C2002/1893, Transcript of Proceedings [2002] AIRCTrans 1662 (15 May 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER McCUTCHEON

C2002/1893

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

and

STEGBAR PROPRIETARY LIMITED (SA DIVISION)

Notification pursuant to section 99 of the Act
of an industrial dispute re superannuation

ADELAIDE

2.14 PM, WEDNESDAY, 1 MAY 2002

PN1

THE COMMISSIONER: Yes, I will take the appearances please.

PN2

MR D. KIRNER: Acting secretary, Forestry, Furniture, Building Products and Manufacturing Division of the CFMEU.

PN3

THE COMMISSIONER: Thank you, Mr Kirner.

PN4

MR C. BURRELL: I'm from the South Australian Employer's Chamber of Commerce and Industry trading as Business SA on behalf of Stegbar Proprietary Limited and with me is MR A. HOWARD who is the manufacturing manager of Stegbar.

PN5

THE COMMISSIONER: Thanks, Mr Burrell. Yes, Mr Kirner?

PN6

MR KIRNER: Yes, the union has brought this matter to the Commission as a result of being unable to resolve the dispute over superannuation. We have been able to successfully negotiate and enterprise agreement and the parties agree that superannuation will not be within the terms of the agreement but would be something that could be sorted out between the parties and like all things being sorted out between the parties, if it gets to a point where they can't, our agreement via our enterprise agreement and the award is that we would refer the matter to the Commission for conciliation which we've done.

PN7

The matter relates to clause 28 of the Glass Merchants and Glazing Contractors General South Australian Award 1998, superannuation and it effectively is about the choice of fund or the operation of superannuation funds. The award specifies that the fund that should apply at Stegbar for employees covered by the Glass Merchants Award is the SEABUS Fund or the ARF Fund and currently in place for employees up at that workplace, general agreement was reached that TIS would apply, the Timber Industry Fund, a company corporate fund and in addition I understand that the ARF Fund does apply but it does not appear that it has been promoted in any way, particularly to the membership or new employees when they come to work at the workplace.

PN8

In addition, throughout the process of establishing a broader range of funds for workers to participate in, the union put forward documents relating to TIS first and SEABUS which are industry funds and quite a significant amount of work as covered under the Glass Award would actually like to be in SEABUS. So in reading the award, the issue is predominantly for us that we would like the workers to be in SEABUS although we understand that the award says SEABUS or ARF and we are looking for some guidance in conciliation of this matter because otherwise I think we've got this state there at the moment where people are seeking to finalise their superannuation details.

PN9

It just appears to the union that the main fund the workers want to be in, the company does not want to have operating as a fund in South Australia although that the SEABUS Fund, which is the Building Union's Fund does operate in Victoria and in other States. So workers are a bit perplexed as to why they couldn't participate in a fund if people can do it interstate. The company has put to us that they don't want to have too many funds. So we really do need to have some conciliation on this matter to try and reach an agreed position, Commissioner. Thank you.

PN10

THE COMMISSIONER: Just looking at the award, it defines the fund as meaning the SEABUS Fund or Australian Retirement Fund.

PN11

MR KIRNER: Yes.

PN12

THE COMMISSIONER: There's no exempt fund that applies to this employer because their name isn't contained in the list, clause 28.8.

PN13

MR KIRNER: Yes, that is correct.

PN14

THE COMMISSIONER: So does that not limit the choice of the employees to either of those two funds?

PN15

MR KIRNER: Yes, I suppose it does in terms of the award but what has happened there as well is that some of the other industry funds that apply such as TIS and the timber industry workers is again an industry fund that people may wish to become members of but, yes, you are correct. Our question is this I suppose is that the issue of SEABUS or ARF, we can't really find in the document who determines which of the funds it is because you have the workers on the one hand wanting to be in SEABUS and the employer not wanting to be in SEABUS and wanting to be in ARF but, you know, that causes some degree of problem for us particularly as SEABUS is so well known.

PN16

The workers think it is a good fund but it is, you know, it does appear to the workers that it is being withheld for a reason we are not completely clear on. It seems to be to me that ARF is not promoted in any way, shape or form to any great degree to employees when they start with the company though I would stand to be corrected on that.

PN17

THE COMMISSIONER: Well, have a look at clause 28.1.4, it says - it is a definition of clause I think - and it says:

PN18

Participating employer shall mean an employer who has signed a deed of adherence to the trust deed of a fund in 28.1. above.

PN19

Now, do you know if Stegbar have signed a deed of adherence?

PN20

MR KIRNER: I understand they have signed a deed of adherence to ARF but I'm not aware - there was some dispute - the union believe that the company had agreed to go into SEABUS but then when people actually tried to approach to sign trust deeds, the company advised the union that they had not in fact agreed to go into SEABUS.

PN21

THE COMMISSIONER: The way the award reads, it seems to me is the - I won't be held to this - but it seems to me as the employer decides which fund it wishes to apply to for a deed of adherence then tells you which one it has.

PN22

MR KIRNER: Yes.

PN23

THE COMMISSIONER: I think that might be a title, 28.2.2, it says - over the page:

PN24

The employer shall the union of the fund as defined in 28.1.1 into which contributions are being made.

PN25

Then it has to enrol all employees into that fund with the exception of those earning less than 450 in a calendar month.

PN26

MR KIRNER: Yes. So I suppose that if it was purely on the award, then the company fund would have to cease to operate and all workers under that award would then need to go into ARF.

PN27

THE COMMISSIONER: Yes.

PN28

MR KIRNER: Yes. That is why - if there is some room to reach agreement around, you know, legitimate realistic choices of funds, then that is one issue but if we are going to play by the award and it says, "No company fund", then that is another issue that needs to be countenanced clearly.

PN29

THE COMMISSIONER: If you want TIS, you are going to have to vary your award anyway.

PN30

MR KIRNER: Yes, TIS applies only to those workers under the Timber Industry Award and they are all in the CFMEU and the CFMEU has now integrated a forestry division and a furniture division. They are - the company is clearly offering TIS to workers in that award. The Metal Industry workers and the Glass Industry workers are under the Glass Industry Award via an EBA which names that award and subsequently if the award were to apply, it might mean that the company fund becomes defunct and ARF becomes the operating fund because it does not seem to be that realistically - and I'm not being critical of the company for what they have done - but I don't think that they have been going up to workers and saying: you can be in the ARF, or I think it has been more that: you are in the corporate company fund, and I just think, you know, that is not accurate to do that.

PN31

THE COMMISSIONER: Well, unless the company is a successor to any of the people named in clause 28.8, it looks like they are the only ones to go into an exempt fund.

PN32

MR KIRNER: Yes, yes. I mean, the union is in a position where we have a group of workers, good members of the union, who see the other members in the glass industry in SEABUS and that is where a lot of them would like to go. I think the company is perhaps a bit fearful of SEABUS and does not want SEABUS set up because it is a likely fund for people to go into which is why the choice is being withheld in South Australia because in other States, members of the glass union are in SEABUS.

PN33

THE COMMISSIONER: Has the union provided its members with some sort of comparative analysis which is the better fund?

PN34

MR KIRNER: Yes, and that is - not of first and also of SEABUS and we've had coordinators go down and executive officers from - first executive officer and coordinator from SEABUS, the State Coordinator, Derek Stapleton, made a comparison of the fund and the problem that the workers seem to have with it is it is not responsive, the company fund. They don't have a person who will come down quickly, they have concerns over interest rates and potentially there is a greater range of choices in some of the bigger funds like SEABUS which are billion dollar funds as opposed to $700 million fund.

PN35

Now, the union has not said to anyone: you have to be in a fund to the extent that we will tell you what you have to do in this case. We've been quite flexible saying, you know, if someone is in the corporate fund and they want to be in it, you know, that is an issue that is realistic. We are not going to force people but I don't think the same flexibility is realistically being extended to the union. That then at some point may well revert back to the award issues and, you know, that seems the company fund in my opinion, if you read through the award, is in jeopardy.

PN36

THE COMMISSIONER: But your EBA that you entered into is silent on superannuation.

PN37

MR KIRNER: The company - - -

PN38

THE COMMISSIONER: Takes you straight back to the award?

PN39

MR KIRNER: Yes. The company said it does not superannuation in the EBA.

PN40

THE COMMISSIONER: Right.

PN41

MR KIRNER: That is why we had to go to the Commission.

PN42

THE COMMISSIONER: Yes.

PN43

MR KIRNER: I will say I would swear black and blue that the managing director of the company throughout Australia indicated to me that he didn't have a problem with SEABUS which I took to mean that it was okay to go and get SEABUS in. He subsequently said his view was only that he didn't have a problem with it, not that he thought he would sign off on it. It has caused some consignation down there, you know, people aren't sure who they should be believing. So it really is getting quite complicated. I think there's some simple solutions which is the company sign off in SEABUS. We say that is fine, you can maintain operation of your company fund. Workers, when they turn up to the company, should receive all relevant membership application forms, not simply the company fund.

PN44

We can go from there but there seems to be a pretty dug and entrenched view against SEABUS from the company and I just think that that is the nut of my problem, if I was trying to get a resolution through conciliation, I would just say: look, can the company sign off on SEABUS. We will accept your rights to operate your company fund but we would like to have SEABUS and then let competition sort out what is the better fund because the workers don't want to be railroaded into - - -

PN45

THE COMMISSIONER: They also don't want to be chopping and changing.

PN46

MR KIRNER: No, they don't want that. That is why we have actually said to people: don't change your fund until we sort out this issue. I've gone forward and I've had to put the brakes on, I've gone forward but they are members of a long standing - who have a long standing relationship with the union, they are very good union members and the union will see it through until we believe that there's sort of a just resolution and I still maintain that the company should extend out a little more on offering SEABUS and then we don't have a problem.

PN47

THE COMMISSIONER: All right.

PN48

MR KIRNER: Thank you.

PN49

THE COMMISSIONER: Mr Burrell, at the outset, can you tell me how contributions can be made pursuant to this clause to a company fund?

PN50

MR BURRELL: Commissioner, it is my understanding that when an employee comes on at Stegbar, they are given a choice of four funds, there's a choice of four funds which include the ARF, the Australian Retirement Fund. It includes the corporate fund which I think is called AMCORP, there's the STA which is the Superannuation Trust of Australia and there's also the TIS fund. Now, as has already been alluded to, there has been an agreement that has been reached in a sense with the CFMEU and Stegbar about the provision of the - or making available access to the corporate fund.

PN51

However, as I said, what my understanding is, is that the Stegbar company actually has for a number of years and I've been advised by Mr Howard that ever since he has been at that company, which has been for some 10 years, that the ARF has always been put forward to employees from the start that this is one of the funds that you can choose from. I'm not necessarily right now in a position to be able to tell you where they've got the - under what status they have been able to get the legal - I suppose I say the right to put forward the company fund. I would have to seek some further - - -

PN52

THE COMMISSIONER: We might have to do that.

PN53

MR BURRELL: - - - to seek some further advice from Mr Howard on that.

PN54

THE COMMISSIONER: What is worrying me is that the company might be comfortable for employees to be paying into the company fund but unless there is an ability in the clause for the employee's to do so, they might be able to double-dip. They might be able to say: well, that is not the fund named in the award. We now want ARF.

PN55

MR BURRELL: The super fund paid into that. Yes, I'm not - - -

PN56

THE COMMISSIONER: Now, the other question to you is what fund has the company signed a deed of adherence to?

PN57

MR BURRELL: The company has signed a deed of adherence to the Australian Retirement Fund. I understand that in some of the other States, Stegbar has signed deeds in relation to SEABUS, in relation to those States but in relation to the State of South Australia and the company here, the only deed which is entered into is with the Australian Retirement Fund. Obviously from our perspective, leaving aside the issue that you have raised in relation to the company fund, that would therefore - that part complies with the provisions of the award in that the employer has applied to and signed a deed and become a participating employer with one of the two funds, the SEABUS one, or ARF. It has done that and it is - as I said it has been doing it for at least 10 years, from what I've been advised and so it is therefore complying and fulfilling its obligations under the provisions of the award.

PN58

THE COMMISSIONER: Well, those people who have payments paid to ARF?

PN59

MR BURRELL: Yes. However, as I said on the issue of the company fund, it may be that the company fund is one that has been established under one of the other awards that is applicable at the organisation and there's been some - I'm not quite sure. As I said, I would have to seek further advice.

PN60

THE COMMISSIONER: Have you had any discussions - this isn't a reflection on Mr Howard - but have you had any discussions with the secretary of the company because they are usually the people who - - -

PN61

MR BURRELL: No, I haven't. I haven't as yet, Commissioner.

PN62

THE COMMISSIONER: They are usually the people who deal with these things.

PN63

MR BURRELL: No, we've had a general discussion about obviously gaining enough information to at least be able to try and come here today to find out what the issue was because as you are aware, the application that was forwarded, I mean for a start we didn't receive it, Stegbar didn't receive a copy of it. It actually wasn't served on them and secondly, all it says is that the issue is just regarding superannuation. So it was very vague and from my discussions with Mr Howard, we were able to try to get a bit of an idea on maybe what the issue was but at the same time we just weren't quite sure exactly what the matter was that would be here before the Commission today to finalise.

PN64

THE COMMISSIONER: Well, I think in those circumstances I've got to give you some time to go away and do some homework.

PN65

MR BURRELL: We would be happy to do that.

PN66

THE COMMISSIONER: It seems to me that to comply with the award in such a fashion that would satisfy Mr Kirner and his members possibly, and I'm not making this is a recommendation but I just float it for consideration, would be for the company to become a participating employer in respect of SEABUS and ARF and when new employees started, each was handed - and SEABUS and ARF may have to provide this for you, it wouldn't be your obligation - but each employee is handed it and say: well, you have got a week mate, to sort out which fund you want to be in.

PN67

MR BURRELL: I think, if I may Commissioner, that we would put to the Commission that the company is complying with the provisions award, I mean it has made the choice. I think the question which you rightly pointed out is the issue about the company fund and how it sits within the scheme of it and we would obviously put to the Commission that actually the company has made a choice, the choice that was made was that of ARF. It is therefore complying with the award but again it goes - - -

PN68

THE COMMISSIONER: Yes, well, you may be right.

PN69

MR BURRELL: Yes.

PN70

THE COMMISSIONER: I think in the adjournment, Mr Kirner is going to have to look at, was it the intention of the award maker that the employer was the only one who got the choice.

PN71

MR KIRNER: Yes. We consider that an unanswered question.

PN72

THE COMMISSIONER: Yes.

PN73

MR KIRNER: The industry standard has been SEABUS but again, if we are going to go just back to flat awards, it does not provide that a company fund shall operate.

PN74

THE COMMISSIONER: I've made that point to Mr Burrell.

PN75

MR KIRNER: Yes, for glass industry or workers under that award and I think the company needs to look, in my opinion, seriously that all the union is asking for is that our workers can get into an industry standard fund. They don't want to be in the clerical funds, they want to be in the building industry funds.

PN76

THE COMMISSIONER: Yes. Do I take it from what you are saying to me, Mr Kirner, that this is a multi-award site.

PN77

MR KIRNER: We've got it down to two awards from three awards in the manufacturing area through enterprise agreements and a sort of common set of conditions and wage rates. So there's really two awards in operation there in manufacturing now, Glass Merchants and Glazing Contractors and the Timber and Allied Industry Award.

PN78

THE COMMISSIONER: Well, that is the other part of the equation you are going to have to look at because that is the TIS fund, T-I-S.

PN79

MR KIRNER: Yes, and in respect of that, those workers who have access to TIS through their award, we haven't gone the full distance on that because they have basically said: look, we understand that we have a right to be in TIS because the company signed off on TIS.

PN80

THE COMMISSIONER: Yes.

PN81

MR KIRNER: So the real problem is with the Glass Merchants and Glazing Contractors Awards which applies to the metal workers and glass workers on site and they want to try and get SEABUS as their operating fund.

PN82

THE COMMISSIONER: Now, the metal workers you say that are on site, so the Metal Industry Award?

PN83

MR KIRNER: No, that was superseded and they are now under the Glass Industry Award through the enterprise agreement.

PN84

THE COMMISSIONER: Right. Well, the only reason I raise all of that is that I would have thought from a practical commonsense point of view, it is undesirable to have a proliferation of funds with the employer through the one pay office having to deal with it.

PN85

MR KIRNER: There is another award as well that applies to, Commissioner, which is that National Joinery and Building Trades Products Award.

PN86

MR BURRELL: Yes, correct.

PN87

MR KIRNER: So there's three awards and it has obviously got some definitions about approved fund and stuff is in it as well.

PN88

THE COMMISSIONER: Well, Mr Burrell, if I give you some time to go away and get some instructions, would you then be prepared to meet with Mr Kirner?

PN89

MR BURRELL: I'm happy to meet and have a discussion.

PN90

THE COMMISSIONER: What sort of timetable would you be looking at?

PN91

MR BURRELL: Well, as you said, Commissioner, there will be certain people who we will have to get in touch with and obviously it will depend on what their timetables and diaries are like.

PN92

THE COMMISSIONER: Yes.

PN93

MR BURRELL: I would hope that we might be able to try and at least have a discussion with them before the end of this week to try at least get some documentation information, particularly as I see it, there is sort of the two issues. There is the issue about what responsibility the employer has to do in relation to the super funds under here as in choosing between either SEABUS or ARF and how that applies and if I can - I think I'm getting the feeling of who has the right to choose those funds.

PN94

THE COMMISSIONER: Yes, that is going to be an issue.

PN95

MR BURRELL: Then there's the separate issue of where does the whole company fund sit within that structure and how is that applicable and how does that therefore interact with the award provisions.

PN96

THE COMMISSIONER: It is interesting, I've noted a couple in the financial review quite recently, some of the bigger companies are trying to quit their funds and hand them over to be completely managed by a third party. I think Coles Myer and One-Steel are two of the - there seems to be a new trend in superannuation. My associate has given me two dates, Friday 10 May at 11.30 or Thursday 16 May at 10.30. It might be safer to take the 16th.

PN97

MR BURRELL: That is next Friday, I think that might be - - -

PN98

THE COMMISSIONER: Right, the 16th is further away.

PN99

MR KIRNER: The 16th is a Thursday.

PN100

THE COMMISSIONER: Yes, 10th is next Friday. The 16th is the following Thursday.

PN101

MR BURRELL: I'm happy to take whichever date is convenient for you, Commissioner.

PN102

THE COMMISSIONER: I think the 16th will give you a little bit of flexibility, for you to get your information, talk to Mr Kirner, I will list it for the 16th at 10.30. If you have resolved it, you can vacate that time but if you do resolve it, resolve it in writing by way of exchange of letters and get me to put a copy of that in this file.

PN103

MR BURRELL: Okay.

PN104

THE COMMISSIONER: So there's a third location for the letter.

PN105

MR BURRELL: Yes, no problem.

PN106

THE COMMISSIONER: All right?

PN107

MR BURRELL: That is fine, Commissioner.

PN108

THE COMMISSIONER: All right, gentlemen. The proceedings stand adjourned until 16 May at 10.30. Thank you.

ADJOURNED UNTIL THURSDAY, 16 MAY 2002 [2.38pm]