SUPERANNUATION (PSS) MEMBERSHIP INCLUSION DECLARATION (AMENDMENT) 1998 NO. 95

Commonwealth Numbered Regulations - Explanatory Statements

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SUPERANNUATION (PSS) MEMBERSHIP INCLUSION DECLARATION (AMENDMENT) 1998 NO. 95

EXPLANATORY STATEMENT

STATUTORY RULES 1998 NO. 95

Issued by the authority of the Minister for Finance and Administration

Superannuation Act 1990

Declaration under paragraph 6(1)(j)

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

Section 6 of the 1990 Act specifies the persons who are, or who may be, members of the PSS. In accordance with paragraph 6(1)(j), a person declared by the Minister for Finance and Administration to be a person to whom section 6 applies is a member of the scheme. Declarations made under paragraph 6(1)(j) are contained in the Superannuation (PSS) Membership Inclusion Declaration (the Principal Declaration).

Section 45 of the 1990 Act provides that a declaration under paragraph 6(1)(j) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903.

Subsection 45(4) of the 1990 Act provides that a declaration under paragraph 6(1)(j) may be expressed to have taken effect from and including a day not earlier than 12 months before the making of the declaration. However, subsection 45(5) of the 1990 Act provides that, where contributions have been accepted from a person to whom such a declaration is to apply, the declaration may take effect on a day not earlier than the earliest day on which contributions were so accepted.

The 1990 Act provides for continuity of PSS membership when a scheme member changes employment in a number of circumstances including where, in respect of the new employment, the person is included in a class of persons specified in the Principal Declaration.

The Declaration contained in the Statutory Rule and cited as "Superannuation (PSS) Membership Inclusion Declaration (Amendment)" amends the Principal Declaration to enable certain employees of the Australian Law Reform Commission, Medibank and Employment National (Administration) Pty Ltd to remain or become members of the PSS.

Australian Law Reform Commission

The Declaration amends the Principal Declaration to legitimise the PSS membership of certain employees of the Australian Law Reform Commission (ALRC) who have been treated as if they were PSS members when no membership arrangements were in place.

These employees were either PSS members when they were employees of the Law Reform Commission (LRC) and automatically became ALRC employees when the ALRC was established as a separate entity, by the Australian Law Reform Commission Act 1996, on 11 November 1996 to perform the functions formerly undertaken by the LRC, or persons who became employees of the ALRC on or after 11 November 1996 and have become, or sought to become PSS members. Although these employees have paid member contributions to the PSS and the ALRC has paid employer contributions to the Commonwealth in respect of them, no legislative provision was made to provide PS S membership as a result of the change of employer.

The Declaration legitimises the assumed PSS membership of those ALRC employees and applies from the commencement of their employment with ALRC on 11 November 1996. These employees are able to continue as PSS members while they are employed by ALRC unless they become members of another specified superannuation scheme relating to that employment.

The provisions of the Declaration that give effect to this intention are taken to have commenced on 11 November 1996, the day on which ALRC was established and transferees from LRC who were PSS members commenced their new employment.

Medibank

Medibank Limited was established by the Health Insurance Commission (Reform and Separation of functions) Act 1997 as a subsidiary of the Health Insurance Commission and registered under the Corporations Law as a Company on 1 December 1997. Medibank Limited changed its name to Medibank Private Limited on 1 March 1998. This body is referred to as Medibank in the Declaration.

The Declaration amends the Principal Declaration to enable PSS members who become employees of Medibank to be treated as PSS members while they are employed by Medibank unless they are members of another specified superannuation scheme relating to that employment. Certain inactive PSS members, eg, persons with PSS preserved benefits, are also able to recommence active membership if they join Medibank, provided they previously ceased active membership before 1 July 1998.

The provisions of the Declaration that give effect to this intention are taken to have commenced on 1 December 1997, the day on which Medibank was established.

Employment National (Administration) Ply Ltd

The Declaration amends the Principal Declaration to provide continuing PSS membership for certain employees of the Department of Employment, Education, Training and Youth Affairs who transferred on 1 May 1998 to Employment National (Administration) Pty Ltd. These transferees are able to continue as PSS members while they are employed by Employment National (Administration) Pty Ltd unless they become members of another specified superannuation scheme relating to that employment.

The provisions of the Declaration that give effect to this intention are taken to have commenced on 1 May 1998, being the date of transfer of staff from that Department to Employment National (Administration) Pty Ltd.

The retrospectivity of the Declaration does not contravene subsection 48(2) of the Acts Interpretation Act 1901 in that the rights of employees are not affected in a manner prejudicial to them nor are liabilities imposed on them.

Details of the amendments are explained in the Attachment.

ATTACHMENT

SUPERANNUATION (PSS) MEMBERSHIP INCLUSION DECLARATION (AMENDMENT)

Clause 1

Clause 1 provides for the commencement dates of the individual amendments.

* Clauses 1 and 2 and the amendments in relation to the Australian Law Reform Commission (ALRC) are taken to have commenced on 11 November 1996 (subclause 1.1);

* The amendments in relation to Medibank are taken to have commenced on 1 December 1997 (subclause 1.2);

* The amendments in relation to Employment National (Administration) Pty Ltd. are taken to have commenced on 1 May 1998 (subclause 1.3).

Clause 2

Clause 2 provides that the Superannuation (PSS) Membership Inclusion Declaration (the Principal Declaration) is amended as set out in the Declaration.

Clause 3

Clause 3 provides a definition of Medibank.

Clause 4

Clause 3 of the Principal Declaration provides that section 6 of the 1990 Act applies to persons described in the Schedule. Subclause 3(2) of the Principal Declaration fixes a time when section 6 ceases to apply to certain persons.

In relation to the new classes of persons employed by ALRC included in section 6 by the Declaration, clause 4 of the Declaration fixes the time as the earliest of..

(a) the day on which the person ceases to be employed by ALRC; or

(b) the day immediately before the person joins another superannuation scheme in relation to that employment, other than a scheme relating only to performance pay superannuation or for top-up purposes.

In relation to the new classes of persons employed by Medibank and Employment National (Administration) Pty Ltd included in section 6 by the Declaration, clause 4 of the Declaration fixes the time as the earliest of:

(a) the day on which the person ceases to be employed by Medibank or Employment National (Administration) Pty Ltd; or

These provisions are included in subclause 4.2 which inserts subclause 3(6) in relation to ALRC, subclause 4.3 which inserts subclause 3(7) in relation to Medibank and subclause 4.4 which inserts subclause 3(8) in relation to Employment National (Administration) Pty Ltd. Subclause 4.1 makes consequential changes to subclause 3(1).

Clause 5

Clause 5 amends the Schedule to the Principal Declaration which prescribes classes of persons to which section 6 of the Superannuation Act 1990 (1990 Act) applies.

The new classes of persons included in the Schedule by Clause 5 are:

(a) persons who became employees of ALRC on 11 November 1996 who were PSS members employed by the Law Reform Commission (LRC) immediately before that date and who continued to contribute to the PSS after commencing employment with ALRC.

The class does not include a person who is a member of a superannuation scheme in relation to employment with ALRC, other than a scheme relating only to performance pay superannuation or a "top-up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 6).

[New item 13 inserted by subclause 5.1 of the Declaration].

(b) persons who, on or after 11 November 1996, commenced employment with ALRC and elected to join the PSS and have made contributions to the scheme as if they were members of the scheme, while not entitled to contribute.

The class does not include a person who is a member of a superannuation scheme in relation to employment with ALRC, other than a scheme relating only to performance pay superannuation or a "top-up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 6).

[New item 14 inserted by subclause 5.2 of the Declaration].

(c) persons who, on or after 1 December 1997, became or become employees of Medibank, and were or are, immediately before becoming employed by Medibank either:

* members of the PSS; or

* people who had preserved benefits in the PSS.

The class does not include a person who is a member of a superannuation scheme in relation to employment with Medibank other than a scheme relating only to performance pay superannuation or a "top-up arrangement",. or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 6).

[New item 15 inserted by subclause 5.3 of the Declaration].

(d) persons who on 1 May 1998 became employees of Employment National (Administration) Pty Ltd and immediately before that day were employees of the Department of Employment, Education, Training and Youth Affairs.

The class does not include a person who is a member of another superannuation scheme in relation to employment with Employment National (Administration) Pty Ltd other than a scheme relating only to performance pay superannuation or a "top-up arrangement", or a person who is covered by the "mobility provisions" contained in Division 2 or 3 of Part IV of the Public Service Act 1922 (who are automatically covered by section 6).

[New item 16 inserted by subclause 5.4 of the Declaration].

The meaning of the term "top-up arrangement" is given by subclause 3(3) of the Principal Declaration.