AustSafe Super Pty Ltd (as Trustee of AustSafe Super)
[2010] FWA 3426
•18 MAY 2010
[2010] FWA 3426
The attached document replaces the document previously issued with the above code on 18 May 2010.
The document has been changed to correct an error in the date from 20 April 2010 to 18 May 2010.
Kate Schaffner
Associate to Commissioner Lewin
Dated 19 May 2010
[2010] FWA 3426 |
|
DECISION |
Fair Work Act 2009
s.158 - Application to vary or revoke a modern award
AustSafe Super Pty Ltd (as Trustee of AustSafe Super)
(AM2010/14)
COMMISSIONER LEWIN | MELBOURNE, 18 MAY 2010 |
Application to include a superannuation fund under a modern award.
[1] This decision concerns an application to vary the Aquaculture Industry Award 2010 filed in the Tribunal on 8 February 2010 by AustSafe Pty Ltd (as Trustee of AustSafe Super). AustSafe Super seek to be included as a default superannuation fund under the relevant terms of the Aquaculture Industry Award 2010.
[2] Directions were posted on the Award Modernisation website directing any person seeking to oppose the application to file full written submissions by the close of business on 6 March 2010. No submissions were filed in opposition to the inclusion of AustSafe Super as default superannuation fund under the Aquaculture Industry Award 2010. On 18 March 2010, AustSafe Super filed a Submission in support of the Application. On 9 April 2010 the application was listed for Hearing on 29 April 2010 at Brisbane.
[3] At the Hearing on Mr A Herbert appeared for Austsafe Super.
[4] The relevant considerations for determining whether or not AustSafe Super is eligible to be included as a default fund under the Aquaculture Industry Award 2010 are, whether or not the fund was a fund specified in a superannuation clause as a default fund under an award or NAPSA, or alternatively, any fund to which an employer was making contributions for the benefit of employees on 12 September 2008.
[5] The Award Modernisation Full Bench in a decision of 19 December 2008 1 relevantly stated as follows:
“[90] The terms of the exposure draft concerning the default fund provision were the cause of a number of submissions from employer and employee interests, from superannuation funds and the superannuation industry. We have decided to allow as a default fund any fund to which the employer was making contributions for the benefit of employees on 12 September 2008. This approach is likely to minimise inconvenience for employers. While funds other than those provided for will not qualify as default funds employees may still exercise their right to choose in favour of these funds.”
[6] At the Hearing of 29 April Mr Herbert handed up a statement signed by Mr Wayne Hulin, the National Business Development Manager of AustSafe Super which sought to persuade me to include AustSafe Super to be named as a default superannuation fund under the modern award.
[7] In the course of the Hearing I referred to the abovementioned principles relating to when a superannuation fund may be named as a default fund under a modern award to Mr Herbert. I indicated that, on the material before the Tribunal, AustSafe Super was not, for the purposes of this application, a default fund named in the superannuation provisions under a relevant award or NAPSA. Further, there was insufficient evidence before me which identified any employer covered by the modern award which was making contributions on behalf of employees to AustSafe Super at the relevant time.
[8] Mr Herbert sought time to seek instructions from Mr Hulin and to prepare the information required by the Tribunal. On 6 May 2010 Mr Hulin of AustSafe Super filed in the Tribunal a Submission with attached letters from Seafarm and Bundaberg Prawn Farm Pty Ltd. The attached letters provided that the employees of Seafarm and Bundaberg Prawn Farm Pty Ltd were covered by the Aquaculture Industry Award 2010 and that those companies had been making contributions to AustSafe Super on behalf of their employees at 12 September 2008.
[9] I am satisfied that AustSafe Super is a fund which is able to be covered by the Aquaculture Industry Award 2010 as a default fund in accordance with the Full Bench principles as referred to above. An Order will issue accordingly.
COMMISSIONER
Appearances:
Mr A Herbert, of counsel, on behalf of AustSafe Super.
Hearing details:
2010
29 April
Brisbane
Final written submissions:
Mr W Hulin, AustSafe Super.
1 [2008] AIRCFB 1000.
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