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This is a Bill, not an Act. For current law, see the Acts databases.
2002
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Superannuation
Legislation Amendment (Choice of Superannuation Funds) Bill
2002
No. ,
2002
(Treasury)
A Bill
for an Act to amend the law relating to superannuation, and for related
purposes
Contents
Superannuation Guarantee (Administration) Act
1992 3
A Bill for an Act to amend the law relating to
superannuation, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Superannuation Legislation Amendment
(Choice of Superannuation Funds) Act 2002.
This Act commences on 1 July 2004.
Each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its
terms.
Superannuation Guarantee
(Administration) Act 1992
1 Subsection 5(1)
Omit “Commonwealth is”, substitute “Commonwealth,
Commonwealth Departments and untaxable Commonwealth authorities
are”.
2 Subsection 5(2)
Repeal the subsection, substitute:
(2) However, subject to this Act and to such modifications as are
prescribed, this Act applies in all other respects, in respect of any matter or
thing in respect of the employment of a Commonwealth employee, as if:
(a) the employee were employed by the responsible Department and not by
the Commonwealth; and
(b) the responsible Department were a company and each other Department,
and each authority of the Commonwealth, were a company related to the
responsible Department; and
(c) the responsible Department were a government body.
(2A) In addition, subject to such modifications as are prescribed, this
Act applies in relation to an untaxable Commonwealth authority in the same way
as it applies in relation to a Commonwealth Department.
(2B) The Finance Minister may give such directions in writing as are
necessary or convenient to be given for carrying out or giving effect to this
section and, in particular, may give directions in relation to the transfer of
money within an account, or between accounts, operated by the Commonwealth or a
Commonwealth entity.
(2C) Directions under subsection (2B) have effect, and must be
complied with, notwithstanding any other law of the Commonwealth.
3 Subsection 5(3)
After “Commonwealth”, insert “, a Commonwealth Department
or an untaxable Commonwealth authority”.
4 Subsection 5(4)
After “Commonwealth”, insert “, Commonwealth Departments
or untaxable Commonwealth authorities”.
5 At the end of
section 5
Add:
(5) In this section:
Commonwealth Department means:
(a) a Department of State; or
(b) a Department of the Parliament; or
(c) a branch or part of the Australian Public Service in relation to which
a person has, under an Act, the powers of, or exercisable by, the Secretary of a
Department of the Australian Public Service.
Commonwealth entity means:
(a) an Agency (within the meaning of the Financial Management and
Accountability Act 1997); or
(b) a Commonwealth authority (within the meaning of the Commonwealth
Authorities and Companies Act 1997);
that cannot be made liable to taxation by a Commonwealth law.
Finance Department means the Department administered by the
Finance Minister.
Finance Minister means the Minister administering the
Financial Management and Accountability Act 1997.
modifications includes additions, omissions and
substitutions.
responsible Department, in relation to the employment
of a Commonwealth employee, means:
(a) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated under an annual Appropriation
Act—the Commonwealth Department in respect of which the money was
appropriated; and
(b) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated under an Act other than an
annual Appropriation Act:
(i) if the employee performs or performed the duties of that employment
in, or in respect of, a Commonwealth Department—that Commonwealth
Department; or
(ii) in any other case—the Department of State administered by the
Minister who administers the Act under which that money was appropriated,
insofar as the Act appropriated that money; and
(c) where the remuneration in respect of that employment is or was paid
wholly or principally out of money appropriated by the Constitution—the
Finance Department.
untaxable Commonwealth authority means an authority of the
Commonwealth that cannot, by a law of the Commonwealth, be made liable to
taxation by the Commonwealth.
6 Subsection 6(1)
Insert:
Commonwealth employee means an employee of the
Commonwealth.
7 Subsection 6(1)
Insert:
Commonwealth industrial award means:
(a) an industrial award or determination made under a law of the
Commonwealth; or
(b) an industrial agreement approved or registered under such a
law.
8 Subsection 6(1)
Insert:
CSS means the scheme known as the Commonwealth Superannuation
Scheme.
9 Subsection 6(1)
Insert:
defined benefit member means a member entitled on retirement
to be paid a benefit defined, wholly or in part, by reference to either or both
of the following:
(a) the amount of the member’s salary:
(i) at the date of the member’s retirement or an earlier date;
or
(ii) averaged over a period before retirement;
(b) a specified amount.
10 Subsection 6(1)
Insert:
defined benefit superannuation scheme has the meaning given
by section 6A.
11 Subsection 6(1) (definition of industrial
award)
Repeal the definition, substitute:
industrial award means a Commonwealth industrial award, a
State industrial award or a Territory industrial award.
12 Subsection 6(1)
Insert:
PSS means the Public Sector Superannuation Scheme within the
meaning of the Superannuation Act 1990.
13 Subsection 6(1)
Insert:
State industrial award means:
(a) an industrial award or determination made under a law of a State;
or
(b) an industrial agreement approved or registered under such a
law.
14 Subsection 6(1)
Insert:
Territory industrial award means:
(a) an industrial award or determination made under a law of a Territory;
or
(b) an industrial agreement approved or registered under such a
law.
15 Subsection 6(1)
Insert:
unfunded public sector scheme means a public sector scheme
that is a defined benefit superannuation scheme:
(a) in respect of which no fund is established for the purposes of the
scheme; or
(b) under which all or some of the amounts that will be required for the
payment of benefits are not paid into the fund established for the purposes of
the scheme or are not paid until the members become entitled to receive the
benefits.
16 At the end of subsection
23(2)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32Y.
17 At the end of subsection
23(3)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32Y.
18 At the end of subsection
23(4)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32Y.
19 At the end of subsection
23(4A)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32Y.
20 At the end of subsection
23(4D)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see
section 32Y.
21 At the end of subsection
23(5)
Add:
Note: In certain cases, the choice of fund requirements
provide that the employee’s ordinary time earnings are adjusted: see
section 32Y.
22 After Part 3
Insert:
This Part sets out the circumstances in which contributions are made in
compliance with the choice of fund requirements. This is important because
penalties apply to an employer where contributions do not comply.
The structure of this Part is as follows:
|
Structure of Part |
|
|---|---|
|
Division |
Topic |
|
Division 1 |
Overview of Part |
|
Division 2 |
Which contributions satisfy the choice of fund requirements? |
|
Division 3 |
Eligible choice funds |
|
Division 4 |
Choosing a fund |
|
Division 5 |
Default funds |
|
Division 6 |
Formal choice process |
|
Division 7 |
Consequences of non-compliance with the choice of fund
requirements |
|
Division 8 |
Miscellaneous |
Contributions to certain funds
(1) A contribution to a fund by an employer for the benefit of an employee
is made in compliance with the choice of fund requirements if the contribution
is made to a fund that, at the time that the contribution is made, is:
(a) a chosen fund for the employee (see Division 4); or
(b) if the employee is not a Commonwealth employee who is a member of the
CSS or the PSS—an unfunded public sector scheme.
Contributions to default funds
(2) A contribution to a fund by an employer for the benefit of an employee
is made in compliance with the choice of fund requirements if the contribution
is made to the fund that, at the time that the contribution is made, is the
default fund for the employee and, at that time, there is no chosen fund for the
employee.
Contributions to the CSS
(3) A contribution to a fund by an employer for the benefit of an employee
at a particular time is also made in compliance with the choice of fund
requirements if the contribution is made to the CSS. However, this subsection
does not apply if the law of the Commonwealth under which the contribution is
made has been prescribed in relation to that time under regulations made for the
purpose of this subsection.
Contributions to the PSS
(4) A contribution to a fund by an employer for the benefit of an employee
at a particular time is also made in compliance with the choice of fund
requirements if the contribution is made to the PSS. However, this subsection
does not apply if the law of the Commonwealth under which the contribution is
made has been prescribed in relation to that time under regulations made for the
purpose of this subsection.
Contributions under the Superannuation (Productivity Benefit) Act
1988
(5) A contribution to a fund by an employer for the benefit of an employee
at a particular time is also made in compliance with the choice of fund
requirements if the contribution is made under the Superannuation
(Productivity Benefit) Act 1988. However, this subsection does not apply if
that Act has been prescribed in relation to that time under regulations made for
the purpose of this subsection.
Contributions under AWAs or certified agreements
(6) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made under, or in accordance with, an AWA or a certified
agreement under the Workplace Relations Act 1996 or a certified agreement
under the Industrial Relations Act 1988.
Contributions under certain Victorian agreements
(7) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution is made under, or in accordance with, an employment agreement that
was in force under the Employee Relations Act 1992 of Victoria and which
continues to be in operation by virtue of section 515 of the Workplace
Relations Act 1996.
Contributions under State awards
(8) A contribution to a fund by an employer for the benefit of an employee
is also made in compliance with the choice of fund requirements if the
contribution, or a part of the contribution, is made under, or in accordance
with, a State industrial award.
Contributions under prescribed legislation
(9) A contribution to a fund by an employer for the benefit of an employee
at a particular time is also made in compliance with the choice of fund
requirements if the contribution is made under a law of the Commonwealth, of a
State or of a Territory and the law is prescribed in relation to that time under
regulations made for the purpose of this subsection.
Contributions made after employees cease employment
(10) If:
(a) an employee ceases to be employed by an employer; and
(b) after the employment ceases, the employer makes a contribution to a
fund for the benefit of the employee and in respect of the employment;
then, for the purposes of this section, the contribution is taken to have
been made immediately before the employment ceases.
Note: This section is used in determining if the employer
commits an offence under section 32T or 32U. Where section 32U is
relevant, the contributions referred to in this section are the notional
contributions referred to in paragraph 32U(1)(b).
(1) A fund is an eligible choice fund for an employer at a particular time
if:
(a) it is a complying superannuation fund at that time; or
(b) it is a complying superannuation scheme at that time; or
(c) it is an RSA; or
(d) at that time, a benefit certificate in relation to the fund is
conclusively presumed under section 24, in relation to the employer, to be
a certificate in relation to a complying superannuation scheme; or
(e) contributions made by the employer to the fund at that time are
conclusively presumed under section 25 to be contributions to a complying
superannuation fund.
(2) However, a fund ceases to be an eligible choice fund for an employer
if the employer requests an employee to obtain, in accordance with
section 32S, a statement in relation to the fund and the employer does not
receive the statement before the time specified in that section.
(1) In this Part:
fund means:
(a) a superannuation fund; and
(b) a superannuation scheme; and
(c) an RSA.
(2) For the purposes of this Part, the holder of an RSA is taken to be a
member.
(1) A fund is a chosen fund for an employee if the employee has selected
the fund in accordance with the choice process set out in
Division 6.
Note: A fund can only be a chosen fund if the employer is
able to contribute to the fund on behalf of the employee (see subsection
32R(2)).
(2) The fund becomes a chosen fund for the employee 2 months after the
employee gives the section 32Q notice to the employer or at such earlier
time after the notice is given as the employer determines.
(1) A fund is also a chosen fund for an employee if:
(a) the employee has given the employer a written notice proposing that
fund as a chosen fund for the employee; and
(b) as a result of that proposal, the employer has given the employee a
written notice accepting that fund as a chosen fund for the employee.
Note: A fund can only be a chosen fund if the employer is
able to contribute to the fund on behalf of the employee (see subsection
32R(2)).
(2) The fund becomes a chosen fund for the employee 2 months after the
employer gives the paragraph (1)(b) notice to the employee or at such
earlier time after the notice is given as the employer determines.
(3) A fund cannot become a chosen fund for an employee under this section
if, immediately before the employee gave the written notice to the employer,
either:
(a) a defined benefit superannuation scheme of which the employee was a
defined benefits member was a chosen fund for the employee; or
(b) there was no chosen fund for the employee and the default fund for the
employee was a defined benefit superannuation scheme of which the employee was a
defined benefits member.
(1) A fund (the old fund) ceases to be a chosen fund for an
employee if:
(a) there is another fund that is a chosen fund for the employee;
and
(b) the employee has not given the employer a written notice stating that
the old fund continues to be a chosen fund for the employee.
(2) A fund also ceases to be a chosen fund if the employee requests the
employer, under subsection 32N(3), to give him or her a standard choice form and
the employer does not do this by the time specified in that
subsection.
(3) A fund also ceases to be a chosen fund if it is impossible for the
employer to contribute on behalf of the employee to the chosen fund. This may
occur immediately after the fund becomes a chosen fund for the
employee.
Example: The chosen fund is closed to new members or ceases
to accept further contributions.
(4) A fund also ceases to be a chosen fund if the fund ceases to be an
eligible choice fund for the employer. This may occur immediately after the fund
becomes a chosen fund for the employee.
(1) Subject to subsection (2), there is a default fund for an
employee at all times.
(2) There ceases to be a default fund for an employee at a particular time
if the employer is required under section 32N to give the employee a
standard choice form and the employer does not do this by the time specified in
the subsection concerned. If the employer later provides a standard choice form,
there is again a default fund from the time that the standard choice form is
provided.
(1) This section sets out how to determine the default fund for an
employee. The default fund remains the default fund for the employee until it
ceases to qualify as the default fund under section 32L. If a default fund
ceases to qualify as a default fund under section 32L, the new default fund
is to be determined under this section.
Determining the default fund
(2) The default fund is:
(a) the selected Commonwealth or Territory industrial award fund for the
employee (see subsections (5) and (6)); or
(b) if there is no Commonwealth or Territory industrial award fund for the
employee—the employer’s selected majority fund (see
subsections (7) to (11)); or
(c) if there is no Commonwealth or Territory industrial award fund for the
employee and no majority fund for the employer—the eligible default fund
selected by the employer (see subsection (4)).
Special rule for employees on 1 July 2004
(3) However, for employees who are employed on 1 July 2004, the
default fund for the employee on 1 July 2004 is the last eligible default
fund to which the employer contributed for the benefit of the employee before
1 July 2004.
Eligible default fund
(4) A fund is an eligible default fund for an employer if:
(a) the fund is an eligible choice fund for the employer; and
(b) subject to the regulations, the fund meets the prescribed requirements
in relation to offering insurance in respect of death.
Selected Commonwealth or Territory industrial award funds
(5) A fund is a Commonwealth or Territory industrial award fund for an
employee if:
(a) a Commonwealth industrial award or a Territory industrial award
requires the employer to make contributions to a fund on behalf of the employee;
and
(b) the award does not provide that the employee may choose the fund to
which contributions are made or provides that the employer must agree to any
such choice; and
(c) contributions by the employer to the fund for the benefit of the
employee would satisfy the requirement in the award; and
(d) the fund is an eligible default fund for the employer.
(6) If there is only one Commonwealth or Territory industrial award fund
for an employee, that fund is the selected Commonwealth or Territory industrial
award fund for the employee. If there is more than one Commonwealth or Territory
industrial award fund for an employee, the employer must select one of those
funds to be the selected Commonwealth or Territory industrial award fund for the
employee.
Employer’s selected majority fund
(7) If:
(a) an employer only made contributions in the previous 12 months on
behalf of employees to one eligible choice fund; and
(b) that fund is an eligible default fund for the employer;
that fund is the employer’s selected majority fund.
(8) If:
(a) an employer made contributions in the previous 12 months on behalf of
employees to more than one eligible choice fund; and
(b) the eligible choice fund to which the employer made contributions on
behalf of the greatest number of employees is an eligible default
fund;
that fund is the employer’s selected majority fund.
(9) If there are 2 or more eligible choice funds to which the employer
made contributions on behalf of the greatest number of employees, the employer
may choose any of those funds that is also an eligible default fund to be the
employer’s selected majority fund.
(10) However, if an employer has determined the employer’s selected
majority fund under subsection (7), (8) or (9) at any time in the previous
12 months, the employer may choose that fund as the employer’s selected
majority fund.
(11) If an employer does not have any employees at a particular time, the
employer does not have a selected majority fund at that time or for the period
of 12 months after that time.
Contributions to defined benefit schemes
(12) For the purposes of this section, a contribution is taken to be made
to a defined benefit superannuation scheme by an employer on behalf of an
employee on each day in a quarter for which a reduction in the charge percentage
for the employee is made under subsection 22(2).
(1) A fund ceases to qualify as a default fund if it is impossible for the
employer to contribute on behalf of the employee to the default fund. If this
occurs, the new default fund is to be determined under section 32K on the
basis that the fund that ceased to be a default fund no longer exists.
Example: A fund ceases to be a default fund if it is closed
to new members or ceases to accept further contributions.
(2) A fund also ceases to qualify as a default fund if the fund ceases to
be an eligible default fund for the employer. If this occurs, the new default
fund is to be determined under section 32K on the basis that the fund that
ceased to be a default fund no longer exists.
(3) A fund also ceases to qualify as a default fund if the employer, after
making reasonable efforts to obtain from the fund the information referred to in
paragraphs 32P(1)(d), (e) and (f), is unable to obtain that information. If this
occurs, the new default fund is to be determined under section 32K on the
basis that the fund that ceased to be a default fund no longer exists.
(4) A fund also ceases to qualify as a default fund if the employee ceases
to be employed by the employer.
This Division sets out the process to be followed in choosing a fund
under section 32F. If an employer fails to comply with this Division, there
will be no default fund for an employee. However, in certain cases, an employer
may be contributing in compliance with the choice of funds requirements even if
there is no chosen fund or default fund (see section 32C).
(1) An employer must give a standard choice form before 29 July 2004
to each employee employed by the employer on 1 July 2004.
(2) An employer must give a standard choice form to an employee within 28
days of the employee first commencing employment with the employer.
(3) An employer must also give a standard choice form to an employee
within 28 days of the employee giving the employer a written request to do so.
However, a request is taken never to have been made if the employee has been
given a standard choice form, or has been given a notice under paragraph
32G(1)(b), within the previous 12 months.
(4) An employer must also give a standard choice form to an employee
within 28 days of the employer becoming aware that there ceased to be any chosen
fund for the employee because of:
(a) subsection 32H(3) (employer unable to contribute to fund);
or
(b) subsection 32H(4) (fund ceasing to be eligible choice fund) (other
than where the fund ceases to be an eligible choice fund because of subsection
32D(2)).
(5) An employer must also give a standard choice form to an employee for
whom there is no chosen fund within 28 days of the employer becoming aware that
the employee’s default fund ceased to be the default fund for the employee
because of subsection 32L(1), (2) or (3).
(6) An employer may also give a standard choice form at any
time.
(7) An employer is guilty of an offence if the employer contravenes this
section.
Penalty: 60 penalty units.
Note: See also section 32W (which allows the
Commissioner to cause a contravention notice to be served on an
employer).
(8) An offence under subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) For the purposes of this Part, a standard choice form is
a form that is in writing and that contains the following information:
(a) a statement that the employee may choose any eligible choice fund for
the employer as a chosen fund for the employee;
(b) the day on which the form is given and the day by which the employee
must make a choice (as specified by section 32Q);
(c) the name of the fund that will be the default fund if the employee
does not make a choice under section 32Q;
Note: Section 32K sets out the fund that will be the
default fund.
(d) information in relation to the default fund that is required, under
the regulations, to be included in the form;
(e) other information that is required, under the regulations, to be
included in the form;
(f) if the regulations require additional information in relation to the
default fund to be made available to the employee—where and when that
additional information may be accessed by the employee;
(g) if the employee is a member of a defined benefits
scheme—information in relation to that scheme that is required, under the
regulations, to be included.
(2) The regulations may require additional information in relation to
funds to be made available to employees and may prescribe where and when such
information is to be made available.
If the employee wants a fund to be a chosen fund for the employee, the
employee must give the employer written notice to that effect within 28 days of
being given the standard choice form by the employer. A choice made after this
time is not effective unless the employer agrees to accept it.
(1) The fund chosen by the employee must be an eligible choice fund for
the employer at the time that the choice is made.
(2) The fund chosen by the employee must be a fund to which the employer
can contribute on behalf of the employee at the time that the choice is
made.
(1) If the employer has given the employee a standard choice form under
section 32N and the employee has chosen a fund, the employer may request
the employee to provide to the employer, within 28 days of the request, either
or both of the following:
(a) either:
(i) a written statement of the kind referred to in subsection 24(1) in
relation to the fund; or
(ii) a written statement of the kind referred to in subsection 25(1) in
relation to the fund;
(b) a written statement setting out:
(i) contact details for the fund; and
(ii) the employee’s account, membership or similar number (if any)
with the fund; and
(iii) any other prescribed information.
Note: If the employer does not receive the statement or
statements within the time specified, the fund will cease to be an eligible
choice fund and will therefore cease to be a chosen fund of the employee (see
section 32D).
(2) An employer cannot request information under this section if the
information has been provided in writing by the employee after the standard
choice form was provided.
(1) An employer is guilty of an offence if the employer makes one or more
contributions to an RSA or a fund other than a defined benefit superannuation
scheme on behalf of an employee during a quarter and the contributions are not
made in compliance with the choice of fund requirements.
Penalty: 60 penalty units.
Note: See also section 32W (which allows the
Commissioner to cause a contravention notice to be served on an
employer).
(2) An offence under subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(1) If:
(a) a reduction of the charge percentage for an employee for a quarter is
made under subsection 22(2) in respect of a defined benefit superannuation
scheme; and
(b) there is at least one relevant day in the quarter where, if
contributions (the notional contributions) had been made to the
scheme by the employer for the benefit of the employee on the day, the notional
contributions would have been made not in compliance with the choice of fund
requirements; and
(c) section 32V (which deals with certain cases where no
contributions are required) does not apply to the employer in respect of the
employee in respect of the scheme for the quarter;
the employer is guilty of an offence punishable on conviction by a fine of
not more than 60 penalty units.
Note: See also section 32W (which allows the
Commissioner to cause a contravention notice to be served on an
employer).
(2) An offence under subsection (1) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(3) The following days in a quarter are relevant days for
the purposes of subsection (1):
(a) if the value of B in the formula in subsection 22(2) for
the quarter is 1—every day in the quarter; or
(b) in any other case—every day in the quarter that is in the
shorter of the scheme membership period or the certificate period referred to in
subsection 22(2).
(1) This section applies to an employer in respect of an employee in
respect of a defined benefit superannuation scheme for a quarter if the employee
is a defined benefit member of the scheme and either subsection (2) or (3)
is satisfied.
Scheme in surplus
(2) This subsection is satisfied if:
(a) the employee was a defined benefit member of the fund immediately
before 1 July 2004 and has not ceased to be such a member since that time
and before the start of the quarter; and
(b) an actuary has provided a certificate in accordance with regulations
under the Superannuation Industry (Supervision) Act 1993 stating that the
employer is not required to make contributions for the quarter and there has
been such a certificate covering all times since 1 July 2004; and
(c) an actuary has provided a certificate stating that, in the
actuary’s opinion, at all times from 1 July 2004 until the end of the
quarter, the assets of the scheme are, and will be, equal to or greater than
110% of the greater of the scheme’s liabilities in respect of vested
benefits and the scheme’s accrued actuarial
liabilities.
The certificate under paragraph (c) must have been provided no earlier
than 15 months before the end of the quarter.
Member has accrued maximum benefit
(3) This subsection is satisfied if, after the start of the quarter, the
defined benefit that has accrued to the employee will not increase other
than:
(a) as a result of increases in the employee’s salary or
remuneration; or
(b) by reference to accruals of investment earnings; or
(c) by reference to indexation based on, or calculated by reference to, a
relevant price index or wages index; or
(d) in any other way prescribed for the purposes of this
paragraph.
Meaning of scheme’s accrued actuarial liabilities
and scheme’s liabilities in respect of vested
benefits
(4) In this section:
scheme’s accrued actuarial liabilities,
at a particular time, means the total value, as certified by an actuary,
of the future benefit entitlements of members of the scheme in respect of
membership up to that time based on assumptions about future economic conditions
and the future of matters affecting membership of the scheme, being assumptions
made in accordance with applicable professional actuarial standards (if
any).
scheme’s liabilities in respect of vested benefits, at
a particular time, means the total value of the benefits payable from the scheme
to which the members of the scheme would be entitled if they all voluntarily
terminated their service with their employers at that time.
Service of notice
(1) If the Commissioner has reason to believe that an employer has
contravened section 32N, 32T or 32U, the Commissioner may cause a notice (a
contravention notice) to be served on the employer in accordance
with the regulations.
Particulars to be included in the notice
(2) A contravention notice must:
(a) set out particulars of the alleged contravention; and
(b) specify a penalty for the contravention and the person to whom, the
place at which, and the manner in which, the penalty may be paid; and
(c) set out the date of the notice; and
(d) state that, if the employer does not wish the matter to be dealt with
by a court, the employer may pay the penalty within the period (the
allowable period) of 14 days after the date of the
notice;
and may contain any other particulars that the Commissioner thinks
necessary.
Penalty
(3) The penalty to be specified in a contravention notice is 12 penalty
units.
Note: See section 4AA of the Crimes Act 1914 for
the current value of a penalty unit.
Withdrawal of notice
(4) The Commissioner may withdraw a contravention notice served on an
employer by causing written notice of the withdrawal to be served on the
employer before the end of the allowable period.
Refund
(5) If:
(a) an employer pays the penalty specified in a contravention notice
before the end of the allowable period; and
(b) the notice is withdrawn after the employer pays the penalty;
the Commissioner must refund to the employer an amount equal to the amount
paid.
Consequences of payment of penalty
(6) If:
(a) a contravention notice has been served on an employer; and
(b) the employer pays the penalty specified in the notice before the end
of the allowable period; and
(c) the notice is not withdrawn under subsection (4);
the following provisions have effect:
(d) any liability of the employer in respect of the contravention is taken
to be discharged;
(e) no further proceedings are to be taken in respect of the
contravention;
(f) no conviction for the contravention is taken to have been
recorded.
Payment by cheque
(7) If the amount of the penalty is paid by cheque, payment is taken not
to be made unless the cheque is honoured upon presentation.
Other proceedings not affected
(8) Except as provided by subsection (6), this section does not
prejudice or affect the institution or prosecution of proceedings in respect of
a contravention of section 32N, 32T or 32U or limit the amount of the fine
that may be imposed by a court in respect of such a contravention.
No requirement to serve contravention notice
(9) This section does not require the service of a contravention notice or
affect the liability of a person to be prosecuted in a court in respect of a
contravention of section 32N, 32T or 32U in relation to which a
contravention notice has not been served.
This Part applies separately to each employer of an employee. For
example, a fund that is a chosen fund of an employee as a result of a standard
choice form being given by an employer is only a chosen fund in relation to the
operation of these provisions to that employer.
(1) This section applies if:
(a) an employer is contributing to a fund (the choice fund)
that is a chosen fund or a default fund of an employee; and
(b) it is reasonable to assume that, if the choice of fund requirements
did not apply, the employer would instead have contributed to a different fund
(the other fund) for the benefit of that employee; and
(c) contributions to the other fund would not have been covered by
subsection 23(5).
(2) This section also applies if:
(a) an employer is contributing to a fund (the choice fund)
that is a chosen fund or a default fund of an employee; and
(b) it is reasonable to assume that, if the choice of fund requirements
did not apply, that a reduction in the charge percentage for the employer would
have been made under subsection 22(2) as a result of a scheme (the other
fund) for the benefit of that employee.
(3) In working out the reduction in the charge percentage under subsection
23(2), (3), (4), (4A) or (4D) as a result of a contribution to the choice fund,
the employee’s notional earnings base is taken to be equal to the lesser
of that notional earnings base and the amount that would have been the
employee’s notional earnings base if the contribution had been made to the
other fund, or the reduction had been made under subsection 22(2) as a result of
the other fund (as the case requires).
(4) In working out the reduction in the charge percentage under subsection
23(5) as a result of a contribution to the choice fund, the employee’s
ordinary time earnings are taken to be equal to the lesser of those ordinary
time earnings and the amount that would have been the employee’s notional
earnings base if the contribution had been made to the other fund, or the
reduction had been made under subsection 22(2) as a result of the other fund (as
the case requires).
A requirement in a Commonwealth industrial award or a Territory
industrial award that an employer make contributions to a superannuation fund on
behalf of an employee is not enforceable to the extent that the employer instead
makes the contributions on behalf of the employee, in compliance with this Part,
to another superannuation fund that is a chosen fund or a default
fund.
An employer is not liable to compensate any person for loss or damage
arising from anything done by the employer in complying with this
Part.