Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1)

Administered by Department of Finance

Legislation au F2009L01161 Not in force Legislative Instrument

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explanatory statement

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

Superannuation Act 1990

Declaration under paragraph 6(1)(j)

The Superannuation Act 1990 (the 1990 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 are members of the PSS (PSS members).  Paragraph 6(1)(j) provides that the Minister may declare a person to be a PSS member.

The Superannuation (PSS) Membership Inclusion Declaration 2006 (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 2009 (No. 1) (the Declaration) is to amend the Principal Declaration to provide continuing PSS membership for employees of Health Services Australia Limited. 

Under a merger arrangement, Health Services Australia Limited will become a wholly owned subsidiary of Medibank with effect from 1 April 2009.  Health Services Australia Limited will no longer be an “approved authority” under the 1990 Act, meaning that its employees will no longer be PSS members unless they fall within one of the other categories of membership in section 6 of the 1990 Act.

The Declaration ensures continuing membership of the PSS for persons who:

  • were employees of Health Services Australia Limited and PSS members on 31 March 2009, and have not ceased in that employment, or
  • were employed by Health Services Australia Limited on or after 1 April 2009 and were PSS members immediately before becoming so employed.

The Declaration precludes continuing PSS membership for employees of Health Services Australia Limited who, in relation their employment with the company, are members of an alternative superannuation scheme.

The Declaration also provides that PSS membership of Health Services Australia Limited employees will cease when they cease their employment with Health Services Australia Limited or become members of an alternative superannuation scheme.  It will also cease if Health Services Australia Limited ceases to be owned by Medibank or Commonwealth control of Medibank ceases.  This promotes consistency of arrangements for Health Services Australia Limited employees with Medibank employees, whose PSS membership can only continue while Medibank is subject to Commonwealth control.

Medibank and Health Services Australia Limited were consulted on the amendments contained in the Declaration.


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

The Declaration commences on 1 April 2009.

The details of the Declaration are explained in the Attachment.

 


Attachment

Superannuation (PSS) Membership inclusion Amendment Declaration 2009 (no. 1)

Section 1 – Name of Declaration

This section provides that the name of the Declaration is the Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1).

Section 2 - Commencement

This section provides for the Declaration to commence on 1 April 2009.

Section 3 – Amendment of Superannaution (PSS) Membership Inclusion Declaration 2006

This section provides that Schedule 1 to the Declaration amends the Superannuation (PSS) Membership Inclusion Declaration 2006 (the Principal Declaration).

Schedule 1 - Amendments

Item 1 inserts a definition of Health Services Australia Limited for the purposes of the Principal Declaration.  Health Services Australia Limited is defined as the company (ACN 078 934 791) that was incorporated under the Corporations Law on 17 June 1997.

Item 2 inserts subsection 4(19), which describes the circumstances that result in PSS membership of employees of Health Services Australia Limited ceasing.  Subsection 4(19) provides that PSS membership ceases for a person who has PSS membership through item 26 in Schedule 1 of the Principal Declaration when any of the following circumstances arise:

  • the person ceases employment with Health Services Australia Limited;
  • the person becomes a member of an alternative superannuation scheme, as defined in the Principal Declaration;
  • Health Services Australia Limited ceases to be owned by Medibank; or
  • Commonwealth control of Medibank ceases.

Item 3 inserts item 26 in Schedule 1 of the Principal Declaration.

Item 26 provides that an employee of Health Services Australia Limited can retain PSS membership if they:

  • were an employee of Health Services Australia Limited and PSS member on 31 March 2009, and have not ceased in that employment, or
  • become an employee of Health Services Australia Limited on or after 1 April 2009 and were a PSS member immediately before becoming so employed.

However, item 26 also provides that an employee is not a PSS member if they are a member of an alternative superannuation scheme, as defined in the Principal Declaration, in relation to their employment with Health Services Australia Limited.

Overview

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1) was introduced to address the problem arising from the merger of Health Services Australia Limited with Medibank, a change that would have otherwise resulted in the loss of Public Sector Superannuation Scheme (PSS) membership for its employees. Enacted under the Superannuation Act 1990, this legislative instrument was issued by the authority of the Minister for Superannuation and Corporate Law, acting on behalf of the Minister for Finance and Deregulation. The primary objective of the Declaration is to ensure that employees of Health Services Australia Limited, which became a wholly owned subsidiary of Medibank from 1 April 2009, retain their PSS membership. The Declaration achieves this by amending the earlier Superannuation (PSS) Membership Inclusion Declaration 2006 to include specific provisions for employees of Health Services Australia Limited, ensuring that their PSS membership continues under certain conditions, such as maintaining employment with the company and not joining an alternative superannuation scheme.

Scope and Application

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1) amends the Superannuation (PSS) Membership Inclusion Declaration 2006, which identifies persons who are declared members of the Public Sector Superannuation Scheme (PSS). This amendment specifically addresses the membership status of employees of Health Services Australia Limited, a company that was set to become a wholly owned subsidiary of Medibank from 1 April 2009. By virtue of the merger, Health Services Australia Limited would no longer qualify as an "approved authority" under the Superannuation Act 1990, and thus its employees would no longer be PSS members unless they fit into another category of membership. This amendment ensures that employees who were PSS members as of 31 March 2009 and have continued their employment, or those who are employed by Health Services Australia Limited on or after 1 April 2009 and were PSS members before their employment, retain their PSS membership. However, PSS membership will cease if the employee becomes a member of an alternative superannuation scheme, ceases employment with Health Services Australia Limited, or if Health Services Australia Limited ceases to be owned by Medibank or Commonwealth control of Medibank ceases. The amendment promotes consistency between the superannuation arrangements for employees of Health Services Australia Limited and those of Medibank.

Key Provisions

The Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1) amends the Superannuation (PSS) Membership Inclusion Declaration 2006 to provide for the continuation of Public Sector Superannuation Scheme (PSS) membership for employees of Health Services Australia Limited following its merger with Medibank. Section 1 names the Declaration as the Superannuation (PSS) Membership Inclusion Amendment Declaration 2009 (No. 1), and section 2 specifies the commencement date of 1 April 2009. Section 3 details the amendment of the Superannuation (PSS) Membership Inclusion Declaration 2006, and the amendments are set out in Schedule 1. Schedule 1 inserts a definition of Health Services Australia Limited and amends Schedule 1 of the Principal Declaration to provide that an employee of Health Services Australia Limited can retain PSS membership if they were an employee of Health Services Australia Limited and PSS members on 31 March 2009 and have not ceased in that employment, or if they became an employee of Health Services Australia Limited on or after 1 April 2009 and were PSS members immediately before becoming so employed. However, an employee will not be a PSS member if they are a member of an alternative superannuation scheme in relation to their employment with Health Services Australia Limited. Additionally, PSS membership will cease if the employee ceases their employment with Health Services Australia Limited, becomes a member of an alternative superannuation scheme, Health Services Australia Limited ceases to be owned by Medibank, or Commonwealth control of Medibank ceases. The Declaration imposes obligations on Health Services Australia Limited and its employees to ensure that PSS membership is maintained for eligible employees, and it requires that PSS membership ceases under specified circumstances. The Declaration does not explicitly outline penalties or consequences for non-compliance, but it is a legislative instrument under the Legislative Instruments Act 2003. Therefore, any failure to comply with the Declaration could potentially lead to legal consequences, including enforcement actions by the relevant authorities. However, the exact penalties are not specified within the Declaration itself and would likely be determined by the relevant laws and regulations governing legislative instruments in Australia.

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Area of Law
Superannuation Law
Instrument
Legislative Instrument
Concepts
Commencement Provisions
Repeal & Amendment
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