Australian Council of Trade Unions, Queensland Branch and The Australian Workers' Union of Employees, Queensland v Queensland Confederation of Industry Limited, Union of Employers and Others [1995] QIRC 403 (1995) 150 QGIG 284

284 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [ 15 September, 1995 ####################################################### QUFENSLAJ\D INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 37 declaration of general ruling Australian Council of Trade l'.nions Queensland Branch AND Queensland Confederation of lndustr) Limited. Union of Employers and Others (l\'o. B1053 of /994) The Australian Workers· Union of Employees. Queensland Queensland Confederation of industry Limited. Union of Employers and Others (,\·o B] If O of I 994) CHIEF INDCSTRIAL COMMISSIONER IIALL COMMISSIONERS SWAN, ~UTTER 29 August 1995 Occupational Legislation Considerations Superannuation Impact of Commonwealth Inconsistency of Laws Characterisation Policy Policy Updated. DECISION On 29 September 1989 the Industrial Conciliation and Arbitration Commission published a Declaration of Policy under s. 11 of the industrial Conciliation and Arbitration Act 1961 upon the matter of Occupational Superannuation. The Declaration of Policy is reported at 13 2 QGI G 1105. The recommended standard superannuation clause appears at 1109 to 1111. Some five years later on 28 September 1994 Australian Council of Trade l3nions Queensland Branch (hereafter ACTl J(())) filed an application seeking the declaration of a new policy and seeking certain variations to the standard clause. On 7 October 1994 The Australian Workers· Union of Employees, Queensland (hcreafler A WU) filed a similar application. Prior to listing the matters for hearing. conferences \vere held with the parties to ascertain areas of di'.->putc. Directions were given that submissions be exchanged. Thi~ resulted in amendment of the Applications. succinct presentation of submissions and facilitated the hearing of the applications. The Commission appreciates the efforts and cooperation of the parties. Signiiicant legislative change has taken place since the Industrial Conciliation and Arbitration Commission penned its decision of September 1989 Importantly the Australian Parliament has enacted:-- (a) Superannuation Guarantee (Administration) Act /992 (the SGA Act): (b) Superannuation Guarantee Charge Act /992 (the SGC Act): (c) Superannuation lndustry (Supervision) Act 1993; (d) Superannuation (Resolution of Complaints) Act I 993 The Superannuation Industry (Supervision) Act 1993 provides for prudent management of certain superannuation funds and for their supervision by tk Insurance and Superannuation Commissioner A superannuation fund which is a complying superannuation fund under the Act is eligible for concessionai treatment in relation to the revenue laws. To become a complying fund. a fund must be a regulated superannuation fund under the Act and must comply with the Act with respect to matters which include operating standards. governing rules. borrowing rules, lending rules. in-house asset rules. equal representation rules and trustee. investment manager, actuary and auditor standards. Part 9 seeks to ensure equal representation of employer and employee members in the case of employer sponsored funds. The Superannuation (Resolution of Complaints) Act 1993 establishes a system for the resolution of certain (particularised) diniculties between trustees and members. The SGA Act and the SGC Act, which arc to be read as one (SGC Act, s. 3 ). are rather more difficult to our line. By s. 5 of the SGC Act and s. 16 of the SGA Act. charge is imposed on an employer·s annual superannuation guarantee shortfall Ry s. 17 an employer's superannuation guarantee shortfall is calculated by adding together> (a) the total of the employer·s superannuation guarantee shortfalls in respect of individual employees for the year: and (b) the employer·s nominal interest component for the year; and (c) the employer's administration component for the year. The nominal mterest component in relation to an employer is the amount which would accrue by way of interest on the total at (a) above, if interest were calculated at a rate nominated by s. 31 of the SGA Act from the beginning of the year in question until August 14 in the following year or, if the employer fails to lodge a superannuation guarantee statement by August 14. until the date on which the statement is lodged. An employer's administration component for a year is a figure fixed by or under SGA s. 32 + IN x Per Capita Amount]. where N equals the number of employees at (a) above and the Per Capita Amount is a further sum fixed by or under SGA. Save in the case of I 992-93 an employer·s superannuation guarantee shortfall in respect of an employee is the total of the ~uancrly shortfalls in respect of that empioyee. SGA s. 19( I). The quarterly shortfall is ascertained by application of the fomrnla:- Total salary or wages paid by the employer to the employee for the quarter X Charge percentage for the ~ 100 The charge percentage is fixed by SGA. ss. 20 anJ 21 The figure gradually increases over the period 1992-03 until the target of 9% is reached Prior to I 998-99 the percentage is larger for employers whose payroll exceeds one million dollars. Sections 22 and 23 of SCiA provide for the charge percentage to be reduced by the percentage rate at which the employer contributes to a superannuation fond or scheme which complies with Part IX of the Income Tax Assessment Act 1936. Section 23(2) is of particular importance and we set it out in full:-- .. [Reduction of charge percentage where contribution made under industrial award or law! (2) Subject to subsections ( 6) and (7). i L in a contribution period: (a) an employer is required by an industriai award or a law of a kind referred to in paragraph 13 (1) ( ab) or 14 (I) (ab) to contribute for the benefit of an employee to a superannuation fund; and (b) the requisite contribution is a specified percentage of the employee· s notional earnings base or a percentage of that base calculated in accordance ,vith the award or law; and 16351 __ 1.DOC 15 Septemher, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 285 (c) the employer contributes to a complying superannuation fund for the benefit of the employee in accordance with the award or law; the charge percentage for the employer, as calculated under section 20 or 21, in respect of the employee for the contribution period is reduced, in addition to any other such reduction made under this section or section 22. bv the amount worked out usin" the formula: - c AxB where: 'A' is the amount of the percentage figure that expresses the contribution to the fund referred to in paragraph (c) as a proportion of the total amount of the employee's notional earnings base: (A) if the employee is employed under the industrial award or law for the whole of the contribution period for the whole of that period; or (B) if the employee is employed under the award or law for a part of the period for that part of the period: ·B' is: (A) I: or (B) if, in relation to the contribution period. the period for which the employee is employed by the employer is greater than the period of employment under the industrial award or law referred to in paragraph {a) the fraction that represents the period of employment under the award or law as a proportion of the period of employment in the contribution period.". By s. 6( l) of SGA "industrial award'' means "(a) an industrial award or determination made under a law of the Commonwealth, a State or a Territory: or (b) an industrial agreement approved or registered under such a law.". Sections I 3 and 14 elaborate on the employee's national earnings base. We do not deal with that here. By s. 34 of the SGA an employer who, after credit for superannuation contributions is allowed as described, has a superannuation guarantee shortfall for a financial year must on or before 14 August in the following year lodge with the Commissioner of Taxation a superannuation guarantee statement setting out:- ·'(a) the name and postal address of the employer; and (b) the name, postal address and tax file number (so far as is known to the employer) of each employee in relation to whom the employer had an individual superannuation guarantee shortfall for the year; and (c) the amount of each such shortfall; and (d) the employer's nominal interest component for the year; and (e) the employer's administration component for the year; and (t) if the employer's annual national payroll for the employer's base year 1s $ l ,000,000 or less, the amount of that payroll: and (g) the total of the employer's individual superannuation guarantee shortfalls for the year; and (h) the amount of the employer's superannuation guarantee charge for the year.". By s. 35( I) of SGA:- the statement has effect as an assessment of the employer's superannuation guarantee shortfall for the year and of the superannuation guarantee charge payable on the shortfall: and the assessment is taken to have been made on 14 August in the following year or the day on which the statement was lodged. whichever is the later; and the sum of: (i) the total of the employer's individual superannuation guarantee shortfalls; and (ii) the employer's nominal interest component; and (iii) the employer's administration component specified in the statement is to be taken to be the amount of superannuation guarantee charge payable by the employer for the year; and the statement has effect as if it were a notice of assessment signed by the Commissioner and given to the employer on the day on which the assessment is taken to have been made.". We do not go to the provisions relating to default assessments and amended assessments. Part 6 of SGA deals with the recovery of superannuation guarantee charge by an action of debt in a court of competent jurisdiction, garnishee of debt etc. Part 8 of SGA provides for the Commissioner of Taxation to pay the amount of the shortfall attributable to a particular employee (minus the administration component) to a complying superannuation fund for the benefit of that employee. We have set out the provisions of SGA and SGC at some length for each of three reasons. First, the measures are colloquially referred to as "superannuation legislation". It is true that the statutes deal with superannuation. In Superannuation Test Case - September 1994 (1994) 55 IR 447 at 45 l a Full Bench of the Australian Industrial Relations Commission summarised the statutes as follows:- "These Acts, in short, impose a tax, called ·superannuation guarantee charge', on what 1s called an employer's superannuation guarantee shortfall for a year'. An employer, by providing the minimum specified level of superannuation support for employees, avoids having a superannuation guarantee sho1tfall for a year and thus having to pay superannuation guarantee charge.'' But a law of the Australian Parliament does not cease to be a law with respect to taxation because the Parliament seeks to achieve a purpose not within Commonwealth Legislative power. Fairfax v Federal Commissioner (>/Taxation (1965) 114 CLR 1 concerned the validity of statutory provisions which denied to trustees of superannuation trusts the general exemption from liability to income tax on the investment income of the trust. unless the investments of the trust contained a specified proportion of Commonwealth and other public securities. Kitto J said: ·The legislative policy is obvious and may be freely acknowledged: it is to provide trustees of superannuation funds with strong inducement to invest sufiiciently in Commonwealth and other public securities. The raising of revenue may be of secondary concern. But the enactment does not prescribe or forbid conduct. Its character is neither fully nor fairly described by saying that it makes trustees of superannuation funds liable to pay for failing to do what the legislature wishes. To adapt the language of Higgins J in R v Barger, the substance of the enactment is the obligation which it imposes, and the only obligation imposed is to pay income tax. In substance as in 16351 I.DOC -- 1 of 4 -- 286 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l 15 September, 1995 form. therefore. the section is a law with respect to taxation.". (at 13) Here the statutes have been drafted in reliance on the reasoning in .h..'orthern Suburbs General Cemetery Reserve Trust v The Commonwealth (/993) ALJR 290, which case concerned the Training Guarcm1ee Act I 990 and the Training Guarantee (Assessment) Act I 990 Wc consider the attempt to have succeeded and that the Acts are valid exercises of the Australian Parliament's power over taxation. The second reason for setting filnh the provisions in detail 1s that the provision for the reduction of the superannuation shortfall in respect of an individual employee so as to accommodate an existing obligation of the employer under a state award or industrial agreement, manifests an intention not wholly to displace state awards and industrial agreements upon the subject matter of occupational superannuation. For completeness we note that in the course of his second Reading speech, the Minister responsible l1lr the Biils which became SGA and SGC said: '·One point is very important to emphasise. There is apprehension that one of those amendments may be misunderstood. It relates to the proposal to increase the minimum monthly threshold at which a payment obligation is activated for employees from $250 to $450. It is fundamental to the government's view of the way this scheme should work and its inter-relationship with the existing award arrangements that the $450 threshold should not override existing award provisions nnr be seen as mandate to change existing award provisions We do not wish to see people who arc gaining a benefit at the moment lose; we are simply trying to put in place a scheme for all those who are not benefiting or not benefiting adequately. It is fundamental that neither overrides awards nor is seen as a mandate to change awards. That would be entirely contrary to the (iovemment's intention.''. (p. 4382 of Senate Hansard) And further: "'I made it very clear when summing up the second reading debate last night that it is not intended that these provisions should override or displace award provisions. It may be that an employer and an employee have an agreement reflected in an award to do more that the legislative requires. We have no intention of undercutting those agreements and those awards.··. (p. 4407 of Senate Hansard) The third reason for setting out the provisions in detail is that the purpose and the detail of the legislative scheme creates a real risk that a particular award or agreement ( or part of an award or agreement) may touch the operation of the iegislative scheme or prove a cause of burden or inequity The point first mentioned was recognised by the Australian Industrial Relations Commission in its Review of Wage Fixmg Principles October 19Y3 (1993) 50 IR 285 at 310 to 317. The decision. among other things. refers to doubt attending the continued involvement of the Commission in some aspects of superannuation dealing with what is essentially the same subject matter. In Superannuation Test Case - September i994 (1994) 55 IR 285 the Australian Commission returned to the matter. At 435-6 the Commission commented upon a statement of the l"reasurcr. the Hon. Ralph Willis. MP as follows:- "Part 4 legislation Proposed amendments to superannuation In Pt I Introduction of this decision we referred to the 28 June 1994 statement made by the Treasurer, the Hun Raiph Willis MP, on superannuation policy and the statement and measures proposed by the Government. This statement of measures contains this passage: ·Clarification of the Legal Jurisdiction of the Australian Industrial Relations Commission. With the enactment of the Superannuatwn Guarantee (Administration) Act 1992 (SGAA), some doubt has been raised about the powers of the AIRC to continue to arbitrate on superannuation matters, at least to the extent it traditionallv has done. The issue gained prominence in the context of- the AIRC s 1993 Review of the Wage Fixing Principles wherein some employer groups claimed, in particular, that the Commission's powers were now circumscribed bv the fact that ' generally the Commiss10n has no jurisdicti~n to make an award that is inconsistent with an Act of the Commonwealth Parliament. ' The issue has assumed particular significance in regard to the power of the Commission to continue to arbitrate on disputes ahout the superannuation fund, or funds, to which employers must contribute in satisfying their award obligations. Whereas the SGAA allows contributions to be made to any 'complying' superannuation fund, most (federal) awards specify a more limited numher of funds to which employers must contribute. The Government's policy position has always been very clear in its intent that the SGAA complements. rather than replaces, award superannuation provisions. In other words, the intent is that the SGAA should establish minimum standards of superannuation support leaving pmties free to negotiate (and the AIRC to arbitrate) higher standards The Government proposes to insert an 'objects' or equivalent clause in the SGAA to make clear the Government's policy intent that, unless otherwise expressly provided for , the Act docs not affect the AIRC's jurisdiction to consider superannuation issues. (At the same time, the amendment proposed will not purport to increase the jurisdiction of the AIRC lo consider superannuation issues beyond the position that existed prior to the SGAA 's enactment.) We have also had regard to the fact that the Treasurer stated that the Government proposes to make other legislative changes including: deeming that the payment of the superannuation guarantee charge shall also satisfy any equivalent award obligation with respect to the employee in question ; and having regard to certain problems relating to •flat dollar' contributions under awards, providing that the amount of the contribution, rather than the amount specified by the award, is measured against the ·standard employee· earning base.''. We. in our tum. were infom1ed that the amendments had not been made. The problem confronting the Australian Commission was the constrnction of a law of the Australian Parliament vesting power over occupational superannuation in some circumstances. viz. industrial Relatwns Act 1988. against the back-drop of detailed 16351 l.DOC 15 September, I 995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 287 statutes of the same Parliament upon the same subject matter. The difficulty confronting this Commission is of a different order of magnitude. Section 109 of the Constitution of the Commonwealth is as follows:- "109. Inconsistency of laws. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the fonner shall, to the extent of the inconsistency. be invalid.". The principles to be applied in assessing inconsistency between State and Commonwealth laws, as to which see Lane, The Australian Constitution at chapter 55, are quite different to those applied in resolving conflicts between acts of the same parliament. Further. the Constitution of the Commonwealth is a law of such fundamental importance that we are not prepared to by-pass the matter of inconsistency because legislative amendments may be in prospect. The passage cited (455-6) contains we should say a good example of the second point made, viz. the potential for burden and ine4uity. An employer who pays superannuation contributions pursuant to an award is entitled to bring the contributions into account as partially satisfying the obligations imposed by SGA and SGC. An employer who chooses to breach an award but to pay the charge appears not to be entitled to bring payment of the charge into account if action is taken to recover the unpaid contributions under the award. ACTU(Q)'s initial written submission is quite beguiling. The Application is said to be an attempt to ensure the compatibility of this Commission's standard superannuation clause and the various statutory measures to which we have referred. As the case developed it became apparent that the objectives were:- (a) to precis the federal legislation in order that employers \vho were smaller or in distant parts would be able to comprehend their obligations. (h) to ensure that the nhligations under Queensland award~ complemented those under the federal legislation. (c) to improve upon the statutory scheme by amalgamating the most generous features of the scheme with the most generous features of the existing standard award. As to ( a) it seems to us that it does modify the operation of a Commonwealth law to place an employer under an obligation to make payments in respect of occupational superannuation when the Commonwealth law permits payment of the charge and that is what a prccis of the federal legislation in a Queensland award would do. The normal sanctions for breach of award will apply. As to (b ), quite apart from the proposition that the statutory scheme does not impose obligations with respect to the payment of superannuation contributions. it seems to us to treat s. 109 with scant respect to seek to supplement sanctions chosen by the Australian Parliament with additional sanctions under Industrial Relations Act 1990. Yet so far did the proposal go that we were urged to adopt a clause as follows:- "Every employer shall contribute on behalf of each employee mentioned in (A) subclause (J)(b)(i) from J Jutv J992 a percentage amount as stipulated in the Superannuation Guarantee !Administration) Act /992 of the emplovees ordinarv time earnings into an approved fund (Lach such payment ofwntributwns shall be rounded off to the nearest ten centsJ'. As to ( c ). it is one thing to adjust industrial rights with respect to occupat1onal superannuaJion and quite another to entertain a merit appeal agamst a dec1sio11 of the Australian Parliameni on a matter of social policy. To the extent that (c) would ·'boost'' existing standards of this Commission, we have to note ACTlJ(Qf s concession that there was an element of consent in the standard adopted in September 1989. On balance, subject to certain housekeeping matters to which we shall shortly tum, we propose to reject the applications. With the exception of Australian Sugar Milling Association. Queensland, Union of Employers, no party urged us to abandon the field of superannuation. We consider it to be apparent from the submissions of the parties that our request for a full argument on the matter of power was not taken as a signal that the existing standard was at risk. In any event we have not had a full argument. Subject to the housekeeping matters the existing standard clause. will stand. STATEMENT OF POLICY DRAFT CLAljSE Superannuation ( 1) Application In addition lo the rates of pay prescribed by this Award, eligible employees, as defined herein, shall be entitled to Occupational Superannuation Benefits, subject to the provisions of this clause. * NOTE: The subject of superannuation is dealt with extensively by legislation including the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992, the Superannuation Industry (Supervision) Act 1993 and the Superannuation (Resolution of Complaints) Act 1993. This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties. PARTIES SHOULD SEEK THEIR OWN ADVICE AS TO THOSE MATTERS. (2) Contributions (a) A.mount Fvery employer shall contribute on behalf of each eligible employee as fr·om (blank date/s) an amount calculated at 3°/e of the employee's ordinary time earnings. into an Approved Fund. as defined in this clause. Each such payment of contributions shall be rounded off to the nearest ten (10) cents. (b) Regular Payment The employer shall pay such contributions to the credit of each such employee at least once each calendar month or in accordance with the requirements of the Approved Fund Trust Deed. (c} Afinimum Level of Earnings No employer shall be required to pay superannuation contributions on behalf of any eligible employee whether full-time, part-time. casual. adult or junior in respect of any week during which the employees ordinary time earnings. as defined. do not exceed 35%:, of the Guaranteed Minimum Wage for the Southern Division, Eastern District as declared from time to time. (d) Absences from Work Contributions shall continue to be paid on behalf of an eligible employee during any absence on paid leave such as annual leave, long service leave. public holidays. sick leave and bereavement leave, but no employer shall be required to pay superannuation contributions on behalf of any eligible employee during any unpaid absences except in the case of absence on Workers' Compensation. In the case of Workers' Compensation the employer shall contribute in accordance with provision (a) hereof whenever the employee is receiving hy way of Workers' Compensation an amount of money no less than the award rate of pay. 16351 I.DOC --, -- 2 of 4 -- 288 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [15 September, 1995 (e) Other Contributions - Nothing in this clause shall preclude an employee from making contributions to a Fund in accordance with the provisions thereof. (f) Cessation of Contributions - An employer shall not be required to make any further contributions on behalf of an eligible employee for any period after the end of the ordinar) working day upon which the contract of employment ceases to exist. (g) So Other Deductions - ~o additional amounts shall he paid h:, the employer for the establishment, administration, management or an:, other charges in connection with the Fund other than the remission of contributions as prescribed herein. (3) Definitions - (a) "Approved Fund" means a Fund approved for the purposes of this Award by the Queensland Industrial Relations Commission as one to which Occupational Superannuation contributions may be made h) an employer on behalf of an employee. as required by this A\,ard. Such appro\ed Fund ma1 he indi\ idually named or may he identified by naming a particular class or category. (b) "Eligible employee" shall mean any employee who has been employed hy the employer during 5 consecutive weeks and \Vho has worked a minimum of 50 hours during that period. After completion of the abm·e qualifying period. superannuation contributions shall then he made in accordance with subclause (2) hereof effective from the commencement of that qualifying period. (c) "Fund" means a Superannuation Fund as defined in the Superannuation Industry (Supervision) Act J 993, and satisfying the Superannuation Fund conditions in relation to a year of income, as specified in that Act and complying with the operating standards as prescribed by Regulations made under that Act. In the case of a newly established Fund. the term shall include a Superannuation Fund that has received a notice of preliminary listing from the Insurance and Superannuation Commissioner. (d) 'Ordinary time earnings' shall mean the actual ordinary rate of pay the employee rccei,es for ordinary hours of work including shift loading and leading hand, in-charge or supervisory alkmances \,here applicable. The term includes any O\eraward payment as \,ell as casual rates rccei\ ed for ordinary hours of \,ork. Ordinary time carnmgs shall not include overtime. disability allowances. commission, bonuses. lump sum payments made as a consequence of the krn1ination of employment. annual lea,c loading, penalty rates for public holiday work. fares and travelling time allowances or any other extraneous payments of a like nature. (-1) Apprcn-ecl Funds -- ]·or the purposes of this Award an ApprO\ ed Fund shall he: - ( a) A Union nominated Fund. preferably an industry or multi-industr) Fund with joint Union/Emplo;-er management. (b) An hnployer nominated Fund. preferably an industry or multi-industry Fund with Joint Union/Fmplo;-er management. ( c) /\ny named Fund as is agreed to bet\, cen the relevant employer/industrial organisation parties to this A ward (Industrial Agreement) and as recorded in an approved industrial agreement. (di In the case of a minority group of employees of a particular employer, an 1 Industry. Multi-Industry or other Fund which has been approved ll1 an award of. or an agreement apprmed by. an Industrial Tnhunal. whether State or Federal junsdiction. and airead:, has practical application to the majority of a\,ard employees of that employer. (e) As to employees who belong to the religious felkmship known as the Brethren, who hold a Certificate issued pursuant to section 388 of the Industrial Relations Act J 990 and are employed by an employer who also belongs to that fellowship any Fund nominated by the employer and approved hy the Brethren. ( I) Any Fund agreed between an employ er and an employee who holds a Certificate issued pursuant to section 388 of the Industrial Relations Act J 990 where membership of a Fund cited in an award would he in conflict with the conscientious beliefs of that employee in tenns of section 388. (g) In relation to any particular employer. any other established Fund to which that employer was already actually making regular and genuine contributions in accordance with subclause (2) hereof on behalf of at least a significant number of that employer's employees covered hy (this) Award/Industrial Agreement and continues to make such contributions: Provided that the making of a deposit. an initial or other each time a contributions subsequent to 29 September 1989. but on a Superannuation retrospective basis. in respect of any period up to an clause is including 29 September I 989. shall not under any circumstances bring a Fund within the meaning of this provision. The mere signing and submission of any nomination for membership documents to Trustees of a Fund prior to 29 September 1989 docs not bring a Fund within the meaning of this pro,ision. In the making of all new awards, this provision could be deleted. (5) Challenge of a Fund - (a) An eligible employee being a member or a potential member of a Fund. as well as an industrial organisation whose registered list of callings incorporates any of the classification/s of employees to whom this Award applies. may by notification of a dispute challenge a Fund on the grounds that it docs not meet the requirements of this clause. (b) Notwithstanding that the Commission detennines that a particular Fund does not meet the requirements of this clause, the Commission may ll1 its discretion and subject to any recommendation. direction or order it may make. recognise any or all of the contributions previously made to that Fund as having met the requirements or part thereof of suhclause (2) up to and including the date of that dctem1ination. (c) In the event of any dispute over whether any Fund complies \Vith the requirements of the clause. the onus of proof shall rest upon the employ er. (6) Fund Selection - (a) No employer shall be required to make or he prevented from making. at any one time. contributions into more than one Approved Fund. Such Fund. other than a Fund rcl'crred to in provisions ( d). ( c ), (t) and (g) of subclause (-1 ). shall be detennined by a majority decision of employees. (b) Employees to whom these provisions apply who as at the date of this variation are members of an established Fund covered h: subclause ( 4 )(g) hereof shall have the nght by ma1onty decision to choose to have the contributions specified in subclause (2) hereof pa1e1 into a Fund as provided for elsewhere in subclause ( 4) hereof rn 16351 I DOC 15 September, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 289 lieu of the established Fund to which suhclause ( 4 )(g) has application. completed and signed application form is recei\ cd b\ the employer. • . , (cJ The initial selection of a Fund recognised in subclausc (4) shall not preclude a subsequent dec1·s1·011 b th · · 1· (iii) In the event that an eligible employee fails to return a completed and signed application fom1 \,ithin a period of six months from the date of the original request h\ the employer. again advise that eligible employee i;1 wntmg of t~e entitlement and that the receipt by the employer of a completed and signed application fomi 1~ a pre-requisite to the payment of an) Occupational Superannuation contributions. . , . y c maJontv o employees m fm our of another Fund recognised under· that subclausc where the long tenn perfomiance of the Fund is clcarh d1sappomtmg. • Where, this _provision has been utilised and as a result another approved f·und 1s detcrn1ined. access to a further re-appraisal of the l·und tor the purpose of favouring yet another Fund shall not be madable until a period of three years has elapsed after that util1sat1011 of this provision: (iv) At the same time as advising the eligible employee pursuant to paragraph (iii) hereof submit both to the Chief Industrial Inspector, Brisbane and to the Secretary _of an industrial organisation of employees whose registered callmgs incorporate the classification of the eligible employee a copy of each letter forwarded hy him to the eligible employee pursuant to paragraphs (i) and (iii). PrO\ idcd that the provisions of this clause do not preclude the making at any time of an industrial agreement within the tern 1 s of suhclause ( 4 )( c ). (7) fc'nmlment (a) Each employer to whom this clause applies shall as soon as t hi h h employees - prac 1ca e as to ot current and foture eligible (i) (ii) (iii) notify all employees of Occupational Superannuation: their entitlement to consult as may he necessary to facilitate the selection hy employees of an appropriate Fund within the meaning of suhclause ( 4) hereof: take all reasonable steps to ensure that upon the detem1mat1on ot an appropriate Fund each clioihlc I . ~ cmp oyce, recel\ cs. completes. signs and returns the necessary application forms provided by the employer to enable that employee to become a member of the Fund: and submit all completed application forn1s and am other rcle\ ant material to the Trustees of the Fund. • , (h) Lach employee upon becoming eligible to become a member ot a hmd determined in accordance with this clause shall _ ( i) complete and sign the necessary application fonns to enable that employee to become a member of that Fund· ~d • (ii) return such fonns to the employer within 28 davs of receipt m order to be entitled to the benefit 0 ·r the contributions prescribed in subclause (2) hereof (c) Where an employer has complied with the requirements of pro\1s1011 (a) hereof and an eligible emplo:,ee foils to complete. sign and return the application form within 28 days of the receipt hv him nt that form. then that employ er shall:- • (i) (ii) Advise an eligible employee in writing of the non- recc_1pt of the application form and fi.irther ad, isc the ehg1blc employee that continuing failure to complete, sign and return such form \,ithin 1-1 da,s could Jeopardise _his enti:lcment to the Occ:ipatiunal Superannuation henc!It prescribed by this clause. In the e\ ent that an cl igible employee fails to complete. sign and return such application fonn \\ Ith in the specified period of 1-1 da)s be under no obligation to make any Occupational Superannuation contributions in resrect of such eligible employee cxcerting as from am subsequent date from which . (d) Whc_re an employer fails lo provide an eligible crnplovec with_ an application forn1 in accordance with provision (a)(iii) he;cof he shall be, obliged to make contributions as from the date of op_crnt1on of this clause or from the date an ernplovec became an 'e1Ig1hlc employee· if that occurs thereafter provided \hat an eligible emplO\ ee completes signs and returr1s t tl ] . : . ,_. _- • . o 1e emp oyer an applieat1011 fom1 w1thI11 28 days of being provided with the applicat1011 fom1 by the employer. Where an eligible employee fails to complete. sign and return an application form \\ithin such period ot 28 days prmision (c) hereof shall apply. (e). /:npaid Contributions - Subject to section 596 of the lndustrwl Relations Act 1990. and to subclause (5J hereof: \ihere the d1scrct1011 oi the Commission has been exercised. should it be established that the crnplover has fa1·led t ] · l . , • . o comp y wn 1 the requirements of subclause (2) of this clause in respect of any eliuihle employee such employ er shall he liable to make the approp,riatc contnbut1ons retrospccti,cly to the date of eligibilit, of the employ cc, plus an amount equivalent to the rate of rc(urn those contnhut1ons would hmc attracted in the relevant appn)\ cd Fund, or as necessary a Fund to be detennined by the Commission under subclause ( 4) hereof: had they been paid on the due dates: , PrO\ ided that \\here an employ er has paid the "Superannuation Crnarantec Charge" under the SGC Act and SGA Act 011 behalf of an eligible employee the amount paid shall he credited tm,anb sat1stymg the requirements of this clause. .. The making of such contributions satisfies the requirements of this clause exceptmg that resort to this provision shall not limit am common law action which ma: he mail able in relation to death d1sahlemcnt or an) similar CO\ er existin12 within the tenns of ,; rele\ ant hmd. . ( 8 )_ Record Keeping The employ er shall he required to 1~ 1 a111tau~ ,:ec~rds of time worked for the purposes of e,tablishing the employt:e s cnutlement to Occupational Superannuation, and of pa;-mcnts made to the approved Fund in similar fonn to time and \,ages records required to be kept in accordance \,ith section 496 of the lndustrtal Relations Act 1990 and sliall J • } d . . . • , - 1a\e ,uc 1 rccor s a\ailabk for mspection by an Industrial Inspector or Officer of the mdustnal organisation. authorised pursuant to section 495 of that Act. (9) Lremp1wns -- An emplover ma\ applv t(i th (_' · · . . . • . . c omm1ss1on for exemption irom all or any of the provisions of this clause in the foilowm12 circumstances:- 163 5 1__I DOC -- 3 of 4 -- 290 QUEENS LA ND GOVERNMENT INDUS TRI AL GAZETT E [ 15 September, 1995 (a) mc.ipaci t~ to pa~ the costs a_~-.oc1a1ed "1th its 1mplernent a11on. or (bl ,m~ special or compe lling ci rcumstances peculiar to the hti-mess of the emplo) er Dntcd this tw.inty- fi fth day of Augu, t. 1995. I) R ~L~ LI Chi ef lndu,tnal Commis)1oner. I) A. S\\' AJ\. (. ommiss1oncr IU . NUTI ER. Commissioner. Ms D. Ral ston for the Austra lian Council of I rade Unions - Queensland Branch. \h A. Forhc~ Ms Y. I)' \th and ~lr \1 Vining t or The Au,tralian ~ orJ...ers • Union of EmplO)CCS . Queens land. t-h K. Inglis for the Automoti,·e. ",,fo rnls and 1-ngineering Industrial I 1110n of l:mpl o~ees. Quc.:n,land Ms P. Scott•l lo ll and. Ms C' . Guerin and Mr S. Ross, for the Department of l.:mplo}mcnt. Vocauonal l:ducation. Trammg and lndu)tnal Rcla11ons. Mr J. Martin fo r the Austral ian Liquor. ll os pitality and ",,11scellancou, Worker) Union. Queensland Branch. Union of I mplo}ee~ Ms C. Rice tor the Reta ilers' Association of Queensland L11nitcd. l1111on of[mplo)ers. \1r B. Goodman for the B n,hane Cat) Council. Mr J Pattie for the Queensland Motel Emplo}ers Association. Industrial Orga111zation ol l.mplo~er.. Mr I'. Mc( r} ,ta! fo r the Queensland I· lcctricit) Co mmission. \lr J llard, for the <\w,tralian Mmes and Metals Association ( Incorporatcd l Mr M. Bcllield and Mr r J. Butler for the Me ta l Trades Industry \,,oc1a11on of Australia Queensland Branch. l 11100 of Ernplo~er, \11 M. Patuc and Mr C, Muir for the Queen sland (onfederat1on of I 11<.lustry I imitcd. Union of l'tnp loycrs \lr L \1oh>nc) of LI\ mg,tones :\u~traha for \li;t\\3) Corp,1ra11on I 111111ed. \lr S. Pa"lo,\,J...i for tlw Quecn, land Confcdcrauon of lndus~ I 1rnted. l nion of Emplo)crs and \u,tralian \1 mes and \lc tals As,ociation ",,1r C.D. Case) and Mr C Keller for the Shop. Distributive and \ lied l.:mplo)ces A"1'k:1auon (Queensland Branch) Lnum of I mplo)ees Mr S Nance for the Australian Sugar M1 ll 1n g Association. Queen,lanJ. l niun of l.mplo) ef) Opc rall\c Date. NIA Dcc1sion - C,cncral Ruling Superannuation Reh!a..-,cd · JO \ugust 1995 16351 I DOC J t (J I 15 September, 1995) QUEENSLAND GOVERNM ENT INDUSTRIAL GAZETTE 291 -- 4 of 4 --