Statutory Rules 1993 No. 3531
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Superannuation (Former Provident Account Contributors) Regulations2 (Amendment)
I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Superannuation Act 1976.
Dated 15 December 1993.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
RALPH WILLIS
Minister for Finance
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1. Commencement
1.1 Regulation 3 is taken to have commenced on 18 December 1992.
[NOTE: The remainder of these Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]
2. Amendment
2.1 The Superannuation (Former Provident Account Contributors) Regulations are amended as set out in these Regulations.
3. Schedule (Modifications of the Act in the application of the Act in relation to certain persons to whom section 183 of the Act applies)
3.1 Omit the modifications of section 62, substitute:
“62 Omit subsection (2), substitute:
‘(2) Subject to section 62b, where a person makes an election under subsection (1), being a person who ceases to be an eligible employee before 1 July 2000, the person is entitled, instead of his or her entitlement to a pension and lump sum benefit under section 55 or 59, to the sum of the amount of the person’s accumulated supplementary contributions (if any) and:
(a) except where paragraph (b) applies—to payment of a lump sum benefit of the sum of an amount equal to 3.5 times the amount of the person’s accumulated basic contributions; or
(b) if, in the circumstances in which the person ceased to be an eligible employee, the person would, for the purposes of section 82 of the superseded Act, have been regarded as having had his or her services terminated owing to retrenchment if that section had continued to apply to the person and he or she had not previously been paid a sum under subsection 82 (2) of the superseded Act—to payment of a lump sum benefit of an amount equal to whichever is the greater of:
(i) an amount calculated in accordance with paragraph (a); or
(ii) an amount calculated in accordance with subsection (3).’.
“Omit from paragraph (2a) (a) all the words from and including ‘the sum of:’ to the end of the paragraph, substitute:
‘the sum of the amount of the person’s accumulated supplementary contributions (if any) and:
(i) except where subparagraph (ii) applies—a lump sum benefit of the sum of an amount equal to 3times the amount of the person’s accumulated basic contributions; or
(ii) if, in the circumstances in which the person ceased to be an eligible employee, the person would, for the purposes of section 82 of the superseded Act, have been regarded as having had his or her services terminated owing to retrenchment if that section had continued to apply to the person and he or she had not previously been paid a sum under subsection 82 (2) of the superseded Act—a lump sum benefit of an amount equal to whichever is the greater of:
(a) an amount calculated in accordance with subparagraph (i); or
(b) an amount calculated in accordance with subsection (3); or’.
“After subsection (2a), insert:
‘(3) The amount referred to in subparagraph 62 (2) (b) (ii) and sub-subparagraph 62 (2a) (a) (ii) (b) is:
(a) in the case of a person who is, or has been, an approved part-time employee—either:
(i) the amount calculated in accordance with the following formula:
; or:
(ii) the amount calculated in accordance with the following formula:
;
whichever is the greater amount, where:
A is an amount equal to the person’s final annual rate of salary;
B is the number of complete years included in the person’s period of contributory service, within the meaning of the Superannuation (Approved Part-time Employees) Regulations;
C is the number of complete years included in the person’s period of employment within that meaning;
D is the number of days in the person’s period of contributory service within that meaning;
E is the number of days in the person’s period of employment within that meaning; or
(b) in any other case—one half of the amount per annum of the person’s final annual rate of salary.’.”.
3.2 Inserted section 80a:
Renumber as section 80ab.
3.3 Inserted section 130a:
Omit all words from and including “there is payable”, substitute:
“there is payable to or in respect of the person, unless he or she becomes entitled to benefit under section 197, an additional lump sum benefit of an amount equal to the total of:
(c) an amount equal to the portion of the amount referred to in paragraph (a) that was payable to the person, whether or not he or she engaged in further employment, on the termination of his or her previous employment under a superannuation scheme applicable to that employment; and
(d) the amount that would have accrued by way of interest on the amount first referred to in paragraph (c) if it had been paid into the Fund on the later of:
(i) 1 July 1976; or
(ii) the day on which the amount referred to in paragraph (a) was paid to the Commonwealth.”.
3.4 Modifications of section 136 (first modification):
Omit the inserted subsection (2aa), substitute:
“(2aa) If a deferred benefit by way of lump sum benefit is payable in accordance with section 197, 200 or 201 to a person other than a former eligible employee with benefits from previous employment, the amount of the benefit is an amount equal to the sum of:
(a) 3 times the person’s accumulated basic contributions; and
(b) the person’s accumulated supplementary contributions (if any); and
(c) if:
(i) an event mentioned in subsection 139AA (2) has happened in relation to the person before the day on which the deferred benefit becomes payable, or happens on that day; or
(ii) the amount of the person’s accumulated employer contributions is less than $500;
the person’s accumulated employer contributions (if any).”.
3.5 Modifications of section 136 (fourth modification):
Renumber the inserted subsection 136 (2ba) as subsection 136 (2baa).
3.6 Modification of Part XII:
Omit “the following Division:—”, substitute “the following Divisions:”.
3.7 Modification of Part XII:
Added subsection 197 (2):
Omit “Where”, substitute “Subject to section 223, where”.
3.8 Modification of Part XII:
Added subsection 201 (1):
Omit “Subject to section 212,”, substitute ‘Subject to sections 212 and 223,”.
3.9 Modification of Part XII:
Added subparagraph 201 (1) (a) (ii):
Omit the subparagraph, substitute:
“(ii) on or after attaining the age of 60 years but before attaining the age of 65 years, otherwise than by reason of death or retirement on the ground of invalidity before attaining his or her maximum retiring age; or”
3.10 Modification of Part XII:
Added subsection 201 (2):
Omit “A person”, substitute “Subject to section 223, a person”.
3.11 Modification of Part XII:
Added subsection 201 (3):
Omit “Where”, substitute “Subject to section 223, if”.
3.12 Modification of Part XII:
After added section 212, add:
Division 9—Preservation of benefit payable under section
197 or 201
Interpretation
“222. (l) In this Division:
‘accumulated government body contributions’, in relation to a person’s relevant period of employment, means the total of:
(a) the total amount of the productivity contributions applicable to the person in respect of the period; and
(b) notional interest on the amount worked out under paragraph (a);
‘government body scheme’ means a superannuation scheme:
(a) established by, or operating for the benefit of employees of:
(i) an authority of the Commonwealth; or
(ii) a State or an authority of a State; or
(iii) a Territory or an authority of a Territory; or
(iv) a body corporate in which the Commonwealth, or a person of the kind referred to in subparagraph (i), (ii) or (iii), either individually or in combination with one or more other persons of that kind, has a controlling interest; and
(b) that has eligible employees as members; and
(c) under which productivity contributions accrue in respect of those eligible employees;
‘notional accumulated SG contributions’, in relation to a person’s relevant period of employment, means an amount equal to the sum of:
(a) the person’s SG minimum contributions in relation to that period as reduced by an amount specified in, or worked out in accordance with, a determination made by the Australian Government Actuary under subsection 62a (5); and
(b) notional interest on the amount worked out under paragraph (a);
‘period of actual contributory service’, in relation to a person, means the person’s period of contributory service other than any part of that period added by the operation of subsection 128 (5) that is not attributable to a transfer value previously paid under Division 3 of Part IX;
‘productivity contribution’ means:
(a) in relation to a person who is a productivity employee within the meaning of Part VIa—a productivity contribution within the meaning of that Part (other than an amount taken to be a productivity contribution by virtue of the operation of paragraph 128 (2) (c)); or
(b) in relation to any other person—an amount similar in kind to a productivity contribution referred to in paragraph (a), whether worked out under an industrial award or otherwise;
‘rate of fund contribution tax’ means 15% or, if the Minister has determined another rate under section 110sd, that other rate;
‘relevant period of employment’, in relation to a person, means:
(a) if the whole of the person’s period of actual contributory service occurred after 30 June 1993—that period; or
(b) if part only of the person’s period of actual contributory service occurred after that date—that part of the person’s period of actual contributory service;
but does not include any period for which the person is engaged or appointed exclusively for employment outside Australia unless that period:
(c) is a period during which the person is on leave of absence without pay; and
(d) is a period in respect of which the person is entitled to make contributions in accordance with a direction under subsection 51 (1);
‘SG minimum contribution’ has the same meaning as in Part VIaa;
‘top-up benefit’ means superannuation guarantee top-up benefit payable under section 110se.
“(2) For the purposes of paragraph (a) of the definition of ‘accumulated government body contributions’ in subsection (1), the amount of a productivity contribution applicable to a person in relation to a particular period (‘the accrual period’) is:
(a) if the relevant government body scheme provides for productivity contributions (applicable to all eligible employees who are members of the scheme) that may be expressed as a percentage of the earnings (as described for the purposes of the scheme) of each employee—that percentage of the earnings of the person for the accrual period based on the person’s fortnightly rate of salary that, for the purposes of section 46, was payable on the most recent anniversary of birth of the person; or
(b) if the relevant government body scheme provides for productivity contributions (applicable to a class of eligible employees identified by the scheme) that may be expressed as a percentage of the earnings (as described for the purposes of the scheme) of each employee in the class, and the percentage is lower than the corresponding percentage for any other class of eligible employees—that percentage of the earnings of the person for the accrual period based on the person’s fortnightly rate of salary that, for the purposes of section 46, was payable on the most recent anniversary of birth of the person; or
(c) if the relevant government body scheme is a defined benefit superannuation scheme within the meaning of the Superannuation Guarantee (Administration) Act 1992 that provides for a productivity related benefit applicable to all eligible employees who are members of the scheme—the contribution percentage, in relation to that benefit, of the earnings of the person for the accrual period based on the person’s fortnightly rate of salary that, for the purposes of section 46, was payable on the most recent anniversary of birth of the person.
“(3) For the purposes of paragraph (2) (c), ‘contribution percentage’ means the rate of contribution, expressed as a percentage of the eligible employees’ earnings and certified by an actuary, required to provide the productivity related benefit.
“(4) The percentage referred to in paragraph (2) (a) or (b) must be certified by the person’s employer.
Preservation of portion of benefit
“223. (1) Subject to subsection (2), if a benefit is payable:
(a) under subsection 197 (2) to a person; or
(b) under subsection 201 (1) to a person who ceases to be a prescribed eligible employee in circumstances referred to in subparagraph 201 (1) (a) (ii) or (iii);
the portion of that benefit worked out under whichever of subsections (3) and (4) is applicable must be:
(c) paid, for the benefit of the person, to a preservation fund nominated by the person; or
(d) applied, on behalf of the person, for the purchase of a deferred annuity nominated by the person; or
(e) if the person does not make a nomination within 2 months after the benefit becomes payable—paid, for the benefit of the person, to a preservation fund nominated by the Commissioner.
“(2) Subsection (1) does not apply to a benefit payable to a person if:
(a) the person is 65 or over; or
(b) the person is 55 or over and has given the Commissioner a written statement to the effect that he or she has retired from the workforce; or
(c) the total of the following amounts is less than $500:
(i) the amount of the accumulated employer contributions in respect of the person;
(ii) the amount that would be preserved or applied under subsection (1) in relation to the person but for the operation of this subsection; or
(d) the Commissioner is satisfied that the person has departed, or is departing, permanently from Australia.
“(3) If a person’s employer was liable to pay productivity contributions under section 110h in respect of the person for the person’s relevant period of employment, the portion of the benefit referred to in subsection (1) is the amount worked out using the formula:
NASGC –
where:
‘NASGC’ is the notional accumulated SG contributions in respect of the person for the person’s relevant period of employment;
‘AEC’ is that part of the accumulated employer contributions in respect of the person that is based on the operation of paragraphs 110q (l) (a) and (b) in relation to productivity contributions paid or payable after 30 June 1993;
‘TR’ is the percentage figure representing the rate of fund contribution tax applicable to the relevant period of employment.
“(4) If a person’s employer was liable to pay productivity contributions to a government body scheme in respect of the person for the person’s relevant period of employment, the portion of the benefit referred to in subsection (1) is whichever of the following amounts is determined by the Commissioner after having regard to the views of the government body:
(a) an amount worked out using the formula:
NASGC – AGBC;
(b) an amount worked out using the formula:
NASGC – ;
(c) an amount worked out using the formula:
NASGC – ;
where:
‘NASGC’ is the notional accumulated SG contributions in respect of the person for the person’s relevant period of employment;
‘AGBC’ is the accumulated government body contributions in respect of the person for the person’s relevant period of employment;
‘GBB’ is:
(a) the benefit paid or payable from the government body scheme in respect of the person for the person’s relevant period of employment; and
(b) except where the person ceases to be both a member of the government body scheme and a prescribed eligible employee—notional interest on that benefit;
‘TR’ is the percentage figure representing the rate of fund contribution tax applicable to the relevant period of employment;
‘GBPROD’ is the total of:
(a) that part of the amount that has been paid to the Commissioner under section 110ma in respect of the person for the person’s relevant period of employment less the amount in the nature of income tax (if any) that is relevant to that amount; and
(b) interest on the paid amount referred to in paragraph (a).
“(5) In determining the benefit paid or payable from a government body scheme in respect of a person, the Commissioner may accept a statement from the trustees, the administrator on behalf of the trustees or, if there are no trustees, the administrator of the government body scheme as to:
(a) the amount of benefit paid or payable; or
(b) the date on which it was paid or is payable; or
(c) the period in respect of which the benefit was paid or is payable; or
(d) rates of interest applicable to amounts of money paid to the scheme; or
(e) any other matter in connection with the payment of the benefit.
Application of formulae
“224. If a single application of a formula set out in section 214 cannot properly be made for the whole of a person’s relevant period of employment because of a change in the person’s employment, the rate of fund contribution tax or any other thing:
(a) that period is to be broken up into separate periods that are appropriate for the proper application of a formula in respect of each period; and
(b) the resulting amounts (including negative amounts) are to be aggregated in respect of the whole of the person’s period of actual contributory service.”.