Square Holes Pty Ltd

[2015] FWC 3789

[2015] FWC 3789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
Application under the terms of an enterprise agreement

Square Holes Pty Ltd
(AG2015/2602)

NUW and AMSRO Market Research Industry Agreement 2013-2016
(AG2015/1797)

COMMISSIONER HAMPTON ADELAIDE, 5 JUNE 2015

Application under the terms of an enterprise agreement - superannuation fund exemption.

[1] Square Holes Pty Ltd (Square Holes) has made an application to the Commission for an exemption in relation to superannuation fund choice. The application seeks to utilise the provisions of clause 16.11 of the NUW and AMSRO Market Research Industry Agreement 2013-2016 (the enterprise agreement). The enterprise agreement was approved by the Commission on 31 March 2015 1 and Square Holes is one of a number of employers covered by that instrument.

[2] Clause 16 Superannuation of the enterprise agreement provides, amongst other matters, that the (default) fund for the receipt of superannuation contributions that are due under the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992 is the Labour Union Co-operative Retirement Fund (LUCRF).

[3] An exemption process is established in clause 16.11 in the following terms:

“16.11 Exemption

16.11.1 An individual employer, other an than employer covered by clause 16.8, 2 may make application to the Fair Work Commission (“Commission”) for exemption from the requirement to pay contributions to the Fund pursuant to this clause.
16.11.2 The Commission may grant such exemption having regard to the following procedures and circumstances:
16.11.2(a) The employer shall notify the Commission that it intends to implement superannuation consistent with wage fixing principles for employees covered by this Agreement with contributions to be made to a Fund other than the Fund specified in this clause.
16.11.2(b) The contributions by the employer to the alternative superannuation Fund are made on the basis of the entitlement established by this clause.
16.11.2(c) Approval for exemption has been sought at first instance by the employer either directly or through their employer organisation from the NUW.
16.11.2(d) The Commission may attempt to conciliate on any disagreement as to the Fund to apply to the employees of that employer.
16.11.2(e) If conciliation fails, the Commission may adjourn for a reasonable period to allow a representative from LUCRF to interview employees regarding superannuation. These interviews are only for the purposes of discussing superannuation.
16.11.2(f) Employees then may choose the Fund to apply from those proposed by the employer or LUCRF.
16.11.2(g) Where the parties are unable to, reach agreement the matter shall be referred to the Commission for determination.
16.11.2(h) The alternative Fund must comply with superannuation legislative requirements and any other relevant legal requirements.

16.11.2(i) Applications for exemption must be lodged within a period of six months from the date of the employer becoming bound by the Award or this Agreement, whichever occurs earlier.”

[4] Some of the background to this matter is set by the fact that an employee of Square Holes had earlier lodged two disputes seeking dispensation from the default fund provisions. 3 That employee, who is engaged on a limited casual basis, was concerned that the LUCRF fund was not appropriate in the circumstances. It was agreed as part of the resolution of the latest dispute that Square Holes would seek the exemption contemplated by clause 16.11 given that the new enterprise agreement had by that time been approved.

[5] Square Holes has sought that its employees be given the right to access alternative superannuation schemes, including self-managed funds. 4

[6] The NUW has agreed to the exemption being granted. 5

[7] Square Holes became “bound” by the enterprise agreement when it was approved and made this application within the six months window contemplated by clause 16.11.2(i). It is clear that Square Holes intends to make the relevant superannuation contributions but is seeking to do so to a fund or funds other than LUCRF as requested by some employees. The exemption in this case has been agreed by the NUW as provided in the agreement provision.

[8] Clause 16.11.2(h) requires that any alternative fund that is used for this purpose must comply with the superannuation legislative requirements and any other legislative requirement. This would include, by implication, that any funds must be capable of accepting superannuation contributions required of the employer by virtue of the enterprise agreement and the Superannuation Guarantee (Administration) Act 1992. Provided the conditions of clause 16.22.2(h) are met, it is appropriate in all of the circumstances outlined above to grant the exemption as sought.

[9] Accordingly, the Commission hereby grants an exemption to Square Holes Pty Ltd pursuant to clause 16.11 of the NUW and AMSRO Market Research Industry Agreement 2013-2016. Any alternative superannuation funds that are used by Square Holes Pty Ltd to make superannuation contributions required by the terms of the enterprise agreement are to be funds that meet the relevant requirements of the Superannuation Guarantee (Administration) Act 1992 and the Superannuation Guarantee Charge Act 1992.

[10] This approval takes effect on and from the date of this decision, and subject to further decision or order, will operate whilst Square Holes Pty Ltd is covered by the NUW and AMSRO Market Research Industry Agreement 2013-2016.

 1   [2015] FWCA 2274.

 2   Clause 16.8 refers to employers making contributions under an award prior to 1 June 1990.

 3   C2014/6516 and C2015/2002 lodged by Mrs Katherine Cole.

 4   Application at 2.2.

 5   Email dated 2 June 2015.

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