Thirteenth Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons (the Public Sector Superannuation Scheme)

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Thirteenth Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons (the Public Sector Superannuation Scheme)

- F2005B01229
No longer in force

Deeds & Trust Deeds as made

Amends the PSS Rules by inserting, deleting and amending various Rules including in relation to replacing references to “Public Service Act 1922” with “Public Service Act 1999”; updating references to specific sections of the Public Service Act 1922 with references to the corresponding provisions in the Public Service Act 1999; ensuring that the Rules reflect the terminology of the Public Service Act 1999; and protecting the entitlements of members where the Rules refer to provisions of the Public Service Act 1922 that do not have exactly corresponding provisions in the Public Service Act 1999.

Administered by: Finance

Exempt from sunsetting by the Legislative Instruments Act 2003 s 54(2) item 42

Registered	23 May 2005

Gazetted	06 Dec 1999
Date of repeal	19 Mar 2014
Repealed by	Finance (Spent and Redundant Instruments) Repeal Regulation 2014

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THIS DEED is made on 5 December 1999 by THE COMMONWEALTH OF AUSTRALIA (in this Deed called “the Commonwealth”).

WHEREAS the Commonwealth Minister of State for Finance, for and on behalf of the Commonwealth, pursuant to section 4 of the Superannuation Act 1990, established by Deed dated 21 June 1990 (which Deed, as previously amended, is in this Deed called “the Trust Deed”) an occupational superannuation scheme (in the Deed called the “Public Sector Superannuation Scheme”) in order to provide benefits for certain of its employees and for certain other persons;

AND WHEREAS section 5 of the Superannuation Act 1990 provides that the Minister for Finance and Administration may, by signed instrument, amend the Trust Deed but that the Minister may not amend the Trust Deed unless the Board has consented to the amendment or the amendment falls within any of sub-paragraphs (b)(i), (ii) or (iii) of sub-section 5(1A);

AND WHEREAS by Deeds dated 21 June 1990, 1 July 1991, 30 June 1992, 21 December 1992, 16 June 1993, 24 January 1994, 7 March 1994, 28 June 1994, 22 June 1995, 29 January 1996, 10 December 1996 and 25 March 1998 (the First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, and with the consent of the Board the Ninth, Tenth, Eleventh and Twelfth Amending Deeds, respectively) the Minister amended the Trust Deed and the Rules for the administration of the Public Sector Superannuation Scheme set out in the Schedule to the Trust Deed;

NOW THIS DEED WITNESSES that the Rules for the administration of the Public Sector Superannuation Scheme set out in the Schedule to the Trust Deed are amended as follows and that the Board has consented to those amendments:

1. The amendments of the Rules made by this Deed come into effect on the later of:

(a) the date of gazettal [see the Acts Interpretation Act 1901, sections 46A and 48]; and

(b) the time when the Public Service Act 1999 commences.

2. The Rules are amended as follows:

2.1 Rule 1.2.1 is amended by inserting the following definitions after the definition of approved superannuation scheme:

“APS Agency means an Agency within the meaning of the Public Service Act 1999.

APS employee has the same meaning as in the Public Service Act 1999.”

2.2 Rule 1.2.1 is amended by replacing the definition of Department with the following definition:

“Department means:

· an APS Agency; or

· a Department of the Parliament.”

2.3 Rule 1.2.1 is amended by replacing the definition of fixed-term employee with the following definition:

“fixed-term employee means:

· a person appointed under section 58 of the Public Service Act 1999; or

· an APS employee on a fixed term; or

· a person who is appointed to a statutory office for a fixed term; or

· a person who holds an appointment, or is employed, otherwise than under the Public Service Act 1999, by the Commonwealth for a fixed term; or

· a person who holds an appointment, or is employed, by an approved authority for a fixed term; or

· a person who holds an appointment, or is employed, for a fixed term, and who is a person to whom Division 3 of Part IV of the Public Service Act 1922 applied immediately before the time (the repeal time) when that Act was repealed and who:

- during the transitional period (within the meaning of Part 3 of the Public Employment (Consequential and Transitional) Amendment Act 1999) continues in eligible public employment (within the meaning of Part IV of the Public Service Act 1922, as in force immediately before the repeal time); or

- after the end of that transitional period, continues in the same eligible public employment (within the meaning of Part IV of the Public Service Act 1922, as in force immediately before the repeal time) in which the person was engaged immediately before the end of that transitional period; or

· a person who holds an appointment, or is employed, for a fixed term, and who is a person who is a member by virtue of a declaration under paragraph 6(1)(j) of the Superannuation Act 1990.”

2.4 Rule 1.2.1 is amended by replacing the definition of involuntary retirement with the following definition:

“involuntary retirement means cessation of membership of the PSS scheme in one of the following circumstances:

· in the case of a member who has reached his/her minimum retiring age, he/she is retired, otherwise than at his/her own request; or

· the member’s employment or appointment is terminated on a ground similar to a ground specified in section 76W of the Public Service Act 1922, as in force immediately before its repeal, but not including termination under the Public Service Management Act 1994 of the Australian Capital Territory of an appointment under that Act if the appointment was made on probation and had not been confirmed when the termination was effected; or

· in the case of a permanent employee, the position or office of the member ceases to exist, whether by reason of its being abolished or otherwise; or

· the member’s employment or appointment is terminated on a ground similar to a ground specified in section 76D or 76L of the Public Service Act 1922, as in force immediately before its repeal; or

· the member is retired under section 76FA or subsection 76F(1B) of the Public Service Act 1922, in its continued application because of section 8 of the Public Employment (Consequential and Transitional) Amendment Act 1999; or

· in the case of an SES employee, the member retires under section 37 of the Public Service Act 1999; or

· in the case of a fixed-term employee, in the circumstances referred to in Rules 6.4.1, 6.4.2, 6.4.4, 6.4.9, 6.4.10 and 6.4.11;

but does not include cessation of a member's membership:

· because of invalidity retirement; or

· after the member has reached his/her maximum retiring age; or

· on the sale or transfer of all or part of an organisation, business, service, asset or function (see Divisions 6 and 7 of Part 6); or

· initiated through the member's own actions, including

- dismissal; or

- forfeiture of office.”

2.5 Rule 1.2.1 is amended by replacing the definitions of permanent full-time employee and permanent part-time employee with the following definitions:

“permanent full-time means:

employee

· a permanent employee employed to work on a full-time basis;

· the holder of a statutory office on a full-time basis;

· a person to whom Part IV of the Public Service Act 1922 applied immediately before the time (the repeal time) when that Act was repealed, and who was a permanent employee employed on a full-time basis immediately before that Part applied, and who:

- during the transitional period (within the meaning of Part 3 of the Public Employment (Consequential and Transitional) Amendment Act 1999) continues in eligible public employment (within the meaning of Part IV of the Public Service Act 1922, as in force immediately before the repeal time); or

- after the end of that transitional period, continues in the same eligible public employment (within the meaning of Part IV of the Public Service Act 1922, as in force immediately before the repeal time) in which the person was engaged immediately before the end of that transitional period;

· a person declared by the Board, in agreement with the Minister, to be a permanent full-time employee.

permanent part-time means:

employee

· a permanent employee employed to work on less than a full-time basis;

· the holder of a statutory office on less than a full-time basis;

· a person to whom Part IV of the Public Service Act 1922 applied immediately before the time (the repeal time) when that Act was repealed, and who was a permanent employee employed on less than a full-time basis immediately before that Part applied, and who:

· a person declared by the Board, in agreement with the Minister, to be a permanent part-time employee.”

2.6 Rule 1.2.1 is amended by replacing the definition of Secretary with the following definition:

“Secretary has the same meaning as under the Public Service Act 1999.”

2.7 Rule 2.2.4 is replaced with the following Rule:

“2.2.4 A person who again becomes a member because of having been, or having been deemed to be, re-appointed or re-employed in circumstances similar to:

(a) the circumstances in which a person could have been re-appointed to the Australian Public Service under section 63F, 63G or 66B of the Public Service Act 1922, as in force immediately before its repeal; or

(b) the circumstances in which a person could have been deemed to have been re-appointed to the Australian Public Service in accordance with section 87K, 87M, 87P or 87Q of the Public Service Act 1922, as in force immediately before its repeal;

and he/she would have continued to be a member if his/her appointment or employment had not been terminated, is deemed not to have ceased to be a member and must repay any benefit paid to him/her as a result of that termination.”

2.8 Paragraph (e) of Rule 4.2.1 is replaced with the following paragraph:

“(e) a period of leave of absence for the purpose of engaging in other employment (other than employment by an organisation specified in paragraph 4.2.1(f)) if the temporary employer complies with the requirements of Rule 4.2.2 and:

(i) if the person is employed in an APS Agency – the Agency Head (within the meaning of the Public Service Act 1999) of the Agency is satisfied that the engagement of the person in the other employment is in the interest of the Australian Public Service; or

(ii) in respect of any other person - the person's usual employer is satisfied that the engagement of the person in the other employment is in the usual employer's interest;”

2.9 Rule 4.2.6 is replaced with the following Rule:

“4.2.6 If a person again becomes a member because of having been, or having been deemed to be, re-appointed or re-employed in circumstances similar to:

and he/she has been deemed under Rule 2.2.4 not to have ceased membership, the period between the termination of his/her appointment or employment and his/her re-appointment or re-employment is regarded as a period of leave without pay exceeding 12 weeks.”

2.10 The Table - Previous Employment Status of Fixed-term Employee in Rule 6.4.1 is replaced with the following Table:

“

Table – Previous Employment Status of Fixed-term Employee

Employment status immediately preceding the appointment or employment now ended

Was a Secretary or an APS employee;

- but was not a fixed-term employee.

Was an employee of the authority or body that either:

. appointed him/her as a fixed-term employee to the subsequent employment; or

. is liable to pay the remuneration of the holder of the statutory office;

- but was not a fixed term employee.

Was a fixed-term employee who would have been deemed under the Rules to have retired involuntarily when that appointment or employment ended had he/she not been appointed to the subsequent fixed term employment

(Note: Includes a statutory office holder appointed for a fixed term);

- but was not a fixed-term employee appointed or employed:

. by an approved authority; or

. by the Commonwealth under an Act other than the Public Service Act 1999; or

. as a person to whom Division 3 of Part IV of the Public Service Act 1922 applied immediately before the time (the repeal time) when that Act was repealed and who:

. as a person who was a member under a declaration under paragraph 6(1)(j) of the Superannuation Act 1990.

Was a fixed-term employee appointed or employed by the Commonwealth under the same law as that under which he/she was appointed or employed in the subsequent fixed term employment, and who would have been deemed under the Rules to have retired involuntarily when the previous appointment or employment ended if he/she had not been appointed to the subsequent fixed term employment or statutory office;

- but was not a statutory office holder appointed for a fixed term and was not appointed or employed under the Public Service Act 1999.

Was a person appointed or employed by the Commonwealth under the same law as that under which he/she was employed in the subsequent employment;

- but was not a fixed-term employee and was not appointed or employed under the Public Service Act 1999.

Was a fixed-term employee of the same authority or body that:

. appointed him/her to, or employed him/her in, the subsequent employment; or

. that is liable to pay the remuneration of the holder of the statutory office;

and who would have been deemed under the Rules to have retired involuntarily when the previous appointment or employment ended if he/she had not been appointed to the subsequent fixed term employment or statutory office.

”

2.11 Rule 6.4.6 is replaced with the following Rule:

“6.4.6 For the purposes of this Division, a person who ceases to hold an office of Secretary under a fixed-term appointment under the Public Service Act 1999 because:

(a) the office is abolished; or

(b) the period for which the appointment was made expires; or

and whom is immediately engaged under section 60 of that Act, is not taken to have ceased membership for such a reason until the engagement under that section ends, and any entitlement to involuntary retirement benefits commences from that date.”

IN WITNESS WHEREOF this Deed has been executed the day and year first hereinbefore written.

SIGNED, SEALED AND DELIVERED )

)

by the Honourable JOHN JOSEPH FAHEY )

)

Minister for Finance and Administration ) SIGNED

)

for and on behalf of )

)

THE COMMONWEALTH OF )

)

AUSTRALIA, in the presence of: ) [signed – Andrew Maiden]

)

Andrew William Maiden )

(name) )

10/45 Leahy Close )

NARRABUNDAH ACT )

(address) )

)

Acting Senior Adviser )

(description) )

)

Federal Register of Legislation - Australian Government

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Thirteenth Amending Deed to the Deed to Establish an Occupational Superannuation Scheme for Commonwealth Employees and Certain Other Persons (the Public Sector Superannuation Scheme)

Employment status immediately preceding the appointment or employment now ended