Superannuation Case 2025 (No 3) [2025] NSWIRComm 1064 (15 August 2025)

(i) the Superannuation Guarantee (Administration) Act 1992 (Cth);

(ii) the Superannuation Guarantee Charge Act 1992 (Cth);

(iii) the Superannuation Industry (Supervision) Act 1993 (Cth);

(iv) the Police Regulation (Superannuation) Act 1906 (NSW);

(v) the Superannuation Act 1916 (NSW);

(vi) the State Authorities Superannuation Act 1987 (NSW);

(vii) the State Authorities Non-contributory Superannuation Act 1987 (NSW); and

(viii) the Aware Super Act 1992 (NSW).

(b) The rights and obligations in this clause supplement those in superannuation legislation.

X.2 Employer contributions

(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 Commonwealth superannuation legislation with respect to that employee.

(b) For clarity, a failure to comply with the obligations under Commonwealth superannuation legislation is a breach of this clause.

(c) In this clause, a reference to "Commonwealth superannuation legislation" is a reference to Superannuation Guarantee (Administration) Act 1992 (Cth), Superannuation Guarantee Charge Act 1992 (Cth), and Superannuation Industry (Supervision) Act 1993 (Cth).

X.3 Employer liability

The obligation to make contributions for an employee under this award does not apply to an employer to the extent that:

(a) the employer has made a charge payment (within the meaning of section 63A of the Superannuation Guarantee (Administration) Act 1992 (Cth)) in respect of the employee under Part 8 of that Act; and

(b) the employee is a benefiting employee (within the meaning of that Part); and

(c) the Commissioner of Taxation is required to pay, or otherwise deal with, a shortfall component (within the meaning of that Part) for the benefit of the employee under that Part.

1. The Full Bench directed the parties to file submissions and evidence as to the terms of the draft clause. The parties were also directed to address whether the clause ought to apply generally to all awards or only some,[2] and, if any awards ought not to be varied in terms of the model clause, whether they should be otherwise amended.
2. At the directions hearing on 15 July 2025 following the publication of Superannuation Case 2025 (No 2), Taylor J invited the parties to also address in their submissions whether the Commission should make an award which has the effect of making the proposed superannuation clause applicable to all employees under the Commission's jurisdiction, pursuant to s 52(1) of the Industrial Relations Act. His Honour drew the parties' attention to Anzac Day Public Holiday 1999 - State Decision.[3] In that decision the Full Bench made an order and award pursuant to sections 51 and 52 of the Industrial Relations Act providing for a paid public holiday on Monday 26 April 1999, applicable to all employees covered by NSW awards.
3. We have received submissions from Unions NSW, the Industrial Relations Secretary (Secretary), and Local Government industrial parties jointly (Local Government Group). No party filed evidence.
4. With the benefit of those submissions, we have determined to make minor amendments to the proposed draft superannuation clause and determined to make a single Award which includes that clause. The proposed wording of the NSW Public Sector and Local Government Employees Minimum Conditions of Employment Award 2025 (Minimum Conditions Award) is published in Annexure A. We direct the parties to file further submissions within 7 days as to the terms of that proposed award and to indicate whether they are content for the final decision as to the terms of that award to be determined on the papers.

What is the appropriate wording for the superannuation clause?

1. The Local Government Group submitted that draft subclause X.1(a) should include a reference to s 124 of the Industrial Relations Act. Section 124 permits an employer to pay the required contributions to a complying superannuation fund nominated by the employee and approved by the employer, even if the employer is required by an industrial instrument to make contributions to a specified superannuation fund. We are content to adopt this amendment on the basis that the list of legislation in subclause X.1(a) provides guidance as to the existence of relevant federal and State legislation.
2. The Secretary submitted that draft subclause X.2(b) should be deleted. It provided that "a failure to comply with the obligations under Commonwealth superannuation legislation is a breach of this clause". Given that Commonwealth superannuation imposes obligations on employers that extend beyond making superannuation contributions, the subclause was said to be contrary to the Full Bench's position in Superannuation Case (No 2) that the obligations imposed by the superannuation clause should be no wider than necessary to ensure that employees and their unions could enforce an employer's obligation to make superannuation contributions.[4] We accept the force of that submission and determine that subclause X.2(b) should be deleted.
3. In the event that "a separate award is not made" and the Commission determines that the model clause should be inserted into existing awards, Unions NSW submitted that the words "under this award" in clause X.3 should be replaced with "under subclause X.2". We have not adopted this amendment because, as explained below, we have determined to make a separate award containing the clause.

Should the superannuation clause apply to all employees within the Commission's jurisdiction?

1. Unions NSW and the Secretary supported the creation of a single award containing the superannuation clause, which would cover all employees and employers over whom the Commission may make awards under s 10 of the Industrial Relations Act. The Secretary did not consider it necessary to exclude any employees from the coverage of such an award, whereas Unions NSW submitted that the award should make clear that it would not apply "where existing awards already make provisions for superannuation" in order to "avoid any unintended consequences by the alteration of existing awards".
2. Several State awards include award provisions for salary packaging arrangements including salary sacrifice to superannuation. The Crown Employees (Fire and Rescue NSW Firefighting Staff Death and Disability) Award 2023 and the NSW Ambulance Death and Income Protection Benefits (State) Reviewed Award 2022 have special superannuation provisions in recognition of the high risk of the work carried out by employees under those Awards. The entitlements created by these provisions for superannuation are, however, distinct to the obligation in the proposed clause for an employer to make superannuation contributions pursuant to Commonwealth superannuation legislation. Therefore, while we are mindful that the superannuation clause should not be applied in a way which derogates from or detrimentally alters any existing award entitlements dealing with superannuation, we do not agree that the clause's application should be limited to employees who are not covered by awards which "make provisions for superannuation" like salary packaging arrangements.
3. The Local Government Group's primary position was that the clause should not apply to local government awards. It relied upon its submissions filed for Superannuation Case 2025 (No 2), which expressed the view that the local government industry's successful history of award negotiations indicated that the Commission need not insert a superannuation clause into local government awards, as the parties' process of regular award renegotiation every three years was sufficient to ensure that award provisions remained relevant, appropriate and up to date. Were the Commission to make a model clause that applied only for public sector awards, the Local Government Group would consider whether a superannuation clause should be inserted into local government awards during the next award negotiations.
4. We determined in Superannuation Case 2025 (No 2) that employees covered by awards of this Commission should be able to enforce the underpayment of their superannuation as a breach of their award. The Local Government Group does not contend that such an obligation should not apply to local government employers, only that its advent and form should be delayed to allow the Local Government Group to consider how the Local Government Award should reflect that obligation. We consider that there is no reason to delay the new obligation applying to local government employers, which can be achieved by the new award applying to them. We note, however, that the proposed award is to contain a clause that means if the Local Government Award is subsequently amended to include an obligation that is no less favourable, then that provision will apply and the Minimum Conditions Award will then not apply to local government employers. That preserves the long-standing position that the terms of the Local Government Award are the outcome of the award renegotiation process.
5. Accordingly, we determine that the clause should apply to all State public sector and local government employees and employers.

Should the Commission make an award with the superannuation clause?

1. As noted at [9], Unions NSW and the Secretary supported the creation of a single award containing the superannuation clause. The Local Government Group submitted that, were the Commission to determine that the superannuation clause ought to apply to local government employees, it did not oppose the Commission doing so by way of the creation of a single award.
2. As alternative approaches, Unions NSW submitted that the superannuation clause could be inserted on an award-by-award basis as part of a review under s 19; the Local Government Group proposed that the clause should be inserted into awards via application to the Commission. The Secretary noted potential complications that could arise were the draft clause to be inserted into existing awards. First, the terms "employer" and "employee" in the clause should preferably be replaced with the name of the particular employer(s) and term for an employee (eg, "officer") specific to that award. Second, as some employees may be covered by more than one award, care would need to be taken to insert the clause into only one award covering each employee, to avoid an inconsistency where the clause in one award is amended but the clause in another award is not.
3. We agree with the Secretary that the Commission could avoid those difficulties by creating a single award containing the superannuation clause. We have elected to take that course.

1. At Annexure A of this decision is our proposed wording for a draft Minimum Conditions Award. Clause 1 states the commencement date and duration of the Award. Clause 2 sets out the Award's coverage and interaction with other Awards. The purpose of clause 2 is to make clear that the Minimum Conditions Award does not negatively affect any other entitlements related to superannuation which might apply to an employee covered by another award. Clause 3 is the model superannuation clause, which has been amended as proposed by the Local Government Group and the Secretary. Clause 4 is a dispute resolution clause, pursuant to s 14 of the Industrial Relations Act, which would only apply in the limited circumstance where the new award applied to an employee who was not currently covered by any award or enterprise agreement.

(1) The directions hearing at 2:30pm on 21 August 2025 is vacated.

(2) The parties are by 4pm on 22 August 2025 to (a) file submissions as to the terms of the draft Award at Annexure A to this decision; and (b) indicate if they are content that the final decision as to the terms of the Award be determined on the papers.

NSW Public Sector and Local Government Employees Minimum Conditions of Employment Award 2025

1.1. This Award takes effect from 1 September 2025 and will remain in force for three years from the commencement date.

2.1. This Award applies to all employees who can be covered by an award made by the Industrial Relations Commission of NSW under the Industrial Relations Act 1996 (NSW) (the Act) and their employers.

2.2. Where another award or enterprise agreement made pursuant to the Act (industrial instrument) applies to a group of employees covered by this Award the following interaction rules apply:

2.2.1. if the other industrial instrument or arrangement expressly displaces the entirety of this Award then this Award will have no application to those employees;

2.2.2. if the other industrial instrument or arrangement expressly displaces one or more provisions of this Award then:

2.2.2.1. this Award will not apply to those employees covered by the other instrument or arrangement in relation to those provisions,

2.2.2.2. but the balance of this Award will apply to those employees; and

2.2.3. If subclauses 1.2.1 and 1.2.2 do not apply, and the other industrial instrument or arrangement is silent as to its interaction with this Award, then:

2.2.3.1. if the application of the other industrial instrument or arrangement is inconsistent with the application of this Award, the other industrial instrument or arrangement applies to the extent of the inconsistency; and otherwise

3.1.1. Superannuation legislation deals with the superannuation rights and obligations of employers and employees and includes:

3.1.1.1. the Superannuation Guarantee (Administration) Act 1992 (Cth);

3.1.1.2. the Superannuation Guarantee Charge Act 1992 (Cth);

3.1.1.3. the Superannuation Industry (Supervision) Act 1993 (Cth);

3.1.1.4. the Police Regulation (Superannuation) Act 1906 (NSW);

3.1.1.5. the Superannuation Act 1916 (NSW);

3.1.1.6. the State Authorities Superannuation Act 1987 (NSW);

3.1.1.7. the State Authorities Non-contributory Superannuation Act 1987 (NSW);

3.1.1.8. the Aware Super Act 1992 (NSW); and

3.1.1.9. section 124 of the Industrial Relations Act 1996 (NSW).

3.1.2. The rights and obligations in this clause supplement those in superannuation legislation.

3.2.1. 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 Commonwealth superannuation legislation with respect to that employee.

3.2.2. In this clause, a reference to "Commonwealth superannuation legislation" is a reference to Superannuation Guarantee (Administration) Act 1992 (Cth), Superannuation Guarantee Charge Act 1992 (Cth), and Superannuation Industry (Supervision) Act 1993 (Cth).

3.3.1. The obligation to make contributions for an employee under this Award does not apply to an employer to the extent that:

3.3.1.1. the employer has made a charge payment (within the meaning of section 63A of the Superannuation Guarantee (Administration) Act 1992 (Cth)) in respect of the employee under Part 8 of that Act; and

3.3.1.2. the employee is a benefiting employee (within the meaning of that Part); and

3.3.1.3. the Commissioner of Taxation is required to pay, or otherwise deal with, a shortfall component (within the meaning of that Part) for the benefit of the employee under that Part.

4.1. Where an employee is covered by another industrial instrument with a dispute resolution procedure clause, that clause applies.

4.2. Where an employee is not covered by an industrial instrument with a dispute resolution procedure, all grievances and disputes are to be dealt with by the dispute resolution procedure set out below.

4.2.1. An employee and/or their industrial representative will raise the dispute or grievance in writing with their supervisor, principal, or manager.

4.2.2. The supervisor, principal or manager is to discuss the matter with the employee and/or their industrial representative as soon as is practicable.

4.2.3. If the matter cannot be resolved through discussion, the employee and/or their industrial representative can raise the issue with a more senior supervisor, principal or manager to resolve the matter, who is to respond as soon as is practicable.

4.2.4. If the matter is not resolved through such steps, either party may make application to the Industrial Relations Commission.

[1] [2025] NSWIRComm 1041.

[2] Industrial Relations Act 1996 (NSW), s 51(3).

[3] (1999) 88 IR 97; [1999] NSWIRComm 168.

[4] See, eg, Superannuation Guarantee (Administration) Act 1992 (Cth), s 33; Superannuation Industry (Supervision) Act 1993 (Cth), s 34N.