Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2)

Administered by Department of Finance

Legislation au F2005L02038 Not in force Legislative Instrument

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explanatory statement

Issued by the authority of the Minister for Finance and Administration

Superannuation Act 1990

Declaration under paragraph 6(1)(j)

The Superannuation Act 1990 (the Act) makes provision for and in relation to the Public Sector Superannuation Scheme (PSS) for Australian Government employees and for certain other persons.

Section 6 of the Act specifies the various persons who may be a member of the PSS (PSS member).  Paragraph 6(1)(j) provides that the Minister may declare a person to be a PSS member.

The Superannuation (PSS) Membership Inclusion Declaration 1995 (the Principal Declaration) identifies the persons who are declared PSS members under paragraph 6(1)(j).

The purpose of the Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2) (the Amending Declaration) is to amend the Principal Declaration in order to provide PSS membership for former employees of Totalcare Industries Limited (Totalcare) who were transferred to Rhodium Asset Solutions Limited (Rhodium) when it was established on 31 December 2004.

The Amending Declaration ensures continued membership of the PSS for a person who became an employee of Rhodium on 31 December 2004 and who:

  • immediately before becoming an employee of Rhodium was employed by Totalcare;
  • was a member of the PSS; and
  • continues to be employed by Rhodium.

The Amending Declaration also provides that PSS membership for employees of Rhodium will cease in the circumstances set out in the Declaration. Membership would cease when Rhodium is no longer controlled by the ACT Government or a body controlled by the ACT Government or where the person becomes a member of an alternative superannuation scheme.

The Amending Declaration has been prepared in consultation with the Australian Capital Territory’s Department of Treasury and the Office of Legislative Drafting and Publishing.  The Office of Regulation Review has advised that a Regulation Impact Statement is not required for the Amending Declaration.

No further consultation is required as the instrument is machinery in nature and does not alter existing arrangements for those employees who transferred from Totalcare to Rhodium.

The Amending Declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003.

The Amending Declaration is taken to have commenced on 31 December 2004.  Subsection 45(4) of the Act provides that a declaration made under paragraph 6(1)(j) may be expressed to have taken effect from and including a day not earlier than 12 months before the making of the declaration.  Employees of Rhodium who meet the conditions in the Amending Declaration have been treated as PSS members from 31 December 2004.

The details of the Amending Declaration are explained in the Attachment.

 


Attachment

Superannuation (PSS) Membership inclusion Amendment Declaration 2005 (no. 2)

Section 1

This section provides that the name of the Declaration is the Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2).

Section 2

This section provides that the Declaration is taken to have commenced on 31 December 2004.

Section 3

This section provides that Schedule 1 of the Declaration amends the Superannuation (PSS) Membership Inclusion Declaration 1995 (the Principal Declaration).

Schedule 1 – Amendments

Item 1 inserts subsection 3(17), which describes the circumstances that result in PSS membership of employees of Rhodium Asset Solutions Limited (Rhodium) ceasing. Subsection 3(17) provides that PSS membership is only maintained for a person who has membership through item 24 in Schedule 1 of the Principal Declaration while a controlling interest is held in Rhodium by the following:

  • the Australian Capital Territory (the ACT) or its nominees;
  • an authority or body established for a public purpose by or under a law of the ACT; or
  • a company or other corporate body in which the ACT, its nominees or an authority or body established for a public purpose by or under a law of the ACT has a controlling interest.

Item 2 inserts item 24 in Schedule 1 of the Principal Declaration.

Item 24 provides that employees of Rhodium can retain PSS membership if they:

  • were employed by Totalcare Industries Limited and transferred to Rhodium on 31 December 2004;
  • were members of the PSS immediately prior to the transfer;
  • continue to be employed by Rhodium; and
  • are not members of an alternative superannuation scheme (as defined in the Principal Declaration).

 

Overview

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2) was introduced to address the specific issue of ensuring that employees who were transferred from Totalcare Industries Limited to Rhodium Asset Solutions Limited on 31 December 2004 retained their membership in the Public Sector Superannuation Scheme (PSS). This legislative instrument was enacted by the Minister for Finance and Administration under the Superannuation Act 1990. The policy objective was to provide continuity of superannuation membership for affected employees, ensuring they remained part of the PSS under certain conditions. This amendment was deemed necessary to maintain the superannuation benefits of employees transitioning between the two companies while under the control of the Australian Capital Territory or its nominees.

Scope and Application

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2) is a legislative instrument designed to amend the Superannuation (PSS) Membership Inclusion Declaration 1995 to provide Public Sector Superannuation Scheme (PSS) membership to former employees of Totalcare Industries Limited who transferred to Rhodium Asset Solutions Limited on 31 December 2004. This amendment ensures that those employees who were PSS members before the transfer continue their membership if they remain employed by Rhodium and are not members of another superannuation scheme. The PSS membership of Rhodium employees will cease if Rhodium is no longer controlled by the Australian Capital Territory Government or its nominees, or if the employees join another superannuation scheme. This amendment applies to the Commonwealth jurisdiction and does not require further consultation as it is considered machinery in nature and does not alter existing arrangements for those employees who transferred from Totalcare to Rhodium. The Amending Declaration is a legislative instrument under the Legislative Instruments Act 2003 and is taken to have commenced on 31 December 2004.

Key Provisions

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2005 (No. 2) (Amending Declaration) amends the Superannuation (PSS) Membership Inclusion Declaration 1995 (Principal Declaration) to ensure that former employees of Totalcare Industries Limited who were transferred to Rhodium Asset Solutions Limited on 31 December 2004 retain their Public Sector Superannuation Scheme (PSS) membership (section 1). The Amending Declaration is taken to have commenced on the same day, 31 December 2004 (section 2). The Declaration amends the Principal Declaration by adding provisions that describe the circumstances under which PSS membership for Rhodium employees ceases (section 3). The Amending Declaration imposes obligations on the parties involved. It mandates that employees who were transferred from Totalcare to Rhodium on the specified date, were members of the PSS immediately prior to the transfer, and continue to be employed by Rhodium, can retain their PSS membership (Schedule 1, Item 24). It also outlines the conditions under which PSS membership for these employees will cease, such as when Rhodium is no longer controlled by the Australian Capital Territory (ACT) or a body controlled by the ACT, or when the employee becomes a member of an alternative superannuation scheme (Schedule 1, Item 1). Under the Act, there are no specific offences, penalties, or civil/criminal consequences outlined for breaches of the Amending Declaration. However, the Act does provide for general enforcement provisions that apply to breaches of the Act or its regulations. These may include fines, imprisonment, or other penalties as prescribed by the Act or other applicable legislation. The precise consequences of a breach would depend on the nature and severity of the breach and the provisions of the Act that are contravened. The Amending Declaration is a legislative instrument for the purposes of the Legislative Instruments Act 2003. It has been prepared in consultation with relevant authorities and does not require a Regulation Impact Statement. No further consultation is required as the instrument is machinery in nature and does not alter existing arrangements for the affected employees. The Declaration is intended to ensure that the intended policy outcomes are achieved without imposing additional burdens or costs on the parties involved.

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