C2002/970, Transcript of Proceedings [2002] AIRCTrans 1149 (8 April 2002)

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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT03115
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WILLIAMS

C2002/970

TEXTILE, CLOTHING AND FOOTWEAR
UNION OF AUSTRALIA

and

PACIFIC BRANDS CLOTHING
and ANOTHER

Notification pursuant to section 99 of the Act
of a dispute re payment of superannuation

MELBOURNE

2.21 PM, THURSDAY, 21 MARCH 2002

Continued from 7.3.02

PN193

THE SENIOR DEPUTY PRESIDENT: Yes. Are there any changes in appearances in the matter?

PN194

MS WILES: No, no, your Honour.

PN195

THE SENIOR DEPUTY PRESIDENT: Thank you. I think Mr Dalton appeared on the last occasion.

PN196

MS WILES: Oh, yes, I apologise.

PN197

MR PRUCKNER: Yes. No, he is not, he won't be attending today.

PN198

THE SENIOR DEPUTY PRESIDENT: What is the position, Ms Wiles?

PN199

MS WILES: Thank you, your Honour. Following on from the hearing that was here last time, the parties did meet just the Monday just gone on 18 March. To summarise, the union indicated to the company that in terms of any decision about agreeing to an exemption that it wanted before quite detailed information about the Mercer Trust and the information package that had been given to workers previously. We received a copy of the information package later that afternoon by courier and then the trust deed, which is quite a substantial document, on the next day.

PN200

It is the union's intention to obtain a professional analysis of those documents and part of that would be obviously a comparison between the trust deed and any deed that the ARF operates. In terms of the ARF, it is our understanding that they have conducted information sessions at Reid Street in Fitzroy, at Candy Australia in Geelong and at Holeproof at Nunawading.

PN201

Some of the issues that have arisen since we were here last is that some members have told us that they initially thought that they had to join the Mercer Trust, that in the absence of the ARF sessions and any information by the ARF they believed that it was kind of a just a - pretty much a rollover situation and that they - or some of those people have indicated they will be coming out of the Mercer Trust and going into the ARF fund, accumulation fund.

PN202

That brings us to an issue of exit fees. It is my understanding - and I may be corrected about this - but there is an exit fee of, I think, $88 from leaving the Mercer Trust and, in our view, that is a fee that should be borne by the company in these circumstances. Our view in relation to that is that, given that we have been in dispute with the company for some time, that we have requested information since December, and that the ARF did not have an opportunity to speak to employees in the workplace, that for those people initially elected to go into the Mercer Trust, but have now indicated they want to move out of the Mercer Trust into the ARF, they will be subjected to an $88 exit fee and that that fee should be borne by the company.

PN203

So we would be looking for some agreement by the company today or in the near future in relation to that issue. Another issue that has come to our attention is a letter which has been sent by the company to employees dated 14 March 2002, and unfortunately, your Honour, I have left a copy of the letter back in the office. I do apologise for that. But basically to summarise, the letter summarises the situation and the fact that there is a dispute between the union and the company in relation to superannuation. But the last sentence actually says:

PN204

Once you have had the opportunity to attend both information sessions and have made a decision regarding which fund you wish to join, please indicate your choice in writing on the attached form.

PN205

Again, we don't have a copy of the attached form, but the organiser has seen one. Our view about that is that that sentence is inappropriate in the current - in the context of the current dispute. The parties did meet for the first time on Monday and the union is obtaining professional analysis of the Mercer documentation and the decision as to whether an exemption is appropriate has not been made.

PN206

So in that context we think that sentence is inappropriate. It creates an impression that members merely indicate to the company whether - which fund they are going to go into and in the current environment there are other issues, as you are aware, in terms of the union making an exemption or not. In respect to the information that the union has received, currently we have only really had an opportunity to look at the kind of information package that has been given to members.

PN207

And we have only had a cursory look at that at this stage, but some of the issues that arise are that in terms of a comparison between the Mercer Trust and ARF we can say that both of the funds have the same administration weekly fee of a dollar. It appears that Mercer charges significantly higher exit fees. It appears to have higher management fees, and it also charges fees for switching between investment options.

PN208

So at this stage obviously the union is not in a position to make a decision about the exemption and we are awaiting a full analysis of the trust deed itself. We are hoping to get that some time next week and at that stage we would obviously be meeting, or seeking to meet with the company again to put our position in relation to that.

PN209

I think at the last hearing there was an issue about employees who had to find benefits arrangements and we have received some information from the company which indicates that I think approximately 87 employees across Holeproof and Candy have to find benefits arrangements. And that is broken down into 12 employees at the Reid Street site, 59 employees at Holeproof, Nunawading, and 28 employees at Candy Australia.

PN210

So I think you will recall from the last hearing that was a distinct group of people for whom there were concerns about their capacity to move out of a defined benefit arrangement. Your Honour, I might leave it there at this stage and I am happy to answer any questions you might have about the progress so far in relation to resolving the dispute.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Pruckner.

PN212

MR PRUCKNER: I happy to agree with basically everything Ms Wiles has said. In respect to the exit fee, my understanding is there is no exit fee. So we will need to go back and refer that and would like to establish where they have obtained that information and also be given the opportunity to go back to Mercer's to confirm that. Should that be the - an exit fee be the case, then we are happy to consider the company covering the exit fee under the circumstances.

PN213

In respect to the letter to the employees and the attached form, one of the issues that arose out of our discussions at our last meeting in conference was in respect to employees wishes to stay in the company fund and what steps the company would be taking should an exemption not be granted. Our attempt to establish how many employees wished to join the company fund will have a - that information will have a big impact on the company's position going forward should an exemption not be granted, and that is why we were trying to establish that level of detail.

PN214

In respect to the time required to analyse the information, we have no objection to providing any further time. The union can take as much time as they require.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Is there anything else you want to say, Ms Wiles, at this stage?

PN216

MS WILES: Your Honour, not at this stage unless, as I say, there is anything that you require clarification about or have any questions generally.

PN217

THE SENIOR DEPUTY PRESIDENT: What do you seek to have happen now with this matter that is before me?

PN218

MS WILES: Your Honour, given that there is quite a large amount of information to be analysed and we will need a bit of time to do that with some professional advisers, maybe the best thing to do is to, I don't know, list it for report-back at some point in the future in relation to that.

PN219

THE SENIOR DEPUTY PRESIDENT: We have to bear in mind that Easter will intervene. Would late one afternoon on week commencing 8 April be suitable?

PN220

MS WILES: Your Honour, that is fine with me.

PN221

THE SENIOR DEPUTY PRESIDENT: I was going to suggest 4.30 on the 10th.

PN222

MR PRUCKNER: Yes, that is suitable.

PN223

THE SENIOR DEPUTY PRESIDENT: Well, the matter will be listed for report, for further report at 4.30 on 10 April 2002. And I anticipate that in the meantime in essence the status quo continues and no - or perhaps I should put it this way, that it might be advisable if the parties jointly made the employees aware that at this stage no exemption has been granted to any, what I might call company fund, and that the information that is being sought by the employer is purely for the purpose of seeking to ascertain where it will go should an exemption not be granted.

PN224

In relation to the question of the exit fee, I hear what Mr Pruckner says and no doubt that matter can be clarified and further discussions can be held with the union about that issue. If for some reason the parties are not in a position to progress the matter further before that report-back and wish to have further time, then they should contact my chambers and that time and date can be vacated in favour of another time and date. Otherwise the matter is adjourned until 4.30 pm on 10 April for report. The Commission is adjourned.

ADJOURNED UNTIL WEDNESDAY, 10 APRIL 2002 [2.33pm]