Superannuation Guarantee (Administration) Act 1992

Superannuation Guarantee (Administration) Act 1992

No. 111, 1992

Compilation No. 78

Compilation date: 1 July 2026

Includes amendments: Act No. 57, 2025

About this compilation

This compilation

This is a compilation of the Superannuation Guarantee (Administration) Act 1992 that shows the text of the law as amended and in force on 1 July 2026 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au).

Application, saving and transitional provisions

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Presentational changes

The Legislation Act 2003 provides for First Parliamentary Counsel to make presentational changes to a compilation. Presentational changes are applied to give a more consistent look and feel to legislation published on the Register, and enable the user to more easily navigate those documents.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. Any modifications affecting the law are accessible on the Register.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

Contents

Part 1—Preliminary

1 Short title

2 Commencement

3 Act binds Crown etc.

4 Application

5 Application of Act to Commonwealth

5A Application of Act to Commonwealth authorities

5B Jurisdiction etc. of the Fair Work Commission not affected

5C Application of the Criminal Code

Part 2—Explanation of terms used in the Act

6 Interpretation—general

6AA Interpretation: defined benefit member

6A Interpretation: defined benefit superannuation scheme

6B Interpretation: conversion notice

7 Interpretation: complying superannuation fund or scheme

7A Interpretation: complying approved deposit fund

8 Interpretation: resident of Australia

10 Interpretation: benefit certificate

10A Interpretation: expressions relating to qualifying earnings

12 Interpretation: employee, employer

12A Interpretation: references to industrial instruments

Part 3—Liability of employers other than the Commonwealth and tax‑exempt Commonwealth authorities to pay superannuation guarantee charge

Division 1—Application to former employees and for international social security agreements

15B Application of Part to former employees

15C Certificates of coverage for international social security agreements

Division 2—Superannuation guarantee charge payable by employers

Subdivision A—Superannuation guarantee charge is payable on superannuation guarantee shortfalls

16 Simplified outline of this Division

16A Superannuation guarantee charge payable by employers

16B Superannuation guarantee shortfalls

Subdivision B—Individual superannuation guarantee amounts arise if qualifying earnings are paid etc.

17 Simplified outline of this Subdivision

17A When an individual superannuation guarantee amount arises

17B An exemption certificate can reduce this amount to nil

17C Issuing an exemption certificate

17D Notice about an exemption certificate

Subdivision C—Individual superannuation guarantee shortfalls arise if insufficient timely eligible superannuation contributions are made

18 Simplified outline of this Subdivision

18A Meaning of eligible contribution—main rules

18B Meaning of eligible contribution—exceptions

18C Employer’s individual base superannuation guarantee shortfall for an employee and a QE day

18D Employer’s individual final superannuation guarantee shortfall for an employee and a QE day

Subdivision D—Notional earnings and administrative uplift

19 When this Subdivision applies

19A Individual notional earnings component—sum of an amount for each day that the individual final superannuation guarantee shortfall is greater than nil

19B Administrative uplift for a QE day

Subdivision E—Loading for failing to comply with choice of fund requirements

20 When this Subdivision applies

20A Employer’s choice loading for the QE day

20B Defined benefit schemes—certain cases where members cannot choose another fund

20C Limit on choice loading for the QE day

20D Relying on most recent Commissioner notification

Division 3—Arrangements to avoid paying superannuation guarantee charge

30 Arrangements to avoid payment of superannuation guarantee charge

Part 3A—Choice of fund requirements

Division 1—Overview of Part

32A Purpose of Part

32B Structure of Part

Division 2—Which contributions satisfy the choice of fund requirements?

32C Contributions that satisfy the choice of fund requirements

32CA Certain contributions taken not to satisfy the choice of fund requirements

Division 3—Eligible choice funds

32D What funds are eligible choice funds?

32E Meaning of funds—includes RSAs and schemes

Division 4—Choosing a fund

32F What is a chosen fund

32FA Employer may refuse to accept certain chosen funds

32G Limit on funds that may be chosen

32H When fund ceases to be a chosen fund

32J A successor fund may become a chosen fund

Division 6—Standard choice forms

32N When a standard choice form must be provided

32NA When a standard choice form does not have to be provided

32P Standard choice form

Division 7—Stapled funds

32Q What is the stapled fund for an employee

32R Identifying any stapled funds for employees

Division 8—Miscellaneous

32W Disclosing tax file numbers provided in standard choice forms

32X Application of Part to different employers of an employee

32Z Contributions satisfy Commonwealth or Territory industrial award requirements—chosen funds and stapled funds etc.

32ZAA Contributions satisfy State or Territory law requirements—chosen funds and stapled funds etc.

32ZAB Effect of blocking contributions to PSSAP etc.—eligible choice funds

32ZA Employers not liable for damages

Part 4—Voluntary disclosure statements and assessments

33 Voluntary disclosure statements

36 Assessments of superannuation guarantee charge

37 Amendment of assessments

38 Refund of overpaid amounts

39 Amended assessment to be an assessment

40 Notice of assessment or amendment

41 Validity of assessment

42 Objections against assessment

Part 5—Administration

43 General administration of Act

44 Annual report

Part 6—Collection and recovery of charge

49 Unpaid superannuation guarantee charge

57 Public officer of company

57A Notifying and serving companies

58 Public officer of trust estate

Part 7—Penalty for late or non‑payment of superannuation guarantee charge

59 Simplified outline of this Part

59A Notice to pay unpaid superannuation guarantee charge

59B Consequences if a liability to pay all or part of the specified amount is reduced or ceases to exist

59C Penalty for failing to pay unpaid superannuation guarantee charge specified in the notice

59D Assessment and notification of liability to pay the penalty

59E Amending penalty assessments

Part 8—Payments of amounts of shortfall components for the benefit of employees

63A Payments to which this Part applies

63B Overview of this Part

64A The shortfall component for one benefiting employee

64B The shortfall component for more than one benefiting employee

65 Payment of shortfall component

65AA Shortfall component and former temporary resident

65A Payment to employee who is over 65

66 Payment to employee retired due to permanent incapacity or invalidity

66A Payment to employee with terminal medical condition

67 Payment where employee deceased

69 Repayment of overpayments relating to a shortfall component

69A Recovery of shortfall component incorrectly credited to an account kept under the Small Superannuation Accounts Act 1995

71 Appropriation

Part 9—Miscellaneous

72 Treatment of partnerships

73 Treatment of unincorporated associations

74 Amnesty in relation to historic amounts of superannuation guarantee shortfall

79 Records to be kept and retained by employers

80 Regulations

Endnotes

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

An Act relating to the establishment and administration of the Superannuation Guarantee Scheme, and for related purposes

Part 1—Preliminary

1  Short title

  This Act may be cited as the Superannuation Guarantee (Administration) Act 1992.

2  Commencement

  This Act commences on 1 July 1992.

3  Act binds Crown etc.

 (1) This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory and the Northern Territory.

 (2) Nothing in this Act permits the Crown to be prosecuted for an offence.

4  Application

  This Act extends to every external Territory referred to in the definition of Australia.

5  Application of Act to Commonwealth

 (1) The Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are not liable to pay superannuation guarantee charge.

 (2) However, subject to this Act and to such modifications as are prescribed, this Act applies in all other respects, in respect of any matter or thing in respect of the employment of a Commonwealth employee, as if:

 (a) the employee were employed by the responsible Department and not by the Commonwealth; and

 (b) the responsible Department were a company and each other Department, and each authority of the Commonwealth, were a company related to the responsible Department; and

 (c) the responsible Department were a government body.

 (2A) In addition, subject to such modifications as are prescribed, this Act applies in relation to an untaxable Commonwealth authority in the same way as it applies in relation to a Commonwealth Department.

 (2B) The Finance Minister may give such directions in writing as are necessary or convenient to be given for carrying out or giving effect to this section and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or a Commonwealth entity.

 (2C) Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth.

 (3) Part 8 has effect as if any superannuation guarantee charge in respect of a superannuation guarantee shortfall of either of the following entities:

 (a) a responsible Department;

 (b) an untaxable Commonwealth authority;

had been paid on the day that the charge would have become payable had that entity been a company.

 (4) Subsection 14ZX(4), section 14ZZ and Divisions 4 and 5 of Part IVC of the Taxation Administration Act 1953 do not apply to the Commonwealth, Commonwealth Departments or untaxable Commonwealth authorities.

 (5) In this section:

Commonwealth Department means:

 (a) a Department of State; or

 (b) a Department of the Parliament established under the Parliamentary Service Act 1999; or

 (c) a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Secretary of a Department of the Australian Public Service.

Commonwealth entity means a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.

Finance Department means the Department administered by the Finance Minister.

Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.

responsible Department, in relation to the employment of a Commonwealth employee, means:

 (a) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an annual Appropriation Act—the Commonwealth Department in respect of which the money was appropriated; and

 (b) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an Act other than an annual Appropriation Act:

 (i) if the employee performs or performed the duties of that employment in, or in respect of, a Commonwealth Department—that Commonwealth Department; or

 (ii) in any other case—the Department of State administered by the Minister who administers the Act under which that money was appropriated, insofar as the Act appropriated that money; and

 (c) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated by the Constitution—the Finance Department.

untaxable Commonwealth authority means an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.

5A  Application of Act to Commonwealth authorities

 (1) In this section:

Commonwealth authority means an authority or body that is established by or under a law of the Commonwealth.

 (2) If:

 (a) a law, or a provision of a law, passed before the commencement of this section purports to exempt a Commonwealth authority from liability to pay:

 (i) taxes under the laws of the Commonwealth; or

 (ii) certain taxes under the laws of the Commonwealth; and

 (b) apart from this subsection, the exemption would apply to superannuation guarantee charge;

that law or provision is taken not to have exempted, or not to exempt, that authority from liability to pay the charge.

 (3) If:

 (a) a law, or a provision of a law, passed after the commencement of this section purports to exempt a Commonwealth authority from liability to pay:

 (i) taxes under the laws of the Commonwealth; or

 (ii) certain taxes under the laws of the Commonwealth; and

 (b) apart from this subsection, the exemption would apply to superannuation guarantee charge;

the law or provision is not taken to have exempted, or to exempt, the authority from liability to pay the charge unless the law or provision expressly exempts the authority from liability to pay the charge.

5B  Jurisdiction etc. of the Fair Work Commission not affected

 (1) To avoid doubt, but subject to subsection (2), nothing in this Act (other than Part 3A) or in the Superannuation Guarantee Charge Act 1992 affects:

 (a) the jurisdiction, functions or powers of the Fair Work Commission; or

 (b) the operation of the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in any other way.

 (2) Subsection (1) does not apply to any express reference in the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to this Act or to the Superannuation Guarantee Charge Act 1992.

5C  Application of the Criminal Code

  Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Part 2—Explanation of terms used in the Act

6  Interpretation—general

Note: The meanings of some old kinds of industrial instruments referred to in this Act can be worked out under subsection 12A(1).

 (1) In this Act, unless the contrary intention appears:

actuary means a Fellow or Accredited Member of The Institute of Actuaries of Australia.

administrative uplift amount has the meaning given by subsection 19B(1).

approved deposit fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

approved form has the meaning given by section 388‑50 in Schedule 1 to the Taxation Administration Act 1953.

arrangement, for the purposes of section 30, means:

 (a) an agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; or

 (b) any scheme, plan, proposal, action, course of action or course of conduct.

assessment means an assessment under subsection 36(1).

associate has the meaning given by section 318 of the Income Tax Assessment Act 1936.

Australia, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.

benefit certificate has the meaning given by section 10.

business day means a day other than:

 (a) a Saturday or a Sunday; or

 (b) a day which is a public holiday for the whole of:

 (i) any State; or

 (ii) the Australian Capital Territory; or

 (iii) the Northern Territory.

choice loading has the meaning given by subsection 20A(1).

choice loading limit has the meaning given by section 20C.

Commissioner means the Commissioner of Taxation.

Commonwealth employee means an employee of the Commonwealth.

Commonwealth industrial award means:

 (a) an industrial award or determination made under a law of the Commonwealth; or

 (b) an industrial agreement approved or registered under such a law; or

 (c) a notional agreement preserving State awards; or

 (d) a preserved State agreement.

complying approved deposit fund has the meaning given by section 7A.

complying superannuation fund has the meaning given by section 7.

complying superannuation fund or scheme means:

 (a) a complying superannuation fund; or

 (b) a complying superannuation scheme.

complying superannuation scheme has the meaning given by section 7.

concessional contributions has the same meaning as in the Income Tax Assessment Act 1997.

conversion notice has the meaning given by section 6B.

CSS means the scheme known as the Commonwealth Superannuation Scheme.

data processing device means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.

defined benefit member, subject to section 6AA, means a member entitled on retirement to be paid a benefit defined, wholly or in part, by reference to either or both of the following:

 (a) the amount of the member’s salary:

 (i) at the date of the member’s retirement or an earlier date; or

 (ii) averaged over a period before retirement;

 (b) a specified amount.

defined benefit superannuation scheme has the meaning given by section 6A.

Deputy Commissioner means a Deputy Commissioner of Taxation.

eligible contribution has the meaning given by sections 18A and 18B.

employee has a meaning affected by section 12.

employer has a meaning affected by section 12.

employer shortfall exemption certificate means a certificate issued under section 17C.

enterprise agreement has a meaning affected by subsection 12A(2).

excess concessional contributions has the same meaning as in the Income Tax Assessment Act 1997.

extended usual period, for a QE day and an employer, means the period:

 (a) starting on the QE day; and

 (b) ending on the 20th business day after the QE day.

general interest charge means the charge worked out under Part IIA of the Taxation Administration Act 1953.

government body means:

 (a) the Commonwealth or a State or Territory; or

 (b) a Commonwealth, State or Territory authority.

individual base superannuation guarantee shortfall has the meaning given by subsection 18C(1).

individual final superannuation guarantee shortfall has the meaning given by subsection 18D(1).

individual notional earnings component has the meaning given by subsection 19A(1).

individual superannuation guarantee amount has the meaning given by subsection 17A(2).

industrial award means a Commonwealth industrial award, a State industrial award or a Territory industrial award.

late period, for a QE day, an employer and an employee, means the period:

 (a) starting on the day after the latest day that an eligible contribution made by the employer for the benefit of the employee is able to be applied under subsection 18C(1) for the QE day; and

 (b) ending on the day before the day an assessment for the QE day is made for the employer.

liability to the Commonwealth means a liability to the Commonwealth arising under an Act of which the Commissioner has the general administration.

lodge means lodge with the Commissioner.

maximum contributions base has the meaning given by subsection 10A(5).

MySuper member has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

occupational superannuation arrangement, in relation to the employment of a person, means an agreement that imposes an obligation on the person’s employer to contribute to a superannuation fund for the benefit of the person.

offence against this Act includes an offence relating to this Act against:

 (a) the Crimes Act 1914; or

 (b) the Taxation Administration Act 1953.

ordinary time earnings, for a person, means all of the person’s earnings as an employee made up of:

 (a) earnings in respect of ordinary hours of work; and

 (b) earnings consisting of over‑award payments, shift‑loading or commission;

other than a lump sum payment of any of the following kinds made to the person on the termination of the person’s employment:

 (c) a payment in lieu of unused sick leave;

 (d) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997.

part‑time employee means a person who is employed to work not more than 30 hours per week.

payment day, for an eligible contribution, has the meaning given by paragraph 33(3)(b).

payment of qualifying earnings to or for an employee has the meaning given by subsection 10A(4).

penalty assessment means an assessment under subsection 59D(1).

proceeding under this Act includes:

 (a) a proceeding for an offence against this Act; or

 (b) a proceeding under the Taxation Administration Act 1953 relating to this Act.

PSS means the Public Sector Superannuation Scheme within the meaning of the Superannuation Act 1990.

PSSAP means the Public Sector Superannuation Accumulation Plan within the meaning of the Superannuation Act 2005.

public sector scheme means a scheme of superannuation established:

 (a) by or under a law of the Commonwealth or of a State or Territory; or

 (b) under the authority of:

 (i) the Commonwealth or the government of a State or Territory; or

 (ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.

QE day has the meaning given by subsection 17A(1).

qualifying earnings has the meaning given by subsection 10A(1).

quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

receipt day, for an eligible contribution, has the meaning given by paragraph 33(3)(a).

resident of Australia has the meaning given by section 8.

resident regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

RSA has the same meaning as in the Retirement Savings Accounts Act 1997.

RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997.

sacrificed contribution means a contribution to a complying superannuation fund or an RSA made under an arrangement described in paragraph 10A(1)(h) (about salary sacrifice arrangements).

Second Commissioner means a Second Commissioner of Taxation.

stapled fund has the meaning given by section 32Q.

State industrial award means:

 (a) an industrial award or determination made under a law of a State; or

 (b) an industrial agreement approved or registered under such a law.

superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

superannuation guarantee charge means charge imposed by the Superannuation Guarantee Charge Act 1992.

superannuation guarantee shortfall has the meaning given by section 16B.

superannuation provider means:

 (a) the trustee of a complying superannuation fund; or

 (b) the trustee of a complying approved deposit fund; or

 (c) an RSA provider.

superannuation scheme means:

 (a) a defined benefit superannuation scheme whether or not embodied in the governing rules of a superannuation fund; or

 (b) any other scheme embodied in the governing rules of a superannuation fund.

Territory industrial award means:

 (a) an industrial award or determination made under a law of a Territory; or

 (b) an industrial agreement approved or registered under such a law.

trustee, in relation to a superannuation scheme, means:

 (a) if:

 (i) the scheme is embodied in the governing rules of a fund; and

 (ii) there is a trustee of the fund;

  the trustee of the fund; or

 (b) in any other case—the person who manages the scheme.

trustee, except in relation to a superannuation fund or superannuation scheme, includes:

 (a) a person appointed or constituted trustee by:

 (i) act of parties; or

 (ii) order or declaration of a court; or

 (iii) operation of law; and

 (b) an executor, administrator or other personal representative of a deceased person; and

 (c) a guardian or committee; and

 (d) a receiver or receiver and manager; and

 (e) a liquidator of a company; and

 (f) a person:

 (i) having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust; or

 (ii) acting in any fiduciary capacity; or

 (iii) having the possession, control or management of any real or personal property of a person under any legal or other disability.

unfunded public sector scheme means a public sector scheme that is a defined benefit superannuation scheme:

 (a) in respect of which no fund is established for the purposes of the scheme; or

 (b) under which all or some of the amounts that will be required for the payment of benefits are not paid into the fund established for the purposes of the scheme or are not paid until the members become entitled to receive the benefits.

usual period, for a QE day and an employer, means the period:

 (a) starting on the QE day; and

 (b) ending on the seventh business day after the QE day.

voluntary disclosure statement has the meaning given by section 33.

workplace determination has a meaning affected by subsection 12A(3).

year means financial year.

 (2) For the purposes of this Act, a reference to a contribution made by an employer for the benefit of an employee includes a reference to a contribution made on behalf of the employer.

6AA  Interpretation: defined benefit member

  The regulations may prescribe:

 (a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and

 (b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member is to be taken to be a defined benefit member for the purposes of this Act, or a provision of this Act.

6A  Interpretation: defined benefit superannuation scheme

 (1) Subject to subsection (2), a defined benefit superannuation scheme is a scheme under which:

 (a) one or more members of the scheme are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:

 (i) the amount of the member’s annual salary:

 (A) at the date of the member’s retirement; or

 (B) at a date before retirement; or

 (C) averaged over a period of employment before retirement;

 (ii) a specified amount; and

 (b) if the scheme is not a public sector scheme—some or all of the contributions under the scheme (out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.

 (2) A scheme embodied in the governing rules of a superannuation fund (other than a scheme of the kind referred to in subsection (1)) is a defined benefit superannuation scheme if a conversion notice has effect in relation to the fund or scheme.

 (3) If the conversion notice is expressed to take effect on a day before the day on which the notice is given, the scheme in question is taken to have been a defined benefit superannuation scheme from the day on which the notice is expressed to take effect.

 (4) Subsection (3) has effect regardless of the making of any assessment, or the payment of any superannuation guarantee charge, in respect of a QE day after the conversion notice took effect.

6B  Interpretation: conversion notice

 (1) A conversion notice is a written notice by the trustee of a superannuation fund given to the Commissioner stating that the fund, or a particular superannuation scheme embodied in the governing rules of the fund, is to be treated as a defined benefit superannuation scheme for the purposes of this Act.

 (2) Subject to subsection (4), a conversion notice takes effect in relation to the fund or scheme on the day specified in the notice. Subject to subsection (4), the trustee may, by written notice (revocation notice) given to the Commissioner, revoke the conversion notice.

 (3) A conversion notice may be expressed to take effect on a day that is not earlier than:

 (a) if the notice is given before 15 May in a quarter starting on 1 April—1 January in the previous quarter; or

 (b) if the notice is given before 15 August in a quarter starting on 1 July—1 April in the previous quarter; or

 (c) if the notice is given before 15 November in a quarter starting on 1 October—1 July in the previous quarter; or

 (d) if the notice is given before 15 February in a quarter starting on 1 January—1 October in the previous quarter; or

 (e) in any other case—the first day of the quarter in which the notice is given.

 (4) A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives written notice of:

 (a) the trustee’s intention to give the notice; and

 (b) the proposed date of effect of the notice;

to each employer contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme.

 (5) If, while the conversion notice is in effect, an employer begins contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme, the trustee must give the employer written notice of:

 (a) the giving of the conversion notice; and

 (b) the date of effect of the notice;

within 7 business days of the receipt by the trustee of the employer’s first contribution.

7  Interpretation: complying superannuation fund or scheme

  A superannuation fund or scheme is a complying superannuation fund or complying superannuation scheme (as the case may be) in relation to a period for the purposes of this Act if it is a complying superannuation fund in relation to that period for the purposes of the Income Tax Assessment Act 1997.

7A  Interpretation: complying approved deposit fund

  An approved deposit fund is a complying approved deposit fund at a particular time for the purposes of this Act if it is a complying approved deposit fund in relation to the year of income in which that time occurred for the purposes of the Income Tax Assessment Act 1997.

8  Interpretation: resident of Australia

  A person is a resident of Australia for the purposes of this Act at any time when the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.

10  Interpretation: benefit certificate

 (1) A benefit certificate is a certificate by an actuary relating to one or more specified defined benefit superannuation schemes and specifying the rate, expressed as a percentage, that is, in the opinion of the actuary, the notional employer contribution rate, in relation to a specified class of employees (being defined benefit members of the scheme or schemes, as the case may be), of an employer who is a contributor under the scheme or schemes (as the case may be) for the benefit of an employee in that class.

 (2) The notional employer contribution rate, in relation to a class of employees specified in a benefit certificate relating to one or more defined benefit superannuation schemes, is the contribution rate required to meet the expected long‑term cost, to an employer who contributes to the scheme or schemes for the benefit of employees in the class, of the minimum benefits accruing in respect of all employees in the class from the date of effect of the benefit certificate onwards.

 (3) A benefit certificate has effect from the date specified in the certificate until:

 (a) a superannuation scheme to which it relates is amended in a way that affects, or may affect, the level or method of calculation of the minimum benefits provided under the scheme for the class of employees specified in the certificate; or

 (b) another benefit certificate is issued in relation to the same class of employees and the same scheme or schemes; or

 (c) a period of 5 years from the date of issue expires; or

 (d) in the case of a certificate that relates to a scheme that is a defined benefit superannuation scheme because of the operation of subsection 6A(2)—the conversion notice under section 6B is revoked;

whichever occurs first.

 (4) A benefit certificate may be expressed to have effect from:

 (a) a day that is no earlier than:

 (i) if the certificate is issued before 15 May in a quarter starting on 1 April, or before a later day in that quarter allowed by the Commissioner—1 January in the previous quarter; or

 (ii) if the certificate is issued before 15 August in a quarter starting on 1 July, or before a later day in that quarter allowed by the Commissioner—1 April in the previous quarter; or

 (iii) if the certificate is issued before 15 November in a quarter starting on 1 October, or before a later day in that quarter allowed by the Commissioner—1 July in the previous quarter; or

 (iv) if the certificate is issued before 15 February in a quarter starting on 1 January, or before a later day in that quarter allowed by the Commissioner—1 October in the previous quarter; or

 (v) in any other case—the first day of the quarter in which the certificate is issued; and

 (b) a day that is no later than the day on which the certificate is issued.

 (6) The regulations may make provision regarding:

 (a) the issue and form of benefit certificates; and

 (b) the way in which the expected long‑term cost to an employer of benefits accruing to all employees is to be calculated under subsection (2); and

 (c) the manner in which the contribution rate is to be expressed under subsection (2); and

 (d) the way in which minimum benefits accruing to all employees are to be calculated under subsection (2).

10A  Interpretation: expressions relating to qualifying earnings

Meaning of qualifying earnings

 (1) A person’s qualifying earnings are amounts covered by one or more of the following paragraphs:

 (a) the person’s ordinary time earnings;

 (b) all commissions payable to the person;

 (c) all payments for the performance of the person’s duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate;

 (d) all payments under a contract referred to in subsection 12(3) that are in respect of the person’s labour under the contract;

 (e) all remuneration of the person as a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory;

 (f) all payments to the person for work referred to in subsection 12(8);

 (g) all remuneration of the person in circumstances referred to in subsection 12(9) or (10);

 (h) if under an arrangement the person agreed for:

 (i) a contribution to be made to a complying superannuation fund or an RSA for the benefit of the person by the person’s employer; and

 (ii) in return, for the reduction (including to nil) of one or more amounts of a kind described in paragraphs (a) to (g) of this subsection but not in subsection (3) of this section;

  an amount equal to the total of those reductions.

Note: For paragraph (h), reductions are not counted if they are of amounts excluded by subsection (3) from being qualifying earnings.

 (2) To the extent that an amount is covered by more than one paragraph of subsection (1), the amount is counted only once.

Exclusions

 (3) However, a person’s qualifying earnings do not include any of the following:

 (a) a payment of an amount that represents the reversal of all or part of a sacrificed contribution;

 (b) earnings or remuneration of, or payments to, the person to the extent that:

 (i) the person is an employee of a kind prescribed by the regulations; or

 (ii) the earnings, remuneration or payments are for work done of a kind prescribed by the regulations; or

 (iii) the earnings, remuneration or payments are otherwise of a kind prescribed by the regulations.

Meaning of payment of qualifying earnings to or for an employee

 (4) A payment of qualifying earnings to or for an employee by an employer means:

 (a) a payment of qualifying earnings to the employee by or on behalf of the employer; or

 (b) for qualifying earnings described by paragraph (1)(h)—the reductions described in that paragraph made in return for the making of the sacrificed contribution for the benefit of the employee.

Meaning of maximum contributions base

 (5) The maximum contributions base, for a payment of qualifying earnings to or for an employee, is the following amount (rounded down to the nearest multiple of $10):

where:

charge percentage has the same meaning as in subsection 17A(2).

concessional contributions cap is the basic concessional contributions cap (within the meaning of the Income Tax Assessment Act 1997) for the financial year in which the payment is made.

 (6) For the purposes of this Act (other than this section), if an employer’s payment of qualifying earnings to or for an employee during a financial year results in the employee’s total qualifying earnings:

 (a) during the financial year; and

 (b) in relation to the employer;

exceeding the maximum contributions base, then treat the amount of that payment as if it were equal to:

 (c) if that payment caused that total to exceed that base—so much of that payment as does not include the excess; or

 (d) if an earlier payment had already caused that total to exceed that base—nil.

12  Interpretation: employee, employer

 (1) Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):

 (a) expand the meaning of those terms; and

 (b) make particular provision to avoid doubt as to the status of certain persons.

 (2) A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.

 (3) If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

 (4) A member of the Parliament of the Commonwealth is an employee of the Commonwealth.

 (5) A member of the Parliament of a State is an employee of the State.

 (6) A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.

 (7) A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.

 (8) The following are employees for the purposes of this Act:

 (a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment;

 (b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment;

 (c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.

 (9) A person who:

 (a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or

 (b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);

is an employee of the Commonwealth, the State or the Territory, as the case requires. However, this rule does not apply to a person in the capacity of the holder of an office as a member of a local government council.

 (9A) Subject to subsection (10), a person who holds office as a member of a local government council is not an employee of the council.

 (10) A person covered by paragraph 12‑45(1)(e) in Schedule 1 to the Taxation Administration Act 1953 (about members of local governing bodies subject to PAYG withholding) is an employee of the body mentioned in that paragraph.

 (11) A person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work.

12A  Interpretation: references to industrial instruments

 (1) In this Act, the following expressions have the same meanings as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009:

 (a) AWA;

 (b) collective agreement;

 (c) ITEA;

 (d) notional agreement preserving State awards;

 (e) old IR agreement;

 (f) pre‑reform AWA;

 (g) pre‑reform certified agreement;

 (h) preserved State agreement;

 (i) Division 2B State instrument;

 (j) State reference transitional award or common rule.

Note: For an instrument referred to in this subsection, see item 4 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

 (2) In this Act, enterprise agreement has the same meaning as in the Fair Work Act 2009.

 (3) In this Act, workplace determination means a workplace determination made under the Fair Work Act 2009 or the Workplace Relations Act 1996.

Part 3—Liability of employers other than the Commonwealth and tax‑exempt Commonwealth authorities to pay superannuation guarantee charge

Division 1—Application to former employees and for international social security agreements

15B  Application of Part to former employees

  This Part applies to payments of qualifying earnings to or for a former employee as if the former employee were an employee of the person who was the former employee’s employer.

15C  Certificates of coverage for international social security agreements

 (1) This section applies if a scheduled international social security agreement (within the meaning of section 5 of the Social Security (International Agreements) Act 1999) prevents double coverage of the compulsory retirement savings arrangements under the laws of the parties to the agreement.

 (2) An entity mentioned in subsection (3) may apply in writing to the Commissioner for a certificate under subsection (4) covering the employment of a particular employee.

 (3) For the purposes of subsection (2), the entity must be:

 (a) if the employee’s employer is not a resident of Australia—a related entity (within the meaning of the agreement) of the employer; or

 (b) otherwise—the employee’s employer.

 (4) The Commissioner may give the entity that made the application a certificate under this subsection if the Commissioner is satisfied that doing so is in accordance with the agreement mentioned in subsection (1).

 (5) The certificate must:

 (a) state the name of the employer and the employee; and

 (b) state the time at which, or the circumstances in which, the certificate stops covering the employment; and

 (c) contain any other information that the Commissioner considers relevant.

 (6) The Commissioner may revoke or vary a certificate under subsection (4), if doing so would be in accordance with the administrative arrangements to the agreement mentioned in subsection (1) that are agreed between the parties to the agreement.

 (7) A person who is dissatisfied with a decision of the Commissioner under subsection (4) or (6) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.

 (8) If the entity that made the application is not the employee’s employer, this Part (apart from this section) applies to qualifying earnings relating to employment covered by the certificate that are paid to the employee as if the entity that made the application were the employee’s employer.

Division 2—Superannuation guarantee charge payable by employers

Subdivision A—Superannuation guarantee charge is payable on superannuation guarantee shortfalls

16  Simplified outline of this Division

16A  Superannuation guarantee charge payable by employers

  Superannuation guarantee charge imposed on an employer’s superannuation guarantee shortfall for a QE day is payable by the employer.

16B  Superannuation guarantee shortfalls

 (1) This section applies if an employer has:

 (a) one or more individual base superannuation guarantee shortfalls for a QE day that are greater than nil; or

 (b) one or more choice loadings for a QE day that are greater than nil.

 (2) The employer has a superannuation guarantee shortfall for the QE day equal to the sum of the following:

 (a) the total of the employer’s individual final superannuation guarantee shortfalls for the QE day;

 (b) the total of the employer’s individual notional earnings components for the QE day;

 (c) the employer’s administrative uplift amount for the QE day;

 (d) the total of the employer’s choice loadings for the QE day.

Note: Some (but not all) of these amounts may be nil.

Subdivision B—Individual superannuation guarantee amounts arise if qualifying earnings are paid etc.

17  Simplified outline of this Subdivision

17A  When an individual superannuation guarantee amount arises

 (1) This Subdivision applies if an employer makes a payment of qualifying earnings to or for an employee on a particular day (the QE day).

Note: This includes reducing the employee’s earnings so that a sacrificed contribution can be made for the employee (see paragraphs 10A(1)(h) and (4)(b)).

 (2) On the QE day, the employer has an individual superannuation guarantee amount for the employee equal to:

where:

amount of the qualifying earnings means:

 (a) if there is one such payment—the amount of the payment; or

 (b) if there are 2 or more such payments—the sum of the amounts of the payments.

Note: If the payment of qualifying earnings is in the form of a reduction so that a sacrificed contribution can be made, the amount of the payment is the amount of the reduction (see paragraph 10A(1)(h)).

charge percentage means 12.

17B  An exemption certificate can reduce this amount to nil

  However, if an employer shortfall exemption certificate is in force for the employee in relation to:

 (a) the employer; and

 (b) a period that includes the QE day;

treat the employee as having already reached the maximum contributions base before the QE day.

Note 1: This means:

(a) the amount of the payment of qualifying earnings on the QE day is treated as if it were nil (see subsection 10A(6)); and

(b) the individual superannuation guarantee amount is nil.

Note 2: If the employee has more than one employer and the certificate is issued in relation to only this employer, then the certificate does not affect the other employers’ individual superannuation guarantee amounts.

17C  Issuing an exemption certificate

Issuing of certificate

 (1) The Commissioner may, on application by an employee, issue a certificate (an employer shortfall exemption certificate) to the applicant for:

 (a) a specified employer of the applicant at the time the application is made; and

 (b) a specified period ending at the end of a specified financial year;

if the Commissioner is satisfied of the matters in subsection (2).

 (2) The matters are that:

 (a) if the certificate is not issued, the applicant is likely to have excess concessional contributions for that financial year (whether or not issuing the certificate would prevent that result); and

 (b) if the certificate is issued for that period, at least one other employer of the applicant is likely to have an individual superannuation guarantee amount for:

 (i) the applicant; and

 (ii) a QE day during that financial year;

  that is greater than nil; and

 (c) it is appropriate in the circumstances to issue the certificate.

 (3) When considering a matter in subsection (2), the Commissioner:

 (a) for the matter in paragraph (2)(a) or (b)—must have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, to the applicant for that financial year; and

 (b) for the matter in paragraph (2)(c)—may have regard to:

 (i) the effect that issuing the certificate is likely to have on the applicant’s concessional contributions for that financial year; and

 (ii) any other matter that the Commissioner considers relevant.

Application for certificate

 (4) An application for an employer shortfall exemption certificate:

 (a) must be in the approved form; and

 (b) must specify the employer, period and financial year to be specified in the certificate; and

 (c) must be made at least 30 days before the first day of the period.

Objections and other matters

 (5) A person who is dissatisfied with a decision of the Commissioner under subsection (1) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.

 (6) The Commissioner may not vary or revoke an employer shortfall exemption certificate.

 (7) An employer shortfall exemption certificate:

 (a) may be issued after the first day of the period specified in the certificate; and

 (b) is not a legislative instrument.

17D  Notice about an exemption certificate

 (1) If the Commissioner makes a decision under subsection 17C(1) about an application, the Commissioner must give written notice of the decision to:

 (a) the applicant; and

 (b) if the decision is to issue a certificate—the employer to which the certificate relates.

 (2) A notice of a decision to issue a certificate must include a copy of the certificate.

 (3) The Commissioner is treated as having decided not to issue a certificate to the applicant if the Commissioner does not give notice (under subsection (1)) of the decision during the 60‑day period starting on the day the application was made.

Subdivision C—Individual superannuation guarantee shortfalls arise if insufficient timely eligible superannuation contributions are made

18  Simplified outline of this Subdivision

18A  Meaning of eligible contribution—main rules

 (1) An eligible contribution, made by an employer for the benefit of an employee, is:

 (a) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee that:

 (i) is to a complying superannuation fund; and

 (ii) is able to be allocated within the fund for the benefit of the employee; and

 (iii) is not made for the benefit of the employee as a defined benefit member of a defined benefit superannuation scheme; and

 (iv) is not made at a time when a conversion notice has effect in relation to the fund; or

 (b) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee:

 (i) to an RSA; and

 (ii) that is able to be allocated within the RSA for the benefit of the employee; or

 (c) if:

 (i) the employee has died; and

 (ii) the employer would, if the employee had not died, have made a contribution covered by paragraph (a) or (b) for the benefit of the employee; and

 (iii) the employer instead pays an equivalent amount to the employee’s legal personal representative;

  that equivalent amount paid by the employer; or

 (d) a contribution notionally made as described in subsection (3) to a defined benefit superannuation scheme for the benefit of the employee as a defined benefit member of the scheme.

Note: For the purposes of subparagraphs (a)(ii) and (b)(ii), regulations under the Superannuation Industry (Supervision) Act 1993 and under the Retirement Savings Accounts Act 1997 deal with the allocation of contributions.

Presumption for contributions to certain superannuation funds

 (2) A contribution made by the employer for the benefit of the employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of subparagraph (1)(a)(i) if:

 (a) at or before the time the contribution is made, the employer has obtained a written statement provided by or on behalf of the trustee of the fund; and

 (b) the statement provides that the fund:

 (i) is a resident regulated superannuation fund; and

 (ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993.

Note 1: The presumption does not extend to any of the other elements of paragraph (1)(a), such as that the contribution must not be a sacrificed contribution.

Note 2: The presumption may not always be available (see section 18B).

Notional contributions for defined benefit members of defined benefit superannuation schemes

 (3) If, on a QE day for the employer and the employee:

 (a) a benefit certificate for a defined benefit superannuation scheme has effect; and

 (b) the scheme is operating for the benefit of the employee:

 (i) as a defined benefit member of the scheme; and

 (ii) in relation to payments of qualifying earnings to or for the employee by the employer; and

 (c) the benefit certificate:

 (i) covers a class of employees (that includes the employee) as defined benefit members of the scheme; and

 (ii) specifies the notional employer contribution rate in relation to that class of employees; and

 (d) the employer has a written statement, provided by or on behalf of the trustee of the scheme, that the scheme:

 (i) is a resident regulated superannuation fund; and

 (ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993; and

 (iii) has not been subject to such a direction at any time since the beginning of the day on which the benefit certificate is expressed to take effect;

treat the scheme as having received, on the QE day, a notional contribution made by the employer for the benefit of the employee that is equal to:

where:

amount of the qualifying earnings has the same meaning as in subsection 17A(2) for the one or more payments of qualifying earnings to or for the employee made by the employer on the QE day.

Note: The written statement may not always have effect (see section 18B).

18B  Meaning of eligible contribution—exceptions

 (1) However:

 (a) the presumption in subsection 18A(2) is unavailable for a contribution to a fund if subsection (2) of this section applies on the day the contribution is made; or

 (b) a statement provided as described in paragraph 18A(3)(d) has no effect for a scheme if subsection (2) of this section applies on the QE day.

 (2) This subsection applies on a day if, on that day:

 (a) one of the following subparagraphs applies:

 (i) the employer is the trustee or manager of the fund or scheme;

 (ii) the employer is an associate of the trustee or manager of the fund or scheme;

 (iii) the trustee or manager of the fund or scheme is an associate of the employer; and

 (b) the employer reasonably believes that the fund or scheme:

 (i) is not a resident regulated superannuation fund; or

 (ii) is operating in contravention of a regulatory provision (within the meaning of section 38A of the Superannuation Industry (Supervision) Act 1993).

 (3) Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subparagraph (2)(b)(ii) of this section in a corresponding way to the way that section applies for the purposes of Division 2 of Part 5 of that Act.

Note: Section 39 of that Act allows certain contraventions to be ignored.

18C  Employer’s individual base superannuation guarantee shortfall for an employee and a QE day

Meaning of individual base superannuation guarantee shortfall

 (1) An employer’s individual base superannuation guarantee shortfall for an employee and a QE day is equal to:

where:

eligible contributions relevant for the QE day means so much of each eligible contribution made by the employer for the benefit of the employee as:

 (a) is applied under this subsection for the QE day (the current QE day), and has not been applied under this subsection or section 18D for an earlier QE day; and

 (b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and

 (c) is so received during one of these periods (the standard periods):

 (i) the usual period for the current QE day; or

 (ii) the 12‑month period ending on the day before the current QE day;

  or before the end of the latest day in any applicable items of the table in subsection (2) of this section; and

 (d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.

Note: An eligible contribution in the form of a notional contribution to a defined benefit superannuation scheme will always be covered by subparagraph (c)(i) because it is treated as being received on the current QE day (see subsection 18A(3)).

Allowable longer periods for receiving eligible contributions

 (2) In addition to the standard periods, the eligible contribution can be received before the end of the latest day in any applicable item of the following table:

Note: When the contribution is received is not the only factor for whether it is an eligible contribution relevant for the QE day (see paragraphs (a), (b) and (d) of the definition of that expression in subsection (1)).

Kinds of out‑of‑cycle qualifying earnings

 (3) The Commissioner may, by legislative instrument, determine:

 (a) kinds of out‑of‑cycle qualifying earnings; and

 (b) the circumstances that must exist for qualifying earnings to be one of those kinds.

Qualifying earnings in exceptional circumstances

 (4) The Commissioner may, by legislative instrument, determine:

 (a) one or more kinds of employers that are affected by exceptional circumstances of a kind prescribed by the regulations that affect the ability of the employers to make eligible contributions; and

 (b) the period during which any QE days for payments of qualifying earnings by those employers are affected by those exceptional circumstances.

The period determined for the purposes of paragraph (b) may start before the day the determination is made.

Note 1: Examples of exceptional circumstances for this purpose include natural disasters, or widespread outages of information and communications technology services, that affect multiple employers on a large scale.

Note 2: If the period starts before the day the determination is made, eligible contributions can still be counted if made before the end of the 20 business day period starting on the day after the determination is made (see item 3 of the table in subsection (2)).

18D  Employer’s individual final superannuation guarantee shortfall for an employee and a QE day

 (1) An employer’s individual final superannuation guarantee shortfall for an employee and a QE day is:

 (a) if the employer’s individual base superannuation guarantee shortfall for the employee and QE day is nil—nil; or

 (b) otherwise—equal to the amount in subsection (2).

 (2) The amount is:

where:

eligible contributions relevant for the late period for the QE day means so much of an eligible contribution made by the employer for the benefit of the employee as:

 (a) is applied under this section for the QE day, and has not been applied under this section for an earlier QE day; and

 (b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and

 (c) is so received during the late period for the QE day; and

 (d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.

Subdivision D—Notional earnings and administrative uplift

19  When this Subdivision applies

  This Subdivision applies if an employer has an individual base superannuation guarantee shortfall for an employee and a QE day that is greater than nil.

19A  Individual notional earnings component—sum of an amount for each day that the individual final superannuation guarantee shortfall is greater than nil

 (1) The employer’s individual notional earnings component for the employee and the QE day is the sum of each amount worked out under subsection (2) for each day that:

 (a) is during the late period for the QE day; and

 (b) is a day on which the employer’s individual final superannuation guarantee shortfall for the employee and the QE day is greater than nil.

Note: Subsection 36(3) may affect the days that paragraph (b) applies to.

 (2) For a day referred to in subsection (1) for the QE day, work out:

where:

general interest charge rate has the same meaning as in section 8AAD of the Taxation Administration Act 1953.

notional sum means the sum of:

 (a) the employer’s individual base superannuation guarantee shortfall for the employee and the QE day; and

 (b) the amount worked out under this subsection for each earlier day referred to in subsection (1) for the QE day.

19B  Administrative uplift for a QE day

 (1) The employer’s administrative uplift amount for the QE day is equal to 60% of the sum of:

 (a) the total of the employer’s individual final superannuation guarantee shortfalls for the QE day; and

 (b) the total of the employer’s individual notional earnings components for the QE day.

Note: The administrative uplift amount will be nil if these totals are nil.

 (2) However, this amount may be reduced (but not below nil) in accordance with the regulations.

 (3) For the purposes of (but without limiting) subsection (2), the regulations may prescribe the following:

 (a) a method for reducing an employer’s administrative uplift amount for a QE day that relies on one or more of the following:

 (i) whether the Commissioner has previously made an assessment for the employer on the Commissioner’s own initiative;

 (ii) whether the Commissioner has previously made an estimate under subsection 268‑10(1) in Schedule 1 to the Taxation Administration Act 1953 for the employer for a liability to pay superannuation guarantee charge;

 (iii) whether (and when) the employer lodges a voluntary disclosure statement under section 33 for the QE day;

 (b) a method that depends on a person being satisfied of one or more specified matters.

Subdivision E—Loading for failing to comply with choice of fund requirements

20  When this Subdivision applies

  This Subdivision applies if:

 (a) an employer has an individual superannuation guarantee amount for an employee and a QE day; and

 (b) the employer makes, for the benefit of the employee, one or more eligible contributions that:

 (i) result in the employer’s individual base superannuation guarantee shortfall, or individual final superannuation guarantee shortfall, for the employee and the QE day being less than what it would otherwise be; or

 (ii) if the amount mentioned in paragraph (a) is nil—would have resulted in a shortfall mentioned in subparagraph (i) being less than what it would have otherwise been had the amount mentioned in paragraph (a) been greater than nil.

20A  Employer’s choice loading for the QE day

 (1) The employer’s choice loading for the employee and the QE day is:

 (a) if subsection (2) or (3) applies to some or all of those eligible contributions—the lower of:

 (i) the amount equal to 25% of the total of the contributions to which that subsection applies; and

 (ii) the choice loading limit for the QE day; or

 (b) otherwise—nil.

Contributions made to an RSA or a fund other than a defined benefit superannuation scheme

 (2) This subsection applies if:

 (a) some or all of the contributions mentioned in paragraph 20(b) are not made in compliance with the choice of fund requirements; and

 (b) section 20D (relying on most recent Commissioner notification) does not apply to the contributions.

Contributions notionally made to a defined benefit superannuation scheme

 (3) This subsection applies if:

 (a) some or all of the contributions mentioned in paragraph 20(b):

 (i) are notionally made as described in subsection 18A(3) to a defined benefit superannuation scheme; and

 (ii) if paragraph 32C(2)(c) were disregarded—would not have been made in compliance with the choice of fund requirements if they had been actually (rather than notionally) made to the scheme; and

 (b) none of subsections 20B(2), (3) and (4) apply to the employer for the employee, the scheme and the QE day; and

 (c) section 20D (relying on most recent Commissioner notification) does not apply to the contributions.

Note: Paragraph 32C(2)(c) is a requirement for a fund to include a MySuper product.

20B  Defined benefit schemes—certain cases where members cannot choose another fund

 (1) This section applies for the purposes of paragraph 20A(3)(b).

Scheme in surplus

 (2) This subsection applies if:

 (a) the employee was a defined benefit member of the fund immediately before 1 July 2005 and has not ceased to be such a member during the period (the membership period):

 (i) starting on 1 July 2005; and

 (ii) ending at the end of the QE day; and

 (b) an actuary has provided a certificate in accordance with regulations under the Superannuation Industry (Supervision) Act 1993 stating that the employer is not required to make contributions for a period including the QE day, and there has been such a certificate covering all times since 1 July 2005; and

 (c) an actuary has provided a certificate stating that, in the actuary’s opinion, at all times during the membership period there is a high probability that the assets of the scheme are, and will be, equal to or greater than 110% of the greater of the scheme’s liabilities in respect of vested benefits and the scheme’s accrued actuarial liabilities.

The certificate under paragraph (c) must have been provided no earlier than 15 months before the QE day.

Member has accrued maximum benefit

 (3) This subsection applies if, on the QE day, the defined benefit that has accrued to the employee will not increase other than:

 (a) as a result of increases in the employee’s salary or remuneration; or

 (b) by reference to accruals of investment earnings; or

 (c) by reference to indexation based on, or calculated by reference to, a relevant price index or wages index; or

 (d) in any other way prescribed by the regulations.

Member’s benefit not affected

 (4) This subsection applies if the employee would be entitled, on the employee’s retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions:

 (a) for the QE day; and

 (b) made by the employer for the benefit of the employee;

to a fund (within the meaning of Part 3A) other than the defined benefit superannuation scheme.

Meaning of scheme’s accrued actuarial liabilities and scheme’s liabilities in respect of vested benefits

 (5) In this section:

scheme’s accrued actuarial liabilities, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the scheme in respect of membership up to that time based on assumptions about:

 (a) future economic conditions; and

 (b) the future of matters affecting membership of the scheme;

being assumptions made in accordance with applicable professional actuarial standards (if any).

scheme’s liabilities in respect of vested benefits, at a particular time, means the total value of the benefits payable from the scheme to which the members of the scheme would be entitled if they all voluntarily terminated their service with their employers at that time.

20C  Limit on choice loading for the QE day

 (1) The choice loading limit for the QE day (the current QE day) is $1,200.

 (2) However, this amount is reduced (but not below nil) by the amount equal to 25% of the sum of any other eligible contributions:

 (a) made by the employer for the benefit of the employee; and

 (b) to which subsection 20A(2) or (3) applies for any earlier QE day for the employer and employee during the notice period that includes the current QE day.

 (3) In this section:

notice period means the period:

 (a) beginning on the latest of:

 (i) the day the employee’s employment with the employer starts; and

 (ii) the day after the end of the immediately preceding notice period for the employer and the employee; and

 (iii) 1 July 2026; and

 (b) ending on the day the Commissioner gives the employer written notice that the employer’s notice period for the employee has ended.

20D  Relying on most recent Commissioner notification

  This section applies to an eligible contribution for the benefit of the employee that is not made in compliance with the choice of fund requirements if:

 (a) the employer attempts to make the contribution at a particular time; and

 (b) at that time, there is no chosen fund for the employee; and

 (c) at that time, the most recent notification to the employer:

 (i) by the Commissioner; and

 (ii) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee;

  is that the Commissioner is satisfied that the fund is the stapled fund for the employee; and

 (d) the fund does not accept the contribution from the employer for the benefit of the employee; and

 (e) the employer made the contribution to another fund for the benefit of the employee.

Division 3—Arrangements to avoid paying superannuation guarantee charge

30  Arrangements to avoid payment of superannuation guarantee charge

  If:

 (a) an employer makes an arrangement; and

 (b) as a result of the arrangement the employer’s superannuation guarantee shortfall for a QE day is reduced; and

 (c) in the Commissioner’s opinion the arrangement was made solely or principally for the purpose of avoiding payment of superannuation guarantee charge otherwise than in accordance with this Act;

the employer is liable to pay for a QE day an amount of superannuation guarantee charge equal to the amount that, in the Commissioner’s opinion, the employer would have been liable to pay if the arrangement had not been made.

Part 3A—Choice of fund requirements

Division 1—Overview of Part

32A  Purpose of Part

  This Part sets out the circumstances in which contributions are made in compliance with the choice of fund requirements. This is important because an employer’s superannuation guarantee shortfall for a QE day may be increased where contributions do not comply.

32B  Structure of Part

  The structure of this Part is as follows:

Division 2—Which contributions satisfy the choice of fund requirements?

32C  Contributions that satisfy the choice of fund requirements

Contributions to certain funds

 (1) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if the contribution is made to a fund that, at the time that the contribution is made, is:

 (a) a chosen fund for the employee (see Division 4); or

 (b) if the employee is not a Commonwealth employee who is a member of the CSS or the PSS—an unfunded public sector scheme.

Contributions to stapled funds

 (1A) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made:

 (a) there is no chosen fund for the employee; and

 (b) the most recent notification to the employer:

 (i) by the Commissioner; and

 (ii) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee;

  is that the Commissioner is satisfied that the fund is the stapled fund for the employee.

 (1B) Subsection (1A) does not apply if, at the time the contribution is made:

 (a) the employer is required under section 32N to give the employee a standard choice form; and

 (b) the employer has not done this by the time specified in the subsection concerned.

However, this subsection ceases to apply from the time that the employer gives the standard choice form to the employee.

Contributions to certain eligible choice funds

 (2) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made:

 (a) there is no chosen fund for the employee; and

 (aa) the most recent notification to the employer:

 (i) by the Commissioner; and

 (ii) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee;

  is that the Commissioner is satisfied that there is no stapled fund for the employee; and

 (b) the fund is an eligible choice fund for the employer; and

 (ba) the fund:

 (i) is specified under section 32P in the standard choice form provided as the fund to which the employer will contribute for the benefit of the employee if the employee does not make a choice or will be so specified within the time specified in section 32N for the provision of a standard choice form to the employee; or

 (ii) if the employer has not contributed, and cannot contribute, to a fund (the first employer fund) that was so specified or that was purportedly so specified—will be so specified within 28 days of the employer becoming aware that the employer cannot contribute to the first employer fund; and

 (c) a class of beneficial interest in the fund is a MySuper product within the meaning of the Superannuation Industry (Supervision) Act 1993; and

 (d) the fund complies with the requirements (if any) set out in the regulations in relation to the provision of a benefit in respect of MySuper members of the fund that is payable only in the event of the death of the member; and

 (e) the fund complies with the requirements (if any) set out in the regulations in relation to offering a benefit in respect of members of the fund (other than MySuper members) that is payable only in the event of the death of the member.

 (2A) Subsection (2) does not apply if, at the time the contribution is made:

 (a) the employer is required under section 32N to give the employee a standard choice form; and

 (b) the employer has not done this by the time specified in the subsection concerned.

However, this subsection ceases to apply from the time that the employer gives the standard choice form to the employee.

 (2AA) Paragraph (2)(ba) does not apply if the employee is, within the meaning of the Migration Act 1958, the holder of a temporary visa.

Contributions to certain successor funds

 (2AB) A contribution to a fund (the new fund) by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if:

 (a) the employee’s interest in the new fund was transferred to the new fund from another fund (the original fund) without the employee’s consent; and

 (b) at the time of the most recent contribution before the transfer to the original fund by the employer for the benefit of the employee, the original fund was a fund:

 (i) to which subparagraph (2)(ba)(i) applies; or

 (ii) to which subparagraph (2)(ba)(ii) applies, or would have applied if the transfer had not occurred; or

 (iii) to which subsection (1A) applies; and

 (c) the new fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer.

Contributions to the CSS

 (3) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the CSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection.

Contributions to the PSS

 (4) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the PSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection.

Contributions under the Superannuation (Productivity Benefit) Act 1988

 (5) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under the Superannuation (Productivity Benefit) Act 1988. However, this subsection does not apply if that Act has been prescribed in relation to that time under regulations made for the purpose of this subsection.

Contributions under certain agreements and workplace determinations

 (6) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with:

 (a) a pre‑reform certified agreement; or

 (b) an AWA; or

 (c) a pre‑reform AWA; or

 (d) a collective agreement; or

 (e) an old IR agreement; or

 (f) an ITEA; or

 (g) if subsection (6AAA) applies—a workplace determination made before 1 January 2021; or

 (h) if subsection (6AAA) applies—an enterprise agreement made before 1 January 2021; or

 (i) an award mentioned in paragraph 2(2)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or

 (j) a State reference transitional award or common rule.

Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.

 (6AAA) For the purposes of paragraph (6)(g) or (h), this subsection applies if, at the time the contribution (or part of the contribution) is made, the most recent notification to the employer:

 (a) by the Commissioner; and

 (b) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee;

is that the Commissioner is satisfied that there is no stapled fund for the employee.

Contributions previously covered by paragraphs (6)(g) and (h)

 (6AA) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if:

 (a) at the time the contribution is made, there is no chosen fund for the employee; and

 (b) the fund is a fund to which the employer has previously made contributions, in compliance with the choice of fund requirements under paragraph (6)(g) or (h), for the benefit of the employee.

Contributions under notional agreements preserving State awards

 (6A) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made:

 (a) under, or in accordance with, a notional agreement preserving State awards; and

 (b) in respect of salary or wages paid before 1 July 2006.

Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.

Contributions under preserved State agreements

 (6B) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a preserved State agreement.

Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.

Contributions under Division 2B State instruments

 (7) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a Division 2B State instrument.

Note: The expression Division 2B State instrument is defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.

Contributions under State awards

 (8) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a State industrial award.

Contributions under prescribed legislation

 (9) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under a law of the Commonwealth, of a State or of a Territory and the law is prescribed in relation to that time under regulations made for the purpose of this subsection.

Contributions made after employees cease employment

 (10) If:

 (a) an employee ceases to be employed by an employer; and

 (b) after the employment ceases, the employer makes a contribution to a fund for the benefit of the employee and in respect of the employment;

then, for the purposes of this section, the contribution is taken to have been made immediately before the employment ceases.

32CA  Certain contributions taken not to satisfy the choice of fund requirements

  Despite section 32C, a contribution to a fund by an employer for the benefit of an employee is taken not to comply with the choice of fund requirements if the employer imposes a direct cost or charge on the employee as a consequence of having to contribute to that fund.

Division 3—Eligible choice funds

32D  What funds are eligible choice funds?

  A fund is an eligible choice fund for an employer at a particular time if:

 (a) it is a complying superannuation fund at that time; or

 (b) it is a complying superannuation scheme at that time; or

 (c) it is an RSA; or

 (ca) if the time is a time before 1 July 2006—it is the account that is continued in existence under section 8 of the Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account; or

 (d) at that time, paragraphs 18A(3)(a) and (d) of this Act (about defined benefit superannuation schemes) are satisfied for the fund and the employer; or

 (e) contributions made by the employer to the fund at that time are conclusively presumed under subsection 18A(2) of this Act to be contributions to a complying superannuation fund.

32E  Meaning of funds—includes RSAs and schemes

 (1) In this Part:

fund means:

 (a) a superannuation fund; and

 (b) a superannuation scheme; and

 (c) an RSA;

and, until immediately before 1 July 2006, includes the account that is continued in existence under section 8 of the Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account.

 (2) For the purposes of this Part, the holder of an RSA is taken to be a member.

Division 4—Choosing a fund

32F  What is a chosen fund

 (1) If an employee wants a fund to be a chosen fund for the employee, the employee must:

 (a) give the employer written notice to that effect; or

 (b) give the Commissioner a notice to that effect in the approved form.

Note: A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection 32G(2)).

 (1A) If:

 (a) an employer has offered an employee a choice of fund before 1 July 2005; and

 (b) the employee has chosen a fund in accordance with the choice of funds that is offered; and

 (c) the limitations on that choice are consistent with section 32G or, if the choice was made before the commencement of that section, would have been consistent with section 32G if the section had been in force at the time the choice was made;

then, for the purposes of this Part, any fund chosen by the employee is taken to be the chosen fund for the employee with effect from:

 (d) 1 July 2005; or

 (e) a date that is 2 months after the fund is so chosen (unless the employer determines an earlier time after 1 July 2005 but within that 2 months);

whichever last occurs.

 (2) The fund becomes a chosen fund for the employee 2 months after the employee or the Commissioner gives the notice to the employer, or at such earlier time after the notice is given as the employer determines.

 (3) A fund (the selected fund) cannot become a chosen fund for an employee under this section if:

 (a) immediately before the employee gave the notice to the employer or the Commissioner, the employee was a defined benefit member of a defined benefit superannuation scheme; and

 (b) even if the selected fund were to become a chosen fund for the employee, the employee would be entitled, on the employee’s retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme as the employee would be entitled if the selected fund were not a chosen fund for the employee.

32FA  Employer may refuse to accept certain chosen funds

 (1) An employer may refuse to accept the fund chosen by an employee under section 32F and notified under paragraph 32F(1)(a) if the employee does not provide, together with the notice:

 (a) a written statement setting out:

 (i) contact details for the fund; and

 (ii) any other prescribed information; and

 (b) written evidence that the fund will accept contributions made by the employer for the benefit of the employee.

 (2) An employer may refuse to accept the fund chosen by an employee under section 32F if the employee has chosen another fund within the previous 12 months.

32G  Limit on funds that may be chosen

 (1) The fund chosen by the employee must be an eligible choice fund for the employer at the time that the choice is made.

 (2) The fund chosen by the employee must be a fund to which the employer can make contributions for the benefit of the employee at the time that the choice is made.

32H  When fund ceases to be a chosen fund

 (1) A fund (the old fund) ceases to be a chosen fund for an employee if:

 (a) there is another fund that is a chosen fund for the employee; and

 (b) neither the employee nor the Commissioner has given the employer a written notice stating that the old fund continues to be a chosen fund for the employee.

 (1A) The employee may give the employer a written notice, or give the Commissioner a notice in the approved form, stating that the old fund continues to be a chosen fund for the employee.

 (2) A fund also ceases to be a chosen fund if the employee requests the employer, under subsection 32N(3), to give him or her a standard choice form and the employer does not do this by the time specified in that subsection.

 (3) A fund also ceases to be a chosen fund if it is impossible for the employer to contribute on behalf of the employee to the chosen fund. This may occur immediately after the fund becomes a chosen fund for the employee.

Example: The chosen fund is closed to new members or ceases to accept further contributions.

 (4) A fund also ceases to be a chosen fund if the fund ceases to be an eligible choice fund for the employer. This may occur immediately after the fund becomes a chosen fund for the employee.

32J  A successor fund may become a chosen fund

  For the purposes of this Act, if:

 (a) an employee’s interest in a superannuation fund (the original fund) is transferred to another superannuation fund without the consent of the member; and

 (b) the other fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer; and

 (c) immediately before the transfer takes effect, the original fund was a chosen fund for the employee; and

 (d) at the time the transfer takes effect, the other fund:

 (i) is an eligible choice fund; and

 (ii) is a fund to which the employer can make contributions for the benefit of the employee;

from the time the transfer takes effect, the other fund is taken to be a chosen fund for the employee, and the original fund is taken no longer to be a chosen fund for the employee.

Division 6—Standard choice forms

32N  When a standard choice form must be provided

 (1) An employer must give a standard choice form before 29 July 2005 to each employee employed by the employer on 1 July 2005.

Note: An employer does not have to provide a standard choice form to an existing employee except in the specific circumstances outlined in this section. See also the further exceptions in section 32NA.

 (2) An employer must give a standard choice form to an employee within 28 days of the employee first commencing employment with the employer.

 (3) An employer must also give a standard choice form to an employee within 28 days of the employee giving the employer a written request to do so. However, a request is taken never to have been made if the employee has been given a standard choice form within the previous 12 months.

 (4) An employer must also give a standard choice form to an employee within 28 days of the employer becoming aware that there ceased to be any chosen fund for the employee because of:

 (a) subsection 32H(3) (employer unable to contribute to fund); or

 (b) subsection 32H(4) (fund ceasing to be eligible choice fund).

 (5) An employer must also give a standard choice form to an employee if:

 (a) the employer is making contributions, in accordance with subsection 32C(2), to a fund for the benefit of the employee; and

 (b) the employer changes the fund to which the employer makes contributions, in accordance with that subsection, for the benefit of the employee.

The standard choice form must be given within 28 days after the change.

 (5A) An employer must also give a standard choice form (the updated standard choice form) to an employee if:

 (a) the employer has specified a fund (the employer fund) in a standard choice form as the fund to which the employer will contribute under subsection 32C(2) in the event of the employee failing to make a choice of fund; and

 (b) the employer discovers, after giving an employee the standard choice form, that the employer cannot contribute to the employer fund for the benefit of the employee.

The updated standard choice form must be given within 28 days after the employer first becomes aware that the employer cannot contribute to the employer fund for the benefit of the employee.

 (6) An employer may also give a standard choice form at any time.

32NA  When a standard choice form does not have to be provided

 (1) An employer is not required under section 32N to give an employee a standard choice form if the employee has chosen a fund under section 32F by the time specified in subsection 32N(1), (2), (3) or (4).

 (2) An employer is not required under section 32N to give an employee a standard choice form if:

 (a) the employer is making contributions of a kind mentioned in subsections 32C(3) to (9) for the benefit of the employee; and

 (b) the contributions are made in compliance with the choice of fund requirements.

 (3) Subject to subsections 32N(3) and (4), an employer is not required under section 32N to give an employee a standard choice form if:

 (a) the employee has chosen a fund before 1 July 2005; and

 (b) the fund so chosen is to be taken, in accordance with subsection 32F(1A), to be the chosen fund for that employee.

 (4) An employer is not required under section 32N to give an employee a standard choice form if the employee:

 (a) is a member of an unfunded public sector scheme; and

 (b) is not a Commonwealth employee who is a member of the CSS or the PSS.

 (5) An employer is not required under section 32N to give an employee a standard choice form if the employee ceases to be an employee before the end of the period for giving a standard choice form to the employee.

 (6) An employer is not required under section 32N to give an employee a standard choice form if:

 (a) it is a condition of the employment of that employee that the employee choose a fund from funds that include all funds that are eligible choice funds for the employer at the time the choice is made; and

 (b) the employer does not have an arrangement to pay contributions to a fund for the benefit of an employee in the event that the employee failed or refused to choose a fund.

 (7) An employer is not required under section 32N to give an employee a standard choice form for a QE day if:

 (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and

 (b) subsection 20B(2) applies to the employer for the employee, the scheme and the QE day.

 (8) An employer is not required under section 32N to give an employee a standard choice form for a QE day if:

 (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and

 (b) subsection 20B(3) applies to the employer for the employee, the scheme and the QE day in relation to the defined benefit that has accrued to the employee under the scheme.

 (9) An employer is not required under section 32N to give an employee a standard choice form if:

 (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and

 (b) the employee would be entitled, on the employee’s retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions made by the employer for his or her benefit to a fund other than the defined benefit superannuation scheme.

 (10) An employer is not required under section 32N to give an employee a standard choice form if:

 (a) the employee is covered by a notional agreement preserving State awards or a preserved State agreement; and

 (b) before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005, the employer was required, under a State law, to give the employee a notification that the employee can choose a superannuation fund; and

 (c) the employer has given the notification mentioned in paragraph (b) to the employee.

 (11) An employer is not required under section 32N to give an employee a standard choice form if the employee is, within the meaning of the Migration Act 1958, the holder of a temporary visa.

32P  Standard choice form

 (1) For the purposes of this Part, a standard choice form is a form that is in writing and that contains the following information:

 (a) a statement that the employee may choose any eligible choice fund for the employer as a chosen fund for the employee;

 (c) the name of the fund that the employer will contribute to if the employee does not make a choice;

 (e) other information that is required, under the regulations, to be included in the form;

 (g) if the employee is a member of a defined benefits scheme—information in relation to that scheme that is required, under the regulations, to be included.

 (2) The regulations may require additional information in relation to funds to be made available to employees and may prescribe where and when such information is to be made available.

Division 7—Stapled funds

32Q  What is the stapled fund for an employee

  A fund is the stapled fund, for an employee at a particular time, if the requirements prescribed by the regulations for the purposes of this section are met in relation to the fund at that time.

32R  Identifying any stapled funds for employees

Requesting Commissioner to identify any stapled fund

 (1) An employer, or the employer’s agent, may request the Commissioner to identify any stapled fund for an employee of the employer. Such a request must be:

 (a) in the approved form; and

 (b) made in accordance with any requirements prescribed by the regulations for the purposes of this paragraph.

 (1A) Such a request may be made before, at or after the time the employee is given a standard choice form under Division 6.

Considering and responding to requests

 (2) Upon being given such a request by an employer (or by the employer’s agent), the Commissioner must:

 (a) consider the request; and

 (b) notify in writing the employer (and the employer’s agent if the agent made the request):

 (i) whether the Commissioner is satisfied that there is a stapled fund for the employee; and

 (ii) if the Commissioner is satisfied that there is a stapled fund for the employee—about the details necessary for the employer to make contributions to that fund for the benefit of the employee;

as soon as practicable and in accordance with any requirements prescribed by the regulations for the purposes of this subsection.

Changes to earlier notifications

 (3) The Commissioner may, in any circumstances prescribed by the regulations for the purposes of this subsection, change an earlier notification given in relation to the employee. The Commissioner must give written notice of the change as soon as practicable to:

 (a) the employer; and

 (b) if the earlier notification arose from a request by the employer’s agent—the employer’s agent.

Division 8—Miscellaneous

32W  Disclosing tax file numbers provided in standard choice forms

  A taxation officer (within the meaning of the Income Tax Assessment Act 1997) may disclose another person’s tax file number (within the meaning of that Act) if:

 (a) the other person provided the number to the Commissioner in a notice given to the Commissioner under paragraph 32F(1)(b); and

 (b) the disclosure is to the other person’s employer.

32X  Application of Part to different employers of an employee

  This Part applies separately to each employer of an employee. For example, a fund that is a chosen fund of an employee as a result of a standard choice form being given by an employer is only a chosen fund in relation to the operation of these provisions to that employer.

32Z  Contributions satisfy Commonwealth or Territory industrial award requirements—chosen funds and stapled funds etc.

  A requirement in a Commonwealth industrial award or a Territory industrial award that an employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund:

 (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or

 (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or

 (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).

32ZAA  Contributions satisfy State or Territory law requirements—chosen funds and stapled funds etc.

 (1) This section applies to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.

 (2) A requirement in a law of a State or Territory that the employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund:

 (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or

 (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or

 (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).

32ZAB  Effect of blocking contributions to PSSAP etc.—eligible choice funds

 (1) This section applies if:

 (a) an employer cannot make contributions to a superannuation fund on behalf of an employee because of section 60F of the Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments); and

 (b) the superannuation fund is any of the following:

 (i) PSSAP;

 (ii) ADF Super (within the meaning of the Australian Defence Force Superannuation Act 2015);

 (iii) if the regulations made for the purposes of this subparagraph specify another superannuation fund—that superannuation fund.

 (2) The following provisions do not have effect in relation to the superannuation fund:

 (a) if the superannuation fund is PSSAP—section 16 of the Superannuation Act 2005;

 (b) if the superannuation fund is ADF Super (within the meaning of the Australian Defence Force Superannuation Act 2015)—section 15 of that Act;

 (c) if the superannuation fund is another superannuation fund—a provision that:

 (i) is specified in regulations made for the purposes of this subparagraph; and

 (ii) is analogous to the provisions mentioned in paragraphs (a) and (b).

32ZA  Employers not liable for damages

  An employer is not liable to compensate any person for loss or damage arising from anything done by the employer in complying with this Part.

Part 4—Voluntary disclosure statements and assessments

33  Voluntary disclosure statements

 (1) An employer who has a superannuation guarantee shortfall for a QE day may lodge a statement about that shortfall.

 (2) The statement is a voluntary disclosure statement if it:

 (a) is lodged before the day an assessment is made for the employer for the QE day; and

 (b) is in the approved form.

Note: A statement is voluntary. Lodging a statement in the approved form can reduce the employer’s administrative uplift amount of the employer’s superannuation guarantee shortfall for the QE day (see subsection 19B(3)).

 (3) Without limiting subsection (2), the voluntary disclosure statement may include either or both of the following:

 (a) the day (the receipt day) an eligible contribution made by the employer for the benefit of an employee was received by the relevant fund, RSA, representative or scheme;

 (b) the day (the payment day) the contribution was paid, or debited, from an account (however described) belonging to:

 (i) the employer; or

 (ii) a person who is making the contribution on behalf of the employer.

 (4) In this section:

account includes an account held with an ADI (within the meaning of the Banking Act 1959).

36  Assessments of superannuation guarantee charge

Making assessments

 (1) The Commissioner may at any time make an assessment of the amount of:

 (a) an employer’s superannuation guarantee shortfall for a specified QE day; and

 (b) the superannuation guarantee charge payable on the shortfall.

 (2) The Commissioner may make such an assessment:

 (a) based on information in a voluntary disclosure statement lodged by the employer for the QE day; or

 (b) on the Commissioner’s own initiative.

When a deeming rule applies for working out any individual notional earnings component in an assessment

 (3) For an assessment based on information in a voluntary disclosure statement lodged by the employer for the QE day that:

 (a) includes a payment day for an eligible contribution that:

 (i) is covered by paragraph 18A(1)(a), (b) or (c); and

 (ii) was applied under subsection 18D(2) for the employer, an employee and the QE day; but

 (b) does not include a receipt day for the contribution;

the employer’s individual notional earnings component (if any) for the employee and the QE day is worked out as if the receipt day for the contribution were the seventh business day after the payment day.

Note: This subsection can change the day the contribution is applied for working out the employer’s individual final superannuation guarantee shortfall on a particular day as part of calculating the individual notional earnings component in section 19A. Any such change does not apply for the purposes of paragraph 16B(2)(a) or any other provision of this Act.

When charge relating to an assessment is payable

 (4) Superannuation guarantee charge in relation to such an assessment is payable on the day that the assessment is made.

37  Amendment of assessments

 (1) The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment.

 (2) Subject to this section, if there has been an avoidance of superannuation guarantee charge, the Commissioner may:

 (a) if the Commissioner is of the opinion that the avoidance of the charge is due to fraud or evasion—at any time; or

 (b) in any other case—within 4 years from the day on which the assessment is made;

amend the assessment by making any alterations or additions that the Commissioner thinks necessary to correct the assessment.

 (3) An amendment effecting a reduction in an employer’s liability under an assessment is not effective unless it is made within 4 years from the day on which the assessment was made.

 (4) If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the day on which superannuation guarantee charge became payable under the amended assessment, make, in or in relation to the particular, any further amendment in the assessment that, in the Commissioner’s opinion, is necessary to effect such reduction in the employer’s liability under the assessment as is just.

 (5) If:

 (a) an employer applies for an amendment of the employer’s assessment within 4 years from the day that superannuation guarantee charge became payable under the assessment; and

 (b) within that period, the employer lodges all information the Commissioner needs to decide the application;

the Commissioner may amend the assessment when considering the application, even if that period has elapsed.

 (6) Nothing in this section prevents the amendment of an assessment to give effect to:

 (a) the decision on any review or appeal; or

 (b) its amendment by reduction of any particular following the employer’s objection or pending any review or appeal.

 (7) Superannuation guarantee charge under an amended assessment is taken to have become payable on the day on which charge under the original assessment became payable.

38  Refund of overpaid amounts

 (1) If, because an assessment is amended, a person’s liability to superannuation guarantee charge is reduced:

 (a) the amount by which the charge is reduced is taken, for the purposes of section 49, never to have been payable; and

 (b) the Commissioner must:

 (i) refund any overpaid amount; or

 (ii) apply any overpaid amount against the person’s liability (if any) to the Commonwealth and refund any part of the amount that is not so applied.

 (2) In this section:

overpaid amount includes each of the following:

 (a) any overpaid amount of superannuation guarantee charge in the form of general interest charge that became payable under section 49;

 (b) if the reduction in the liability results in an amended penalty assessment of an administrative penalty—any overpayment of the administrative penalty;

 (c) any overpayment of administrative penalty under Part 4‑25 in Schedule 1 to the Taxation Administration Act 1953 relating to the reduction in the liability.

39  Amended assessment to be an assessment

  Except as otherwise expressly provided by this Act, an amended assessment is taken to be an assessment for all the purposes of this Act.

40  Notice of assessment or amendment

  As soon as practicable after an assessment is made under section 36 or is amended under section 37, the Commissioner must give written notice of the assessment or amendment (as the case may be) to the person liable to pay the superannuation guarantee charge.

41  Validity of assessment

  The validity of an assessment is not affected because any provision of this Act has not been complied with.

42  Objections against assessment

  An employer who is dissatisfied with an assessment may object in the manner set out in Part IVC of the Taxation Administration Act 1953.

Part 5—Administration

43  General administration of Act

  The Commissioner has the general administration of this Act.

Note: An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.

44  Annual report

  After the end of each year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.

Part 6—Collection and recovery of charge

49  Unpaid superannuation guarantee charge

 (1) If any of the superannuation guarantee charge which an employer is liable to pay remains unpaid after the time by which it is due to be paid, the employer is liable to pay the general interest charge on the unpaid amount (the original unpaid amount).

Note: The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.

 (3) The employer is liable to pay the general interest charge for each day in the period that:

 (a) started at the beginning of the day by which the superannuation guarantee charge was due to be paid; and

 (b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:

 (i) the superannuation guarantee charge;

 (ii) general interest charge on any of the superannuation guarantee charge.

 (4) The amount of the general interest charge is taken to be superannuation guarantee charge payable under this section.

57  Public officer of company

 (1) The person who is, from time to time, the public officer of a company for the purposes of section 252 of the Income Tax Assessment Act 1936 is the public officer of the company for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act.

 (2) Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the company for the purposes of this Act, but, if at any time there is no public officer of the company, service on a person acting or appearing to act in the business of the company is sufficient.

Note: See section 57A for alternative ways to give a notice to, or serve another document on, a company (through its officers, attorneys or agents).

 (3) The public officer is answerable for doing all acts required to be done by the company under this Act, and in case of default is liable to the same penalties.

 (4) Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.

 (5) If, at any time, there is no public officer of the company, this Act applies in relation to the company as if there were no requirement to appoint a public officer of the company.

 (6) A proceeding under this Act brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.

57A  Notifying and serving companies

  For the purposes of this Act, if the Commissioner thinks fit, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:

 (a) a director, the secretary or another officer of the company; or

 (b) an attorney or agent of the company.

Note: See subsection 57(2) for alternative ways to serve a notice or another document on a company (through its public officer or someone else acting or appearing to act for the company).

58  Public officer of trust estate

 (1) The person who is, from time to time, the public officer of a trust estate for the purposes of section 252A of the Income Tax Assessment Act 1936 is the public officer of the trust estate for the purposes of this Act, and the public officer’s address for service under that Act is the public officer’s address for service under this Act.

 (2) Service of a notice or other document at the public officer’s address for service, or on the public officer, is sufficient service on the trustee of the trust estate for the purposes of this Act, but, if at any time there is no public officer of the trust estate, service on a person acting or appearing to act in the business of the trust estate is sufficient.

 (3) The public officer is answerable for doing all acts required to be done by the trustee of the trust estate under this Act, and in case of default is liable to the same penalties.

 (4) Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the trustee of the trust estate.

 (5) If, at any time, there is no public officer of the trust estate, this Act applies in relation to the trustee of the trust estate as if there were no requirement to appoint a public officer of the trust estate.

 (6) A proceeding under this Act brought against the public officer is taken to have been brought against the trustee of the trust estate, and the trustee is liable jointly with the public officer for any penalty imposed on the public officer.

 (7) Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer’s obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served on or brought against any agent or attorney of the trustee, and the agent or attorney has the same liability in relation to the notice, process or proceeding as the trustee or public officer would have had if it had been given to, served on or brought against the trustee or public officer.

Part 7—Penalty for late or non‑payment of superannuation guarantee charge

59  Simplified outline of this Part

59A  Notice to pay unpaid superannuation guarantee charge

 (1) This section applies if superannuation guarantee charge payable by an employer is unpaid on the day (the current notice trigger day) that is the day after the end of the 28‑day period that started on the day (the imposition day) the charge became payable.

Note: The superannuation guarantee charge could be:

(a) charge assessed and payable under section 36; or

(b) charge in the form of general interest charge payable under section 49.

 (2) The Commissioner must, as soon as practicable after the current notice trigger day, give the employer a written notice (the current notice) requiring the employer to pay a specified amount of superannuation guarantee charge if:

 (a) at least some of the specified amount is the amount referred to in subsection (1); and

 (b) the remainder (if any) of the specified amount is charge payable by the employer that is unpaid on the current notice trigger day; and

 (c) the specified amount exceeds $30 or any higher amount prescribed by the regulations; and

 (d) the employer has not been given an earlier notice under this subsection during the 50‑day period ending on the day before the current notice trigger day; and

 (e) no part of the specified amount has been included in any earlier notice under this subsection.

Note 1: As well as including the amount referred to in subsection (1), the amount specified in the current notice could also include:

(a) any (other) unpaid general interest charge that has accrued under section 49 since the employer was given the last notice under this subsection; and

(b) any (other) unpaid charge that has been assessed under section 36 since the start of the 50‑day period mentioned in paragraph (d).

Note 2: The employer remains liable to pay the amounts making up the specified amount. The notice does not create a separate liability to pay the specified amount. However, a failure to comply with the notice may result in an administrative penalty under section 59C.

 (3) The Commissioner must ensure that the current notice includes words to the effect that an administrative penalty will arise if the employer fails to pay the specified amount during the period (the current notice payment period):

 (a) starting on the day specified in the notice (which must be on or after the current notice trigger day); and

 (b) ending on the 28th day after the day specified in the notice.

59B  Consequences if a liability to pay all or part of the specified amount is reduced or ceases to exist

 (1) If:

 (a) the current notice payment period has not expired; and

 (b) a liability under this Act to pay any of the amounts making up the specified amount is reduced (but not to nil);

treat the specified amount in the current notice as if it were reduced by the amount of the reduction referred to in paragraph (b).

 (2) If:

 (a) the current notice payment period has not expired; and

 (b) each liability under this Act to pay an amount making up the specified amount either:

 (i) is reduced to nil; or

 (ii) ceases to exist;

treat the current notice as if it were revoked.

59C  Penalty for failing to pay unpaid superannuation guarantee charge specified in the notice

 (1) The employer is liable to pay a penalty if the employer fails to pay the amount specified in the current notice during the current notice payment period.

 (2) The amount of the penalty is equal to a percentage of so much of the specified amount as remains unpaid at the end of the current notice payment period. The percentage is as follows:

Note: Determinations under subsection 18C(4) cover employers affected by exceptional circumstances. The determination may cover an employer for a period starting before the determination is made.

59D  Assessment and notification of liability to pay the penalty

 (1) The Commissioner must make an assessment (a penalty assessment) of the amount of an administrative penalty payable under section 59C by the employer.

 (2) The Commissioner must give written notice to the employer of the penalty assessment, unless the penalty assessment is nil.

 (3) The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the day the notice is given to the employer.

Note 1: For provisions about collection and recovery of the penalty, see Part 4‑15 in Schedule 1 to the Taxation Administration Act 1953.

Note 2: General interest charge does not accrue on any late payment of the penalty.

 (4) If the employer is dissatisfied with the penalty assessment, the employer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.

59E  Amending penalty assessments

 (1) The Commissioner must not remit all or a part of the penalty set out in a penalty assessment.

 (2) However, the Commissioner must amend a penalty assessment if:

 (a) a liability under this Act to pay an amount relevant to the penalty assessment is reduced (including to nil) or ceases to exist; or

 (b) the amount of the penalty set out in the penalty assessment is reduced to nil because of a determination made under subsection 18C(4).

Note: A determination under subsection 18C(4) may cover an employer for a period starting before the determination is made.

 (3) The amount of penalty payable under the amended penalty assessment is to be worked out in a manner consistent with subsection 59C(2).

Part 8—Payments of amounts of shortfall components for the benefit of employees

63A  Payments to which this Part applies

 (1) This Part applies to a charge payment in respect of one or more employees (the benefiting employee or benefiting employees) that is made by or on behalf of an employer.

 (1A) This Part applies to a former employee as if the former employee were an employee of the person who was the former employee’s employer.

 (2) In this section:

charge payment means a payment of superannuation guarantee charge that:

 (a) was assessed in relation to a QE day; or

 (b) was in the form of general interest charge payable under section 49 in relation to non‑payment of superannuation guarantee charge assessed in relation to a QE day.

Estimates under the Taxation Administration Act 1953

 (3) For the purposes of this Part, an amount paid to the Commonwealth is treated as being a payment of superannuation guarantee charge:

 (a) in respect of an employee or employees; and

 (b) made by or on behalf of an employer;

to the extent that, as a result of the amount being paid to the Commonwealth, a liability of the employer to pay superannuation guarantee charge in respect of that employee or those employees is discharged under subsection 268‑20(3), or section 269‑40, in Schedule 1 to the Taxation Administration Act 1953.

Note: Under Division 268 in that Schedule, the Commissioner may make an estimate of the unpaid and overdue amount of an employer’s superannuation guarantee charge for a QE day.

 (4) However, subsection (3) does not apply to the amount until the Commissioner knows which employee or employees the liability to pay the superannuation guarantee charge was in respect of.

63B  Overview of this Part

 (1) If a payment to which this Part applies is made, the Commissioner is required to pay (or otherwise deal with) an amount, which is called the shortfall component, for the benefit of a benefiting employee under sections 65 to 67.

 (2) If there is only one benefiting employee, the shortfall component for the payment is worked out under section 64A.

 (3) If there is more than one benefiting employee, there will be separate shortfall components for each of the employees for the payment, worked out under section 64B.

64A  The shortfall component for one benefiting employee

 (1) This section applies if there is only one benefiting employee.

 (2) The shortfall component for the payment is the lesser of the following amounts:

 (a) the amount of the payment;

 (b) the amount of the employee entitlement, calculated at the time when the payment is made (see subsection (3)).

 (3) The employee entitlement, calculated at a particular time in relation to the assessment, is the sum of the following amounts:

 (a) the employer’s individual final superannuation guarantee shortfall for the employee and the QE day specified in the assessment;

 (b) the employer’s individual notional earnings component for the employee and the QE day;

 (c) the employer’s choice loading for the employee and the QE day;

 (d) so much of any general interest charge as:

 (i) relates to non‑payment of superannuation guarantee charge payable in relation to the amounts in paragraphs (a), (b) and (c); and

 (ii) has been paid by, or is payable at, the particular time;

reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employee.

Note: The employee’s entitlement does not include so much of any general interest charge as relates to the employer’s administrative uplift amount for the QE day (see subparagraph (d)(i)).

64B  The shortfall component for more than one benefiting employee

 (1) This section applies if there is more than one benefiting employee. In this situation, separate shortfall components are worked out for each of the benefiting employees.

 (2) The shortfall component for a payment, in respect of a particular employee, is the employee’s proportion of the lesser of the following amounts:

 (a) the amount of the payment;

 (b) the amount of the total employee entitlement, calculated at the time when the payment is made.

 (3) Subject to subsection (3A), an employee’s proportion of an amount is the following proportion:

 (3A) The Commissioner may vary an employee’s proportion of an amount if the amount of the charge payment has been affected by:

 (a) the application of the monetary limit imposed by subsection 556(1A) of the Corporations Act 2001 in respect of the employee; or

 (b) the application of the monetary limit imposed by paragraph 109(1)(e) of the Bankruptcy Act 1966 in respect of the employee.

 (4) The total employee entitlement, calculated at a particular time in relation to the assessment, is the sum of the following amounts:

 (a) the total of the employer’s individual final superannuation guarantee shortfalls for all employees and the QE day specified in the assessment;

 (b) the total of the employer’s individual notional earnings components for all employees and the QE day;

 (c) the total of the employer’s choice loadings for all employees and the QE day;

 (d) so much of any general interest charge as:

 (i) relates to non‑payment of superannuation guarantee charge payable in relation to the totals in paragraphs (a), (b) and (c); and

 (ii) has been paid by, or is payable at, the particular time;

reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employees.

Note: The employee’s entitlement does not include so much of any general interest charge as relates to the employer’s administrative uplift amount for the QE day (see subparagraph (d)(i)).

65  Payment of shortfall component

 (1) Except in a case covered by section 65AA, 65A, 66, 66A or 67, the Commissioner is required to deal with the amount of the shortfall component in one of the following ways:

 (a) in any case—pay the amount of the component, for the benefit of the employee, to:

 (i) an RSA; or

 (ii) an account with a complying superannuation fund; or

 (iii) an account with a complying approved deposit fund;

  that is held in the name of the employee and that is determined by the Commissioner to belong to the employee;

 (b) if the employee has nominated an RSA, a complying superannuation fund or a complying approved deposit fund in accordance with the regulations:

 (i) pay the amount of the component to the RSA or fund for the benefit of the employee; or

 (ii) make arrangements in accordance with the regulations to enable the amount of the component to be paid to the RSA or fund for the benefit of the employee;

 (c) if the employee has not made a nomination under paragraph (b)—credit the amount of the component to an account kept under the Small Superannuation Accounts Act 1995 in the name of the employee.

 (2) A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to a superannuation fund is conclusively presumed to be a payment to a complying superannuation fund for the purposes of subsection (1) if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:

 (a) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and

 (b) is not subject to a direction under section 63 of that Act.

 (3) A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to an approved deposit fund is conclusively presumed to be a payment to a complying approved deposit fund for the purposes of subsection (1) if subsection (4) applies.

 (4) This subsection applies if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund is operated in accordance with the Superannuation Industry (Supervision) Act 1993 and regulations under that Act.

 (5) If an amount is to be credited under paragraph (1)(c), an amount equal to the credited amount is to be credited to the Superannuation Holding Accounts Special Account.

 (6) A payment under paragraph (1)(a) to a particular account is taken to be a payment to the complying superannuation fund or the complying approved deposit fund with which the account is held, for the purposes of this section and any other laws of the Commonwealth that refer to payments under this section.

65AA  Shortfall component and former temporary resident

 (1) This section applies if the employee is a former temporary resident (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999).

 (2) The Commissioner must treat the amount of the shortfall component as if it had been paid to the Commissioner by a superannuation provider in respect of the employee under section 20F of that Act.

65A  Payment to employee who is over 65

  Except in a case covered by section 65AA, the Commissioner must pay the amount of the shortfall component directly to the employee (whether or not he or she is still an employee) if:

 (a) the employee is 65 years or more; and

 (b) the employee has requested the Commissioner in the approved form to pay the amount to him or her.

66  Payment to employee retired due to permanent incapacity or invalidity

  Except in a case covered by section 65AA, if:

 (a) the employee has retired because of permanent incapacity or permanent invalidity; and

 (b) the former employee has lodged with the Commissioner:

 (i) written notice of the retirement; and

 (ii) a copy of a certificate signed by 2 registered medical practitioners certifying that the former employee is unlikely to be able to work again in a capacity for which he or she is reasonably qualified by education, training or experience;

the Commissioner must pay the amount of the shortfall component to the former employee.

66A  Payment to employee with terminal medical condition

  Except in a case covered by section 65AA, the Commissioner must pay the amount of the shortfall component to the employee (whether or not he or she is still an employee) if:

 (a) a terminal medical condition (within the meaning of the Income Tax Assessment Act 1997) exists in relation to the employee; and

 (b) the employee has requested the Commissioner in the approved form to pay the amount to him or her.

67  Payment where employee deceased

  Except in a case covered by section 65AA, if the employee has died, the Commissioner must pay the amount of the shortfall component to the legal personal representative of the employee.

69  Repayment of overpayments relating to a shortfall component

 (1) This section applies if the Commissioner pays an amount under a provision of this Part (other than paragraph 65(1)(c)) exceeding the amount properly payable under that provision.

 (2) The Commissioner may recover all or part of the excess from a person (the debtor) described in subsection (3) as a debt due by the debtor to the Commonwealth if the conditions specified in subsection (4) are met.

 (3) The persons from whom the Commissioner may recover are as follows:

 (a) the person to whom the payment was made;

 (b) if:

 (i) the person to whom the payment was made is a superannuation provider of a fund or RSA; and

 (ii) there are one or more later transfers of the payment, or of amounts wholly or partly attributable to the payment, to one or more other funds or RSAs;

  the superannuation provider for the fund or RSA that currently holds the payment or any of those attributable amounts;

 (c) the benefitting employee for the payment (or the employee’s trustee) if:

 (i) it is not possible to recover all or part of the excess from a person covered by paragraph (a) or (b); and

 (ii) the benefitting employee (or the employee’s trustee) has received one or more benefits from a fund or RSA that are wholly or partly attributable to the payment.

Note 1: The kinds of persons covered by paragraph (a) include a benefitting employee, a superannuation provider, or the trustee of a benefitting employee who has died or who is under any legal or other disability.

Note 2: To find out who can be the benefitting employee’s trustee for paragraph (c), see section 6.

 (4) The conditions for recovery are that:

 (a) the Commissioner gave the debtor a written notice of the proposed recovery that includes the amount to be recovered and an explanation of the operation of this section; and

 (b) at least 28 days have passed since the notice was given; and

 (c) the amount recovered is not more than the amount specified in the notice.

 (5) Despite subsections (2) and (3):

 (a) none of the excess can be recovered from a superannuation provider if none of the provider’s funds or RSAs currently hold the payment or any amount wholly or partly attributable to the payment; and

 (b) the total amount recovered from a benefitting employee (or the employee’s trustee) because of paragraph (3)(c) must not exceed the total of the benefits received as described in that paragraph.

Note: The limit in paragraph (b) does not apply if the benefitting employee (or the employee’s trustee) is the person covered by paragraph (3)(a).

 (6) The Commissioner may revoke a notice described in paragraph (4)(a).

 (7) The total of the amounts recovered from different debtors in relation to the same excess must not be more than the excess.

 (8) A notice described in paragraph (4)(a) is not a legislative instrument.

69A  Recovery of shortfall component incorrectly credited to an account kept under the Small Superannuation Accounts Act 1995

 (1) This section applies if:

 (a) an amount credited by the Commissioner under paragraph 65(1)(c) of this Act to an account kept under the Small Superannuation Accounts Act 1995 exceeds the amount that should have been credited to the account; and

 (b) the balance of the account is attributable, in whole or in part, to the credit.

 (2) The account is to be debited by the amount of the excess.

 (3) An amount equal to the excess is to be debited from the Superannuation Holding Accounts Special Account.

71  Appropriation

  Amounts that the Commissioner is required to pay under this Part are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.

Part 9—Miscellaneous

72  Treatment of partnerships

 (1) Subject to this section, this Act applies as if a partnership were a legal person.

 (2) An obligation that, apart from this subsection, would be imposed by this Act on a partnership is instead imposed on each partner, but may be discharged by any of the partners.

 (3) If, apart from this subsection, a liability to pay money would be imposed on a partnership by this Act, the liability is instead imposed on the partners jointly and severally.

 (4) If, because of subsection (1), a partnership would be taken to have committed an offence, the offence is instead taken to have been committed by each of the partners.

 (5) In a prosecution for an offence taken to have been committed by a person because of subsection (4), it is a defence that the person:

 (a) did not aid, abet, counsel or procure the act or omission constituting the offence; and

 (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.

 (6) A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.

73  Treatment of unincorporated associations

 (1) In this section, association means an unincorporated association or body of persons (other than a partnership).

 (2) Subject to this section, this Act applies as if an association were a legal person.

 (3) An obligation that, apart from this subsection, would be imposed on an association is instead imposed on the officers of the association.

 (4) If, apart from this subsection, a liability to pay money would be imposed on an association by this Act, the liability is instead imposed on the members of the association jointly and severally.

 (5) If, because of subsection (2), an association would be taken to have committed an offence, the offence is instead taken to have been committed by each of the officers of the association.

 (6) In a prosecution for an offence taken to have been committed by a person by virtue of subsection (5), it is a defence that the person:

 (a) did not aid, abet, counsel or procure the act or omission constituting the offence; and

 (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.

 (7) A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.

74  Amnesty in relation to historic amounts of superannuation guarantee shortfall

Qualifying for the amnesty

 (1) An employer qualifies for an amnesty for the employer’s superannuation guarantee shortfall for a quarter if:

 (a) during the period (the amnesty period) provided by subsection (3), the employer discloses to the Commissioner, in the approved form, information that:

 (i) relates to the amount of the employer’s superannuation guarantee shortfall for the quarter; and

 (ii) was not disclosed to the Commissioner before the amnesty period; and

 (b) the amnesty period started after the end of the period of 28 days after the end of the quarter; and

 (c) the Commissioner has not, at any time before the disclosure, informed the employer that the Commissioner is examining, or intends to examine, the employer’s compliance with an obligation to pay the superannuation guarantee charge for the quarter.

 (2) However, if the employer would have a superannuation guarantee shortfall for the quarter even if the information in the disclosure were not taken into account, the employer qualifies for an amnesty for the shortfall only to the extent of the increase in the shortfall as a result of taking the information into account.

 (3) The amnesty period is the period that:

 (a) started on 24 May 2018; and

 (b) ends 6 months after the day the Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020 receives the Royal Assent.

Ceasing to qualify for the amnesty

 (4) The employer ceases to qualify, and is taken never to have qualified, for the amnesty for the employer’s superannuation guarantee shortfall for the quarter if the Commissioner notifies the employer under subsection (5).

 (5) The Commissioner may notify the employer in writing that the employer has ceased to qualify, and is taken never to have qualified, for that amnesty if:

 (a) the employer:

 (i) has not, on or before the day on which superannuation guarantee charge on the employer’s superannuation guarantee shortfall for the quarter became payable, paid that superannuation guarantee charge; and

 (ii) has not, at any time, entered into an arrangement with the Commissioner that includes the payment of that superannuation guarantee charge; or

 (b) the employer has entered into such an arrangement, but has failed to comply with it.

 (6) For the purposes of subparagraph (5)(a)(i), a payment under this Act of an amount equal to the amount of the superannuation guarantee charge mentioned in that subparagraph is taken to be a payment of that charge whether or not the Commissioner applies the payment to satisfy the employer’s liability to pay that charge.

79  Records to be kept and retained by employers

 (1) An employer must keep records that record and explain all transactions and other acts engaged in by the employer, or required to be engaged in by the employer, under this Act.

Note: There is an administrative penalty if you do not keep or retain records as required by this section: see section 288‑25 in Schedule 1 to the Taxation Administration Act 1953.

 (2) The records must include any documents relevant to working out:

 (a) whether the employer has a superannuation guarantee shortfall for a QE day; and

 (b) the amount of such a shortfall.

 (3) The records must be kept:

 (a) in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and

 (b) so that the employer’s liability under this Act can be readily ascertained.

 (4) An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after those records were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is later.

 (5) Nothing in this section requires an employer to retain records if:

 (a) the Commissioner has notified the employer that the retention of the records is not required; or

 (b) the employer is a company that has gone into liquidation and been finally dissolved.

Note: A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.

 (6) An employer who contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.

Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

 (6A) Subsection (6) does not apply to the extent that the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matters in subsection (6A), see subsection 13.3(3) of the Criminal Code.

 (7) An offence under this section is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

80  Regulations

  The Governor‑General may make regulations prescribing all matters:

 (a) required or permitted by this Act to be prescribed; or

 (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;

and, in particular, may make regulations prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the Legislation Act 2003.

If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.

Endnote 2—Abbreviation key

Endnote 3—Legislation history