Fair Work Act 2009

s 160—Variation of modern award to remove ambiguity or uncertainty or correct error

Variation of modern awards on the Commission’s own motion – modern award superannuation clause review

(AM2022/29)

Australian Public Service Enterprise Award 2015

[MA000124]

Variation on the Commission’s initiative – review and variation of modern award superannuation clauses to reflect current superannuation requirements – Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 – superannuation in the National Employment Standards.

A. Further to the decision issued by the Full Bench on 26 March 2024 [[2024] FWCFB 189], the above award is varied as follows:

1. By deleting clause 13.1 and inserting the following:

13.1 Superannuation legislation

(a) The NES and Superannuation legislation, including the Superannuation Guarantee (Administration) Act 1992 (Cth), the Superannuation Guarantee Charge Act 1992 (Cth), the Superannuation Industry (Supervision) Act 1993 (Cth), the Superannuation Benefits (Supervisory Mechanisms) Act 1990, the Superannuation (Resolution of Complaints) Act 1993 (Cth), the Superannuation Act 1976, the Superannuation (Productivity Benefit) Act 1988, the Superannuation Act 1990 and the Superannuation Act 2005, deal with the superannuation rights and obligations of employers and employees in the APS.

(b) If an employee is a member of the Commonwealth Superannuation Scheme, the Public Sector Superannuation Schemes, the Public Sector Superannuation Accumulation Plan or covered by the Superannuation (Productivity Benefit) Act 1988 their employer superannuation contributions will be in accordance with the relevant legislation relating to those arrangements.

(c) The rights and obligations in clause 13 supplement those in superannuation legislation and the NES.

NOTE: Under superannuation legislation:

(a) Individual employees generally have the opportunity to choose their own superannuation fund.

(b) If a new employee does not choose a superannuation fund, the employer must ask the Australian Taxation Office (ATO) whether the employee is an existing member of a stapled superannuation fund and, if stapled fund details are provided by the ATO, make contributions to the stapled fund.

(c) A fund may not be able to accept contributions for the benefit of an employee if the employee would be a new member of the fund’s MySuper product and the MySuper product is closed to new members because it has failed the performance tests of Australian Prudential Regulation Authority (APRA) for 2 consecutive years.

B. This determination comes into operation on 9 April 2024. In accordance with s.165(3) of the Fair Work Act 2009 this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after 9 April 2024.

PRESIDENT

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