Statutory Rules 1994 No. 2721
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Superannuation (Eligible Employees) 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 26 July 1994.
BILL HAYDEN
Governor-General
By His Excellency’s Command,
KIM C. BEAZLEY
Minister for Finance
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1. Amendment
1.1 The Superannuation (Eligible Employees) Regulations are amended as set out in these Regulations.
[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]
2. Regulation 3 (Interpretation)
2.1 Regulation 3 (definition of “SMEC relevant day”):
Omit “1989.”, substitute “1989;”.
2.2 Regulation 3 (definition of “superannuation scheme”):
Omit from paragraph (c) “payment of,”, substitute “payment, of”.
2.3 Regulation 3 (definition of “superannuation scheme”):
Add at the end:
“or (d) the Superannuation (1990) Scheme in relation to other employment;”.
2.4 Regulation 3:
After “the Act”, insert the following definition:
“‘top-up arrangement’ has the meaning given by subregulation 4 (4).”.
3. Regulation 4 (Persons not included in definition of “eligible employee”)
3.1 Subparagraph 4 (a) (ii):
Omit the subparagraph, substitute:
“(ii) are members of a superannuation scheme applying to persons employed by that approved authority, other than:
(A) a scheme to which contributions are made in relation to those persons only in relation to performance pay; or
(B) in the case of a person to whom, under subregulation (2), this sub-subparagraph applies—a scheme of which the person is taken, under subregulation (3), to be a member for top-up purposes;
or are required by the terms and conditions of their employment to become (subject to compliance with, or fulfilment of, any conditions or requirements relating to membership of the scheme) members of a scheme of that kind; and”.
3.2 Subparagraph 4 (aa) (ii):
Omit the subparagraph, substitute:
“(ii) are members of a superannuation scheme applying to holders of that office, other than:
(A) a scheme to which contributions are made in relation to those persons only in relation to performance pay; or
(B) in the case of a person to whom, under subregulation (2), this sub-subparagraph applies—a scheme of which the person is taken, under subregulation (3), to be a member for top-up purposes;
or are required by the terms and conditions of their appointment to become (subject to compliance with, or fulfilment of, any conditions or requirements relating to membership of the scheme) members of a scheme of that kind; and”.
3.3 Subparagraph 4 (o) (ii):
Omit “scheme (other than a scheme to which contributions are made in relation to those persons only in relation to performance pay);”, substitute:
“scheme, other than:
(A) a scheme to which contributions are made in relation to those persons only in relation to performance pay; or
(B) in the case of a person to whom, under subregulation (2), this sub-subparagraph applies—a scheme of which the person is taken, under subregulation (3), to be a member for top-up purposes; and”.
3.4 Regulation 4:
Add at the end:
“(2) For the purposes of sub-subparagraphs 4 (1) (a) (ii) (B), 4 (1) (aa) (ii) (B) and 4 (1) (o) (ii) (B), a person is taken to be a person to whom the relevant sub-subparagraph applies if he or she holds office or is employed under terms and conditions that enable the person to choose whether to take part of his or her remuneration in a non-monetary form (which may be in the form of a top-up arrangement).
“(3) For the purposes of those sub-subparagraphs, a person is taken to be a member of a superannuation scheme for top-up purposes if, and only if, he or she is a member of the scheme:
(a) by reason only of a top-up arrangement; or
(b) by reason of:
(i) a top-up arrangement; and
(ii) one or both of the following circumstances:
(A) contributions are made to the scheme in relation to performance pay;
(B) the person is a member of the scheme for the purposes of the preservation or payment of benefits of the kind referred to as ‘interim benefits’ in the Superannuation (Productivity Benefit) Act 1988;
but no other circumstance (except that mentioned in subparagraph (i)).
“(4) Subject to subregulation (5), a ‘top-up arrangement’ is an arrangement between the person (‘the payee’) to whom, under the arrangement, remuneration is paid and the person (‘the payer’) who pays the remuneration, by which the payer makes contributions in respect of the payee to a superannuation scheme (which may be a scheme applying only in respect of the payee).
“(5) An arrangement is not a top-up arrangement unless:
(a) the contributions mentioned in subregulation (4):
(i) constitute part of the payee’s overall remuneration; and
(ii) are not paid as an addition to remuneration otherwise payable; and
(b) the payer makes payments under the Act:
(i) in respect of the payee; and
(ii) in relation to the employment or office to which the arrangement relates.
“(6) Paragraph (c) of the definition of ‘superannuation scheme’ in regulation 3 does not apply in relation to:
(a) subregulation (3) or (4); or
(b) a reference in any other provision of these Regulations to a scheme of which a person is taken, under subregulation (3), to be a member.”.
NOTES
1. Notified in the Commonwealth of Australia Gazette on 26 July 1994.
2. Statutory Rules 1976 No. 140 amended by 1977 No. 157; 1978 Nos. 15 and 280; 1980 No. 181; 1982 No. 235; 1983 Nos 76 and 77; 1984 No.113; 1985 Nos. 343 and 375; 1986 Nos. 265, 345 and 373; 1987 Nos. 10, 62, 114, 225 and 306; 1988 Nos. 41, 59 and 149; 1989 Nos. 37, 85, 98, 121 and 169; 1990 Nos. 97, 142, 178 and 180; 1992 Nos. 429 and 458; 1994 Nos. 133 and 232.