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[77]
[2025] FWCFB 272
General information, not legal advice.
Fair Work Commission (Full Bench)
2025-12-03
Original judgment source is linked above.
s.157 - FWC may vary etc. modern awards if necessary to achieve modern awards objective
s.160 - Variation of modern award to remove ambiguity or uncertainty or correct error
Variation on the Commission's own initiative - superannuation provisions in modern awards - not a 4-yearly review of default funds - employer contributions clause - Fair Work Act 2009 (Cth) s 149B - updating names of default superannuation funds - further submissions sought - 25 modern awards varied.
(1) A number of modern awards do not contain the standard 'employer contributions' clause. This may give rise to a question of inconsistency with s 149B of the Fair Work Act 2009 (Cth) (FW Act).
(2) The definition of National Employment Standards (NES) in the nine 'plain language' awards needs to be aligned with s 61 of the FW Act.
(3) The fund names in the default fund terms in a number of modern awards need to be updated or corrected.
[2] Concurrently with the August Statement, we published 16 draft determinations in relation to the first issue, nine draft determinations in relation to the second issue and an audit of default fund terms in modern awards in relation to the third issue.
[4] We received a total of 17 submissions from the following parties:
Australian Council of Trade Unions (ACTU)
Australian Manufacturing Workers' Union (AMWU)
Australian Nursing and Midwifery Federation (ANMF)
Australian Services Union (ASU)
Aware Super
Club Managers' Association Australia
Community and Public Sector Union (PSU Group) (CPSU)
Construction and Building Unions Superannuation Fund (Cbus Super)
Construction, Forestry and Maritime Employees Union (Construction and General Division) (CFMEU (C&G))
Host-Plus Pty Limited
Local Authorities Superannuation Fund, known as Vision Super
Media Entertainment and Arts Alliance (MEAA)
Newsagents Association of NSW and ACT Ltd and Australian Lottery and Newsagents Association
Pharmacy Guild of Australia
REST - Retail Employees Superannuation Trust (REST)
Super Members Council of Australia Ltd
United Workers' Union (UWU)
[5] The background to this issue is set out at paragraphs [4] to [19] of the August Statement.
[6] As noted at paragraph [4] of the August Statement, s 149B of the FW Act, which commenced operation on 1 January 2014, provides that modern awards must include an 'Employer contributions' clause.
[7] The transitional arrangements in item 2(1) of Schedule 3 to the FW Act provide that while s 149B applies to any modern award made after 1 January 2014, it does not apply to an award made before that date unless it has been varied in a 4 yearly review of default fund terms. As set out in the August Statement, the Commission has been unable to conduct a 4 yearly review of default fund terms as contemplated by the FW Act.
[8] The standard 'Employer contributions' clause appearing in most modern awards is as follows:
An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee.
[9] In the August Statement, we identified 15 modern awards that do not contain an 'Employer contributions' clause, comprised of nine industry/occupational awards (made before 1 January 2014) and six enterprise awards (made after 1 January 2014). We also identified that the Reserve Bank of Australia Award 2016 (Reserve Bank Award) contains a non-standard employer contributions clause which may not be compliant with s 149B of the FW Act.
[10] Nine of the 16 modern awards we proposed to vary are industry/occupational awards made before 1 January 2014 and have not been varied in a 4 yearly review of default fund terms. Those modern awards are:
Asphalt Industry Award 2020 [MA000054]
Black Coal Mining Industry Award 2020 [MA000001]
Dredging Industry Award 2020 [MA000085]
Hydrocarbons Industry (Upstream) Award 2020 [MA000062]
Maritime Offshore Oil and Gas Award 2020 [MA000086]
Mining Industry Award 2020 [MA000011]
Miscellaneous Award 2020 [MA000104]
Rail Industry Award 2020 [MA000015]
Seagoing Industry Award 2020 [MA000122]
[11] We expressed the following provisional view at paragraph [20] of the August Statement:
It is our provisional view that the standard employer contributions clause should be inserted into the nine industry/occupational modern awards which were made prior to 1 January 2014 and have not undergone a variation in a 4 yearly review of default fund terms. We propose these variations be made pursuant to s 157 of the FW Act on the basis that they are necessary to achieve the modern awards objective.
[12] Nine draft determinations giving effect to our provisional view were published in conjunction with the August Statement. We invited interested parties to comment on the provisional view and the draft determinations.
[13] None of the submissions received opposed our provisional view or any aspect of the nine draft determinations published with the August Statement.
[14] We are satisfied that the variations are necessary to achieve the modern awards objective having regard to the matters specified in s 134(1). Accordingly, we confirm our provisional view.
[15] We publish nine final determinations with this decision varying the modern awards listed at paragraph [10] above, under s 157 of the FW Act, in the same terms set out in the relevant draft determinations. The determinations will come into operation on 10 December 2025.
[16] Six of the 16 modern awards we proposed to vary are modern enterprise awards made after 1 January 2014 that do not contain an 'Employer contributions' clause:
Australian Broadcasting Corporation Enterprise Award 2016 [MA000147]
Australian Bureau of Statistics (Interviewers) Enterprise Award 2016 [MA000143]
Australian Federal Police Enterprise Award 2016 [MA000142]
Christmas Island Administration Enterprise Award 2016 [MA000149]
Parliamentary Departments Staff Enterprise Award 2016 [MA000145]
[17] We expressed the following provisional view at paragraph [9] of the August Statement:
As the six enterprise awards that do not contain an employer contributions clause were all made after 1 January 2014, s 149B applies to them. Accordingly, our provisional view is that these six awards be varied to include the standard employer contributions clause.
[18] Six draft determinations giving effect to the provisional view were published in conjunction with the August Statement. We invited interested parties to comment on the provisional view and the draft determinations.
a) An employer must make such superannuation contributions to a superannuation fund for the benefit of an employee as will avoid the employer being required to pay the superannuation guarantee charge under superannuation legislation with respect to that employee; and
b) For an employee who is a member of a superannuation accumulation fund, an employer must make such employer superannuation contributions for the benefit of an employee that are consistent with the contribution rate prescribed by the relevant legislation relating to the Public Sector Superannuation Accumulation Plan.
[20] It submits that the additional sub-clause would ensure that there is a requirement for the Commonwealth to make the same superannuation contribution for all employees in an accumulation fund, regardless of whether they choose the Public Sector Superannuation Accumulation Plan (PSSAP) or another fund. The PSSAP requires employer contributions of 15.4% of an employee's salary for superannuation purposes, whilst the current superannuation guarantee rate is 12%. That is, the CPSU says that an employee's choice of fund should have no impact on the amount of contribution made by their employer and effectively raises the minimum employer contribution for employees outside the PSSAP from 12% to 15.4%.
[21] The ACTU supports the CPSU's position and also supports inserting the additional sub-clause into the Australian Broadcasting Corporation Enterprise Award 2016.
[23] The ACTU also proposes that the following wording be inserted to the beginning of the standard employer contributions clause (as new clause 12.5) in the Christmas Island Administration Enterprise Award 2016:
Without reducing the superannuation entitlements otherwise payable under this award...
[24] The ACTU's proposal is supported by the ANMF.
[25] Without commenting on the merits of the additional sub-clause (b) proposed to be added to the standard 'Employer contributions' clause for the four enterprise awards identified by the CPSU and the enterprise award identified by the ACTU, we decline to make this variation at this time because it goes beyond the confined scope of the relevant aspect of this review, namely compliance with s 149B. Any party with standing to do so may make a separate application for variation of the identified enterprise award to add the proposed sub-clause (b) pursuant to s 158 of the FW Act. In respect of the Christmas Island Administration Enterprise Award 2016, the additional words proposed by the ACTU are unnecessary since it is clear that the addition of the standard 'Employer contributions' provision to clause 12 of that award will not have any effect on the entitlement conferred by clause 12.3 to employer superannuation contributions in excess of the superannuation guarantee rate.
[26] We are satisfied that the variations in the draft determinations to the six enterprise awards identified in paragraph [16] above are necessary to achieve compliance with s 149B of the FW Act, and we confirm our provisional view in that respect. We publish six final determinations with this decision varying the identified modern awards in the same terms set out in the relevant draft determinations. Those determinations will come into operation on 10 December 2025.
One additional modern award made before 1 January 2014
[27] We observed in the August Statement that the Reserve Bank Award contains a clause in relation to employer contributions that is not the standard 'Employer contributions' clause and may not comply with s 149B. Clause 16.3 of that award provides:
16.3 The Bank will contribute to the appropriate fund the minimum amount as required by the legislative requirements, or such greater amounts as the Bank determines in each case to be necessary or desirable to provide the benefits.
[28] At paragraph [11] of the August Statement, we expressed the provisional view that clause 16.3 should be replaced with the standard 'Employer contributions' clause. We invited interested parties to comment on that provisional view and the draft determination.
[30] The ACTU did not provide any alternative proposal and deferred to any submissions made by the Finance Sector Union (FSU), its affiliate member with primary interest in the Reserve Bank Award.
[31] Neither the FSU nor any other interested parties made submissions about the Reserve Bank Award.
[33] We confirm our provisional view to replace clause 16.3 with the standard 'Employer contributions' clause. A final determination in the same terms as our draft determination is published together with this decision. The determination will come into operation on 10 December 2025.
Second issue - Amendment to the definition of NES in plain language awards
[34] In the August Statement, we expressed the provisional view at paragraph [23] that the definition of NES contained in the respective definitions clauses of the nine 'plain language awards' should be varied to insert the subsection '(ha) superannuation contributions (Division 10A)', to align with the current wording of s 61(2) of the FW Act.
[35] The nine plain language awards are:
Cleaning Services Award 2020 [MA000022]
Clerks (Private Sector Award) 2020 [MA000002]
Fast Food Industry Award 2020 [MA000003]
General Retail Industry Award 2020 [MA000004]
Hair and Beauty Industry Award 2020 [MA000005]
Hospitality Industry (General) Award 2020 [MA000009]
Pharmacy Industry Award 2020 [MA000012]
Restaurant Industry Award 2020 [MA000119]
Security Services Industry Award 2020 [MA000016]
[36] Nine draft determinations giving effect to the provisional view were published in conjunction with the August Statement. We invited interested parties to comment on the provisional view and the draft determinations.
[37] None of the submissions received opposed our provisional view or any aspect of the nine draft determinations published with the August Statement.
[38] Accordingly, we confirm the provisional view and publish nine final determinations with this decision varying the nine modern awards listed at paragraph [35] above under s 160 of the FW Act so as to remove an ambiguity or uncertainty or to correct an error.
[39] The final determinations are in the same terms as the draft determinations and will come into operation on 10 December 2025.
Third issue - updating or correcting superannuation fund names in default fund terms
[40] As stated in the August Statement, the Commission has been unable to conduct any 4 yearly review of default fund terms as contemplated by Division 4A of Part 2-3 of the FW Act. As a result, default fund terms in modern awards have been updated in a piecemeal fashion, generally in response to applications made by parties to vary particular modern awards in which they have an interest, under s 160 of the FW Act.
[41] In the August Statement at paragraph [28], we expressed the provisional view that default fund terms in modern awards should be varied 'to reflect any changes to the names of superannuation funds which have occurred due to mergers or for any other reason, to correct any errors in the naming of funds, and to remove any default funds that do not offer a MySuper product'. We also expressed the provisional view that superannuation fund names should be expressed consistently across modern awards.
[42] We published an audit of default fund terms prepared by Commission staff in conjunction with the August Statement. The audit identifies the current default funds named in each modern award and any changes that may be required to update, correct or render consistent these fund names. Where fund names are expressed inconsistently across modern awards, the audit proposes replacing the various iterations of fund names with the Australian Prudential Regulation Authority (APRA) registered fund name.
[43] We envisaged in the August Statement that the proposed variations would be made pursuant to s 160 of the FW Act so as to 'remove an ambiguity or uncertainty or correct an error'. We invited interested parties to comment on the audit.
[44] The ACTU identified two errors in the audit prepared by Commission staff. We have also identified one further correction to be made as a result of a recent merger.
[46] The second error is contained in the audit's proposal for 'Brighter Super' to replace references to 'Energy Super' and 'LGsuper' in the following four modern awards:
[48] We have identified a third correction to be made to the audit. Following CareSuper's merger with the Meat Industry Employees' Superannuation Fund on 1 October 2025, we propose that 'CareSuper' replace references to 'Meat Industry Employees' Superannuation Fund' in the following two modern awards:
[49] We will publish draft determinations together with this decision for all awards the subject of the audit, and the draft determinations for the seven awards identified in paragraphs [46]-[48] will contain these corrections. We will give parties an opportunity to comment on them.
[50] A number of parties submitted that in certain circumstances, the use of the APRA registered fund name may inadvertently create confusion or uncertainty rather than resolve it, such as where a registered fund name is not the commonly-understood and recognised brand or trading name.
[51] Several parties submitted that both the legal fund name and the brand or trading name should be included in modern awards so that the named fund is easily identifiable to employees and employers. These parties' proposals are set out in Annexure A to this decision.
[52] We note that many parties have requested a further opportunity to comment or consult on how these funds should be referred to, prior to finalising the variations.
[53] On the basis of these submissions, the draft determinations to be published with this decision shall contain, in addition to the APRA registered fund name, the recognised trading/brand name or commonly used name for the fund in parentheses. Parties will be given an opportunity to comment upon these and to identify any other superannuation funds where the APRA registered fund name is not the recognised trading or brand name or the commonly used name.
[54] In the audit prepared by Commission staff, 'Energy Industries Superannuation Scheme (EISS)' appearing in the Electrical, Electronic and Communications Contracting Award 2020 (EECC Award) and the Electrical Power Industry Award 2020 (EPI Award) is proposed to be replaced with 'Construction and Building Unions Superannuation Fund' on the basis that those funds merged on 15 May 2023.
[55] In its submission, Cbus Super said:
Lastly, relevant parties should also be consulted on the variation of the Electrical Power Industry Award 2020 which currently lists Energy Industry Superannuation Scheme, to ensure uncertainty is not created by the insertion of the legal entity name without reference to the legacy fund.
[56] We have since identified that EISS is a defined benefit fund. Separately, we have also identified 'Australia Post Superannuation Fund', as appearing in the Australia Post Enterprise Award 2015 (Australia Post Award), to be a defined benefit fund. However, as the Australia Post Award was made after 1 January 2014 and the EECC Award and the EPI Award were made before 1 January 2014, we will consider them under different provisions of the FW Act below.
[57] Pursuant to the transitional arrangements in item 2(1) of Schedule 3 to the FW Act, ss 149B, 149C(1) and 149D apply to an award that was made on or after 1 January 2014, or was made before that date and subsequently varied in a 4 yearly review of default fund terms. As neither the EECC Award nor the EPI Award has been subject to a 4 yearly review of default fund terms, it follows that these provisions apply only to the Australia Post Award in these circumstances.
[58] Relevantly, sub-ss 149D(1) and (2) of the FW Act provide:
149D Default fund term must provide for contributions to be made to certain funds
Specified superannuation fund offering standard MySuper product
(1) A default fund term of a modern award must require an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund that:
(b) is specified in the default fund term of the award in relation to that product;
(c) the employer will be liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee if the employer does not make contributions to a superannuation fund for the benefit of the employee; and
(d) the employer is not making contributions to a superannuation fund referred to in subsection (1A), (2), (3), (4) or (5) for the benefit of the employee.
Note: If a superannuation fund is specified in the default fund term of a modern award in relation to a standard MySuper product and, in addition to offering the standard MySuper product, the fund offers a tailored MySuper product that a default fund employee is entitled to hold, then any contributions made by the employer to the fund for the benefit of that employee will be paid into the tailored MySuper product instead of the standard MySuper product (see section 29WB of the Superannuation Industry (Supervision) Act 1993).
(2) A default fund term of a modern award must permit an employer covered by the award to make contributions, for the benefit of a default fund employee, to a superannuation fund in relation to which a default fund employee is a defined benefit member.
[59] The Explanatory Memorandum to the Fair Work Amendment Bill 2012 says:
33. It is intended that funds in relation to their generic MySuper products are specified, or named, in default fund terms. By contrast, the funds or schemes referred to in new subsections 149D(2), (3), (4) and (5) should be referred to in modern awards more generally as a category of fund to which contributions are permitted to be made for default fund employees in certain circumstances.
[60] We consider it clear, with the aid of the Explanatory Memorandum, that s 149D(1) does not contemplate that specific defined benefits funds or schemes would be named in default fund terms. As such, Australia Post Superannuation Fund should be removed from the Australia Post Award, leaving reference only to the default fund (which the audit proposes to be Australian Retirement Trust).
[61] Pursuant to the transitional arrangements in item 2(2) of Schedule 3 to the FW Act, despite the repeal of ss 149A and 155A, these sections continue in force in relation to modern awards made before 1 January 2014 and have not been varied in a 4 yearly review of default fund terms. These provisions therefore remain in force with respect to the EECC Award and the EPI Award.
[62] Relevantly, repealed s 155A(1) of the Act provided:
(1) A modern award must not include a term that has the effect of requiring or permitting contributions, for the benefit of an employee covered by the award who is a default fund employee, to be made to a superannuation fund or scheme specified in the modern award, unless one of the following is satisfied in relation to the fund or scheme:
(b) it is an exempt public sector superannuation scheme.
Note: Contributions may be made to a superannuation fund or scheme for its defined benefit members under section 149A even though the fund or scheme is not specified in a modern award because of this section.
[63] We consider that s 155A does not contemplate the naming of specific defined benefits funds in a default fund term of a modern award. Accordingly, EISS should be removed from the EECC Award and the EPI Award. As EISS is a defined benefit fund, it can still be captured by clauses 19.4(f) and 18.4(k) of those awards respectively (that is, 'a superannuation fund or scheme which the employee is a defined benefit member of').
[64] The draft determinations published with this decision for the EECC Award, EPI Award and Australia Post Award do not contain references to these defined benefit funds. Parties will be given an opportunity to comment upon these.
[65] 'AMP Superannuation Savings Trust' currently appears as a default fund in the following 15 modern awards:
Amusement, Events and Recreation Award 2020 [MA000080]
Educational Services (Schools) General Staff Award 2020 [MA000076]
Educational Services (Teachers) Award 2020 [MA000077]
Fitness Industry Award 2020 [MA000094]
Horse and Greyhound Training Award 2020 [MA000008]
Marine Towage Award 2020 [MA000050]
Port Authorities Award 2020 [MA000051]
Ports, Harbours and Enclosed Water Vessels Award 2020 [MA000052]
Professional Diving Industry (Industrial) Award 2020 [MA000108]
Professional Diving Industry (Recreational) Award 2020 [MA000109]
Racing Clubs Events Award 2020 [MA000013]
Racing Industry Ground Maintenance Award 2020 [MA000014]
Sporting Organisations Award 2020 [MA000082]
Sugar Industry Award 2020 [MA000087]
Travelling Shows Award 2020 [MA000102]
[66] The audit proposes deleting 'AMP Superannuation Savings Trust' and inserting 'AMP Super Fund' in the above 15 modern awards. The audit notes as follows:
'AMP Superannuation Savings Trust' is not currently registered with APRA according to 'APRA Super Fund Lookup' nor is it in the APRA list of super[annuation] funds with My[S]uper Authorised products. It is unclear whether the fund should be deleted from the award or changed to 'AMP Super Fund'[,] which does have a My[S]uper Authorised product.
[68] The draft determinations to be published for the 15 awards listed in paragraph [65] will delete the references to the 'AMP Superannuation Savings Trust'. They will not include the 'AMP Super Fund' at this stage. We invite evidence and submissions from parties to explain the relationship, if any, between the 'AMP Superannuation Savings Trust' and the 'AMP Super Fund'.
[69] The audit identified six default funds which were proposed to be deleted for reasons other than duplication. An extract from the audit setting out the relevant details for these funds is contained in Annexure B to this decision.
[70] One of these funds is the Law Employees Superannuation Fund, which is named in the Legal Services Award 2020. The audit notes:
Law Employees Superannuation Fund (LESF) is not registered with APRA and appears to be a cancelled fund. LESF was acquired by Diversa Trustees in 2013.
[72] No submissions have been received in relation to the remaining five default funds proposed to be deleted. The deletion of these funds remains in the draft determinations for the awards which currently contain a reference to them. For more abundant caution, we provide parties with a final opportunity to comment upon this.
[73] For the Reserve Bank of Australia Award 2016 and the Optus Award 2015, the proposed deletion of the default funds in these awards will have the effect of removing all default funds listed. The draft determinations propose to retain the default fund term but only to refer to a generic 'complying superannuation fund'.
[74] One hundred and twenty-five draft determinations are issued with this decision in respect of the third issue.
[75] Parties will be given the opportunity to provide evidence (in relation to the 'AMP Superannuation Savings Trust' issue only) and submissions in response to the draft determinations. Any such evidence and submissions should be emailed to awards@fwc.gov.au by no later than 12:00 pm (AEDT) on Friday, 19 December 2025.
[76] Twenty-five final determinations in respect of the first and second issues are also issued with this decision and will come into operation on 10 December 2025.
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