Superannuation (Pss) Membership Exclusion Declaration No. 4 (Cth)

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4
(#DATE 06:02:1995)

- In force under the Superannuation Act 1990

- Updated as at 6 February 1995
*1* The Superannuation (PSS) Membership Exclusion Declaration No. 4 (in force under the Superannuation Act 1990) as shown in this reprint comprises Statutory Rules 1991 No. 420 amended as indicated in the Tables below.
Table of Statutory Rules
Year and Date of Date of Application
Number Notification commencement saving or
in Gazette transitional
provisions
1991 No. 420 19 Dec 1991 19 Dec 1991
1992 No. 419 22 Dec 1992 22 Dec 1992 -
459 24 Dec 1992 24 Dec 1992 -
1994 No. 217 30 June 1994 30 June 1994 -
270 26 July 1994 26 July 1994 -
300 2 Sept 1994 2 Sept 1994 -
400 30 Nov 1994 30 Nov 1994 -
446 30 Dec 1994 30 Dec 1994 -
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
R. 3 am. 1992 Nos. 419 and 459; 1994 Nos. 217 and
270
R. 4 am. 1994 No. 446
Schedule am. 1992 Nos. 419 and 459; 1994 Nos. 217, 270,
300, 400 and 446
#ADD 20:2:1995

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - TABLE OF 
PROVISIONS 
TABLE

                     TABLE OF PROVISIONS

Regulation

    1.    Citation

    2.    Repeal (Declarations under the Superannuation Act 1990)

    3.    Interpretation

    4.    Persons to whom section 6 of the Act does not apply

                          SCHEDULE

       PERSONS TO WHOM SECTION 6 OF THE 1990 ACT DOES NOT APPLY

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - REG 1 
Citation 


  1. This Declaration may be cited as Superannuation (PSS) Membership
Exclusion Declaration No. 4.*1*
SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - REG 2 
Repeal (Declarations under the Superannuation Act 1990) 


  2. Statutory Rules 1990 Nos. 183 and 321 and 1991 No. 34 are repealed.

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - REG 3 
Interpretation 


  3. (1) In this Declaration, unless the contrary intention appears:

  "ACT Government Service" means the Service established by subsection 12 (1)
of the Public Sector Management Act 1994 of the Australian Capital Territory;

  "designated position" means a position designated by the Governor of the
State of New South Wales, either generally or in relation to a particular
person, under subsection 43B (2) of the Meat Industry Act 1978 of that State;

  "eligible employee" has the meaning given by the 1976 Act;

  "mobility allowance" means an allowance of that name payable in accordance
with a determination made under section 82D of the Public Service Act;

  "PSS member" means a person who is a member of the Superannuation Scheme
within the meaning of the 1990 Act;

  "1922 Act" means the Superannuation Act 1922;

  "1976 Act" means the Superannuation Act 1976;

  "1990 Act" means the Superannuation Act 1990;

  "performance pay" means a payment of that name made under an industrial
agreement under Division 3A of Part VI of the Industrial Relations Act 1988;

  "prescribed person" means a person who 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);

  "Public Service Act" means the Public Service Act 1922;

  "superannuation scheme" means a scheme, fund or arrangement, however
established, under which superannuation or retirement benefits are payable,
but does not include:

  (a) the Superannuation Scheme within the meaning of the 1990 Act; or

  (b) 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

  (c) the scheme provided for by the 1976 Act in relation to other
employment;

  "top-up arrangement" has the meaning given by subclause (3).


  (2) For the purposes of this Declaration, 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 subclause (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 subclause (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 (b) of the definition of "superannuation scheme" does not
apply in relation to:

  (a) subclause (2) or (3); or

  (b) a reference in the Schedule to a scheme of which a person is taken,
under subclause (2), to be a member.

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - REG 4 
Persons to whom section 6 of the Act does not apply 


  4. (1) Section 6 of the 1990 Act does not apply to a person mentioned in the
Schedule.


  (2) Item 32 of the Schedule ceases to have effect in relation to a person
described in that item if that person is permanently appointed to the
Australian Public Service after the day that is the staff transfer day (within
the meaning of section 3 of the Repatriation Institutions (Transfer) Act 1992)
in relation to the person.

SUPERANNUATION (PSS) MEMBERSHIP EXCLUSION DECLARATION No. 4 - SCHEDULE 
SCH

                           SCHEDULE                   Clause 4

    PERSONS TO WHOM SECTION 6 OF THE 1990 ACT DOES NOT APPLY

1  A person (including a person who has made an election under

section 8 of the 1990 Act):

  (a) who is employed by an approved authority, whether in a

permanent capacity or otherwise; and

  (b) who:

    (i) is a member of a superannuation scheme, other than:

      (A) a scheme to which contributions are made in relation to

the person only in relation to performance pay; or

      (B) in the case of a prescribed person - a scheme of which

the person is taken, under subclause 3 (2), to be a member for

top-up purposes;

applying to that employment; or

    (ii) is required by the terms and conditions of his or her

employment to become a member of the scheme, subject to compliance

with any conditions or requirements relating to membership of the

scheme; and

  (c) who is not eligible to be paid a mobility allowance for a

reason other than the amount of income that the person is

receiving.

2  A person (including a person who has made an election under

section 7 of the 1990 Act):

  (a) who holds a statutory office; and

  (b) who:

    (i) is a member of a superannuation scheme, other than:

      (A) a scheme to which contributions are made in relation to

the person only in relation to performance pay; or

      (B) in the case of a prescribed person - a scheme of which

the person is taken, under subclause 3 (2), to be a member for

top-up purposes;

applying to holders of that office; or

    (ii) is required by the terms and conditions of his or her

appointment to become a member of the scheme, subject to compliance

with any conditions or requirements relating to membership of the

scheme; and

  (c) who is not a person to whom rule 3.1.7 of the Rules applies;

and

  (d) who is not eligible to be paid a mobility allowance for a

reason other than the amount of income that the person is

receiving.

3  A person who:

  (a) was employed in a permanent capacity by an approved authority

within the meaning of the 1922 Act immediately before the

commencement of the 1976 Act; and

  (b) has since continuously been employed in a permanent capacity

by that approved authority; and

  (c) was not an employee for the purposes of the 1922 Act

immediately before the commencement of the 1976 Act; and

  (d) was not a member of a superannuation scheme applying to the

person's employment by that approved authority immediately before

the commencement of the 1976 Act; and

  (e) has not been a member of a scheme of that kind at any time

since the commencement of the 1976 Act; and

  (f) before 1 July 1990, did not ask to be treated as an eligible

employee; and

  (g) has not asked to be treated as a PSS member.

4  A person who:

  (a) immediately before the commencement of the 1976 Act was

entitled to make an election under subsection 66 (2), 67 (2) or 69

(1) of the 1922 Act; and

  (b) did not make an election of that kind before the commencement

of the 1976 Act; and

  (c) but for paragraph 4 (c) of the Superannuation (Eligible

Employees) Regulations made under the 1976 Act:

    (i) would have been an eligible employee at the commencement of

the 1976 Act; and

    (ii) would have continuously been an eligible employee from

that commencement; and

  (d) before 1 July 1990, did not ask to be treated as an eligible

employee; and

  (e) has not asked to be treated as a PSS member.

6  A person who:

  (a) was appointed to be an officer of the Australian Public

Service under the Mint Employees Act 1964; and

  (b) after being appointed as an officer of that kind, made an

election under subsection 17 (1) of the Mint Employees Act 1964;

and

  (c) has since continuously been an officer of that kind.

7  A person (including a person who has made an election under

section 7 or 8 of the 1990 Act):

  (a) who is a permanent or temporary employee or the holder of a

statutory office; and

  (b) who is a member of a superannuation scheme, other than:

    (i) a scheme to which contributions are made in relation to the

person only in relation to performance pay; or

    (ii) in the case of a prescribed person - a scheme of which the

person is taken, under subclause 3 (2), to be a member for top-up

purposes; and

  (c) who is not a person to whom rule 3.1.7 of the Rules applies;

and

  (d) in respect of whom the Commonwealth or the authority or other

body by whom he or she is employed has agreed to pay:

    (i) an amount or amounts in respect of the benefits that are,

under that superannuation scheme, payable to, or in respect of,

that person upon his or her ceasing to be a member of the scheme;

or

    (ii) an amount or amounts in respect of contributions that are,

under that scheme, payable in respect of such benefits; and

  (e) who is not eligible to be paid a mobility allowance for a

reason other than the amount of income that the person is

receiving.

8  A person:

  (a) who is employed in a permanent capacity in a designated

position; and

  (b) to whom subsection 43B (3) of the Meat Industry Act 1978 of

the State of New South Wales applies.

9  A person:

  (a) who is employed in a permanent capacity in a designated

position; and

  (b) who:

    (i) immediately before 1 July 1983, was a person to whom an Act

of the State of New South Wales, by or under which a superannuation

scheme was established, applied; and

    (ii) was not a contributor to that scheme because he or she had

not made an election to become a contributor; and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

10  A person who:

  (a) is employed, whether in a permanent capacity or otherwise, in

a designated position; and

  (b) immediately before becoming employed in that position, was

receiving a superannuation allowance or other benefit that was

payable, in accordance with a superannuation scheme established by

or under an Act of the State of New South Wales, because of his or

her retirement on the ground of invalidity; and

  (c) immediately before his or her retirement, was employed in the

administration of the Meat Industry Act 1978 of the State of New

South Wales.

11  A person who:

  (a) is deemed, by force of subsection 12 (3) or (4) of the

Australian Trade Commission (Transitional Provisions and

Consequential Amendments) Act 1985, to be employed by the

Australian Trade Commission under section 60 of the Australian

Trade Commission Act 1985; and

  (b) immediately before becoming deemed to be employed by the

Commission under that section, was not an eligible employee; and

  (c) after becoming deemed to be so employed and before 1 July

1990, did not ask to be treated as an eligible employee; and

  (d) has not asked to be treated as a PSS member.

12  A person:

  (a) who, immediately before 15 December 1986:

    (i) was employed under the Public Service Act of the Northern

Territory; and

    (ii) was not a member of a superannuation scheme established

under a law of the Northern Territory; and

    (iii) was not an eligible employee; and

  (b) who:

    (i) was appointed as an officer of the Australian Public

Service on 15 December 1986 under Division 9F of Part III of the

Public Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

13  A person:

  (a) who, immediately before 16 February 1987;

    (i) was employed under the Public Service Act 1978 of the State

of Western Australia; and

    (ii) was not a member of a superannuation scheme established

under a law of that State; and

  (b) who:

    (i) was appointed as an officer of the Australian Public

Service on 16 February 1987 under Division 9A of Part III of the

Public Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

14  A person:

  (a) who:

    (i) after the commencement of section 13 of the

Governor-General Act 1974 and before 1 June 1985, became employed

as a member of the Governor-General's staff under that section; and

    (ii) has since continuously been employed as a member of that

kind; and

  (b) who, immediately before becoming employed as a member of that

kind:

    (i) was employed as a member of the Governor-General's staff in

accordance with an order under subsection 8A (1) of the Public

Service Act; and

    (ii) was not an eligible employee; and

  (c) who, before 15 June 1987, had asked in writing not to be

treated as an eligible employee; and

  (d) who has not asked to be treated as a PSS member.

15  A person:

  (a) who, immediately before 15 October 1987:

    (i) was employed under section 42 of the Naval Defence Act

1910; and

    (ii) was not an eligible employee; and

  (b) who:

    (i) was appointed as an officer of the Australian Public

Service on 15 October 1987 under Division 9A of Part III of the

Public Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

16  A person:

  (a) who, immediately before 3 April 1988:

    (i) was employed under the Public Service Act 1974 of the State

of Victoria; and

    (ii) was not a contributor for the purposes of the State

Employees Retirement Benefits Act 1979, or Superannuation Act 1958,

of that State; and

  (b) who:

    (i) was appointed as an officer of the Australian Public

Service on 3 April 1988 under Division 9A of Part III of the Public

Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

17  A person:

  (a) who, immediately before 1 July 1988:

    (i) was employed under section 82AC of the Public Service Act;

and

    (ii) was a person in relation to whom an order, made on 1 July

1975 as amended from time to time, was in force under subsection 8A

(1) of that Act; and

    (iii) was not an eligible employee; and

  (b) who:

    (i) was appointed as an officer of the Australian Public

Service on 1 July 1988 under section 42 or 42A of the Public

Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

18  A person who is a member of the Legislative Assembly for the

Australian Capital Territory including a person who has made an

election under section 7 or 8 of the 1990 Act.

19  A person:

  (a) who, immediately before 1 June 1989:

    (i) was employed under section 82AC of the Public Service Act

in the Department of Administrative Services and was performing

duties in the Transport and Storage Group; and

    (ii) was not an eligible employee; and

  (b) who:

    (i) on 1 June 1989, was appointed as an officer of the

Australian Public Service under section 42 or 42A of the Public

Service Act; and

    (ii) has since continuously been an officer of that Service;

and

  (c) who, before 1 July 1990, did not ask to be treated as an

eligible employee; and

  (d) who has not asked to be treated as a PSS member.

20  A person:

  (a) who:

    (i) on 1 July 1990, was a permanent employee of the Australian

Wheat Board; and

    (ii) has since continuously been a permanent employee of the

Board; and

  (b) who, on or after 10 March 1987 and before 1 July1990, asked

in writing not to be treated as an eligible employee; and

  (c) who has not asked to be treated as a PSS member.

21  A person who is not eligible to be paid a mobility allowance

for a reason other than the amount of income that the person is

receiving and who holds a statutory office under any of the

following Acts:

  Australian Industry Development Corporation Act 1970;

  Australian Meat and Live-stock Corporation Act 1977;

  Australian National University Act 1946;

  Australian Postal Corporation Act 1989;

  Civil Aviation Act 1988;

  Commonwealth Serum Laboratories Act 1961;

  Maritime College Act 1976;

  University of Canberra Act 1989.

22  A person who is not eligible to be paid a mobility allowance

for a reason other than the amount of income that the person is

receiving and who holds a statutory office under a law of the

Northern Territory of Australia.

23  A person who:

  (a) was appointed as an officer of the Australian National

Railways Commission under section 13 of the Railways Agreement

(South Australia) Act 1975; and

  (b) has since continuously been an officer of that kind; and

  (c) is a prescribed contributor within the meaning of section 11a

of the Superannuation Act 1974 of the State of South Australia.

24  A person who:

  (a) was appointed as an officer of the Australian National

Railways Commission under section 13 of the Railways Agreement

(South Australia) Act 1975; and

  (b) has since continuously been an officer of that kind; and

  (c) immediately before that appointment, was not a contributor to

the Fund, or to the Provident Account, within the meaning of the

Superannuation Act, 1974 of the State of South Australia; and

  (d) before 1 July 1990, did not ask to be treated as an eligible

employee; and

  (e) has not asked to be treated as a PSS member.

25  A person:

  (a) who was appointed as an officer of the Australian National

Railways Commission under section 11 of the Railways (Tasmania) Act

1975; and

  (b) who has since continuously been an officer of that kind; and

  (c) who:

    (i) made an election under section 3 of the Railways (Transfer

to Commonwealth) (Retirement Benefits) Act 1977 of the State of

Tasmania; or

    (ii) is deemed by that Act to have made an election under that

section.

26  A person who:

  (a) was appointed as an officer of the Australian National

Railways Commission under section 11 of the Railways (Tasmania) Act

1975; and

  (b) has since continuously been an officer of that kind; and

  (c) immediately before that appointment, was not a contributor

for the purposes of the Superannuation Act 1938 or Retirement

Benefits Act 1970 of the State of Tasmania; and

  (d) did not make an election under section 3 of the Railways

(Transfer to Commonwealth) (Retirement Benefits) Act 1977 of the

State of Tasmania; and

  (e) before 1 July 1990, did not ask to be treated as an eligible

employee; and

  (f) has not asked to be treated as a PSS member.

27  A person who is not eligible to be paid a mobility allowance

for a reason other than the amount of income that the person is

receiving and who:

  (a) is an officer or employee of, or the holder of a statutory

office in, the Australian National Railways Commission; and

  (b) immediately before 17 October 1990, was not:

    (i) a PSS member; and

    (ii) an officer or employee of, or the holder of a statutory

office in, the Australian National Railways Commission.

28  A person:

  (a) to whom Division 2 or 3 of Part IV of the Public Service Act

applies; and

  (b) who, immediately before that Division became applicable to

him or her, was not:

    (i) a PSS member; or

    (ii) an eligible employee for the purposes of the 1976 Act.

29  A person who is not eligible to be paid a mobility allowance

for a reason other than the amount of income that the person is

receiving and:

  (a) to whom Division 2 or 3 of Part IV of the Public Service Act

applies; and

  (b) who joins a superannuation scheme (other than, in the case of

a prescribed person, a scheme of which the person is taken, under

subclause 3 (2), to be a member for top-up purposes) applying to

his or her employment.

30  A person who:

  (a) becomes an officer of the ACT Government Service (other than

a fixed-term SES officer), by virtue of section 6 or 7 of the

Public Sector Management (Consequential and Transitional

Provisions) Act 1994 of the Australian Capital Territory, on the

day on which that Service is established (in this item called a

"transferred officer"); and

  (b) continues to be a transferred officer; and

  (c) immediately before becoming a transferred officer, was:

    (i) an officer for the purposes of the Public Service Act 1922;

or

    (ii) a continuing employee under section 82AC of the Public

Service Act 1922; or

    (iii) a person who was deemed to be a continuing employee under

section 82AD of the Public Service Act 1922; or

    (iv) an officer or employee of a prescribed entity for the

purposes of the Public Sector Management (Consequential and

Transitional Provisions) Act 1994 of the Australian Capital

Territory; and

  (d) immediately before becoming a transferred officer, was not:

    (i) a PSS member; or

    (ii) an eligible employee who made an election and declaration

under subsection 244 (1) of the Superannuation Act 1976; and

  (e) does not, at any time after becoming a transferred officer,

request in writing to be treated as a PSS member.

31  A person who:

  (a) is an officer (other than a fix-term SES officer) of the ACT

Government Service (in this item called a "transferred officer");

and

  (b) was, immediately before becoming a transferred officer:

    (i) a permanent employee of the Australian Capital Territory

Totalizator Administration Board; and

    (ii) a member of the ACTTAB Limited Staff Superannuation Plan;

and

  (c) was, immediately after becoming a transferred officer, an

officer performing duties for the Australian Capital Territory

Totalizator Administration Board; and

  (d) continues to be an officer who performs duties for the

Australian Capital Territory Totalizator Administration Board; and

  (e) does not, at any time after becoming a transferred officer,

cease to be a member of the ACTTAB Limited Staff Superannuation

Plan.

32  A person who:

  (a) is appointed to the Australian Public Service under section

42A of the Public Service Act after 15 December 1994; and

  (b) immediately before being so appointed:

    (i) was employed at a hospital or other institution that is a

repatriation institution for the purposes of the Repatriation

Institutions (Transfer) Act 1992 (other than a hospital or

institution that had been transferred to the control of a State or

Territory under that Act before 16 December 1994); and

    (ii) was a continuing employee within the meaning of subsection

82 (1) of the Public Service Act; and

    (iii) was not a member of the Scheme.