explanatory statement
Issued by the authority of the Minister for Superannuation and Corporate Law, acting for and on behalf of the Minister for Finance and Deregulation
Superannuation Act 1976
Declaration under paragraph (ec) of the definition of “eligible employee” in subsection 3(1)
The Superannuation Act 1976 (the 1976 Act) makes provision for and in relation to the Commonwealth Superannuation Scheme (CSS) for Australian Government employees and for certain other persons.
Subsection 3(1) of the 1976 Act contains the definition of the term “eligible employee” that describes various classes of persons who may contribute to the CSS (CSS members). Paragraph (ec) of the definition provides that the Minister may declare a class of persons to be CSS members.
The Superannuation (CSS) (Eligible Employees ─ Inclusion) Declaration 2003 (the Principal Declaration) identifies the persons who are declared to be CSS members under paragraph (ec) of the definition of eligible employee.
The purpose of the Superannuation (CSS) (Eligible Employees ─ Inclusion) Amendment Declaration 2009 (No. 1) (the Declaration) is to amend the Principal Declaration to provide continuing CSS membership for CSS members who are, or become, employees of Health Services Australia Limited.
Under a merger arrangement, Health Services Australia Limited will become a wholly owned subsidiary of Medibank with effect from 1 April 2009. Health Services Australia will no longer be an “approved authority” under the 1976 Act, meaning that its employees will no longer be eligible to contribute to the CSS unless they are specifically identified as CSS members under a different paragraph of the definition of “eligible employee”.
The Declaration ensures continued membership of the CSS for a person employed by Health Services Australia Limited, other than on a temporary or part‑time basis, who:
- was an employee of Health Services Australia Limited and a CSS member on 31 March 2009 and that employment has not ceased, or
- becomes employed by Health Services Australia Limited on or after 1 April 2009 and was a CSS member immediately before becoming so employed.
The Declaration precludes continuing CSS membership for an employee of Health Services Australia Limited who, in relation their employment with the company, is a member of an alternative superannuation scheme.
Medibank and Health Services Australia Limited were consulted on the amendments contained in the Declaration.
The Declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Declaration commences on 1 April 2009.
The details of the Declaration are explained in the Attachment.
Attachment
Superannuation (CSS) (Eligible Employees ─ inclusion) Amendment Declaration 2009 (No. 1)
Section 1 – Name of Declaration
This section provides that the name of the Declaration is the Superannuation (CSS) (Eligible Employees ─ Inclusion) Amendment Declaration 2009 (No. 1).
Section 2 - Commencement
This section provides for the Declaration to commence on 1 April 2009.
Section 3 – Amendment of Superannuation (CSS) Eligible Employees ‑ Inclusion) Declaration 2003
This section provides that Schedule 1 to the Declaration amends the Superannuation (CSS) Eligible Employees ─ Inclusion) Declaration 2003 (the Principal Declaration).
Schedule 1 - Amendments
Item 1 inserts a definition of Health Services Australia Limited for the purposes of the Principal Declaration. Health Services Australia Limited is defined as the company (ACN 078 934 791) that was incorporated under the Corporations Law on 17 June 1997.
Item 2 changes the punctuation at the end of subparagraph 4(2)(o)(iii) of the Principal Declaration from a full stop to a semi-colon as a new paragraph will follow.
Item 3 inserts paragraph 4(2)(p) into the Principal Declaration. This paragraph provides that an employee of Health Services Australia Limited, other than a casual or temporary part-time employee, can remain a CSS member if they:
- were an employee of Health Services Australia Limited and a CSS member on 31 March 2009 and that employment has not ceased; or
- become an employee of Health Services Australia on or after 1 April 2009 and were a CSS member immediately before becoming so employed.
However, the paragraph also provides that an employee is not a CSS member if they are a member of an alternative superannuation scheme, as defined in the Principal Declaration, in relation to their employment with Health Services Australia Limited.
Overview
The Superannuation (CSS) (Eligible Employees – Inclusion) Amendment Declaration 2009 (No. 1) was enacted to address the eligibility of employees for the Commonwealth Superannuation Scheme (CSS) in light of a corporate restructuring involving Health Services Australia Limited. This legislative instrument was issued by the authority of the Minister for Superannuation and Corporate Law, acting on behalf of the Minister for Finance and Deregulation, and aims to ensure that employees of Health Services Australia Limited maintain their CSS membership following its transition into a wholly owned subsidiary of Medibank, effective from 1 April 2009. The primary objective of the Declaration is to amend the existing Superannuation (CSS) (Eligible Employees – Inclusion) Declaration 2003 to include these employees in the CSS, except for those who are members of an alternative superannuation scheme in relation to their employment. This amendment is intended to maintain continuity in superannuation arrangements for affected employees, ensuring they are not disadvantaged by the corporate changes.
Scope and Application
The Superannuation (CSS) (Eligible Employees – Inclusion) Amendment Declaration 2009 (No. 1) amends the Superannuation (CSS) (Eligible Employees – Inclusion) Declaration 2003 to ensure continued Commonwealth Superannuation Scheme (CSS) membership for employees of Health Services Australia Limited following its merger with Medibank. The Declaration applies to employees who were CSS members of Health Services Australia Limited as of 31 March 2009 and continue their employment, as well as those who become employees of Health Services Australia Limited on or after 1 April 2009, provided they were CSS members prior to their employment. However, employees who are members of an alternative superannuation scheme in relation to their employment with Health Services Australia Limited are excluded from continued CSS membership. The Declaration is a legislative instrument under the Legislative Instruments Act 2003 and commenced on 1 April 2009.
Key Provisions
The Superannuation (CSS) (Eligible Employees ─ Inclusion) Amendment Declaration 2009 (No. 1) amends the existing Superannuation (CSS) (Eligible Employees ─ Inclusion) Declaration 2003 to continue the eligibility of certain employees for the Commonwealth Superannuation Scheme (CSS) following a corporate restructuring. This amendment is critical for maintaining the superannuation benefits for employees who transition from Health Services Australia Limited to Medibank, a wholly owned subsidiary that will take over Health Services Australia Limited (sections 1-3). Specifically, the Declaration ensures that employees who were part of Health Services Australia Limited on 31 March 2009 and those who join after 1 April 2009, provided they were CSS members immediately before their employment, can remain CSS members (section 3, Schedule 1, Item 3). Conversely, employees who join Health Services Australia Limited and are members of another superannuation scheme in relation to their employment will not be eligible for CSS membership (section 3, Schedule 1, Item 3).
The Declaration imposes specific obligations on Health Services Australia Limited and its employees, particularly those transitioning to Medibank. Health Services Australia Limited must ensure that its employees who were CSS members prior to the merger are aware of their continued eligibility and any conditions attached to it. Employees, on their part, must verify their CSS membership status and report any changes in their superannuation scheme membership to maintain their eligibility. The Declaration requires the Principal Declaration to be updated to reflect these changes, ensuring that the legislative framework accurately captures the current employment structure and superannuation eligibility (section 3, Schedule 1, Items 1-3).
The Superannuation Act 1976 does not explicitly state penalties for non-compliance with the Declaration. However, the broader superannuation framework under which this legislation operates can incur penalties for breaches. For instance, under the Superannuation Industry (Supervision) Act 1993, penalties can include fines of up to $22,200 for individuals and $111,000 for corporations for non-compliance with superannuation laws. Additionally, civil and criminal penalties can apply for fraudulent behaviour or deliberate non-compliance, which could result in more severe fines and imprisonment (Superannuation Industry (Supervision) Act 1993, sections 127A and 127B). Ensuring adherence to the Declaration is therefore crucial to avoid these potential legal and financial repercussions.