IN THE TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984

These applications were made by the Tasmanian Confederation of Industries, the Hospital Employees Federation of Australia, Tasmanian Branch and the Australian Nursing Federation, Tasmanian Branch to create a new award entitlement to 31 Occupational Superannuation for employees falling within the scope of the Medical Practitioners (Private Sector) Award.

The parties were in agreement on a great number of the clauses to be contained in the Superannuation provision including:

1. The amount to be paid by the employer on behalf of employees into an approved fund.

2. Provision for employees who were able to demonstrate to the employer that they were a bona fide member of the Religious Fellowship known as Exclusive Bretheren.

3. Definition of ordinary time earnings.

4. Provision for exemptions.

There were two issues that remained unresolved and left to me to determine. They were:

(a) The fund or funds into which employer contribution should be directed and

(b) Whether the spouse and/or children of the employee should be excluded from the benefits of this new clause.

Ms G Crotty representing the HEF and Mr G Grant of the ANF submitted that the 3X occupational superannuation contribution, made by the employer on behalf of employees, should be placed in a fund called the Health Employees Superannuation Trust, Australia (HESTA). On the other hand Mr Fitzgerald of the TCI argued that there should be two funds, namely HESTA and TASPLAN.

Ms Crotty during the course of her submissions suggested that a Full Bench of this Commission had determined that HESTA was the preferred scheme for employees in the Health Industry and as persons employed in doctors' surgeries were part of the health industry then it followed that their contribution should be placed in HESTA.

During the proceedings I informed the parties that the Full Bench decision arising out of Application T.1009 and T.1010 of 1987 was for the purpose of varying the Hospitals Award only and that the applications were not a "test case" for the whole of the Health Industry.

Crotty's submissions in support of HESTA being the sole fund can be summarised as follows:

1. HESTA was a national multi employer-employee Health Industry Fund.

2. It was acknowledged by the ACTU and Trades and Labor Council as being the Occupational Superannuation Fund for Health Industry Workers.

3. HESTA was administered by a Board that had union representation.

4. Preference for HESTA allowed for mobility of entitlement from one state to another and within the Industry in Tasmania.

5. The HEF did not support a fragmented approach in respect to the number of Funds in the Award.

6. One Fund would reduce industrial disputation.

7. Administratively better for the employer.

8. In all probability the employees covered by the scope of this award would have been employed in private and public hospitals and would be more likely to go back into those fields at a later state in their careers.

The thrust of Ms Crotty's submissions were supported by Mr Grant and he stated that "the preferred position of the ANF is for HESTA to be the fund to which employers contribute the 3X. The second line position of the ANF is for TASPLAN or HESTA to be the funds."

In opposing the single fund concept Mr Fitzgerald's submission can be condensed to the following:

1. There should be a choice between HESTA and TASPLAN when selecting funds.

2. Medical practices were very similar to that of Dentists and the Dentist Award has a choice between HESTA and TASPLAN which was ratified by the Commission on the consent of the parties.

3. The number of registered nurses employed under this award was very small and most were non qualified personnel.

4. There was very little mobility of staff between employers in this state or interstate and no evidence of mobility was put by the unions during the case.

5. Both TASPLAN and HESTA were multi employer funds and both have employer and union control.

6. TASPLAN has marked suitability for Tasmanian employers and particularly small employers.

7. No compelling reasons for including one fund only, to the exclusion of others.

8. Even though employees in this industry may be classed as health workers, the decision of the Full Bench arising out of applications T.1009 and T.1010 of 1987 was only in respect of the Hospitals Award.

9. It was highly unlikely that auxiliary staff in a doctor's surgery would have national mobility that would warrant the exclusive designation of HESTA.

10. Complete rejection of the argument that says that one fund (namely HESTA) would reduce industrial disputation and promote good industrial relations.

Having carefully considered the submissions put to me on this question I find the following:

Both funds are multi employer funds with joint employer and employee management structures and both have obtained a listing from the Insurance and Superannuation Commission.

Nothing was put to me during the course of submissions, on this aspect of the application that was of such a nature that would convince me that I should determine that HESTA be the sole nominated fund for this award.

On the question of mobility, very little or no evidence was put to show the movements of employees from this area of employment to other areas of the "Health Industry" within this State or Interstate.

In respect of the submission put to me that said, in all probability the employees covered by this award would have been employed in private and public hospitals and would be more likely to go back into those fields at a later state in their careers, I would have to make the following observations:

1. No evidence was put to me that showed that this was the pattern of employment and

2. Even if that was the case and then those persons taking up employment in the public hospital system would be required to have their contribution placed in the Superannuation Accumulation Fund and not HESTA.

In the circumstances I have arrived at the conclusion that employees covered by the Medical Practitioners (Private Sector) Award should have a choice between TASPLAN and HESTA when deciding which fund their 3% occupational superannuation contributions should be placed and I decide accordingly.

Exemption for Certain Employees

When Occupational Superannuation was introduced into the Dentists Award the clause contained a provision excluding the spouse and children of the employer. All parties to that award requested the Commission at that time to ratify their consent and position, which it did.

In this application the TCI and the HEF sought the same exemption provision however this was opposed by the ANF thus requiring me to arbitrate this issue.

It was Mr Fitzgerald's submission that a significant number of doctors engaged their spouse to work in the medical practice. He said many of these practices had a corporate structure and in some cases the spouse could be a director.

Whilst recognising that the new exclusion provision may not be absolutely necessary for those spouses who were directors, nevertheless Mr Fitzgerald was of the view that it would clarify the position for those where no corporate structure was in place.

Mr Fitzgerald went on to inform the Commission that where spouses were engaged then, superannuation arrangements would have been made. However later in his submission he said that he could not categorically state that every spouse who worked in a doctor's surgery had adequate arrangements made in respect to superannuation.

Even though the HEF maintained they had very few members employed under this award nevertheless Mr Fitzgerald argued that one of the compelling reasons I should exempt certain employees was because the major union party to the award (the HEF) agreed with the proposal.

Ms Crotty in supporting Mr Fitzgerald further submitted that:

1. The nature of employment of spouses within the industry was different from that of ordinary employees.

2. There would be other benefits pertaining to the employment relationship.

3. The possibility existed for the spouse and children of the employer, of owning the business at a later date.

Mr Grant of the ANF opposed the submissions that would see the spouse and children of the employer exempt from the superannuation. To do so, he said would place a discriminatory provision in the award as it would deny a certain category of person the right to have superannuation contributions paid on their behalf.

He said:

"Very little, if anything, was put in evidence to you by the Confederation of Industries in support of this application. There was, however, a lot of assertion. In fact it was not even clear that the employer would necessarily be required to provide any superannuation at all."

He went on to say:

"I would submit respectfully that it would not be the business of the Commission to look into that type of matter to that extent in trying to determine this issue. I think, on the face of it, what the Commission should do is provide the scope for the payment to be made without having to go into the relationship that exists between people who should be, we would argue, subject to this award."

Even though this part of the application sought to exempt the spouse and children of the doctors, virtually all the submissions centered around exempting the spouse and I agree with the comment made by Mr Grant that there was very little evidence to support the application and lots of assertions.

These assertions did not enable me to establish:

(a) Whether any children and/or the spouse of doctors were ever employees and even Mr Fitzgerald had to admit that their status was not always known.

(b) What "other benefits" these purported employees received that would make it inappropriate for them to receive the benefits of Occupational Superannuation.

(c) Whether any children and/or the spouse of doctors who were employees employed under the term and conditions of this award were in receipt of superannuation and whether or not the funds into which their contributions were being forwarded were approved funds.

From the submissions presented by the TCI and the HEF in support of this part of the application I cannot find any good and cogent reason that would persuade me that I should deny a certain group of employees from obtaining the benefits of occupational superannuation.

My role in this issue is to determine whether employees employed under this award should receive the 3% Occupational Superannuation.

This determination should not be clouded by purported "other benefits" that may or may not be received by the spouse and/or children of the employer who may or may not be employees for the purpose of this award.

Therefore I decline to place in the award the exclusion sought.

Apart from the two matters I have been required to arbitrate I support the draft clause as submitted by the TCI. This clause shall be included in the award with the necessary amendments.

The Order giving effect to this decision is attached. It will be operative from the 15 September 1990.

R.J. Watling
COMMISSIONER

14 September 1990