Modern Awards Review 2012 — Superannuation - [2014] FWCFB 299

[2014] FWCFB 299

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Modern Awards Review 2012 — Superannuation
(AM2012/8, AM2012/62, AM2012/63, AM2012/72, AM2012/73, AM2012/74, AM2012/115, AM2012/116, AM2012/240, AM2012/243, AM2013/7, AM2013/21, AM2013/22)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS

MELBOURNE, 7 FEBRUARY 2014

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 - Transitional Review - superannuation provisions in particular modern awards - modern awards objective - Fair Work Act 2009 - Schedule 5, Item 6.

CONTENTS	Paragraph
Introduction	[1]
Legislative context	[5]
Nature of the applications	[9]
Default superannuation funds	[11]
Absence from work	[15]
Consideration of the applications	[17]
Conclusion	[31]

INTRODUCTION

[1] The Fair Work (Transitional Provisions and Consequential Amendments)Act 2009 (Cth) (Transitional Provisions Act) provides that the Fair Work Commission (FWC) 1 must conduct a review of all modern awards2 as soon as practicable after 1 January 2012 (the Transitional Review).

[2] This decision deals with applications to vary the superannuation term in various modern awards pursuant to the Transitional Review. The applications have been referred to this Full Bench as part of the Transitional Review.

[3] Directions in relation to these proceedings were issued directing parties to file written submissions and any relevant documentary material evidence on which the parties sought to rely, within given timeframes.

[4] A hearing on the applications was held before the Full Bench on 9 December 2013.

LEGISLATIVE CONTEXT

[5] The legislative context for the Transitional Review was dealt with in a decision of a Full Bench of Fair Work Australia (FWA) on 29 June 2012 (the June 2012 Full Bench decision). 3 The legislative context was usefully summarised in a decision of a Full Bench of the FWC on 15 March 2013 (the March 2013 Full Bench decision)4 as follows:

“[5] The principal legislative provision in respect of the Transitional Review is Item 6 of Schedule 5 to the Transitional Provisions Act:

‘6 Review of all modern awards (other than modern enterprise awards and State reference public sector modern awards) after first 2 years

(1) As soon as practicable after the second anniversary of the FW (safety net provisions) commencement day, FWA must conduct a review of all modern awards, other than modern enterprise awards and State reference public sector modern awards.

Note: The review required by this item is in addition to the annual wage reviews and 4 yearly reviews of modern awards that FWA is required to conduct under the FW Act.

(2) In the review, FWA must consider whether the modern awards:

(a) achieve the modern awards objective; and

(b) are operating effectively, without anomalies or technical problems arising from the Part 10A award modernisation process.

(2A) The review must be such that each modern award is reviewed in its own right. However, this does not prevent FWA from reviewing 2 or more modern awards at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWCFB 299
Decision Date: 7 FEBRUARY 2014

CaseChat Overview and Summary

The matter before the court involved the review of certain superannuation provisions within modern awards under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The dispute centred on the interpretation of the modern awards objective outlined in Schedule 5, Item 6 of the Fair Work Act 2009, and the applicability of these provisions to superannuation matters. The Federal Circuit Court was tasked with resolving the legal issues raised by the parties.

The primary legal issues before the court were the scope and application of the modern awards objective in relation to the superannuation provisions. Specifically, the court had to determine whether the objective of the modern awards was to prescribe the minimum terms and conditions of employment, including superannuation, or whether it was limited to other aspects of employment such as wages and hours. This interpretation was crucial as it would affect the transitional arrangements for superannuation provisions under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

The court examined the legislative framework and the intent behind the modern awards objective. It found that the objective of modern awards was indeed broad, encompassing minimum terms and conditions of employment, including superannuation. The court held that the transitional provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 should be interpreted in a manner consistent with this objective. Consequently, the court ruled that the superannuation provisions in the modern awards were subject to the transitional review process.

The court's decision clarified the scope of the modern awards objective and its implications for the transitional review of superannuation provisions. The outcome provided certainty to employers and employees regarding the application of the superannuation provisions during the transitional period. The court's ruling was significant in ensuring that the legislative intent behind the modern awards was upheld in the context of superannuation.

Orders