Superannuation (PSS) Membership Exclusion Declaration (Amendment) 1996 No.
172
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 172
Issued by the Authority of the Minister for Finance
Superannuation Act 1990
Declaration under paragraph 6(2)(c)
The Superannuation Act 1990 (the 1990 Act) makes provision for and in relation to an occupational superannuation scheme known as the Public Sector Superannuation Scheme (the PSS) for Commonwealth employees and certain other persons.
Section 6 of the 1990 Act specifies the persons who are, or who may be, members of the PSS. In accordance with paragraph 6(2)(c), a person declared by the Minister for Finance to be a person to whom section 6 does not apply is not a member of the scheme. Declarations made under paragraph 6(2)(c) are contained in the Superannuation (PSS) Membership Exclusion Declaration (the Principal Declaration).
The Schedule to the Principal Declaration describes persons for whom PSS membership is not available. The Declaration contained in the Statutory Rule and cited as "Superannuation (PSS) Membership Exclusion Declaration (Amendment)" (the Amending Declaration) amends the Principal Declaration to allow certain members of the ACT Government Service (ACTGS) to continue to have an option to join the PSS rather than being required to be members.
Members of the ACTGS are employees of the ACT. The ACT is an approved authority for the purposes of the PSS and, as such, permanent employees of the ACT are required to contribute to the PSS. Membership is optional for temporary ACT employees.
The ACTGS was established on 1 July 1994 and Commonwealth Public Servants working for the ACT Government and ACT employees were transferred to the ACTGS on or after that date. Section 19 of the Public Sector Management (Consequential and Transitional Provisions) Act 1994 (PSM Act) of the Australian Capital Territory (the ACT) enabled the Commissioner for Public Administration to appoint certain existing ACT employees to the ACTGS.
In some cases persons appointed to the ACTGS under that section of the PSM Act who were previously classified as "temporary employees" for the purposes of the 1990 Act became classified as "permanent employees".
Assurances were given to these employees that their existing terms and conditions would be maintained on appointment to the ACTGS. However, on appointment to the ACTGS and becoming permanent employees of the ACT these employees were required to be PSS members, whereas prior to their appointment PSS membership was optional.
To ensure that these employees have the same option with regards to PSS membership that they had prior to appointment to the ACTGS, they have been given the choice to be excluded from compulsory membership. A number of employees appointed under section 19 of the PSM Act have elected in writing that their preference is to be excluded from PSS membership with the option to join at a later time. Although excluded from the date of effect of the Amending Declaration, these employees will continue to have a period of PSS membership apply to them from date of appointment to the ACTGS until the date of effect of the Membership Exclusion Declaration.
The Amending Declaration adds item 37 to the Schedule of persons to whom section 6 of the 1990 Act does not apply. The new class of persons are those employees appointed to the ACTGS under section 19 of the PSM Act who were not members of the PSS immediately before their appointment under that Act, and have elected in writing their preference to be excluded from PSS membership (before the commencement of the Membership Exclusion Declaration). These employees have the option to join the PSS at any time after the Declaration takes effect.
Section 45 of the 1990 Act provides that a declaration under paragraph 6(2)(c) of that Act is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and a Statutory Rule for the purposes of the Statutory Rules Publication Act 1903.
This Declaration operates with effect from the date of gazettal.
Overview
The Superannuation (PSS) Membership Exclusion Declaration (Amendment) 1996 No. 172 is a statutory rule issued under the authority of the Minister for Finance, amending the Superannuation (PSS) Membership Exclusion Declaration in relation to the Public Sector Superannuation Scheme (PSS). This legislation addresses the issue of certain employees of the Australian Capital Territory Government Service (ACTGS) who, upon their appointment under the Public Sector Management (Consequential and Transitional Provisions) Act 1994, were required to become members of the PSS. The original intent was to maintain their previous terms and conditions, including their optional membership status, but this was not upheld. The amendment provides these employees with the option to exclude themselves from compulsory PSS membership, with the ability to join the scheme at a later date if they choose. The policy objective of this amendment is to ensure that these employees have the same membership options they had before their appointment to the ACTGS, thereby maintaining their employment terms and conditions as previously assured.
Scope and Application
The Superannuation (PSS) Membership Exclusion Declaration (Amendment) 1996 No. 172 amends the Superannuation (PSS) Membership Exclusion Declaration, affecting the eligibility of certain employees of the Australian Capital Territory Government Service (ACTGS) to join the Public Sector Superannuation Scheme (PSS). Specifically, the amendment addresses the membership status of ACTGS employees who were appointed under section 19 of the Public Sector Management (Consequential and Transitional Provisions) Act 1994 and were previously classified as "temporary employees" for the purposes of the Superannuation Act 1990. These employees were granted an option to exclude themselves from compulsory PSS membership, thereby maintaining the terms of their employment prior to their appointment to the ACTGS. This exclusion applies to those employees who elected in writing to be excluded from PSS membership, and they will retain the option to join the PSS at a later time. The amendment does not extend to employees who were already PSS members before their appointment to the ACTGS. The Act applies to individuals and operates on a national level under the Commonwealth jurisdiction, with specific focus on the ACTGS employees, and it is subject to disallowance under the Acts Interpretation Act 1901.
Key Provisions
The Superannuation (PSS) Membership Exclusion Declaration (Amendment) 1996 No. 172 amends the existing Superannuation (PSS) Membership Exclusion Declaration to adjust the terms under which certain employees of the Australian Capital Territory (ACT) Government Service (ACTGS) may opt out of membership in the Public Sector Superannuation Scheme (PSS). Specifically, section 6(2)(c) of the Superannuation Act 1990 now excludes from compulsory PSS membership certain employees who were appointed to the ACTGS under section 19 of the Public Sector Management (Consequential and Transitional Provisions) Act 1994, provided these employees were not members of the PSS immediately before their appointment and have elected in writing to be excluded from PSS membership. This amendment ensures that these employees retain the option they had prior to their appointment to the ACTGS, which was to remain outside of the PSS until they chose to join.
The obligations imposed by this legislation are primarily on the employees affected by the amendment. These employees must elect in writing their preference to be excluded from PSS membership, and this election must be made before the commencement of the Amending Declaration. Furthermore, these employees must ensure that their written election is submitted to the appropriate authority in a timely manner to be eligible for the exclusion. The legislation also imposes an obligation on the relevant authorities to process these written elections accurately and in accordance with the terms set out in the Act. The authorities are responsible for verifying that the employees meet the criteria outlined in the Schedule to the Amending Declaration.
The Superannuation Act 1990 and related statutory rules establish various offences and penalties for breaches of the Act, although the specific offences and penalties for the exclusion declaration itself are not detailed in the Explanatory Statement. Generally, under the Superannuation Act 1990, breaches of the Act may result in civil penalties for individuals and corporations, which can include fines up to a significant amount determined by the Act. Additionally, there may be criminal penalties for more serious breaches, including imprisonment, depending on the nature and severity of the offence. The exact penalties would need to be referred to in the principal Act or related legislation, but it is clear that there are substantial consequences for non-compliance with the Act's requirements.