Superannuation Act 1990 - Designated Employers Determination No. 2 (15/09/1995)

Overview

The Superannuation Act 1990, enacted by the Parliament of Australia, was introduced to establish a framework for superannuation schemes in Australia, addressing the need for a mandatory, sustainable system to ensure financial security for individuals in their retirement. The Designated Employers Determination No. 2, dated 15 September 1995, was made by David Lindsay, Assistant Secretary, Commonwealth Employees' Superannuation Branch, a delegate of the Minister for Finance, under subparagraph (1)(b)(ii) of section 3AA of the Superannuation Act 1990. The policy objective of this determination is to clarify and specify the designated employers for the purposes of superannuation contributions, ensuring that the correct entity is responsible for making contributions on behalf of their employees. This determination aims to provide clarity and certainty in the enforcement of superannuation laws, facilitating compliance and protecting the interests of superannuation members.

Scope and Application

The Designated Employers Determination No. 2 applies to employers who are required to make superannuation contributions for their employees under the Superannuation Act 1990. Specifically, the determination identifies the Department or any person who pays the salary of an employee as a designated employer, as defined under subparagraph (1)(b)(ii) of section 3AA of the Act. The scope of this determination encompasses any entity or individual that remunerates an employee in a manner that mandates the payment of superannuation contributions. The application of the Act is not limited to a specific geographic area but applies across the Commonwealth of Australia, thereby impacting employers nationwide. There are no exclusions, exemptions, or thresholds specified in the determination itself, although the overarching Act may provide for certain exclusions or specific conditions that apply to different categories of employers and employees. This determination is a legislative instrument that extends the application of the Superannuation Act 1990 by clarifying the definition of designated employers, thereby ensuring that superannuation obligations are correctly identified and met by those responsible for employee remuneration.

Key Provisions

The key provisions of the Designated Employers Determination No. 2 are contained in sections 1 and 2. Section 1 provides that this determination can be cited as "Designated Employers Determination No. 2", while Section 2 specifies that the designated employer under consideration is the Department or person who pays the salary of a member referred to in Part 3 of the Superannuation Act 1990 (section 2(1)). This means that any employer who is responsible for paying the salary of a superannuation member falls within the definition of a designated employer under this determination. The obligations and requirements imposed by this determination are primarily concerned with the identification and responsibilities of designated employers. Section 2(1) mandates that the Department or any person who pays the salary of a superannuation member is to be considered a designated employer. This implies that such employers must comply with the relevant provisions of the Superannuation Act 1990, including the obligations to make the required superannuation contributions and ensure compliance with the Act's requirements. They must also be prepared to engage with the relevant authorities, such as the Australian Taxation Office (ATO), in relation to any compliance or audit processes. In terms of consequences for non-compliance, the Designated Employers Determination No. 2 does not explicitly outline specific offences or penalties. However, under the broader framework of the Superannuation Act 1990, non-compliance by designated employers can lead to serious civil and criminal penalties. For instance, failure to make the required superannuation contributions can result in civil penalties, including the imposition of a Superannuation Guarantee Charge (SGC). In more severe cases, such as deliberate or reckless non-compliance, criminal penalties can be applied, which may include fines and imprisonment. The exact penalties are determined by the relevant provisions of the Superannuation Act 1990 and can vary based on the nature and extent of the non-compliance. It is also important to note that the ATO has the authority to take enforcement actions against non-compliant employers, which can further compound the financial and legal consequences for those who fail to comply with their obligations under the Act.