Australia, Aug. 4 -- New South Wales Land and Environment Court issued text of the following judgement on July 4:

1. In this decision we determine that there should be a model award clause requiring an employer to make superannuation contributions.

Background

2. On 17 June 2025, the President published a Statement which outlined the background to these proceedings, and set out the manner in which this Bench would determine whether the Commission ought to set a model superannuation clause:

"(1) The Full Bench will determine on the papers the following preliminary questions:

(a) as a threshold question whether there should be a model superannuation clause; and

(b) if "yes", proposed text for such a clause.

(2) Following the publication of that decision and before the Full Bench makes any orders the parties will be given the opportunity to:

(a) Comment on the text of the proposed model clause;

(b) Put submissions as to whether, pursuant to s 51(3) of the Industrial Relations Act, the proposed clause ought to apply generally to all awards or alternatively only to particular awards;

(c) If the proposed clause ought only to apply to particular awards, put submissions as to whether the remaining awards should otherwise be amended; and

(d) Put on evidence as to (b) and (c), for example to establish that a proposed clause ought not to be adopted generally or for particular awards because it would increase employee-related costs." [1]

3. This decision concerns step (1) from that Statement. We have considered the submissions filed by:

1) Unions NSW, as the State peak council for employees and on behalf of affiliated unions;

2) The Industrial Relations Secretary, on behalf of the Secretaries of NSW Government agencies and departments; and

3) Local Government industrial parties jointly, constituted of Local Government NSW, NSW Local Government, Clerical, Administrative, Energy, Airline and Utilities Union, Local Government Engineers' Association, and Development and Environmental Professionals Association.

Should the Commission set a model superannuation clause?

4. Superannuation is understood to be a national employment entitlement which applies to all employees. However, the obligation on an employer created by the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) is to pay a tax in the form of a "superannuation guarantee charge" (SGC) to the Australian Taxation Office (ATO) unless the employer makes superannuation contributions at a certain rate on behalf of their employees. That is because the legislation was enacted under the taxation power, [2] being legislation created before the High Court confirmed that federal Parliament can legislate directly in respect of setting terms and conditions of employment in New South Wales v Commonwealth (WorkChoices Case). [3]

5. As such, a failure to pay superannuation is a matter that is addressed by the ATO. The obligation is not able to be enforced by an employee or their union. At a federal level, this was addressed by the insertion of s 149B into the Fair Work Act 2009 (Cth), [4] which provides that all federal awards must include a term requiring the employer to make superannuation contributions to avoid liability to pay the SGC, creating an award obligation that can be enforced.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197c497c464c3eafec7ec40b)

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