Statutory Rules 1994  No. 181

__________________

Superannuation (Salary) 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 11 February 1994.

                                                                                    BILL HAYDEN

                                                                                   Governor-General

By His Excellency’s Command,

KIM C. BEAZLEY

Minister for Finance

____________

1.    Amendment

1.1   The Superannuation (Salary) Regulations are amended as set out in these Regulations.

[NOTE:  These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

2.   New Part 2g

2.1   After Part 2f, insert:

“PART 2g—SENIOR OFFICERS’ ALLOWANCE

Definitions

          “8v.   (1)    In this Part:

‘Senior Officers’ allowance’ means the allowance payable under Clause 3 of Schedule 5 to Attachment C to the Agreement between the Commonwealth Government and public sector unions known as ‘Improving Productivity, Jobs and Pay in the Australian Public Service 1992-1994’ and dated December 1992.

           “(2)   For the purposes of this Part:

             (a)   an eligible employee who is an unattached officer is taken to hold an office that has the same classification as the classification that the employee has as an unattached officer; and

             (b)   in relation to an eligible employee who is an unattached officer, a reference to an office held by an employee includes a reference to the classification that the unattached officer has as an unattached officer.

Circumstances in which Senior Officers’ allowance to be treated as salary

         “8w.   Subject to regulations 8y and 8z, Senior Officers’ allowance payable to an eligible employee is to be treated as salary for the purposes of the Act if and only if:

             (a)   it is payable in respect of an office held by the employee; or

             (b)   it is taken under regulation 8x to be payable to the eligible employee on a regular basis; or

             (c)   the eligible employee:

                          (i)   holds an office (in this paragraph called ‘the first office’) in respect of which he or she is entitled to receive Senior Officers’ allowance but has elected not to do so; and

                         (ii)   temporarily performs the duties of an office (‘the second office’) that is classified at the same level as the first office and receives Senior Officers’ allowance in respect of the second office.

Payment of Senior Officers’ allowance on a regular basis

          “8x.   (1)    In this regulation:

‘higher duties allowance’ means an allowance of the kind described in paragraph 4 (1) (a).

           “(2)   If an eligible employee:

             (a)   holds an office (‘the first office’) in respect of which Senior Officers’ allowance is payable (whether or not he or she has elected not to receive that allowance); and

             (b)   temporarily performs the duties of another office (‘the second office’) in respect of which Senior Officers’ allowance is payable;

Senior Officers’ allowance in respect of the second office is taken to be payable to the eligible employee on a regular basis if he or she is entitled to receive higher duties allowance that is taken, under regulation 6, to be payable on a regular basis.

           “(3)   If an eligible employee who holds an office in respect of which Senior Officers’ allowance is not payable is temporarily performing the duties of an office in respect of which Senior Officers’ allowance is payable, Senior Officers’ allowance is taken to be payable to the eligible employee on a regular basis if he or she:

             (a)   is entitled to receive higher duties allowance:

                          (i)   that is taken, under regulation 6, to be payable on a regular basis; and

                         (ii)   that is not, under subregulation 7 (2), excluded from being treated as salary; and

             (b)   has not elected to receive overtime payments instead of Senior Officers’ allowance.

           “(4)   If an eligible employee:

             (a)   is temporarily performing the duties of an office in respect of which Senior Officers’ allowance is payable (whether or not he or she holds an office in respect of which Senior Officers’ allowance is payable); and

             (b)   is entitled to receive higher duties allowance in respect of those duties; and

             (c)   commences to perform the duties of another office (‘the second office’) in respect of which Senior Officers’ allowance is payable at the same or a higher rate;

Senior Officers’ allowance is taken to be payable to the eligible employee on a regular basis at the rate appropriate to the second office if:

             (d)   the higher duties allowance that the eligible employee is entitled to receive in respect of the second office:

                          (i)   is taken, under regulation 6, to be payable to the employee on a regular basis; and

                         (ii)   is not, under subregulation 7 (2), excluded from being treated as salary; and

             (e)   the eligible employee has not elected to receive, in respect of the second office, overtime payments instead of Senior Officers’ allowance.

Part of salary or wages not treated as salary in certain circumstances

          “8Y.   (1)    In this regulation:

‘relevant period’, in relation to an eligible employee who, on a particular day, performs duties or work in respect of which Senior Officers’ allowance is payable, means:

             (a)   unless paragraph (b) applies—the period of 12 months immediately preceding the particular day; or

             (b)   if, for a continuous period of less than 12 months immediately preceding the particular day, the eligible employee has performed duties or work in respect of which Senior Officers’ allowance is payable to him or her—that lesser period.

           “(2)   If:

             (a)   on a particular day an eligible employee performs the duties of an office in respect of which Senior Officers’ allowance is payable; and

             (b)   that allowance is taken to be payable to the employee on a regular basis; and

             (c)   at any time during the relevant period, the employee temporarily performed the duties of an office in respect of which Senior Officers’ allowance was payable to the employee at a rate that is lower than the rate of the allowance referred to in paragraph (a);

the amount worked out in accordance with the formula in subregulation (3) is not to be treated as salary for the purposes of the Act.

           “(3)   The amount referred to in subregulation (2) is:

where:

‘A’ is the amount of the allowance referred to in paragraph (2) (a) payable to the eligible employee in respect of the particular day;

‘B’ is the amount of the allowance that would have been payable to the eligible employee in respect of the particular day if he or she had continued to perform those duties or that work performed by him or her during the relevant period in respect of which the allowance was payable to him or her at the lower or lowest rate.

Senior Officers’ allowance not treated as salary for determination of certain benefits

          “8z.   (1)    If:

             (a)   a person has ceased to be an eligible employee:

                          (i)   by reason of early retirement; or

                         (ii)   in circumstances that entitle him or her to an age retirement pension; and

             (b)   on the relevant day:

                          (i)   he or she performed duties or work in respect of which Senior Officers’ allowance is payable to him or her; and

                         (ii)   that allowance was taken to be payable to him or her, or payable to him or her at a particular rate, on a regular basis only because the Commissioner had given a certificate under subregulation 6 (2);

then, for the purposes of the definition of ‘final annual rate of salary’ in subsection 3 (1) of the Act, his or her annual rate of salary on the relevant day is taken to be an amount equal to the amount per annum that would, for the purposes of the Act, have been his or her annual rate of salary on that day if that certificate had not been given.

           “(2)   In subregulation (1), the relevant day in relation to an eligible employee is:

             (a)   unless paragraph (b) applies—his or her last day of service; or

             (b)   if his or her final annual rate of salary is ascertained by reference to the annual rate of salary payable to him or her on a day other than his or her last day of service—that other day.”.

3.   New regulation 23

3.1   After regulation 22, insert:

Performance pay, bonuses and commissions

           “23.   (1)    Subject to subregulation (2), an amount of remuneration paid or payable to an eligible employee that is:

             (a)   performance pay; or

             (b)   a bonus; or

             (c)   a commission;

is not to be treated as salary for the purposes of the Act.

           “(2)   This regulation does not apply to:

             (a)   remuneration of a kind referred to in paragraph 5 (b) or (c) or regulation 22; or

             (b)   an increment to the salary of an eligible employee that is paid only on condition of a satisfactory performance appraisal.”.

NOTES

1.   Notified in the Commonwealth of Australia Gazette on  18 February 1994.

2.   Statutory Rules 1978 No. 282 as amended by 1981 No. 5; 1985 Nos. 204 and 326; 1986 Nos. 43 and 49; 1987 No. 70; 1988 Nos. 171, 231, 250 and 350; 1989 No. 77; 1990 No. 128; 1991 Nos. 167, 312 and 466; 1992 Nos. 169, 219, 266, 290, 397 and 427; 1993 Nos. 4 and 102.