TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.23 application to vary an award

Transport Workers' Union of Australia
Tasmanian Branch
(T.2968 of 1991)

PUBLIC VEHICLES AWARD

Labour On-Costs - 3% Occupational Superannuation

REASONS FOR DECISION

This was an application made under Section 23 of the Act by the Transport Workers' Union of Australia, Tasmanian Branch (the TWU) for the insertion of an occupational superannuation clause in Division A of the Public Vehicles Award (the Award).

The parties advised the Commission that agreement in principle had been reached and eventually a draft clause acceptable to all parties was settled subject to the following items which were not agreed:

• the date for the commencement of superannuation payments by the employer;

• the date for the commencement of superannuation payments by the employer in the case of an application for exemption from paying into the fund or funds nominated in the Award;

• whether or not superannuation payments for casual employees were to be paid for every day worked or only after three months continuous employment; and

• the addition of a second nominated fund, Tasplan.

Mr B Hansch, who appeared for the TWU, advised that apart from some more standardised clauses like those inserted in other awards of this Commission in recent times (which were not objected to by him), the wording of the proposed superannuation clause was the same as the Federal Transport Workers (Passenger Vehicles) Award 1984. He submitted that the Public Vehicles Award of this Commission had followed the Federal Award on previous occasions and his Union sought "no more nor no less" than what was provided there: he also pointed out that the Award was a "transport" award and, therefore, the "transport" superannuation provisions were appropriate, especially the provision of a daily contribution rate for casuals. For the same reason Mr Hansch opposed the addition of the fund Tasplan; it was also opposed in the Federal Award matter, he said.

Mr J Long, who appeared for the Australasian Society of Engineers supported the TWU's application, but also sought the addition of Tasplan.

Mrs H Dowd, who appeared for the Federated Clerks Union of Australia, Tasmanian Branch did not object to the TWU's application, but expressed some concern that, were it successful, there would be two different amounts specified as superannuation payments within the Award since in Division C for clerks, a 3% payment into Tasplan was already specified.

Mr S Clues appeared for the Tasmanian Confederation of Industries (the Confederation) and he confirmed agreement to the application in principle, but he stressed the outstanding items upon which the Confederation did not agree. He said the Confederation sought the following changes to the TWU's application:

• that there be a three months eligibilty period provided for casual employees. Mr Clues said this was an equitable provision, the employees concerned were transient and very hard to locate for that reason. He did not see any need for a Federal connection in this area. Mr Clues also submitted that it was a burden upon an employer to have "casual payments" foisted upon him;

• that Tasplan be also available as a fund nominated in the Award together with the Transport Workers' Superannuation Fund (the TWU Fund). Mr Clues submitted that this would provide consistency throughout the Award. He also submitted that it would be unfair (if only the TWU Fund was specified in Division A) to force employees who were not drivers into the TWU Fund; and

• that the operative date for the commencement of contributions be the first full pay period commencing on or after 1 May 1991; this date to also apply for the commencement of contributions for those funds for whom exemptions may be given and that the operative date for the closing of exemption applications be 1 June 1991.

Mr Clues stressed that even though discussions had been held between the parties and some agreement had been reached the Confederation had not at any time agreed to the operative dates sought by the TWU. He also submitted that the Wage Fixing Guidelines1 expressly prohibited retrospectivity on superannuation where arbitration was required. He said that the Federal decision relied upon by the TWU had no relation to this matter.

During the latter stages of the hearing Mr Clues made it clear that, in his view, in the case where two or more funds were nominated in an award, the employer had the right to decide into which fund the superannuation contributions would be paid.

He said that was precisely what was meant in a number of State awards which required an employer to make a contribution into an approved superannution fund.

DECISION

It is clear that the current Wage Principles do not allow retrospectivity where no agreement exists between the parties on the matter. The operative date in this application, therefore, will be the first full pay period commencing on or after 1 May 1991. The closing date for exemption applications will be 1 June 1991.

I accept the submission that the Award is essentially a "transport" award and in that context I believe the following would be apposite:

• in line with the Federal Transport Workers (Passenger Vehicles) Award a prescription whereby casual employees will receive an appropriate superannuation contribution for every day worked.

• I accept Mr Hansch's contention that many employees in the transport industry move around from company to company on a casual basis.

• in the Award a casual employee is defined as "an employee who is engaged to work on a casual or irregular basis." Were the Confederation's preferred "three months continuous service with an employer" to be applied in these circumstances many employees could well miss out on superannuation contributions altogether.

• the prescription of a single fund, the TWU Fund, again in line with the Federal Transport Workers (Passenger Vehicles) Award, but also because of the unusual, but nevertheless well established amount to be contributed, by agreement, which I consider ought to be related only to the "transport" awards.

Because of what I have already decided it is not necessary for me to adjudicate as to which party has the right to decide into which fund contributions will be made, however, I think some comment is due. On the basis that once the money is paid it becomes the property of the employee. I am convinced each employee has the right to say into which award nominated fund his or her contributions should be paid.

The Award will therefore be amended by the addition of an occupational superannuation clause in the agreed terms and in the manner I have outlined above, operative from the dates sought by the Confederation.

An order is attached.

P A Imlach
COMMISSIONER

Appearances:
B Hansch for the Transport Workers' Union of Australia, Tasmanian Branch.
J Long for the Australasian Society of Engineers, Tasmanian Branch.
H Dowd for the Federated Clerks Union of Australia, Tasmanian Branch.
S Clues for the Tasmanian Confederation of Industries.

Date and place of hearing:
1991.
Hobart:
March 26.

1 T.2146 of 1989 (et al)