Application to vary a modern award to update name of organisation - change of default superannuation fund - variation approved

[2012] FWA 5836

[2012] FWA 5836

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 159 - Application to vary modern award to update name of organisation

NGS Super Pty Ltd
(AM2012/335)

AGED CARE AWARD 2010
(ODN AM2008/13)  [MA000018]

Banking finance and insurance industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 JULY 2012

Application to vary a modern award to update name of organisation - change of default superannuation fund - variation approved.

[1] This is an application, pursuant to s 159 of the Fair Work Act 2009 (‘the Act’), to vary a modern award. The application was made by NGS Super Pty Ltd (‘the applicant’) to vary the Aged Care Award 2010 [MA000018](‘the Award’) in the following manner:

‘By deleting the UCSuper in subclause 21.4(j) of the Award and inserting in lieu thereof, the name “NGS Super.”’

[2] The application seeks to include in the Award, the name of a new default superannuation Fund, NGS Super Pty Ltd, following its merger on 1 March 2012 with a currently named Fund, UCSuper. It merely replaces one named Fund for another merged entity. There is no effect, at all, on any of the entitlements of either Funds’ members. I note that an identical application was determined by me on 19 September 2011 to change the name of the CueSuper to NGS Super under the Banking and Insurance Award 2010 (PR514728). Accordingly, I do not see the necessity to hold a hearing of the application and I shall determine it ‘on the papers’.

[3] Section 159 of the Act expressly deals with the above situation. It is expressed as follows:

‘159 Variation of modern award to update or omit name of employer, organisation or outworker entity

(1) FWA may make a determination varying a modern award:

(a) to reflect a change in the name of an employer, organisation or outworker entity; or

(b) to omit the name of an organisation, employer or outworker entity from the modern award, if:

(i) the registration of the organisation has been cancelled under the Workplace Relations Act 1996; or

(ii) the employer, organisation or outworker entity has ceased to exist; or

(c) if the modern award is a named employer award and the named employer is the old employer in a transfer of business—to reflect the transfer of business to the new employer.

(2) FWA may make a determination under this section:

(a) in any case—on its own initiative; or

(b) if paragraph (1)(a) or (b) applies—on application by the employer, organisation or outworker entity referred to in that paragraph; or

(c) if paragraph (1)(c) applies—on application by:

(i) the old employer or the new employer; or

(ii) a transferring employee who was covered by the modern award as an employee of the old employer; or

(iii) an organisation that is entitled to represent the industrial interests of the old employer, the new employer, or one or more employees referred to in subparagraph (ii).’

[4] I am satisfied that the applicant is an ‘organisation’ contemplated by s 159 of the Act and that the organisation has ceased to exist. I see no reason why the Award should not be varied as requested by the applicant. Indeed, the Act envisages FWA varying modern Awards for the reasons outlined by Mr N Chadwick, solicitor for the applicant. I note that Mr Chadwick has filed similar applications to vary four other modern Awards in like fashion. Presumably, these applications have been allocated to other members of FWA.

[5] I have no hesitation in granting the orders sought by the applicant with effect on and from 9 July 2012. A determination [PR526089] to that effect is issued separately to this decision.

DEPUTY PRESIDENT

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