DEPUTY PRESIDENT

1 Print H8588
2 T.1722 and T.1725 of 1988
3 T.1225 of 1988
4 Print G6800
5 Print H8588
6 T.1225 of 1988