United Workers’ Union

[2022] FWC 1344

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009

s.160—Application to vary a modern award to remove ambiguity or uncertainty or correct error

United Workers’ Union

(AM2022/14)

Various industries
COMMISSIONER O’NEILL	MELBOURNE, 21 JUNE 2022

Section 160 of the Fair Work Act 2009 (Cth) – applications to vary superannuation default fund – merger of Statewide Superannuation Trust and Hostplus – provisional view.

Introduction

On 21 April 2022, the United Workers’ Union (UWU) applied to the Commission to vary the specification of “Statewide Superannuation Trust” as a named fund for the purpose of employee superannuation contributions to that of “Hostplus” in eight awards.

The UWU lodged separate variation applications for each award variation sought. I intend to deal with the eight applications as a single matter.

The applications seek to vary the following award clauses:

· Children’s Services Award 2010 – by deleting “Statewide Superannuation Trust” in clause 20.4(e) and inserting “Hostplus”;

· Food, Beverage and Tobacco Manufacturing Award 2020 – by deleting “Statewide Superannuation Trust” in clause 22.4(f) and inserting “Hostplus”;

· Manufacturing and Associated Industries and Occupations Award 2020 – by deleting “Statewide Superannuation Trust” in clause 31.4(j) and inserting “Hostplus”;

· Poultry Processing Award 2020 – by deleting “Statewide Superannuation Trust” in clause 18.4(e) and inserting “Hostplus”;

· Social, Community, Home Care and Disability Services Industry Award 2010 – by deleting “Statewide Superannuation Trust” in clause 23.4(k) and inserting “Hostplus”;

· Seafood Processing Award 2020 – by deleting “Statewide Superannuation Trust” in clause 18.4(d) and inserting “Hostplus”;

· Vehicle Repair, Services and Retail Award 2020 – by deleting “Statewide Superannuation Trust” in clause 21.4(f) and inserting “Hostplus”; and

· Viterra Bulk Handling and Storage of Grains, Pulses and Minerals Award 2015 – by deleting “Statewide Superannuation Trust” in clause 18.3(h) and inserting “Hostplus”;

As part of its application, the UWU informed the Commission that Statewide Superannuation Trust and Hostplus are scheduled to merge on 29 April 2022. It appears that the merger was formalised as scheduled on 29 April 2022.

The UWU submit that the object of its applications is to ensure that employers covered by the award are in no doubt as to which fund or funds they may remit superannuation contributions to.

I have been allocated this matter to deal with pursuant to s.616(3D)(a) of the Act, which provides that the President may direct a single Member to perform a function or exercise a power under s.160 of the Act varying a modern award.

It is my provisional view that the abovenamed awards should be varied as proposed by the UWU and set out in the draft determinations issued with this Statement. I am satisfied that there is ambiguity or uncertainty with the current wording of the clauses in each of the awards named in paragraph [3] above and that the awards should be varied.

Next steps

Any submissions opposing my provisional view are to be lodged by 4pm (AEST) on Thursday, 30 June 2022. Submissions should be sent to amod@fwc.gov.au.

If no submissions are filed opposing the provisional view, final determinations in the form set out in the draft determinations will be issued and the awards will be varied.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The United Workers’ Union applied to the Fair Work Commission to modify eight modern awards to replace references to "Statewide Superannuation Trust" with "Hostplus". The merger of these two superannuation funds had been scheduled for 29 April 2022 and the union argued that the change was necessary to remove any ambiguity for employers regarding which superannuation fund they should remit contributions to. Commissioner O’Neill was allocated the case under section 616(3D)(a) of the Fair Work Act 2009, which allows for a single Member to vary a modern award under section 160 of the Act. The Commissioner provisionally agreed with the union's applications, finding that the current wording in the awards created ambiguity or uncertainty.

The primary legal issue for the Commissioner was whether the proposed variations to the awards were necessary to remove ambiguity or uncertainty or to correct an error. The union argued that the merger of the two superannuation funds meant that the current references in the awards were no longer accurate, and this could cause confusion for employers. The Commissioner needed to determine whether these changes would indeed remove ambiguity and whether they were appropriate under section 160 of the Fair Work Act.

The Commissioner found that the current references to "Statewide Superannuation Trust" in the awards were ambiguous or uncertain due to the impending merger with Hostplus. The union's applications aimed to update the awards to reflect this change, ensuring clarity for employers. The Commissioner was satisfied that the proposed variations would achieve this goal and thus supported the union’s applications. The Commissioner noted that if no opposing submissions were received by the specified deadline, final determinations would be issued, and the awards would be varied as proposed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established