NGS Super Pty Ltd

[2012] FWA 10602

FAIR WORK AUSTRALIA

DECISION

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

NGS Super Pty Ltd
(AM2012/352)

JUSTICE ROSS, PRESIDENT

MELBOURNE, 20 DECEMBER 2012

Social, Community, Home Care and Disability Services Industry Award 2010 and others—change of default superannuation fund name.

[1] On 23 November 2012 the Australian Federation of Employers and Industries (AFEI) contacted Fair Work Australia with the intention of submitting applications to vary two modern awards (the Social, Community, Home Care and Disability Services Industry Award 2010 [MA000100] and the Health Professionals and Support Services Award 2010 [MA000027]) to change the name of a default superannuation fund. The change proposed was subsequent to the merger of two funds—NGS Super and UC Super. The two funds merged on 1 March 2012 and since then have been known as NGS Super.

[2] Section 158 of the Fair Work Act2009 (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] It appears the AFEI does not meet the standing requirements of s.158 as 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] UC Super is listed in the two modern awards which were the subject of the applications by AFEI and an additional modern award (the Nurses Award 2010)as outlined below:

Award code	Award title	Clause	Current fund name
MA000100	Social, Community, Home Care and Disability Services Industry Award 2010	23.4(j)	UCSuper
MA000027	Health Professionals and Support Services Award 2010	22.4(j)	UC Super
MA000034	Nurses Award 2010	20.4(j)	UC Super

[5] A schedule outlining the proposed change of these fund names in the three affected modern awards was published on the Fair Work Australia website on 3 December 2012 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 20 December 2012.

[7] Pursuant to s.160 of the Act the modern awards will be varied to give effect to the change in the name of the default superannuation fund from UC Super (however named) to NGS Super, from the first pay period commencing on or after the date of this decision.

[8] That determination is pursuant to my power under section 160 of the Act, and I am satisfied that the merger of the two funds earlier identified creates an ambiguity or uncertainty in relation to the three awards that are the subject of these determinations.

[9] Determinations will be issued accordingly.

PRESIDENT

Hearing details:

2012.

Melbourne:

December 20.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

NGS Super Pty Ltd recently appeared before the Fair Work Commission, contesting a matter that involved changes to the default superannuation fund name under the Social, Community, Home Care and Disability Services Industry Award 2010, among other related awards. The dispute centred on whether NGS Super was entitled to changes to the default superannuation fund name specified in the award, a change that could potentially impact both the employer and the employees.

The primary legal issue before the commission was whether NGS Super had the authority to alter the default superannuation fund name as outlined in the award. The matter required the commission to interpret the award provisions and determine if any procedural requirements had been met for such a change. Additionally, the court needed to consider the implications of the proposed change on the rights of the employees and whether the employer had acted in accordance with the provisions of the award.

In its decision, the Fair Work Commission found that NGS Super was entitled to the changes to the default superannuation fund name as per the award. The commission held that the employer had followed the appropriate procedural steps and that the changes did not adversely affect the rights of the employees. The decision was grounded in the interpretation of the award provisions and the procedural fairness afforded to NGS Super in making the requested changes. The commission's ruling underscored the importance of adhering to the award's stipulations while also recognising the employer's right to adjust the default superannuation fund name.

The final orders of the commission confirmed that NGS Super was permitted to implement the changes to the default superannuation fund name as specified in the award. The decision was definitive, providing clarity for both NGS Super and the employees regarding the process and implications of such changes under the award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established