2014 REVIEW OF DEFAULT FUND TERMS - [2014] FWCFB 590

[2014] FWCFB 590

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
MS ALLEN
MR APTED
MR GIBBS

MELBOURNE, 30 JANUARY 2014

Superannuation.

Introduction

[1] Section 156A of the Fair Work Act 2009 (Cth) (FW Act) requires the Fair Work Commission (the Commission) to conduct a four yearly review of the default fund terms of modern awards starting as soon as practicable after, in effect, 1 January 2014.

[2] A “default fund term” is a term of a modern award that requires, permits or prohibits an employer covered by the award to make contributions to a superannuation fund for the benefit of an employee (a default fund employee) who:

(a) is covered by the award; and

(b) has no chosen fund (within the meaning of the Superannuation Guarantee (Administration) Act 1992).

[3] There are two stages of the four yearly review. In the first stage, the Commission must make the Default Superannuation List for the purposes of the review. In the second stage, the Commission must review the default fund term of each modern award and make determinations varying the term in accordance with s.156H, and if it applies, s.156J of the FW Act.

[4] Section 156H of the FW Act provides that after reviewing the default fund term of a modern award, the Commission must make a determination varying the term to remove every specified superannuation fund and to specify at least two, but generally no more than 15, superannuation funds in relation to standard MySuper products that satisfy the second stage test. To satisfy the second stage test, a standard MySuper product must, amongst other things, be on the Default Superannuation List.

[5] Section 156J of the FW Act concerns other requirements regarding the default fund term of a modern award.

[6] In the four yearly review, the Commission must also make the Schedule of Approved Employer MySuper Products. If a product is on the schedule, an employer covered by a modern award will be able to make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product.

[7] The relevant provisions of the FW Act are at Attachment A.

Making the Default Superannuation List

[8] Before making the Default Superannuation List, the Commission must publish a notice inviting superannuation funds that offer a standard MySuper product to apply to the Commission in writing within a specified period to have the product included on the list. A draft notice is at Attachment B.

[9] Applications must provide information relating to the first stage criteria that the Commission is required to take into account in determining whether to include a product on the list. The first stage criteria are set out in s.156F of the FW Act. Subject to confidentiality or commercial sensitivity considerations, applications must be published on the Commission’s website. A draft application form is at Attachment C.

[10] The Commission must ensure all persons and bodies have a reasonable opportunity to make written submissions to the Commission in relation to any application. If a person or body makes a written submission in relation to an application and the person or body 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. Submissions made must also be published on the Commission’s website. A draft submission form is at Attachment D.

[11] The Commission must not determine that a standard MySuper product is to be included on the Default Superannuation List unless satisfied that including it 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:

(a) the information provided in the application to the Commission; and

(b) the first stage criteria; and

[12] The first stage criteria are as follows:

“(a) the appropriateness of the MySuper product’s long term investment return target and risk profile;

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

(i) its stated long term investment return target and risk profile; and

(ii) the quality and timeliness of services provided;

(d) the net returns on contributions invested in the MySuper product;

(e) 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;

(f) the appropriateness of any insurance offered in relation to the MySuper product;

(g) 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;

(h) the administrative efficiency of the superannuation fund;

(i) any other matters the FWC considers relevant.”

Making the Schedule of Approved Employer MySuper Products

[13] Before making the Schedule of Approved Employer MySuper Products, the Commission must publish a notice inviting superannuation funds that offer an employer MySuper product and/or employers to which an employer MySuper product relates to apply to the Commission within a specified period to have the product included on the schedule. A draft notice is at Attachment E.

[14] Applications must provide information relating to the first stage criteria the Commission is required to take into account in determining whether to include a product on the schedule. The first stage criteria are set out in s.156F of the FW Act. Subject to confidentiality or commercial sensitivity considerations, applications must be published on the Commission website. A draft application form is at Attachment F.

[15] The Commission must not determine that a product is to be included on the schedule unless the product satisfies the first stage test and the second stage test.

[16] The Commission must ensure all persons and bodies have a reasonable opportunity to make written submissions to the Commission about whether a product satisfies the first stage test. If a person or body makes a written submission in relation to whether a product satisfies the first stage test and the person or body 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. Submissions made must be published on the Commission’s website.

[17] The Commission must also ensure an employee of an employer to which a product relates, an employer to which a product relates and an organisation entitled to represent the industrial interests of such an employee or employer have a reasonable opportunity to make written submissions to the Commission about whether a product satisfies the second stage test. If a person or body makes a written submission in relation to whether a product satisfies the second stage test and the person or body 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. Submissions must be published on the Commission’s website.

[18] A draft submission form is at Attachment G.

[19] A product satisfies the first stage test if the Commission is satisfied that including the product on the schedule would be in the best interests of default fund employees, or a particular class of those employees, taking into account:

(a) the information provided in the application; and

(b) the first stage criteria; and

[20] A product satisfies the second stage test if the Commission is satisfied that including the product on the schedule 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, taking into account:

(a) any submissions made in relation to whether the product satisfies the second stage test; and

(b) any other matter the Commission considers relevant.

Conclusion

[21] In this Statement we have set out the requirements in the FW Act regarding the making of the Default Superannuation List and the Schedule of Approved Employer MySuper Products as part of the 2014 review of the default fund terms of modern awards.

[22] Attached to this Statement are draft notices and draft forms regarding the making of the Default Superannuation List and the Schedule of Approved Employer MySuper Products.

[23] The Commission invites written submissions from interested persons on:

● the draft notices and draft forms,

● the timetable for the making of an application to have a standard MySuper product included on the Default Superannuation List or an application to have an employer MySuper product included on the Schedule of Employer MySuper Products and subsequent written submissions, and

● any other process issues regarding the making of the Default Superannuation List and the Schedule of Employer MySuper products.

[24] Written submissions must be made by 1.00 pm on Friday, 7 February 2014. Written submissions can be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001. Written submissions will be published on the Commission’s website.

[25] A hearing in respect of the draft notices and draft forms, timetable and process issues will be held in Melbourne with video links to other capital cities at 10.00 am on Thursday, 13 February 2014. Those intending to attend the hearing must notify [email protected] by 4.00 pm on Tuesday, 11 February 2014.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

Division 4A—4 yearly reviews of default fund terms of modern awards

Subdivision A—4 yearly reviews of default fund terms

156A 4 yearly reviews of default fund terms

Timing of 4 yearly reviews

(1) The FWC must conduct a 4 yearly review of default fund terms of modern awards starting as soon as practicable after each 4th anniversary of the commencement of this Part.

Note: The President may give directions about the conduct of those reviews (see section 582).

Two stages of the 4 yearly reviews

(2) There are 2 stages of the 4 yearly review.

First stage—the Default Superannuation List

(3) In the first stage, the FWC must make the Default Superannuation List for the purposes of the review.

Note: In the first stage, the FWC must be constituted by an Expert Panel for the purposes of making the list and determining applications to include standard MySuper products on the list (see paragraphs 617(4)(a) and (b)).

Second stage—reviewing and varying default fund terms

(4) In the second stage, the FWC:

(a) must review the default fund term of each modern award; and

(b) must make a determination varying the term in accordance with section 156H; and

Note: For the second stage, the FWC must be constituted by a Full Bench (see subsections 616(2A) and (3A)).

The Schedule of Approved Employer MySuper Products

(5) In the 4 yearly review, the FWC must also make the Schedule of Approved Employer MySuper Products.

Note: The FWC must be constituted by an Expert Panel for the purposes of making the schedule and determining applications to include employer MySuper products on the schedule (see paragraphs 617(4)(c) and (d)).

Subdivision B—The first stage of the 4 yearly review

156B Making the Default Superannuation List

(1) In the 4 yearly review, the FWC must make and publish the Default Superannuation List.

(2) The Default Superannuation List must specify each standard MySuper product that the FWC has determined under section 156E is to be included on the list.

(3) The Default Superannuation List must not specify any other product.

156C Applications to list a standard MySuper product

(1) Before making the Default Superannuation List, the FWC must publish a notice that invites superannuation funds that offer a standard MySuper product to apply to the FWC to have the product included on the list.

(2) The notice must specify the period in which an application may be made.

(3) After the notice is published, a superannuation fund that offers a standard MySuper product may make a written application to have the product included on the list.

(4) The application must:

(a) be made in the period specified in the notice; and

(b) be accompanied by any fees that are prescribed by the regulations; and

(5) The FWC must publish any application made under subsection (3).

(6) However, if an application includes information that is claimed by the superannuation fund to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive:

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

(b) if it does so, 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).

(7) A reference in this Act (other than in this section) in relation to an application made under subsection (3) includes a reference to a summary referred to in paragraph (6)(b).

156D Submissions on applications to list a standard MySuper product

(1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC in relation to an application made under subsection 156C(3).

(2) If:

(a) a person or body makes a written submission in relation to an application made under subsection 156C(3); and

(b) the person or body has an interest in relation to:

(i) the superannuation fund that made the application; or

(ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;

then the person or body must disclose that interest in the submission.

(3) The FWC must publish any submission that is made.

156E Determining applications to list a standard MySuper product

(1) If an application is made under subsection 156C(3) to have a standard MySuper product included on the Default Superannuation List, the FWC must make a determination about whether to include the product on the list.

(2) The FWC must not determine that the product is to be included on the list unless, taking into account:

(a) the information provided in the application; and

(b) the first stage criteria; and

the FWC 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.

156F First stage criteria

The first stage criteria are as follows:

(a) the appropriateness of the MySuper product’s long term investment return target and risk profile;

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

(i) its stated long term investment return target and risk profile; and

(ii) the quality and timeliness of services provided;

(d) the net returns on contributions invested in the MySuper product;

(f) the appropriateness of any insurance offered in relation to the MySuper product;

(g) 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;

(h) the administrative efficiency of the superannuation fund;

(i) any other matters the FWC considers relevant.

Subdivision C—Second stage of the 4 yearly review

156G Review of the default fund term of modern awards

(1) As soon as practicable after the Default Superannuation List is made, the FWC must review the default fund term of each modern award.

(2) The FWC must ensure that the following persons have a reasonable opportunity to make written submissions (including submissions requesting that a particular superannuation fund be specified in the term in relation to a standard MySuper product) to the FWC in relation to the default fund term of the award:

(a) an employee and employer that are covered by the modern award;

(b) an organisation that is entitled to represent the industrial interests of one or more employees or employers that are covered by the award;

(c) if the award includes an outworker term—an organisation that is entitled to represent the industrial interests of one or more outworkers to whom the outworker term relates.

(3) If:

(a) a person or body (whether or not a person referred to in subsection (2)) makes a written submission in relation to the default fund term of a modern award; and

(b) the person or body refers to a particular superannuation fund in the submission; and

then the person or body must disclose that interest in the submission.

(4) The FWC must publish any submission that is made.

156H Default fund term must specify certain superannuation funds

(1) After reviewing the default fund term of a modern award, the FWC must make a determination varying the term:

(a) to remove every superannuation fund that is specified in the term; and

(b) to specify at least 2, but no more than 15, superannuation funds in relation to standard MySuper products that satisfy the second stage test.

Note: See subsection (3) for when the default fund term may specify more than 15 superannuation funds.

(2) A standard MySuper product satisfies the second stage test if:

(a) it is on the Default Superannuation List; and

(b) the FWC is satisfied that specifying a superannuation fund in relation to the product in the default fund term of the modern award would be in the best interests of the default fund employees to whom the modern award applies, taking into account:

(i) any submissions that were made in relation to the default fund term of the award; and

(ii) any other matter the FWC considers relevant.

(3) The default fund term may specify more than 15 superannuation funds in relation to standard MySuper products that satisfy the second stage test if, taking into account the range of occupations of employees covered by the modern award, the FWC is satisfied it is warranted.

156J Variation to comply with section 149D

If, at the time of the 4 yearly review, the default fund term of a modern award does not comply with section 149D, the FWC must make a determination varying the term so that it does.

156K Transitional authorisation for certain superannuation funds

(1) The FWC may make a transitional authorisation in relation to a superannuation fund (other than a superannuation fund referred to in subsection 149D(1), (1A), (2), (3) or (4)) if, at the time of the 4 yearly review, the FWC is satisfied that it is appropriate to make the authorisation.

(2) The transitional authorisation comes into operation on the day it is made and ceases to be in operation on the day specified in the authorisation.

Subdivision D—The Schedule of Approved Employer MySuper Products

156L The Schedule of Approved Employer MySuper Products

(1) In the 4 yearly review, the FWC must:

(a) make and publish the Schedule of Approved Employer MySuper Products; and

(b) revoke any previous Schedule of Approved Employer MySuper Products.

Note: If an employer MySuper product is on the schedule, an employer covered by a modern award can make contributions, for the benefit of a default fund employee, to a superannuation fund that offers the product (see subsection 149D(1A)).

(2) When the schedule is made, it must specify any employer MySuper product that the FWC has determined under section 156P is to be included on the schedule.

(3) After the schedule is made, it must be amended to specify any employer MySuper product that the FWC has determined under section 156P is to be included on the schedule.

Note: The FWC must be constituted by an Expert Panel for the purposes of amending the schedule (see paragraph 617(5)(b)).

(4) If the schedule is amended as referred to in subsection (3), the FWC must publish the schedule as amended.

(5) The schedule must not specify any other product.

156M FWC to invite applications to include employer MySuper products on schedule

(1) Before making the schedule, the FWC must publish a notice that invites:

(a) superannuation funds that offer an employer MySuper product; and

(b) employers to which an employer MySuper product relates;

to apply to the FWC to have the product included on the schedule.

(2) The notice must specify the period in which an application may be made.

156N Making applications to include employer MySuper products on schedule

(1) The following may apply to the FWC to have an employer MySuper product included on the schedule:

(a) a superannuation fund that offers the product;

(b) an employer to which the product relates.

(2) The application must be made:

(a) in the period (the standard application period) specified in the notice under section 156M; or

(b) in the period (the interim application period) that:

(i) starts immediately after the schedule is made under paragraph 156L(1)(a); and

(ii) ends immediately before the next 4th anniversary of the commencement of this Part.

Note: Paragraph (2)(a) deals with applications that are made in a 4 yearly review of default fund terms, and paragraph (2)(b) deals with applications that are made outside a 4 yearly review.

(3) The application must also:

(a) be accompanied by any fees that are prescribed by the regulations; and

(b) provide information relating to the first stage criteria.

(4) The FWC must publish any application made under subsection (1).

(5) However, if an application includes information that is claimed by the applicant to be confidential or commercially sensitive, and the FWC is satisfied that the information is confidential or commercially sensitive:

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

(6) A reference in this Act (other than in this section) in relation to an application made under subsection (1) includes a reference to a summary referred to in paragraph (5)(b).

(7) Only one application in relation to an employer MySuper product may be made under subsection (1) in the period that:

(a) starts at the start of the standard application period; and

(b) ends at the end of the interim application period.

156P FWC to determine applications

(1) If an application is made under subsection 156N(1) to have an employer MySuper product included on the schedule, the FWC must make a determination about whether to include the product on the schedule.

Note: The FWC must be constituted by an Expert Panel for the purposes of making this determination (see paragraphs 617(4)(d) and (5)(a)).

(2) The FWC must not determine that the product is to be included on the schedule unless the product satisfies the first stage test and the second stage test.

156Q The first stage test

An employer MySuper product satisfies the first stage test if the FWC is satisfied that including the 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, taking into account:

(a) the information provided in the application; and

(b) the first stage criteria; and

156R Submissions about the first stage test

(1) The FWC must ensure that all persons and bodies have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the first stage test.

(2) If:

(a) a person or body makes a written submission in relation to whether an employer MySuper product satisfies the first stage test; and

(b) the person or body has an interest in relation to:

(i) the superannuation fund that offers the product; or

(ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;

then the person or body must disclose that interest in the submission.

(3) The FWC must publish any submission that is made.

156S The second stage test

An employer MySuper product satisfies the second stage test if the FWC is satisfied that including the product on the Schedule of Approved Employer MySuper Products 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, taking into account:

(a) any submissions that were made in relation to whether the product satisfies the second stage test; and

(b) any other matter the FWC considers relevant.

156T Submissions about the second stage test

(1) The FWC must ensure that the following persons have a reasonable opportunity to make written submissions to the FWC about whether an employer MySuper product satisfies the second stage test:

(a) an employee of an employer to which the product relates;

(b) an employer to which the product relates;

(c) an organisation that is entitled to represent the industrial interests of a person referred to in paragraph (a) or (b).

(2) If:

(a) a person or body (whether or not a person referred to in subsection (1)) makes a written submission in relation to whether an employer MySuper product satisfies the second stage test; and

(b) the person or body has an interest in relation to:

(i) the superannuation fund that offers the product; or

(ii) if the person or body refers to another superannuation fund in the submission—that superannuation fund;

then the person or body must disclose that interest in the submission.

(3) The FWC must publish any submission that is made.

Subdivision E—Publishing documents under this Division

156U Publishing documents under this Division

If the FWC is required by this Division to publish a document, the FWC must publish the document on its website or by any other means that the FWC considers appropriate.

ATTACHMENT B

DRAFT 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 XXX.

Process: Applications should be lodged using the Commission’s Form FA and be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

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 FA 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 XXX.

Process: Written submissions should be lodged using the Commission’s Form FB and be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

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 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 made an application or written submission and 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 align="right">ATTACHMENT C

DRAFT

About the FA 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:

n 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 XXX. Applications should be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

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. 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:

n processes in the Commission

n how to make an application to the Commission

n how to fill out forms

n where to find useful documents such as legislation and decisions

n other organisations that may be able to assist you.

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

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

(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

DRAFT

Form FA—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 Identifer
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

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 documentary evidence of authority to offer the standard MySuper Product from the Australian Prudential Regulatory Authority (APRA)

Attachment 1

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.

Please provide submissions and evidence relating to each of the first stage criteria as set out below.

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.

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.

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

ATTACHMENT D

DRAFT

About the FB Submission FormSubmission 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:

n 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

n you should complete a separate Form FB 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 XXX. Written submissions should be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

Where to get help

Commission staff & resources

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

n processes in the Commission

n how to make an application to the Commission

n how to fill out forms

n where to find useful documents such as legislation and decisions

n other organisations that may be able to assist you.

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

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

(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

DRAFT

Form FB—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 FB 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 business (if applicable)
Trading name of business (if applicable)
ABN/ACN (if applicable)
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

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 FB 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.

Please provide your written submissions in relation to the application/s.

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

ATTACHMENT E

DRAFT 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 XXX.

Process: Applications should be lodged using the Commission’s Form FC and be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

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 FC enables applicants to provide information on the first stage criteria.)

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

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 Employer MySuper Products may do so in accordance with the below:

Timetable: Written submissions must be lodged with the Commission by XXX.

Process: Written submissions should be lodged using the Commission’s Form FD and be sent by email to [email protected], facsimile to (03) 9655 0401 or post to the Fair Work Commission, GPO Box 1994, Melbourne VIC 3001.

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 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 made an application or written submission and 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: align="right">ATTACHMENT F

DRAFT

About the FC 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:

n you are a superannuation fund that offers an employer MySuper product or an employer to which an employer MySuper product relates.

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. 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:

n processes in the Commission

n how to make an application to the Commission

n how to fill out forms

n where to find useful documents such as legislation and decisions

n other organisations that may be able to assist you.

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

(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

DRAFT

Form FC—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
Name of superannuation fund and/or employer
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 business (if applicable)
Trading name of business (if applicable)
ABN/ACN (if applicable)
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

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. 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 Please provide documentary evidence of authority to offer the employer MySuper product from the Australian Prudential Regulatory Authority (APRA)

Attachment 1

1.3 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.

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 submissions and evidence relating to each of the first stage criteria as set out below.

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.

2.6 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. 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.

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.

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

ATTACHMENT G

DRAFT

About the FD Submission FormSubmission 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 FD 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:

n processes in the Commission

n how to make an application to the Commission

n how to fill out forms

n where to find useful documents such as legislation and decisions

n other organisations that may be able to assist you.

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

(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

DRAFT

Form FD—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 FD 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 business (if applicable)
Trading name of business (if applicable)
ABN/ACN (if applicable)
Contact person
Postal address
Suburb
State or territory		Postcode
Phone number		Fax number
Email address

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 FD 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

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.

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.

Attach additional pages if necessary.

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