TRANSPORT INDUSTRY - MIXED ENTERPRISES
(STATE) SUPERANNUATION AWARD
INDUSTRIAL
RELATIONS COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.
(No. IRC 1335
of 2001)
Before the Honourable Justice Marks
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10 August 2001
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REVIEWED AWARD
1. AWARD TITLE
2. ARRANGEMENT
Clause
No Subject Matter
1. Award Title
2. Arrangement
3. Anti-Discrimination
4. Area, Incidence And Duration
5. Definitions
6. Contributions
7. Choice of Fund
8. Failure of Employer to Participate in a
Fund
9. Failure of Employee to Participate in a
Fund
10. Exemptions
11. Leave Reserved
3. ANTI-DISCRIMINATION
3.1 It is the intention of the parties bound
by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act, 1996 to
prevent and eliminate discrimination in the workplace. This includes
discrimination on the grounds of race, ex, marital status, disability,
homosexuality, transgender identity and age.
3.2 It follows that in fulfilling their
obligations under the dispute resolution procedure prescribed by this award the
parties have obligations to take all reasonable steps to ensure that the
operation of the provisions of this award are not directly or indirectly
discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award, which, by its terms or operation, has a direct or indirect
discriminatory effect.
3.3 Under the Anti - Discrimination Act, 1977,
it is unlawful to victimise an employee because the employee has made or may
make or has been involved in a complaint of unlawful discrimination or harassment.
3.4 Nothing in
this clause is to be taken to affect:
3.4.1 any conduct or act which is specifically exempted from
anti-discrimination legislation;
3.4.2 offering or providing junior rates of pay to persons under 21
years of age;
3.4.3 any act or practice of a body established
to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act, 1977; or
3.4.4 a party to this award from pursing matters
of unlawful discrimination in any State or federal jurisdiction.
3.5 This clause does not create legal rights
or obligations in addition to those imposed upon the parties by the legislation
referred to in this clause.
Notes:
(a) Employers and employees may also be subject to Commonwealth
anti-discrimination legislation.
(b) Section 56(d) of the Anti-
Discrimination Act 1977 provides:
"Nothing in the Act
affects...any of the act or practiced of a body established to propagate
religion that conforms to the doctrines of that religion or is necessary to
avoid injury to the religious susceptibilities of the adherents of that
religion."
4. AREA, INCIDENCE AND DURATION
4.1 This award shall apply to employees
employed in a mixed enterprise, as defined in clause 5, definitions, and who
are:
(a) within the classifications set out in
the awards referred to in schedule A to this award, or any awards rescinding,
replacing or succeeding those awards; and
(b) within the jurisdiction of the
conciliation committees referred to in the said schedule A where such a
conciliation committee exists.
4.2 This award shall also apply to employers
in respect of their employees who are within the "Part A"
classifications only set out in clause 6, Rates of Pay, of the Milk Treatment
& c., Distribution (State) Award published 5 July 1978 and reprinted 15 May
1985 (237 I.G. 669) as varied from time to time.
4.3 This award has been reviewed pursuant to
section 19 of the Industrial Relations Act 1996 and the Principles for Review
of Awards, a decision of the Industrial Relations Commission of NSW made on 18
December 1998, (308 I.G. 307). It
rescinds and replaces the Transport Workers Mixed Enterprises (State)
Superannuation Award published 16 February 1990 (254 I.G 877) and all
variations thereof, which took effect on and from 18 August 1989. This award shall take effect from 10 August
2001 and shall remain in force until varied or rescinded, the period for which
it was made having already expired.
5. DEFINITIONS
5.1 "Mixed Enterprise" means an employer's
enterprise carried on for the purpose of the production, treatment,
distribution or provision of articles, goods, merchandise, materials, the
production, treatment distribution or provision whereof is not mainly
attributable to or mainly dependent upon the word performed by transport
workers employed but in which the work performed by transport workers is
subsidiary or auxiliary to the carrying on of the enterprise.
5.2 "The TWU Fund" shall mean the
TWU Superannuation Fund, established by Trust Deed and Articles on 4 October
1984.
5.3 "ÁSSET"
shall mean the Australian Superannuation Savings Employment Trust.
5.4 "Approved Fund" shall mean a
Superannuation fund, which has been approved in accordance with the
Commonwealth Operational Standards for Occupational Superannuation Funds.
5.5 "Eligible employee" shall mean
either a weekly employee who has been employed by the employer for 152 ordinary
hours of service or a casual employee who has completed 20 starts in any
twelve-month period of employment with the employer.
5.6 "Ordinary-time earnings" shall
mean the employee's award classification rate (including casual loading where
relevant), overaward payments and shiftwork loadings where applicable. Provided that it shall not include overtime,
meal money, occasional bonus payments, or any other ancillary payments of a
like nature prescribed by the award.
6. CONTRIBUTIONS
6.1 Subject to clauses 9, Failure of
Employee to Participate in a Fund, and 10, Exemptions, an employer shall
contribute to a superannuation fund which complies with the Occupational Superannuation Standards Act 1987
(the Act) and the Occupational
Superannuation Standards Regulations (the Regulations) on behalf of each
eligible employee a superannuation contribution equivalent to 3 per cent of
such eligible employee's ordinary time earnings from the beginning of the first
pay period to commence on or after 18 August 1989, provided that:
6.2 6.2.1 Upon completion of the qualifying periods
specified in clause 5, definitions, contributions on behalf of each eligible
employee shall apply from the date of the employee's commencement of employment
with the employer subject to the operative date of this clause.
6.2.2 The benefits offered by the fund selected
in accordance with clause 7, Choice of Fund, of this award and of which the
employee is a member, may be improved such that the improvements are equivalent
to the value of contributions required to be made by 6.1 and are in accordance
with the Act and Regulations.
6.2.3 Any employer who was, prior to 18 August
1989, making contributions for eligible employees in accordance with the
provisions of another award or registered industrial agreement, which provides
superannuation benefits, may continue to contribute in accordance with those
provisions.
6.3 The contributions required by this
award, shall be made to the relevant fund selected in accordance with clause 7,
Choice of Fund, in the manner and at the times specified by the terms of the
fund or any agreement between the employer and the Trustees of the fund.
6.4 Paid Leave - Contributions shall
continue whilst a member of a fund is absent on paid leave such as annual
leave, long service leave, public holidays, jury service, sick leave,
bereavement leave and personal/carer's leave.
6.5 Unpaid Leave - Contributions shall not
be required to be made in respect of any absence from work without pay.
7. CHOICE OF FUND
7.1 An employer shall apply to the Trustee
of an approved fund to become a participating employer in that fund.
7.2 Any employer who is or becomes a
participating employer in accordance with 7.1 within three months from the date
of operation of this award shall be exempt from the provisions of 7.3.
7.3 The funds
into which contributions shall be made are:
(a) TWU Superannuation Fund; or
(b) ASSET
8. FAILURE OF EMPLOYER TO
PARTICIPATE IN A FUND
Where an employer has failed to make application to
participate in an approved fund, the employer shall make application to
participate in such fund and upon acceptance by the Trustee shall make an
initial contribution to such fund, in respect of each eligible employee,
equivalent to the contributions which would have been payable under this award,
had the employer make application to participate in such fund and been accepted
by the Trustee prior to the operation of this award after which the employer
shall then continue to make payments as prescribed by this award. Other than for back payment of
contributions, the employee shall not be entitled to:
(a) interest on
contributions; and/or
(b) death and
disability cover,
until such time as the employer becomes a member of such
fund that is the date of acceptance by the trustees.
9. FAILURE OF EMPLOYEE TO
PARTICIPATE IN A FUND
An employer shall not be liable to contribute on behalf of
any employee who refuses to sign any application from as required by the
Trustee of an approved fund. Such
refusal shall be in writing, notwithstanding that the employee can at any time
apply to have contributions commencing upon becoming a member of the fund. Provided further that where an employee is a
member of the Transport Workers' Union, such Union shall be notified of the
employee's refusal.
10. EXEMPTIONS
This award does not apply to the Broken Hill Proprietary
Company Limited or Tubemakers of Australia Limited, or any corporation which is
a related corporation (within the meaning of the Corporations Law) of either
the Broken Hill Proprietary Company Limited or Tubemakers of Australia Limited.
11. LEAVE RESERVED
11.1 Leave is reserved to any party bound by
this award to apply in Matter No. 687 of 1989 in respect of any unforeseen
circumstances not contemplated by the parties at the time of making this award.
11.2 Leave is reserved for any employer, who
was not an employer bound by this award as at 18 August 1989, to apply for
exemption from 7.3.
11.3 Leave is reserved to any employer to apply
for exemption from the provisions of clause 7, Choice of Fund, on the grounds
of the standard of existing superannuation arrangement provided by the employer
or the employer's financial capacity to pay.
11.4 Leave is reserved for the parties to vary
this award to allow for occupational superannuation for employees covered by
the Transport Industry - Retail (State) Award, as varied.
SCHEDULE A
Award
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Industrial Committee
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Transport Industry
(State) Award published 20 April
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Transport Industry (State) Industrial Committee
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2000 (315 IG
192), as varied.
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Transport Industry -
Mixed Enterprises (Interim) State
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Transport Industry Mixed Enterprises (State)
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Award published
17 July 1992 (270 I.G. 550) as
varied.
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Industrial
Committee
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Transport Industry -
Armoured Cars &c., (State) Award
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Transport Industry (State) Industrial Committee
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published 14 June 1978 (209 IG 3791) reprinted (232
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IG 1242)
published, 22 February 1984, as varied.
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Transport Industry -
Petroleum &c., and Distribution
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Transport Industry (State) Industrial Committee
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(State) Award
(285 IG 155) published 13 April
1995, as
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varied.
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Transport Industry -
Trade Waste (State) Award,
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Transport Industry - Trade Waste (State) Industrial
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published 18 September 1998 (306 IG 707), as varied.
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Committee
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Transport Industry -
Wholesale Butchers (State) Award
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Transport Industry - Wholesale Butchers (Country)
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published 12 November 1993 (227 IG 186), as varied.
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Industrial
Committee and Transport Industry -
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Wholesale Butchers (Cumberland) Industrial
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Committee
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Transport Industry -
Wood and Coal (State) Award,
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Transport Industry - Wood and Coal (State)
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published 19 April 1978 (209 IG 609) and reprinted (232
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Industrial
Committee
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IG 2055)
published 28 March 1984, as varied.
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Ice Cream Carters
and Van Salesman (State) Award
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Milk Treatment &c., and Distribution (State)
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(276 IG 140) published 13 August 1993,
as varied.
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Industrial
Committee
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F. MARKS J.
____________________
Printed by
the authority of the Industrial Registrar.