New south wales industrial gazette

12. Superannuation
(a) An application to make or to vary a minimum rates or paid rates award which:
(i) seeks a greater quantum of employer contributions than required by the Superannuation Guarantee (Administration) Act 1992 (Cth) (‘the SGA Act’); or
(ii) seeks employer contributions to be paid in respect of a category of employee in respect of which the SGA Act does not require contributions to be paid;
shall be referred to a Full Bench for consideration as a special case, unless otherwise allocated by the President. Exceptions to this process are applications which fall within the Enterprise Arrangements and First Awards and Extensions to Existing Awards principles.
(b) If an application is made that does not fall within paragraph (a), the Commission will, subject to paragraph (c):
(i) make or vary an award by inserting a clause stating:
‘Superannuation Legislation - The subject of superannuation is dealt with extensively by federal legislation including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth); the Superannuation (Resolution of Complaints) Act 1993 (Cth) and s124 of the Industrial Relations Act 1996. This legislation, as varied from time to time, governs the superannuation rights and obligations of the parties’.
(ii) if appropriate, ensure that the award contains specification of an employee's earnings (e.g. ‘ordinary time earnings’) which, for the purposes of the SGA Act, will operate to provide a ‘notional earnings base’, and
(iii) if the award is to continue to prescribe a ‘flat dollar’ amount of employer contribution, ensure that appropriate amounts are inserted so as to give effect to the levels of contribution required from time to time under the SGA Act.
(c) The Commission may award provisions which differ from those in paragraph (b):
(i) by consent; or
(ii) in the absence of consent, by arbitration, provided the Commission is satisfied that there are particular factors warranting the awarding of different provisions. Such factors may include:
(A) the wishes of the parties;
(B) the nature of the particular industry or enterprise;
(C) the history of the existing award provisions;
(D) relevant decisions of the Commission establishing superannuation principles; and
(E) relevant statutory provisions.
(d) Before any different provisions are awarded under paragraph (c), either by consent or arbitration, the Commission must be satisfied, on expert evidence, that the award to be made will not contain requirements that would result in an employer not meeting the requirements imposed by the SGA Act.
(e) Subject to s124 of the Act, any specification of a fund will carry with it the obligation for an employer to pay contributions at such intervals as are required by the fund.
(f) In determining applications as to specification of fund, the Commission will, as appropriate:
(i) ensure that any fund specified by it is one into which payment will meet the employer's obligations under the SGA Act;
(ii) have regard to the Superannuation Industry (Supervision) Act 1993 (Cth) (‘the Supervision Act’) which provides for the prudent management of certain superannuation funds and for their supervision by the Insurance and Superannuation Commissioner. In particular, the requirement with respect to equal representation of employers and members on what are called ‘standard employer-sponsored funds’ (Pt 9 of the Supervision Act) should be noted;
(iii) have regard to previous decisions of the Commission with respect to the specification of a fund or funds; and
(iv) have regard to relevant statutory provisions.
(g) Due to the variety of existing award superannuation provisions and the impact and complexity of the SGA Act, all applications to the Commission may not be capable of being dealt with in accordance with the approach set out above. In any such case it may be appropriate for the application to be dealt with as a special case.
13. First Award and Extension to an Existing Award
Any first award or an extension to an existing award must be consistent with the Commission’s obligations under Part 1 Chapter 2 of the Act.
In determining the content of a first award the Commission will have particular regard to:
(a) relevant wage rates in other awards, provided the rates have been adjusted for previous State Wage Case decisions and are consistent with the decision of the State Wage Case 1989;
(b) skill, responsibility and the conditions under which the work is performed;
(c) or conditions of employment, other than wage rates, prima facie the existing conditions of employment;
(d) that the award would comply with the requirements of section 19 of the Act.
14. Equal Remuneration and Other Conditions
(a) Claims may be made in accordance with the requirements of this principle for an alteration in wage rates or other conditions of employment on the basis that the work, skill and responsibility required, or the conditions under which the work is performed, have been undervalued on a gender basis.

(b) The assessment of the work, skill and responsibility required under this principle is to be approached on a gender neutral basis and in the absence of assumptions based on gender.

(c) Where the under-valuations is sought to be demonstrated by reference to any comparator awards or classifications, the assessment is not to have regard to factors incorporated in the rates of such other awards which do not reflect the value of work, such as labour market attraction or retention rates or productivity factors.
(d) The application of any formula, which is inconsistent with proper consideration of the value of the work performed, is inappropriate to the implementation of this principle.
(e) The assessment of wage rates and other conditions of employment under this principle is to have regard to the history of the award concerned.
(f) Any change in wage relativities which may result from any adjustments under this principle, not only within the award in question but also against external classifications to which the award structure is related, must occur in such a way as to ensure there is no likelihood of wage leapfrogging arising out of changes in relative positions.
(g) In applying this principle, the Commission will ensure that any alteration to wage relativities is based upon the work, skill and responsibility required, including the conditions under which the work is performed.
(h) Where the requirements of this principle have been satisfied, an assessment shall be made as to how the undervaluation should be addressed in money terms or by other changes in conditions of employment, such as reclassification of the work, establishment of new career paths or changes in incremental scales. Such assessments will reflect the wages and conditions of employment previously fixed for the work and the nature and extent of the undervaluation established.
(i) Any changes made to the award as the result of this assessment may be phased in and any increase in wages may be absorbed in individual employees’ overaward payments.
(j) Care should be taken to ensure that work, skill and responsibility which have been taken into account in any previous work value adjustments or structural efficiency exercises are not again considered under this principle, except to the extent of any undervaluation established.
(k) Where undervaluation is established only in respect of some persons covered by a particular classification, the undervaluation may be addressed by the creation of a new classification and not by increasing the rates for the classification as a whole.
(l) The expression ‘the conditions under which the work is performed’ has the same meaning as in Principle 6, Work Value Change.
(m) The Commission will guard against contrived classification and over classification of jobs. It will also consider:
(i) the state of the economy of New South Wales and the likely effect of its decision on the economy;
(ii) the likely effect of its decision on the industry and/or the employers affected by the decision; and
(iii) the likely effect of its decision on employment.
(n) Claims under this principle will be processed before a Full Bench of the Commission, unless otherwise allocated by the President.
(o) Equal remuneration shall not be achieved by reducing any current wage rates or other conditions of employment.

(p) In arbitrating an application made under this Principle, the Commission is required to determine whether or not future State Wage Case general increases will apply to the award.

15. Economic incapacity
Any employer or group of employers bound by an award may apply to, temporarily or otherwise, reduce, postpone and/or phase in the application of any increase in labour costs determined under the principles on the ground of very serious or extreme economic adversity. The merit of such application shall be determined in the light of the particular circumstances of each case and any material relating thereto shall be vigorously tested. Significant unemployment or other serious consequences for the employees and employers concerned are significant factors to be taken into account in assessing the merit of any application.
Such an application shall be processed according to the Special Case principle.
Any decision to temporarily reduce or postpone an increase will be subject to a further review, the date of which will be determined by the Commission at the time it decides any application under this principle.
16. Duration
These principles will operate until further order of the Commission.

F. L. WRIGHT J, President.

M. J. WALTON J, Vice-President.

R. W. HARRISON D.P.

R. P. BOLAND J.

I. TABBAA, Commissioner.

E. A. R. BISHOP, Commissioner.

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Printed by the authority of the Industrial Registrar.

SERIAL C6206

ENTERPRISE AGREEMENTS APPROVED BY THE INDUSTRIAL RELATIONS COMMISSION
(Published pursuant to s.45(2) of the Industrial Relations Act 1996)

EA08/3 - Teachers' Enterprise Agreement 2007-2010 for The Members of the Board of Wahroonga Preparatory School

Made Between: Association of Independent Schools of NSW Limited -&- the New South Wales Independent Education Union. New/Variation: New. Approval and Commencement Date: Approved 10 January 2008 and commenced 1 February 2008. Description of Employees: The agreement applies to all teachers employed by The Members of the Board of Wahroonga Preparatory School, located at 61 Coonanbarra Road, Wahroonga NSW 2076 who fall within the coverage of the Teachers (Independent Schools) (State) Award 2007. Nominal Term: 24 Months.

EA08/4 - Macleay Options Incorporated (Supported Employees) Workplace Agreement 2007

Made Between: Macleay Options Incorporated -&- Gavin Larkins, Bronwyn Ritchie. New/Variation: New. Approval and Commencement Date: Approved and commenced 14 February 2008. Description of Employees: The agreement applies to all employees employed by Macleay Options Incorporated located at 39 Elbow Street, West Kempsey NSW 2440, who are engaged in the tasks contained in Shedule B, Skills Matrix/Job Models and who fall within the coverage of the Restaurant, &c., Employees' Retail Shops (State) Award. Nominal Term: 36 Months.

EA08/5 - Family Planning NSW Administrative, Health Promotion, Professional and Management Enterprise Agreement 2007

Made Between: Family Planning New South Wales Ltd -&- the Australian Services Union of N.S.W.. New/Variation: Replaces EA04/206. Approval and Commencement Date: Approved and commenced 20 December 2007. Description of Employees: The agreement applies to all administrative, health promotion and professional and managerial employees employed by Family Planning NSW, 328-336 Liverpool Road, Ashfield NSW 2131, who fall withing the coverage of the Social and Community Services Employees (State) Award. The agreement does not apply to Executive Management, Nursing and Medical Practitioner employees. Nominal Term: 36 Months.

EA08/6 - Midcoast County Council Enterprise Agreement 2007

Made Between: Midcoast County Council -&- the Electrical Trades Union of Australia, New South Wales Branch, New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union, The Association of Professional Engineers, Scientists and Managers, Australia (NSW Branch). New/Variation: New. Approval and Commencement Date: Approved and commenced 13 February 2008. Description of Employees: The agreement applies to all employees (excluding the Genereal Manger), who are employed by MidCoast County Council (MidCoast Water), located at 26 Muldoon Street, Taree NSW 2430, who fall within the coverage of the Mid Coast County Council Enterprise Award 2004. Nominal Term: 36 Months.

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Printed by the authority of the Industrial Registrar.