Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the law in relation to superannuation, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 11 Sep 2017
Introduced HR 11 Sep 2017
Table of contents.

2016‑2017

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Fair Work Amendment (Recovering Unpaid Superannuation) Bill 2017

 

No.      , 2017

 

(Ms Sharkie)

 

 

 

A Bill for an Act to amend the law in relation to superannuation, and for related purposes

  

  


Contents

1............ Short title............................................................................................. 1

2............ Commencement................................................................................... 1

3............ Schedules............................................................................................ 1

Schedule 1—Amendments                                                                                                2

Fair Work Act 2009                                                                                                     2

Superannuation Guarantee (Administration) Act 1992                                      5

Superannuation Industry (Supervision) Act 1993                                                7

Taxation Administration Act 1953                                                                           7

 

 


A Bill for an Act to amend the law in relation to superannuation, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Fair Work Amendment (Recovering Unpaid Superannuation) Act 2017.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this Act

1 July 2018.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments

  

Fair Work Act 2009

1  Section 12

Insert:

complying superannuation fund has the meaning given by the Superannuation Guarantee (Administration) Act 1992.

defined benefit superannuation scheme has the meaning given by the Superannuation Guarantee (Administration) Act 1992.

RSA has the meaning given by the Superannuation Guarantee (Administration) Act 1992.

2  After paragraph 61(2)(i)

Insert:

                            (ia)  superannuation contributions (Division 11A);

3  After Division 11 of Part 2‑2

Insert:

Division 11ASuperannuation contributions

123A  Application of this Division

                   This Division does not apply to an employer in respect of an employee who is a defined benefit member of a defined benefit superannuation scheme.

123B  Obligation to contribute the superannuation guarantee amount

             (1)  An employer must make a contribution to a complying superannuation fund or an RSA for each pay period for an employee, at least equal to the superannuation guarantee amount for the period.

             (2)  The contribution must be made within one working day after the end of the pay period.

             (3)  The contribution must be made in compliance with the choice of fund requirements under the Superannuation Guarantee (Administration) Act 1992.

             (4)  The superannuation guarantee amount for an employee for a period is worked out using the following formula:

where:

charge percentage for a pay period means the charge percentage under subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992 for:

                     (a)  if all of the pay period falls within a particular quarter—the quarter in which that pay period falls; or

                     (b)  if part of a pay period falls in one quarter and part in another—the quarter with the higher charge percentage.

123C  Requirement for notice outlining superannuation contributions

             (1)  An employer must give each employee, for each pay period for the employee, notice in accordance with this section setting out details of the superannuation contributions made by the employer for the benefit of the employee for the period.

             (2)  The notice must state:

                     (a)  whether the employer has made a superannuation contribution for the benefit of the employee for the pay period; and

                     (b)  if the employer has made a superannuation contribution for the benefit of the employee for the pay period:

                              (i)  the name of the superannuation fund to which the contribution was made; and

                             (ii)  the amount of the superannuation contribution made to the superannuation fund for the benefit of the employee for the pay period; and

                            (iii)  if the amount of the superannuation contribution made to the superannuation fund for the benefit of the employee for the pay period is less than the superannuation guarantee amount for the employee for the period—the amount of the shortfall; and

                            (iv)  the date on which the superannuation contribution was made; and

                     (c)  if the employer has not made a superannuation contribution for the benefit of the employee for the pay period or for any earlier pay period:

                              (i)  when the employer expects to make each such superannuation contribution; and

                             (ii)  the total amount of the superannuation contributions; and

                     (d)  if:

                              (i)  at the time notice was given under this section for an earlier pay period, the employer had not made a superannuation contribution for the benefit of the employee for the earlier pay period; and

                             (ii)  the employer has now made a superannuation contribution for the benefit of the employee for the earlier pay period; and

                            (iii)  the employer has not already given the employee notice under this section that includes information mentioned in paragraph (a) and (b) in relation to the earlier pay period;

                            the information mentioned in paragraph (a) and (b) in relation to the earlier pay period.

             (3)  The notice must be given to the employee no later than the time the employer gives the employee a pay slip relating to the pay period.

             (4)  The notice may be given in written or electronic form.

4  In the appropriate position in Schedule 1

Insert:

Part 7Amendments made by the Fair Work Amendment (Recovering Unpaid Superannuation) Act 2017

  

31  Application of amendments

                   The amendments of this Act made by the Fair Work Amendment (Recovering Unpaid Superannuation) Act 2017 apply to pay periods beginning on or after the commencement of this Part.

Superannuation Guarantee (Administration) Act 1992

5  After section 11

Insert:

11A  Interpretation: salary sacrifice arrangements

                   To avoid doubt, an amount that an employee contributes to a superannuation fund or an RSA account under a salary sacrifice arrangement:

                     (a)  is salary or wages paid by the employer to the employee at the time the contribution is made to the superannuation fund or the RSA account; and

                     (b)  is not a contribution to the superannuation fund or RSA account by the employer of the employee.

6  Subsection 27(2)

Repeal the subsection.

7  Subsection 32C(6)

Repeal the subsection, substitute:

Contributions under certain agreements and workplace determinations

             (6)  A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made:

                     (a)  under, or in accordance with:

                              (i)  a pre‑reform certified agreement; or

                             (ii)  an AWA; or

                            (iii)  a pre‑reform AWA; or

                            (iv)  a collective agreement; or

                             (v)  an old IR agreement; or

                            (vi)  an ITEA; or

                           (vii)  a workplace determination; or

                          (viii)  an enterprise agreement; or

                            (ix)  an award mentioned in paragraph 2(2)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or

                             (x)  a State reference transitional award or common rule; and

                     (b)  in respect of salary or wages paid before 1 July 2018.

Note:          A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.

8  At the end of Part 5

Add:

45  Review of compliance by employers with obligations relating to payment of superannuation

             (1)  The Commissioner must, as soon as practicable after the first anniversary of the commencement of this section, conduct a review of employers’ compliance with their obligations under this Act, and other relevant laws of the Commonwealth, relating to the payment of superannuation.

             (2)  The Commissioner must give the Minister a written report of the review.

             (3)  The report must include recommendations to the Commonwealth Government about strategies to improve employers’ compliance with their obligations under this Act, and other relevant laws of the Commonwealth, relating to the payment of superannuation.

             (4)  The Minister must cause copies of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.

Superannuation Industry (Supervision) Act 1993

9  After section 108A

Insert:

108B  Duty to notify members if expected contributions not received

             (1)  Each trustee of a superannuation entity must take reasonable steps to ensure that a member is notified if:

                     (a)  the superannuation entity could reasonably have expected to receive a contribution for the benefit of the member at a particular time; and

                     (b)  the superannuation entity does not receive the contribution by that time.

             (2)  The notice may be given by any means of communication (including by electronic means).

             (3)  The notice must be given no later than 28 days after the day the superannuation entity could reasonably have expected to receive the contribution.

             (4)  A trustee commits an offence if the trustee contravenes subsection (1).

Penalty:  100 penalty units.

Taxation Administration Act 1953

10  After subsection 390‑5(9) in Schedule 1

Insert:

       (9AA)  The *approved form must require the statement to contain sufficient information to allow the Commissioner to identify:

                     (a)  each employer who has made a contribution to the *superannuation plan for the individual during the period; and

                     (b)  the amount contributed to the superannuation plan for the individual by each employer during the period; and

                     (c)  if an amount is contributed to the superannuation plan for the individual by an employer during the period under an industrial instrument—the amount contributed under the industrial instrument; and

                     (d)  the amount of any voluntary contribution to the superannuation plan by the individual.

11  Subsection 390‑5(10) in Schedule 1

Omit “Subsection (9) does not”, substitute “Subsections (9) and (9AA) do not”.

12  Application

The amendments of section 390‑5 in Schedule 1 to the Taxation Administration Act 1953 made by this Schedule apply in relation to periods specified under subsection (6) of that section that begin on or after the commencement of the Schedule.