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Tasmanian Industrial Commission

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T8130

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s29 application for hearing of an industrial dispute

Australian Mines and Metals Association (Incorporated)
on behalf of TEMCO BHP

(T8130 of 1998)

and

Construction, Forestry, Mining and Energy Union, Tasmanian Branch

 

COMMISSIONER P A IMLACH

HOBART, 15 December 1998

Industrial dispute - industrial action - superannuation - arbitrated - recommendation made

REASONS FOR DECISION

This was an application for a dispute hearing made under section 29(1) of the Industrial Relations Act 1984 (the Act) by the Australian Mines and Metals Association (Incorporated) (the Association).

The Association was representing the Tasmanian Electro Metallurgical Company Pty Ltd (TEMCO) of Bell Bay which was in dispute with the Construction, Forestry, Mining and Energy Union, Tasmanian Branch (the CFMEU) over future superannuation contributions for members of the CFMEU employed by TEMCO.

At the time of the hearing members of the CFMEU employed at the TEMCO works, Bell Bay, were on an indefinite strike which had commenced on Friday, 11 December 1998.

The CFMEU did not appear at the hearing.

The Australian Workers' Union, Tasmania Branch (the AWU) sought and was granted leave to intervene in the hearing. Some AWU members employed at the TEMCO works had also been on strike, but, prior to the hearing had returned to work. AWU members (amongst others) were directly affected by the strike.

The Association requested that the Commission issue an order for the striking employees to return to work immediately. It was well known that TEMCO's parent Company, Broken Hill Pty Ltd, was endeavouring to sell off the asset, and, in this context, TEMCO employees were concerned that their present agreed superannuation contributions arrangement be maintained. The Association advised the Commission that TEMCO was requiring of intended purchasers that it be a condition of the purchase that the present agreed superannuation contributions arrangement be maintained. An exhibit was produced which outlined the present contributions arrangement; it also contained a copy of the subclause in the conditions of sale agreement which detailed TEMCO's requirements as to the superannuation contributions. The subclause provided as follows:

    " ... the Purchaser (or its nominee, as the case may be) must procure an offer of membership in the Purchaser's Fund to each Company Employee and each Additional Employee which: ...

    ii will offer benefits in either a defined benefit or a defined contribution superannuation fund (including, but not limited to, death and disability benefits) from the Transfer Date on a basis which is (having regard to actuarial advice and to the satisfaction of the Vendors) no less favourable than the basis on which benefits are provided to Transferring members under the Vendors' Fund immediately before the Transfer Date, provided that benefits accruing in the future which are less favourable may be substituted if (having regard to actuarial advice and to the satisfaction of the Vendor) other employment benefits offered to Transferring Members by the purchaser (or its nominee) adequately compensate Transferring Members for the diminution in their future superannuation benefits."

The Commission was advised that the proviso in the subclause was a bone of contention with the CFMEU and the catalyst for the strike in that it could be interpreted to mean that future superannuation benefits could be reduced unilaterally. The Company said such an interpretation was not correct and certainly not the intention of the proviso.

The Association advised the Commission that the strike was causing serious detriment in that:

(a) the sinter had closed down;

(b) a ship was delayed and anchored off shore which was costing $30 000 per day; and

(c) there had been a significant loss in production which was continuing.

The Association said that the CFMEU had taken strike action without any warning or consultation which was against all accepted industrial practice.

The AWU supported in principle the CFMEU's dissatisfaction with the handling of the superannuation changeover arrangements.

The AWU submitted that the dispute could be resolved by:

(1) an amendment to the TEMCO Enterprise Award (along the lines of an application recently filed with the Commission by the AWU);

(2) TEMCO supporting a motion that the relevant superannuation fund board allow TEMCO contributors to remain as members of the fund for a further 12 months from the date of the sale of TEMCO.

The AWU submitted that the Commission ought not to issue an order in the absence of the CFMEU.

DECISION

The Commission is satisfied that TEMCO has made reasonable and voluntary attempts to ensure that its employees are able to maintain their present employment benefits into the future if and when the Company is sold.

It is important to note that the CFMEU has taken strike action to maintain a condition of employment which is above present Commonwealth Act standards for employer superannuation contributions on behalf of employees. Except for specific cases that Commonwealth standard has superseded or replaced previous award standards.

Whilst the Commission does not criticise the CFMEU for seeking to maintain a current benefit it does not agree in an atmosphere of unemployment and economic hardship, that strike action is justified in pursuing a benefit which is greater than the current standard. Strike action at any time is a serious and destructive measure, but, in Tasmania in mid-December 1998, it is hard to accept.

It is unfortunate that the CFMEU chose not to attend the hearing. The formal notice of hearing was indeed short, but, the Commission is satisfied that all parties knew late last week or early in the weekend that an urgent hearing was imminent, at short notice, as is often the case in circumstances such as this.

The Commission, despite its reservations as to the absence of the CFMEU from the hearing is nevertheless reluctant because of that absence to issue an immediate return to work order. I therefore earnestly recommend to the CFMEU and its members concerned that they return to work immediately and pursue their claims in a more appropriate manner. Without prejudice, the Commission is ready to assist in that course in any way possible.

 

P A Imlach
COMMISSIONER

Appearances:
Mr B FitzGerald of Australian Mines and Metals Association (Incorporated), with Ms L Van Jager and Mr G Hannon, for TEMCO BHP
Mr R Flanagan for The Australian Workers' Union, Tasmania Branch

Date and place of hearing:
1998
December 14
Hobart