Variation on the Commission’s Own Motion – Hospitality Industry (General) Award 2020 and Restaurant Industry Award 2020

[2022] FWC 1379

[2022] FWC 1379

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.160—Variation of modern award

Variation on the Commission’s Own Motion – Hospitality Industry (General) Award 2020 and Restaurant Industry Award 2020

(AM2022/13)

JUSTICE ROSS, PRESIDENT MELBOURNE, 1 JUNE 2022

Section 160 Fair Work Act 2009 – variation on the Commission’s own motion – changes to the Superannuation Guarantee (Administration) Act 1992 – ambiguity or uncertainty – determinations issued.

1. On 2 May 2022, I issued a Statement[1] (the May Statement) which outlined upcoming changes to the Superannuation Guarantee (Administration) Act 1992 (the Superannuation Act).

1. The May Statement set out that:

·  On 22 February 2022, the Treasury Laws Amendment (Enhancing Superannuation Outcomes for Australians and Helping Australian Businesses Invest) Act 2022 (the Amending Act) received royal assent;

· The Amending Act removes the monthly minimum threshold for salary or wages to count towards the superannuation guarantee (repealing s27(2) of the Superannuation Act)[2];

·  The amendment applies in relation to a calendar month that is in a quarter beginning on or after 1 July 2022.[3]

1. The Hospitality Industry (General) Award 2020 (the Hospitality Award) and the Restaurant Industry Award 2020 (the Restaurant Award) both provide a lower threshold for salary or wages to be taken into account for the purposes of the superannuation guarantee than the $450 currently provided for in s27(2) of the Superannuation Act (which will shortly be repealed). These are the only two modern awards with such a provision.

1. Section 160 of the Fair Work Act 2009 (Cth) (the Act) allows the Commission to make a determination varying a modern award to remove an ambiguity or uncertainty or to correct an error.

1. The May Statement set out my provisional view that clause 27.2(b) of the Hospitality Award and clause 22.2(b) of the Restaurant Award:

· from 1 July 2022, will create uncertainty as to when superannuation contributions are to be made, and that this constitutes an ‘uncertainty’ for the purposes of s.160 of the Act; and

·   should be deleted from the awards operative 1 July 2022 on the initiative of the Commission.

1. Submissions opposing my provisional view were invited to be filed by 16 May 2022. No submissions were received.

1. Pursuant to s.160 of the Act, I confirm my provisional view and the awards will be varied as set out in the May Statement.

1. The determinations will be issued separately, with an operative date of 1 July 2022.

PRESIDENT

[1] [2022] FWC 992

[2] Schedule 1, item 1, Treasury Laws Amendment (Enhancing Superannuation Outcomes for Australians and Helping Australian Businesses Invest) Act 2022

[3] Schedule 1, item 2, Treasury Laws Amendment (Enhancing Superannuation Outcomes for Australians and Helping Australian Businesses Invest) Act 2022

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