The Commission has commenced the first 4 yearly review of modern awards, after these instruments came into effect on 1 January 2010. Modern awards, together with National Employment Standards, provide a minimum safety net of terms and conditions for the employees they cover. There are 122 modern awards, which are generally based around an industry or occupation.
4 yearly review
The 4 yearly review commenced in February 2014 and is expected to run until late 2015. This review is broader than the Transitional Review that commenced in 2012 and concluded at the end of 2013. See In focus—4 yearly review of awards for further details.
The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 required the Commission to conduct a review of modern awards, other than modern enterprise awards and State reference public sector modern awards, as soon as practicable after 1 January 2012. The Transitional Review commenced in 2012 and was completed in late 2013, with more than 250 applications to vary modern awards dealt with by the Commission.
Modernisation and termination of enterprise instruments
On 31 December 2013 all enterprise instruments in operation terminated unless an application was made to modernise the instrument. Enterprise instruments were former federal or state awards that covered employees in a single enterprise or a group of related enterprises. The Commission estimated there were 1735 enterprise instruments still in operation prior to 31 December 2013.
In addition to the seven made previously, 134 applications were made to modernise enterprise instruments during the reporting period. By 30 June 2014, 36 had been withdrawn and two had been dismissed. The instruments that were the subject of these applications were consequently terminated. The Commission will deal with the remaining applications during the 2014–15 reporting period.
Modernisation and termination of state reference public sector transitional awards
State reference public sector transitional awards applied to public sector employees in Victoria and some local government employees in Tasmania. If no application was made to terminate or modernise one of these awards prior to 31 December 2013 the Commission must modernise the award. The Commission is currently modernising 51 of these awards.
Default superannuation fund terms
As required by the Fair Work Act 2009 (Fair Work Act) the Commission reviewed the superannuation clauses in all modern awards prior to 31 December 2013. A new provision was inserted in every modern award to permit employers to make superannuation contributions for a default fund employee to a superannuation fund or scheme of which the employee is a defined benefit member from 1 January 2014. The Commission also removed any superannuation funds that did not offer a MySuper product, or were not an exempt public sector superannuation scheme, from modern awards.
The Commission is required to conduct 4 yearly reviews of modern award default superannuation fund terms. The default fund applies to payments for employees who are covered by the award but have not chosen a fund to receive their superannuation contributions.
As part of the review the Commission must make a Default Superannuation List which will contain funds that offer a MySuper product. The Expert Panel will then select products from the list to be included in modern awards. A separate Schedule of Approved Employer MySuper Products will be created.
Superannuation funds were invited to make applications to be included on the list or schedule by 28 April 2014. Ninety five applications were received and a further 450 submissions were received in relation to the applications.
Constitution of an Expert Panel
On 6 January 2014 the President of the Commission constituted an Expert Panel for the purposes of the 4 yearly review of default superannuation fund terms in modern awards. The panel comprised Senior Deputy President Acton, Senior Deputy President Drake, Commissioner Bull, Commissioner Johns and Expert Panel Members Allen, Apted and Gibbs.
Due to potential conflicts of interest, on 7 March 2014 the President issued a direction that Expert Panel Members Allen and Gibbs no longer continue to deal with AM2014/6. This direction also appointed Expert Panel Member Harcourt to the Panel. On 17 April the President joined the Expert Panel as pursuant to section 622(3) of the Fair Work Act.
On 6 June 2014 the Federal Court in Financial Services Council Ltd v Industry Super Australia Pty Ltd and Anor NSD447/2014 by Order declared invalid the President’s direction that he would form part of the Expert Panel. The Federal Court declared that the Panel as purportedly reconstituted was not reconstituted as required under the Fair Work Act. As a consequence, the Expert Panel as reconstituted will not deal further with matter AM2014/6.
At the end of the reporting period the Commission was awaiting appointment of an Expert Panel Member before proceeding further with the review of default superannuation fund terms in modern awards.
Many of the documents and information materials on the Commission’s website are available free of charge through subscription services.
Subscribers are notified by email as updates are published. Each email notification contains links to downloadable documents accessible through the Commission’s website. The Commission offers two types of subscription services in relation to awards:
- My awards—updates: subscribers receive an email when an award has been updated, or when a document has been issued about an award that does not vary the award (such as a decision), and
- My awards—all matters: subscribers receive an email when an application to vary a modern award has been lodged or an award is being reviewed, and when any associated material is issued or received.
During the reporting period there were 7379 subscribers to award services. More than 700 subscriber emails were sent out in relation to awards. For a full list of the subscription services offered by the Commission see Appendix M.