TASMANIAN INDUSTRIAL COMMISSION

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

Tasmanian Confederation of Industries
(T.3506 of 1991)

AUTOMOTIVE INDUSTRIES AWARD

Labour on-costs - 3% occupational superannuation - exemption

REASONS FOR DECISION

This application, made under Section 23 of the Act by the Tasmanian Confederation of Industries (the Confederation), was for a further exemption from paying into the nominated occupational superannuation funds specified in the Automotive Industries Award (the Award). The Confederation was seeking an exemption on behalf of Hays Auto Electrics of Devonport (the Company).

Since the Award's current provisions have precluded any further exemptions since 31 January 1991, the only method available to the Confederation for gaining an exemption was to seek to change the Award itself. The Confederation sought to have the name of the Company included amongst those already listed in the Award as exempt from paying into the Award's prescribed funds (note there is no exemption from paying occupational superannuation contributions on behalf of eligible employees).

In support of its application the Confederation submitted that the Company should be granted an exemption on the following grounds:

• The Company had commenced making superannuation contributions into an approved fund eighteen months before the Award provision was introduced. The Company was not a member of the Confederation and had been unaware of the advent of the Award provision.

• Superannuation contributions were made mandatory by a consent variation to the Award operative from 1 January 1991. The Award required an employer seeking exemption to make application no later that 31 January 1991. In fact the publication of the Award (No. 2 of 1991) was not notified in the State government Gazette until 6 March 1991. In other words the Company had no hope formally of knowing the requirements of the Award until well after the deadline date. The employer had been denied the opportunity to seek an exemption and put its case: natural justice indicated therefore that, all other requirements being met, the exemption should be granted.

• The fund availed of by the Company (the Mercantile Mutual Life Employer Sponsored Superannuation Fund) had been acceptable to the Commission in a number of other awards.

• A previous commitment by the Confederation not to seek any further superannuation exemptions in the Award was acknowledged, but the Confederation sought relief from that commitment on the basis that the circumstances of this case merited it.

• There were only two employees concerned.

• The Vehicle Builders Employees Federation of Australia, Victorian Branch (the VBEF) opposed the granting of an exemption and advanced the following reasons in support of that position:

• The time for seeking exemptions had passed when the matter of superannuation was considered for the Award in December 19901 and a deadline for applications for exemptions had been set at 31 January 1991. The superannuation provisions in the Award commenced operation on 1 January 1991.

• The Confederation had agreed to the deadline date in that matter and this application was eight months too late.

• The Confederation had committed itself, on 21 March 1991, in matter T2931 of 1991, not to seek any further exemptions.

• The Wage Principles specify that occupational superannuation provisions should not be made retrospective and the same should therefore apply in this case.

• If this application for exemption were to be granted a never-ending precedent would be created.

• Mere payment into another fund prior to the advent of the Award provision is only one of a number of requirements for an exemption: others were not fulfilled.

• The Award superannuation provision has not caused any hardship in the industry generally.

The VBEF also advised that it was not seeking any back penalty payments against the Company, but only to ensure that the Award was carried out (apparently the monies paid may be transferred into an approved fund).

The Federated Clerks Union of Australia, Tasmanian Branch (the FCU) supported the submissions of the VBEF and also opposed the exemption.

The FCU confirmed its opposition relying on the points made about the failure to follow all the exemption requirements, the previous commitment of the Confederation not to seek exemptions and the creation of an undesirable precedent.

In response the Confederation submitted that it would be an injustice to deny the Company the exemption. The Confederation also pointed out that the actual words used, when the commitment relied upon was given, were not quite as direct as claimed by the unions. The Confederation also indicated that the full details of the proposed fund were available for inspection on the spot.

Finally the Confederation sought for the exemption, if granted, to be made operative from the first full pay period commencing on or after 1 January 1991 so as to be in conformity with the Award.

Were it not for the fact that formal public notice of the Award coming into effect did not take place until after the deadline date for superannuation exemption applications, I would reject this application, but in the circumstances of that late public notice I believe all other arguments fall down and it would be unfair to deny the application. This is especially so as on the face of it the Company appears to have attempted early to fulfil its obligations as to superannuation contributions.

Not to grant this application would be contrary to Section 20 of the Act which requires the Commission amongst other things in the exercise of its jurisdiction to "... act according to equity, good conscience and the merits of the case without regard to technicalities or legal forms." In this context I accept the argument put by the Confederation. No other considerations outweigh this factor.

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

P A Imlach
COMMISSIONER

Appearances
H Dowd for the Federated Clerks Union of Australia, Tasmanian Branch.
D Holden for the Vehicle Builders Employees Federation of Australia, Victorian Branch.
T Edwards for the Tasmanian Confederation of Industries and the Metal Industries Association Tasmania.

Date and place of hearing:
1991.
Hobart:
November 7.

1 T1974 of 1989