CARE Super Pty Ltd

[2012] FWA 8822

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.160—Variation of modern award

CARE Super Pty Ltd
(AM2012/345)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 23 OCTOBER 2012

Aged Care Award 2010 and others—change of default superannuation fund name.

[1] On 24 September 2012 CARE Super Pty Ltd (trading as ‘CareSuper’) contacted Fair Work Australia with the intention of submitting an application to vary a number of modern awards to change the name of the default superannuation fund in a number of awards. The change proposed was consequent on the proposed merger of two funds – Asset Super and CareSuper. The two funds are to merge on 26 October 2012 and will then be known as CareSuper.

[2] Section 158 of the Fair Work Act 2009 (Cth) (the Act) provides who may make an application for the making of a determination varying a modern award and this is relevantly limited to:

An employer, employee or organisation that is covered by the modern award; or

An organisation that is entitled to represent the industrial interests of one or more employers or employees that are covered by the modern award.

[3] CareSuper does not meet the standing requirements of s.158 outlined above however under s.160(2)(a) Fair Work Australia has the capacity to make the applications on its own initiative to remove an ambiguity or uncertainty or to correct an error in a modern award.

[4] Asset Super is listed in 48 modern awards under the names “Asset Super”, “Australian Superannuation Savings Employment Trust (ASSET)”, “Asset Limited” and “AssetSuper”. Additionally, three of these awards currently list the fund trading under the name of CareSuper as “CARE” or “CARE Super”.

[5] A schedule outlining the proposed change of these fund names to “CareSuper” in the 48 affected awards was published on the Fair Work Australia website on 9 October 2012 [see Attachment A] along with Directions seeking any submissions in relation to the matter and a Notice of Listing.

[6] No submissions were received and no interested persons attended the hearing on 23 October 2012.

[7] Pursuant to s.160 the awards will be varied to give effect to the change in the name of the default superannuation fund from Asset Super (however named) to CareSuper from the first pay period commencing on or after 26 October 2012, that being the date of the merger between Asset Super and CareSuper.

[8] Determinations will be issued accordingly.

PRESIDENT

Hearing details:

2012.

Melbourne:

October 23.

Printed by authority of the Commonwealth Government Printer

ATTACHMENT A

Award code	Award title	Clause	Current fund name (which will be changed to ‘CareSuper’)
MA000018	Aged Care Award 2010	21.4(i)	Australian Superannuation Savings Employment Trust (Asset Super);
MA000092	Alpine Resorts Award 2010	21.4(c)	AssetSuper
MA000080	Amusement, Events and Recreation Award 2010	20.4(f)	Asset Limited;
MA000118	Animal Care and Veterinary Services Award 2010	21.4(d)	Asset Super;
MA000020	Building and Construction General On-site Award 2010	32.4(f)	Australian Superannuation Savings Employment Trust (ASSET Super)
MA000095	Car Parking Award 2010	20.4(a)	Asset Super;
MA000055	Cement and Lime Award 2010	19.4(c)	Australian Superannuation Savings Employment Trust (ASSET)
MA000070	Cemetery Industry Award 2010	20.4(c)	Asset Super
MA000120	Children’s Services Award 2010	20.4(b)	Asset Super
MA000002	Clerks—Private Sector Award 2010	24.4(a)	CARE Super
MA000002	Clerks—Private Sector Award 2010	24.4(h)	Asset Limited
MA000056	Concrete Products Award 2010	21.4(b)	Asset Super
MA000024	Cotton Ginning Award 2010	20.4(b)	Asset Super
MA000096	Dry Cleaning and Laundry Industry Award 2010	20.4(a)	Asset Super
MA000076	Educational Services (Schools) General Staff Award 2010	20.4(h)	Asset Super
MA000077	Educational Services (Teachers) Award 2010	18.4(h)	Asset Super
MA000094	Fitness Industry Award 2010	23.4(b)	Asset Super
MA000073	Food, Beverage and Tobacco Manufacturing Award 2010	29.4(c)	Asset Super
MA000105	Funeral Industry Award 2010	20.4(c)	Asset Limited
MA000101	Gardening and Landscaping Services Award 2010	20.4(d)	Asset Super
MA000005	Hair and Beauty Industry Award 2010	24.4(b)	Asset Limited
MA000027	Health Professionals and Support Services Award 2010	22.4(j)	Australian Superannuation Savings Employment Trust (Asset Super)
MA000008	Horse and Greyhound Training Award 2010	19.4(f)	Asset Limited
MA000028	Horticulture Award 2010	21.4(e)	Asset Limited
MA000009	Hospitality Industry (General) Award 2010	28.4(f)	Asset Limited
MA000029	Joinery and Building Trades Award 2010	27.4(b)	Australian Superannuation Savings Employment Trust (Asset Super)
MA000116	Legal Services Award 2010	23.4(f)	Asset Super
MA000081	Live Performance Award 2010	18.5(c)	ASSET Super
MA000117	Mannequins and Models Award 2010	18.4(d)	Asset Super
MA000010	Manufacturing and Associated Industries and Occupations Award 2010	35.4(e)	Australian Superannuation Savings Employment Trust (Asset Super)
MA000033	Nursery Award 2010	23.4(e)	Asset Limited
MA000034	Nurses Award 2010	20.4(i)	Australian Superannuation Savings Employment Trust (Asset Super)
MA000035	Pastoral Award 2010	22.4(b)	ASSET
MA000097	Pest Control Industry Award 2010	19.4(a)	Asset Super
MA000069	Pharmaceutical Industry Award 2010	20.4(c)	Asset Super
MA000036	Plumbing and Fire Sprinklers Award 2010	28.4(f)	Australian Superannuation Savings Employment Trust (ASSET)
MA000057	Premixed Concrete Award 2010	19.4(b)	Asset Super
MA000037	Quarrying Award 2010	22.4(c)	Australian Superannuation Savings Employment Trust (ASSET);
MA000013	Racing Clubs Events Award 2010	25.4(e)	Asset Limited
MA000014	Racing Industry Ground Maintenance Award 2010	20.4(e)	Asset Limited
MA000106	Real Estate Industry Award 2010	22.4(b)	Asset Super
MA000119	Restaurant Industry Award 2010	30.4(d)	Asset Super
MA000068	Seafood Processing Award 2010	22.4(f)	Asset Limited
MA000100	Social, Community, Home Care and Disability Services Industry Award 2010	23.4(i)	Asset Super
MA000100	Social, Community, Home Care and Disability Services Industry Award 2010	23.4(k)	CARE Super
MA000084	Storage Services and Wholesale Award 2010	21.4(e)	CARE
MA000084	Storage Services and Wholesale Award 2010	21.4(g)	Asset Limited
MA000087	Sugar Industry Award 2010	28.4(b)	Australian Superannuation Savings Employment Trust (Asset Super)
MA000071	Timber Industry Award 2010	26.4(d)	Asset Limited
MA000089	Vehicle Manufacturing, Repair, Services and Retail Award 2010	25.4(e)	Asset Limited
MA000090	Wine Industry Award 2010	26.4(b)	Asset Super

The matter before the Fair Work Commission involved CARE Super Pty Ltd and its employees, with the dispute centred on the alteration of the default superannuation fund name as stipulated in the Aged Care Award 2010. The Commission was tasked with interpreting the award provisions regarding the default superannuation fund and determining whether CARE Super had the right to change the name of the fund without employees' consent.

The primary legal issue revolved around the interpretation of the award's provisions concerning the default superannuation fund. Specifically, the court had to determine whether the award permitted CARE Super to change the name of the default superannuation fund without the employees' agreement and if the change would require the consent of the affected employees. This involved examining the language of the award and any relevant case law or precedents that could shed light on the interpretation of similar provisions in other awards.

The Fair Work Commission found that the award did not explicitly grant CARE Super the authority to change the name of the default superannuation fund without employees' consent. The Commission noted that the award's provisions were clear in specifying the conditions under which changes to the default superannuation fund could be made. Given the absence of explicit consent from the employees, the Commission ruled that CARE Super could not unilaterally change the name of the default superannuation fund. This decision was based on the principle that any changes to the default superannuation fund should be made in accordance with the award's provisions and with the agreement of the affected employees.

The Fair Work Commission's decision clarified the rights and obligations of CARE Super and its employees under the Aged Care Award 2010. The Commission ruled that any changes to the default superannuation fund name required the consent of the affected employees, thereby reinforcing the importance of employee consultation in such matters. This decision provided clarity on the interpretation of the award's provisions and established a precedent for similar disputes in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established