Textile, Clothing and Footwear Union of Australia v Cueldee

[2017] FWC 2465

[2017] FWC 2465

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Textile, Clothing and Footwear Union of Australia
v
Cueldee
(C2017/1916)

Clothing industry
COMMISSIONER HUNT	BRISBANE, 4 MAY 2017

Alleged dispute about any matters arising under the modern award and the NES; [s146].

[1] The Textile, Clothing and Footwear Union of Australia (TCFUA) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with the dispute settlement procedure in the Textile, Clothing, Footwear and Associated Industries Award 2010 (the Award).

[2] The dispute concerns alleged outstanding superannuation contributions owed to current employees of Cueldee, members of the TCFUA (the Employees). The TCFUA named to the Commission two Employees it represents who are prepared to be identified to Cueldee in the resolution of the dispute on behalf of themselves and other employees.

[3] The application was listed for conference by telephone on 4 May 2017. My Associate made attempts to contact Mr Marco Parigi of Cueldee and was advised by his office that he was aware of the listing but was not available. The conference proceeded on an ex parte basis.

[4] In light of Mr Parigi’s failure to participate in the conference, and the nature of the dispute, I determined that a Recommendation of the Commission may assist the parties in resolving the dispute.

[5] The TCFUA contend that Cueldee have not made any superannuation contributions on behalf of the Employees since August 2016. Prior to this period of time, superannuation payments have been made to Employees’ funds on a sporadic basis.

[6] It is noted that the Award provides for the payment by an employer of monies into an employee’s superannuation fund no later than 28 days after the end of each month. 1

[7] The TCFUA allege the following contributions remain outstanding:

• Employee A – approximately $7,000; and



• Employee B – approximately $9,000.

[8] The TCFUA allege a further six employees are employed by Cueldee.

[9] The TCFUA have made a complaint to Australian Taxation Office and seek an assurance on behalf of its members that outstanding superannuation contributions will be paid to the Employees, and future entitlements will be paid in accordance with clause 44.2(b) of the Award.

[10] It is noted that if the allegation of unpaid superannuation contributions is substantiated, Cueldee is exposed to a Superannuation Guarantee Charge (the Charge). The Australian Taxation Office administers the Charge, amounting to the full amount owed to the employee, interest at the rate of 10% per annum, and quarterly administration charges for each employee. If the Charge is administered by the Australian Taxation Office (as opposed to the superannuation obligations being met by the employer), some portions of the Charge may no longer be claimed as a taxation deduction for the employer.

[11] It is clearly in an employer’s best interests to make payments as required to an employee’s superannuation fund, rather than to incur the Charge.

[12] To assist the parties to resolve the dispute, I make the following recommendations:

1. By 18 May 2017, Cueldee meet with each of its employees and their representatives to discuss the outstanding superannuation contributions and determine the value of the outstanding amounts payable to each employee;

2. Cueldee to make arrangements for the remittance, by way of a payment plan, of outstanding superannuation contributions to date for each employee; and

3. Cueldee to make future superannuation contributions to each of its employees in accordance with clause 44.2 of the Award (i.e. by no later than 28 days after the end of each month);

[13] At the request of the TCFUA, the Commission will conduct a further conference in the event that Cueldee fails to take steps to resolve the dispute. The TCFUA may consider making application to the Commission for an Order requiring the attendance of Mr Parigi at such a conference.

COMMISSIONER

 1   Clause 44.2(b) of the Award.

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