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Tasmanian Industrial Commission
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Industrial Relations Act 1984
s.23 application for awards and variation of awards

Tasmanian Trades and Labor Council
(T.3144 of 1991)


See end of Decision for Awards Varied




Labour on-costs - occupational superannuation - payments to approved funds on calendar monthly basis


This application sought to vary all private sector awards containing a clause requiring employers to contribute to approved superannuation funds on behalf of employees. The proposed variation was couched in the following terms:

"Contributions to the fund shall be made by the employer on at least a calendar monthly basis unless there are circumstances for which the employer cannot be held responsible."

For the Tasmanian Trades and Labor Council (TTLC), Ms. Walker submitted that the application was made in an effort to remedy the situation where an employer, for one reason or another, failed to comply with an award requirement to pay contributions on behalf of an employee. Ms. Walker argued that since there was no specific requirement in the awards listed for the employer to contribute by a certain time the employer could defer payment and not be in breach of the award.

It was submitted that an employer's failure to contribute to the fund on a regular and reasonably frequent basis resulted in employees being unfairly deprived of entitlements. Most funds were established as accumulation funds and any delay on the part of the employer in paying into the fund would reduce the potential earnings of the fund and, in so doing, reduce the amount standing to the credit of the employee.

Also, failure to make payments could deprive the employee, or the employee's spouse, or other beneficiaries, of entitlements due under the death and disability insurance component of most funds. We were told such failure had resulted in legal action being taken against the employer where an employee had died or become totally and permanently disabled.

Ms. Walker alleged that a further problem arose should an employer, who had failed to make the required superannuation contribution, be declared bankrupt. Due to the order of priority set out in the Australian Companies Code and the Australian Bankruptcy Act, the chances of recovery were fairly remote as wages, which we were told included superannuation contributions, ranked fifth in the order of priority and then only to a limit of $2000. We were urged to endorse the variation sought from the date of decision.

The Federated Clerks Union of Australia, Tasmanian Branch, fully supported the submissions of the TTLC.

Mr. Newton, representing the Minister for Industrial Relations, also expressed support for the application to ensure that superannuation provisions were capable of being administered efficiently and, if necessary, dealt with effectively in a court of competent jurisdiction.

Mr. Clues, for the Tasmanian Confederation of Industries (TCI) informed the Commission that the application arose from discussions initiated by the Department of Employment, Industrial Relations and Training, which had involved the TCI. The aim of the variation was to ensure that contributions provided for by award were made on at least a monthly calendar basis. In the circumstances, Mr. Clues submitted, the proposed variation was not in conflict with the Wage Fixing Principles, nor was it against the public interest. Mr. Clues indicated the employers' consent to the application and consented also to the date of operation being the date of our decision.

We agree with the intent of the proposed variation for the reasons advanced by the parties. Clearly award provisions relating to matters such as superannuation contributions should, if necessary, be enforceable at law.

Whilst we express some concern about the possibility of employers unreasonably avoiding the obligation to contribute because of "circumstances for which the employer cannot be held responsible", we note the submission by Mr. Clues that the TCI's consent was on the basis that "if there are some exceptional circumstances (for failure to pay on time) then there should be consideration given to that". We are somewhat comforted by the employers' recognition that the circumstances must be "exceptional".

We therefore approve the application. However, as to operative date, we consider it would be more appropriate if the variation commenced on the first day of a calendar month. Accordingly the awards listed below will be varied with effect from the first full pay period commencing on or after 1 October 1991.

Awards to be varied:
Automotive Industries
Bakers [Rescinded]
Barristers & Solicitors
Boarding Schools and Student Hostels
Broadcasting & Television
Child Care & Childrens Services
Clerical & Administrative Employees (Private Sector)
Draughting and Technical Officers
Electrical Engineers
Emu Bay Railway
Estate Agents
Fuel Merchants
Furnishing Trades
Ice Cream Makers
Laundrymens and Dry Cleaning
Leather, Canvas and Sheet Plastic Fabrication
Marine Boards
Mechanical Engineers & Founders
Medical Practitioners (Private Sector)
Miscellaneous Workers
Optical Industries
Professional Engineers & Scientists (Private Industry)
Public Accountants
Public Vehicles
Restaurant Keepers
Retail Trades
Rubber Trades
Security & Watching Services
Surveyors (Private Industry)
Timber Merchants
Totalizator Agency
Vegetable Preservers
Welfare & Voluntary Agencies
Wholesale Trades

The orders will be issued in due course by Commission members responsible for individual awards.


Ms. P. Walker with Ms. R. Harvey for the Tasmanian Trades and Labor Council
Mrs. H. J. Dowd for the Federated Clerks Union of Australia, Tasmanian Branch
Mr. B. P. Newton with Ms. A. Fitton for the Minister for Industrial Relations
Mr. S. Clues for the Tasmanian Confederation of Industries

Date and Place of Hearing:
8 August