United Workers Union

The United Workers Union (UWU) applied to the Fair Work Commission to vary five enterprise agreements in order to remove ambiguity or uncertainty due to the impending merger of the Labour Union Co-Operative Retirement Fund (LUCRF) with AustralianSuper. The agreements in question are the Nestle (Broadford) – United Workers Union Enterprise Agreement 2021, the Nestle Australia Ltd – Northern Distribution Centre Agreement 2019-2022, the Nestle Australia Ltd – National Union of Workers – Merchandisers Enterprise Agreement 2018-2021, the Nestle Australia Ltd (Uncle Tobys Wahgunyah) & United Workers' Union Agreement 2020, and the Nestle Purina Petcare, Blayney Enterprise Agreement 2021-2023. The applications were supported by Nestle Australia Limited. The legal issue before the Deputy President was whether there existed ambiguity or uncertainty in the agreements that would justify the exercise of the Commission's discretion under section 217 of the Fair Work Act 2009 to vary the agreements. The Deputy President concluded that while the relevant provisions of the agreements were not ambiguous, the merger of LUCRF with AustralianSuper would create uncertainty in the application of the agreements from 3 June 2022. The Deputy President exercised the discretion to vary the agreements by inserting "or any successor fund" after references to LUCRF, as proposed by the UWU. This variation would remove the uncertainty by allowing contributions to continue to be made to AustralianSuper as the successor fund.

The Deputy President noted that the proposed variations were consistent with the intention of the parties, did not disadvantage employees, and were supported by the merging superannuation funds. The Deputy President also considered that it was appropriate to exercise the discretion in the manner proposed given the dynamics driving superannuation fund mergers and the likely expectations of employees. The Deputy President concluded that varying the agreements as proposed was fair and reasonable in all the circumstances and in accordance with section 578 of the Fair Work Act, which requires the Commission to exercise its powers taking into account equity, good conscience and the merits of the matter. The Deputy President found that varying the agreements to insert "or any successor fund" would remove the uncertainty and was an appropriate exercise of the Commission's discretion under section 217.