Reform Funds Volume Ten

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1 Final Report of the Royal Commission into the Building and Construction Industry Reform Funds Volume Ten Royal Commissioner, The Honourable Terence Rhoderic Hudson Cole RFD QC February 2003

2 Final Report of the Royal Commission into the Building and Construction Industry Volume Titles Volume 1 Volume 2 Summary of Findings and Recommendations Conduct of the Commission Principles and Procedures Volume 3 National Perspective Part 1 Volume 4 National Perspective Part 2 Volume 5 Volume 6 Reform Establishing Employment Conditions Reform Occupational Health and Safety Volume 7 Reform National Issues Part 1 Volume 8 Reform National Issues Part 2 Volume 9 Reform National Issues Part 3 Volume 10 Volume 11 Volume 12 Reform Funds Reform Achieving Cultural Change State and Territory Overviews Volume 13 Hearings New South Wales Part 1 Volume 14 Hearings New South Wales Part 2 Volume 15 Hearings Victoria Part 1 Volume 16 Hearings Victoria Part 2 Volume 17 Hearings Queensland Part 1 Volume 18 Hearings Queensland Part 2 Volume 19 Hearings South Australia, Tasmania, Northern Territory and Australian Capital Territory Volume 20 Hearings Western Australia Part 1 Volume 21 Hearings Western Australia Part 2 Volume 22 Volume 23 Administration Confidential Volume ISBN: Commonwealth of Australia 2003 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior written permission from the Commonwealth available from Information Services. Requests and inquiries concerning reproduction and rights should be addressed to the Manager, Copyright Services, Information Services, GPO Box 1920, Canberra ACT 2601 or ii Final Report of the Royal Commission into the Building and Construction Industry

3 Contents Abbreviatons 1 General 1 Contractors 5 1 Overview 7 Introduction 7 Methodology 10 Superannuation funds 11 Redundancy funds 12 Long service leave funds 13 Training funds 14 Income protection 16 Pressure to contribute to nominated industry funds 17 Regulation of industry funds 19 Union trust funds 20 Notes to Overview 31 2 Building Employees Redundancy Trust 33 Introduction 33 Self-initiated redundancies 34 Distribution of surplus income 37 Access to welfare benefits provided by BERT 41 Privacy and collection of arrears 45 Conclusions 45 Persons involved 46 Notes to Building Employees Redundancy Trust 47 3 Building Unions Superannuation Scheme 51 Introduction 51 Collection of arrears 52 Reform of compliance infrastructure 59 Consequence of hearing 60 Conclusions 61 Persons involved 62 Notes to Building Unions Superannuation Scheme 63 Reform Funds iii

4 4 CEPU Electrical Division Victorian Branch financial analysis 65 The Trusts 65 CEPU Electrical Division Victorian Branch financial statements 67 ElecNet 67 Financial analysis 68 Conclusions 69 Persons involved 70 Notes to CEPU Electrical Division Victorian Branch financial analysis 71 5 Chifley Financial Services Limited 73 Conclusions 76 Persons involved 78 Notes to Chifley Financial Services Limited 79 6 College of Electrical Training Inc: ANTA Grant 81 Introduction 81 Facts 81 Conclusions 90 Persons involved 95 Notes to College of Electrical Training Inc: ANTA Grant 96 7 ElecNet (Aust) Pty Ltd 99 Introduction and background 99 July October October December January Year 2000 and thereafter 106 Legal issues and conclusions 111 Persons involved 116 Notes to ElecNet (Aust) Pty Ltd Electrical Contractors Association of Western Australia Incorporated Severance Scheme Fund 125 Background Cressall Road, Balcatta 126 Contributions held in trust 127 Surplus funds 127 Discussion 130 Conclusion 132 Persons involved 133 Notes to Electrical Contractors Association of Western Australia Incorporated Severance Scheme Fund 134 iv Final Report of the Royal Commission into the Building and Construction Industry

5 9 Incolink: Self-Initiated Redundancies 137 Background 137 Incolink Study 139 Conclusions 144 Persons involved 147 Notes to Incolink: Self-Initiated Redundancies Queensland Construction Training Fund 151 Introduction 151 Worker Grants 152 General Purpose Grants 159 Conclusions 170 Persons involved 171 Notes to Queensland Construction Training Fund Sunshine Coast Regional Group Apprentices Ltd 179 Introduction 179 Corporate governance 183 Related party loans Cootamundra Drive 195 The Male Superannuation Fund 200 Fuel Cards 201 Government response 202 Findings 206 Persons involved 207 Notes to Sunshine Coast Regional Group Apprentices Ltd Long Service Leave Funds in the Building and Construction Industry 217 Origins of long service leave 217 Overview of long service leave legislation 218 New South Wales 222 Victoria 224 Queensland 226 Western Australia 230 South Australia 233 Tasmania 236 Australian Capital Territory 238 Northern Territory 240 Observations 240 Issues 244 Discussion 247 Notes to Long Service Leave Funds in the Building and Construction Industry 251 Reform Funds v

6 13 Redundancy in the Building and Construction Industry 255 Introduction 255 The meaning of redundancy 255 History of redundancy provisions in awards 256 The role of the AIRC 258 Establishment of redundancy funds 260 A statistical comparison of industry redundancy schemes 262 Redundancy in the building and construction industry 265 Overview of principal redundancy schemes 267 Distribution of surplus income 278 Caps on redundancy contributions 281 Regulation of redundancy funds 283 Recommendations 285 Appendix A: Comparison of Selected Awards from the Top 100 Federal Awards 289 Appendix B: Summary of Principal Building and Construction Awards 293 Notes to Redundancy in the Building and Construction Industry Income Protection Insurance in the Building and Construction Industry 311 Introduction 311 Background 311 Insurance commissions and related benefits 312 Income protection funds 316 Discussion 317 Recommendations 318 Notes to Income Protection Insurance in the Building and Construction Industry Superannuation in the building and construction industry 325 Introduction 325 Superannuation in Australia 325 Regulatory regime 326 Superannuation in the building and construction industry 327 Framework for analysis 328 Governance arrangements 334 Choice of fund 336 Privacy 343 Cbus funded projects 344 Annexure A 347 Notes to Superannuation in the Building and Construction 348 vi Final Report of the Royal Commission into the Building and Construction Industry

7 Abbreviatons General Air Conditioning and Mechanical Contractors Association of Victoria Allied Construction Employees Superannuation Scheme Allied Unions Superannuation Trust (Queensland) Australia and New Zealand Banking Group Limited Australian Administrative Services Pty Ltd Australian Building and Construction Commission Australian Building Construction Employees and Builders Labourers Federation (Queensland Branch) Union of Employees Australian Conciliation and Arbitration Commission Australian Construction Industry Redundancy Trust Australian Council of Trade Unions Australian Federation of Construction Contractors Australian Federation of Construction Contractors, SA Branch Australian Industrial Relations Commission Australian Industry Group Australian National Training Authority Australian Prudential Regulation Authority Australian Retirement Fund Australian Securities and Investments Commission Australian Superannuation Savings Employment Trust Australian Taxation Office Australian Workplace Agreement AMCA ACE AUST Q ANZ AAS ABCC BLF Q ACAC ACIRT ACTU AFCC AFCC SA Branch AIRC AIG ANTA APRA ARF ASIC ASSET ATO AWA Reform Funds 1

8 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union Building and Construction Industry Long Service Payments Corporation AMWU LSPC Building and Construction Industry Termination, Change and Redundancy Test Case decision Building and Construction Industry Training Fund Building Employees Redundancy Trust Building Industry Group Apprenticeship Scheme Building Industry Redundancy Scheme Trust (South Australia) Building Skills Pty Ltd Building Trades Association of Unions of Western Australia Building Unions Superannuation Scheme Queensland Chifley Financial Services Limited Civil Contractors Federation Superannuation Trust CoINVEST Ltd College of Electrical Training Incorporated Combined Trade Union Retirement Fund Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Victorian Branch Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Plumbing Division, New South Wales Branch Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Plumbing Division, Queensland Branch Construction & Building Unions Superannuation Fund Construction Employees Redundancy Trust Construction, Forestry, Mining and Energy Union Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland Construction Income Protection Queensland Construction Industry Long Service Board BCI TCR Test Case decision BCITF BERT BIGA BIRST BSPL Association of Workers BUSS Q Chifley CCFST CoINVEST CETI CTRF CEPU CEPU Electrical Division, Victorian Branch CEPU Plumbing Division NSW Branch CEPU Plumbing Division Qld Branch Cbus CERT CFMEU CFMEU Q CIPQ the ACT Board 2 Final Report of the Royal Commission into the Building and Construction Industry

9 Construction Industry Long Service Leave Board Construction Industry Long Service Leave Payments Board Construction Industry Skills Group Training Ltd Construction Industry Training Board Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia Western Australian Branch Construction Skills Training Centre Incorporated Construction Training Centre Contracting Industry Redundancy Trust Corrs Chambers Westgarth Coverforce Propriety Limited Coverforce Top-Up Accident Scheme Department of Industrial Relations ElecNet (Aust) Pty Ltd Electrical Contractors Association of WA Incorporated Electrical Industry Severance Scheme Electrical Trades Union of Australia, South Australian Branch eligible termination payments Enterprise Bargaining Agreement Funding Principles for the Award of Training Grants General Employee Entitlements and Redundancy Scheme Goods and Services Tax Housing Industry Association Limited Housing Industry Trade Training International Underwriting Services Pty Ltd Joint Electrical Training Council Incorporated Lowe Lippman Bott Pty Ltd Major Commercial Building Sector Agreement Master Builders Association of South Australia Inc Master Builders Association of Victoria Master Builders Association of Western Australia the SA Board the WA Board CISGT CITB CMETSWU CSTC CTC CIRT Corrs Coverforce CTAS DIR ElecNet ECAWA Protect/EISS Fund ETU SA ETP EBA the Funding Principles GEERS GST HIA HITT IUS JETCO LLB MCBSA MBASA MBAV MBAWA Reform Funds 3

10 Master Builders Australia Incorporated Master Plumbers and Mechanical Contractors Association of New South Wales Mechanical and Electrical Redundancy Trust National Electrical and Communications Association National Electrical and Communications Association, New South Wales Chapter National Electrical and Communications Association, Victorian Chapter National Privacy Principles New South Wales Electrical Superannuation Scheme New South Wales Industrial Relations Commission Plumbers and Gasfitters Employees Union of Australia, Queensland Branch, Union of Employees, The Queensland Building and Construction Industry (Portable Long Service Leave) Authority Queensland Construction Training Fund Queensland Industrial Relations Commission Queensland Major Contractors Association Queensland Master Builders Association Queensland United Employers Superannuation Trust Redundancy Payment Central Fund Limited, The MBA Inc MPMCA MERT NECA NECA NSW NECA Victoria NPPs NESS NSWIRC PGEU Q QLeave QCTF QIRC QMCA QMBA QUEST Incolink Redundancy Payment Central Fund No. 3 Incolink Fund No. 3 Redundancy Payment Central Fund No. 1, Income Protection and Trauma Insurance Scheme IPT Fund 1 Redundancy Payment Central Fund No. 2, Income Protection and Trauma Insurance Scheme IPT Fund 2 Rostered Days Off Severance Scheme Administration facility Severance Scheme Administration Fund Statewide Superannuation Trust Sunshine Coast Regional Group Apprentices Ltd Superannuation Plan for Electrical Contractors (Qld) Tasbuild Limited RDOs SSA facility SSA Fund Statewide Super SCRGAL SPEC Q Tasbuild 4 Final Report of the Royal Commission into the Building and Construction Industry

11 Tasmanian Construction Employees Redundancy Trust Tasplan Superannuation Fund Termination, Change and Redundancy Case The Very Good Company Pty Ltd Wagecover Australia Pty Ltd Western Australian Builders Labourers, Painters and Plasterers Union of Workers Western Australian Construction Industry Redundancy Fund Western Australian Department of Training Western Australian Industrial Relations Commission Westscheme Superannuation Fund Tas CERT Tasplan the TCR Test Case The Very Good Company Wagecover WABLPPU WACIRF WA DOT WAIRC Westscheme Contractors Baulderstone Hornibrook Pty Ltd Hackett Laboratory Services Pty Ltd Klesteel Pty Ltd, trading as Bassett Demolitions Thiess Pty Ltd Welding and Fabrication Pty Ltd Baulderstone Hackett Laboratory Bassett Demolitions Thiess Welding and Fabrication Reform Funds 5

12 6 Final Report of the Royal Commission into the Building and Construction Industry

13 1 Overview Introduction 1 I was required, under paragraph (b) of the Letters Patent, to inquire into and report on the following matters in relation to the building and construction industry: (b) the nature, extent and effect of any unlawful or otherwise inappropriate practice or conduct relating to: (i) (ii) failure to disclose or properly account for financial transactions undertaken by employee or employer organisations or their representatives or associates; or inappropriate management, use or operation of industry funds for training, long service leave, redundancy or superannuation. 2 Paragraph (c) of the Letters Patent requires me to report on any measures, including legislative and administrative changes, to improve practices or conduct in the building and construction industry or to deter unlawful or inappropriate practices or conduct in relation to that industry. For that purpose, I am to take into account my findings in relation to matters referred to in paragraphs (a) and (b) and any other relevant matters. 3 This volume addresses case studies and overview material relevant to paragraphs (b) and (c) of the Letters Patent. Case studies 4 There are 10 case studies dealt with in this volume. They are set out in alphabetical order according to the investigation name assigned to the particular incident by Counsel Assisting. 5 In relation to each incident investigated by the Commission, I have set out my findings of fact in relation to that incident, together with any findings that I have made in relation to the lawfulness of the conduct that I have found to have occurred. The discussion of each incident concludes with my observations in relation to the types of practices and conduct illustrated by that case study. 6 I have explained in detail my approach to the Commission s investigation of particular incidents and the making of findings in relation to them in the second volume of this report, which deals with the conduct of the Commission. That volume includes, among other things, a discussion of my interpretation of the relevant parts of my Terms of Reference, my approach to the rules of Reform Funds 7

14 evidence, and the circumstances in which findings of criminal, unlawful or inappropriate conduct have been made. I will not repeat here what I have said in that volume. 7 I should, however, briefly draw attention to two points relevant to this volume. 8 First, I have interpreted the word unlawful in my Terms of Reference to extend to all civil wrongs, including torts and breaches of contract, contraventions of statute, and illegal acts contrary to the criminal law. It follows that a finding in this volume that a person or organisation has engaged in unlawful conduct does not necessarily indicate that the person or organisation has committed a crime. 9 Second, I have not made findings that any individual, organisation or company has engaged in inappropriate conduct unless a concession to that effect had been made. I have taken that approach in order to avoid the unfairness that might have been involved in judging individuals retrospectively in accordance with a standard of uncertain content. I have, however, on many occasions made it clear that I regard particular categories of conduct as inappropriate, and that reforms should occur in order to prevent conduct that falls within those categories from occurring in the future. In making observations of that type, I should not be understood to find, or to imply, that the conduct that occasioned those observations was inappropriate at the time that it occurred. I was concerned instead to look forward, and to explain why I have suggested that a different standard of behaviour should apply in the future. 10 The specific instances of unlawful conduct that I have found to have occurred in the case studies included in this volume are set out in schedule A to this Overview. 11 In addition, there was evidence of a limited number of other categories of conduct that are in my view inappropriate. Some of the conduct in those categories is unlawful in some circumstances but not in others, often because of deficiencies in the relevant law. These deficiencies are addressed by recommendations. Other conduct in these categories is not at present unlawful, although I have recommended that some of it be made unlawful, and that the remainder be discouraged in other ways. 12 Categories of conduct which were identified by the Commission in the case studies contained in this volume, and which I regard as inappropriate include: (a) (b) (c) (d) (e) the making of payments by industry redundancy funds to members in circumstances not authorised by the trust deed; the provision of welfare benefits by an industry fund exclusively for those of its members who were financial members of a union, thereby discriminating against members of the fund who were not union members; deficiencies in the information sought by an industry redundancy fund from employees seeking a redundancy payment, and their employers; the inflation of building costs by the payment of commissions to a union; non-disclosure by a union to employer organisations during pattern enterprise bargaining negotiations, of the fact that the union would receive commissions in respect of the insurance product which the union was negotiating to have included in the pattern enterprise bargaining agreement; 8 Final Report of the Royal Commission into the Building and Construction Industry

15 (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) the receipt by a negotiating party, a union, of an undisclosed benefit arising from the outcome of enterprise bargaining agreement negotiations pursuant to which employers agreed to provide a benefit to their employees; the creation by a branch of a union of trusts by which funds might be quarantined from potential creditors of the union; the preparation by a branch of a union of financial accounts which failed to include the assets of a trust which it controlled; the receipt by a trust controlled by a branch of a union, of the proceeds of part of a commission paid on an annuity purchased by a trustee of an industry redundancy fund; the receipt by a trust controlled by a branch of a union, of distributions from a trustee of an industry redundancy fund, the source of such distributions being interest earned on payments made by employers for the benefit of employees; the engagement by an industry superannuation fund of unions to collect contribution arrears; the provision by an industry superannuation fund to unions, of the names of members employed by particular employers and of the amounts of contributions paid on their behalf, often without member consent; the provision of such information by an industry superannuation fund, knowing that it may be used by union organisers and delegates to promote industrial action to encourage subcontractors to make contributions to the fund; the making of a payment from interest earned on funds in an industry severance fund, for the benefit of an employer association administering that fund, in circumstances where its entitlement to the benefit of that payment was not clear; deficient administration by a Commonwealth statutory authority and a State department in their administration of an application for an infrastructure grant of funds to a training organisation; the failure of a Commonwealth statutory authority and a State department to ensure that public moneys were disbursed only in accordance with the conditions of an approved grant; the resolution by the board of an industry training fund that grants to workers for training be restricted to applicants demonstrating financial union membership, the effect of which would, if implemented, be to discriminate against non-union members, and the implementation of that resolution by a union and an industry training centre; the requirement that applicants for grants from an industry training fund provide to the fund union membership numbers; the distribution by an industry training fund of most of its general purpose funding to unions or union-controlled bodies rather than to bipartite bodies as contemplated by the fund s objects; Reform Funds 9

16 (t) (u) (v) (w) (x) (y) (z) (aa) (bb) the allocation by an industry training fund of general purpose grants, not based upon the merits of training proposals before the Board or an assessment of training outcomes, but instead upon the perceived need to return funds to the union sponsors of an industry redundancy scheme; the failure by an industry training fund to advertise, or advertise effectively, when seeking expressions of interest for grant projects; the approval by the board of an industry training fund of funding for a scheme to which discriminatory conditions of participation, favouring the sons and daughters of trade unionists, apply; the approval by the board of an industry training fund of a grant to a union for a safety and training officer in circumstances where that officer in fact engaged in numerous tasks not related to training; with the result that the funding was expended for purposes not authorised by the trust deed; the repeated renewal by the board of an industry training fund of a grant to a union for a safety and training officer despite failing to receive acquittal of moneys provided under that grant; the failure by a union recipient of an industry training grant to adequately acquit moneys received; the failure of directors and officers of a group training company, being a company in receipt of public funding, to implement and observe proper corporate governance procedures; disregard by directors and an employee of a group training company of the law in procuring benefits for themselves and others; and the decision by authorities not to investigate or prosecute breaches of the law which were within their jurisdiction and referred to them. Methodology 13 Twenty-five funds were examined. The Commission received documents from employer and employee organisations, and trustee companies of industry funds. In addition, much material was obtained pursuant to notices to produce served upon the auditors of employer and employee organisations, companies, individuals and trustee companies of industry funds for training, long service leave, redundancy and superannuation. The names of the industry funds investigated by the Commission are set out in schedule B to this Overview. 14 The Commission engaged auditors, investigators and financial analysts to examine the material received with the object of deciding whether further inquiries by the Commission were warranted. 15 Factors taken into account when conducting these reviews included: (a) (b) the age of the issue highlighted by the analyses; whether the issue was repeated in later years; 10 Final Report of the Royal Commission into the Building and Construction Industry

17 (c) (d) (e) (f) (g) the amount involved; the seriousness of the issue; the time and resources required to conduct further inquiries; whether, notwithstanding any non-compliance with proper accounting practices, the non-compliance was of sufficient magnitude or seriousness to warrant further investigation; and whether the issue had already been identified by other inquiries made by the Commission. 16 In most cases, the Commission s inquiries did not reveal unlawful or otherwise inappropriate practice or conduct. In those circumstances, the fund did not become the subject of evidence at hearing. 17 From time to time, the Commission identified transactions or decisions which became the subject of further scrutiny. Some of these proceeded to hearing. 18 The matters that were presented at hearing represent a small portion of the matters investigated for the purposes of paragraph (b) of the Letters Patent. The case studies arising from the matters presented at hearing are contained in separate chapters of this volume. 19 This volume also contains observations regarding the operation of funds, and recommendations how such operations might be improved. 20 I have devoted separate chapters to long service, redundancy, income protection and superannuation. Training funds interweave into various industry funds, and into the wider issue of training and vocational education in the industry. Training funds are referred to in the redundancy and long service chapters, and in the chapter on Training in Volume 9. Superannuation funds 21 Superannuation funds are now of major importance. Approximately 30 per cent of all financial sector assets are comprised of superannuation savings. 1 In 2001 superannuation assets represented about 15 per cent of total private sector wealth In the building and construction industry most awards specify approved funds into which superannuation contributions must be made. 3 In the non-residential building and construction industry, superannuation coverage usually focuses on the use of centralised funds into which payments can be made by an employer on behalf of an employee. These payments are held in an account portable between employers. Pattern agreements generally specify that payments are to be made into these accounts Commission inquiries concentrated on industry superannuation funds operating in the building and construction industry. These funds were identified in building and construction industry awards and enterprise bargaining agreements or because of the involvement of industry participants in such funds. 24 There are many suitable superannuation funds to which employers and employees may wish to contribute. However it is clear that the existing process of pattern bargaining can, and often Reform Funds 11

18 does, preclude the exercise of any real choice. In some cases, contributions to a nominated fund are stated as a condition of working on a site. 25 Some superannuation funds operating in the building and construction industry have accumulated very significant assets and have become important investors in industry development. For example, the Construction and Building Unions Superannuation Fund (Cbus), as at 30 June 2001, had assets under management of $3.41 billion. 5 It provides development funding for many building and construction projects. 26 For reasons given in the chapter on Superannuation, I make recommendations that the proposed Building and Construction Industry Improvement Act provide that any industrial agreement or instrument which restricts choice of superannuation fund or scheme not be capable of certification. I also recommend that the Building and Construction Industry Improvement Act prohibit any person, by threat of industrial action, coercion or any other form of intimidation, from persuading or attempting to persuade an employee, prospective employee or employer to nominate or contribute to a particular superannuation fund or scheme. 27 I also recommend that the proposed Australian Building and Construction Commission (ABCC) be authorised to monitor projects where development funds are provided by building and construction industry superannuation, long service leave, redundancy or other industry funds to ensure that conditions attached to such loans or equity interests do not infringe the proposed Building and Construction Industry Improvement Act or the Workplace Relations Act 1996 (C wth). Redundancy funds 28 Specific redundancy funds have been established for workers in the building and construction industry, and address the characteristics of employment in that industry. Traditionally, a job becomes redundant when an employer no longer desires to have it performed by anyone. A dismissal for redundancy is a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him or her, but because the employer no longer wishes the job the employee has been doing to be done by anyone This traditional concept of redundancy does not fit comfortably into the building and construction industry, where some employment is project-based. At one level, an employee becomes redundant because the job no longer exists once a project is completed. At another level, employees frequently move seamlessly from one construction site to another as work finishes on the first site and becomes available on the other. Workers tend to stay employed within the industry, but on different sites and often with different employers. 30 Redundancy in the building and construction industry, therefore, is more broadly understood. The National Building and Construction Industry Award 2000 (clause 16) defines a redundancy to mean a situation where an employee ceases to be employed by an employer, respondent to this award, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning. 12 Final Report of the Royal Commission into the Building and Construction Industry

19 31 Entitlements to redundancy payments first occurred in various Federal and State awards. Details about the emergence of redundancy entitlements, and the matrix of applicable awards, are provided in the Redundancy chapter of this volume. 32 Although awards continue to provide minimum entitlements, redundancy benefits are now primarily determined by enterprise bargaining. Redundancy entitlements are provided in pattern agreements and subsequent certified agreements entered into at the single business level. To facilitate payment of these entitlements, redundancy or severance funds have been established. 33 There are eight principal schemes which operate in a range of sectors including civil construction, mechanical and engineering, electrical contracting, plumbing and allied services and general construction and building. Each fund is managed by a trustee in accordance with a trust deed. Details about each scheme are provided in the Redundancy chapter. 34 Redundancy funds have become significant financial concerns in the industry. For the financial year ended 30 June 2001, the eight principal schemes held a total of $534.8 million of members funds in trust. I provide overview comment below, referring to evidence elsewhere in my report, about the manner in which redundancy funds are administered and the industrial demands which employee organisations make to ensure that employers contribute to funds nominated by those employee associations. 35 Employers make weekly contributions to redundancy funds for the benefit of their employees. However, with the exception of the Australian Construction Industry Redundancy Trust (ACIRT), the surpluses earned by these funds are enjoyed by employee and employer associations, or other bodies, none of which contributes to the fund. Income of the funds is also applied for purposes unrelated to the purpose for which contributions are made, namely redundancy. This is unwarranted and I make a recommendation that redundancy funds should be used only for the purpose of meeting employee redundancy entitlements. I also recommend that the surpluses be applied solely for the benefit of employees or to reduce the contributions required by employers. 36 Superannuation and long service leave funds operate under a considered regime of public accounting, auditing and reporting. This achieves reasonable transparency in their operations. Redundancy funds, however, do not. This leaves open the potential for maladministration. This should not be so. Any failure of a redundancy fund would disadvantage a great number of people. I make recommendations that redundancy funds should similarly be subject to a regulated system of accounting, external auditing, actuarial assessment and reporting. Long service leave funds 37 In contrast to superannuation and redundancy, a single long service scheme for the building and construction industry operates in each State and the ACT. Each scheme is governed by specific legislation passed by each jurisdiction. These schemes are administered by a statutory corporation in New South Wales, Queensland, Western Australia, South Australia and the ACT. The schemes have been privatised in Victoria and Tasmania and so are administered instead by a trustee company. Nevertheless, the schemes operate on essentially similar principles. In the chapter devoted to long service leave, I outline the essential features of each scheme, Reform Funds 13

20 noting in particular the differences in entitlements between the schemes. I note the divergent and unrelated uses to which long service leave funds are applied, in addition to funding long service entitlements. 38 During the early 1990s, these funds enjoyed significant operating surpluses enabling employer contributions to be eased and benefits to be liberalised. In recent times, however, returns on the funds have diminished considerably, yet entitlements have remained and been liberalised. In some cases, employer contributions have needed to be increased to meet the shortfalls. 39 There is no long service scheme in the Northern Territory specifically for the building and construction industry. In that jurisdiction, long service entitlements are determined by reference to the Long Service Leave Act 1981 (NT) which provides for long service entitlements of workers generally in that Territory. In particular, entitlement to long service leave is determined by reference to continuous service with a single employer. 40 Administration of long service is a prerogative of the States and Territories. Nevertheless, I have commented upon uniformity of benefits and the manner of collecting contributions; continuance of portability; privatisation; workplace bargaining over long service entitlements; and discretionary benefits. I recommend that the Commonwealth encourage the States and Territories to ensure that moneys held or received by long service funds should be used only for the purpose of paying employees long service entitlements. Training funds 41 Training is, essentially, an expense. It is paid for in different ways. These include government grants, industry levies, industry contributions and subsidies. 42 Training funds are one of the mechanisms used to co-ordinate the receipt and distribution of money to be spent on training. They are therefore different in character to superannuation, redundancy and long service funds, which are established and operated principally to fund employee financial entitlements. Training funds form part of the framework for the delivery of vocational education and training in the building and construction industry. 43 In the Redundancy and Long Service Leave chapters, and in the Training chapter within the National Overview volumes, I detail the manner in which training is funded by various industry and government bodies. I detail the amounts of money that are spent on training, and the proportion of funds for training provided by the Commonwealth, States and Territories and industry. I identify the schemes through which the funding is provided (for example, the Australian National Training Authority (ANTA)) and the State and Territory bodies which administer the money provided. It is unnecessary for me to repeat that material here. However, I concluded that the lack of clarity and transparency regarding funding for training, leaves training funds and funding for training open to mismanagement and, on occasion, abuse. 44 For example, in 1998, a grant of approximately $1 million was made to the Western Australian College of Electrical Training Incorporated (CETI). The grant was made to enable it to purchase and establish a training college. The grant was contingent upon industry, in this case the Electrical Contractors Association of Western Australia Incorporated (ECAWA), contributing funds to at least match the value of the grant. The grant money was provided by ANTA to be administered by the Western Australian Department of Training (WA DOT). In the event, the 14 Final Report of the Royal Commission into the Building and Construction Industry

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