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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 Marks10 August 2001
REVIEWED AWARD 1. AWARD TITLE
Transport Industry - Mixed Enterprises (State) Superannuation Award
2. ARRANGEMENT
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 | Industrial Committee |
 | |
| Transport Industry (State) Award published 20 April | Transport Industry (State) Industrial Committee |
| 2000 (315 IG 192), as varied. | |
| |
| Transport Industry - Mixed Enterprises (Interim) State | Transport Industry Mixed Enterprises (State) |
| Award published 17 July 1992 (270 I.G. 550) as varied. | Industrial Committee |
| |
| Transport Industry - Armoured Cars &c., (State) Award | Transport Industry (State) Industrial Committee |
| published 14 June 1978 (209 IG 3791) reprinted (232 | |
| IG 1242) published, 22 February 1984, as varied. | |
| |
| Transport Industry - Petroleum &c., and Distribution | Transport Industry (State) Industrial Committee |
| (State) Award (285 IG 155) published 13 April 1995, as | |
| varied. | |
| |
| Transport Industry - Trade Waste (State) Award, | Transport Industry - Trade Waste (State) Industrial |
| published 18 September 1998 (306 IG 707), as varied. | Committee |
| |
| Transport Industry - Wholesale Butchers (State) Award | Transport Industry - Wholesale Butchers (Country) |
| published 12 November 1993 (227 IG 186), as varied. | Industrial Committee and Transport Industry - |
| Wholesale Butchers (Cumberland) Industrial |
| Committee |
| |
| Transport Industry - Wood and Coal (State) Award, | Transport Industry - Wood and Coal (State) |
| published 19 April 1978 (209 IG 609) and reprinted (232 | Industrial Committee |
| IG 2055) published 28 March 1984, as varied. | |
| |
| Ice Cream Carters and Van Salesman (State) Award | Milk Treatment &c., and Distribution (State) |
| (276 IG 140) published 13 August 1993, as varied. | Industrial Committee |
F. MARKS J.
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Printed by the authority of the Industrial Registrar.
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