T1009 T1010 T1445 T1469 T1470 T1527 T1597
IN THE TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
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T.1009 & T.1010 of 1987 and |
IN THE MATTER OF APPLICATIONS BY THE BY THE HOSPITAL EMPLOYEES FEDERATION OF AUSTRALIA TASMANIA NO. 1 AND NO. 2 BRANCHES; THE TASMANIAN CONFEDERATION OF INDUSTRIES; AND THE ROYAL AUSTRALIAN NURSING FEDERATION TO VARY THE HOSPITALS AWARD |
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RE: SUPERANNUATION | |
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FULL BENCH: |
HOBART, 27 February 1989 |
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REASONS FOR DECISION | |
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APPEARANCES: |
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For the Hospital Employees Federation of Australia Tasmania No. 1 and No. 2 Branches |
- Mr P. Imlach with |
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For the Royal Australian Nursing Federation Tasmanian Branch |
- Mr I.G.M. Grant with |
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For the Minister for Public Administration |
- Mr A. Pearce |
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For the Tasmanian Confederation |
- Mr W. Fitzgerald with |
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Intervening for the Minister for Industrial Relations |
- Mr M. Stevens |
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Intervening for the Australian Council of Trade Unions |
- Mr A. Doherty |
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DATE AND PLACE OF HEARING: | |
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18 November 1987 Hobart | |
Applications T.1009 and T.1010 of 1987 were made by the Hospital Employees Federation of Australia, Tasmania No. 1 Branch and the Hospital Employees Federation of Australia, Tasmania No. 2 Branch, respectively.
Both applications were couched in identical terms and sought to vary the Hospitals Award by including for the first time a provision relating to superannuation contributions by employers. The terms were as follows:
"The Applicant seeks to have the Award amended to include the following provision, in all Sections:
'SUPERANNUATION CONTRIBUTION:
The employer shall contribute weekly the equivalent of 3% of each employee's weekly wages (including weekend penalties, overtime, shift allowances, certificate allowances and other such additional payments) to an approved superannuation fund, agreed between the employer, the employees and the unions concerned.' "
Proceedings in relation to these two matters commenced on 18 November 1987, at which time we were given a brief history of approaches made by the employee organisations to the Tasmanian Confederation of Industries (TCI) representing a number of hospitals and other relevant private employer parties to the award.
Because the award also .contains provisions which apply in public hospitals an appearance was entered on behalf of the Minister for Public Administration and the Minister for Industrial Relations.
Following the giving of certain assurances at that time concerning continued negotiations between all parties concerned, an adjournment was granted.
Further applications T.1469, T.1470, T.1527 and T.1445 of 1988, which also concerned superannuation, were later made and initially listed before Commissioner Watling.
Subsequently all of these applications, together with a new one, T.1597 of 1988, were joined with the original claims on 4 October 1988, when arbitration was sought.
The co-ordinated claims of the various employee organizations were revised, and by this time were expressed as follows:
"By inserting the following Appendices after Conditions for Employees in Divisions A, C, D, E of the said Award.
APPENDICES - SUPERANNUATION
1. SUPERANNUATION CONTRIBUTION
1.1 As from the beginning of the first pay period to commence on or after 1 July, 1988 or some other date prospective of that date as determined by the Commission, employers subject to the conditions of Divisions A, C, D, E of this Award shall make a contribution equivalent to 3% of ordinary time earnings into the Superannuation Fund known as HESTA in respect of all eligible employees.
1.2 'Ordinary Time Earnings' shall mean the ordinary weekly wage including Shift Penalties, but excluding overtime.
1.3 'Eligible Employee' shall mean all regular weekly and casual employees who are engaged for at least 10 hours in each week."
The claimants made it clear however that the claims related only to private sector employers. "HESTA" means the Health Employees Superannuation Trust of Australia.
TCI opposed the claims and argued a number of alternative situations.
Mr Smith outlined to us that private hospitals covered by Division A of the award wished to maintain their own separate schemes where they already exist or are to be implemented in preference to any other scheme.
He also said that so far as Division C of the award is concerned (Employees in Establishments Providing Care for Aged Persons) the Nursing Homes Association of Tasmania and the Voluntary Care Association support the superannuation scheme known as "Tasplan" as the appropriate fund. The only exception to TASPLAN would be where contributions are already made to another scheme.
In respect of Division D of the award which covers Blood Bank Services, that employer already has a scheme which applies in Tasmania and at least two other States. Efforts are being made to update this scheme to meet the requirements for occupational superannuation. Whilst all employees are not covered by the scheme, the intention of the employer is that eventually all will be included.
Mr Doherty then proceeded to present a detailed submission in support of the claim by employee organisations covering the following aspects:
1. The history of the claims.
2. That social, economic and demographic factors support the extension of a national retirement income system through the use of superannuation.
3. That National Wage Case decisions over time have determined that superannuation should be approved and extended on an orderly basis through the work-force as part of the wage fixing package.
4. That there are substantial merit and equity grounds to improve and extend superannuation in the private hospital area.
5. That the use of "HESTA", as the exclusive vehicle for superannuation in the particular area, is to be preferred to a fragmented approach -
(a) in terms of delivery of superannuation benefit; and
(b) on industrial relations grounds.
In expanding upon each of these factors, Mr Doherty presented a summary of the grounds relied upon by the ACTU in its submission to the National Wage Case Full Bench of June 1986.
He referred to the fact that the ACTU was supported by the Commonwealth in evidence going to the submission that an ever increasing proportion of the population will be aged and increasingly dependent on a proportionately diminishing labour force in the future. And as a consequence, without constructive intervention, the current proportion of revenue raised through PAYE taxation will fail to meet the demands of a social security system as we know it today.
He said superannuation coverage at the moment is inadequate and disproportionately distributed within the various components of the work-force.
There is, he said, significant community consensus that there should be increased emphasis upon extending the reliance upon superannuation to provide a retirement income to lessen the burden upon future taxpayers.
In the September 1985 agreement between the Government and the ACTU, which has been termed "Accord Mark 2" the following is to be found:
"It is agreed that superannuation should be extended and improved on an industry, occupation by occupation, or in limited circumstances, company by company basis."
At its September 1985 biannual conference the ACTU supported the agreement.
Reference was then made to the content of an ACTU submission to the June 1986 National Wage Case Full Bench.
And in its decision1 that case the Full Bench of the Australian Conciliation and Arbitration Commission created a new principle 3, worded as follows:
"Pursuant to section 28 of the .Act agreements may be certified or consent awards may be made providing for employer contributions to approved superannuation schemes for employees covered by such agreements or consent awards provided those agreements or consent awards:
(i) operate from a .date determined or approved by the Commission in accordance with the Commission's phasing in procedure but not before 1 January 1987 except in special and isolated circumstances approved by the Commission;
(ii) do not involve retrospective payments of contributions;
(iii) do not involve the equivalent of a wage increase- in excess of 3% ,of ordinary time earnings of employees;
(iv) are consistent with the Commission's Principles and determinations by the Full Bench referred to in our decision;
(v) are in accordance with the Commonwealth Operational Standards for occupational superannuation funds; and provided that
(vi) the consent of the employers is genuine; and
(vii) there is ambit."
Mr Doherty relied upon the fact that further.. consideration was given to the superannuation question in the March 1987 National Wage Case. In that decision2 the Commission modified Principle 3 by indicating that it was prepared to arbitrate on superannuation in instances where negotiations and conciliation are exhausted.
In its review of this principle (page 24 of Print 66800) the following quote from that decision was used (inter alia):
"The new principle to give effect to this part of our decision will be:
(a) Pursuant to section 28 of the Act agreements may be certified or consent awards made providing for employer contributions to approved superannuation schemes for employees covered by such agreements or consent awards provided those agreements or consent awards:
(i) operate from a date determined or approved by the Commission;
(ii) do not involve the equivalent of a wage increase in excess of 3% of ordinary time earnings of employees;
(b) Where following a claim for employer contributions to approved superannuation schemes for employees the parties are unable to negotiate an agreement consistent with this principle and conciliation proceedings before the Commission have also failed to achieve such an agreement the Commission shall subject to the provisions of the Conciliation and Arbitration Act arbitrate on that claim."
Further quotes were presented to illustrate the argument of unions concerned that the National Wage Case principles may be regarded as a package of benefits, of which superannuation is one important element.
In the view of the employee applicants successive decisions of the Federal Commission, endorsed by State tribunals, presuppose that a 3% superannuation payment will be made to workers; it was argued that it is simply a question of timing.
Mr Doherty said the present union claims are for no more than 3% of ordinary earnings into a scheme which has been approved in accordance with set standards.
Turning to the question of equity, Mr Doherty produced a number of exhibits showing the extent and circumstances under which awards and agreements have been accepted by various tribunals within Australia. He also dwelt upon the type of schemes which apply in various industry sectors. Some emphasis was given to the fact that the majority of schemes referred to are at least jointly controlled, industry wide, and nationally based superannuation schemes which are specifically designed for an industry sector, e.g. the BUS Fund for the building sector; the MUST or STA for the manufacturing sector.
It was submitted that the use of a safety net scheme such as TASPLAN, as proposed by TCI is not appropriate in a clearly defined industry sector. Conversely HESTA has been designed with major union and major employer involvement to deal specifically with issues involving that sector.
Mr Doherty pointed out that whilst, for instance, BUS and AUST operate in the building and construction industry very successfully in Tasmania TASPLAN does not operate at all in that sector.
Whilst similar safety net schemes to TASPLAN operate already in New South Wales and Western Australia and similar arrangements are believed to have been entered into in Queensland, the Northern Territory and South Australia, they do not attempt to operate in areas where industry schemes exist.
In his submission Mr Doherty said that schemes such as HESTA and TASPLAN have been developed to provide fair and nondiscriminatory superannuation for workers.
He also said that the funds have joint union/employer control and that investments of the funds are handled by professional investment managers. Provisions are made for the inclusion of part-time and casual workers. The schemes are nondiscriminatory in respect to women.
Medical evidence is not required as a precondition of entry. Vesting of the superannuation contribution occurs from Day 1 of membership. The schemes are fully portable from one employer to another and from State to State.
Mr Doherty also said however that if one is in a national, multi-employer jointly controlled fund like HESTA, then if a nurse was to seek and gain employment say in Sydney, Darwin, Perth or Oodnadatta, then that nurse, as a member of HESTA, would merely go to his or her new employer and quote their HESTA number. That employer would then simply pay a 3% contribution into the fund.
It was further explained that compulsory employee contributions are not required, however those who can afford to do so are encouraged to make voluntary contributions.
In his submission Mr Doherty said he believed that the ACTU had designed and put into place schemes which address the historical inadequacies of occupational superannuation; schemes which provide non-discriminatory fully portable, fully vested retirement income benefits for Australian workers.
Finally Mr Doherty turned to the reasons why the HESTA scheme is preferred in terms of:
(a) effective delivery of superannuation; and
(b) on industrial relations grounds.
A copy of the HESTA trust deed was tendered in evidence, together with a list of unions which had endorsed this particular scheme.
He said the reason HESTA has such universal endorsement lies in the design of the scheme, and in particular that it addresses the unique problems associated with employment in the health industry. The high incidence of mobility in the industry has meant traditionally that the employees often served insufficient time with a single employer to meet the entry requirements for the employer's superannuation scheme, if in fact they were invited to join. But HESTA overcomes this problem, together with other previously encountered deficiencies such as full vesting of employer contributions, save for administration and death and disability cover charges.
HESTA covers part-time and casual workers as well as those who are full-time, and this is another vast improvement in this industry compared to the historical situation which has applied.
Management of investments and group life and disability cover requires the guidance of professionals, and accordingly it was decided by the directors of HESTA to put such service out to tender; examine each of the tenderers and then select the best.
Performance is then monitored by HESTA directors.
Mr Doherty then referred us to the March 1987 National Wage Case Decision3 and reminded us of the attitude adopted by the ACTU and the Commonwealth in that case and quoted some of the comments made by the Full Bench in relation to superannuation funds. In particular we were referred to pages 22 and 24 where it said, inter alia:
"For its part, the ACTU rejected the notion that the employer should have the right to determine the appropriate fund and submitted that, other things being equal, the Commission should express preference for multi-employer or industry-wide superannuation funds 'as the dominant form for the growth and spread of superannuation through the workforce' because:
· it was desirable to encourage uniformity within and across industries;
· portability and preservation of benefits to retirement age are enhanced by such funds; and
· administration, investment and insurance can most efficiently be managed on a bulk basis.
The Commonwealth indicated a preference for multi-employer funds that are jointly controlled by equal numbers of representatives of unions and employers rather than union or employer-controlled or based funds.
This has been a vexed issue and, as stated earlier, has been the cause of much of the industrial action that has occurred to date. It cannot be allowed to continue to cause the problems it has and, again as a last resort, the Commission will arbitrate as to the appropriate fund in particular cases. Having said that, it must be emphasised that consistent with the whole thrust of the new package the parties themselves have a responsibility to work together co-operatively to overcome the present difficulties.
Without wishing to prejudge the issue there are a number of comments we consider desirable to make. The first is that any fund which complies with the Commonwealth's Operational Standards for Occupational Superannuation Funds and which has received the appropriate preliminary listing for taxation purposes from the Commissioner for Occupational Superannuation, could be determined as an appropriate fund by the Commission. The second is that it seems reasonable that no employer should be forced to make contributions for its employees to a multiplicity of superannuation funds. The third is that, given the mobility of labour, multi-employer funds controlled jointly by employers and unions may be preferable to individual funds and more likely to fulfil the basic purpose of superannuation for the majority of employees in particular situations. A number of such funds have been developed."
Mr Doherty relied also upon the reported preferred position of the Federal Treasurer and the previous Minister for Industrial Relations who were quoted as supporting the notion of a single industry fund so as to avoid unnecessary duplication.
Documentary proof was also submitted to support the fact that HESTA has received the appropriate endorsement of the Occupational Superannuation Commission Interim Group.
Similarly we were given the benefit of prepared literature relating to details of benefits available through the HESTA scheme.
In summary Mr Doherty submitted that HESTA should be accepted by us as the single occupational superannuation fund in the private health area because:
· HESTA has the support of 20 major unions in the area
· HESTA delivers highly competitive benefits at low cost (i.e. 29 cents per member per week)
· HESTA has union/employer involvement at its trustee level of people in the health industry
· HESTA is national in concept
He said that whilst TASPLAN is an appropriate general purpose safety net scheme its coverage can never be as great as that of HESTA and the same economies of scale are therefore far less likely to be achieved. Also, if more than one scheme is used in the same establishment, comparisons by employees of the respective performance of such schemes at regular intervals may tend to cause industrial relations problems.
It was contended by Mr Doherty that if we were to hand down a decision which allows for a choice of funds, there is no guarantee that such choice would be unfettered.
Mr Doherty took us to a series of decisions by various tribunal members who were dealing with occupational superannuation, and in particular the question of single industry-type funds.
Such decisions covered a variety of industries involving both consent and arbitrated cases and included State as well as Commonwealth jurisdictions.
Evidence was called in relation to the fact that a series of meetings of employees were held at various hospitals and that such meetings endorsed by resolution the HESTA scheme.
The submission also dealt with and acknowledged the fact that whilst HESTA should be the principal superannuation scheme into which the 3% employer contributions should be made, provision may have to be made for exemptions from HESTA in special cases. However if employer/union agreement cannot be reached in relation to exemptions, then recourse to the Commission would be necessary.
Mr Doherty's submission was supported by Mr Simmonds who went into some detail concerning the form of the proposal before us.
It was Mr Simmonds' submission that since there is no agreement, and because of the delays which have occurred, we should grant the claim retrospectively, with 1 ½% applying from 10 October 1988 and a further 1 1/2% from 1 January 1989.
In his response to the unions' case, Mr Smith, representing a number of separate affiliate employers, denied the union suggestion that negotiations had been closed by TCI. Mr Smith indicated that he would be presenting submissions in respect of his separate instructions as they relate to divisions A, C, D and E of the award.
He said that in Division A, which covers private hospitals, virtually all of the private hospitals either have in place, or are about to implement, schemes designed to cater for the 3% occupational superannuation payment which is provided for in the principles of this Commission. The private hospitals accordingly wish to maintain those schemes in preference to any others.
In Division C, which applies to establishments providing care for aged persons, most of those employers wish to utilise a scheme known as "Tasplan" for the purpose of the 3% occupational superannuation. Others however, wish to contribute only to separate schemes which satisfy the establishments religious ideals.
Blood bank services are covered by Division D of the award, and their position is that they presently have a scheme which has not yet received the listing required from the occupational Superannuation Commission. However, this employer has indicated a willingness to update the scheme concerned to the extent necessary to satisfy the guidelines.
Mr Smith further advised us that in Division E of the award, which covers employees of homes for handicapped persons, all establishments support TASPLAN as the most appropriate scheme. However, because of funding difficulties, some may seek special exemption.
At pages 169 and 170 of transcript Mr Smith said, inter alia:
"My submission will be rather more introspective than that of Mr Doherty, in that we don't believe that an industry scheme is necessarily in the best interests of employees in Tasmania. This Commission has on several occasions departed from decisions handed down by your Federal counterparts, where that is necessary to meet the situation applying in this State.
We also believe that that situation applies in respect of superannuation in the hospitals area ... in the hospitals award, rather.
and later:
In any case we believe that the adoption of industry-wide schemes, such as Tasplan, such as the Australian Retirement Fund, such as West scheme, such as the West scheme applying in Western Australia, the Australian Retirement Fund being a national scheme applying across Australia, and schemes such as Sun Super which is the equivalent Tasplan in Queensland, are not safety net schemes as termed by Mr Doherty.
They are schemes that are quite capable of satisfying the requirements of the guidelines - if I can turn to the National Wage Case and the occupational superannuation guidelines -and are quite capable of receiving contributions in respect of occupational superannuation for employees covered by any industry.
And if that approach was adopted rather than the industry approach, which is preferred by the unions, then I believe the situation of superannuation would be much more simplified across the country because there would be, in effect, only six or seven State based schemes, which would enable contributions to be paid into them for employees within that State. And they, of course, provide full portability between States in any case."
Mr Smith argued that his approach in this matter is consistent with the Wage Fixation Principles and the comments of the National Wage Case Full Benches when dealing with aspects of superannuation. And in particular the three elements required to be met by the principles are to be found at page 23 of the Full Bench decision of 10 March 19874, where it said, inter alia:
"Without wishing to prejudge the issue there are a number of comments we consider desirable to make. The first is that any fund which complies with the Commonwealth's Operational Standards for Occupational Superannuation Funds and which has received the appropriate preliminary listing for taxation purposes from the Commissioner for Occupational Superannuation, could be determined as an appropriate fund by the Commission. The second is that it seems reasonable that no employer should be forced to make contributions for its employees to a multiplicity of superannuation funds. The third is that, given the mobility of labour, multi-employer funds controlled jointly by employers and unions may be preferable to individual funds and more likely to fulfil the basic purpose of superannuation for the majority of employees in particular situations. A number of such funds have been developed."
Whilst the Tasmanian Industrial Commission did not make the same comments when dealing with successive State Wage Cases, it nevertheless has adopted the same principles and decisions of the Australian Conciliation and Arbitration Commission in this area.
TCI also said that its approach in this matter is consistent with the requirements of Section 36 of the Act, going to considerations of public interest.
We were provided with information by Mr Smith concerning the history of TASPLAN and details such as its extent of coverage and performance so far and its "direction towards Tasmanian investment".
We were also given details of TASPLAN's trust deed and the benefits it bestows upon employees. And a comparison of benefits and performance was made between TASPLAN and HESTA.
Mr Smith stressed to us that TASPLAN is suited to all industries and employees both in Tasmania as well as in other States.
TASPLAN complies with relevant Federal Government requirements for such schemes and has been given preliminary listing for taxation purposes by the Occupational Superannuation Commission.
The Board of the controlling trustee company must always consist of equal numbers of employer and employee representatives.
There is also full portability for members moving between employers participating in TASPLAN and other superannuation funds.
It was submitted that TASPLAN's good investment results thus far places it in the top 50 highest earners of more than 220,000 superannuation schemes in Australia, and this goes very much in its favour so far as public interest considerations are concerned. The National Mutual Company administers investments in both TASPLAN and HESTA.
Details of a survey were presented to us to support an argument that, in the private nursing homes area at least, there is very little mobility of labour between Tasmania and interstate. It was argued by Mr Smith that this was indicative of the overall picture - and not just in the nursing homes area. Accordingly it was submitted that because HESTA is an interstate operation that does not make it any more favourable.
In relation to Division C of the award Mr Smith said that in particular there are several organisations established under the auspices of the Catholic church, and those organisations have expressed a desire that a fund known as the National Catholic Superannuation Fund be used as a first preference in respect of 3% occupational superannuation for employees employed in those organisations. However the form of variation sought by TCI in matter T.1445 (i.e. for TASPLAN to apply in Division C) should include the following proviso which would apply to establishments of any religious denomination. This proviso is worded as follows:
"Provided a nursing home may apply to the Commission to direct superannuation contributions into an alternative fund provided:
1) the Home is a member of a religious organisation which provides a range of insurance services for constituent members of that organisation;
2) the fund complies with the operational standards of the Occupational Superannuation Commission interim Group;
3) the fund was in existence prior to the introduction of a superannuation provision in the award, and
4) the fund is, in the opinion of the Commission, an adequate and an appropriate fund to receive such contributions."
Mr Smith said to the best of his knowledge there are only two employers affected by Division E of the award (Homes for Handicapped Persons) and they both support TASPLAN, but subject to the above proviso.
Despite his earlier submission to us in relation to the utilisation of TASPLAN by private hospitals covered by Division A, we were subsequently told by Mr Smith that his instructions were that one hospital is seeking to utilise the National Catholic Superannuation Fund.
We were also told that hospitals covered by Division A had taken initiatives in anticipation of the claims that have been made in respect of occupational superannuation, and they either have in place or are about to implement, subject to any order that we may make, provisions for superannuation.
Thus TCI sought that any existing company schemes operate in preference to any other form of superannuation scheme, be it an industry-based scheme or a State-based scheme such as TASPLAN.
We were provided with an exhibit [TCI(12)] concerning the superannuation funds applying to private hospitals in other States together with a further exhibit [TCI(13)] in relation to present or proposed schemes in Tasmanian hospitals.
We were also referred to a number of decisions of tribunals going to the question of choice of funds and use of existing funds for the purpose of the 3% productivity increase.
The claims before us relate to the granting of an award provision in relation to superannuation consistent with the terms and limitations imposed by wage fixation principles currently applying.
The several claims relate only to private employers and all of their employees covered by the Hospitals Award, i.e. Divisions A, C, D and E.
The unions claim that provision should be made for a 1 1/2% superannuation award from 10 October 1988 with a further 1 1/2% from 1 January 1989, and that HESTA be the one industry scheme to apply. However they say that where agreement is reached between the employer and relevant unions concerning an alternative superannuation fund which meets all necessary criteria, the Commission may also recognise that scheme.
Employers oppose the union submission.
Their position is somewhat more complex in that they totally oppose the nomination of HESTA, and favour an unfettered employer choice of either existing or proposed schemes. Where there is no other scheme either in existence or contemplated, then TASPLAN should be used. In addition we were requested to acknowledge the right to a complete exemption by some employers on incapacity to pay grounds.
Whilst we were given considerable detail of the operation of TASPLAN, we were not given the same degree of specific information concerning other employer nominated schemes either being used or proposed for future use. It is significant however that it was acknowledged from the employer side that at least one suggested scheme does not yet have approval in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds. However we were advised that steps were being taken to upgrade this particular scheme to the requisite standard to achieve the necessary listing.
We believe it is regrettable that the parties themselves are so far apart in relation to this matter.
Whilst there is acceptance of the fact that the current wage fixation principles allow the making of consent awards or certification of agreements providing employer contributions to approved superannuation schemes within certain defined limits, negotiations towards this end have effectively broken down, despite denials to the contrary. And putting aside the question of some employer exemptions, the breakdown has been caused by each side having entrenched views regarding choice of funds to apply.
Hearings before this Commission in the area of the Hospitals Award started as far back as November 1987, and despite attempts to have all issues settled through conciliatory processes the parties have remained as far apart as ever. Indeed indications are that, if anything, attitudes have hardened.
Our task has been made even more difficult because there is clear evidence that some employers have sought to pre-empt any decision we may have to make in relation to an appropriate superannuation scheme, by commencing contributions to their preferred scheme. To be fair however the primary motivation of such employers may have been to pre-empt the union preferred scheme of HESTA, even though that scheme is jointly controlled by equal employer/employee representation from the health industry.
Regardless of the motivation, the effect of such action in the final result is the same.
Given the multi-facetted nature of the "health industry" covered by the award, and the less than uniform approach even by employers in the same section of the award (e.g. private hospitals) the final position we face could hardly be less confused.
We point out however that the situation created is certainly not of our making.
The principles in our view do no more than allow a case by case approach to the whole question of superannuation, within clearly established limitations as to quantum, operative date and approved schemes.
None of the cases quoted to us by any party represent a parallel of circumstances to the case before us, and to that extent do no more than fortify our already expressed view that a case by case approach is necessary and proper.
If we were to adopt the employer's proposal, then we would be required to make no more than an "in principle" decision to accept the notion that:
(a) where an employer is a party or proposes to become a party to a scheme which meets Commonwealth operational standards, and the employer desires to use that scheme, that choice shall prevail;
(b) where an employer does not wish to contribute to more than one fund that employer shall not be required to do so.
This position is of course consistent with the submission of CAI in the March 1987 National Wage Case5.
In the instant case we are required to determine the various claims under circumstances where:
(a) A dispute has arisen and must be settled by the Commission.
(b) All trade unions involved support one industry scheme, i.e. HESTA.
(c) Employers have nominated a considerable range of schemes which may be used, including the following:
· TASPLAN
· Australian Hospital Care Retirement Plan
· National Catholic Superannuation Fund
· Medical Benefits Fund Award Superannuation Plan
· St Lukes Staff Productivity Superannuation Fund
· (St Vincents) Company Scheme - National Mutual Life Association
· Private Hospital Employees Superannuation Fund
(We could not be given an assurance that this list is complete)
(d) Apart from TASPLAN we were not given more than very generalised details of how the employer-nominated schemes operate. One such scheme at least has not received the necessary Commonwealth approval.
(e) Evidence was given that a series of union meetings carried a motion supporting HESTA.
In the circumstances we are inclined to support HESTA as the preferred scheme to apply to all sectors of the award embraced by the claims before us in this matter on the basis of the fact that:
(a) It is an approved superannuation scheme in accordance with the Commonwealth Operational Standards for Occupational Superannuation Funds; and
(b) It already applies in other States of Australia in the health industry and has been accepted as appropriate by other tribunals.
Whilst HESTA is not uniquely suitable, it is neverthelessa multi-employer, industry-type scheme; it also accommodates mobility of labour, and is jointly controlled through equal employer and union representation. We have decided therefore that:
There will be an award provision created granting the equivalent of 3% of ordinary time earnings of employees to be paid into an approved superannuation scheme.
The preferred scheme to apply shall be HESTA, except where after proper consultation has taken place between employers and relevant unions it is agreed that another scheme qualifies and is equally suitable. We will allow one month from the date of our decision for those agreed schemes to be put forward.
Our decision embraces and accepts the notion that, based upon current wage fixation principles, employees may receive up to an additional 3% of ordinary earnings to be paid into an approved superannuation fund.
Turning to the question of exemptions from our decision in this matter, we point out that Principle 13, "Economic Incapacity" is always available to those who believe they can successfully prove a case.
This particular principle provides as follows:
"Any organisation with a registered interest in an award may apply to reduce and/or postpone the application of any increase in labour costs determined under the principles on the ground of very serious or extreme economic adversity. The merit of such application shall be determined in the light of the particular circumstances of each case and any material relating thereto shall be rigorously tested."
OPERATIVE DATE:
First pay period on or after 1 April 1989.
ORDER:
The parties are requested to submit a draft Order consistent with the terms of our decision.