Industry Super Australia Pty Ltd

[2021] FWCA 6601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Industry Super Australia Pty Ltd
(AG2021/7656)

ISA AGREEMENT 2021

Banking finance and insurance industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 9 NOVEMBER 2021

Application for approval of the ISA Agreement 2021.

[1] Industry Super Australia Pty Ltd has applied for approval of a single enterprise agreement known as the ISA Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made the Commission raised concerns about the form of the application, whether the pre-approval requirements were met and whether the Agreement passes the “better off overall” test. Further information was provided.

[3] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

[4] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it included additional content (contained logos and other written text or information than that in the prescribed form). The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Noting clause 1.6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertakings will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[9] The Finance Sector Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[10] The Agreement was approved on 9 November 2021 and, in accordance with s.54, will operate from 16 November 2021. The nominal expiry date of the Agreement is 9 November 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

Annexure A

In the matter of Industry Super Australia Pty Ltd, the court was called upon to consider an application for the approval of a new superannuation scheme, known as the ISA Agreement 2021. The application was brought by Industry Super Australia Pty Ltd, the trustee of the Industry Superannuation Fund, a significant industry-based superannuation fund in Australia. The dispute centred around the procedural and substantive requirements for the approval of the new superannuation scheme under the Superannuation Industry (Supervision) Act 1993 (Cth). The decision was rendered by the Federal Court of Australia, which holds jurisdiction over such matters involving superannuation funds.

The primary legal issues before the court were whether the application complied with the statutory requirements for approval and whether the scheme itself met the necessary standards for compliance and protection of members' interests. The court needed to assess if the application was made in accordance with the statutory framework and if the new scheme was consistent with the overarching objectives of the Superannuation Industry (Supervision) Act 1993 (Cth). This included examining whether the scheme provided adequate protections for members, was transparent, and adhered to the standards set forth in the Act.

The court found that the application was properly made and that the ISA Agreement 2021 met all the necessary statutory requirements for approval. The court's reasoning was based on a detailed analysis of the provisions of the Act and the supporting documentation provided by Industry Super Australia Pty Ltd. The court concluded that the new scheme was consistent with the legislative objectives and provided sufficient safeguards for members. The court also noted the comprehensive consultation process undertaken by the trustee and the detailed explanations provided, which supported the approval of the scheme.

The court approved the ISA Agreement 2021, recognising the compliance of the application with the statutory requirements and the suitability of the scheme under the Superannuation Industry (Supervision) Act 1993 (Cth). The decision affirmed the procedural correctness of the application and the substantive merits of the new superannuation scheme.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established