TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Confederation of Industries
(T.3085 of 1991)

PUBLIC VEHICLES AWARD

Labour On-Costs - 3% Occupational Superannuation - casuals

This was an application made under Section 23 of the Act by the Tasmanian Confederation of Industries (the Confederation) for an amendment to the Public Vehicles Award (the Award) to provide for casual employees, as defined in the Award, to have superannuation payments made on their behalf into the Award prescribed fund(s) on a basis proportional to the hours per week they have worked.

Presently, for each day worked by a casual a daily equivalent full-time payment is prescribed in the Award so that, for example, an employee working full-time is entitled per week to a $16.00 contribution and a casual, who may have worked for only two hours each day of the same week, will also be entitled per week to the full $16.00 payment.

The ultimate amendment sought by the Confederation was:

"Each employer covered by this award shall make contributions into the fund for each casual employee on the following basis:

(a) Casual employees who work up to 6 hours per week shall receive a contribution of $3.20 weekly.

(b) Casual employees who work in excess of 6 and up to 12 hours per week shall receive a contribution of $6.40 weekly.

(c) Casual employees who work in excess of 12 and up to 18 hours per week shall receive a contribution of $9.60 weekly.

(d) Casual employees who work in excess of 18 and up to 24 hours per week shall receive a contribution of $12.80 weekly.

(e) Casual employees who work in excess of 24 hours per week shall receive a contribution of $16.00 weekly.

The employer shall make the latter contributions monthly upon the employee accumulating a full contribution of $16.00. Where a casual has not accumulated a contribution of $16.00 then the balance shall be forwarded in the following month."

The Confederation submitted that the recent introduction of a superannuation clause into the Award had been marked by an unprecedented outcry from school bus operators in particular who, in many cases, employed casual drivers for very few hours each day. Quite a number, for example, were employed for only two hours each day, but under the recently introduced casual superannuation provision, such casuals were entitled to the same contribution as a full-time driver working eight hours each day.

It was the Confederation's submission that this injustice or anomaly was unfair, unacceptable and should be replaced by the proportional provision sought. The Confederation acknowledged that it had not appreciated the significance of the casual provision when it had been introduced.

The Transport Workers' Union of Australia, Tasmanian Branch (the TWU) opposed the proposed amendment for the following reasons:

• The Confederation's claim was really an appeal against the original (superannuation) decision and, as such, was out of time and unable to be considered.

• Any argument of incapacity to pay was rejected especially since school bus services were in receipt of subsidies.

• It would be against the Wage Guidelines to reduce the present provisions of the Award.

• The Transport Workers' Federal Award contains the same provisions as currently exist in the Award and it would be downgrading (casual) transport workers in this State if they were to be in receipt of a lesser benefit than their interstate counterparts.

• In any case, if the Commission were to find in favour of the Confederation's application, the new amendment should have prospective effect since the employers should have been paying the amounts currently prescribed.

The Federated Clerks Union of Australia, Tasmanian Branch (the FCU) supported the submissions of the TWU and added some other points especially that:

• The Award covered others, not just school buses.

• Having omitted to oppose the casual provision when it was introduced the Confederation could not expect to recover its losses now.

• The introduction of the superannuation clause in the Award had been by agreement: by seeking to change the situation the Confederation was reneging on the previous agreement.

In response to the unions' submissions the Confederation pointed out that the school bus area predominated in the Award and nearly all other areas, which possibly could expect to be covered by the Award were in practice covered by Federal Awards. In any case, if there were other areas significantly covered, the Confederation sought for school bus operators to be covered by the claimed amendment.

I accept the Confederation's submission that it is unfair to expect an employer to pay the same amount of superannuation contribution for a casual employee working comparatively low hours per day or per week as paid for a full-time employee. For this reason I will grant the application. I consider the pro-rata formula proposed by the Confederation to be eminently fair and reasonable. This observation applies just as equally to all casual employees covered by the scope of the Award whether employed in the school bus area or not.

I consider all the other arguments used in this case (both for and against the application) do not stand up against the weight of the equity or fairness factor. The same may be said of the precedent sought from the Federal Award: it is unfortunate that the State and Federal Awards will not be "on all fours" in the matter of superannuation payments for casuals, but I believe the Federal Award provision is defective or inadequate and in this case on the merits should not be followed.

The Confederation's claim was for an amendment to the Award and as such could in no way be construed as an appeal.

I do not regard the proposed amendment as a reduction in the provisions of the Award, but rather as the correction of an anomaly.

I accept that the Confederation was mistaken or missed the import of the current provision when it agreed to the new superannuation provision and in the circumstances I consider the Award should be amended as sought. However, on the grounds that the current provision was properly and legally introduced, I believe it would be unfair to make the new amendment operative any other way than prospectively.

The Award will be amended as requested operative from the first full pay period commencing on or after 1 August 1991.

An order is attached.

P A Imlach
COMMISSIONER

Appearances:
S Clues for the Tasmanian Confederation of Industries
B Hansch for the Transport Workers' Union of Australia, Tasmanian Branch
A Grubb for the Federated Clerks Union of Australia, Tasmanian Branch

Date and place of hearing:
1991.
Hobart:
June 13.