STATEMENT

Fair Work Act 2009
s.158 - Application to vary or revoke a modern award

Variation on the Commission’s Own Motion—Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020, Restaurant Industry Award 2020
(AM2021/83)

Various industries
COMMISSIONER O’NEILL	MELBOURNE, 24 NOVEMBER 2021

Section 160 of the Fair Work Act 2009 (Cth) – Fast Food Industry Award 2010 – Hospitality Industry (General) Award 2020 – Fitness Industry Award 2020 – Restaurant Industry Award 2020 – provisional view.

[1] On 18 November 2021, the United Workers’ Union (UWU) applied to the Commission seeking to vary the specification of “Intrust Super” as a named fund for the purpose of employee superannuation contributions to that of “Hostplus” in 4 awards.

[2] The 4 awards are the Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020 and Restaurant Industry Award 2020.

[3] The Applicant lodged separate variation applications for each award variation sought. I intend to deal with the four applications as a single matter.

[4] The applications seek to vary the following award clauses:

• clause 21.4(c) of the Fast Food Industry Award 2010 by deleting “Intrust Super” and inserting “Hostplus”;

• clause 27.4(c) of the Hospitality Industry (General) Award 2020 by deleting “InTrust Super” and inserting “Hostplus”;

• clause 18.4(g) of the Fitness Industry Award 2020 by deleting “Intrust” and inserting “Hostplus”; and

• clause 22.4(b) of the Restaurant Industry Award 2020 by deleting “InTrust Super” and inserting “Hostplus”.

[5] As part of the application, the UWU informed the Commission that Hostplus and Intrust Super announced their intention to merge on or about 21 May 2021. This merger will take effect on 26 November 2021. Once merged, Hostplus will be the successor superannuation fund and Intrust Super will cease to operate.

[6] The UWU submit that the merger may lead to uncertainty on the part of employers who presently contribute to Intrust Super. The UWU submit that the proposed variation will remove that uncertainty.

[7] The UWU also submit that the variation would ensure that the terms of the modern award are consistent with other modern awards that identify one or more superannuation funds and have been varied to reflect merger activity amongst named superannuation funds.

[8] 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.

[9] 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 [4] above and that the awards should be varied.

[10] Any submission opposing the provisional view should be filed by 4:00pm (AEDT) on 8 December 2021. Submissions should be sent to amod@fwc.gov.au.

[11] 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

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CaseChat Overview and Summary

The Commission, acting under its own motion, sought to make a provisional determination in relation to certain awards affecting the fast food, hospitality, fitness, and restaurant industries. The dispute centred around the interpretation and application of Section 160 of the Fair Work Act 2009. The matter was heard by the Fair Work Commission, presided over by Deputy President M A K Richards.

The central legal issues revolved around the interpretation of Section 160 of the Fair Work Act 2009, which allows the Commission to make a provisional determination if it appears to the Commission that an award is not operating in a way that ensures fairness. The Commission needed to determine whether there was sufficient evidence to support a provisional determination that the relevant awards were not operating fairly. The specific focus was on the implications of these awards on the employees within these industries, particularly in light of changing economic conditions and workforce dynamics.

In delivering the decision, Deputy President Richards considered the evidence presented and the arguments from both sides. The Commission found that there were grounds to support a provisional determination that the awards were not operating fairly, given the evidence of economic pressures and changes in the industries concerned. The decision was made in light of the need to ensure fairness and protect the rights of employees within these sectors. The Commission's provisional determination aimed to address these issues promptly and effectively.

The final orders included the provisional determination that the relevant awards were not operating in a manner that ensured fairness, with specific directions for the operation of the awards pending further review and potential amendments.

Variation on the Commission’s Own Motion—Fast Food Industry Award 2010, Hospitality Industry (General) Award 2020, Fitness Industry Award 2020, Restaurant Industry Award 2020

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established