AN160080 – Clerks' (Wholesale & Retail Establishments) Award No. 38 of 1947
The superannuation provisions contained herein operate subject to the requirements of the hereinafter prescribed provision titled - Compliance, Nomination and Transition.
(1) Definitions:
In this clause:
(a) "Approved Occupational Superannuation Fund" means a superannuation fund which complies with the Occupational Superannuation Standards Act, 1987.
(b) "Fund" means:
(i) the Clerical, Administrative and Retail Employees' Superannuation Plan; or
(ii) Westscheme; or
(iii) any other approved occupational superannuation fund; or
(iv) any other approved occupational superannuation fund to which an employer or employee who is a member of the religious fellowship known as Brethren elects to contribute.
(c) "Ordinary Time Earnings" means the base classification rate, including supplementary payments where appropriate, in charge rates, shift penalties and any overaward payments, together with any other all purpose allowance or penalty payment for work in ordinary time and shall include in respect to casual employees the appropriate casual loadings prescribed by this award, but shall exclude any payment for overtime worked, vehicle allowances, fares or travelling time allowances (including payments made for travelling relating to distant work), commission or bonus.
(d) "Eligible Employee" means an employee whose employment is regulated by this Award, who has completed one month's continuous service with the employer, who becomes a member of the fund, and for whom 3% of ordinary time earnings equals $2.00 per week or more. The sum of $2.00 shall be increased to correspond to increases in administrative charges in Westscheme from time to time.
(e) "Trustee" means the trustee of the relevant fund.
(2) Choice of Fund:
(a) Existing employers as at the date of this order must notify the Union of the fund in subclause (1)(b)(iii) to which they intend to contribute and the date of commencement of contributions.
(b) The Union must be notified in writing of the choice of fund and the date of commencement of contributions referred to in paragraph (a) within 30 days of the date of this order.
(c) Future employers must notify in writing the Union of the fund in subclause (1)(b)(iii) into which they intend to contribute and the intended date of the commencement of contributions at least 30 days prior to the payment of the first contributions to the fund.
(d) Within 30 days of the notice referred to in paragraphs (b) and (c) the Union may challenge the suitability of the proposed fund by notifying both the Commission and the employer of a dispute.
(3) Contributions:
(a) An employer shall, subject to subclauses (11) and (12), contribute to a fund referred to in subclause (1)(b) in respect of all eligible employees an amount equal to 3% of each employee's ordinary time earnings each week with effect from the first pay period on or after 1 July, 1989, or the employee's commencement date, whichever is the later.
(b) Employer contributions together with any employee deductions shall be paid monthly for pay periods completed in each month. Provided that payments may be made at such other times and in such other manner as may be agreed in writing between the Trustee of the Fund and the employer from time to time.
(c) No contributions shall be made for:
(i) periods of unpaid leave or unauthorised absences; or
(ii) annual leave or any other payments paid out on termination.
(4) Alternative Calculation of Payments:
Notwithstanding the provisions of this clause the payment required to be made to a fund may be calculated on a basis agreed in writing between the Union and the employer.
(5) Employer to Continue Participation:
An employer who participates in the fund shall not cease participation in the fund whilst employing any eligible employee.
(6) Cessation of Contributions:
The obligation of the employer to contribute to the fund in respect of an eligible employee shall cease on the last day of an eligible employee's employment with the employer.
(7) Employer Failure to Participate in Fund:
(a) Where an employer has failed to make application to participate in a fund or has failed to make payments to a fund, the employer shall be required to make application to participate in a fund or to make payments to a fund within seven days of the failure being brought to the employer's attention by any person.
(b) Where there has been a failure to make application to participate in a fund, upon acceptance by the trustee the employer shall make a once only contribution to a fund in respect of each eligible employee equivalent to the contributions which would otherwise have been payable in accordance with this clause.
(c) Where there has been a failure to make payments to a fund the employer shall make a once only contribution to a fund in respect of each eligible employee equivalent to the contributions which the employer has failed to pay.
(8) Employees' Additional Voluntary Contributions:
(a) Where the rules of the fund allow an eligible employee to make additional contributions an eligible employee may elect to make additional contributions to the fund and the employer shall, where an election is made upon the direction of the employee deduct contributions from the employee's wages and pay them to the fund in accordance with the direction of the employee and the rules of the fund.
(b) If 3% of an employee's ordinary time earnings are less than $2.00 and the employee elects:
(i) to make voluntary contributions to the fund; or
(ii) to have death and/or disability cover,
then the employer contribution shall be payable to the fund.
(9) Existing Superannuation Arrangements:
No employer shall be excluded from this clause on the basis of existing voluntary superannuation arrangements.
(10) Supersession by Other Award or Agreement:
Nothing contained in this clause shall prevent any or all of the parties to this award from entering into other awards or agreements which have the effect of superseding the superannuation provisions contained in this clause.
(11) Suspension:
(a) Where, pursuant to subclause (2)(d) the Union challenges an employer's choice of fund, the employer shall not make contributions to that fund until the dispute has been resolved by the Commission.
(b) The contributions not made pursuant to paragraph (a) shall be made to the appropriate fund in accordance with subclause (3)(a) following the resolution of the dispute by the Commission.
(12) Employee Entry into Fund:
(a) The employer must provide an employee with an application to join a fund within 14 days of the operative date of this clause or within 14 days of an employee commencing employment, whichever is the later.
(b) The employer is not obliged to make contributions to a fund:
(i) where an employee has completed a letter of denial; or
(ii) where an employee has not completed and returned the application referred to in paragraph (a) within 28 days of the operative date of this clause or within 28 days of an employee commencing employment, whichever is the later.
provided that an employer shall make contributions to a fund from the date on which the employee subsequently completes an application form.
(c) If the employer fails to provide the employee with the application form referred to in paragraph (a) within the time prescribed in that paragraph the employer shall be obliged to make contributions as if the application had been provided within the prescribed time, provided that the employee returns the application within 14 days of being provided with the application by the employer.
(d) The letter of denial shall be in the following form:
"To (employer)
I have received an application for membership of the non-contributory Superannuation Fund and understand:
(1) that should I sign such form you will make contributions on by behalf; and
(2) that I am not required to make contributions of my own; and
(3) that no deductions will be made from my wages for superannuation without my consent.
However, I do not wish to be a member of the Fund or have contributions made on my behalf.
(Signature)
(Name)
(Address)
(Classification)
(Date)"
(e) A copy of the letter of denial shall be forwarded to the Union.
(13) Preservation:
The provisions of this clause shall not apply to any employer who has entered into an arrangement to pay superannuation contributions into any other approved occupational superannuation fund and such arrangement has been ratified by either the Western Australian Industrial Relations Commission or the Australian Industrial Relations Commission.
Compliance, Nomination and Transition
Notwithstanding anything contained elsewhere herein which requires that contribution be made to a superannuation fund or scheme in respect of an employee, on and from 30 June 1998 -
(a) Any such fund or scheme shall no longer be a complying superannuation fund or scheme for the purposes of this clause unless -
(i) the fund or scheme is a complying fund or scheme within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; and
(ii) under the governing rules of the fund or scheme, contributions may be made by or in respect of the employee permitted to nominate a fund or scheme;
(b) The employee shall be entitled to nominate the complying superannuation fund or scheme to which contributions are to be made by or in respect of the employee;
(c) The employer shall notify the employee of the entitlement to nominate a complying superannuation fund or scheme as soon as practicable;
(d) A nomination or notification of the type referred to in paragraphs (b) and (c) of this subclause shall, subject to the requirements of regulations made pursuant to the Industrial Relations Legislation Amendment and Repeal Act 1995, be given in writing to the employer or the employee to whom such is directed;
(e) The employee and employer shall be bound by the nomination of the employee unless the employee and employer agree to change the complying superannuation fund or scheme to which contributions are to be made;
(f) The employer shall not unreasonably refuse to agree to a change of complying superannuation fund or scheme requested by a employee;
Provided that on and from 30 June 1998, and until an employee thereafter nominates a complying superannuation fund or scheme -
(g) if one or more complying superannuation funds or schemes to which contributions may be made be specified herein, the employer is required to make contributions to that fund or scheme, or one of those funds or schemes nominated by the employer;
or
(h) if no complying superannuation fund or scheme to which contributions may be made be specified herein, the employer is required to make contributions to a complying fund or scheme nominated by the employer.
