Victorian Current Acts Victorian Current Acts(1) The provisions of sections 44C, 44D, 45 and 46 of the Transport Superannuation Act 1988 , with such modifications as are necessary to make those provisions consistent with the governing instrument of the MTA Superannuation Fund, are deemed to form part of the governing instrument of the MTA Superannuation Fund.
S. 42(1A) inserted by No. 70/2003 s. 9(1).
(1A) The provisions of Part 7A of the Transport Superannuation Act 1988 , with such modifications as are necessary to make those provisions consistent with the governing instrument of the MTA Superannuation Fund, are deemed to form part of the governing instrument of the MTA Superannuation Fund.
(2) The governing instrument of the MTA Superannuation Fund is to be read and construed as if subsections (3), (4) and (5) formed part of the governing instrument.
(3) Any benefit to which an employee may from time to time be eligible which is determined by reference to a recognised period of service, employment or membership of the employee, as the case may be, and the employee's salary must be determined on the basis of the final average salary of the employee calculated as follows—
(a) in relation to an employee with less than 2 years of recognised service, an amount calculated in accordance with the formula—
Where—
"A" is the aggregate salary paid to the employee in respect of the employee's period of recognised service;
"B" is the total number of days in that period;
(b) in relation to an employee with 2 years or more of recognised service, an amount equal to one-half of the employee's aggregate salary for the period of such recognised service of 2 years ending on the employee's last day of service—
and if the period of recognised service includes a period of leave without pay there is deemed to have been payable to that employee during that period of leave without pay salary at the rate payable to the employee immediately before the period of leave, or such higher salary as has been approved by the Trustee of the MTA Superannuation Fund for the purposes of the Fund, but in no case shall the amount in relation to a person who was an employee on 1 January 1994 be less than that employee's final adjusted salary (as defined by the governing instrument) on that date.
(4) An employee must not contribute at a rate greater than 5 percent of salary unless contributing at a higher rate will not make him or her eligible for an accrued retirement benefit greater than that for which he or she would be eligible by contributing at the rate of 5 percent for the whole of his or her recognised period of service, employment or membership, as the case may be.
(5) Any employee contributing at a rate greater than 5 percent on the date that section 66(5) of the Public Sector Superannuation (Administration) Act 1993 came into operation who is no longer eligible to contribute at that rate is deemed as from that date to have elected to contribute at 5 percent.
(6) The governing instrument of the MTA Superannuation Fund must not be amended in any manner that will increase employer costs by way of any—
(a) improvement in the amount or availability of any benefit; or
(b) reduction of any amount payable by an employee—
without the approval of the Minister.
(7) Any amendment of the governing instrument of the MTA Superannuation Fund made in contravention of subsection (6) is void.
(8) Notwithstanding anything to the contrary in this section, the governing instrument of the MTA Superannuation Fund is to be read and construed subject to—
S. 42(8)(a) amended by No. 29/2000 s. 8(1).
(a) any relevant specified standards made under section 53 of the Transport Superannuation Act 1988 ; and
S. 42(8)(b) amended by No. 29/2000 s. 8(2).
(b) any provisions of a relevant Commonwealth or Victorian law relating to anti-discrimination which the Office is required to comply with; and
S. 42(8)(c) inserted by No. 29/2000 s. 8(2), amended by No. 70/2003 s. 9(2).
(c) if a member of the MTA Superannuation Fund is subject to a notice of surcharge assessment, sections 44CA and 44CB of the Transport Superannuation Act 1988 ; and
S. 42(8)(d) inserted by No. 70/2003 s. 9(2).
(d) Part 7A of the Transport Superannuation Act 1988 .
S. 42(9) inserted by No. 40/2004 s. 18.
(9) In this section, "eligible salary sacrifice contributor" means an employee in respect of whom a declaration is in force under subsection (10).
S. 42(10) inserted by No. 40/2004 s. 18.
(10) The Minister may by notice published in the Government Gazette declare—
(a) an employee to be an eligible salary sacrifice contributor from the date specified in the notice; or
(b) a class of employees to be eligible salary sacrifice contributors from the date specified in the notice.
S. 42(11) inserted by No. 40/2004 s. 18.
(11) An eligible salary sacrifice contributor may by notice in writing to his or her employer elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0·1% in accordance with the following formula—
where—
"M" is the applicable member contribution rate in accordance with the provisions of the governing instrument of the MTA Superannuation Fund without salary sacrifice;
"R" is the tax rate for the financial year on taxable contributions to the MTA Superannuation Fund under the Commonwealth Income Tax Assessment Act 1936 .
S. 42(12) inserted by No. 40/2004 s. 18.
(12) An election under subsection (11)—
(a) can only be made if there is in force an agreement between the employer and the employee under which the employer can make the member contributions required by the provisions of the governing instrument of the MTA Superannuation Fund by way of salary sacrifice;
(b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a);
(c) can only be made in respect of the whole of the member contributions;
(d) can not be made in respect of any contributions made by an employee in addition to the applicable member contributions under the provisions of the governing instrument of the MTA Superannuation Fund.
S. 42(13) inserted by No. 40/2004 s. 18.
(13) Member contributions made in accordance with the rate determined under subsection (11) are for the purposes of the provisions of the governing instrument of the MTA Superannuation Fund (other than the provisions relating to surchargeable contributions) to be taken to be—
(a) the applicable member contributions to be paid under the provisions of the governing instrument of the MTA Superannuation Fund; and
(b) the member contributions that would have been payable if an election had not been made under subsection (11).
Note to s. 42(13)(b) inserted by No. 37/2007 s. 17.
Note
The effect of paragraph (b) is that, for the purpose of calculating benefit entitlements, the member contributions are taken to be the member contributions that would have been payable if no election had been made.
S. 42(14) inserted by No. 40/2004 s. 18.
(14) An election under subsection (11) does not
affect the amount that would otherwise constitute the salary of the employee
for the purposes of the provisions of the governing instrument of the MTA
Superannuation Fund.
s. 42
S. 42(15) inserted by No. 40/2004 s. 18.
(15) The minimum benefit required to be paid to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth is to be determined as if no election had been made under subsection (11).
S. 42(16) inserted by No. 78/2004 s. 11.
(16) In this section—
"eligible contribution" means the Government co-contribution payable under the Superannuation (Government Co‑contributions for Low Income Earners) Act 2003 of the Commonwealth that the Commissioner of Taxation determines under that Act is to be paid to the Fund or to the person;
"eligible member" means an employee who is a person in respect of whom a Government co‑contribution is payable in accordance with section 6 of the Superannuation (Government Co-contributions for Low Income Earners) Act 2003 of the Commonwealth;
"eligible member account" means the account established under subsection (17).
S. 42(17) inserted by No. 78/2004 s. 11.
(17) The Trustee of the MTA Superannuation Fund must establish and maintain a separate eligible member account for each employee who is an eligible member.
S. 42(18) inserted by No. 78/2004 s. 11.
(18) The Trustee of the MTA Superannuation Fund must credit to an employee's eligible member account—
(a) eligible contributions received on behalf of, or from, the employee; and
(b) interest on the amount in the account at the rate determined by the Trustee of the MTA Superannuation Fund.
S. 42(19) inserted by No. 78/2004 s. 11.
(19) The Trustee of the MTA Superannuation Fund must debit to an employee's eligible member account—
(a) any reasonable costs incurred in maintaining the account as determined by the Trustee of the MTA Superannuation Fund; and
(b) any taxes payable in respect of the account; and
(c) any refund of overpaid or ineligible contributions required to be made to the Commissioner of Taxation under the Superannuation (Government Co‑contributions for Low Income Earners) Act 2003 of the Commonwealth.
S. 42(20) inserted by No. 78/2004 s. 11.
(20) The Trustee of the MTA Superannuation Fund may for the purposes of subsection (18)(b) determine that it is appropriate in the circumstances to apply a negative interest rate.
S. 42(21) inserted by No. 78/2004 s. 11.
(21) If benefits become payable under the provisions of the governing instrument of the MTA Superannuation Fund to or in respect of a person who has been an employee, the Trustee of the MTA Superannuation Fund must ensure that the person receives an additional benefit equal to the net balance of the employee's eligible member account as at the date of the payment of the benefits.
S. 42(22) inserted by No. 78/2004 s. 11.
(22) The net balance of the employee's eligible member account as at the date of the payment of the benefits must be paid—
(a) as a lump sum; and
(b) in accordance with the specified standards.
S. 42(23) inserted by No. 78/2004 s. 11.
(23) Eligible contributions—
(a) do not constitute member contributions which are required to be paid under the provisions of the governing instrument of the MTA Superannuation Fund;
(b) do not create a corresponding liability requiring the employer to make contributions to the MTA Superannuation Fund;
(c) must not be taken into account in the calculation of any benefits under the provisions of the governing instrument of the MTA Superannuation Fund other than this section.
S. 42(24) inserted by No. 78/2004 s. 11.
(24) A benefit paid in accordance with this section—
(a) does not affect the payment of any other benefits under the provisions of the governing instrument of the MTA Superannuation Fund; and
(b) must not be taken into account in determining any minimum or maximum benefit entitlement under the provisions of the governing instrument of the MTA Superannuation Fund.