2014 review of default fund terms - [2014] FWCFB 1146

[2014] FWCFB 1146

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s.156A - 4 yearly review of default fund terms

2014 review of default fund terms
(AM2014/6)

SENIOR DEPUTY PRESIDENT ACTON
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER BULL
COMMISSIONER JOHNS
MR APTED
MR HARCOURT

MELBOURNE, 11 MARCH 2014

Four yearly review of default fund terms in modern awards.

Introduction

[1] On 30 January 2014, the Fair Work Commission (the Commission) issued a statement about the 2014 review of default fund terms of modern awards, in particular the making of the Default Superannuation List (the List) and the Schedule of Approved Employer MySuper Products (the Schedule). The statement sought submissions on draft notices and draft forms attached to the statement, and about the timetable for making applications and other process issues. 1

[2] Submissions were received from the following bodies:

● Rio Tinto Limited
● Australian Chamber of Commerce and Industry
● First State Superannuation
● Retail Employees Superannuation Trust
● The Australian Industry Group
● Australian Institute of Superannuation Trustees
● BT Financial Group
● Towers Watson Australia Pty Ltd
● The Association of Superannuation Funds of Australia Limited
● Sunsuper Pty Ltd
● MLC Limited
● Australian Council of Trade Unions ● Industry Super Australia Pty Ltd. on behalf of Industry Super Australia Pty Ltd., AustralianSuper, AustSafe Pty Ltd., CARE Super Pty Ltd, Energy Supply Industry Superannuation (Qld) Ltd. (Energy Super), First Super Pty Ltd., H.E.S.T. Australia Ltd (HESTA), HOSTPLUS Pty Ltd, Legal Super Pty Ltd., LUCRF Pty Ltd, Media Super Ltd., MTAA Superannuation Fund, NGS Super Pty Ltd., REI Superannuation Fund Pty Ltd., TWU Nominees Ltd (TWUSUPER), and United Super Pty Ltd (Cbus Super)
● Mercer (Australia) Pty Ltd
● Australian Meat Industry Superannuation Trust
● AustSafe Super
● Financial Services Council
● Independent Fund Administrators and Advisers Pty Ltd on behalf of Club Super and QIEC Super

[3] The Commission also conducted a hearing on the matters on 13 February 2014.

[4] In submissions and at the hearing, some proposed the Commission delay in conducting the 2014 review of default fund terms in modern awards, sought advice from the Commission on how it would interpret various provisions of the Fair Work Act 2009 (Cth) (FW Act) and the particular information it required in respect of such provisions, suggested the Commission conduct its own research and wanted the Commission to take other action which would pre-empt its determinations.

[5] We will proceed in accordance with the FW Act, by conducting the four yearly review of default fund terms of modern awards as soon as practicable after 1 January 2014, publishing notices, inviting applications, providing a reasonable opportunity for written submissions and, if necessary, conducting hearings prior to making determinations on whether to include particular MySuper products on the List or the Schedule and making the List and the Schedule.

[6] There were some suggestions made in the written submissions and at the hearing about changes to the draft forms and proposals about the timetable for the making of applications and written submissions. We deal with these matters below.

Forms

[7] Consistent with changes which were broadly supported, we will make provision in the application forms for applicants to make additional submissions if they wish to do so. Further, without indicating the weight if any that we would attach to such matters, we will give examples of the matters on which applicants may wish to provide other information or make additional submissions.

[8] We will also provide for applicants to identify information included in their application which they claim is confidential or commercially sensitive, make submissions on the bases of such a claim and provide a summary of that information.

[9] We emphasise, however, that this will not mean the information they claim is confidential or commercially sensitive will automatically be treated as such or that the particular summary they provide will be published. The Commission will still need to be satisfied the information is confidential or commercially sensitive and decide whether or not to publish it. If the Commission decides not to publish it, the Commission will need to publish a summary of the information containing sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

[10] We will also make some other changes of a technical nature to the application forms, such as expanding the applicant details part of an application to include an employer MySuper product on the Schedule. This should better accommodate any joint applications by a superannuation fund and an employer where the fund and the employer are separately represented. In addition, we will make provision for identification of the employer to which an employer MySuper product relates, bearing in mind the statutory obligation to ensure such an employer and their employees have a reasonable opportunity to make certain written submissions. Further, we will enable those making written submissions in respect of an employer MySuper product to identify whether they are such an employer, employee or relevant organisation having regard to s.156T of the FW Act.

Timetable

[11] The submissions on the period the Commission should allow for applications and written submissions ranged from around a month to several months.

[12] We will require applications to the Commission to have a standard MySuper product included on List and applications to the Commission to have an employer MySuper product included on the Schedule to be lodged with the Commission by Monday, 28 April 2014. The applications lodged will be published on the Commission’s website at We will require those wanting to make written submissions to the Commission in relation to a lodged application to have a standard MySuper product included on the List and/or in relation to a lodged application to have an employer MySuper product included on the Schedule and whether the employer MySuper Product satisfies the first stage test and/or the second stage test to do so by Tuesday, 10 June 2014. Written submissions received by the Commission will be published on the Commission’s website.

[14] Having regard to the applications and written submissions received in accordance with the above timetable, the Commission will then consider whether it should call for further written submissions, including submissions in reply, and/or conduct hearings in relation to the applications and written submissions received. Information about any future proceedings will be advised to those who have lodged an application or made a written submission and will also be published on the Commission’s website.

[15] We consider concurrent process in respect of the List and the Schedule will assist in the review of the default fund terms of modern awards. That review requires the Commission to, amongst other things, ensure a term complies with s.149D of the FW Act, including that the term permits an employer covered by a modern award to make contributions to a superannuation fund that offers an employer MySuper product that relates to the employer and is on the Schedule.

Conclusion

[16] The Commission has received written submissions and conducted a hearing on procedural issues associated with the 2014 review of default fund terms of modern awards. As a result, attached to this statement are:

●	Attachment A -	A notice about the making of the Default Superannuation List.
●	Attachment B -	Information about Form F75, being the application form to list a standard MySuper product on the Default Superannuation List, and Form F75.
●	Attachment C -	Information about Form F76, being the written submission form in response to an application/s to list a standard MySuper product on the Default Superannuation List, and Form F76.
●	Attachment D -	A notice about the making of the Schedule of Approved Employer MySuper Products.
●	Attachment E -	Information about Form F77, being the application form to include an employer MySuper product on the Schedule of Approved Employer MySuper Products, and Form F77.
●	Attachment F -	Information about Form F78, being the written submission form in response to an application/s to include an employer MySuper Product on the Schedule of Approved Employer MySuper Products, and Form F78.

[17] The notices, information and forms will be published and made available on the Commission’s website.

[18] The President of the Commission has issued a separate statement on potential conflict matters raised in the written submissions and hearing.

SENIOR DEPUTY PRESIDENT

ATTACHMENT A

NOTICE

Making the Default Superannuation List

Applications

Pursuant to s.156C of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Commission (the Commission) invites superannuation funds that offer a standard MySuper product to apply to the Commission to have the product included on the Default Superannuation List in accordance with the below:

Timetable: Applications must be lodged with the Commission by Monday, 28 April 2014.

Process: Applications should be lodged using the Commission’s Form F75. The preferred method of lodging your application is by email to [email protected].

First stage criteria: Applications must provide information relating to the first stage criteria that the Commission is required to take into account in determining whether to include the product on the list. The first stage criteria are set out in s.156F of the FW Act and the Commission’s Form F75 enables applicants to provide information on the first stage criteria.

Publication: The Commission will publish all applications on its website, provided that if an application includes information that is claimed by the superannuation fund to be confidential or commercially sensitive, and the Commission is satisfied that the information is confidential or commercially sensitive:

(a) the Commission may decide not to publish the information; and

(b) if it does so, it will instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

Written submissions

Those wanting to make a written submission to the Commission in relation to an application/s lodged by a superannuation fund that offers a standard MySuper product to have the product included on the Default Superannuation List may do so in accordance with the below:

Timetable: Written submissions must be lodged with the Commission by Tuesday, 10 June 2014.

Process: Written submissions should be lodged using the Commission’s Form F76. The preferred method of lodging your written submissions is by email to [email protected].

Disclosure of interest: If a person or body who makes a written submission in relation to an application has an interest in relation to the superannuation fund that made the application, or in relation to another superannuation fund referred to in their submission, the person or body must disclose that interest in their submission.

Publication: The Commission will publish written submissions on its website.

Future proceedings

After it has received the abovementioned applications and written submissions, the Commission may call for further submissions, including reply submissions, and/or conduct hearings for the purpose of making the Default Superannuation List. Information about any future proceedings will be advised to those who have lodged an application or made a written submission and will also be published on the Commission’s website.

Further information

Further information about the making and purpose of the Default Superannuation List is contained in Division 4A of Part 2-3 of the FW Act and on the Commission’s website at color="#333333">ATTACHMENT B

About the F75 Application Form

Application to list a standard MySuper product on the Default Superannuation List

About superannuation fund reviews

Most modern awards contain a superannuation clause requiring an employer to make sufficient superannuation contributions to a superannuation fund for the benefit of an employee to avoid the employer having to pay the legislated superannuation guarantee charge. The contributions are to be made to a superannuation fund specified in the modern award, a default fund, unless the employee has chosen another fund for the contributions.

Division 4A of the Fair Work Act 2009 requires the Fair Work Commission (the Commission) to review the default fund terms in modern awards every 4 years. The first stage of the review will include the Commission's Expert Panel on default funds making and publishing a Default Superannuation List.

Who can use this form

Use this form if:

- you are a superannuation fund that offers a standard MySuper product.

Lodgment of your completed form

You must lodge your application along with any accompanying documents with the Commission by Monday, 28 April 2014. The preferred method of lodging your application is by email to [email protected].

When you complete this application form, you must address each of the first stage criteria by answering questions 2.1 to 2.9. You may also provide any other information you think is relevant to your application by answering question 3 and any other submissions you wish to make by answering question 4. You may claim particular information included in the application form is confidential or commercially sensitive by answering question 5. Where attachments are required relating to specific questions please number the attachment with the relevant question number.

Where to get help

Commission staff & resources

Commission staff cannot provide legal advice. However, staff can give you information on:

- processes in the Commission

- how to make an application to the Commission

- how to fill out forms

- where to find useful documents such as legislation and decisions

- other organisations that may be able to assist you.

The Commission's website also contains a range of information that may assist.

Fair Work Commission Approved Forms - Approved 11 March 2014 1/8

Throughout this form

This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation

Representation is where another person, such as a lawyer, speaks or acts on your behalf in relation to your matter. There is no requirement for you to be represented when you appear at the Commission.

If you decide to represent yourself in proceedings you will need to make sure you are well prepared.

Glossary of common terms

Default fund employee—means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth).

MySuper product—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Standard MySuper product—means a MySuper product that is not an employer MySuper product.

Employer MySuper product—means a tailored MySuper product or a corporate MySuper product.

Tailored MySuper product—means a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

Corporate MySuper product—means a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer-sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has:

(i) one standard employer-sponsor (within the meaning of that Act); or

(ii) 2 or more standard employer-sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.

RSE licensee—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Remove this cover sheet and keep for future reference—it contains useful information.

Fair Work Commission Approved Forms - Approved 11 March 2014 2/8

FAIR WORK COMMISSION

Form F75—Application to list a standard MySuper product on the Default Superannuation List

Fair Work Act 2009, s.156C

This is an application to the Fair Work Commission (the Commission) for the listing of a standard MySuper product on the Default Superannuation List in accordance with section 156C of the Fair Work Act 2009.

(Note: This application will be published on the Commission website subject to section 156C(6) of the Fair Work Act 2009.)

The Applicant

These are the details of the superannuation fund that is making the application.
RSE Licensee Name
RSE Licensee ABN
Entity Name
Entity ABN
Registration Number
Standard MySuper Product Name
MySuper Product Unique Identifier Number
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

Does the Applicant have a representative?

A representative is a person or business who is representing the Applicant. This might be a lawyer. There is no requirement to have a representative.

☐ Yes—Provide representative’s details below

☐ No

Fair Work Commission Approved Forms - Approved 11 March 2014 3/8

FAIR WORK COMMISSION
Form F75—Application to list a standard MySuper product on the Default Superannuation List

Applicant’s representative

These are the details of the person or business who is representing the Applicant.
Name of person
Firm, union or company
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

1. Standard MySuper Product

1.1 The name of the standard MySuper Product sought to be included on the Default Superannuation List.

1.2 Please provide by way of attachment documentary evidence of authority to offer the standard MySuper Product from the Australian Prudential Regulatory Authority (APRA) (i.e. the APRA “Authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product” documentation).

1.3 Have you made other application/s to list a standard MySuper product?

☐ Yes

☐ No

If Yes, please provide details, including the Commission matter number for the application/s where available.

2. First Stage Criteria (s.156F)

The Commission must not determine that a standard MySuper product is to be included on the Default Superannuation List unless it is satisfied that including the product on the list would be in the best interests of default fund employees to whom modern awards apply or a particular class of those employees, taking into account the information provided in the application, the first stage criteria and any submissions made in relation to the application.

Fair Work Commission Approved Forms - Approved 11 March 2014 4/8

FAIR WORK COMMISSION
Form F75—Application to list a standard MySuper product on the Default Superannuation List

Please provide information relating to each of the first stage criteria as set out below, and any submissions, documentary material and other evidence on which you rely in support of the information.

2.1 The appropriateness of the MySuper product’s long term investment return target and risk profile (s.156F(a)).

Attach additional pages if necessary.

2.2 The superannuation fund’s expected ability to deliver on the MySuper product’s long term investment return target, given its risk profile (s.156F(b)).

Attach additional pages if necessary.

2.3 The appropriateness of the fees and costs associated with the MySuper product, given:

(i) its stated long term investment return target and risk profile (s.156F(c)(i)); and

(ii) the quality and timeliness of services provided (s.156F(c)(ii)).

Attach additional pages if necessary.

2.4 The net returns on contributions invested in the MySuper product (s.156F(d)).

Attach additional pages if necessary.

2.5 Whether the superannuation fund’s governance practices are consistent with meeting the best interests of members of the fund, including whether there are mechanisms in place to deal with conflict of interest (s.156F(e)).

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 5/8

FAIR WORK COMMISSION
Form F75—Application to list a standard MySuper product on the Default Superannuation List

2.6 The appropriateness of any insurance offered in relation to the MySuper product (s.156F(f)).

Attach additional pages if necessary.

2.7 The quality of advice given to a member of the superannuation fund relating to the member’s existing interest in the fund and products offered by the fund (s.156F(g)).

Attach additional pages if necessary.

2.8 The administrative efficiency of the superannuation fund (s.156F(h)).

Attach additional pages if necessary.

2.9 Any other matters you think the Commission should consider relevant as part of the first stage criteria (s.156F(i)).

Attach additional pages if necessary.

3. Other information (s.156E(2)(a))

Please provide any other information you think is relevant to your application (e.g. the modern awards in which you consider the superannuation fund in relation to the MySuper product should be specified; the modern awards in which the superannuation fund in relation to the MySuper product is currently specified; and the modern awards in which the superannuation fund in relation to the MySuper product is currently covered by the “grandfathering” provision in the default fund term of the modern award).

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 6/8

FAIR WORK COMMISSION
Form F75—Application to list a standard MySuper product on the Default Superannuation List

4. Other submissions

Please provide any other submissions you wish to make (e.g. why including the MySuper product on the Default Superannuation List would be in the best interests of default fund employees to whom modern awards apply or a particular class of those employees).

Attach additional pages if necessary.

5. Confidential or commercially sensitive information (s.156C(6))

If an application includes information that is claimed by the applicant to be confidential or commercially sensitive, and the Commission is satisfied the information is confidential or commercially sensitive:

(a) the Commission may decide not to publish the information; and

(b) if the Commission does so decide, it must instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

5.1 Please identify below the information included in your application which you claim is confidential or commercially sensitive and provide written submissions on why the information is confidential or commercially sensitive.

Attach additional pages if necessary.

5.2 Please provide a summary of the information you claim is confidential or commercially sensitive for publication on the Commission’s website, including sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 7/8

FAIR WORK COMMISSION
Form F75—Application to list a standard MySuper product on the Default Superannuation List

Signature

Signature
If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field. You must still complete all the fields below.
Name
Position
Date
PLEASE RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

Fair Work Commission Approved Forms - Approved 11 March 2014 8/8

ATTACHMENT C

About the F76 Submission Form

Submission in response to an application/s to list a

standard MySuper product on the Default Superannuation List

About superannuation fund reviews

Who can use this form

Use this form if:

- you are a person or body making a written submission in relation to an Application/s that has been lodged by another to list a standard MySuper product on the Default Superannuation List

- you should complete a separate Form F76 in relation to an application/s you support from any application/s you do not support.

Lodgment of your completed form

You must lodge your submission along with any accompanying documents with the Commission by Tuesday, 10 June 2014. The preferred method of lodging your written submission is by email to [email protected].

Where to get help

Commission staff & resources

Commission staff cannot provide legal advice. However, staff can give you information on:

- processes in the Commission

- how to make an application to the Commission

- how to fill out forms

- where to find useful documents such as legislation and decisions

- other organisations that may be able to assist you.

The Commission's website also contains a range of information that may assist.

Fair Work Commission Approved Forms - Approved 11 March 2014 1/5

Throughout this form

This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation

Representation is where another person (such as a lawyer, an employer association or a union) speaks or acts on your behalf in relation to your matter. There is no requirement for you to be represented when you appear at the Commission.

If you decide to represent yourself in proceedings you will need to make sure you are well prepared.

Glossary of common terms

Default fund employee—means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth).

MySuper product—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Standard MySuper product—means a MySuper product that is not an employer MySuper product.

Employer MySuper product—means a tailored MySuper product or a corporate MySuper product.

Tailored MySuper product—means a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

Corporate MySuper product—means a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer-sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has:

(i) one standard employer-sponsor (within the meaning of that Act); or

(ii) 2 or more standard employer-sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.

RSE licensee—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Remove this cover sheet and keep for future reference—it contains useful information

Fair Work Commission Approved Forms - Approved 11 March 2014 2/5

FAIR WORK COMMISSION

Form F76—Submission in response to an application/s to list a standard MySuper product on the Default Superannuation List

Fair Work Act 2009, s.156D

This form can be used to make a written submission in relation to an application/s made under subsection 156C(3) to the Fair Work Commission (the Commission) for the listing of a standard MySuper product on the Default Superannuation List. You should complete a separate Form F76 in relation to an application/s you support from an application/s you do not support.

(Note: This submission will be published on the Commission website as required by section 156D(3) of the Fair Work Act 2009.)

Contact details

These are the details of the person or body making the submission.
Name of person or body
RSE Licensee Name (if applicable)
RSE Licensee ABN (if applicable)
Entity Name (if applicable)
Entity ABN (if applicable)
Registration Number (if applicable)
Legal name of employer (if applicable)
Trading name of employer (if applicable)
ACN/ABN (if applicable)
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

Fair Work Commission Approved Forms - Approved 11 March 2014 3/5

FAIR WORK COMMISSION
Form F76—Submission in response to an application/s to list a standard MySuper product on the Default Superannuation List

Do you have a representative?

A representative is a person or business who is representing you. This might be a lawyer, an employer association or a union. There is no requirement to have a representative.

☐ Yes—Provide representative’s details below

☐ No

Representative

These are the details of the person or business who is representing you.
Name of person
Firm, union or company
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

1. Details of the application/s the submission relates to

1.1 Identify the application/s that this submission relates to.

(You should complete a separate Form F76 for your written submissions in relation to an application/s you support from any application/s you do not support.)

Please provide at least the Commission matter number for the application/s.

1.2 Do you support the application/s to list the standard MySuper product on the Default Superannuation List?

☐ Yes

☐ No

2. Written Submissions

The Commission must not determine that a standard MySuper product is to be included on the Default Superannuation List unless it is satisfied that including the product on the list would be in the best interests of the default fund employees to whom modern awards apply, or a particular class of those employees, taking into account the information provided in the application, the first stage criteria and any submissions made in relation to the application.

Fair Work Commission Approved Forms - Approved 11 March 2014 4/5

FAIR WORK COMMISSION
Form F76—Submission in response to an application/s to list a standard MySuper product on the Default Superannuation List

Please provide your written submissions in relation to the application/s, and any documentary material and other evidence on which you rely in support of your submissions.

Attach additional pages if necessary.

3. Disclosure of interest

If you have an interest in relation to the superannuation fund that made the application/s, or another superannuation fund you have referred to in your submission, then you must disclose the nature of that interest below.

Attach additional pages if necessary.

Signature

Signature
If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field. You must still complete all the fields below.
Name
Position
Date

PLEASE RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

Fair Work Commission Approved Forms - Approved 11 March 2014 5/5

ATTACHMENT D

NOTICE

Making the Schedule of Approved Employer MySuper Products

Applications

Pursuant to s.156M of the Fair Work Act 2009 (Cth) (FW Act), the Fair Work Commission (the Commission) invites superannuation funds that offer an employer MySuper product and/or employers to which an employer MySuper product relates to apply to the Commission to have the product included on the Schedule of Approved Employer MySuper Products in accordance with the below:

Timetable: Applications must be lodged with the Commission by Monday, 28 April 2014.

Process: Applications should be lodged using the Commission’s Form F77. The preferred method of lodging your application is by email to [email protected].

First stage criteria: Applications must provide information relating to the first stage criteria that the Commission is required to take into account in determining whether to include the product on the schedule. The first stage criteria are set out in s.156F of the FW Act and the Commission’s Form F77 enables applicants to provide information on the first stage criteria.

(a) the Commission may decide not to publish the information; and

(b) if it does so, it will instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

Written submissions

Those wanting to make a written submission to the Commission in relation to an application/s that has been lodged by a superannuation fund that offers an employer MySuper product and/or an employer to which an employer MySuper product relates to have the product included on the Schedule of Approved Employer MySuper Products, and whether the employer MySuper product satisfies the first stage test and/or the second stage test, may do so in accordance with the below:

Timetable: Written submissions must be lodged with the Commission by Tuesday, 10 June 2014.

Process: Written submissions should be lodged using the Commission’s Form F78. The preferred method of lodging your written submission is by email to [email protected].

First stage test and second stage test: The first stage test is set out in s.156Q of the FW Act and the second stage test is set out in s.156S of the FW Act. The Commission’s Form F78 assists those wanting to make written submissions on the first stage test and/or the second stage test.

Disclosure of interest: If a person or body who makes a written submission in relation to whether a product satisfies the first stage test and/or the second stage test has an interest in relation to the superannuation fund that offers the product, or in relation to another superannuation fund referred to in their submission, the person or body must disclose that interest in their submission.

Publication: The Commission will publish written submissions on its website.

Future proceedings

After it has received the abovementioned applications and written submissions, the Commission may call for further written submissions, including reply submissions, and/or conduct hearings for the purpose of making the Schedule of Approved Employer MySuper Products. Information about any future proceedings will be advised to those who have lodged an application or made a written submission and will also be published on the Commission’s website.

Further information

Further information about the making and purpose of the Schedule of Approved Employer MySuper Products is contained in Division 4A of Part 2 - 3 of the FW Act and on the Commission’s website:

ATTACHMENT E

About the F77 Application Form

Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

About superannuation fund reviews

Division 4A of the Fair Work Act 2009 requires the Fair Work Commission (the Commission) to review the default fund terms in modern awards every 4 years. The four yearly review will include the Commission's Expert Panel on default funds making and publishing a Schedule of Approved Employer MySuper Products.

Who can use this form

Use this form if:

- you are a superannuation fund that offers an employer MySuper product or an employer to which an employer MySuper product relates. A superannuation fund and an employer to which an employer MySuper product relates may also make a joint application on the one form.

Lodgment of your completed form

When you complete this application form, you must address each of the first stage criteria by answering questions 2.1 to 2.9. You may address the second stage test for employer MySuper products by answering question 3. You may also provide any other information you think is relevant to your application by answering question 4 and any other submissions you wish to make by answering question 5. You may claim particular information included in the application form is confidential or commercially sensitive by answering question 6. Where attachments are required relating to specific questions please number the attachment with the relevant question number.

Commission staff & resources

Commission staff cannot provide legal advice. However, staff can give you information on:

- processes in the Commission

- how to make an application to the Commission

- how to fill out forms

- where to find useful documents such as legislation and decisions

- other organisations that may be able to assist you.

Fair Work Commission Approved Forms - Approved 11 March 2014 1/9

The Commission's website also contains a range of information that may assist.

Throughout this form

This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation

If you decide to represent yourself in proceedings you will need to make sure you are well prepared.

Glossary of common terms

Default fund employee—means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth).

MySuper product—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Standard MySuper product—means a MySuper product that is not an employer MySuper product.

Employer MySuper product—means a tailored MySuper product or a corporate MySuper product.

Tailored MySuper product—means a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

Corporate MySuper product—means a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer-sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has:

(i) one standard employer-sponsor (within the meaning of that Act); or

(ii) 2 or more standard employer-sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.

RSE licensee—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Remove this cover sheet and keep for future reference—it contains useful information

Fair Work Commission Approved Forms - Approved 11 March 2014 2/9

FAIR WORK COMMISSION

Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Fair Work Act 2009, s.156N

This is an application to the Fair Work Commission (the Commission) to include an employer MySuper product on the Schedule of Approved Employer MySuper Products in accordance with section 156N of the Fair Work Act 2009.

(Note: This application will be published on the Commission website subject to section 156N(5) of the Fair Work Act 2009.)

The Applicant

These are the details of the superannuation fund and/or employer who is making the application.
Superannuation fund Applicant (if applicable)
Name of superannuation fund
RSE Licensee Name (if applicable)
RSE Licensee ABN (if applicable)
Entity Name (if applicable)
Entity ABN (if applicable)
Registration Number (if applicable)
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

Does the Superannuation fund Applicant have a representative?

A representative is a person or business who is representing the Superannuation fund Applicant. This might be a lawyer. There is no requirement to have a representative.

☐ Yes—Provide representative’s details below

☐ No

Fair Work Commission Approved Forms - Approved 11 March 2014 3/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Superannuation fund Applicant’s representative

These are the details of the person or business who is representing the Superannuation fund Applicant.
Name of person
Firm, union or company
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address
Employer Applicant (if applicable)
Legal name of employer
Trading name of employer (if applicable)
ACN/ABN
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

Does the employer Applicant have a representative?

A representative is a person or business who is representing the employer Applicant. This might be a lawyer. There is no requirement to have a representative.

☐ Yes—Provide representative’s details below

☐ No

Fair Work Commission Approved Forms - Approved 11 March 2014 4/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Employer Applicant’s representative

These are the details of the person or business who is representing the employer Applicant.
Name of person
Firm, union or company
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

1. Employer MySuper Product

1.1 The name of the employer MySuper product sought to be included on the Schedule of Approved Employer MySuper Products.

1.2 The unique identifier number of the employer MySuper product sought to be included on the Schedule of Approved Employer MySuper Products.

1.3 The legal and, if applicable, trading name of the employer to which the employer MySuper product relates.

1.4 Please provide by way of attachment documentary evidence of authority to offer the employer MySuper product from the Australian Prudential Regulatory Authority (APRA) (i.e. the APRA “Authority to offer a class of beneficial interest in a regulated superannuation fund as a MySuper product” documentation).

1.5 Have you made other application/s to schedule an employer MySuper product?

☐ Yes

☐ No

If Yes, please provide details, including the Commission matter number for the application/s where available.

Fair Work Commission Approved Forms - Approved 11 March 2014 5/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

2. The First Stage Test (s.156Q)

The Commission must not determine that an employer MySuper product is to be included on the Schedule of Employer MySuper Products unless the product satisfies the first stage and second stage tests.

An employer MySuper product satisfies the first stage test if the Commission is satisfied that including the product on the Schedule of Employer MySuper Products would be in the best interests of default fund employees, or a particular class of those employees, taking into account the information provided in the application, the first stage criteria and any submissions made in relation to whether the product satisfies the first stage test.

Please provide information relating to each of the first stage criteria as set out below, and any submissions, documentary material and other evidence on which you rely in support of the information.

2.1 The appropriateness of the MySuper product’s long term investment return target and risk profile (s.156F(a)).

Attach additional pages if necessary.

2.2 The superannuation fund’s expected ability to deliver on the MySuper product’s long term investment return target, given its risk profile (s.156F(b)).

Attach additional pages if necessary.

2.3 The appropriateness of the fees and costs associated with the MySuper product, given:

(i) its stated long term investment return target and risk profile (s.156F(c)(i)); and

(ii) the quality and timeliness of services provided (s.156F(c)(ii)).

Attach additional pages if necessary.

2.4 The net returns on contributions invested in the MySuper product (s.156F(d)).

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 6/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Attach additional pages if necessary

2.6 The appropriateness of any insurance offered in relation to the MySuper product (s.156F(f)).

Attach additional pages if necessary.

2.7 The quality of advice given to a member of the superannuation fund relating to the member’s existing interest in the fund and products offered by the fund (s.156F(g)).

Attach additional pages if necessary.

2.8 The administrative efficiency of the superannuation fund (s.156F(h)).

Attach additional pages if necessary.

2.9 Any other matters you think the Commission should consider relevant as part of the first stage criteria (s.156F(i)).

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 7/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

3. The Second Stage Test (s.156S)

An employer MySuper product satisfies the second stage test if the Commission is satisfied that including the product on the Schedule of Employer MySuper Products would be in the best interests of default fund employees of an employer to whom the product relates, or a particular class of those employees, taking into account any submissions made in relation to whether the employer MySuper product satisfies the second stage test and any other matter the Commission considers relevant.

Please provide your written submissions in relation to whether the employer MySuper product satisfies the second stage test and any other matter you think the Commission should consider relevant as part of the second stage test, and any documentary material and other evidence on which you rely in support of your submission.

Attach additional pages if necessary.

4. Other information (s.156Q(a))

Please provide any other information you think is relevant to your application.

Attach additional pages if necessary.

5. Other submissions

Please provide any other submissions you wish to make (e.g. why including the Employer MySuper Product on the Schedule of Approved Employer MySuper Products would be in the best interests of default fund employees, or a particular class of those employees, and/or would be in the best interests of default fund employees of an employer to which the product relates, or a particular class of those employees).

Attach additional pages if necessary.

6. Confidential or commercially sensitive information (s.156N(5))

If an application includes information that is claimed by the applicant to be confidential or commercially sensitive, and the Commission is satisfied the information is confidential or commercially sensitive:

(a) the Commission may decide not to publish the information; and

(b) if the Commission does so decide, it must instead publish a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

Fair Work Commission Approved Forms - Approved 11 March 2014 8/9

FAIR WORK COMMISSION
Form F77—Application to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

6.1 Please identify below the information included in your application which you claim is confidential or commercially sensitive and provide written submissions on why the information is confidential or commercially sensitive.

Attach additional pages if necessary.

6.2 Please provide a summary of the information you claim is confidential or commercially sensitive for publication on the Commission’s website, including sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive).

Attach additional pages if necessary.

Signature

Signature
If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field. You must still complete all the fields below.
Name
Position
Date
PLEASE RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

Fair Work Commission Approved Forms - Approved 11 March 2014 9/9

ATTACHMENT F

About the F78 Submission Form

Submission in response to an application/s to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

About superannuation fund reviews

Who can use this form

Use this form if:

n you are a person or body making a written submission in relation to an Application/s that has been lodged by another to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

n you should complete a separate Form F78 in relation to an application/s you support from any application/s you do not support.

Lodgment of your completed form

Where to get help

Commission staff & resources

Commission staff cannot provide legal advice. However, staff can give you information on:

- processes in the Commission

- how to make an application to the Commission

- how to fill out forms

- where to find useful documents such as legislation and decisions

- other organisations that may be able to assist you.

The Commission's website also contains a range of information that may assist.

Fair Work Commission Approved Forms - Approved 11 March 2014 1/6

Throughout this form

This icon appears throughout the form. It indicates useful information to help you answer the question following.

Legal or other representation

If you decide to represent yourself in proceedings you will need to make sure you are well prepared.

Glossary of common terms

Default fund employee—means an employee who has no chosen fund within the meaning of the Superannuation Guarantee (Administration) Act 1992 (Cth).

MySuper product—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Standard MySuper product—means a MySuper product that is not an employer MySuper product.

Employer MySuper product—means a tailored MySuper product or a corporate MySuper product.

Tailored MySuper product—means a MySuper product in relation to which section 29TB of the Superannuation Industry (Supervision) Act 1993 is satisfied.

Corporate MySuper product—means a MySuper product that is offered by a superannuation fund that:

(a) is a standard employer-sponsored fund (within the meaning of the Superannuation Industry (Supervision) Act 1993); and

(b) is not a public offer superannuation fund (within the meaning of that Act); and

(c) has:

(i) one standard employer-sponsor (within the meaning of that Act); or

(ii) 2 or more standard employer-sponsors (within the meaning of that Act) that are associates of each other for the purposes of that Act.

RSE licensee—has the meaning given by the Superannuation Industry (Supervision) Act 1993 (Cth).

Remove this cover sheet and keep for future reference—it contains useful information

Fair Work Commission Approved Forms - Approved 11 March 2014 2/6

FAIR WORK COMMISSION

Form F78—Submission in response to an application/s to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Fair Work Act 2009, s.156R,156T

This form can be used to make a written submission in relation to an application/s made under section 156N to the Fair Work Commission (the Commission) to include an employer MySuper product on the Schedule of Approved Employer MySuper Products. You should complete a separate Form F78 in relation to an application/s you support from an application/s you do not support.

(Note: This submission will be published on the Commission website as required by sections 156R(3) and 156T(3) of the Fair Work Act 2009.)

Contact details

These are the details of the person or body making the submission.
Name of person or body
RSE Licensee Name (if applicable)
RSE Licensee ABN (if applicable)
Entity Name (if applicable)
Entity ABN (if applicable)
Registration Number (if applicable)
Legal name of employer (if applicable)
Trading name of employer (if applicable)
ACN/ABN (if applicable)
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

Fair Work Commission Approved Forms - Approved 11 March 2014 3/6

FAIR WORK COMMISSION
Form F78—Submission in response to an application/s to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

Do you have a representative?

A representative is a person or business who is representing you. This might be a lawyer, an employer association or a union. There is no requirement to have a representative.

☐ Yes—Provide representative’s details below

☐ No

Representative

These are the details of the person or business who is representing you.
Name of person
Firm, union or company
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

1. Details of the application/s the submission relates to

1.1 Identify the application/s that this submission relates to.

(You should complete a separate Form F78 for your written submissions in relation to an application/s you support from any application/s you do not support.)

Please provide at least the Commission matter number for the application/s.

1.2 Do you support the application/s to include the employer MySuper product on the Schedule of Approved Employer MySuper Products?

☐ Yes

☐ No

1.3 Identify which of the following you are:

☐ An employer to which the employer MySuper product relates

☐ An employee of an employer to which the employer MySuper product relates

☐ An organisation entitled to represent the industrial interests of an employer to which the employer MySuper product relates or an employee of such an employer

☐ None of the above

Fair Work Commission Approved Forms - Approved 11 March 2014 4/6

FAIR WORK COMMISSION
Form F78—Submission in response to an application/s to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

2. First Stage Test (s.156Q)—written submissions

The Commission must not determine that an employer MySuper product is to be included on the Schedule of Employer MySuper Products unless the product satisfies the first and second stage tests.

An employer MySuper product satisfies the first stage test if the Commission is satisfied that including the product on the Schedule of Employer MySuper Products would be in the best interests of default fund employees, or a particular class of those employees, taking into account the information provided in the application, the first stage criteria and any submissions made in relation to whether the product satisfies the first stage test.

Please provide your written submissions in relation to whether the employer MySuper product satisfies the first stage test, and any documentary material and other evidence on which you rely in support of your submissions.

Attach additional pages if necessary.

3. Second Stage Test (s.156S)—written submissions

Please provide your written submissions in relation to whether the employer MySuper product satisfies the second stage test and any other matter you think the Commission should consider relevant as part of the second stage test, and any documentary material and other evidence on which you rely in support of your submissions.

Attach additional pages if necessary.

Fair Work Commission Approved Forms - Approved 11 March 2014 5/6

FAIR WORK COMMISSION
Form F78—Submission in response to an application/s to include an employer MySuper product on the Schedule of Approved Employer MySuper Products

4. Disclosure of interest

Attach additional pages if necessary.

Signature

Signature
If you are completing this form electronically and you do not have an electronic signature you can attach, it is sufficient to type your name in the signature field. You must still complete all the fields below.
Name
Position
Date

PLEASE RETAIN A COPY OF THIS FORM FOR YOUR OWN RECORDS

Fair Work Commission Approved Forms - Approved 11 March 2014 6/6

1 2014 review of default fund terms, [2014] FWCFB 590.

Printed by authority of the Commonwealth Government Printer