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SUPERANNUATION (CSS) CONTINUING CONTRIBUTIONS FOR BENEFITS REGULATIONS(AMENDMENT) 1998 NO. 91
EXPLANATORY STATEMENTSTATUTORY RULES 1998 No. 91
Issued by the authority of the Minister for Finance and Administration
Superannuation Act 1976
Superannuation (CSS) Continuing Contributions for Benefits Regulations (Amendment)
The Superannuation Act 1976 (the 1976 Act) makes provision for, and in relation to, the Commonwealth Superannuation Scheme (CSS) which is an occupational superannuation scheme for Commonwealth employees and for certain other persons. Section 168 of the 1976 Act provides that the Governor-General may make regulations for the purposes of that Act.
Subsection 3(1) of the 1976 Act contains the definition of "eligible employee" which describes persons who may contribute to the CSS (ie CSS members). Paragraph (ea) of that definition includes persons to whom section 14A of the 1976 Act applies. Section 14A applies to certain persons described in that section, including persons specified in regulations pursuant to section 14A. Regulations pursuant to section 14A are contained in the Superannuation (CSS) Continuing Contributions for Benefits Regulations (the Principal Regulations).
Subsection 168(15) of the 1976 Act provides that regulations for the purposes of section 14A may commence on a day not earlier than 12 months before their making. However, subsection 168(16) of the 1976 Act provides that, where contributions have been accepted from a person to whom such regulations are to apply, the regulations may commence on a day not earlier than the earliest day on which the contributions were accepted.
The purpose of the Regulations is to amend the Principal Regulations to enable certain employees of the Australian Law Reform Commission, Medibank and Employment National (Administration) Pty Ltd to remain or become members of the CSS. The 1976 Act provides for continuity of CSS membership when a scheme member changes employment in a number of circumstances including where, in respect of the new employment, the person is included in a class of persons specified in the Principal Regulations.
Australian Law Reform Commission (Subregulation 4.1)
The Regulations amend the Principal Regulations to legitimise the CSS membership of certain employees of the Australian Law Reform Commission (ALRC) who were treated as if they were CSS members when no membership arrangements were in place.
These people were CSS members when they were employees of the Law Reform Commission (LRC) and automatically became ALRC employees when the ALRC was established as a separate entity. by the Australian Law Reform Commission Act 1996, on 11 November 1996 to perform the functions formerly undertaken by the LRC. Although these people have continued to pay member contributions to the CSS and the ALRC has paid employer contributions to the Commonwealth in respect of them, no legislative provision was made for their continued CSS membership as a result of their changed employment circumstances.
The Regulations legitimise the assumed CSS membership of those ALRC employees and apply from the commencement of their employment with ALRC on 11 November 1996. They will be able to continue as CSS members while employed by ALRC unless they become members of another superannuation scheme relating to that employment other than a specified type of scheme.
The provisions of the Regulations that give effect to this intention are taken to have commenced on 11 November 1996, the day on which ALRC was established and transferees from LRC who were CSS members commenced their new employment.
Medibank (Subregulation 4.2)
Medibank Limited was established by the Health Insurance Commission (Reform and Separation of Functions) Act 1997 as a subsidiary of the Health Insurance Commission and registered under the Corporations Law as a Company on 1 December 1997. Medibank Limited changed its name to Medibank Private Limited on 1 March 1998. This body is referred to as Medibank in the Regulations.
The Regulations amend the Principal Regulations to enable CSS members who become employees of Medibank to be treated as CSS members while employed by Medibank unless they are members of another superannuation scheme relating to that employment other than a specified type of scheme. Certain inactive CSS members, eg, persons with CS S preserved benefits, will also be able to recommence active membership if they join Medibank.
The provisions of the Regulations that give effect to this intention are taken to have commenced on 1 December 1997, the day on which Medibank was established.
Employment National (Administration) Pty Ltd (Subregulation 4.3)
The Regulations amend the Principal Regulations to provide continuing CSS membership for certain employees of the Department of Employment, Education, Training and Youth Affairs who transferred on 1 May 1998 to Employment National (Administration) Pty Ltd. CSS membership for these transferees will be able to continue while they are employed by Employment National (Administration) Pty Ltd unless they are members of another superannuation scheme relating to that employment other than a specified type of scheme.
The provisions of the Regulations that give effect to this intention commenced on 1 May 1998, being the date of transfer of staff from that Department to Employment National (Administration) Pty Ltd.
The retrospectivity of the Regulations does not contravene subsection 48(2) of the Acts Interpretation Act 1901 in that the rights of employees are not affected in a manner prejudicial to them nor are liabilities imposed on them.
Details of the proposed amendments are explained in the Attachment.
ATTACHMENT
SUPERANNUATION (CSS) CONTINUING CONTRIBUTIONS FOR BENEFITS REGULATIONS (AMENDMENT)
Regulation 1
This provides for the commencement dates of the individual amendments.
The amendments in relation to the Australian Law Reform Commission (ALRC) are taken to have commenced on 11 November 1996 (subregulation 1.1).
The amendments in relation to Medibank are taken to have commenced on 1 December 1997. (subregulation 1.2).
The amendments in relation to Employment National (Administration) Pty Ltd are taken to have commenced on 1 May 1998 (subregulation 1.3).
Regulation 2
This provides that the Regulations are amending the Superannuation (CSS) Continuing Contributions for Benefits Regulations (the Principal Regulations).
Regulation 3
Regulation 3 provides a definition of Medibank.
Regulation 4
Regulation 4 amends regulation 3A of the Principal Regulations which prescribes classes of persons to which section 14A of the Superannuation Act 1976 (1976 Act) applies. Such persons are eligible employees by virtue of paragraph (ea) of the definition of "eligible employee" in subsection 3(1) of the 1976 Act.
The new classes of persons included in section 14A by regulation 4 are:
(a) persons who became employees of ALRC on 11 November 1996 who were CSS members employed by the Law Reform Commission (LRC) immediately before that date and who continued to contribute to the CSS after commencing employment with ALRC.
The class does not include a person who is a member of a superannuation scheme in relation to employment with ALRC, other than a scheme relating only to performance pay superannuation or a "top up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 14A) (new paragraph 3A(1)(q) inserted by subregulation 4.1 and consequential amendments to subregulation 3A(1A) by subregulation 4.4 of the Regulations).
(b) persons who, on or after 1 December 1997, became or become employees of Medibank, other than on a casual or temporary part-time basis and were or are, immediately before becoming employed by Medibank either:
* a member of the CSS; or
* a CSS invalidity pensioner, an invalidity pensioner under the Superannuation Act 1922 (the 1922 Act), or a person who had deferred benefits applicable from the CSS or the 1922 Act; or
* a person who previously received a transfer value from the CSS or under the 1922 Act which is available to be paid to the CSS (referred to in the 1976 Act and the Regulations as a re-employed former contributor with preserved rights).
The class does not include a person who is a member of a superannuation scheme in relation to employment with Medibank other than a scheme relating only to performance pay superannuation or a "top up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 14A). (New paragraph 3A(1)(r) inserted by subregulation 4.2 and consequential amendments to subregulation 3A(1A) by subregulation 4.5 of the Regulations).
(c) persons who on 1 May 1998 became employees of Employment National (Administration) Pty Ltd and immediately before that day were employees of the Department of Employment, Education, Training and Youth Affairs.
The class does not include a person who is a member of another superannuation scheme in relation to employment with Employment National (Administration) Pty Ltd other than a scheme relating only to performance pay superannuation or a "top up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 14A). (New paragraph 3A(1)(s) inserted by subregulation 4.3 and consequential amendments to subregulation 3A(1A) by subregulation 4.6 of the Regulations).
(The meaning of the term "top-up arrangement" is given by subregulation 3(3) of the Principal Regulations.)
Regulation 5
Regulation 4 of the Principal Regulations fixes a time when section 14A ceases to apply to certain persons.
In relation to the new class of persons employed by ALRC included in section 14A by the Regulations, regulation 5 of the Regulations fixes the time as the earliest of:
(a) the day on which the person ceases to be employed by ALRC; or
(b) the day immediately before the person joins another superannuation scheme in relation to that employment, other than a scheme relating only to performance pay superannuation or for top-up purposes.
In relation to the new class of persons employed by Medibank and Employment National (Administration) Pty Ltd included in section 14A by the Regulations, regulation 5 of the Regulations fixes the time as the earliest of..
(a) the day on which the person ceases to be employed in the employment that includes the person in the class to which section 14A applies; or
(b) the day immediately before the person joins another superannuation scheme in relation to that employment, other than a scheme relating only to performance pay superannuation or for top-up purposes; or
(c) the last day on which Medibank or Employment National (Administration) Pty Ltd is under Commonwealth control, if Commonwealth control of the relevant body ceases.
These provisions are included in subregulation 5.4 which inserts subregulation 4(17) in relation to ALRC, subregulation 5.5 which inserts subregulation 4(18) in relation to Medibank and subregulation 5.6 which inserts subregulation 4(19) in relation to Employment National (Administration) Pty Ltd. Subregulations 5.1, 5.2 and 5.3 of the Regulations make consequential changes to subregulation 4(1A) of the Principal Regulations.
Regulation 6
Regulation 6 amends Schedule 1 of the Principal Regulations which contains modifications of the 1976 Act that apply to certain persons who are members of the CSS by virtue of section 14A of that Act. The amendments include the Australian Law Reform Commission (subregulation 6.1), Medibank (subregulation 6.2) and Employment National (Administration) Pty Ltd (subregulation 6.3) as bodies required to make payments to the Commonwealth in respect of their employees who are CSS members.