Commonwealth Numbered Regulations - Explanatory Statements

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SUPERANNUATION (PSS) MEMBERSHIP INCLUSION DECLARATION 1995 NO. 79

EXPLANATORY STATEMENT

STATUTORY RULES 1995 No. 79

Issued by the authority of the Minister for Finance

Superannuation Act 1990

Declaration under paragraph 6(1)(j)

The Superannuation Act 1990, (the 1990 Act) makes provision for and in relation to an occupational superannuation scheme for persons employed by the Commonwealth and certain other persons. The scheme is referred to in the 1990 Act as the Superannuation Scheme but is commonly known as the Public Sector Superannuation (PSS) scheme.

Section 6 of the 1990 Act specifies the persons who may be members of the PSS scheme. In accordance with paragraph 6(1)(j), a person declared by the Minister for Finance to be. a person to whom section 6 applies is a member of the PSS scheme.

Section 45 of the 1990 Act provides that such a declaration is a disallowable instrument for the purposes of the Acts Interpretation Act 1901 and a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903.

The Declaration contained in the Statutory Rule and cited as "Superannuation (PSS) Membership Inclusion Declaration" simplifies and updates the existing membership inclusion arrangements by providing for the repeal of all existing Superannuation (PSS) Membership inclusion Declarations and incorporating the relevant provisions of those Declarations in a single instrument.

The Declaration does not alter arrangements for those persons described in the former Membership Inclusion Declarations who continue to be covered by the current Declaration. Some existing Declarations or provisions of existing Declarations have not been included either because they no longer apply or are no longer relevant.

It is intended that future membership inclusions will be provided through amendments to this Declaration.

The details of the effect of the Declaration are explained in the attachment.

This Declaration commences on gazettal.

ATTACHMENT SUPERANNUATION (PSS) MEMBERSHIP INCLUSION DECLARATION

CLAUSE 1

This clause provides that the Declaration may be cited as Superannuation (PSS) Membership Inclusion Declaration (the Principal Declaration).

The former Membership Inclusion Declarations included a sequential number in their citation. The last Declaration made was the Superannuation (PSS) Membership Inclusion Declaration No. 14. As the Principal Declaration will be modified, as required, by future declarations the mode of citation has been made consistent with that applicable to Regulations.

CLAUSE 2

Subclause 2(1) defines terms commonly used in the Principal Declaration.

The membership inclusions generally do not permit membership of the Superannuation Scheme (the PSS) where a person would otherwise be simultaneously a member of another employment related superannuation scheme such as a State superannuation scheme or an alternative superannuation scheme as defined in subclause 2(1).

•       an alternative superannuation scheme is defined to include a superannuation scheme other than:

-       the PSS;

-       a scheme that is established to provide a benefit equivalent to the minimum level of employer superannuation support envisaged in the Superannuation Guarantee (Administration) Act 1992 (described by reference to the interim benefit referred to in the Superannuation (Productivity Benefit) Act 1988); or

-        the scheme provided for by the Superannuation Act 1976 (known as the CSS) in relation to other employment in which the member is engaged.

-       a scheme in respect, of a prescribed person (defined in subclause 2(1)), where, under subclause 2(2), that person is taken to be a member of the scheme for top up purposes.

•       a prescribed person is defined as a person whose terms and conditions of employment allow them to choose to take part of their remuneration in a non-monetary form which could include a top up arrangement (defined in subclause 2(1)).

•       a State superannuation scheme is defined to mean a superannuation scheme established under the law of a State or Territory and which applies to persons employed in, or appointed to, the Public Service, or any other service, of the State or Territory. A State superannuation scheme does not include:

-       a scheme in respect of a prescribed person (defined in subclause 2(1)), where, under subclause 2(2), that person is taken to be a member of the scheme for top up purposes.

•       a "top-up arrangement" is defined as an arrangement whereby the employer of a PSS member pays contributions to a superannuation scheme other than the PSS on behalf of another person and those contributions are part of the member's overall remuneration package. This is intended to describe a salary sacrifice arrangement available to certain employees who are able to choose to direct part of their pre tax remuneration to be paid to a superannuation scheme.

Subclause 2(2) provides that a person is taken to be a member of a superannuation scheme for top up purposes if they are a member of that scheme only because of a top up arrangement or because of a top up arrangement and one or more of certain other prescribed circumstances.

CLAUSE 3

Subclause 3(1) provides that persons described in the Schedule to the Declaration are members of the PSS.

Subclause 3(2) provides that membership of the PSS for persons described in item 8 of the Schedule (which refers to certain employees of Australian Meat Technology Pty Limited (AMT)) is contingent on a controlling interest being held in AMT by one or more of the following:

•       the Commonwealth (or it nominees); or

•       an authority or body established for a public purpose by or under a law of the Commonwealth;

•       a company or other body corporate, in which one of the above has a controlling interest.

CLAUSE 4

This clause repeals all existing Superannuation (PSS) Membership Inclusion Declarations. Those Declarations which continue to be relevant have been incorporated into the Principal Declaration.

The provisions of certain former Declarations have not been incorporated in this Declaration. They are:

•       Statutory Rules 1991 No 419 and 1992 No 318 which related to employees of the Dairy Research and Development Corporation. There is no longer any need for these Declarations because the Corporation was made an approved authority for the purposes of the PSS by Superannuation (PSS) Approved Authority Inclusion Declaration No.7 (SR 1992 No. 106). Membership of the PSS is available to staff of approved authorities.

•       Statutory Rules 1993 No 124 which related to employees of the Fisheries Research and Development Corporation. There is no longer any need for this declaration because the Corporation was made an approved authority for the purposes of the PSS by Superannuation (PSS) Approved Authority Inclusion Declaration No. 9 (SR 1992 No. 446). Membership of the PSS is available to staff of approved authorities.

•       Statutory Rules 1992 No 420 provided for certain persons in receipt of mobility allowance pursuant to a determination under section 82D of the Public Service Act 1922. It is not necessary to continue this provision as the determination was never made and alternative arrangements have superseded the proposed mobility allowance arrangements.

Also items 6, 7 and 8 which deal with classes of persons previously included in Statutory Rules 1994 Nos. 16 and 117 no longer require contributions to have been paid before the items can apply to those persons. This requirement was inserted in the former declarations which had retrospective effect to avoid the possible application of subsection 48(2) of the Acts Interpretation Act 1901.

The requirement related only to those persons who became members because of the retrospective effect of the declarations. Subsection 48(2) of that Act provides that an instrument (including Disallowable instruments by virtue of section 46A) which is made with retrospective effect will have no effect if it affects the rights of a person so as to disadvantage them or imposes liabilities on anyone other than the Commonwealth or a Commonwealth authority.

The Senate Standing Committee on Regulations and Ordinances expressed belief in respect of a retrospective declaration made under the definition of temporary employee (and which contained similar requirements to the above Statutory Rules in respect of the payment of contributions by or on behalf of persons affected by the retrospectivity) that the declaration may still be made void by the provisions of the Acts Interpretation Act 1901 in respect of those provisions. As a result, section 90 of the Superannuation Legislation Amendment Act 1994 (SLA Act 1994) amended the 1990 Act to permit certain declarations to be made with retrospective effect including declarations under paragraph 6(1)(j). Subsection 90(2) of the SLA Act 1994 confirmed the validity of retrospective declarations made before the commencement of that provision. This provision removed any need for certain retrospective declarations including Membership Inclusion Declarations to require that contributions had been paid by or on behalf of the member before the declaration could take effect.

SCHEDULE

This describes persons to whom section 6 of the 1990 Act applies and are therefore PSS members.

Items 1 and 2

Items 1 and 2 include as PSS members certain persons employed by the Australian Securities Commission (ASC) (which commenced on 1 January 1991) who transferred to the ASC from the Corporate Affairs Commissions of the Northern Territory and the States. Item 1 includes certain temporary employees of the ASC by providing that a person who:

•       is a temporary employee of the Australian Securities Commission (ASC) appointed or employed in accordance with a direction under section 81B of the Public Service Act 1922;

•       was a member of a State superannuation scheme immediately prior to being appointed to, or commencing employment with the ASC;

is a member if he or she elects to become a member.

Item 2 includes certain persons who hold office as a Regional Commissioner of the ASC by describing a person who:

•       is employed under subsection 120(3) of the Australian Securities Commission Act 1989 and who is a Regional Commissioner under section 96 of that Act; and

•       elects to become a member.

Item 3

Item 3 ensures continued PSS membership for certain persons employed at repatriation hospitals and other repatriation institutions where those hospitals and institutions were transferred to State control. Persons included in this provision continue to be members of the PSS, subject to satisfactory arrangements for the payment of employer superannuation costs by the States.

This item includes certain persons by describing a person who is taken to have resigned from the Australian Public Service by force of subsection 15(2) of the Repatriation Institutions (Transfer) Act 1992 on the day a State or an authority of a State commenced operation of a repatriation institution. and

•       who, on the preceding day, was a PSS member or had made an election to transfer from the CSS to the PSS; and

•       who continues in acceptable employment as prescribed in that Act.

This Item excludes a person who is a member of a State superannuation scheme or a person in respect of whom the Minister certifies there are unsatisfactory arrangements for the payment of employer contributions.

Item 4

Item 4 provides for continued PSS membership for certain employees of the Northern Land Council. The Northern Land Council is an Aboriginal Land Council established under the Aboriginal Land Rights (Northern Territory) Act 19 76

Item 4 includes as a member a person who:

•       is an employee of the Northern Land Council; and

•       who immediately before becoming an employee of the Council was a PSS member or had made an election to transfer from the CSS to the PSS.

This item excludes a person who:

•       is a member of an alternative superannuation scheme; or

•       is a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies (who would be members by virtue of paragraph 6(1)(h) of the 1990 Act).

Item 5

Item 5 provides for continued membership for certain persons employed by the Australian National University following its amalgamation with the Canberra Institute of the Arts on 1 January 1992. This, item applies to a person described as a person who:

•       was a member of the PSS on 31 December 1991 and was employed by the Canberra Institute of the Arts on that day; and

•       became employed by the Australian National University on the following day (when the Institute and the University amalgamated) and continues to be employed by that University.

This item excludes a person who is a member of the Superannuation Scheme for Australian Universities unless, in respect of a prescribed person, membership of that scheme is for top up purposes or membership of that scheme occurs in certain circumstances while on leave without pay.

Items 6 and 7

Items 6 and 7 include as PSS members certain persons employed by the Australian Wool Research and Promotion Organisation (AWRPO) and Wool International as a result of the transfer of staff from the Commonwealth's three former wool organisations effective from 1 December 1993.

Item 6 describes a person employed by AWRPO who:

•       is the Managing Director or an employee of AWRPO;

•       became the Managing Director or an employee because of subsection 36(1) of the Wool Legislation (Repeals and Consequential Provisions) Act 1993;

•       on the day preceding the commencement of that Act, was a PSS member or had made an election to transfer from the CSS to the PSS; and

•       before 15 February 1994, being the date of gazettal of Statutory Rules 1994 No. 16 (which contained Membership Inclusion Declaration No. 11 and which permitted PSS membership for such persons), elected to continue to be a member of the PSS;

Item 7 describes a person employed by Wool International who:

•       is the Chief Executive or an employee of Wool International;

•       immediately before becoming such a person and since the commencement of the Wool Legislation (Repeals and Consequential Provisions) Act 1993 had been the Managing Director or an employee of the AWRPO because of subsection 36(1) of that Act;

•       on the day preceding the commencement of that Act, was a PSS member or had made an election to transfer from the CSS to the PSS; and

•       before 15 February 1994 elected to continue to be a member of the PSS;

Both items exclude a person who ceases to be employed by the respective body, who is a member of an alternative superannuation scheme or is a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies (who would be members by virtue of paragraph 6(1)(h) of the Act).

Item 8

Item 8 includes as PSS members certain persons employed by Australian Meat Technology Pty Limited (AMT) who were employed by CSIRO immediately before commencing employment with AMT. This item applies to a person who:

•       is an employee of AMT;

•       immediately before becoming an employee of AMT was an employee of the Commonwealth Scientific and Industrial Research Organisation;

•       immediately before becoming an employee of AMT was a PSS member or had made an election to transfer from the CSS to the PSS; and

•       if they became an employee of AMT before 3 May 1994, being the date of gazettal of Statutory Rules 1994 No. 117 (which contained Membership Inclusion Declaration No. 12 and which permitted PSS membership for such persons), elected to continue as a PSS member;

This item excludes a person who has ceased to be an employee of AMT or who is a member of an alternative superannuation scheme.


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