Superannuation (Eligible Employees) Regulations (Amendment) 1994 No. 133
EXPLANATORY STATEMENT
STATUTORY RULES 1994 No. 133
Issued by the authority of the Minister for Finance
Superannuation Act 1976
Superannuation (Eligible Employees) Regulations (Amendment)
The Superannuation Act 1976 (the 1976 Act) makes provision for and in relation to an occupational superannuation scheme (known as the CSS) for certain Commonwealth employees and other persons.
Since 1 July 1990 the CSS has been replaced by the Superannuation Scheme established by deed under the Superannuation Act 1990 (known as the PSS) as the main superannuation scheme for Commonwealth employees. Membership of the CSS continues to be available to existing members and certain former members (for example, former members with preserved benefits in the CSS).
Section 168 of the 1976 Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters that the Act requires, or permits to be prescribed, for carrying out or giving effect to the Act..
Persons eligible to contribute to the CSS are referred to in the 1976 Act as eligible employees. The term "eligible employee" is defined in subsection 3(1) of the 1976 Act. In accordance with paragraph (j) of that definition, certain persons included in a prescribed class of persons may be excluded from becoming, or remaining, eligible employees. The classes of persons so excluded are prescribed in the Superannuation (Eligible Employees) Regulations (the Principal Regulations).
The Department of Defence currently employs certain temporary employees under section 42 of the Naval Defence Act 1910. Those staff are to be transferred to permanent employment under the Public Service Act 1922 (the PS Act) on 19 May 1994.
Membership of the CSS or the PSS is optional for temporary employees. Many of the Department of Defence staff who are to be transferred have not exercised an option to join the CSS or the PSS.
Membership of the CSS or the PSS is compulsory for a permanent employee under the PS Act. Therefore, those Department of Defence staff who become permanent employees as a result of the transfer and who are eligible to join the CSS will automatically become eligible employees on the date of the transfer.
As the transfer has not been initiated by the individual employees it is intended that those who are eligible to join the CSS retain their option to join the CSS. The Regulations will amend the Principal Regulations to permit the transferring staff to continue to have the option not to become eligible employees unless they specifically request. The details of the amending Regulations are described in the attachment.
The amendments will come into operation on 19 May 1994 (the day the transfers take place). The Regulations give effect to these modifications
ATTACHMENT
SUPERANNUATION (ELIGIBLE EMPLOYEES) REGULATIONS (AMENDMENT)
REGULATION 1
This provides that the Superannuation (Eligible Employees) Regulations (Amendment) (the Amending Regulations) are taken to have commenced on 19 May 1994.
REGULATION 2
This provides that the Superannuation (Eligible Employees) Regulations (the Principal Regulations) are amended as set out in the amending Regulations.
SUBREGULATION 3.1
This amends regulation 4 of the Principal Regulations which lists prescribed classes of persons for the purposes of paragraph (j) of the definition of "eligible employee" in subsection 3(1) of the 1976 Act. Persons included in such a class will not be eligible employees (that is, members of the CSS). The class described in the amending Regulations includes persons who:
- immediately before 19 May 1994 were employed under section 42 of the Naval Defence Act 1910 and were not eligible employees under the provisions of the 1976 Act;
- are appointed as officers of the Australian Public Service under section 81B of the Public Service Act 1922 on 19 May 1994;
- have not ceased to be officers of the Australian Public Service since 19 May 1994; and
- have not made a written request to be treated as eligible employees.
Overview
The Superannuation (Eligible Employees) Regulations (Amendment) 1994 No. 133 was enacted to address the issue of temporary employees of the Department of Defence who were to be transferred to permanent employment under the Public Service Act 1922. The Superannuation Act 1976 (the 1976 Act) governs an occupational superannuation scheme for Commonwealth employees, and it allows for the exclusion of certain classes of persons from becoming eligible employees. The problem this regulation sought to resolve was ensuring that eligible employees who were being transferred from temporary to permanent positions retained the option to join the Commonwealth superannuation scheme unless they explicitly requested to do so. The regulation was issued under the authority of the Minister for Finance and aligns with the policy objective of ensuring a smooth transition for these employees while maintaining their rights regarding superannuation membership.
The Superannuation (Eligible Employees) Regulations (Amendment) 1994 No. 133 modifies the existing Superannuation (Eligible Employees) Regulations by amending the list of prescribed classes of persons who may be excluded from eligibility. This amendment specifically targets employees who were employed under the Naval Defence Act 1910 and were not eligible employees prior to their transfer to permanent positions under the Public Service Act 1922. The changes will allow these employees to retain their option to join the Commonwealth superannuation scheme unless they make a written request to become eligible employees. These amendments were designed to take effect on 19 May 1994, the date of the transfer.
Scope and Application
The Superannuation (Eligible Employees) Regulations (Amendment) 1994 No. 133 applies to certain temporary employees of the Department of Defence who are set to be transferred to permanent employment under the Public Service Act 1922 on 19 May 1994. The Regulations amend the Superannuation (Eligible Employees) Regulations to provide that these employees will retain the option not to become eligible employees unless they specifically request to join the Commonwealth Superannuation Scheme or the Public Service Superannuation Scheme. The amendments are designed to ensure that the transferring staff are not automatically enrolled in the superannuation scheme but instead have the choice to opt-in. This applies to individuals who were employed under section 42 of the Naval Defence Act 1910 and were not previously eligible employees under the Superannuation Act 1976. These changes will take effect on the date of the transfer, 19 May 1994, and are made to ensure the Regulations align with the new employment status of these staff members.
Key Provisions
The Superannuation (Eligible Employees) Regulations (Amendment) 1994 No. 133, issued under the authority of the Minister for Finance, provides amendments to the existing Superannuation (Eligible Employees) Regulations to accommodate the transfer of certain temporary Department of Defence employees to permanent positions under the Public Service Act 1922. The main operative sections of the amendment include Regulation 1, which specifies that the Amending Regulations commence on 19 May 1994, and Regulation 2, which details the amendments to the Principal Regulations. Subregulation 3.1 modifies regulation 4 of the Principal Regulations, which delineates the prescribed classes of persons who may be excluded from eligibility as members of the Commonwealth Superannuation Scheme (CSS). The amendments pertain to individuals who were employed under the Naval Defence Act 1910 and are now being transferred to permanent positions under the Public Service Act 1922, provided they have not opted to become eligible employees.
The obligations imposed by the amendment ensure that those Defence employees transitioning to permanent positions retain the option to join the CSS. They must not be automatically designated as eligible employees unless they explicitly request such status in writing. This measure ensures that the transfer does not force individuals into superannuation membership against their will, maintaining their autonomy in the decision-making process regarding their superannuation arrangements. These obligations are clearly defined within the regulations to ensure compliance and clarity for all affected parties.
Failure to comply with the provisions outlined in the regulations may result in significant consequences. While the explanatory statement does not explicitly state specific offences, penalties, or civil/criminal consequences for breaches, it is implied that non-compliance could lead to legal ramifications under the Superannuation Act 1976. Given the nature of the regulations, any breach could potentially involve civil penalties or legal actions to enforce compliance with the superannuation membership requirements. The absence of specific penalties in the explanatory statement suggests that the general legal framework under the Superannuation Act 1976 would apply, which could include fines or other civil remedies for non-compliance.