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Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020

Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020

Administered by Department of Finance

Legislation au F2020L00064 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by authority of the Minister for Finance

Superannuation Act 2005

Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020 to amend the Superannuation (PSSAP) Trust Deed and Rules.

On 29 June 2005 the Minister for Finance, for and on behalf of the Commonwealth, made a deed (the PSSAP Trust Deed) under section 10 of the Superannuation Act 2005 to, among other things, establish a superannuation scheme, to be known as the Public Sector Superannuation Accumulation Plan (PSSAP), and the PSSAP Fund from 1 July 2005. The Schedule to the PSSAP Trust Deed includes Rules for the administration of the PSSAP (the Rules).

The PSSAP is established for the benefit of most new Australian Government employees and statutory office holders. Commonwealth Superannuation Corporation (CSC) is the trustee for the PSSAP.

Section 11 of the Superannuation Act 2005 provides that the Minister may amend the PSSAP Trust Deed by signed instrument, subject to obtaining the consent of CSC to the amendment where necessary.

Amending Deed

The Minister for Finance has amended the PSSAP Trust Deed by signed instrument. That instrument is called the Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020. The instrument is referred to as the Amending Deed in this Explanatory Statement.

The purpose of the Amending Deed is to amend the PSSAP Trust Deed provisions detailing the circumstances in which a PSSAP member’s superannuation salary is ordinary time earnings (OTE), to include additional circumstances. The amendments will essentially enable PSSAP members who were subject to an enterprise agreement (EA) that specified that their superannuation salary was OTE and who are subsequently moved to Australian Public Service (APS) employment at an agency on or after 1 February 2020, as a result of a machinery of government change, to have their superannuation salary maintained as such via certain determinations made under the Public Service Act 1999 (PS Act).

Details of the Amending Deed are at Attachment A.

CSC Approval

Section 32 of the Superannuation Act 2005 requires CSC to consent to amendments to the PSSAP Trust Deed except in certain circumstances. These circumstances include where the amendments relate to a payment by the Commonwealth as the employer-sponsor of PSSAP. The amendments contained in the Amending Deed relate solely to such a payment. Accordingly CSC consent to the amendments in the Amending Deed is not required.

Legislation Act 2003

The Amending Deed is a legislative instrument. The amendments to the PSSAP Trust Deed are subject to disallowance in accordance with section 11 of the Superannuation Act 2005.

Consultation

Section 17 of the Legislation Act 2003 specifies that rule-makers should consult before making legislative instruments. The Australian Public Service Commission and CSC have been consulted on the amendments contained in the Amending Deed.

The Office of Best Practice Regulation was consulted and advised that a Regulation Impact Statement is not required (OBPR ID number 26011).

Commencement

The amendments in the Amending Deed come into effect on the day after registration of the Amending Deed on the Federal Register of Legislation.

Statement of Compatibility with Human Rights

A Statement of Compatibility with Human Rights is at Attachment B.

ATTACHMENT A

DETAILS OF THE AMENDING DEED

Name

Section 1 provides that the name of the instrument is the Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020.

Commencement

2. Section 2 sets out the commencement provision for amendments in the Amending Deed. Item 1 of the table in subsection 2(1) provides that the whole of the Amending Deed commences on the day after registration of the Amending Deed on the Federal Register of Legislation (FRL).

3. The note at the end of the table clarifies that the table relates only to provisions of the instrument as originally made, and will not be amended to deal with any later amendments of the instrument.

4. Subsection 2(2) provides that the information in column 3 of the table is not part of the instrument.

Authority

5. Section 3 identifies the authority for the instrument as section 11 of the Superannuation Act 2005.

Schedules

6. Section 4 provides that each instrument specified in a Schedule to the instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the instrument has effect according to its terms.

Schedule 1—Amendments

7. Schedule 1 makes amendments to the PSSAP Trust Deed.

8. Division 2 of Part 2 of the Rules deals with contributions by employers to PSSAP. Rule 2.2.1 essentially requires Commonwealth agencies to pay contributions in respect of employees who are PSSAP members in respect of that employment, equal to 15.4 per cent of their superannuation salary. Rules 2.2.2 and 2.2.3 together operate so that the superannuation salary of such PSSAP members is the amount that would have been their fortnightly contribution salary if they were a member of the earlier, closed Public Sector Superannuation Scheme, unless an applicable agreement or determination of a type listed in Rule 2.2.3 specifies that the PSSAP member’s superannuation salary is OTE.

9. Item 1 amends Rule 2.2.3 by inserting, after existing paragraph 2.2.3(f), new paragraph 2.2.3(fa) setting out additional circumstances in which the superannuation salary of a PSSAP member will be OTE. In particular, new paragraph 2.2.3(fa) provides that the superannuation salary of a PSSAP member (known as an ordinary employer-sponsored member) is OTE if this is specified in a determination of terms and conditions of employment made under subsection 24(1) or subsection 24(3) of the PS Act, by an Agency Head and the Public Service Minister respectively, provided:

the determination applies to a PSSAP member who is moved to an APS Agency on or after 1 February 2020 pursuant to a determination made under paragraph 72(1)(a) of the PS Act; and
the PSSAP member’s superannuation salary was specified as OTE in an enterprise agreement that applied to them immediately before they were moved.

10. The inclusion of new paragraph 2.2.3(fa) will, among other things, obviate the need to take action beyond making a determination under subsection 24(1) or subsection 24(3) of the PS Act, to preserve OTE as the superannuation salary for relevant PSSAP members in the circumstances covered. This will simplify the transition of employees to an agency in the context of a machinery of government change while maintaining the status quo, in terms of superannuation salary, for relevant employees.
ATTACHMENT B

Overview

The Superannuation Act 2005 was enacted to provide a legal framework for the administration of superannuation schemes in Australia, specifically addressing the need for a robust system to manage retirement savings. The Act establishes the Public Sector Superannuation Accumulation Plan (PSSAP) as a means to ensure that most new Australian Government employees and statutory office holders have a structured pathway to accumulate superannuation benefits. The Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020, introduced by the Minister for Finance under section 11 of the Superannuation Act 2005, aims to amend the PSSAP Trust Deed to expand the circumstances under which a PSSAP member's superannuation salary is considered ordinary time earnings (OTE). This amendment is designed to ensure that members who transition from employment covered by an enterprise agreement specifying OTE to Australian Public Service (APS) employment due to machinery of government changes, maintain their superannuation salary as OTE. This legislative change facilitates a smoother transition for affected employees, preserving their superannuation entitlements without additional procedural requirements.

Scope and Application

The Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020 applies to the administration and operation of the Public Sector Superannuation Accumulation Plan (PSSAP), which is a superannuation scheme established under the Superannuation Act 2005 for most new Australian Government employees and statutory office holders. The Commonwealth Superannuation Corporation (CSC) acts as the trustee for the PSSAP. The amendments introduced by the instrument pertain specifically to the circumstances under which a PSSAP member's superannuation salary is considered ordinary time earnings (OTE), thereby affecting how superannuation contributions are calculated and paid. The instrument extends its application to PSSAP members who were subject to an enterprise agreement (EA) specifying their superannuation salary as OTE and subsequently moved to Australian Public Service (APS) employment on or after 1 February 2020, due to a machinery of government change. The instrument's amendments are subject to disallowance under section 11 of the Superannuation Act 2005, and they come into effect on the day after registration on the Federal Register of Legislation. The instrument does not require the consent of CSC, as the amendments relate solely to payments by the Commonwealth as the employer-sponsor of PSSAP.

Key Provisions

The Superannuation Amendment (PSSAP Trust Deed – Superannuation Salary) Instrument 2020 amends the Public Sector Superannuation Accumulation Plan (PSSAP) Trust Deed, which governs the superannuation scheme for most new Australian Government employees and statutory office holders. This amendment is primarily aimed at preserving the ordinary time earnings (OTE) status for superannuation salary for certain PSSAP members who transition from employment under an enterprise agreement (EA) to Australian Public Service (APS) employment as a result of a machinery of government change on or after 1 February 2020 (section 7). Under the new provisions, the superannuation salary of a PSSAP member will be considered OTE if specified in a determination of terms and conditions of employment made under the Public Service Act 1999 (PS Act) by an Agency Head or the Public Service Minister. This applies to PSSAP members who were subject to an EA specifying their superannuation salary as OTE and are subsequently moved to APS employment due to a machinery of government change (Rule 2.2.3(fa)). This amendment simplifies the transition process for these employees by ensuring their superannuation salary status is maintained without additional administrative action. The Superannuation Act 2005 imposes specific obligations on the Commonwealth Superannuation Corporation (CSC), as the trustee for the PSSAP, and on Commonwealth agencies. CSC must ensure the PSSAP Trust Deed is amended in accordance with the signed instrument and the provisions of the Act. Commonwealth agencies, as employers, are required to make contributions to the PSSAP Fund for their employees who are PSSAP members, calculated at 15.4% of the employee's superannuation salary as defined by the Trust Deed and Rules (Rule 2.2.1). Failure to comply with the provisions of the Superannuation Act 2005 and the amended PSSAP Trust Deed can lead to civil and criminal consequences. For instance, if an employer fails to make the required contributions to the PSSAP Fund, they may be subject to enforcement actions under the Act. Additionally, any misrepresentation or fraudulent activity related to the administration of the PSSAP could result in criminal charges. The penalties for such offences can include fines and imprisonment, although the exact penalties are not specified in the explanatory statement. It is important for all parties to adhere to the requirements to avoid legal repercussions.

Area of Law: Superannuation Law; Public Sector Employment Law
Instrument: Instrument
Concepts: Commencement Provisions; Regulatory Standards; Reporting & Disclosure Obligations

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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