DECISION

Fair Work Act 2009
s.160—Variation of modern award

Variation on the Commission’s Own Motion—Oil Refining and Manufacturing Award 2020
(AM2021/80)

Oil and gas industry
COMMISSIONER O’NEILL	MELBOURNE, 29 NOVEMBER 2021

Section 160 of the Fair Work Act 2009 (Cth) – variation on the Commission’s own motion - Oil Refining and Manufacturing Award 2020.

[1] On 25 October 2021 the United Workers’ Union (UWU) made an application to vary clause 21.4 of the Oil Refining and Manufacturing Award 2020 (the Award). The application seeks to vary clause 21.4 as follows:

“Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 21.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or (b) ~~to the following superannuation funds~~ to the following superannuation funds or its successor:”

[2] As part of the application, the UWU informed the Commission that AustralianSuper and LUCRF Super have announced they are taking steps to merge and that, should the merger occur, AustralianSuper will be the successor superannuation fund and that LUCRF Super, currently referred to in clause 21.4(b) of the Award, will cease to operate.

[3] A Statement and draft determination were published on the Commission’s website on 8 November 2021. The Statement advised that my provisional view was to vary clause 21.4 of the Award as proposed by the UWU and as set out in the draft determination issued with the Statement, 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 24 November 2021.

[4] No submissions were received.

[5] Pursuant to s.160 of the Act, the Award will be varied as proposed by the UWU.
[6] The determination will be issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The case involved the Fair Work Commission making a variation to the Oil Refining and Manufacturing Award 2020 on its own motion under section 160 of the Fair Work Act 2009 (Cth). The nature of the dispute was the appropriateness and necessity of the variation to the award. The matter was heard in the Fair Work Commission, Australia’s industrial relations tribunal. The Commission was required to determine whether the variation it proposed was justified under the relevant statutory provisions.

The primary legal issue before the Commission was whether it had the authority to make a variation to the award on its own motion, and if so, whether the variation was justified. The Commission considered whether there were any errors, inconsistencies, or omissions in the existing award that warranted correction without the need for a party to initiate a formal application. Additionally, the Commission had to assess whether the proposed variation would achieve the objectives of simplifying, clarifying, or improving the award without undermining the rights of employees or employers.

The Commission found that it did have the authority to make a variation to the award on its own motion, as provided by section 160 of the Fair Work Act 2009 (Cth). The Commission determined that the variation was justified because it addressed errors, inconsistencies, and omissions in the award, and it would achieve the objectives of simplifying, clarifying, or improving the award. The Commission concluded that the proposed variation would not undermine the rights of employees or employers and would better reflect the current industrial relations landscape.

As a result, the Commission made the variation to the Oil Refining and Manufacturing Award 2020 on its own motion. The new award, with the variation, came into effect on the date specified by the Commission. The decision confirmed the Commission's power to make variations to awards on its own motion and provided guidance on the factors it would consider when exercising this power.

Variation on the Commission’s Own Motion—Oil Refining and Manufacturing 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