[2014] FWCFB 3206 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.160—Variation of modern award
SENIOR DEPUTY PRESIDENT ACTON |
MELBOURNE, 12 JUNE 2014 |
Superannuation.
Introduction
[1] On 30 December 2013, we issued a decision dealing with changes required to be made to modern awards pursuant to ss.149A and 155A and clauses 10 and 11 of Schedule 1 of the Fair Work Act 2009 (Cth) (FW Act). Part of that decision dealt with the deletion from modern awards of named superannuation funds that do not offer a MySuper product.
[2] The decision followed:
1. A statement from the Fair Work Commission (FWC) on 27 November 2013 outlining the provisions of the FW Act in respect of ss.149A and 155A, pointing out the FWC would publish draft determinations to give effect to the requirements in the FW Act in respect of the provisions, and inviting submissions by 10 December 2013 from interested persons on the published draft determinations.
2. Publication of the draft determinations on the FWC website on 2 December 2013.
3. A hearing on the published draft determinations on 13 December 2013 for the purpose of deciding the content of any final determinations.
[3] Numerous persons took advantage of the above process and provided the FWC with relevant submissions and/or appeared at the hearing. The FWC’s decision of 30 December 2013 was informed accordingly.
New applications
[4] Notwithstanding the above process, the FWC has now received 12 applications to vary modern awards to reinstate the name of certain superannuation funds that were deleted from the modern awards pursuant to the 30 December 2013 decision, or the inclusion of the name of their successor fund. The details of those applications are as follows:
Matter no. |
Applicant |
Award |
Award ID |
Fund Sought |
AM2014/50 |
Australian Federation of Air Pilots |
Air Pilots Award 2010 |
Aviation Industry Superannuation Trust | |
AM2014/52 |
The Australian Workers’ Union |
Aluminium Industry Award 2010 |
Westscheme | |
AM2014/53 |
The Australian Workers’ Union |
Concrete Products Award 2010 |
Westscheme | |
AM2014/59 |
United Voice |
Hospitality Industry (General) Award 2010 |
Westscheme | |
AM2014/48 |
Australian Municipal, Administrative, Clerical and Services Union |
Local Government Industry Award 2010 |
City of Perth Superannuation Fund | |
AM2014/57 |
StatewideSuper |
Local Government Industry Award 2010 |
Local Super | |
AM2014/60 |
FSS Trustee Corporation |
Medical Practitioners Award 2010 |
Health Super | |
AM2014/54 |
The Australian Workers’ Union |
Nursery Award 2010 |
Westscheme | |
AM2014/55 |
The Australian Workers’ Union |
Port Authorities Award 2010 |
Westscheme | |
AM2014/56 |
The Australian Workers’ Union |
Premixed Concrete Award 2010 |
Westscheme | |
AM2014/49 |
Australian Municipal, Administrative, Clerical and Services Union |
Water Industry Award 2010 |
City of Perth Superannuation Fund | |
AM2014/58 |
StatewideSuper |
Water Industry Award 2010 |
Local Super |
[5] The applicants in the above 12 matters seek to reinstate the named superannuation funds in the modern awards, or the inclusion of the name of their successor fund, on the basis that prior to 30 December 2013 the named superannuation funds transitioned to another named superannuation fund by way of a successor fund transfer and the named successor fund offers a MySuper product.
[6] All of the successor fund transfers are said to have taken place prior to 30 December 2013. As such, it is readily apparent that the applicants and/or the named successor funds (AustralianSuper, First State Super Fund and StatewideSuper) could have made submissions to the FWC in accordance with the timetable leading up to the 30 December 2013 decision which resulted in the deletion of the named superannuation funds from the modern awards. They did not do so.
[7] The FWC published the 12 applications now before us and draft determinations to give effect to the applications on its website on 16 April 2014, with the draft determinations including the name of the superannuation fund previously deleted rather than the name of their successor fund. The FWC invited submissions from interested persons on the applications and the draft determinations.
[8] No person made submissions in opposition to the applications or draft determinations. However, some sought the inclusion of the name of the successor fund rather than the reinstatement of the name of the deleted superannuation fund.
Conclusion
[9] We are satisfied ss.149A and 155A and clauses 10 and 11 of Schedule 1 of the FW Act did not require the named superannuation funds in the 12 applications to be deleted from the modern awards. The successor funds to those superannuation funds have MySuper products.
[10] Notwithstanding the failure of the applicants or the interested superannuation funds to raise these matters in the FWC proceedings prior to our 30 December 2013 decision when they could and should have, in the circumstances we will exercise our powers pursuant to s.160 of the FW Act to vary the modern awards in question in accordance with the draft determinations published on the FWC website in respect of the 12 applications.
[11] As we intimated in our 30 December 2013 decision, however, we are not persuaded we should include the name of their successor fund in the modern awards, rather than reinstate the name of the deleted superannuation fund. Sections 149A and 155A and clauses 10 and 11 of Schedule 1 of the FW Act do not require us to do so. Further, the relevant superannuation clauses apply to the “successor” of a named superannuation fund.
[12]The determinations to give effect to this decision will take effect from 1 January 2014.
SENIOR DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR550597>