|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Administrative Appeals Tribunal of Australia |
Last Updated: 5 March 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
GENERAL ADMINISTRATIVE DIVISION |
) | |
|
|
Re |
MARLENE JOYCE REIFFEL |
|
|
And |
COMMISSIONER FOR SUPERANNUATION |
Tribunal |
Mr M J Sassella, Senior Member Air Marshal I B Gration AO, Member Dr M D Miller AO, Member |
Decision
|
|
The tribunal affirms the decision under review. |
....................[Sgd].................
SUPERANNUATION - CSS scheme - preservation of benefits upon resignation - late election to preserve benefits - discretion to recognise election - whether discretion should be exercised
Superannuation Act 1976 ss 80, 137(1), 157(1)
Boardman, Commissioner for Superannuation v (1994) 50 FCR 236
Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399
Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 33 ALD 420
Charles and Commissioner for Superannuation, Re [1993] AATA 244; (1993) 18 AAR 61
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Lander and Commissioner for Superannuation, Re [1993] AATA 65; (1993) 29 ALD 870
Liddle and Commissioner for Superannuation, Re [1991] AATA 191; (1991) 25 ALD 307
May and Commissioner for Superannuation, Re (1979) 2 ALD 951
McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Reiffel and Commissioner for Superannuation, Re [2001] AATA 1031
Ward and Commissioner for Superannuation, Re [1995] AATA 19; (1995) 36 ALD 287
Wolstencroft and Commissioner for Superannuation, Re [2001] AATA 1011; (2001) 67 ALD 387
5 March 2003 |
Mr M J Sassella, Senior Member Air Marshal I B Gration AO, Member Dr M D Miller AO, Member |
|
APPLICATION
1. This is an application by Marlene Joyce Reiffel ("the applicant"), born 9 February 1948 (T1), to the Administrative Appeals Tribunal ("the tribunal") for review of a decision by a delegate of the Commissioner for Superannuation ("the respondent") affirming on review on 29 May 2002 (T49) a decision of another delegate dated 15 November 1993 (T22). The decision under review was a decision to refuse to accept a late election by Ms Reiffel to preserve the superannuation benefits she had accrued as at the date of her resignation from the Australian Public Service ("the APS") on 16 January 1980 (T11).
2. There were obviously lengthy periods between when Ms Reiffel resigned in 1980 and 12 August 1991 when Ms Reiffel applied to make a late election (T17), and from when a delegate refused Ms Reiffel's application on 15 November 1993 and 14 December 1999 (T24), when Ms Reiffel sought reconsideration of that earlier decision. The tribunal in Re Reiffel and Commissioner for Superannuation [2001] AATA 1031 considered an application by Ms Reiffel protesting Comsuper's decision to refuse to reconsider the earlier decision. The tribunal granted Ms Reiffel an extension of time. It is against the result of the consequent reconsideration that Ms Reiffel now applies to the tribunal.
HEARING
3. The tribunal convened a hearing in this matter in Canberra on 2 December 2002. Mr H Selby of counsel represented the applicant. Mr B Dubé of counsel represented the respondent. The tribunal heard oral evidence from the applicant, Mr R S Whalan, Mr R Zatorski and Ms C Butcher. The tribunal received into evidence the following documents:
Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1 - T49) provided by the respondent.
Exhibit A1 - Applicant's statement of facts and contentions, 2 September 2002.
Exhibit A2 - Statement by Mr D Bogusz, 28 August 2002.
Exhibit A3 - Letter dated 23 August 2002 from Mr R Whalan to the applicant.
Exhibit A4 - Applicant's supplementary statement, undated.
Exhibit R1 - Respondent's statement of facts and contentions, 28 September 2002.
Exhibit R2 - Affidavit of Mary Pringle Miller, 26 September 2002, together with attachments.
Exhibit R3 - 1976 Superannuation Manual.
LAW
4. The Superannuation Act 1976 ("the Act")[1] permits a resigning public servant to elect to preserve his or her superannuation entitlements in the relevant Commonwealth superannuation scheme:
Election that Division apply
137. (1) A person who:
(a) ceases to be an eligible employee in circumstances to which paragraph (b) does not apply and, upon so ceasing, is not entitled to pension under this Act or invalidity benefit in accordance with section 69, 72 or 73; or
(b) ceases to be an eligible employee in circumstances by virtue of which the person is to be deemed, under subsection 58 (3), or under section 58A or 58B, to have retired involuntarily;
may, not later than 21 days after the person so ceases to be an eligible employee, elect, by notice in writing to the Board, that this Division apply in relation to the person.
5. The Act permits a former employee to make a late election under s 157(1) of the Act in some circumstances:
General provisions applicable to elections under Act
157. (1) Notwithstanding anything contained in this Act, where an election under this Act is made by a person after the expiration of the period allowed by or under this Act for the making of the election, and the Board is satisfied that in all the circumstances of the case it is desirable that the election should be recognized, the Board may direct that the election be treated as if it had been made within the period allowed and the election shall have effect accordingly.
UNDISPUTED FACTUAL MATTERS
6. On 10 December 1965 the applicant became a contributor to the superannuation scheme established under the Superannuation Act 1922 ("the 1922 Act") when she was appointed to the Department of Productivity (ex R1).
7. On 1 July 1976 the applicant was transferred by operation of law into the superannuation scheme created by the Act (ex R1).
8. The applicant resigned from the APS on 16 January 1980 (T11), thereby ceasing to be an "eligible employee" for the purposes of the Act.
9. Upon her resignation the applicant became entitled under s 80 of the Act to be paid a refund of her accumulated contributions, plus interest, by selecting that option as one of several appearing on the benefit application form, S2A (appearing as T12). The applicant made this selection and was paid $4,666.95 (ex R1).
10. The applicant went to Victoria after she resigned. She and her husband bought a dairy farm. They had a child (ex R1).
11. The applicant used the refunded superannuation contributions to reduce the mortgage over the dairy farm "as that was considered to be the best form of investment at the time" (T34/63).
12. On 16 September 1983 the applicant rejoined the APS as a clerical assistant in the Department of Defence (ex R1). It was later, ie in August 1991, that Ms Reiffel sought to make a late election to preserve her earlier accrued superannuation entitlements.
13. Ms Reiffel wrote to Comsuper seeking to make a late election to preserve her superannuation benefits on 12 August 1991 (T16, T17).
14. Ms Reiffel is no longer in the APS. She is a human resources manager for the Queensland Department of Health in Weipa.
EVIDENCE
MS REIFFEL
15. Ms Reiffel gave oral evidence in which she said that she spent her first 14 years working in the APS in personnel areas. She progressed to become an Inspector Personnel - Payroll and Recruitment in the then Department of Productivity by the time she resigned. She said that in that time she had "reasonable contact" with superannuation issues. The prevailing practice was to phone Comsuper[2] where an answer to a question asked about superannuation was not obvious. In cross-examination Ms Reiffel pointed out that at this time much of the technical work in the personnel section was done by lower level staff. Ms Reiffel was expected to assist those staff members who had queries.
16. Ms Reiffel had a role in relation to the department's superannuation personnel administration in 1976 when the 1976 Act commenced. She gave staff seminars. Ms Reiffel agreed in cross-examination that she had a reasonable knowledge of the Public Service Act and the introduction of the new superannuation legislation. She agreed that circulars issued regarding the changes to superannuation made in 1976 would have passed through her hands.
17. When she resigned she had completed form S2A (T12/21). This form is entitled:
"APPLICATION FOR REFUND OF ACCUMULATED CONTRIBUTIONS/LUMP SUM BENEFIT OR ELECTION FOR PRESERVATION OF SUPERANNUATION RIGHTS".
The copy retained by the respondent and included in ex TD1 is apparently a carbon copy. The words and numbers written onto the original by Ms Reiffel and other officers appear on the copy but seem to be out of alignment. Thus, a crucial section requires an applicant to "Delete whichever inapplicable" as between three options:
* Apply for a refund of accumulated contributions; or
* Apply for payment of a lump sum benefit; or
* Elect for preservation of superannuation rights.
What appears, however, are two underlinings. The first two bullet point options are each underlined. The election for preservation is untouched. Elsewhere on the document, several entries appear about 7 millimetres above the line on which they would have appeared on the original. It appears that the top copy came adrift and it was unpredictable how the carbon copies would serve to reproduce what was actually on the original copy. It seems to the tribunal that best interpretation of the document is that the applicant deleted the second and third bullet point options. That is what the respondent proceeded to reflect in its subsequent actions and Ms Reiffel did not argue at any stage that she had elected to preserve her superannuation rights at that time.
18. Ms Reiffel said that no one phoned her or contacted her regarding this form. She said that she understood that "she was to take a refund of" her contributions. Ms Reiffel said that she saw the option for electing to preserve her rights. This induced the following understandings. She did understand that there was some capacity to make an election. However, she understood that it was just for older persons. It did not cross her mind that she could preserve. She said that she had never seen anyone elect to preserve. She said that no one at work had ever asked her about preservation.
19. Ms Reiffel had addressed her intentions in taking up dairy farming in 1980 in ex A4. She told the tribunal that she had resigned from the APS to take up farming but that she had intended returning to the APS. That intention formed at the start of the farming enterprise. The idea was to return to the APS when Ms Reiffel's children (born on 16 September 1977 and 9 February 1979)[3] reached school age. In looking for a farm property Ms Reiffel and her husband had looked for farms near centres offering Commonwealth APS employment in Victoria.
20. Ms Reiffel discussed with the tribunal the use made of the accumulated superannuation contributions returned to her. They went into her bank account and were then used to purchase the dairy farm. The applicant said she saw it as "accumulated savings". She said investing in the farm was a sensible investment as she regarded the farm as a small business. This money was added to other money she had from the proceeds of the sale of a house in Ainslie in the ACT. In the final analysis, the farm was sold after a year. She had over 50% equity in the farm at the time of sale. The farm was sold for "about double" what Ms Reiffel had paid for it.
21. In cross-examination Mr Dubé quizzed Ms Reiffel about the role of the accumulated funds in Ms Reiffel's purchase of the first dairy farm. Ms Reiffel's approach was that the money was useful in reducing the outstanding mortgage but it was not essential. At the earlier hearing Ms Reiffel had said that she had sold several other properties, in addition to the Ainslie house. The inference was that the move to Victoria had freed up quite a volume of funds invested by Ms Reiffel in property. Mr Dubé put to Ms Reiffel that at the time of her resignation in 1980 none of these properties were sold. Only the Ainslie house had been sold by the time of the farm purchase. Ms Reiffel had recorded this correction in her statement in ex A4. She resigned on 16 January 1980. She sold the Ainslie house in March 1980. She bought the first farm in July 1980. She sold three other properties between October 1980 and some time in 1981. Ms Reiffel was adamant that the availability of the superannuation lump sum played no part in the decision to buy the first farm.
22. Ms Reiffel and her husband then bought a second farm property which was larger than the first and carried a larger herd. This was at another location said by Ms Reiffel to be close to Commonwealth employment. This venture was unsuccessful and Ms Reiffel returned to APS work after about a year in September 1983.
23. She detailed her activities in the period between rejoining the APS and seeking to make an election. She said she returned to the workforce in Melbourne at the end of 1983. She took a job in the department in which she had previously worked while her husband remained on the second dairy farm until it was sold and she spent a year in the compensation section. Then, until 1986, she worked in "recruitment and general personnel". She then returned to Canberra as EEO[4] officer in the Department of Resources and Energy. After a year, late in 1987, she went to the Australian Mint as Director (Personnel). At none of these workplaces, she said, had she heard anything to suggest that preservation had been an option for her.
24. Ms Reiffel then went to Jabiru to work in the Office of the Supervising Scientist, an element of the then Department of the Environment. This was in 1989. She was not engaged there in personnel work. She told the tribunal that she thought she first heard of preservation when working there between 1989 and 1991. Mention was made of it by people speaking to her by telephone from Canberra.
25. Ms Reiffel agreed with Mr Dubé that no one had actually advised her to apply for a refund of contributions rather than preservation.
26. Ms Reiffel told Mr Dubé in cross-examination that she first became aware of preservation following her return to work on an uncertain date. She recalled, however, that Mr R S Whalan visited Jabiru to give staff a session on the introduction of the PSS scheme. This was in about 1990.
27. It was in 1991 that Ms Reiffel approached Comsuper to seek to elect late in the day to preserve her benefits.
SUPERANNUATION CIRCULARS AND OTHER MATERIALS
28. When cross-examining Ms Reiffel, Mr Dubé referred her to various documents issued by Comsuper. A 4-page circular dated 13 February 1976 (T7/12), which Ms Reiffel expected that she had seen but could not recall, stated that the qualifying period for preservation benefits was to be five years instead of 10 years[5] where a member resigned to move to employment outside the APS or to leave the workforce. The circular said, "This will be of particular assistance to people who interrupt their careers for a variety of reasons such as child rearing".. Ms Reiffel agreed that this would have put her on notice of her rights if it had been highlighted to her.
29. A press release (T7/16) was attached to the circular. It said that the changes would enable women to preserve superannuation benefits when their careers were interrupted for such reasons as rearing a family. Ms Reiffel said that, as Inspector - Personnel, she received a flood of papers. She could not read them in detail and sent them to action officers. Had she read this, she said, she would have realised that preservation was not only for older public servants.
30. Annexure B to ex R2 was a Comsuper circular relating to the 1976 superannuation changes. At paragraph 15, in relation to resignation, it set out the available options regarding a "resignation benefit". These were a lump sum benefit equal to accumulated contributions, a preservation benefit falling due on retirement age, or the transfer of a transfer value to another approved superannuation scheme. Ms Reiffel said that this would have crossed her desk.
31. Exhibit R3 was a Superannuation Manual relating to the post-1976 superannuation system. It was published in May 1979, some months before Ms Reiffel resigned and received her accumulated contributions.
32. Ms Reiffel agreed with Mr Dubé that she could have consulted these circulars and manual had she had any queries about preservation and if she had known enough to have such queries. However, she said, to do that never crossed her mind. She proceeded to say that the folklore in personnel sections in the 1970s was that the superannuation scheme worked poorly for resigning public servants. The common belief was that a resigning public servant would recover only his or her contributions without interest. She was aware that there was material on preservation but everyone understood, wrongly as it turned out, that that material had no relevance to younger public servants who resigned.
MR R S WHALAN
33. As noted above in paragraph 26, Mr Whalan visited Jabiru and spoke to Ms Reiffel's colleagues about aspects of APS superannuation. Mr Whalan was with Comsuper when he visited Jabiru. He is now the Manager - Superannuation in a company called Australian Ethical Investments Ltd. In evidence he recalled that Ms Reiffel had organised his attendance at Jabiru. He addressed preservation of benefits in his presentation. He recalled going to Jabiru in September 1990. He said that he thought Ms Reiffel attended his talk but he could not state categorically that she was present.
34. In ex A3 Mr Whalan generally endorsed Ms Reiffel's evidence as to the folklore surrounding preservation of benefits. However, he said that his impression was that few employees were aware of preservation. This differs from Ms Reiffel who said she and her colleagues knew of it but regarded it as inapplicable other than to APS employees nearing retirement age.
35. In Mr Whalan's oral evidence it emerged that there had been two versions of ex A3. In the version before the tribunal there is no reference to Mr Whalan having met Ms Reiffel. In the earlier version he was said to have met her in September 1990. Ms Reiffel told the tribunal that she knew Mr Whalan before he attended Jabiru because of queries she had made to the superannuation fund, AGEST. She had asked Mr Whalan to change his letter when she ascertained that he did not personally remember speaking to Ms Reiffel in Jabiru. She had told Mr Whalan that they had spoken in Jabiru. However, he had no recollection of Ms Reiffel in that context. He had included a reference to such a discussion in the first draft of the letter on his own initiative. Mr Dubé suggested that Ms Reiffel had wanted reference to the meeting in September 1990 removed because it suggested that Ms Reiffel knew of preservation, and late election to preserve, long before she took steps to seek to preserve.
36. Ms Reiffel said in evidence that Mr Whalan's words alone in September 1990 did not raise for Ms Reiffel the question of preservation. She thought the talk started that process, but she thought it was discussion later with others that prompted her to pursue preservation.
MR R ZATORSKI
37. Mr Zatorski had written to Ms Reiffel on 17 January 2000 (T25). From that letter Mr Zatorski's evidence was:
* That he was personnel officer in the Department of Productivity when Ms Reiffel went on maternity leave.
* That there was little material available at that time from Comsuper on the preservation option for resigning public servants.
* That what was available was of no practical use. In particular there were no pamphlets outlining the effect of preservation on future pension entitlements. In cross-examination Mr Zatorski said that, by describing material as of no practical use, he was referring to its availability to employees. He conceded that material was available to personnel staff but, in his view, it was often out of date.
* Personnel staff operated under the general impression that preservation rights were relevant only to employees approaching retirement age. In cross-examination Mr Zatorski conceded that no one absorbed that view by reading Comsuper publications. In cross-examination Mr Zatorski conceded that the belief was that preservation was available as an option for younger employees but that it was not worthwhile.
* Only resigning public servants nearing retirement age were directed to Comsuper for advice on preservation.
* He would expect that Ms Reiffel was not advised to contact Comsuper.
38. Mr Zatorski proceeded to state in that letter, "It may also be relevant that I appeared before an Administrative Appeals Tribunal around the time you resigned to testify at a hearing involving an ex-DFRB employee who failed to elect to preserve his pension entitlements within the prescribed time frame (which expired while he was employed with the Department and a temporary employee). My testimony related to the fact that while I had made approaches to the Superannuation Board for preservation information on behalf of the appellant, none had been supplied until after the election period had expired (from memory, two months after the termination of his DFRB service)."
39. Mr Zatorski in oral evidence said that material from Comsuper was available in the department but was in limited supply. The personnel section was not well-organised and was understaffed. It was reactive rather than proactive. Circulation of material was often not timely and broke down.. Mr Zatorski conceded that Comsuper published circulars and manuals but he said these were often not updated. He conceded that a manual on the 1976 Act published in May 1979 may not have changed very much by 1980, when Ms Reiffel separated from the department.
40. Mr Dubé had some problems with this evidence. He had detected from summonsed documents that Mr Zatorski had resigned from the APS and joined the ACT Public Service in 1986. He had elected to preserve his superannuation rights. He was 36 at this time. Mr Dubé observed that this was quite young.
41. Mr Dubé asked Mr Zatorski about his knowledge of the various circulars published in 1976 by Comsuper that were raised in his cross-examination of the applicant. This was the material in ex R2 discussed earlier in those reasons. Mr Zatorski could not recall seeing this material despite the fact that he took something of an interest in superannuation. He did not recall seeing circulars suggesting that things were going to be better for women moving in and out of the APS. He said that consideration of this material would have taken a back seat to immediate pressures upon him from clients at the personnel section window. Asked to consider this material, Mr Zatorski agreed that all that was required was there and that it was practical.
42. Mr Dubé suggested that the comment in T25 about Mr Zatorski's appearance at the tribunal was inaccurate. Mr Zatorski said that his evidence reflected his recollection. Mr Dubé provided Mr Zatorski with a copy of the transcript of a tribunal hearing held in 1979. The tribunal case was Re May and Commissioner for Superannuation (1979) 2 ALD 951. The facts of that case show that Mr May entered an election period on 10 February 1971. He did not see Mr Zatorski until 1973, well after the expiry of the period that applied in that case. Despite this clarification of the true position in the May case (above), Mr Zatorski did not wish to alter the statement in his letter to Ms Reiffel.
MS C BUTCHER
43. Ms Butcher had written to Ms Reiffel on 4 April 2000 (T29). She had worked in the Productivity Department's personnel section when Ms Reiffel resigned in 1980. Her recollection was that there were pamphlets available at the time dealing with all retirement and resignation options, including preservation. She recalled also the Comsuper circulars on preservation. However, she believed preservation "was not considered by most people for a variety of reasons but more importantly was not considered by women as an option".. The perception was that preservation was for older employees approaching retirement age and was not viable for younger staff.
44. She said that it was only with a growth in APS redundancies and a growing community understanding of superannuation that people began to understand the value of preserving benefits.
45. Ms Butcher also recalled that "superannuation was treated differently for women at that time". There was a lower retirement age and the issue of whether a woman's superannuation could benefit dependants may not have been sorted out in 1979. Most young women were said to regard superannuation as forced saving which would be useful when they left the APS and for family care needs.
46. Ms Butcher thought it reasonable to assume that there was no discussion of preservation in Ms Reiffel's case.
47. In oral evidence Ms Butcher, who is now a health and safety officer for the Victorian Trades Hall Council, could not recall the press release described above in paragraph 29. She did not think that knowledge of this would have changed her view. She felt that the accepted folklore would have held sway.
SUBMISSIONS BY THE PARTIES
APPLICANT
48. Mr Selby for the applicant submitted that, while the tribunal can be satisfied that Comsuper released circulars and other documentation about the superannuation arrangements, including preservation, in and after 1976, there was no evidence that the information penetrated to, or was understood by, those affected. All of the evidence before the tribunal, he said was in one direction. The evidence was said to be that all employees and personnel staff failed to turn their minds to preservation for an employee such as Ms Reiffel. Comsuper's circulars appear to have been ignored because of workloads, etc.
49. Mr Selby distinguished Ms Reiffel's case from earlier decisions such as Chalk v Commissioner for Superannuation [1994] FCA 1063; (1994) 33 ALD 420 where the employee was keen to obtain the lump sum payout. The employees in such cases tend not to succeed. While the money was useful to her, Ms Reiffel had no present need for the money at the time she received it. Exhibit A4 was said to show that the applicant and her husband were prudent savers who owned four properties between December 1978 and March 1980. While Ms Reiffel and her husband had access to bank finance they used the lump sum to reduce debt. This was described as "the prudent thing" and is to be compared to spending the money on ephemera such as a holiday.
50. Mr Selby said that some cases held an employee disentitled to make a late election where he or she had left the APS once and for all to move onto a new venture. He submitted that Ms Reiffel had not done this, that she had embarked on the farming venture with a view to returning to the APS, and she had located near areas of APS employment in siting the farm. Mr Selby stated that Ms Reiffel had spent a working lifetime in public service employment with some time out for child-bearing.
51. Mr Selby submitted that the applicant's delay in seeking to elect was explained by the way in which the entire public understanding of superannuation changed from the late 1970s to the 1990s. There was, in addition, poor document maintenance affecting library copies of manuals, circulars, etc, as explained by Mr Zatorski. Mr Selby suggested that the existence of circulars and manuals did not show what should happen in a case such as Ms Reiffel's. The content of this paper work had not been absorbed by the intended audience.
52. Mr Selby concluded by asking a rhetorical question - how can it be fair and reasonable for Comsuper to say that they did not do enough to alert young women of their preservation rights and yet deny Ms Reiffel and others the right to an election when they have worked for it, for 35 years in Ms Reiffel's case?
RESPONDENT
53. Mr Dubé noted that the job of the tribunal is to consider whether, in all the circumstances, it is desirable that Ms Reiffel's election should be treated as if it had been made within the period allowed. This is the requirement in s 157(1) of the Act.
54. Mr Dubé cited Commissioner for Superannuation v Boardman (1994) 50 FCR 236, 244 for the proposition that by "desirable" is meant "that of being fair in order to do justice between the person who seeks to make the late election and the requirements of the administration of the Fund".
55. He cited Chalk (above) for the proposition that the exercise of the discretion should be undertaken by reference to the words of the statute and the context within which the discretion is conferred. The court stated that the statute uses simple words and the issues are always issues of fact.
56. He cited Re Liddle and Commissioner for Superannuation [1991] AATA 191; (1991) 25 ALD 307, 322 for the proposition that, for a particular late election to justify the exercise of the discretion there must be "objectively good reasons which justify the person not being required to comply with the time limits otherwise clearly specified by the Act".
57. Mr Dubé commended to the tribunal Comsuper's Guidelines Applicable to Late Elections for Preservation of Superannuation Rights Lodged under s 157(1) of the Superannuation Act 1976 ("the guidelines") (T3). In his submissions Mr Dubé indicated that the guidelines were adopted following suggestions from the tribunal in Re Ward and Commissioner for Superannuation [1995] AATA 19; (1995) 36 ALD 287. Mr Dubé cited Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 on the question of the applicability of government policy in administrative decision-making. In that case Bowen CJ and Deane J, in the full Federal Court of Australia said at pages 69-70:
"In a matter such as the present where it was permissible for the decision-maker to take relevant government policy into account in making his decision, but where the Tribunal is not under a statutory duty to regard itself as being bound by that policy, the Tribunal is entitled to treat such government policy as a relevant factor in the determination of an application for review of that decision. It would be contrary to common sense to preclude the Tribunal, in its review of a decision, from paying any regard to what was a relevant and proper factor in the making of the decision itself. If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be."
58. A policy document sourced in Comsuper is not strictly "government policy" of the type discussed in Drake (above). However, Mr Dubé alerted the tribunal to the particular genesis of the guidelines and, given that history, the guidelines would seem to attract a deference similar to authoritatively stated government policy. According to Mr Dubé, the guidelines were formulated by the CSS Board, a body responsible for the general administration of the Act since 1 July 1994. The guidelines were drafted in consultation with the Australian Council of Trade Unions. The CSS Board approved them in September 1996. The respondent adopted them for consideration of late election applications lodged before 1 July 1994.
59. Earlier decisions have addressed the question of the guidelines and regarded them as potentially applicable in accordance with the Drake (above) principles. In Re Ward (above) the tribunal said on page 293 in paragraph 20:
"Promoting amendments to the Act is probably no longer feasible in view of the establishment of a later scheme. There appears to be scope, however, for the development of appropriate guidelines outlining matters for consideration in the exercise of the discretion. The decision-maker's freedom to decide can not, of course, be fettered and guidelines can not be applied blindly. However if they are developed after appropriate consultation, for example with unions and other consumer groups, and are preceded by appropriate debate, the tribunal would normally respect them in appropriate cases: Re Secretary, Department of Social Security and Diepenbroeck [1992] AATA 149; (1992) 27 ALD 142;; 15 AAR 411. Circumstances that commonly recur and that could appropriately be dealt with in guidelines include the results of remoteness of information sources or points of inquiry such as might be encountered by a field technician. Some guidance could also be given when considering the circumstances behind the separation. One might expect that where an employee has made a mature and considered decision to switch from the public to the private sector to take a different career path, considerations of justice could be different from those applicable where the applicant has demonstrated a commitment to a consistent career in the public sector but who, by force of circumstance such as pregnancy or family care needs or the vagaries of governing legislation requiring resignation and re-appointment, finds him or herself seeking an exercise of the s 157 discretion."
60. The tribunal in Re Wolstonecroft and Commissioner for Superannuation [2001] AATA 1011; (2001) 67 ALD 387, 404 seemed to accept that the guidelines should be considered in decision-making but agreed with counsel for the employee that they are not a consolidation of the principles derived from the decided cases. The present tribunal would observe that there is no reason for guidelines to stop at matters already established by the cases, although the additional matters might attract less deference than those based on earlier authority.
61. Perusal of the guidelines indicates that they seek to address deficiencies in form S2A and, more generally, seek to advantage applicants who were ignorant of their rights but took early action upon becoming aware. There appears an inherent wisdom in such an approach. However, as Mr Dubé recognised, Drake (above) requires that the guidelines are to be departed from if, in the opinion of the tribunal, having regard to the circumstances of the case, the application of the guidelines does not produce the correct or preferable decision.
62. Mr Dubé submitted that there was an evidentiary burden on the applicant to satisfy the tribunal as to the desirability of granting the late election. He cited the Boardman case (above) at 249 for this proposition. This proposition is not clearly stated at page 249; however the tribunal finds the proposition unsurprising. While there is strictly no onus of proof on a party before the tribunal, such cases as Casarotto v Australian Postal Commission [1989] FCA 116; (1989) 86 ALR 399 and McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354 have found that an evidentiary onus arises where a party is attempting to convince a decision-maker to alter an existing state of affairs.
63. Mr Dubé referred the tribunal to Re Lander and Commissioner for Superannuation [1993] AATA 65; (1993) 29 ALD 870 in which the tribunal said at page 872 that the "longer the interval between ceasing to be an eligible employee and making a late election, the heavier the onus the applicant bears".
LATE ELECTION GUIDELINES
64. In September 1996 Comsuper issued the following guidelines:
GUIDELINES APPLICABLE TO LATE ELECTIONS FOR PRESERVATION OF SUPERANNUATION RIGHTS LODGED UNDER s.157(1) OF THE SUPERANNUATION ACT 1976
The Board is of the view that, notwithstanding any current views about the adequacy of application forms formerly in use, it is not desirable for a late application to be granted solely or largely on the grounds that the applicant now claims not to have properly understood the form at the relevant time:
* it will generally not be desirable to recognize a late election where the application was made using the form S2R, S2RR or a successor. The form S2R was introduced in 1987. Unlike the form S2A which it replaced, it (and its successors) contained a broad description of the options available. Hence, completion of such form will be taken to signify an informed decision to select a refund and forgo preservation. Exceptions might be where the extension of time sought is less than a month or there is evidence of mental incapacity or of the form having been completed by someone other than the applicant
* in the absence of contrary evidence, completion of an application form S2A will be taken to signify an informed decision to select a refund and forgo preservation.
* the expectation is that an applicant who may not have understood the choices available should have made inquiries prior to completing an application form. Failure to have made such inquiries without good reason will be taken as signifying an informed choice unless, had they sought advice on the options available from the appropriate official source relevant to their workplace or circumstances, they would have received materially erroneous or misleading advice that would have caused them to misunderstand their options.
2. The Board is also of the view that it is generally desirable to grant a late election in cases where an application has been lodged promptly after an applicant has learned that a case for a late election might exist, and where the applicant can provide evidence that at least one of the circumstances listed below as items (i) to (iii) was the case, or where at least one of items (iv) and (v) was the case and item (vi) was also the case:
(i) they were unable to understand the choice they were making at the time by reason of physical or mental incapacity;
* medical evidence needs to be provided to satisfy the Board that the incapacity was of sufficient severity to have prevented the applicant from making a reasoned decision.
(ii) they were materially misinformed at a relevant time by an authoritative source upon which it was reasonable for them to rely concerning either the options available to them in their circumstances, or the substance of any particular relevant option. Corroboration of receipt of incorrect advice would be required. Such corroboration could be by way of evidence of prevailing practice, supporting statement from others with contemporary evidence, evidence from parties directly involved, or other relevant evidence;
* an authoritative source would include ComSuper (or its predecessors) or the personnel area of the applicant's employer
* the incorrect advice could have been received on an individual basis or provided to all relevant employees, eg, by way of a handout provided to all employees on termination.
(iii) they did not select any option on the application form but the form was signed by the applicant, or an option was selected but the form was not signed by the applicant;
(iv) they sought relevant advice from responsible official sources concerning available options but, for no fault of their own, received no response prior to making the choice at the time;
(v) they had no practicable access to official sources of advice concerning their options because of the particular circumstances of their location or employment or personal affairs at the relevant time;
(vi) they established an interest, through the use to which the refund was put when received by the applicant, in making provision for his or her retirement, eg:
* where the applicant maintained the money through action such as a deposit in a bank account, purchase of shares or rolled the money over to a roll-over facility or another Superannuation Fund or Scheme.
* where the money has been invested for the long term (including in real estate or a business venture), as opposed to where the refund was applied to immediate consumption items such as holidays, household goods, or consumer debt reduction. Evidence of such action and that the refunded monies remain so invested would lend support to an application.
3. The Board would not usually consider it desirable to grant a late election -
(i) where the applicant, in making his or her late election, has allowed more than three months to elapse since he or she first became aware that a late election for preservation could be made; or
(ii) if the applicant had made enquiries and received correct advice at any time prior to resignation/termination.
GUIDELINE 1
65. The first guideline relates to form S2A. Form S2A was succeeded by forms S2R and S2RR. The guidelines note that these later forms contain a broad description of the options available and completion of the form signifies an informed decision to select a refund and forgo preservation. Completion of form S2R or S2RR is said, "in the absence of contrary evidence ... [to be] taken to signify an informed decision to select a refund and forgo preservation". There is said to be an expectation that an applicant who does not understand the choices will make inquiries before completing the form.
66. Form S2A was described above in paragraph 17. The listing in bald terms of the three options could reasonably be assumed to put an applicant on notice that there was an issue of importance for consideration.
67. Mr Selby, for Ms Reiffel, submitted that there was "contrary evidence" within the terms of the guideline here as regards form S2A. This was Ms Reiffel's evidence and that of the other witnesses.
68. The first guideline can assist an applicant who failed to make inquiries if they failed for a good reason. In the present case the folklore surrounding preservation at the time in the relevant personnel sections could qualify as such a good reason.
69. Mr Dubé suggested that Ms Reiffel's long experience in the personnel environment imposed a greater onus on the applicant to inquire about her options. She would, for example, be in a prime position to know who was best able to advise her on superannuation matters in Comsuper and where the Comsuper documentation on resignation and retirement options was placed in her own section. The tribunal regarded this as fair comment.
70. The next paragraph of the guidelines suggests that there is an expectation that an applicant who did not understand the choices available should have made inquiries prior to completing an application form. A person can, under the guidelines fail, with impunity, to make inquiries if such inquiries would have resulted in the receipt of "materially erroneous or misleading advice that would have caused [her] to misunderstand [her] options".. Mr Selby argued that there was no evidence that Ms Reiffel would have received accurate advice if she had made inquiries. He said that all that the respondent had done was produce copies of circulars and manuals. The respondent had not shown that these were understood or utilised in any way. Mr Dubé thought, however, that there was a reasonable probability that, had Ms Reiffel contacted her personnel section, she would have received the correct information.
GUIDELINE 2
71. This guideline suggests that it is generally desirable to grant a late election when an applicant has promptly lodged an application after learning that a case for late election might exist and where three of certain other criteria are met. It seems to the tribunal that none of these criteria can be met. They require that the applicant was unable to understand the choice she was making because of a physical or mental disability; that she was materially misinformed by an authoritative source upon whom it was reasonable to rely; that the completed form S2A was deficient in that an option was not selected or the form not signed; that she sought advice from a responsible official source and received no reply; and that there was no practicable access to official sources of advice because of the particular circumstances of their location, employment or personal circumstances. One criterion that might apply was that Ms Reiffel could be said to have established an interest, through her use of the lump sum, in making provision for her retirement.
GUIDELINE 3
72. The third guideline presumed against the grant of a late election where the employee waited more than three months to make an election after learning that a late election could be made, or if the employee made inquiries and received correct advice prior to separation from the APS.
CASE LAW
73. It is perhaps unsurprising that there is much case law on the issues arising in this matter. The stakes for an employee who has ill-advisedly failed to roll-over his or her CSS superannuation are potentially serious and effective for the whole of the employee's retirement life span. Comsuper, on the other hand, has an interest in ensuring the orderly management of the CSS scheme by minimising the number of late elections that are permitted. The cases are interesting as examples of how the discretion in s 157, broad though it is, has been exercised in the past.
74. The first point is that the courts and tribunals have tended to agree that precedent authority on extensions of time are relevant in this context. Examples are Re Lander (above), Boardman (above) and Re Ward (above).
75. In essence this means that the criteria to be applied are:
(a) Whether the employee had an acceptable explanation for the delay in making an election, although the lack of such an explanation is not automatically fatal.
(b) Whether the employee had agitated the matter of making an election in a different fashion from applying under s 157 of the Act.
(c) Whether there would be prejudice to the respondent or, more relevantly in this context, the CSS or consolidated revenue by recognising the late election.
(d) Whether the merits of the employee's case are strong.
(e) Considerations of fairness as between an employee and other persons otherwise in a like position.
(f) Any wider prejudice to the general public from granting the late election.
76. However, emerging from these considerations a number of factors tailored to the context of superannuation, employer/employee relations, the peculiarities of APS employment and the role of Comsuper have tended to supersede the factors listed in paragraph 75 above. These Comsuper specific indicia are consistent with the general criteria in paragraph 75. How the Comsuper specific criteria operate is best seen by considering a number of decided cases in chronological order.
RE LIDDLE AND COMMISSIONER FOR SUPERANNUATION (ABOVE)
77. The applicant completed a form S2A thinking that a refund of contributions was his only option. He acted promptly later on learning of preservation and the option of making a late election. The majority considered that the Industries Assistance Commission ("IAC") had done too little to inform him of his rights when he resigned, finding that there is an obligation on the Commonwealth to give its employees accurate advice in this context. The majority held that the applicant's mental state at the time of resignation was affected by his anxiety state and his personal circumstances. As Deputy President Forgie (the minority member) said, the applicant's mind was fixed on resignation and moving from Canberra to join his wife and two children (aged 5 and 3) in Queensland. The IAC had no work for the applicant in Queensland. The learned Deputy President considered that Mr Liddle was determined to make his choice regardless of his entitlements and he did not expect to rejoin the APS, which he did in fact do 2 ½ years after resigning. Deputy President Forgie regarded form S2A as sufficient to alert a person dealing with it to ask what the reference to "election for preservation of benefits" meant.
RE LANDER AND COMMISSIONER FOR SUPERANNUATION (ABOVE)
78. The applicant worked at the National Library. She resigned in 1977 when she had two children whom she was breast-feeding. She resigned to concentrate on family activities. She had not enjoyed her work for some time. The tribunal found that the employer had explained Ms Lander's rights to her as part of the separation process, although the significance was lost on her at the time, and it found Ms Lander to be a well informed person with a knowledgeable husband. This was despite the applicant saying that she neither sought nor received any advice as she thought refund of contributions was her only option. She sent a letter of resignation referring to her wish that her superannuation contributions be refunded. She deposited the refund, some $3,000, in her current account where it mingled with other funds. The tribunal refused the election on the basis that:
"Mrs Lander had ample opportunities to make inquiries. It is not to the point to say (as she implied) that her hand was not held. There are matters in which a person in her position is expected to exercise some faculty of inquiry and judgment. She was an educated woman, clearly a hard and conscientious worker, a person without apparent health or language problems, a person located in Canberra, a person married to a man with an unusual degree of seniority in the public service for his age." (Page 873)
79. The tribunal noted that s 137 allowed only 21 days for making an election. It took this to reflect a parliamentary intention that an election should be made promptly rather than after an extended period.
80. On page 873 the tribunal made the following comments of interest on prejudice to the fund and public considerations:
"(64) His Honour also considered that public considerations should be taken into account. These were identified in para (26) of the respondent's s 37 statement. There is a small financial prejudice to the fund. There is however a larger public consideration in that if the discretion is freely exercised in favour of late election applicants, then the stability and structure of the fund could be affected and furthermore those who fail to make an election because of their perception of time limits under the Act would be unfairly prejudiced."
RE CHARLES AND COMMISSIONER FOR SUPERANNUATION [1993] AATA 244; (1993) 18 AAR 61
81. Mr Charles was a rigger for Telecom Australia who worked in remote locations. He resigned in 1979 but had not decided that he would not return to Telecom. He completed a form S2A opting for a refund of contributions. He had no knowledge of any right to preserve benefits and was aware of the folklore that the sole option was return of contributions. He rejoined Telecom a year later and was not informed, nor did he inquire, about preservation or late election. He told the tribunal that, had he known it was an option, he would probably have elected to preserve his benefits. In 1991 he attended a seminar where he was alerted to late election and he made a prompt application to make a late election. The tribunal accepted that Telecom had pinned superannuation circulars on a noticeboard in Mr Charles's workplace. However, the tribunal saw these as "difficult to read ... unattractive documents". It said that only a "highly motivated and persistent [reader] would be likely to attempt (or to complete) this task".. "[E]ven then it [did] not convey the message, in simple language, that a resignee ha[d] an option to make an election to preserve his pension rights".
82. In short, the tribunal took account of the following in finding for Mr Charles:
* Mr Charles customarily worked in isolated areas.
* Mr Charles was under stress at the time of his resignation.
* No election information was given to Mr Charles when he separated from Telecom or when he returned.
* Mr Charles had been sent only one item about superannuation as part of the separation process. This was a memorandum attached to the form S2A stating, "enclosed is an application for refund of your accumulated contributions. Please complete and return to the Superannuation Clerk." As the tribunal put it, "The expert authority on superannuation, in effect, directed the applicant to sign the refund of contributions form and return it to Head Office".
* The applicant was not at fault. Any fault lay with the respondent which had not taken reasonable steps to advise the applicant adequately of his rights.
* The applicant had taken prompt action to seek a late election upon becoming aware of it as an option.
CHALK V COMMISSIONER FOR SUPERANNUATION (ABOVE)
83. Mr Chalk worked for Telecom Australia as a technician in a small town. A family crisis took him away from work for two years in 1974 to 1976. He bought a farm during the absence from Telecom. He was approached by Telecom to keep up his superannuation contributions during this period of extended leave but apparently declined to do so as he was "leaving anyway".. He resigned in 1976 for family reasons and advised Telecom where to send all moneys owing to him. He received his superannuation contributions in two instalments and used the first payment to help pay for the farm. The farm failed and Mr Chalk returned to Telecom in 1978. He learned of preservation in 1990 and acted promptly to make a late election to preserve his earlier benefits.
84. The tribunal upheld Comsuper's refusal to permit the late election. This was because Mr Chalk had shown no interest in continuing in the CSS in 1975 and 1976 when on leave. Additionally, he had made no inquiries about the CSS as part of his separation from Telecom. He had also used the superannuation moneys to help defray the debt he owed from buying the farm. It was said that his interest in superannuation arose only later in life when he realised he had made a mistake.
85. The Federal Court did not disturb the tribunal's decision. However, at pages 426-427 Davies J made the following comments of relevance to the issue of prejudice arising if a late election is allowed:
"Mr Chalk has in fact served approximately 35 years going back to 1957. If his service between 1957 and 1976 were not recognised, the employer could have an undue gain. The late return of the contributions may not be a matter of concern.. In his reasons for decision, the commissioner's delegate, Mr R C Whithear, who has had long experience in these matters, explained:
`If a late election is allowed, Mr Chalk will have had the use of his refunded contributions (or, at least, the net amount if any tax was paid on them) from 1976, and the Superannuation Fund will have been deprived of their use; and to that extent there is an element of advantage to him and of disadvantage to the fund in such a course. On the other hand, he will not have the advantage of receiving interest on his contributions over the period during which they were not in the fund.'
"Thus, because the moneys which would have to be repaid under s 138(11)(b) would not commence to accrue interest until repaid, it may be that no unfair advantage would result from a late election."
86. The issue of prejudice to the fund has arisen in several cases and decision-makers have tended to quote the above passage. In the later decision, Re Wolstencroft (above), a slightly different assessment came from the respondent. This is discussed below in paragraph 98.
COMMISSIONER FOR SUPERANNUATION V BOARDMAN (ABOVE)
87. Mr Boardman was an air traffic controller who resigned but rejoined the Department of Transport in 1979. He made a late election to preserve his superannuation benefits in 1990, acting promptly after discovering this as a possibility. Mr Boardman had worked as air traffic controller in Darwin from 1975 to 1977. He transferred to Adelaide but found himself pressured by domestic problems stemming from a child's medical condition and at work. He was downgraded for misidentifying one particular aircraft.
88. When electing to take a refund of contributions Mr Boardman was wrongly advised when he sought advice on the meanings of the three options on form S2A. He would have opted for preservation if correctly advised. He did not immediately put the refunded superannuation contributions into any business. They went into his savings account.
89. He was involved in the writing of books on superannuation. He ascertained the existence of the preservation option in 1987 but it was only in 1990, when researching the second book, that he learned of the possibility of making a late election. He applied to make a late election after a delay of a month.
90. The court noted at pages 248-249 the following comments on any prejudice to the fund and prejudice to the public interest arising from recognition of late election:
"The only information on the topic is to be found in a statement in the reasons of the commissioner's delegate who rejected the respondent's application for a review of the original decision. The delegate said:
`If a late election is allowed, Mr Boardman will have had the use of his refunded contributions (or, at least, the nett amount if any tax was paid on them) from 1979 until the time he repays them, and the Superannuation Fund will have been deprived of their use; and to that extent there is an element of advantage to him and of disadvantage to the fund in such a course. On the other hand, he will not have the advantage of receiving interest on his contributions over the period during which they were not in the fund. Obviously, the cost to the Commonwealth in funding his preservation benefits will be no greater if he elects to preserve his rights now than if he had elected to preserve them in 1979. Disadvantage to the Commonwealth lies rather in the risk of encouragement being given to other members both to enjoy the advantage of having their contributions refunded and, later, to enjoy the advantages of preserved benefit, where the intention of parliament is clear that a final choice of one option or the other is to be made at the outset. This would produce an unanticipated charge on public revenue because those members initially chose a different form of benefit.'
"It is difficult to detect from this statement any significant financial prejudice to the fund, at least sufficient prejudice to amount to a substantial reason against allowing an extension of time. See also Chalk v Commissioner of Superannuation, per Davies J, at 13-14. As the statement indicates, a favourable exercise of the discretion would extend to the respondent the benefit of additional years of service, but this liability would have arisen in any event had the election been exercised in time. To grant the respondent the benefit of years of service actually performed is consistent with the policy and objects of the Act.
"The prejudice to the respondent and the public interest which the delegate seeks to identify is the risk of encouraging other people to make applications to have late elections recognised. Great care must be exercised in treating this argument as one against the exercise of the discretion. The object of the 21 day time limit in s 137(1) is to avoid risks of this kind. There is in the argument a risk of "double counting" the administrative disruption to the orderly running of the fund caused by late elections - first in requiring reasons why the prima facie time limit should be extended, and then in adding as a separate hurdle the risk of administrative disruption from too many applications. The time limit has its purpose, but the Act recognises that there will be deserving cases where fairness to the applicant requires that the time limit be relaxed. In such cases it is the policy of the Act, and the legal right of the applicant, to a favourable exercise of discretion under s 157 (1). If the proper application of s 157(1) to individual cases results in many people obtaining recognition of late elections, so be it, that is the law."
91. The tribunal held that Mr Boardman should be permitted to make his late election. The Federal Court of Australia upheld this decision. The tribunal notes that the following factors operated to Mr Boardman's advantage:
* He sought advice on the options listed in form S2A and was wrongly advised.
* He had no immediate use for the refunded superannuation contributions. This was said to indicate that he had no apparent reason to have opted for their return had he understood that an alternative was to preserve his benefit.
* He acted promptly upon finding out that he could apply to make a late election.
RE WARD AND COMMISSIONER FOR SUPERANNUATION (ABOVE)
92. Ms Ward worked for the Australian Bureau of Statistics ("ABS"). She resigned in August 1977 to look after two young children and find part-time work. The ABS could not provide part-time employment. She completed form S2A in the belief that she qualified only for a refund of contributions. She made no inquiries about her options. She intended to rejoin the APS when her children were older. She placed the returned contributions in a deposit account. This money was later used to purchase shares and the shares were then sold to help finance a land purchase.
93. Ms Ward was superannuation conscious. She took out a private superannuation cover in 1981. When she rejoined the APS in 1986 she opted to pay additional superannuation to maximise her ultimate benefit. She also asked intelligent questions of personnel staff calculated to ensure that she received her full entitlements. She asked about long service leave and other credits possibly carried over from her previous employment period in the APS.
94. In 1988 Ms Ward became aware that a late election to preserve her superannuation benefits was possible and she applied within a week to preserve her entitlements as at 1977.
95. The tribunal found in Ms Ward's favour on the following bases:
* She had an acceptable explanation for her delay in electing.
* There was no duty to inquire in the absence of knowledge that there were options applicable to her.
* She took prompt action when aware of her rights.
* The applicant had a demonstrated interest in maximising her access to superannuation.
RE WOLSTENCROFT AND COMMISSIONER FOR SUPERANNUATION (ABOVE)
96. The applicant worked for Telecom Australia and its predecessor, resigning in 1980 to work with his wife running a youth camp owned by them. Telecom told him that it would entertain an application by him to rejoin the organisation if he wished. He signed a form S2A thinking that he qualified only for a refund of contributions. The tribunal found that Telecom staff were extremely ignorant of preservation. Telecom had produced several books on conditions of employment which omitted reference to the preservation option. Telecom issued a personnel and industrial relations guideline in or before 1983 which referred only to refund of contributions as available to a person who resigned. The applicant used the funds to repay a loan to his family from his father- and mother-in-law.
97. Mr Wolstencroft rejoined Telecom in 1983. He elected to preserve his entitlements in 1990.
98. The tribunal decided that Mr Wolstencroft's late election should be recognised because of the following factors:
* Contrary to the holding of the learned Deputy President in Liddle (above), this tribunal held that form S2A was not sufficient to put an employee on notice that he or she should inquire further into the listed options.
* There was no duty of inquiry to be placed on an employee. At page 405 the tribunal said:
"The tribunal in Lamb quoted with approval from the reasoning in Re Boardman and Cmr for Superannuation [1993] AATA 211; (1993) 30 ALD 619; at 635-6, (48) and (49):
`(48) This tribunal is of the view that the nature of the superannuation legislation, and the poor level of knowledge among personnel staff as to superannuation rights, in particular as to preservation, which was clearly evidenced throughout these entire proceedings, is such that it is far too onerous to place any sort of "duty of inquiry" upon an applicant who has not been adequately informed or who, as in this case, has been misinformed as to their rights. Even when Mr Boardman became aware of preservation in 1987, we are of the view that the circumstances of this case are such that there was no duty on him to make further inquiries such as could have led him to the further discovery of late election. From the evidence presented to this tribunal, it is very likely that any efforts to obtain further information would have been thwarted by the severe lack of knowledge, even by the "experts" on this issue. We find that the applicant did not at any stage "sleep on his rights".`(49) We are of the view that employees who resign and are contributors to the CSS, should be given adequate information by personnel officers and that nothing less than an estimate of the benefits available at age 55 calculated in accordance with the example in A to Ex R2, and placed in front of the resigning employee would satisfy the criteria that a person be properly informed as to his or her rights.'
"The tribunal in Lamb pointed out that the appeal from the tribunal decision in Boardman was dismissed, and that von Doussa J said the tribunal had made no error of law: Commissioner for Superannuation v Boardman (1994) 50 FCR 236; at 251; [1994] FCA 1159; 33 ALD 569; at 583; [1994] FCA 1159; 123 ALR 239; at 254."
* The Comsuper circulars and manual were inadequate. The tribunal made the following criticisms at pages 395-396:
"(37) Attachment A to Ms Gibson's affidavit is a `Superannuation Manual FOR OFFICIAL USE ONLY Issue No 4 May 1979'[6].. It includes a copy of the Act and instructions. Those lengthy instructions at 9.19 and 11.18 do mention election for preservation of superannuation rights, but they are not easy to understand and not informative. Attachment B is an explanatory paper on the new scheme, circular 1976/8[7]. Under the heading `Resignation', para 15, it does mention the possibility `if the contributor is eligible and so elects' of:
(i) a preservation pension fully due on death or invalidity or at retiring age.
"The circular gives no explanation. It says nothing about the desirability of such a preservation as it allows the member to preserve employer contributions. Nor does it refer to the desirability of preservation for members who may rejoin the CSS, because of the increase preservation would have on the superannuation pension ultimately payable on retirement. The tribunal has not found and was not taken to anything relevant in attachments C[8] or D[9], both issued in 1976, save that the cover sheet to attachment D states:
The remaining paper No 7, which will cover preservation, will not be available for some time.
"(38) Attachment E[10] to Ms Gibson's affidavit is paper No 7 on preservation, which was issued in August 1978. It gives an explanation of the preservation election, but would be difficult for a person without superannuation expertise to follow. There is no simple statement that this could be the most desirable option for people resigning and leaving the scheme at a relatively young age to try alternative employment, but who may one day return to public employment and rejoin the scheme. Nor is there any table comparing the pension payable on retirement, if a person does or does not elect for preservation on resignation and later rejoins the CSS. Such a table was suggested by the tribunal in Re Boardman and Cmr for Superannuation [1993] AATA 211; (1993) 30 ALD 619. A comparative table was prepared in this matter, but only by the reconsideration delegate in July 1994: T33, p 84.
"(39) Attachment F[11] to Ms Gibson's affidavit is a circular 1978/S4 advising of the establishment of a superannuation advisory service `on a limited basis in each state capital city and Darwin'. The circular states in para 4:
`The advisory officers will not be able to undertake any individual superannuation counselling at present. The major responsibility for such counselling other than by the AGRBO itself remains with the personnel sections of departments and authorities.'
Paragraph 5 refers to a proposal that during the next 12 months there would be seminars on superannuation in each state for staff clerks and personnel officers.
"(40) Ms Gibson's affidavit does not prove that Mr Wolstencroft should have been aware of the preservation option. Nor does it establish that any staff within Telecom were aware of the information contained in manuals and staff circulars, even if they had been circulated by Comsuper."
* Guideline 1 could not be applied so as to mean that an employee who understood that he or she had no choice but to accept a refund of contributions had made an informed choice. The tribunal said the following about guideline 1 at page 406:
"(72) There are problems with guideline 1. First there is the issue of whether or not an informed decision was made. That should be decided on the evidence rather than according to any guideline. But more significantly, as Mr Moore submitted, there is no basis in the Federal Court decisions for imposing any expectation or obligation on employees who did not understand either that they had a choice, or what their choice was. It is difficult to suggest circumstances where it would be appropriate to take failure to make inquiries as signifying an informed choice. Certainly this is not such a situation."
* There was no "injustice to consolidated revenue" in the recognition of a late election. This brings in the respondent's explanation of any possible prejudice to the respondent or the fund from allowing a late election. As Mr Dubé explained in Wolstencroft (above) at pages 406-407, the relevant inquiry is into prejudice to Consolidated revenue:
"(74) Mr Dubé explained that in weighing the benefits to Mr Wolstencroft of exercising the discretion to recognise his late election against the disadvantage of doing so, the disadvantage is not to Comsuper or to an employer but to consolidated revenue. He said it would only be consolidated revenue that `might be seen as making some sort of benefit out of Mr Wolstencroft's misfortune. The moneys only get paid out of consolidated revenue when a benefit becomes payable': transcript p 92.
"(75) The superannuation scheme operates in the context of Commonwealth employment. The rights under the scheme are an incident of employment. It was suggested by the Federal Court in Chalk at FCR 156; ALD 426, that a decision-maker could think it fair to the employer and to the employee that the employee's benefit under the scheme should be calculated by reference to the totality of his service and the totality of his contributions including any sums which must be refunded. We do think that is fair. Like Mr Chalk, Mr Wolstencroft has been a Telecom employee for a very long time, in fact even longer than Mr Chalk's 35 years. Mr Wolstencroft has been with Telecom or its predecessor and successor for almost 40 years, from February 1959-August 1980 (21 years) and February 1983 to date (18 years).
"(76) We do not see any injustice to consolidated revenue in the recognition of a late election. Mr Wolstencroft has paid superannuation contributions throughout those 39 years. Although the contributions for the first years were refunded to him he will have to refund them if his late election is recognised. He has been trying to do so for over 10 years.
"(77) There is no significant disadvantage to consolidated revenue. As the Federal Court explained in Chalk (see FCR 156-7; ALD 426-7), Mr Whithear, the Commissioner's delegate with long experience in these matters had acknowledged that a member whose late election is recognised does not receive interest on contributions during the period the contributions were not in the fund. Davies J said (at FCR 157; ALD 427), ` ... because the moneys which would have to be repaid ... (do not) accrue interest until repaid it may be, that no unfair advantage would result from a late election'.. We find that is the situation here. On the other hand an unfair disadvantage, or as Mr Dubé said, `a misfortune' would accrue to Mr Wolstencroft, if his late election were not recognised so as to allow him to receive recognition of all his years of employment and contribution to the superannuation scheme."
* There was evidence that the applicant retained his contacts with Telecom even after resignation. For example, he retained membership of the relevant union although no longer working in the industry.
* The applicant appears to have acted promptly in seeking a late election when becoming aware of it as an option.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
99. Relying on the legislation and the decided cases the tribunal regards the following as the relevant findings in Ms Reiffel's case.
100. The tribunal finds that Ms Reiffel was unaware of the potential applicability of a preservation option to someone in her situation when she resigned in 1980. This finding is based on Ms Reiffel's own evidence before the tribunal. There was no evidence adduced that challenged Ms Reiffel's veracity on this point, although it did suggest that she had the means to be better informed and, arguably, should have been better informed for reasons that will be canvassed below.
101. On the same basis the tribunal finds that Ms Reiffel was similarly unaware of preservation as an option, and late election to preserve as an option, when she rejoined the APS in 1983.
102. The tribunal finds that Ms Reiffel became aware that preservation had in 1980 been an option for one of her age when she heard Mr Whalan speak in Jabiru in September 1990. The evidence before the tribunal suggests that she ascertained that she could make a late election through later discussions with others.
103. The tribunal finds that Ms Reiffel applied to make a late election to preserve her superannuation benefits on 12 August 1991 (T16, T17). The tribunal finds that this was an unusually lengthy period of delay, given her discovery of the relevance of preservation in September 1990. While there is no explicit evidence regarding when Ms Reiffel discovered that she had a right to apply for a late election, the tribunal considers that a person with Ms Reiffel's background in personnel administration, and acquaintance with a person such as Mr Whalan, would not have delayed long in seeking to ascertain whether late applications were accepted. In any event, the applicant's delay at this point in the process was replicated in her subsequent delay pursuing her claims. She delayed six years in seeking a reconsideration when her application for a late election was refused.
104. The tribunal finds that Ms Reiffel regarded a return to the APS as a definite option when she resigned to move into farming. The tribunal accepts Ms Reiffel's evidence on this point.
105. The tribunal finds on the basis of ex A4 that Ms Reiffel used the refunded superannuation amount as part payment for the farm purchased after she resigned. The tribunal finds, again on the basis of ex A4, that the applicant had no immediate use for the money when she received it and that its use to help pay for the farm was a step not taken out of necessity. This finding carries the implication that it is more likely than not that Ms Reiffel would have opted to preserve her benefits if she had been aware of the desirability of doing so in 1980.
106. The tribunal, however, on the same evidence finds that Ms Reiffel was not superannuation minded in the way that Ms Ward was in the Ward case (above), a factor that was to her advantage in that case in securing a late election. Ms Reiffel did not pursue private superannuation options or query the department she rejoined in 1982-1983 about accumulated entitlements.
107. The tribunal finds that in important respects Ms Reiffel was in a different position from the employees in the decided cases discussed earlier. Unlike them she had worked in a personnel area for 14 years by 1980. She was aware of preservation as a concept. This also distinguished her from the other employees in the decided cases. She was aware of literature on preservation held in her area and she was accustomed to handling superannuation inquiries, referring to experts in Comsuper if necessary. Her situation had some similarities to that of Ms Lander in Re Lander (above). The tribunal said of Ms Lander that she "had ample opportunities to make inquiries. It [was] not to the point to say ... that her hand was not held. There [were] matters in which a person in her position [was] expected to exercise some faculty of inquiry and judgment. She was an educated woman, clearly a hard and conscientious worker, a person without apparent health or language problems, a person located in Canberra ...".. This is a description that could readily be applied to Ms Reiffel.
108. The tribunal has noted the decisions such as those in Liddle (above) and Charles (above) where the tribunal considered that there was some obligation on the employer and/or Comsuper to explain to a departing employee his or her superannuation rights. However, in the present case the tribunal considers that Ms Reiffel was one of those officers in an employing organisation whose responsibility it was to know and advise other employees about superannuation rights. The tribunal finds that the fact that Ms Reiffel had a duty to inform herself of superannuation entitlements negates any notion of an obligation owed to her by Comsuper or the Department of Productivity to explain her rights to her.
109. In a related way the tribunal has noted such decisions as Ward (above) and Wolstencroft (above) in which it was said that there was no duty on an employee to inquire about his or her superannuation entitlements if he or she were ignorant of preservation. Again the tribunal finds that these decisions have no application in Ms Reiffel's case. She was aware of the existence of preservation and she had means of easy access to reliable information.
110. The tribunal has noted the tribunal's negative assessment of the official circulars and manuals on superannuation options presented in the Wolstencroft decision (above) and endorses much of it. However, the tribunal considers that the observations in that case apply with little (if any) force in the instant case in view of Ms Reiffel's duty to those working in the Department of Productivity to know and advise her fellow employees on superannuation rules.
111. Finally, the tribunal agrees with earlier authorities that there would be no significant prejudice to Comsuper, the CSS or consolidated revenue to permit Ms Reiffel to make a late election in this case. However, the tribunal considers that this would be a high water mark in the decided cases if Ms Reiffel were permitted to exercise a late election. The tribunal would be excusing Ms Reiffel from a failure to take proper care of her own interests when she was in a prime position to know and take care of them. It would also be excusing her for a delay in 1990-1991 in applying to make a late election that appears to have been longer than in other cases where a late election was allowed. The tribunal considers that there would, in the words of the cases on extensions of time more generally, be a wider prejudice to the general public from granting the late election.
112. The tribunal has not had recourse to the guidelines in making its findings. The tribunal has preferred to rely on the case law and, in any case, could see nothing in the guidelines, in the context of the present case, that might assist Ms Reiffel.
CONCLUSION
113. The tribunal has decided that the decision of the Commissioner for Superannuation to refuse to allow Ms Reiffel to exercise a late election to preserve her superannuation benefits was the correct or preferable decision in the circumstances of this case.
DECISION
114. The tribunal affirms the decision under review.
I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr M J Sassella, Senior Member
Air Marshall I B Gration AO, Member
Dr M D Miller AO, Member
Signed: .......................................................................................
D Reed Associate
Date of hearing 2 December 2002
Date of decision 5 March 2003
Counsel for the applicant Mr H Selby
Solicitor for the applicant Pamela Coward & Associates
Counsel for the respondent Mr B Dubé
Solicitor for the respondent Australian Government Solicitor
[1] http://www.austlii.edu.au/au/legis/cth/consol_act/sa1976195/
[2] Comsuper was preceded by the Australian Government Retirement Benefits Office ("AGRBO"). The APS superannuation entity, however it was designated at any time, is referred to in these reasons as Comsuper for the sake of simplicity.
[3] A third child was born in February 1982.
[4] Equal employment opportunity.
[5] Mr Dubé informed the tribunal that preservation had been introduced in 1971 for public servants who had contributed to the earlier scheme for 10 years or more.
[6] Ex R2, annex A and R3 in the present application is the same manual.
[7] Ex R2, annex B in the present application is the same document.
[8] Ex R2, annex C in the present application is the same document.
[9] Ex R2, annex D in the present application is the same document.
[10] Ex R2, annex E in the present application is the same document.
[11] Ex R2, annex F in the present application is the same document.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2003/210.html