Commonwealth Numbered Regulations - Explanatory Statements

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SUPERANNUATION (CSS) PRODUCTIVITY EMPLOYEE INCLUSION DECLARATION NO. 2 1994 NO. 29

STATUTORY RULES 1994 No. 29

Issued by the authority of the Minister for Finance

Superannuation Act 1976

Declaration under section 110F

The Superannuation Act 1976 (the 1976 Act) provides for a superannuation scheme for Commonwealth employees and certain other persons. That scheme is referred to as the Commonwealth Superannuation Scheme (the CSS).

The Superannuation Guarantee (Administration) Act 1992 (the SG Act) provides for employers to provide a minimum level of employer superannuation support for employees with effect from 1 July 1992.

To assist employers whose staff are members of the scheme under the 1976 Act to provide for the minimum level of superannuation provided for in the SG Act the 1976 Act was amended, with effect from 1 July 1992, to provide for a superannuation guarantee top-up benefit (the top-up benefit) for members of the CSS in certain circumstances.

Section 110SE of the 1976 Act provides for the top-up benefit and is provided only for members who have productivity contributions paid in respect of them by their employer either to the CSS or to another superannuation scheme applying to them for the provision of productivity benefits.

Since 1 July 1990 employers of productivity employees have been required to pay productivity contributions in respect of their employees to the scheme under the 1976 Act. A "productivity employee" is defined in section 110A of the 1976 Act and does not include persons mentioned in subparagraphs (a)(i), (ii), (iii) and (iv) of the definition but does include persons in respect of whom a declaration is in force under section 110F of the 1976 Act.

Section 110F of the 1976 Act provides that the Minister for Finance may declare a member of the CSS who is described in subparagraph (a)(i), (ii) or (iii) of the definition of productivity employer to be a productivity employee for the purposes of Part VIA of the 1976 Act. Section 110F of the 1976 Act also provides that a declaration under the section takes effect from such day, not earlier than 1 July 1990, as is specified in the declaration.

Persons excluded by subparagraph (a)(ii) of the definition of productivity employee in section 110A of the 1976 Act includes members of the scheme under the 1976 Act who are employees of a State or a State authority. The Legal Aid Commission of New South Wales has requested that they be entitled to pay productivity contributions to the scheme so that employees may be covered for the SG top-up benefit. It is appropriate for CSS members to be covered for the SG top-up benefit to ensure that employers whose staff are members of the scheme do not have a superannuation guarantee shortfall in respect of those employees.

The declaration will allow the payment of productivity contributions in respect of certain employees previously excluded from the productivity benefit arrangements in the 1976 Act and assist the Legal Aid Commission of New South Wales to fulfil its obligations under the SG Act.

The Declaration takes effect from 1 July 1992 being the date of commencement of the superannuation guarantee arrangements and the top-up benefit arrangements in the 1976 Act.

The Declaration is made in respect of employees of the Legal Aid Commission of New South Wales and imposes a liability on the Commission. The Commission has indicated its acceptance of the liability, including the retrospective application, as its preferred means of meeting its Superannuation Guantantee obligations.

Section 110G provides that a declaration under section 110F of the Act is a statutory rule for the purposes of the Statutory Rules Publication Act 1903 and a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.