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SOCIAL SECURITY (INTERNATIONAL AGREEMENTS) ACT 1999 NO. 173, 1999 - SCHEDULE 5
- Spain
- Note: See section 5.
AGREEMENT ON SOCIAL SECURITY BETWEEN AUSTRALIA AND SPAIN Wishing to
strengthen the existing friendly relations between the two countries, and
Resolved to co-operate in the field of social security; Have agreed as
follows: PART I—GENERAL PROVISIONS ARTICLE 1 Definitions 1. In this
Agreement, unless the context otherwise requires:
"benefit" means in relation to a Party, a benefit for which provision is made
in the legislation of that Party, and includes any additional amount, increase
or supplement that is payable, in addition to that benefit, to or in respect
of a person who qualifies for that additional amount, increase or supplement
under the legislation of that Party;
"carer's pension" means a carer's pension payable to a spouse under the
legislation of Australia;
"Competent Authority" means; in relation to Australia: the Secretary to the
Department of Social Security; and, in relation to Spain: the Department of
Labour and Social Security;
"Competent Institution" means; in relation to Australia: the Competent
Authority for Australia; and in relation to Spain: the Institution responsible
under the legislation of Spain for dealing with a claim for a Spanish benefit;
"Institution" means; in relation to Australia: the Competent Authority for
Australia; and in relation to Spain: the agency or authority responsible for
the implementation of the legislation of Spain;
"legislation" means, in relation to a Party, the laws specified in Article 2
in relation to that Party;
"period of residence in Australia", in relation to a person, means a period
defined as such in the legislation of Australia, but does not include any
period deemed pursuant to Article 8 to be a period in which that person was an
Australian resident;
"Spanish creditable period" means a period, or the total of two or more
periods, of contributions which has been or can be used to acquire the right
to a Spanish benefit, but does not include any period considered under
paragraph 1 of Article 10 as a Spanish creditable period;
"widow" means, in relation to Australia: a de jure widow but does not include
a woman who is the de facto spouse of a man. 2. In the application by a Party
of this Agreement in relation to a person, any term not defined in this
Article shall, unless the context otherwise requires, have the meaning
assigned to it in the legislation of either Party or, in the event of a
conflict of meaning, by whichever of those laws is the more applicable to the
circumstances of that person. ARTICLE 2 Legislative Scope 1. Subject to
paragraph 2, this Agreement shall apply to the following laws, as amended at
the date of signature of this Agreement, and to any laws that subsequently
amend, supplement or replace them: (a) in relation to Australia: the Social
Security Act 1947 in so far as the Act provides for and in relation to the
following benefits: (i) age pensions; (ii) invalid pensions; (iii) wives'
pensions; (iv) carer's pensions; and (v) pensions payable to widows, (b) in
relation to Spain: the legislation relating to the General Scheme and the
Special Schemes of the Social Security system as they relate to the following
benefits: (i) benefits for temporary incapacity for work in cases of common
illness, maternity or non- industrial accident; (ii) invalidity; (iii) old
age; (iv) death and survivors; and (v) unemployment benefits. 2.
Notwithstanding the provisions of paragraph 1 the legislation of Australia
shall not include any laws made, whether before or after the date of signature
of this Agreement, for the purpose of giving effect to any reciprocal
agreement on social security entered into by either Party. 3. This Agreement
shall apply to laws which extend the legislation of either Party to new
categories of beneficiaries only if the two Parties so agree in a Protocol to
this Agreement. ARTICLE 3 Personal Scope This Agreement shall apply to any
person who: (a) is or has been an Australian resident; or (b) is or has been
subject to the legislation of Spain, and where applicable, to any spouse,
dependant or survivor of such a person. ARTICLE 4 Equality of Treatment
Subject to this Agreement, all persons to whom this Agreement applies shall be
treated equally by a Party in regard to rights and obligations which arise
whether directly under the legislation of that Party or by virtue of this
Agreement. ARTICLE 5 Application of Spanish Legislation 1. Where an employee
or a self-employed worker who is covered by the Social Security Schemes of
Spain is sent by his firm, or goes, to undertake temporary work in Australia
he or she shall continue to be covered by those Social Security Schemes so
long as the period of the proposed work does not exceed 5 years. 2. If, owing
to unforeseen circumstances, the period of the work extends beyond 5 years,
this extension may be recognised by the Competent Authority of Spain. PART
II—PROVISIONS RELATING TO AUSTRALIAN BENEFITS ARTICLE 6 Residence or
Presence in Spain or a Third State 1. Where a person would be qualified under
the legislation of Australia or by virtue of this Agreement for a benefit
except that he or she is not an Australian resident and in Australia on the
date on which he or she lodges a claim for that benefit but he or she: (a) is
an Australian resident or residing in Spain or a third State with which
Australia has concluded an agreement on social security that includes
provision for co-operation in the assessment and determination of claims for
benefits; and (b) is in Australia, Spain or that third State, that person
shall be deemed, for the purposes of lodging that claim, to be an Australian
resident and in Australia on that date. 2. Paragraph 1 shall not apply to a
claimant for a wife's pension or carer's pension who has never been an
Australian resident. ARTICLE 7 Spouse-related Australian Benefits For the
purposes of this Agreement, a person who receives an Australian benefit due to
the fact that the spouse of that person receives by virtue of this Agreement
another Australian benefit, shall be deemed to receive that first-mentioned
benefit by virtue of this Agreement. ARTICLE 8 Totalisation for Australia 1.
Where a person to whom this Agreement applies has claimed an Australian
benefit under this Agreement and has accumulated: (a) a period as an
Australian resident that is less than the period required to qualify him or
her, on that ground, under the legislation of Australia for that Australian
benefit; and (b) a period of residence in Australia equal to or greater than
the minimum period identified in accordance with paragraph 4 for that person;
and has accumulated a Spanish creditable period then for the purposes of a
claim for that Australian benefit, that Spanish creditable period shall be
deemed, only for the purposes of meeting any minimum qualifying periods for
that benefit set out in legislation of Australia, to be a period in which that
person was an Australian resident. 2. For the purposes of paragraph 1, where a
person: (a) has been an Australian resident for a continuous period which is
less than the minimum continuous period required by the legislation of
Australia for entitlement of that person to a benefit; and (b) has accumulated
a Spanish creditable period in two or more separate periods that equals or
exceeds in total the minimum period referred to in subparagraph (a),
the total of the Spanish creditable periods shall be deemed to be one
continuous period. 3. For all purposes of this Article, where a period by a
person as an Australian resident and a Spanish creditable period accumulated
by that person coincide, the period of coincidence shall be taken into account
once only by Australia as a period as an Australian resident. 4. The minimum
period of residence in Australia to be taken into account for the purposes of
paragraph 1 shall be as follows: (a) for the purposes of an Australian benefit
that is payable to a person residing outside Australia, the minimum period
required shall be one year, of which at least six months must be continuous;
and (b) for the purposes of an Australian benefit that is payable to an
Australian resident there shall be no minimum period of residence in
Australia. ARTICLE 9 Calculation of Australian Benefits 1. Where an
Australian benefit is payable by virtue of this Agreement, to a person outside
of Australia, the rate of that benefit shall be determined according to the
legislation of Australia. 2. Notwithstanding the provisions of the previous
paragraph, when assessing the income of a person for the purposes of
calculating the rate of benefit only a proportion of any Spanish benefit (or
benefits) shall be regarded as income.
That proportion shall be calculated by multiplying the total number of months
of that person's period of residence in Australia, which shall not exceed 300,
by the amount of that Spanish benefit and dividing that product by 300. 3. A
person who is in receipt of an Australian benefit under the legislation of
Australia, shall be entitled to the concessional assessment of income set out
in paragraph 2 of this Article for any period during which the rate of that
person's Australian benefit is proportionalised under the legislation of
Australia. 4. Where an Australian benefit is payable only by virtue of this
Agreement to a person who is in Australia and until the person becomes
eligible under Australian domestic legislation the amount of that benefit
shall be determined as follows: (a) according to the legislation of Australia,
but without taking into account in the computation of his or her income any
Spanish benefit which that person is entitled to receive, and (b) by deducting
the amount of that Spanish benefit from the amount of the Australian benefit
to which that person would otherwise be entitled. 5. Where a married person,
or that person and his or her spouse are in receipt of a Spanish benefit or
benefits, it shall be deemed, for the purposes of implementing paragraph 4 and
the legislation of Australia, that each one of them receives one half of the
amount of the benefit or the total of the two benefits as the case may be. 6.
If a person is unable to receive an Australian benefit as a result of the
provisions of paragraph 4, or because the person did not claim the said
benefit, it shall be deemed that if that person's spouse claims a benefit
under the legislation of Australia, that the person receives that benefit. 7.
The reference in paragraph 6 to payment of a benefit under the legislation of
Australia to the spouse, means the payment of any benefit, pension or
allowance payable under the Social Security Act 1947 as amended from time to
time and whether payable by virtue of this Agreement or otherwise. PART
III—PROVISIONS RELATING TO SPANISH BENEFITS ARTICLE 10 Totalization for
Spain 1. Where this Agreement applies and there is a Spanish creditable
period that is: (a) less than the period necessary to give a claimant
entitlement to the benefit claimed under Spanish legislation; and (b) equal to
or greater than the minimum period mentioned in paragraph 3 for that benefit,
then any period of residence in Australia by the contributor to whom that
Spanish creditable period was credited shall be deemed to be a Spanish
creditable period. 2. For the purposes of this Article, where a Spanish
creditable period and period of residence in Australia coincide, the period of
coincidence shall be taken into account once only as a Spanish creditable
period. 3. The minimum Spanish creditable period to be taken into
consideration for the purposes of paragraph 1 shall be one year. However,
where the Spanish creditable period is shorter than one year and the period of
residence in Australia is also shorter than one year, but with the addition of
both periods an entitlement to a Spanish benefit is obtained, they shall both
be taken into account. 4. For the purposes of this Article the upper age limit
for a woman, set in the definition of a period of residence in Australia in
the legislation of Australia shall be raised from 60 years to 65 years for the
purposes of claiming an old age pension under the legislation of Spain.
ARTICLE 11 Sickness Benefits For the granting of benefits in case of
sickness of a worker the totalization of periods referred to in Article 10
shall be taken into account, if necessary, without the condition imposed by
subparagraph 1(b) of Article 10. ARTICLE 12 Old age, invalidity and survivors
pensions 1. Entitlement by virtue of this Agreement to old age, invalidity or
death and survivors benefit under the legislation of Spain shall be determined
as follows: (a) the Competent Institution shall determine, according to its
own provisions, the amount of the benefit corresponding to the duration of the
periods of insurance completed only under its legislation. (b) The Competent
Institution shall also examine the entitlement considering the provisions of
Article 10. If, in application of it, entitlement to pension is obtained, the
following rules shall apply for the calculation of the amount: (i) the
Competent Institution shall determine the theoretical pension to which the
claimant would be entitled as if all the periods of insurance and/or residence
totalized had been accomplished under its legislation; (ii) the amount of the
pension effectively due to the claimant, shall be that obtained after reducing
the amount of the theoretical pension to a pro-rata pension, according to the
period of insurance completed exclusively under the legislation of Spain and
all the periods of insurance and residence completed in the two Parties; and
(iii) in no case shall the sum of the Spanish creditable periods and the
periods of residence in Australia be taken to exceed the maximum period
established by the legislation of Spain in regard to the benefit in question.
2. Once the entitlement of the claimant has been established according to
subparagraphs 1(a) and (b) the Competent Institution shall assign the most
favourable benefit. ARTICLE 13 Special Scheme Benefits If the legislation of
Spain provides that in the determination of entitlement to or the granting of
certain benefits there is a requirement that the Spanish creditable periods
have been completed in an activity subject to a Special Scheme or, as the case
may be, in a specific activity or specific employment, periods of residence in
Australia completed under the legislation of Australia shall be taken into
account when they have been accomplished in an equivalent scheme or in the
same activity or in the same employment. ARTICLE 14 Determination of
Regulating Base When, for determining the Regulating Base for benefits,
periods of residence in Australia must be taken into account, the Spanish
Competent Institution shall determine that Regulating Base on the minimum
contribution bases in force in Spain, during that period or fraction of
period, for the workers of the same category of professional qualification as
the person concerned last had according to Spanish legislation. ARTICLE 15
Situacion de alta An Australian resident or a person in receipt of an
Australian benefit shall be deemed to be validly insured (situacion de alta o
asimilada) for the purposes of entitlement to benefit under the legislation of
Spain. ARTICLE 16 Unemployment Benefits 1. For the granting of unemployment
benefits the totalization of periods referred to in Article 10 shall, if
necessary, be taken into account without the condition imposed by subparagraph
1(b) of that Article. 2. Notwithstanding the provisions of Article 20,
unemployment benefits paid pursuant to paragraph 1 shall be paid during the
periods established under the legislation of Spain and while the unemployed
person resides in the territory of Spain. ARTICLE 17 Equivalence of Events
The continuing entitlement to a Spanish benefit shall be subject to the
legislation of Spain and events which occur in Australia relevant to that
continuing entitlement will be considered as if they had occurred in Spain.
PART IV—MISCELLANEOUS AND ADMINISTRATIVE PROVISIONS ARTICLE 18
Lodgement of Documents 1. A claim, notice or appeal concerning a benefit,
whether payable by a Party by virtue of this Agreement or otherwise, may be
lodged in the territory of either of the Parties in accordance with
administrative arrangements made pursuant to Article 22 at any time after the
Agreement enters into force. 2. The date on which a claim, notice or appeal
referred to in paragraph 1 is lodged with the Competent Institution of the
other Party shall be treated, for all purposes concerning the matter to which
it relates, as the date of lodgement of that document with the Competent
Institution of the first Party. 3. In relation to Australia, the reference in
paragraph 2 to an appeal document is a reference to a document concerning an
appeal that may be made to an administrative body established by, or
administratively for the purposes of, the social security laws of Australia.
ARTICLE 19 Determination of Claims 1. In determining the eligibility or
entitlement of a person to a benefit by virtue of this Agreement: (a) a period
as an Australian resident and a Spanish creditable period; and (b) any event
or fact which is relevant to that entitlement,
shall, subject to this Agreement, be taken into account in so far as those
periods or those events are applicable in regard to that person no matter when
they were accumulated or occurred. 2. The commencement date for payment of a
benefit payable by virtue of this Agreement shall be determined in accordance
with the legislation of the Party concerned but in no case shall that date be
a date earlier than the date on which this Agreement enters into force. 3. (a)
Where a person receives or will receive a benefit from one Party and has
received an overpayment of a benefit from the other Party, the Institution of
the latter Party may request the Institution of the former Party to withhold
the amount of the overpayment from the arrears of benefits payable by the
former Party and transfer them to the Institution of the latter Party to
recoup the amount of the overpayment.
(b) The Institution receiving a request under subparagraph (a) shall take
the action set out in the Administrative Arrangement, as provided for
in Article 22, to recoup the amount of the overpayment and to transfer
it to the other Institution.
(c) The amount of the overpayment shall be a debt due by the person
receiving it to the Party that paid it. 4. A reference in paragraph 3
to a benefit, in relation to Australia, means a pension, benefit or
allowance that is payable under the Social Security Act 1947 of
Australia as amended from time to time, and in relation to Spain,
means any pension, benefit, allowance or advance made by an
Institution including overpayments. ARTICLE 20 Payment of Benefits
1. The benefits payable by virtue of this Agreement and listed in this
paragraph shall be payable within and outside the territories of both
Parties: (a) for Australia: - age pensions,
- invalid pensions,
- wife's pensions, and
- pensions payable to widows for persons who are Class B widows or Class A
widows who were widowed in Australia. (b) for Spain: - invalidity,
- old age, and
- death and survivors. 2. The benefits payable by virtue of this Agreement or
otherwise and listed in this paragraph shall be paid in Australia and Spain
with no limitation by time: (a) for Australia: - carer's pensions,
and
- pensions payable to widows who are not included in subparagraph 1(a). (b)
for Spain: - invalidity,
- old age, and
- death and
survivors. 3. If a Party imposes legal or administrative restrictions on the
transfer of its currency abroad, both Parties shall adopt measures as soon as
practicable to guarantee the rights to payment of benefits derived under this
Agreement. Those measures shall operate retrospectively to the time the
restrictions were imposed. 4. A benefit payable by a party by virtue of this
Agreement shall be paid by that Party, whether the beneficiary is in the
territory of the other Party or outside the respective territories of both
Parties, without deduction for government administrative fees and charges for
processing and paying that benefit. 5. The payment outside Australia of an
Australian benefit that is payable by virtue of this Agreement shall not be
restricted by those provisions of the legislation of Australia which prohibit
the payment of a benefit to a former Australian resident who returns to
Australia becoming again an Australian resident, and lodges a claim for an
Australian benefit and leaves Australia within 12 months of the date of that
return. ARTICLE 21 Exchange of Information and Mutual Assistance 1. The
Competent Authorities shall: (a) advise each other of laws that amend,
supplement or replace the legislation of their respective Parties, promptly
after the first-mentioned laws are made; (b) advise each other directly of
internal action to implement this Agreement and any Arrangement adopted for
its implementation; and (c) advise each other of any technical problems
encountered when applying the provisions of this Agreement or of any
Arrangement made for its implementation. 2. The Institutions of both Parties
shall: (a) advise each other of any information necessary for the application
of this Agreement or of the respective legislation of the Parties concerning
all matters within their area of competence arising under this Agreement or
under those laws; (b) assist one another in relation to the determination of
any benefit under this Agreement or the respective legislation within the
limits of and according to their own laws; and (c) at the request of one to
the other, assist each other in relation to the implementation of agreements
on social security entered into by either of the Parties with third States, to
the extent and in the circumstances specified in administrative arrangements
made in accordance with Article 22. 3. The assistance referred to in
paragraphs 1 and 2 shall be provided free of charge, subject to any
arrangement reached between the Competent Authorities and Institutions for the
reimbursement of certain types of expenses. 4. Any information about a person
which is transmitted in accordance with this Agreement to an Institution shall
be protected in the same manner as information obtained under the legislation
of that Party. 5. In no case shall the provisions of paragraphs 1, 2 and 4 be
construed so as to impose on the Competent Authority or Institution of a Party
the obligation: (a) to carry out administrative measures at variance with the
laws or the administrative practice of that or the other Party; or (b) to
supply particulars which are not obtainable under the laws or in the normal
course of the administration of that or the other Party. 6. In this Article
the meaning of "legislation" is not confined by any restrictions imposed by
Article 2. 7. In the application of this Agreement, the Competent Authority
and the Institutions of a party may communicate with the other in the official
language of that Party. ARTICLE 22 Administrative Arrangements The Competent
Authorities of the Parties shall make whatever administrative arrangements are
necessary in order to implement this Agreement. ARTICLE 23 Review of
Agreement Where a Party requests the other to meet to review this Agreement,
the Parties shall meet for that purpose no later than 6 months after that
request was made and, unless the Parties otherwise arrange, their meeting
shall be held in the territory of the Party to which that request was made.
PART V—FINAL PROVISIONS ARTICLE 24 Entry Into Force and Termination 1.
This Agreement shall enter into force one month after an exchange of notes by
the Parties through the diplomatic channel notifying each other that all
constitutional or legislative matters as are necessary to give effect to this
Agreement have been finalized. 2. Subject to paragraph 3, this Agreement shall
remain in force until the expiration of 12 months from the date on which
either Party receives from the other a note through the diplomatic channel
indicating the intention of the other Party to terminate this Agreement. 3. In
the event that this Agreement is terminated in accordance with paragraph 2,
the Agreement shall continue to have effect in relation to all persons who:
(a) at the date of termination, are in receipt of benefits; or (b) prior to
the expiry of the period referred to in that paragraph, have lodged claims
for, and would be entitled to receive, benefits,
by virtue of this Agreement. IN WITNESS WHEREOF, the undersigned, being duly
authorised thereto by their respective Governments, have signed this
Agreement. DONE in 2 copies at CANBERRA this 10th day of FEBRUARY 1990 in the
Spanish and English languages, each text being equally authoritative. FOR
AUSTRALIA: FOR SPAIN: BRIAN HOWE JOSE LUIS PARDOS [Signatures omitted]
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