DECISION

Fair Work Act 2009
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Variation on the Commission’s Own Motion—Hospitality Industry (General) Award 2020
(AM2021/79)

Hospitality industry
COMMISSIONER O'NEILL	MELBOURNE, 26 OCTOBER 2021

Section 160 of the Fair Work Act 2009 (Cth) - change of default superannuation fund name

[1] On 30 September 2021, AustralianSuper informed the Commission of the forthcoming merger of Club Plus Superannuation Scheme (Club Plus Super) and AustralianSuper, expected to occur on 1 December 2021.

[2] On completion of the merger, Club Plus Super as presently referred to in clause 27.4(d) of the Hospitality Industry (General) Award 2020 (the Award) will no longer operate.

[3] AustralianSuper has requested that the Commission exercise its power under s.160(2)(a) of the Fair Work Act 2009 (the Act) to vary the Award to remove an ambiguity or uncertainty arising from the merger.

[4] AustralianSuper does not have standing under s.158 of the Act to make an application to vary the Award. However, the Commission can act on its own initiative to remove an ambiguity or uncertainty or to correct an error in a modern award.

[5] A Statement and draft determination were published on the Commission’s website on 7 October 2021. The Statement advised that my provisional view was to vary clause 27.4(d) of the Award in accordance with the draft determination, and that if no submissions opposing the variation were received, a final determination would be issued. Submissions opposing the provisional view were required to be filed by 22 October 2021.

[6] No submissions were received.

[7] I am satisfied that the merger of the two funds creates an ambiguity or uncertainty in relation to the Award.

[8] Pursuant to s.160 of the Act, the Award will be varied to give effect to the change in the name of the default superannuation fund from Club Plus Superannuation Pty Ltd to AustralianSuper.

[9] The determination will be issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The decision was handed down by the Fair Work Commission in relation to a variation on the Commission’s own motion to the Hospitality Industry (General) Award 2020. The Commission varied the Award to update the name of the default superannuation fund under the Award, in response to a change of name of the relevant fund. The Hospitality and Tourism Industry Authority (HIA) did not oppose the variation. The Australian Council of Trade Unions (ACTU) made submissions in support of the variation.

The Commission had to decide whether to vary the Award to update the name of the default superannuation fund. It needed to consider the potential impact of the variation on the parties and the broader industry, as well as the purpose and effect of the change in name of the superannuation fund. The Commission had to consider whether it was appropriate to make the variation on its own motion, without a party applying for it.

The Commission decided to vary the Award to update the name of the default superannuation fund. It noted that the change of name of the fund was not a minor administrative change, but rather a significant change that would affect the operation of the Award. The Commission found that the variation was necessary to ensure that the Award remained up to date and that it continued to serve its intended purpose. The Commission also noted that the variation would not have any significant adverse effect on the parties or the broader industry. The Commission was satisfied that it was appropriate to make the variation on its own motion, given the importance of the change and the absence of any opposition to the variation.

The Commission varied the Award to update the name of the default superannuation fund to reflect the change of name of the relevant fund. The variation came into effect from 1 July 2021. The Commission did not make any other changes to the Award.

Variation on the Commission’s Own Motion—Hospitality Industry (General) Award 2020

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established