National Union of Workers

[2012] FWA 3256

Note: An appeal pursuant to s.604 (C2012/4198) was lodged against this decision - refer to Full Bench decision dated 29 August 2012 [[2012] FWAFB 7462] for result of appeal.

[2012] FWA 3256

FAIR WORK AUSTRALIA

DECISION

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

National Union of Workers
(AM2012/9)

Road transport industry
COMMISSIONER LEWIN	MELBOURNE, 25 MAY 2012

Application to add default superannuation fund to a modern award - alleged error - ambiguity - uncertainty - modern awards objective

[1] This decision concerns an application made by the National Union of Workers (NUW) to vary the Road Transport and Distribution Award 2010 (the Award). 1 The application seeks to vary clause 21 of the Award. Clause 21 “Superannuation” provides at Clause 21.4 as follows:

“21.4 Superannuation fund

Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 21.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or (b) to one of the following superannuation funds or its successor:

(a) TWUSUPER;

(b) OAMPS Super Fund;

(c) Tasplan;

(d) SunSuper;

(e) AustSafe Super; or

(f) any superannuation fund to which the employer was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund.”

[2] The application seeks to add to the superannuation funds named in paragraphs (a) to (e) of Clause 21.4 of the Award, LUCRF Super. LUCRF Super is a complying fund for the purposes of section 32D of the Superannuation Guarantee (Administration) Act 1992.

[3] The award is a modern award. Modern awards are provided for by Part 2-3 of Chapter 2, Terms and Conditions of Employment in the Act. Division 4-4 thereof provides for the review of modern awards each 4 years. The application is made under s.160 of “Division 5—Exercising modern award powers outside 4 yearly reviews and annual wage reviews” of the Fair Work Act 2009 (the Act) which is set out below:

“160 Variation of modern award to remove ambiguity or uncertainty or correct error

(1) FWA may make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

(2) FWA may make the determination:

(a) on its own initiative; or

(b) on application by an employer, employee, organisation or outworker entity that is covered by the modern award.”

[4] I am satisfied that the award covers the NUW and its members. The application is valid.

The Proceedings

[5] The application has been dealt with by the Tribunal as follows below.

[6] The application in this matter was filed in the Tribunal on 16 February 2012.

[7] On 6 March 2012 Fair Work Australia issued directions to the NUW and any other interested party. These directions were emailed to the applicant and displayed on the Fair Work Australia Modern Awards Website.

[8] The Australian Road Transport Industrial Organisation (ARTIO) filed submissions in the Tribunal on 22 March 2012.

[9] On 23 March 2012 the NUW filed in the Tribunal a letter in support of the application. That letter is addressed to the Tribunal from LUCRF Super.

[10] The Transport Workers’ Union of Australia (TWU) filed submissions in the Tribunal on 23 March 2012. Accompanying those submissions was an application for costs. The TWU’s costs application will be dealt with separately.

[11] The applicant filed submissions in reply on 5 April 2012.

[12] I do not intend to describe each submission filed in accordance with the abovementioned direction, they are all available on the Fair Work Australia Modern Awards Website.

[13] It is, however, necessary to note that the submissions variously support or oppose the application for diverse reasons which will be dealt with below.

[14] Submissions of persons who support the application were filed by the NUW as an attachment, in letter form, with the application to Fair Work Australia.

[15] A submission in letter form from LUCRF Super addressed to Fair Work Australia supported the application. No submissions were formally filed by Linfox and DHL, however, the NUW claimed that those companies supported the application. I shall assume that they do.

[16] Submissions opposing the application were filed by the Transport Workers’ Union of Australia.

[17] The Australian Road Transport Industry Organisation (ARTIO) opposed the granting of the application on the ground that consideration of the application should be deferred until the Commonwealth Government receives and responds to a report requested of the Productivity Commission into the process for the selection and ongoing review of superannuation funds to be included in modern awards as default funds. That request was issued to the Productivity Commission by the Assistant Treasurer of the Commonwealth of 6 February 2012.

Statutory Provisions

[18] Division 2 of Part 2-3—Overarching Provisions, sets out the modern awards objective at s.134 thereof, as follows:

“134 The modern awards objective

What is the modern awards objective?

(1) FWA must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:

(a) relative living standards and the needs of the low paid; and

(b) the need to encourage collective bargaining; and

(c) the need to promote social inclusion through increased workforce participation; and

(d) the need to promote flexible modern work practices and the efficient and productive performance of work; and

(e) the principle of equal remuneration for work of equal or comparable value; and

(f) the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and

(g) the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and

(h) the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.

This is the modern awards objective.

When does the modern awards objective apply?

(2) The modern awards objective applies to the performance or exercise of FWA’s modern award powers, which are:

(a) FWA’s functions or powers under this Part; and

(b) FWA’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.

Note: FWA must also take into account the objects of this Act and any other applicable provisions. For example, if FWA is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).

[19] Sections 157 and 158 refer to variations to modern awards outside the provisions of the Act for scheduled 4 year reviews of the terms of modern awards. Section 160 appears in Subdivision B of Division 5 of Chapter 2 which is entitled - Other Situations.

[20] It is also appropriate to note the provisions of s.138 in respect of the inclusion of terms in a modern award:

“138 Achieving the modern awards objective

A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.”

[21] Moreover, while s.139(1)(i) provides that a term, which is about superannuation may be included in a modern award such inclusion may only be to the extent necessary to achieve the modern awards objective.

[22] The commencement of the Fair Work Act 2009 and the modern awards request 2 provided for the making of modern awards subsequent to an extensive and intensive process referred to as award modernisation, conducted by the Tribunal between March 2008 and December 2009. As part of this process, the Award was made by the Full bench of Fair Work Australia on 3 April 2009, coming into effect from 1 January 2010. Clause 21, which deals with the subject of superannuation, was a term of the Award made by the Full Bench as a result of the award modernisation process.3 There have been subsequent variations of the Award. 4

[23] As the application before me is made under s.160 of the Act, I must be satisfied that there exists in the Award some ambiguity in relation to default superannuation funds which must be removed, or that the relevant provisions of the Award are erroneous and must be corrected, or there has been some erroneous omission from the Award of LUCRF Super.

[24] I am not satisfied that an ambiguity or an error of the relevant kind has been identified. The terms of the provisions of Clause 21.4 unambiguously identify various default funds. The proper construction of the terms of the Award, most particularly those which refer to and identify default superannuation funds for the purposes of Clause 21, are of certain application, to the effect that the funds listed in subparagraph (a) to (f) thereof and no others are default superannuation funds to which contributions are to be made where an employee fails to elect a complying fund.

[25] Further, the Tribunal should give effect to the policy evident in the scheme of the Act for review and variation to modern awards and the modern awards objective. The clear intention of the statutory scheme is one of limitation upon the time and circumstances under which modern awards may be varied.

[26] In my view the terms of the award, as varied, are clear and unambiguous and reveal no error either of the commission or omission of expression or a failure to include LUCRF Super in order to give effect to a decision of the Tribunal in relation to the contents of Cl 21.4. They can also be readily applied. I decide that the applicant has not made out the basis of the application within the limits of s.160.

[27] Moreover, in my view, having regard to the number of default funds provided for by Clause 21.4 of the Award it is not necessary to include additional default funds to meet any of the considerations which comprise the modern awards objective which are to be taken into account in accordance with the statutory scheme.

[28] The application is dismissed, an order will issue.

COMMISSIONER

 1   MA000038.

 2 On 28 March 2008 the Minister for Employment and Workplace Relations made an award modernisation request pursuant to s.576C(4) of the Workplace Relations Act 1996.

 3   [2009] AIRCFB 345.

 4   PR988393; PR992020; PR993203; PR994481; PR997772; PR997918; PR998147; PR998748; PR503651; PR509069; PR509191 and PR510670.

Printed by authority of the Commonwealth Government Printer

<Price code A, MA000038  PR522480>