AN140064 – Clerical Award - Hotels, Resorts and Certain Other Licensed Premises - State (South East Queensland) 2002
5.9.1 Application - In addition to the rates of pay prescribed by this Award, eligible employees (as defined in clause 5.9.3(b)) shall be entitled to occupational superannuation benefits, subject to the provisions of clause 5.9.
5.9.2 Contributions
(a) Amount - As from 1 January 2005 every employer shall contribute on behalf of each eligible employee an amount calculated at 9% 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:
Provided that where an employee is absent and is receiving by way of workers' compensation an amount of money no less than the award rate of pay the contribution shall be calculated at 3%.
(b) Regular payment - The employer shall pay such contributions to the credit of each eligible employee at least once each calendar month or in accordance with the requirements of the approved fund trust deed.
(c) Minimum level of earnings - As from 1 January 2005 no employer shall be required to pay superannuation contributions on behalf of any eligible employee in respect of any month during which the employee's ordinary time earnings, as defined, is less than $450.00.
(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.
(e) Other contributions - Nothing in clause 5.9 shall preclude an employee from making contributions to a fund in accordance with the provisions of the trust deed of the fund.
(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 ordinary working day upon which the contract of employment ceases to exist.
(g) No other deductions - No additional amounts shall be paid by the employer for the establishment, administration, management or any other charges in connection with the fund other than the remission of contributions as prescribed in clause 5.9.
5.9.3 Definitions
(a) "Approved fund" means a fund (as defined in clause 5.9.3(c)) approved for the purposes of clause 5.9 by the Commission as one to which occupational superannuation contributions may be made by an employer on behalf of an employee, as required by clause 5.9. Such approved fund may be individually named or may be identified by naming a particular class or category.
(b) "Eligible employee" means any employee who has been employed by the employer during 5 consecutive weeks and who has worked a minimum of 50 hours during that period. After completion of the above qualifying period, superannuation contributions shall then be made in accordance with clause 5.9.2 effective from the commencement of that qualifying period.
(c) "Fund" means a superannuation fund satisfying the Commonwealth legislation for occupational superannuation funds and satisfying the superannuation fund conditions in relation to a year of income, as specified in the relevant Act and complying with the operating standards as prescribed by Regulations made under the relevant 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" for the purposes of clause 5.9 means the actual ordinary time rate of pay the employee receives for ordinary hours of work including shift loading, skill allowances and leading hand allowances, where applicable. The term includes any over-award payment as well as casual rates received for ordinary hours of work. Ordinary time earnings shall not include overtime, disability allowances, commission, bonuses, lump sum payments made as a consequence of the termination of employment, annual leave loading, penalty rates for public holiday work, fares and travelling time allowances or any other extraneous payments of a like nature.
5.9.4 For the purposes of this Award, an approved fund means -
(a) Host Super; CARE; Sunsuper.
(b) Any named fund as is agreed to between the relevant employer/Union parties to this Award and as recorded in an approved Industrial Agreement.
(c) In the case of a minority group of employees of a particular employer, any industry, multi-industry or other fund which has been approved in an award or an agreement approved by an Industrial Tribunal whether State or Federal jurisdiction which has already had practical application to the majority of award employees of that employer.
(d) As to employees who belong to the religious fellowship known as the Brethren, who hold a certificate issued pursuant to section 115 of the Act and are employed by an employer who also belongs to that fellowship, any fund nominated by the employer and approved by the Brethren.
(e) Any fund agreed between an employer and an employee who holds a certificate issued pursuant to section 115 of the Act where membership of a fund cited in an award would be in conflict with the conscientious beliefs of that employee in terms of section 115 of the Act.
(f) 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 clause 5.9.2 on behalf of at least a significant number of that employer's employees covered by this Award as at 29 September 1989 and continues to make such contribution.
(g) The employer and employee may agree to have the employee's superannuation contributions made to an approved superannuation fund, other than those specified in this Award.
(i) Any such agreement must be recorded in writing and signed by the employer and employee and kept on the employee's file.
(ii) A person must not coerce someone else to make an agreement.
(iii) Such agreement, where made, will continue until such time as the employer and employee agree otherwise, and shall be made available to relevant persons for the purposes of sections 371 and 373 (inspection of time and wage records) of the Act.
(iv) Any dispute arising out of this process will be handled in accordance with the grievance and dispute settling procedure as contained in clause 3.1.
5.9.5 Challenge of a fund
(a) An eligible employee being a member or a potential member of a fund, as well as the Union, may by notification of a dispute to the Commission challenge a fund on the grounds that it does not meet the requirements of clause 5.9.
(b) Notwithstanding that the Commission determines that a particular fund does not meet the requirements of clause 5.9, the Commission may in 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 clause 5.9.2 up to and including the date of that determination.
(c) In the event of any dispute over whether any fund complies with the requirements of clause 5.9, the onus of proof shall rest upon the employer.
5.9.6 Fund selection
(a) No employer shall be required to make or be prevented from making, at any one time, contributions into more than one approved fund. Such fund, other than a fund referred to in clauses 5.9.4(c), (d), (e), (f) and (g) shall be determined by a majority decision of employees.
(b) Employees who are members of an established fund covered by clause 5.9.4(f) shall have the right by majority decision to choose to have the contributions specified in clause 5.9.2 paid into a fund as provided for elsewhere in clause 5.9.4 in lieu of the established fund to which clause 5.9.4(f) has application.
(c) The initial selection of a fund recognised in clause 5.9.4 shall not preclude a subsequent decision by the majority of employees in favour of another fund recognised under that clause where the long term performance of the fund is clearly disappointing.
(d) Where this provision has been utilised and as a result another approved fund is determined, access to a further re-appraisal of the fund for the purpose of favouring yet another fund shall not be available until a period of 3 years has elapsed after that utilisation of this provision.
5.9.7 Enrolment
(a) Each employer to whom clause 5.9 applies shall as soon as practicable as to both current and future eligible employees:
(i) Notify each employee of the employee's entitlement to occupational superannuation;
(ii) Consult as may be necessary to facilitate the selection by employees of an appropriate fund within the meaning of clause 5.9.4;
(iii) Take all reasonable steps to ensure that upon the determination of an appropriate fund, each eligible employee receives, completes, signs and returns the necessary application form/s provided by the employer, to enable that employee to become a member of the fund; and
(iv) Submit completed application form/s and any other relevant material to the trustees of the fund.
(b) Each employee upon becoming eligible to become a member of a fund determined in accordance with clause 5.9 shall:
(i) complete and sign the necessary application form/s to enable that employee to become a member of that fund; and
(ii) return such form/s to the employer within 28 days of receipt of the application form/s in order to be entitled to the benefit of the contributions prescribed in clause 5.9.2.
(c) Where an employer has complied with the requirements of clause 5.9.7(a) and an eligible employee fails to complete, sign and return the application form/s within 28 days of the receipt by the employee of that form/s, then that employer shall:
(i) Advise the eligible employee in writing of the non-receipt of the application form/s and further advise the eligible employee that continuing failure to complete, sign and return such form/s within 14 days could jeopardise the employee's entitlement to the occupational superannuation benefit prescribed by clause 5.9.
(ii) In the event that the eligible employee fails to complete, sign and return such application form/s within the specified period of 14 days be under no obligation to make any occupational superannuation contributions in respect of such eligible employee excepting as from any subsequent date from which the completed and signed application form/s is received by the employer.
(iii)In the event that the eligible employee fails to return a completed and signed application form/s within a period of 6 months from the date of the original request by the employer, again advise that eligible employee in writing of the entitlement and that the receipt by the employer of a completed and signed application form/s is a pre-requisite to the payment of any occupational superannuation contributions.
(iv)At the same time as advising the eligible employee pursuant to clause 5.9.7(c)(iii) submit both to the Chief Industrial Inspector, Brisbane and to the Union a copy of each letter forwarded by the employer to the eligible employee pursuant to clauses 5.9.7(c)(i) and 5.9.7(c)(iii).
(d) Where an employer fails to provide an eligible employee with an application form/s in accordance with clause 5.9.7(a)(iii) the employer shall be obliged to make contributions as from the date the employee became an eligible employee provided that the eligible employee completes, signs and returns to the employer an application form/s within 28 days of being provided with the application form/s by the employer. Where the eligible employee fails to complete, sign and return an application form/s within such period of 28 days the provisions of clause 5.9.7(c) shall apply.
5.9.8 Unpaid contributions
Subject to Chapter 11, Part 2, Division 5 of the Act and to clause 5.9.5, where the discretion of the Commission has been exercised, should it be established that the employer has failed to comply with the requirements of clause 5.9.2 in respect of any eligible employee such employer shall be liable to make the appropriate contributions retrospectively to the date of eligibility of the employee, plus an amount equivalent to the rate of return those contributions would have attracted in the relevant approved fund, or as necessary a fund to be determined by the Commission under clause 5.9.5, had they been paid on the due dates.
The making of such contributions satisfies the requirements of clause 5.9 excepting that resort to clause 5.9.8 shall not limit any common law action which may be available in relation to death, disablement or any similar cover existing within the terms of a relevant fund.
5.9.9 Exemptions
(a) An employer may apply to the Commission for exemption from all or any of the provisions of clause 5.9 in the following circumstances:
(i) Incapacity to pay the costs associated with its implementation; or
(ii) Any special or compelling circumstances peculiar to the business of the employer.
