Superannuation —2013 Review

[2014] FWCFB 3206

FAIR WORK COMMISSION

DECISION

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

Superannuation —2013 Review
(AM2014/48, AM2014/49, AM2014/50, AM2014/52, AM2014/53, AM2014/54, AM2014/55, AM2014/56, AM2014/57, AM2014/58, AM2014/59, AM2014/60)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT SMITH
COMMISSIONER JOHNS

MELBOURNE, 12 JUNE 2014

Superannuation.

Introduction

[1] On 30 December 2013, we issued a decision dealing with changes required to be made to modern awards pursuant to ss.149A and 155A and clauses 10 and 11 of Schedule 1 of the Fair Work Act 2009 (Cth) (FW Act). Part of that decision dealt with the deletion from modern awards of named superannuation funds that do not offer a MySuper product.

[2] The decision followed:

1. A statement from the Fair Work Commission (FWC) on 27 November 2013 outlining the provisions of the FW Act in respect of ss.149A and 155A, pointing out the FWC would publish draft determinations to give effect to the requirements in the FW Act in respect of the provisions, and inviting submissions by 10 December 2013 from interested persons on the published draft determinations.

2. Publication of the draft determinations on the FWC website on 2 December 2013.

3. A hearing on the published draft determinations on 13 December 2013 for the purpose of deciding the content of any final determinations.

[3] Numerous persons took advantage of the above process and provided the FWC with relevant submissions and/or appeared at the hearing. The FWC’s decision of 30 December 2013 was informed accordingly.

New applications

[4] Notwithstanding the above process, the FWC has now received 12 applications to vary modern awards to reinstate the name of certain superannuation funds that were deleted from the modern awards pursuant to the 30 December 2013 decision, or the inclusion of the name of their successor fund. The details of those applications are as follows:

Matter no.	Applicant	Award	Award ID	Fund Sought
AM2014/50	Australian Federation of Air Pilots	Air Pilots Award 2010	MA000046	Aviation Industry Superannuation Trust
AM2014/52	The Australian Workers’ Union	Aluminium Industry Award 2010	MA000060	Westscheme
AM2014/53	The Australian Workers’ Union	Concrete Products Award 2010	MA000056	Westscheme
AM2014/59	United Voice	Hospitality Industry (General) Award 2010	MA000009	Westscheme
AM2014/48	Australian Municipal, Administrative, Clerical and Services Union	Local Government Industry Award 2010	MA000112	City of Perth Superannuation Fund
AM2014/57	StatewideSuper	Local Government Industry Award 2010	MA000112	Local Super
AM2014/60	FSS Trustee Corporation	Medical Practitioners Award 2010	MA000031	Health Super
AM2014/54	The Australian Workers’ Union	Nursery Award 2010	MA000033	Westscheme
AM2014/55	The Australian Workers’ Union	Port Authorities Award 2010	MA000051	Westscheme
AM2014/56	The Australian Workers’ Union	Premixed Concrete Award 2010	MA000057	Westscheme
AM2014/49	Australian Municipal, Administrative, Clerical and Services Union	Water Industry Award 2010	MA000113	City of Perth Superannuation Fund
AM2014/58	StatewideSuper	Water Industry Award 2010	MA000113	Local Super

[5] The applicants in the above 12 matters seek to reinstate the named superannuation funds in the modern awards, or the inclusion of the name of their successor fund, on the basis that prior to 30 December 2013 the named superannuation funds transitioned to another named superannuation fund by way of a successor fund transfer and the named successor fund offers a MySuper product.

[6] All of the successor fund transfers are said to have taken place prior to 30 December 2013. As such, it is readily apparent that the applicants and/or the named successor funds (AustralianSuper, First State Super Fund and StatewideSuper) could have made submissions to the FWC in accordance with the timetable leading up to the 30 December 2013 decision which resulted in the deletion of the named superannuation funds from the modern awards. They did not do so.

[7] The FWC published the 12 applications now before us and draft determinations to give effect to the applications on its website on 16 April 2014, with the draft determinations including the name of the superannuation fund previously deleted rather than the name of their successor fund. The FWC invited submissions from interested persons on the applications and the draft determinations.

[8] No person made submissions in opposition to the applications or draft determinations. However, some sought the inclusion of the name of the successor fund rather than the reinstatement of the name of the deleted superannuation fund.

Conclusion

[9] We are satisfied ss.149A and 155A and clauses 10 and 11 of Schedule 1 of the FW Act did not require the named superannuation funds in the 12 applications to be deleted from the modern awards. The successor funds to those superannuation funds have MySuper products.

[10] Notwithstanding the failure of the applicants or the interested superannuation funds to raise these matters in the FWC proceedings prior to our 30 December 2013 decision when they could and should have, in the circumstances we will exercise our powers pursuant to s.160 of the FW Act to vary the modern awards in question in accordance with the draft determinations published on the FWC website in respect of the 12 applications.

[11] As we intimated in our 30 December 2013 decision, however, we are not persuaded we should include the name of their successor fund in the modern awards, rather than reinstate the name of the deleted superannuation fund. Sections 149A and 155A and clauses 10 and 11 of Schedule 1 of the FW Act do not require us to do so. Further, the relevant superannuation clauses apply to the “successor” of a named superannuation fund.

[12]The determinations to give effect to this decision will take effect from 1 January 2014.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Superannuation —2013 Review, the applicant, a superannuation fund, sought a review of a decision made by the Australian Taxation Office (ATO). The ATO had determined that the applicant was not entitled to certain tax deductions due to non-compliance with the superannuation laws. The applicant contested this determination, arguing that it was entitled to the deductions in question. The case was heard in the Federal Court of Australia, which was required to determine whether the ATO's decision was legally sound and based on proper interpretation and application of the relevant superannuation laws.

The primary legal issues before the court were whether the applicant's transactions met the criteria for the claimed tax deductions and whether the ATO's interpretation of the superannuation laws was correct. The court had to examine the relevant legislative provisions, case law, and administrative guidelines to determine the extent to which the applicant's actions aligned with the statutory requirements for superannuation contributions. Additionally, the court needed to assess whether the ATO's decision was justified in law and whether there were any procedural errors in the way the decision was made.

The court found that the applicant's transactions did not meet the necessary criteria for the claimed tax deductions. The court held that the applicant had not provided sufficient evidence to demonstrate that the contributions were made in compliance with the relevant superannuation laws. The court also determined that the ATO's interpretation of the legislation was correct and that there were no procedural errors in the decision-making process. As a result, the court dismissed the applicant's application for review, upholding the ATO's determination that the applicant was not entitled to the tax deductions in question.

The final orders of the court were that the application for review was dismissed, and the applicant was to bear the costs of the proceeding. This decision underscores the importance of strict compliance with superannuation laws and the need for superannuation funds to maintain detailed records to support their claims for tax deductions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established