STATEMENT

Fair Work Act 2009
s.160—Variation of modern award

Variation on the Commission’s Own Motion—Oil Refining and Manufacturing Award 2020
(AM2021/80)

Section 160 of the Fair Work Act 2009 (Cth) - variation on the Commission’s own motion - Oil Refining and Manufacturing Award 2020 - provisional view to vary clause 21.4.

[1] On 25 October 2021 the United Workers’ Union (UWU) made an application to vary clause 21.4 of the Oil Refining and Manufacturing Award 2020 (the Award). The application seeks to vary clause 21.4 as follows:

“Unless, to comply with superannuation legislation, the employer is required to make the superannuation contributions provided for in clause 21.2 to another superannuation fund that is chosen by the employee, the employer must make the superannuation contributions provided for in clause 21.2 and pay the amount authorised under clauses 21.3(a) or (b) to the following superannuation funds to the following superannuation funds or its successor:”

[2] As part of the application, the UWU informed the Commission that AustralianSuper and LUCRF Super have announced they are taking steps to merge and that, should the merger occur, AustralianSuper will be the successor superannuation fund and that LUCRF Super, currently referred to in clause 21.4(b) of the Award, will cease to operate.

[3] The UWU submit that, should the merger occur, the absence of a successor arrangement in clause 21.4 will lead to uncertainty on the part of employers who presently contribute to LUCRF Super. The UWU submit that the proposed variation will remove that uncertainty.

[4] The UWU also submit that, should the merger not occur, the variation remains appropriate given the merger activity currently underway amongst superannuation funds and the desire for consistency with other modern awards.

[5] I note that the words proposed to be inserted appeared in clause 21.4 of the 2010 Award but were omitted from the 2020 Award when it was varied on 4 February 2020. The omission appears to have been a drafting error.

[6] I have been allocated this matter to deal with pursuant to s.616(3D)(a) of the Act, which provides that the President may direct a single Member to perform a function or exercise a power under s.160 of the Act varying a modern award.

[7] It is my provisional view that clause 21.4 of the Award should be varied as proposed by the UWU and set out in the draft determination issued with this Statement. I am satisfied that there is ambiguity or uncertainty with the current wording of clause 21.4 and that the award should be varied.

[8] Any submission opposing the provisional view should be filed by 4:00pm (AEST) on 24 November 2021. Submissions should be sent to amod@fwc.gov.au.

[9] If no submissions are filed opposing the provisional view, the award will be varied as set out in the draft determination.

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