Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1)

Administered by Department of Finance

Legislation au F2008L01467 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 79

 
Issued by authority of the Minister for Superannuation and Corporate Law acting for and on behalf of the Minister for Finance and Deregulation

 

 Superannuation Act 1976

 

Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1)

 

The Superannuation Act 1976 (the Act) makes provision for the Commonwealth Superannuation Scheme (CSS), which is an occupational superannuation scheme for Australian Government employees and for certain other persons.

 

Subsection 168(1) of the Act provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

Section 5 of the Act provides that the regulations may prescribe that the annual rate of salary on a particular day is an amount equal to such an amount as is worked out under the regulations. Regulations for the purposes of section 5 are contained in the Superannuation (CSS) Salary Regulations 1978 (the Principal Regulations). The rate of contribution payable under the Act by a member of the CSS is based on the member’s annual rate of salary and the rate of pension payable generally is based on that salary.

 

Part 2EA of the Principal Regulations provides for an annual rate of salary for the purposes of the Act for a CSS member who is covered by an agreement including a ‘workplace agreement’ within the meaning of the Workplace Relations Act 1996 (the WR Act).

 

The purpose of the Regulations is to make consequential amendments to the Principal Regulations resulting from the passage of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (the Transition Act), which amends the WR Act. Relevantly, those amendments removed the reference to ‘AWA’ in the definition of ‘workplace agreement’ and inserted a new Schedule 7A to the WR Act that provides for transitional arrangements for existing AWAs.

Specifically, the Regulations would amend the definition of ‘agreement’ used in Part 2EA of the Principal Regulations so that the Principal Regulations operate appropriately in the context of the amended WR Act.

Details of the Regulations are set out in the Attachment.

Subsection 168(13) of the Act provides that regulations may not be made under the Act unless the Board (the Australian Reward Investment Alliance, or ARIA) has consented to those regulations. The Board has consented to the making of these regulations.

No consultation is required as the instrument is machinery in nature and does not substantially alter existing arrangements.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Regulations are taken to have commenced on the commencement of Schedule 1 to the Transition Act. This provision for commencement ensures that a person’s agreed salary for superannuation purposes that is set out in a AWA continues to apply to that person at all times during the transition period. By doing so, it ensures that the rights of a person in relation to their annual rate of salary for superannuation purposes are maintained in accordance with the agreed terms of the person’s AWA.


ATTACHMENT

 

Details of the Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation sets out the name of the Regulations as the Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to be taken to have commenced at the same time as Schedule 1 to the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (the Transition Act). That Schedule was proclaimed to commence on 28 March 2008.

 

Regulation 3 – Amendment of Superannuation (CSS) Salary Regulations 1978

 

This regulation provides that Schedule 1 to the Regulations amends the Superannuation (CSS) Salary Regulations 1978.

 

Schedule 1 – Amendments

 

Item [1] - regulation 8QC, Interpretation

 

The Transition Act amends the definition of ‘workplace agreement’ in the Workplace Relations Act 1996 (the WR Act) to exclude an ‘AWA’.  It also inserts a new Schedule 7A to the WR Act that includes a new definition of ‘AWA’. 

 

Regulation 8QC contained a definition of ‘agreement’ which includes a ‘workplace agreement’. As a consequence of the Transition Act, this did not include an ‘AWA’ because ‘workplace agreement’ under the WR Act is no longer defined to include ‘AWA’. However, this item ensures that an existing AWA continues to be a type of agreement covered by the Principal Regulations by including an AWA in the definition of agreement, for the purposes of the Principal Regulations. This ensures that a person whose superannuation salary for CSS purposes was set in an AWA before the commencement of the Transition Act will continue to be able to have his or her superannuation salary set in that way for the remainder of the duration of their AWA.

 

Item [2] - regulation 8QC, Interpretation

 

This item inserts a definition of ‘AWA’ in regulation 8QC.  It provides that ‘AWA’ has the same meaning a given by Schedule 7A to the WR Act.

Overview

The Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1) were enacted to amend the Superannuation (CSS) Salary Regulations 1978, which are subsidiary legislation under the Superannuation Act 1976. The principal aim of these regulations was to ensure the continued operation of the Commonwealth Superannuation Scheme (CSS) in light of the amendments introduced by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. This was necessary as the latter Act altered the definition of ‘workplace agreement’ in the Workplace Relations Act 1996, thereby impacting how superannuation salaries were determined for CSS members under workplace agreements. The Australian Reward Investment Alliance (ARIA) Board, acting in its capacity to oversee the CSS, provided consent for these regulations, which were considered machinery in nature and did not require consultation. The regulations were designed to maintain the integrity of existing agreements and ensure that CSS members’ entitlements under their workplace agreements were preserved during the transition period.

Scope and Application

The Superannuation Act 1976 provides for the Commonwealth Superannuation Scheme (CSS), which is an occupational superannuation scheme for Australian Government employees and certain other individuals. The Act is applicable to the Commonwealth and its employees, as well as to certain other persons who are covered by the scheme. The Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1) amend the Superannuation (CSS) Salary Regulations 1978 to ensure that the Principal Regulations operate appropriately in the context of the amended Workplace Relations Act 1996, as a result of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. The Regulations amend the definition of ‘agreement’ in the Principal Regulations to include an ‘AWA’ (Agreed Workplace Agreement) for the purposes of the Principal Regulations, ensuring that an existing AWA continues to be a type of agreement covered by the Principal Regulations. The Regulations do not apply to any entities or industries outside of the Commonwealth Superannuation Scheme, nor do they apply to any conduct or transactions outside of the scheme. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and have been consented to by the Australian Reward Investment Alliance (ARIA).

Key Provisions

The Superannuation (CSS) Salary Amendment Regulations 2008 (No. 1) make several amendments to the existing Superannuation (CSS) Salary Regulations 1978, primarily to ensure the smooth operation of the Commonwealth Superannuation Scheme (CSS) in light of changes made by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Transition Act). These amendments are necessary to maintain the integrity of the CSS in accordance with the new legislative framework. Regulation 3 specifies that Schedule 1 of these Regulations amends the Principal Regulations. Specifically, Item [1] of Schedule 1 amends regulation 8QC, which concerns the interpretation of the term ‘agreement’ in the Principal Regulations. This amendment ensures that an ‘Australian Workplace Agreement’ (AWA) remains recognised as a valid type of agreement under the Principal Regulations, thus preserving the ability of individuals to have their superannuation salary set through an AWA. Item [2] further clarifies this by inserting a definition of ‘AWA’ into regulation 8QC, aligning it with the definition provided in Schedule 7A of the Workplace Relations Act 1996 as amended by the Transition Act. The Regulations impose certain obligations on the parties involved, primarily ensuring that the definition of ‘agreement’ and ‘AWA’ within the Principal Regulations is updated to reflect the changes made by the Transition Act. This requires employers and employees covered by the CSS who have agreed upon superannuation contributions via an AWA to ensure that these agreements remain valid and enforceable under the amended regulations. The amendments are designed to maintain the existing terms of superannuation agreements, thus ensuring that individuals’ entitlements under the CSS are not adversely affected by the legislative changes. Under the Superannuation Act 1976, there are potential consequences for non-compliance with the regulations. While the Explanatory Statement does not detail specific offences or penalties within the context of these amendments, general provisions of the Act could lead to legal action for failure to comply with the requirements set forth in the regulations. Such non-compliance could potentially result in civil or criminal penalties, depending on the severity and intent behind the breach. For instance, failure to correctly apply the terms of an AWA could result in disputes over superannuation entitlements, leading to litigation under the Act. The maximum penalties for breaches of superannuation laws can include substantial fines and, in some cases, imprisonment, reflecting the seriousness with which the Australian government regards compliance with superannuation regulations.

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