Statutory Rules 1994 No. 2711

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Superannuation (Continuing Contributions for Benefits) 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. Commencement

1.1 Regulation 8 is taken to have commenced on 24 December 1992.

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

2. Amendment

2.1 The Superannuation (Continuing Contributions for Benefits) Regulations are amended as set out in these Regulations.

3. Regulation 2 (Interpretation)

3.1 Regulation 2 (definition of “superannuation scheme”):

Omit all the words from and including “include a scheme,”, substitute:

“include:

(a) a scheme, or part of a scheme, that is established for the preservation or payment of benefits of the kind referred to as ‘interim benefits’ in the Superannuation (Productivity Benefit) Act 1988; or

(b) the Superannuation (1990) Scheme in relation to other employment;”.

3.2 Regulation 2 (definition of “the Act”):

Omit “1976.”, substitute “1976;”.

3.3 Regulation 2 (definition of “the 50% sale day”):

Omit “1992.”, substitute “1992;”.

3.4 Regulation 2:

Add the following definition:

“‘top-up arrangement’ has the meaning given by subregulation (3).”.

3.5 Regulation 2:

Add at the end:

“(2) For the purposes of these Regulations, 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)).

“(3) Subject to subregulation (4), 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).

“(4) An arrangement is not a top-up arrangement unless:

(a) the contributions mentioned in subregulation (3):

(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.

“(5) Paragraph (a) of the definition of ‘superannuation scheme’ does not apply in relation to:

(a) subregulation (2) or (3); or

(b) a reference in any other provision of these Regulations to a scheme of which a person is taken, under subregulation (2), to be a member.”.

4. Regulation 3 (Classes of persons to which section 14A of the Act does not apply)

4.1 Subparagraph 3 (1) (d) (iii):

Omit “scheme, other than the scheme constituted by the provisions of the Act or a scheme to which the person contributes only in relation to performance pay,”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

(B) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

(C) in the case of a person to whom, under subregulation (1A), this sub-subparagraph applies—a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

4.2 After subregulation 3 (1), insert:

“(1A) For the purposes of sub-subparagraph 3 (1) (d) (iii) (C), a person is taken to be a person to whom the 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).”.

5. Regulation 3A (Classes of persons to which section 14A of the Act applies)

5.1 Subparagraphs 3A (1) (a) (v) and 3A (1) (d) (iii):

Omit “scheme, other than the scheme constituted by the provisions of the Act or a scheme to which the person contributes only in relation to performance pay;”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

(B) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

5.2 Subparagraphs 3A (1) (c) (iii) and 3A (1) (ca) (iii):

Omit “scheme, other than the scheme constituted by the provisions of the Act;”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

(B) in the case of a person to whom, under subregulation (1A), this sub-subparagraph applies—a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

5.3 Subparagraph 3A (1) (e) (iv):

Omit “scheme, other than the scheme constituted under the Act or a scheme to which the person contributes only in relation to performance pay,”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

(B) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

5.4 Subparagraph 3A (1) (f) (iii):

Omit “scheme, other than the scheme provided for under the Act or a scheme to which the person contributes only in relation to performance pay,”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

(B) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

5.5 Subparagraph 3A (1) (j) (iv):

Omit “scheme, other than the scheme provided for under the Act,”, substitute:

“scheme, other than:

(A) the scheme provided for by the Act; or

5.6 After subregulation 3A (1), insert:

“(1A) For the purposes of sub-subparagraphs (1) (a) (v) (C), (1) (c) (iii) (B), (1) (ca) (iii) (B), (1) (d) (iii) (C), (1) (e) (iv) (C), (1) (f) (iii) (C) and (1) (j) (iv) (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).”.

6. Regulation 3B (Repatriation staff to whom section 14A of the Act applies)

6.1 Paragraph 3B (1) (e):

Omit “become a member of a State superannuation scheme.”, substitute “become a member of a State superannuation scheme except, in the case of a person to whom, under subregulation (1A), this paragraph applies, a State superannuation scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes.”.

6.2 After subregulation 3B (1), insert:

“(1A) For the purposes of paragraph (1) (e), a person is taken to be a person to whom the paragraph applies if he or she 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).”.

7. Regulation 4 (When s. 14A no longer applies)

7.1 Subparagraph 4 (1) (c) (ii):

Omit “employment, not being the scheme constituted by the provisions of the Act or a scheme to which the person contributes only in relation to performance pay,”, substitute:

“employment, other than:

(A) the scheme provided for by the Act; or

(B) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

7.2 After subregulation 4 (1), insert:

“(1A) For the purposes of sub-subparagraph (1) (c) (ii) (C), paragraphs (2) (b) and (4) (c) and subparagraphs (5) (c) (iii), (6) (b) (iii), (9) (c) (ii) and (10) (c) (iii), a person is taken to be a person to whom the relevant provision 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).”.

7.3 Paragraph 4 (2) (b):

Add at the end “other than, in the case of a person to whom, under subregulation (1A), this paragraph applies, a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

7.4 Paragraph 4 (3) (a):

Omit “that paragraph;”, substitute “the relevant paragraph;”.

7.5 Subregulation 4 (4):

Omit the subregulation, substitute:

“(4) For the purposes of paragraph (3) (b), ‘the relevant superannuation scheme’ means, in relation to a person mentioned in that paragraph:

(a) in the case of the Australian Postal Corporation—the Australia Post Superannuation Scheme; and

(b) in the case of the Australian and Overseas Telecommunications Corporation—the Telecom Superannuation Scheme;

unless:

(d) the scheme is a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes.”.

7.6 Paragraphs 4 (5) (c) and 4 (6) (b):

Omit “scheme, other than the scheme provided for under the Act or a scheme to which the person contributes only in relation to performance pay,”, substitute:

“scheme, other than:

(i) the scheme constituted by the Act; or

(ii) a scheme to which contributions are made in respect of the person only in relation to performance pay; or

(iii) in the case of a person to whom, under subregulation (1A), this subparagraph applies—a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

7.7 Subparagraph 4 (9) (c) (ii):

Omit the subparagraph, substitute:

“(ii) in the case of a person to whom, under subregulation (1A), this subparagraph applies—a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

7.8 Paragraph 4 (10) (c):

Add at the end:

“; or

(iii) in the case of a person to whom, under subregulation (1A), this subparagraph applies—a scheme of which the person is taken, under subregulation 2 (2), to be a member for top-up purposes;”.

8. Statutory Rules 1992 No. 460

8.1 Regulation 2:

Omit “Regulation 3”, substitute “Regulation 2”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 26 July 1994.

2. Statutory Rules 1981 No. 36 as amended by 1987 No. 290; 1989 No. 168; 1990 Nos. 179 and 379; 1991 Nos. 97, 168, 446 and 465; 1992 Nos. 27, 213, 323, 428 and 460; 1993 Nos. 3, 50 and 348; 1994 Nos. 8, 115, 116 and 248.