Changes to superannuation laws concerning stapled superannuation funds and underperforming superannuation products commenced in September 2022. Under sections 159A and 160 of the Fair Work Act 2009 (‘FW Act’), the Fair Work Commission (‘FWC’) has a right to exercise its own powers to remove ambiguity or uncertainty or to correct an error, or the power to vary the default fund term in relation to a Superannuation fund specified in the term in relation to a standard MySuper product, in limited circumstances.
The Fair Work Commission proposed a FWC Full Bench conduct a review of superannuation clauses in all modern awards so they better reflect current superannuation law requirements.
The review was to occur in two stages. The first being a review of six of the Modern Awards which covered the 6 categories of superannuation clauses:
- Short Standard clause
- Long standard clause with absence from work provision
- Long Standard Clause without absence from work provision
- Standard public sector clause
- Standard newspaper sector clause
- Non-standard clauses
The second stage was to review the remainder of the Modern Awards, divided into the six categories of clauses.
- The Fair Work Commission released their decision on the review on 22 December 2023.
As to the first category of superannuation clauses, it was agreed by the Fair Work Commission with the common position of the parties that they are not inconsistent with superannuation laws and are therefore not ambiguous, uncertain or attended by error.
Regarding the second and third categories, although they are not ambiguous or subject to error, they are uncertain.
To the extent that categories 4, 5 and 6 award clauses contain provisions are the same terms as the ‘superannuation legislation’ and ‘superannuation funds’ subclauses of the second and third categories, or have the same effect, it is considered they are also uncertain.
The Fair Work Commission’s approach was to make minimal adjustments to the operative provisions of the second and third award clauses but to include a note that gives a short description of the relevant aspects of the legislative context to aid understanding of the clauses.
In respect of the fourth, fifth and sixth categories, they should be varied in terms consistent with variations proposed for the second and third categories, to the extent relevant.
