IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

On 16 June 1989 the Federated Clerks' Union of Australia, Tasmanian Branch, filed with the Commission an application to vary the Public Accountants Award. The applicant sought implementation of the 4% second tier State Wage Case adjustment, inclusion of a provision for occupational superannuation, and re-arrangement of the Hours of Work clause.

When the application came on for hearing on 2 August the Commission was informed that agreement had been reached between the parties in relation to both the 4% second tier wage adjustment and the proposed 3% superannuation contribution. However, the hours of work matter was the subject of on-going discussions between the parties, but had not at that stage been finalised. Mr. Fry requested that the matter be regarded as a reserved issue and the file kept open until such time as a consent document could be produced by the parties.

4% second tier wage adjustment:

Mr. Brotherson tendered an agreed document (Exhibit A) which included the 4% wage adjustment as well as a proposed draft order. He outlined the offsets that had been negotiated to justify the 4%. These included:

· Reduction in the time allowed an employee in which to notify inability to attend for work due to sickness

· Limit on accrual time of sick leave during first three months of service

· Six hours of ordinary time to be worked before qualifying for meal money for overtime, with provision to cover Saturday and Sunday work and part-time employees

· A shorter rest period, to be taken at the work station

· Provision for equivalent time off in lieu of paid overtime where agreement is reached between an employer and an employee.

Mr. Fry submitted that a genuine effort had been made to find offsets in exchange for the 4% as required by the principles. Mr. Brotherson explained that while the number of offsets was not as great as those in other awards, already the Public Accountants Award was fairly flexible, and the employers he represented believed those offsets were sufficient to justify a 4% wage increase.

It was agreed that the proposed variation take effect from the first pay period commencing on or after 14 August.

Occupational Superannuation:

Mr. Brotherson advised that agreement had been reached between the FCU and the TCI in relation to the matter of occupational superannuation. In this regard he tendered, as Exhibit B, a document setting out the form of award variation necessary to give effect to what had been negotiated.

It was stated that the provision should have application to both Divisions A and B of the award and be referred to as "occupational superannuation".

The parties further agreed that the new provision would take effect from 1 November 1989. Any employee who had had 3 months' continuous service with an employer subject to the Public Accountants Award, would, at the proposed operative date, immediately become eligible. Other employees would become eligible after completing 3 months' continuous service subsequent to that date.

Three funds were proposed into which superannuation contributions could be paid. These were TASPLAN, CARE and the Accountants Superannuation Fund. The latter fund, Mr. Brotherson asserted, had the approval of, and complied with, the Commonwealth Operational Standards, and had also been listed and used in other States.

Mr. Brotherson foreshadowed that a number of employers would be seeking exemptions from the nominated funds, and the Commission would be further advised in this regard. He also suggested that approved exemptions be formally recorded in the Commission.

During proceedings it was pointed out to both parties that not all employers are members of registered organisations. Therefore, in order to make application for exemption from a nominated superannuation fund, their only avenue to access the Commission would be via notification of the existence of a dispute (or a likely dispute) pursuant to Section 29 of the Act. For that reason it was agreed that Exhibit B would be amended to accommodate that situation and in that way provide all employers with an opportunity to be heard on the matter of exemption. However, any such hearing would only take the form of a review of the union's decision to refuse an exemption. The Commission itself would not grant exemption under this award.

Mr. Brotherson stated that the proposed award variation represented the agreed position of the FCU and the TCI. It was, he said, in accordance with all wage fixing requirements and suggested that being a consent matter, it should be ratified with an operative date of 1 November 1989.

Mr. Fry recorded his total support for the document tendered and asked that the matter be ratified as soon as possible.

He explained that as his union was adamant that occupational superannuation should be seen as an additional provision to any existing superannuation scheme currently in existence, the new clause to be included should be entitled "Occupational Superannuation".

It was pointed out to, and acknowledged by Mr. Fry that occupational superannuation per se arguably was national productivity being distributed in a different way. Any long-standing scheme currently in existence that involved contributions being paid either by an employer or an employee into a non-contributory superannuation fund would normally be regarded by industrial tribunals as a form of over-award payment.

For that reason if an employer, on being required to meet the new obligation of 3%, decided to cease making payments into the old fund, there was nothing at law to preclude him from doing so. Nevertheless, in the absence of him making out an "incapacity to pay" argument, any withdrawal of benefits or offsetting of freely negotiated benefits against new award obligations would, in the absence of consent, be effected at the employer's peril. In short, over award payments once given are not easily withdrawn.

DECISION

As the variations proposed conform with the requirements of the wage fixation principles, the agreed matters shall be ratified and the award varied accordingly from the dates indicated.

Date of Operation:

The second tier adjustment will take effect from the first pay commencing on or after 14 August 1989, and payments in relation to occupational superannuation will commence from the first pay commencing on or after 1 November 1989.

Reserved matter:

As requested, re-arrangement of working hours is hereby stood over and may be relisted on the application of either party. But if this does not occur within 6 weeks the reservation shall be withdrawn and the file closed.

L A Koerbin
PRESIDENT