Patrick ordered to increase super payments

MUA appeal is upheld, leaving stevedore stung by semantics

Patrick ordered to increase super payments
The Fair Work Commission says Patrick's EBA requires superannuation payments of 11.75 per cent


A dispute over the wording in the Patrick Terminal Enterprise Agreement has been resolved in the employees’ favour, after an appeal to a three-person panel of the Fair Work Commission (FWC). 

Patrick will be expected to pay superannuation contributions of 11.75 per cent, rather than the 11.25 per cent provided before today’s decision being published.

The dispute was first considered in May, with FWC vice president Graeme Watson concluding that the company was paying its staff in accordance with the bargained agreement.

Watson says that the agreement’s description of the unique "at risk" superannuation contribution, in which increased payments were contingent on satisfactory performance, left "a lot to be desired".

Declaring the wording "ambiguous" meant he relied on further submissions on the context and history of the agreement’s negotiations, which took place in 2011.

These noted that the four-year deal would have annual increases in superannuation contributions when targets were met.

A spokesperson from Patrick provided evidence that showed the company had intended this to be up to a maximum of 12 per cent only, in line with changing legislation on employer superannuation contributions, but potentially delivered much earlier than the federal government’s then 2019 schedule.

Both the Maritime Union of Australia (MUA) and the company agreed that the workforce did not meet targets set in the first year of the agreement’s operation.

But the MUA says workers were entitled to three increases over the remaining three years on top of the superannuation provisions required by law (9.5 per cent since July 1, 2014), bringing the total to 11.75 per cent.

Watson said the signed agreement did not spell out the maximum clearly. "The wording is ambiguous as to whether the increased component was intended, objectively, to subsume the impending statutory increases or be in addition to them."

He said the differences in potential outcomes were significant.

"A package which enabled superannuation contributions to move to 12.5 per cent over the life of the agreement is clearly more advantageous to employees compared to a potential 12 per cent, when the government’s intention was to reach 12 per cent by 2019-20," the original judgement notes.

"If there was a mutual intention to reach 12.5 per cent over the life of the agreement I would expect both parties to have referred to it and indeed emphasise it. No such emphasis or ‘crowing’ occurred."

The MUA appealed that decision from May 14; that appeal was upheld this week and the original decision has now been quashed.

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