An Act relating to the establishment and administration of the
Superannuation Guarantee Scheme, and for related purposes
Part 1—Preliminary
1
Short title [see
Note 1]
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
Extension to Territories
This Act:
(a) extends to the Territory of Cocos
(Keeling) Islands and the Territory of Christmas Island; and
(b) has effect as if those Territories
were part of Australia.
4A
Extension to Joint Petroleum Development Area
This Act:
(a) extends to the Joint Petroleum
Development Area (within the meaning of the Petroleum (Timor Sea
Treaty) Act 2003); and
(b) has effect as if that Area were part
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 for a quarter in respect of a superannuation
guarantee shortfall of the Commonwealth had been paid on:
(a) for a quarter beginning on 1 January—28 May
in the next quarter; and
(b) for a quarter beginning on 1 April—28 August
in the next quarter; and
(c) for a quarter beginning on 1 July—28 November
in the next quarter; and
(d) for a quarter beginning on 1 October—28 February
in the next quarter.
(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; 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) an Agency (within the meaning of
the Financial Management and Accountability Act 1997); or
(b) a Commonwealth authority (within
the meaning of the Commonwealth Authorities and Companies Act 1997);
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 Financial Management and Accountability Act 1997.
modifications includes additions, omissions
and substitutions.
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 Australian Industrial Relations Commission not affected
(1) To avoid doubt, but subject to subsection (2),
nothing in this Act or in the Superannuation Guarantee Charge Act 1992 affects:
(a) the jurisdiction, functions or
powers of the Australian Industrial Relations Commission under the Workplace
Relations Act 1996; or
(aa) the jurisdiction, functions or
powers of the Australian Fair Pay Commission under the Workplace Relations
Act 1996; or
(b) the operation of the Workplace
Relations Act 1996 in any other way.
(2) Subsection (1) does not apply to any
express reference in the Workplace Relations Act 1996 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
(1) In this Act, unless the contrary
intention appears:
actuary means a Fellow or Accredited Member
of The Institute of Actuaries of Australia.
administration component, in relation to an
employer and a quarter, means the amount worked out according to section 32.
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:
(a) the ascertainment of an employer’s
superannuation guarantee shortfall for a quarter and of the superannuation
guarantee charge payable on the shortfall; or
(b) the ascertainment of additional
superannuation guarantee charge payable under Part 7.
authorised officer means a person appointed
or engaged under the Public Service Act 1999 who has been authorised in
writing by the Commissioner for the purposes of the provision in which the
expression appears.
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 scheme has the meaning
given by section 7.
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 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.
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.
indexation factor, in relation to a year, has
the meaning given by section 9.
individual superannuation guarantee shortfall,
has the meaning given by section 19.
industrial award means a Commonwealth
industrial award, a State industrial award or a Territory industrial award.
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.
month means the period of a calendar month
beginning on the first day of any of the 12 months of the year.
nominal interest component, in relation to an
employer and a quarter, has the meaning given by section 31.
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, in relation to an
employee, means:
(a) the total of:
(i) earnings in respect of
ordinary hours of work other than earnings consisting of a lump sum payment of
any of the following kinds made to the employee on the termination of his or
her employment:
(A) a payment
in lieu of unused sick leave;
(B) an
unused annual leave payment, or unused long service leave payment, within the
meaning of the Income Tax Assessment Act 1997; and
(ii) earnings consisting of
over‑award payments, shift‑loading or commission; or
(b) if the total ascertained in
accordance with paragraph (a) would be greater than the maximum
contribution base for the quarter—the maximum contribution base.
part‑time employee means a person who
is employed to work not more than 30 hours per week.
penalty charge, in respect of superannuation
guarantee charge and a quarter, means:
(a) general interest charge in respect
of non‑payment of the superannuation guarantee charge; or
(b) additional superannuation
guarantee charge that is payable under section 59 and calculated by
reference to the superannuation guarantee charge.
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.
quarter means a period of 3 months beginning
on 1 January, 1 April, 1 July or 1 October.
resident of Australia has the
meaning given by section 8.
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.
Second Commissioner means a Second
Commissioner of Taxation.
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 17.
superannuation guarantee statement means a
superannuation guarantee statement under section 33.
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.
taxation officer means a person exercising
powers, or performing functions, under this Act.
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.
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.
(3) For the purposes of this Act, a reference
to salary or wages paid by an employer to an employee includes a reference to a
payment made on behalf of the employer.
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 quarter that ended 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 each
employer contributing to the fund or scheme for the benefit of employees
written notice of:
(a) the trustee’s intention to give
the notice; and
(b) the proposed date of effect of the
notice.
(5) If an employer begins contributing to a
superannuation fund or a superannuation scheme for the benefit of employees at
a time when a conversion notice has effect in relation to 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 30 days of the receipt by the trustee of the
employer’s first contribution.
(6) A notice under this section may be given
by post.
7
Interpretation: complying superannuation fund or scheme
A superannuation fund or scheme is a
complying superannuation fund or 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.
9
Interpretation: indexation factor
(1) The indexation factor for a year is
whichever is the greater of the following:
(a) 1;
(b) the number calculated (to 3
decimal places) by dividing the AWOTE amount for the March quarter in the
preceding year by the AWOTE amount for the March quarter in the year preceding
that year.
Note: The March quarter is a quarter beginning on 1 January.
(2) The AWOTE amount for a quarter is the
estimate of the full‑time adult average weekly ordinary time earnings for
persons in Australia for the middle month of the quarter published by the
Australian Statistician in relation to the month.
(3) If the Australian Statistician publishes
an estimate of full‑time adult average weekly ordinary time earnings for
persons in Australia for a period for which such an estimate was previously
published by the Australian Statistician, the publication of the later estimate
is to be disregarded for the purposes of this section.
(4) If the number calculated for the purposes
of paragraph (1)(b) in relation to a year would, if calculated to 4
decimal places, end with a numeral higher than 4, the number is to be taken to
be the number calculated to 3 decimal places and increased by 0.001.
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 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 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).
11
Interpretation—salary or wages
(1) In this Act, salary or wages
includes:
(a) commission; and
(b) 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; and
(ba) payments under a contract referred
to in subsection 12(3) that are made in respect of the labour of the person
working under the contract; and
(c) remuneration of a member of the Parliament
of the Commonwealth or a State or the Legislative Assembly of a Territory; and
(d) payments to a person for work
referred to in subsection 12(8); and
(e) remuneration of a person referred
to in subsection 12(9) or (10).
(2) Remuneration under a contract for the
employment of a person, for not more than 30 hours per week, in work that is
wholly or principally of a domestic or private nature is not to be taken into
account as salary or wages for the purposes of this Act.
(3) Fringe benefits within the meaning of the
Fringe Benefits Tax Assessment Act 1986 are not salary or wages for the
purposes of this Act.
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:
words and phrases in Workplace Relations Act 1996
In this Act:
AWA has the meaning given by section 4
of the Workplace Relations Act 1996.
collective agreement has the meaning given by
section 4 of the Workplace Relations Act 1996.
notional agreement preserving State awards
has the meaning given by clause 1 of Schedule 8 to the Workplace
Relations Act 1996.
old IR agreement has the meaning given by
clause 1 of Schedule 7 to the Workplace Relations Act 1996.
pre‑reform AWA has the meaning given by
clause 1 of Schedule 7 to the Workplace Relations Act 1996.
pre‑reform certified agreement has the
meaning given by clause 1 of Schedule 7 to the Workplace Relations
Act 1996.
preserved State agreement has the meaning
given by clause 1 of Schedule 8 to the Workplace Relations Act
1996.
reform commencement has the meaning given by
section 4 of the Workplace Relations Act 1996.
Note: Some of the definitions in section 4 of
the Workplace Relations Act 1996 refer to other provisions of that Act.
13
Interpretation: notional earnings base where superannuation contributions made
for benefit of certain employees immediately before 21 August 1991
(1) This section deals with the meaning of
the expression notional earnings base in relation to an
employee (the current employee) at a particular time (the current
time) if at the current time:
(a) the current employee is a member
of a superannuation fund (the current fund); and
(b) the current employee’s employer
(the current employer) is contributing to the current fund, in
accordance with an applicable authority (see subsection (5)), for the
benefit of the current employee in relation to a quarter; and
(c) subsection (1A) applies.
(1A) This subsection applies at the current time
if the current employer, or an employer who is, at the current time, a
predecessor employer (see subsection (4A)) of the current employee, was,
immediately before 21 August 1991, contributing to:
(a) the current fund; or
(b) another
fund that, at the current time, is a predecessor fund (see subsection (4D))
in relation to the current employer or the predecessor employer, as the case
may be;
in accordance with the applicable authority, for the
benefit of the current employee or another employee.
(1B) The simplest case to which subsection (1)
applies is the following:
Diagram 13.1—the simplest case
The meaning of the expression notional
earnings base, in relation to the current employee at the current time,
is determined under this section because:
·
Immediately before 21 August 1991, the current employer was:
– employing
the current employee; and
– contributing
to the current fund, in accordance with the applicable authority, for the
benefit of the current employee.
·
This situation has continued until the current time.
(1C) An example of a typical case to which subsection (1)
might apply is the following:
Diagram 13.2—a typical case
The meaning of the expression notional
earnings base, in relation to the current employee at the current time,
is determined under this section because:
·
Immediately before 21 August 1991, the current employer was:
– employing
an employee other than the current employee; and
– contributing
to a fund in accordance with an applicable award, for the benefit of that other
employee.
·
After 3.55p.m. on 28 June 1994, an employee’s benefits were
transferred to the current fund, meeting the requirements of subsection (4E),
and causing the fund, under subsection (4D), to be a predecessor fund at
the current time in relation to the current employer.
·
At the current time, the current employer is:
– employing
the current employee; and
– contributing
to the current fund, in accordance with an applicable authority, for the
benefit of the current employee, in relation to a quarter.
(2) Subject to subsections (3) and (4),
the expression notional earnings base means the reference
earnings in relation to the current employee that, under the applicable
authority as in force on:
(a) the first day of the quarter; or
(b) the
first day of employment;
whichever is the later, constitute the earnings by
reference to which the requisite employer contribution is to be calculated in
relation to the current employee.
(3) If an employee’s notional earnings base
ascertained in accordance with subsection (2) in relation to a quarter
would be an amount greater than the maximum contribution base for that quarter,
the employee’s notional earnings base is the maximum contribution base.
(4) If the applicable authority that would,
but for this subsection, determine an employee’s notional earnings base under
this section is at any time on or after 21 August 1991 amended in a way
that has the effect of reducing an employee’s notional earnings base, the
employee’s notional earnings base is to be determined as if the employee were
an employee in relation to whom section 14 applies.
(4A) For the purposes of this section, an
employer (the test employer) is a predecessor employer
of another employer (the primary employer) in relation to an
employee of the primary employer at a particular time (the test time),
if subsection (4B) or (4C) applies at that time.
(4B) This subsection applies at the test time
if, after 3.55p.m., by legal time in the Australian Capital Territory, on 28 June 1994 and before the test time:
(a) the test employer transferred to
the primary employer, for market value consideration, the whole of the business
or other undertaking, or an asset of the business or other undertaking, in
which the employee was employed by the test employer immediately before the
transfer; and
(b) immediately after the transfer,
the employee was employed by the primary employer solely or principally in the
transferred business or other undertaking, or in utilising the asset in the
business or other undertaking of the primary employer.
(4C) This subsection applies at the test time
if, because of subsection (4B), the test employer is at that time, in
relation to the employee, a predecessor employer of another employer who,
because of an application of subsection (4B) or this subsection, is at
that time, in relation to the employee, a predecessor employer of the primary
employer.
(4D) For the purposes of this section, a fund
(the test fund) is a predecessor fund of
another fund (the primary fund) in relation to an employer at a
particular time (the test time) if subsection (4E) or (4F)
applies at that time.
(4E) This subsection applies at the test time
if:
(a) during the period beginning at
3.55p.m., by legal time in the Australian Capital Territory, on 28 June
1994 and ending at the test time, the test fund transferred to the primary fund
some or all of the benefits, of one or more employees of the employer, in the
test fund; and
(b) the primary fund conferred, on all
of the employees whose benefits were transferred during the period, rights, in
respect of all the benefits, that were substantially the same as, or better
than, those conferred on the employees by the test fund; and
(c) before the transfer of each of the
benefits, a written agreement was in force between the trustee of the primary
fund and the trustee of the test fund that the primary fund would confer those
rights on the employees.
(4F) This subsection applies at the test time
if:
(a) because of subsection (4E),
the test fund is at the test time a predecessor fund, in relation to the
employer, of another fund that is not the primary fund; and
(b) because of an application of subsection (4E)
or of this subsection, that other fund is at the test time a predecessor fund,
in relation to the employer, of the primary fund; and
(c) the test fund became a predecessor
fund of the other fund before the other fund became a predecessor fund of the
primary fund.
(4G) The simplest case to which subsection (4F)
applies is the following:
Diagram
13.3—the simplest case
The test fund is a predecessor fund of
the primary fund at the test time in relation to the employer because:
·
A transfer of an employee’s benefits occurs between the test fund
and the other fund:
– meeting
the requirements of subsection (4E); and
– causing
the test fund, under subsection (4D), to be a predecessor fund of the
other fund at the test time in relation to the employer.
As a result, paragraph (4F)(a) is satisfied.
·
Later, a transfer of employee benefits occurs between the other
fund and the primary fund:
– meeting
the requirements of subsection (4E); and
– causing
the other fund to be a predecessor of the primary fund at the test time in
relation to the employer.
As a result,
paragraph (4F)(b) is satisfied.
·
As the transfer of employee benefits from the test fund to the
other fund happened before the transfer from the other fund to the primary
fund, paragraph (4F)(c) is satisfied.
(5) In this section:
applicable authority means any of the
following:
(a) an industrial award;
(b) an occupational superannuation
arrangement;
(c) a law of the Commonwealth, a State
or a Territory;
(d) the applicable superannuation
scheme.
reference earnings, in relation to an
employee, means:
(a) if the employer is contributing
for the benefit of the employee in accordance with an industrial award, or a
law of the Commonwealth, a State or a Territory (other than this Act), that
specifies the requisite employer contribution by reference to the earnings of a
member of a class of employees identified by the award or law—those earnings;
and
(aa) if the employer is contributing
for the benefit of the employee in relation to a quarter to the superannuation
fund known as the Seafarers’ Retirement Fund that was established by a trust
deed on 3 May 1973—the benchmark rate stated in the trust deed; and
(ab) if the employer is contributing
for the benefit of the employee in relation to a quarter to the superannuation
fund known as the Aberfoyle Award Superannuation Fund that was established by a
trust deed on 18 May 1987—the amount that is the earnings base for the
purposes of the Aberfoyle Limited (Superannuation) Award 1987; and
(b) in any other case—the earnings of
the employee.
13A
Interpretation: notional earnings base where employer contributing to
Seafarers’ Retirement Fund
(1) This section deals with the meaning of
the expression notional earnings base in relation to an employee
if:
(a) an employer is contributing for the
benefit of the employee in relation to a quarter to the superannuation fund
known as the Seafarers’ Retirement Fund that was established by a trust deed on
3 May 1973; and
(b) the employer was not so
contributing immediately before 21 August 1991; and
(c) section 13 would apply in
relation to the employee if the employer had been so contributing immediately
before that date.
(2) The expression notional earnings
base has, in relation to the employee, the same meaning as in section 13.
13B
Interpretation: Notional earnings base where employer contributing to Aberfoyle
Award Superannuation Fund
If an employer is contributing for the
benefit of the employee in relation to a quarter to the superannuation fund
known as the Aberfoyle Award Superannuation Fund that was established by a
trust deed on 18 May 1987, the expression notional earnings base
has, in relation to the employee, the same meaning as in section 13.
14
Interpretation: notional earnings base where superannuation contributions not
made for the benefit of certain employees immediately before 21 August 1991
(1) Subject to subsection (1A), this
section deals with the meaning of the expression notional earnings base
in relation to an employee who is a member of a superannuation fund, or the holder
of an RSA, to which an employer is contributing, for the benefit of the
employee, in the following situations:
(a) where the employer is contributing
to the fund or the RSA in accordance with an industrial award or an
occupational superannuation arrangement for the benefit of the employee in
relation to a quarter;
(ab) where the employer is contributing
to the fund or the RSA in accordance with a law of the Commonwealth, a State or
a Territory for the benefit of the employee in relation to a quarter;
(b) where the employer is otherwise
contributing to the fund or the RSA under the applicable superannuation scheme
for the benefit of the employee in relation to a quarter.
(1A) This section does not apply if the meaning
of the expression notional earnings base in relation to
the employee is dealt with in section 13, 13A or 13B.
(2) Subject to subsections (2A), (2B),
(3) and (4), the expression notional earnings base means the
earnings of the employee that, under the award, arrangement, law or scheme as
in force on:
(a) the first day of a quarter; or
(b) the first day of employment; or
(c) the
day on which the employer begins to contribute to the fund or the RSA;
whichever is the later, constitute the employee’s earnings
by reference to which the requisite employer contribution is to be calculated.
(2A) If:
(a) the employer is contributing for
the benefit of the employee to the fund in accordance with an industrial award,
or a law of a kind referred to in paragraph (1)(ab), that was operative
immediately before 21 August 1991; and
(b) section 13
would operate to determine a notional earnings base in relation to the employee
if the employer had been so contributing immediately before 21 August 1991;
the notional earnings base in relation to the employee is
the notional earnings base referred to in paragraph (b).
(2B) If:
(a) the employer is contributing for
the benefit of the employee to the fund in accordance with the agreement
referred to in Order No. 292 of 1992 of the Coal Industry Tribunal of New
South Wales and known as the New South Wales Coal Mining Industry Statutory
Superannuation Fund (Salary Sacrifice) Agreement; and
(b) section 13
would operate to determine a notional earnings base in relation to the employee
if the employer had been so contributing immediately before 21 August 1991;
the notional earnings base in relation to the employee is
the notional earnings base referred to in paragraph (b).
(3) If, in a case where the employer is
contributing to the fund or the RSA in accordance with an occupational
superannuation arrangement, a law of a kind referred to in paragraph (1)(ab)
or the applicable superannuation scheme, the employee’s notional earnings base
calculated in accordance with subsection (2) would, in relation to a quarter,
be less than the employee’s ordinary time earnings for the quarter, the
employee’s notional earnings base is the employee’s ordinary time earnings.
(4) If an employee’s notional earnings base
ascertained in accordance with subsection (2) in relation to a quarter
would be an amount greater than the maximum contribution base for that quarter,
the employee’s notional earnings base is the maximum contribution base.
15
Interpretation: maximum contribution base
(1) The maximum contribution base for a
quarter in the 2001‑02 year is $27,510.
(3) The maximum contribution base for a quarter
in any later year is the amount worked out using the formula:
(4) Amounts calculated under subsection (3)
must be rounded to the nearest 10 dollar multiple (rounding 5 dollars upwards).
Part 3—Liability of employers other than the Commonwealth and tax‑exempt
Commonwealth authorities to pay superannuation guarantee charge
15B
Application of Part to former employees
This Part applies to salary or wages
paid to, and contributions for the benefit of, 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
salary or wages 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.
16
Charge payable by employer
Superannuation guarantee charge imposed
on an employer’s superannuation guarantee shortfall for a quarter is payable by
the employer.
17
Superannuation guarantee shortfall
If an employer has one or more
individual superannuation guarantee shortfalls for a quarter, the employer has
a superannuation guarantee shortfall for the quarter worked out by adding
together:
(a) the total of the employer’s
individual superannuation guarantee shortfalls for the quarter; and
(b) the employer’s nominal interest
component for the quarter; and
(c) the employer’s administration
component for the quarter.
19 Individual
superannuation guarantee shortfalls
(1) An employer’s individual
superannuation guarantee shortfall for an employee for a quarter is the
amount worked out using the formula:
where:
charge percentage, for an
employer for a quarter, means:
(a) the number specified in subsection (2)
(unless paragraph (b) applies); or
(b) if the number specified in subsection (2)
is reduced in respect of the employee by either or both sections 22 and
23—the number as reduced.
(2) The charge percentage is 9.
Note: This might be reduced under section 22 or
23.
(2A) If an employer makes one or more
contributions (the no choice contributions) to an RSA or a
complying superannuation fund other than a defined benefit superannuation
scheme, for the benefit of an employee during a quarter and the contributions
are not made in compliance with the choice of fund requirements, the employer’s
individual superannuation guarantee shortfall for the employee
for the quarter is increased by the amount worked out in accordance with the
formula:
where:
notional quarterly shortfall is the amount
that would have been worked out under subsection (1) if the no choice
contributions had not been made.
Note 1: See also subsection (2E) and section 19A.
Note 2: Part 3A sets out the choice of fund
requirements.
(2B) If:
(a) a reduction of the charge
percentage for an employee for a quarter is made under subsection 22(2) in
respect of a defined benefit superannuation scheme; and
(b) there is at least one relevant day
in the quarter where, if contributions (the notional contributions)
had been made to the scheme by the employer for the benefit of the employee on
the day, the notional contributions would have been made not in compliance with
the choice of fund requirements; and
(c) section 20 (which deals with
certain cases where no contributions are required) does not apply to the
employer in respect of the employee in respect of the scheme for the quarter;
the employer’s individual superannuation guarantee
shortfall for the employee for the quarter is increased by the amount
worked out in accordance with the formula:
where:
notional quarterly shortfall is the amount
that would have been worked out under subsection (1) if no reduction were
made under subsection 22(2) in respect of the scheme.
number of breach of condition days is the
number of relevant days in the quarter on which, if a contribution had been
made to the scheme by the employer for the benefit of the employee, those
contributions would have been made not in compliance with the choice of fund
requirements.
Note 1: See also subsection (2E) and section 19A.
Note 2: Part 3A sets out the choice of fund
requirements.
(2C) The following days in a quarter are relevant
days for the purposes of subsection (2B):
(a) if the value of B in
the formula in subsection 22(2) for the quarter is 1—every day in the quarter;
or
(b) in any other case—every day in the
quarter that is in the shorter of the scheme membership period or the
certificate period referred to in subsection 22(2).
(2D) A reference in subsections (2A) and
(2B) to an employer’s individual superannuation guarantee shortfall being
increased includes a reference to the shortfall being increased from nil.
(2E) The Commissioner may, after taking
account, wherever appropriate, of the operation of section 19A, reduce
(including to nil) the amount of an increase in an employer’s individual
superannuation guarantee shortfall for an employee for a quarter under subsection (2A)
or (2B).
Note: The Commissioner must have regard to written
guidelines when deciding whether or not to make a decision under this
subsection: see section 21.
(3) If the total salary or wages paid by an
employer to an employee in a quarter exceeds the maximum contribution base for the
quarter, the total salary or wages to be taken into account for the purposes of
the application of subsection (1) in relation to the quarter is the amount
equal to the maximum contribution base.
19A
Limit on shortfall increases arising from failure to comply with choice of fund
requirements
(1) Subject to subsections (2) and (3),
if the total of the amounts worked out for an employee for a quarter under
subsections 19(2A) and (2B) exceeds $500, the total is taken to be $500.
(2) If:
(a) the total (the previous
amount) of the amounts worked out for an employee under subsections
19(2A) and (2B) for previous quarters within an employer’s notice period for an
employee does not exceed $500; and
(b) the current quarter is within the
same employer’s notice period for the employee; and
(c) the total of the amounts worked
out under subsections 19(2A) and (2B) for the employee for the current quarter
and the previous quarters within the employer’s notice period for the employee
exceeds $500;
then, the total of the amounts worked out under
subsections 19(2A) and (2B) for the employee for the current quarter is taken
to be the amount by which $500 exceeds the previous amount.
(3) If a quarter (the later quarter)
in an employer’s notice period for an employee follows a quarter within that
notice period:
(a) to which subsection (1)
applied; or
(b) to which paragraph (2)(c)
applied;
in respect of the employee, the total of the amounts
worked out for the employee under subsections 19(2A) and (2B) for the later
quarter is taken to be nil.
(4) An employer’s
notice period for an employee:
(a) begins
on:
(i) in the case of the
first employer’s notice period for the employee—the later of 1 July 2005
and the day on which the employee is first employed by the employer; or
(ii) in any other case—when
the immediately preceding employer’s notice period for the employee ends; and
(b) ends on the day the Commissioner
gives the employer written notice that the employer’s notice period for the
employee has ended.
20
Scheme in surplus or member has accrued maximum benefit
(1) This section applies to an employer in
respect of an employee in respect of a defined benefit superannuation scheme
for a quarter if the employee is a defined benefit member of the scheme and
either subsection (2) or (3) is satisfied.
Scheme in surplus
(2) This subsection is satisfied 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 since that time and before the start of the quarter; 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 the quarter 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 from 1 July
2005 until the end of the quarter, 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 end of the quarter.
Member has accrued maximum benefit
(3) This subsection is satisfied if, after
the start of the quarter, 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 for
the purposes of this paragraph.
Meaning of scheme’s accrued actuarial liabilities and scheme’s liabilities
in respect of vested benefits
(4) 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 future economic
conditions and 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.
21
Guidelines for reducing an increase in an individual superannuation guarantee
shortfall
(1) The Commissioner must develop written
guidelines that he or she must have regard to when deciding whether or not to
make a decision under subsection 19(2E).
Note: Subsection 19(2E) allows the Commissioner to
reduce (including to nil) the amount of an increase in an individual
superannuation guarantee shortfall under subsection 19(2A) or (2B).
(2) The guidelines are to be made available
for inspection on the Internet.
22
Reduction of charge percentage where contribution made to defined benefit
superannuation scheme
(1) This section applies only in relation to
defined benefit superannuation schemes.
(2) If:
(a) a benefit certificate in relation
to one or more complying superannuation schemes has effect for the whole or
part of a quarter; and
(b) a scheme in relation to which the
certificate has effect is operating for the benefit of a person as an employee
of an employer; and
(c) the
certificate specifies a figure as the notional employer contribution rate in
relation to a class of employees (being a class that includes the employee
referred to in paragraph (b)) as members of the scheme or schemes (as the
case may be);
the charge percentage for the employer, as specified in
subsection 19(2), in respect of an employee in the class for the quarter, is
reduced, in addition to any other such reduction made under this section or
section 23, by the amount worked out using the formula:
where:
A is the figure referred to in paragraph (c).
B is:
(A) 1; or
(B) if, in relation to the
quarter, the employment period is greater than the scheme membership period or
the certificate period—either the fraction that represents the scheme
membership period as a proportion of the employment period or the fraction that
represents the certificate period as a proportion of the employment period or,
if one fraction is smaller than the other, the smaller fraction.
(3) For the purposes of subsection (2):
the employment period means the period, or
the aggregate of the periods, in the quarter for which the employee is employed
by the employer.
the scheme membership period means the
period, or the aggregate of the periods, in the quarter for which the employee
is a member of the superannuation scheme.
the certificate period means the period, or
the aggregate of the periods, in the quarter for which the benefit certificate
has effect in relation to the scheme.
(4) The charge percentage for an employer for
a quarter cannot be reduced below 0.
(5) For the purposes of a calculation under
this section in relation to an employer and an employee:
(a) a period of leave of absence
without pay granted by the employer to the employee is not to be taken into
account as a period for which the employee is employed by the employer; and
(b) a benefit certificate is taken not
to have effect in relation to the employee in respect of such a period.
23
Reduction of charge percentage if contribution made to RSA or to fund other than
defined benefit superannuation scheme
(1) This section applies only in relation to
RSAs and to superannuation funds other than defined benefit superannuation
schemes.
[Reduction of charge percentage where contribution made
under industrial award or law]
(2) Subject to subsections (6) and (7),
if, in a quarter:
(a) an employer is required by an
industrial award or a law of the Commonwealth, a State or a Territory to
contribute for the benefit of an employee to a superannuation fund or an RSA;
and
(b) the requisite contribution is a
specified percentage of the employee’s notional earnings base or a percentage
of that base calculated in accordance with the award or law; and
(c) the
employer contributes to a complying superannuation fund or an RSA for the
benefit of the employee in accordance with the award or law;
the charge percentage for the employer, as specified in
subsection 19(2), in respect of the employee for the quarter, is reduced, in
addition to any other such reduction made under this section or section 22,
by the amount worked out using the formula:
where:
A is the amount of the percentage figure that
expresses the contribution to the fund or the RSA referred to in paragraph (c)
as a proportion of the total amount of the employee’s notional earnings base:
(A) if the employee is
employed under the industrial award or law for the whole of the quarter—for the
whole of the quarter; or
(B) if the employee is
employed under the award or law for a part of the quarter—for that part of the
quarter.
B is:
(A) 1; or
(B) if, in relation to the
quarter, the period for which the employee is employed by the employer is
greater than the period of employment under the industrial award or law
referred to in paragraph (a)—the fraction that represents the period of
employment under the award or law as a proportion of the period of employment
in the quarter.
Note: In certain cases, the choice of fund
requirements provide that the employee’s notional earnings base is adjusted:
see section 32Y.
[Reduction of charge percentage where contribution made
under occupational superannuation arrangement]
(3) Subject to subsections (6) and (7),
if, in a quarter:
(a) an employer is required by an
occupational superannuation arrangement to contribute for the benefit of an
employee to a superannuation fund or an RSA; and
(b) the requisite contribution is a
specified percentage of the employee’s notional earnings base or a percentage
of that base calculated in accordance with the arrangement; and
(c) the
employer contributes to a complying superannuation fund or an RSA for the
benefit of the employee in accordance with the arrangement;
the charge percentage for the employer, as specified in
subsection 19(2), in respect of the employee for the quarter, is reduced, in
addition to any other such reduction made under this section or section 22,
by the amount worked out using the formula:
where:
A is the amount of the percentage figure that
expresses the contribution to the fund or the RSA referred to in paragraph (c)
as a proportion of the total amount of the employee’s notional earnings base:
(A) if the employee is
employed under the occupational superannuation arrangement for the whole of the
quarter—for the whole of the quarter; or
(B) if the employee is
employed under the arrangement for a part of the quarter—for that part of the
quarter.
B is:
(A) 1; or
(B) if, in relation to the
quarter, the period for which the employee is employed by the employer is
greater than the period of employment under the occupational superannuation
arrangement referred to in paragraph (a)—the fraction that represents the
period of employment under the arrangement as a proportion of the period of
employment in the quarter.
Note: In certain cases, the choice of fund
requirements provide that the employee’s notional earnings base is adjusted:
see section 32Y.
[Reduction of charge percentage where contribution made
under scheme that specifies notional earnings base]
(4) Subject to
subsections (6) and (7), if, in a quarter:
(a) an employer contributes for the
benefit of an employee to a complying superannuation fund or an RSA; and
(b) the applicable superannuation
scheme specifies a requisite total contribution as a percentage of the
employee’s notional earnings base; and
(c) the
employer’s contribution is not taken into account for the purpose of reducing
the employer’s charge percentage in respect of the employee for the quarter
under subsection (2) or (3);
the charge percentage for the employer, as specified in
subsection 19(2), in respect of the employee for the quarter, is reduced, in
addition to any other such reduction made under this section or section 22,
by the amount worked out using the formula:
where:
A is the amount of the percentage figure that
expresses the contribution to the fund or the RSA, referred to in paragraph (a)
as a proportion of the total amount of the employee’s notional earnings base:
(A) if the employer
contributes for the benefit of the employee to the complying superannuation
fund or the RSA for the whole of the quarter—for the whole of the quarter; or
(B) if the employer
contributes for the benefit of the employee to the fund or the RSA for a part
of the quarter—for that part of the quarter.
B is:
(A) 1; or
(B) if, in relation to the
quarter, the period for which the employee is employed by the employer is
greater than the period for which the employer contributes for the benefit of
the employee to the fund or the RSA referred to in paragraph (a)—the
fraction that represents the period for which the employer contributes to the
fund or the RSA as a proportion of the period of employment in the quarter.
Note: In certain cases, the choice of fund
requirements provide that the employee’s notional earnings base is adjusted:
see section 32Y.
[Reduction of charge percentage where contribution made
under scheme that does not specify notional earnings base]
(4A) Subject to subsections (6) and (7),
if:
(a) an industrial award applying
throughout a quarter (the current quarter) specifies that an
amount (the award contribution amount) must be contributed by
employers to a superannuation fund or an RSA for the benefit of the employer’s
employees in a class; and
(b) the award contribution amount is
required, whether by the award or otherwise, to be adjusted by reference to any
increase in the earnings of:
(i) the employees (the adjustment
employees) in the class; or
(ii) employees (also the
adjustment employees) of a particular kind in the class; and
(c) immediately before 21 August 1991 the award was operative and specified an amount in accordance with paragraphs (a)
and (b); and
(d) the award has not, on or after
that date and before the end of the current quarter, been amended in a way that
has the effect of reducing the notional earnings base (see subsection (4C))
of the employees in the class for any quarter; and
(e) during
the current quarter, an employer contributes an amount (the actual
contribution amount), whether or not equal to the award contribution
amount, for the benefit of an employee in the class, to the superannuation fund
or the RSA;
the charge percentage for the employer, as specified in
subsection 19(2), in respect of the employee for the current quarter, is
reduced in accordance with subsection (4B).
Note: In certain cases, the choice of fund requirements
provide that the employee’s notional earnings base is adjusted: see section 32Y.
(4B) The reduction is in addition to any other
reduction under this section or section 22 and its amount is worked out
using the formula:
(4C) In subsection (4A) or (4B):
employment factor, in relation to an employee in the class for a
quarter, means:
(a) if, in the quarter, the period for
which the employee is employed by the employer is greater than the period of
employment under the award—the fraction that represents the period of
employment under the award as a proportion of the period of employment in the
quarter; or
(b) in any other case—1.
notional earnings base, in relation to an
employee in the class for a quarter, means an amount equal to the lesser of the
maximum contribution base (see section 15) for the quarter and:
(a) if the employee is a full‑time
employee—the earnings of each of the adjustment employees, under the award, in the
quarter; or
(b) if
the employee is a part‑time employee—the amount worked out using the
formula:
where:
Adjustment
earnings means the earnings of each of the adjustment employees,
under the award, in the quarter;
Full‑time
employee’s hours means the number of ordinary hours of work for
which an equivalent full‑time employee would have been employed in the
quarter in which the employee is employed under the award;
Number of hours employed
means the number of hours for which the employee is employed in the quarter.
quarter factor, in relation to an employee in
the class for a quarter, means:
(a) if, in the quarter, the period for
which the employee is employed by the employer under the award is less than the
whole of the quarter—the fraction that represents the period for which the
employee is employed by the employer under the award as a proportion of the
whole of the quarter; or
(b) in any other case—1.
(4D) Subject to subsections (6) and (7),
if, in a quarter, an employer contributes an amount (the actual
contribution amount) for the benefit of an employee to the Aberfoyle
Award Superannuation Fund that was established by a trust deed on 18 May
1987, the charge percentage for the employer, as specified in subsection 19(2),
in respect of the employee for the quarter, is reduced in accordance with subsection (4E).
Note: In certain cases, the choice of fund
requirements provide that the employee’s notional earnings base is adjusted:
see section 32Y.
(4E) The reduction is in addition to any other
reduction under this section or section 22 and its amount is worked out
using the formula:
(4F) In subsection (4E):
employment factor
means:
(a) if, in the quarter, the period for
which the employee is employed by the employer is greater than the period for
which the employer contributes for the benefit of the employee to the Aberfoyle
Award Superannuation Fund—the fraction that represents the period for which the
employer so contributes as a proportion of the period of employment; or
(b) in any other case—1.
notional earnings base
means:
(a) if
the employee is a full‑time employee—the notional earnings base of the
employee within the meaning of section 13; or
(b) if the employee is a part‑time
employee—the amount worked out using the formula:
where:
full‑time employee’s
hours means the number of ordinary hours of work for which an
equivalent full‑time employee would have been employed in the quarter in
which the employee is employed.
number of hours employed means
the number of hours for which the employee is employed in the quarter.
quarter factor means:
(a) if, in the quarter, the period for
which the employer contributes for the benefit of the employee to the Aberfoyle
Award Superannuation Fund is less than the whole of the quarter—the fraction
that represents the period for which the employer so contributes as a proportion
of the whole of the quarter; or
(b) in any other case—1.
(5) Subject to subsections (6) and (7),
if, in a quarter:
(a) an employer contributes for the
benefit of an employee to a complying superannuation fund or an RSA; and
(b) the
contribution is not taken into account for the purpose of reducing the
employer’s charge percentage in respect of the employee for the quarter under subsection (2),
(3), (4), (4A) or (4D);
the charge percentage for the employer, as specified in
subsection 19(2), in respect of the employee for the quarter, is reduced, in
addition to any other such reduction made under this section or section 22,
by the amount worked out using the formula:
where:
A is the amount of the percentage figure that
expresses the contribution to the fund or the RSA referred to in paragraph (a)
as a proportion of the total amount of the employee’s ordinary time earnings:
(A) if the employer
contributes for the benefit of the employee to the complying superannuation
fund or the RSA for the whole of the quarter—for the whole of the quarter; or
(B) if the employer
contributes for the benefit of the employee to the fund or the RSA for a part
of the quarter—for that part of the quarter;
B is:
(A) 1; or
(B) if, in relation to the
quarter, the period for which the employee is employed by the employer is
greater than the period for which the employer contributes for the benefit of
the employee to the fund or the RSA referred to in paragraph (a)—the
fraction that represents the period for which the employer contributes to the
fund or the RSA as a proportion of the period of employment in the quarter.
Note: In certain cases, the choice of fund
requirements provide that the employee’s ordinary time earnings are adjusted:
see section 32Y.
Some contributions made after a quarter ends may be
taken into account in the quarter
(6) A contribution to a complying
superannuation fund or an RSA made by an employer for the benefit of an
employee may be taken into account under this section as having been made in a
quarter if it is in fact made within the period of 28 days after the end of the
quarter.
Certain contributions made before a quarter may be
taken into account in the quarter
(7) A contribution to a complying
superannuation fund or an RSA made by an employer for the benefit of an
employee may be taken into account under this section as if it had been made
during a particular quarter if the contribution is made not more than 12 months
before the beginning of the quarter.
Contributions taken into account for a quarter not to
be taken into account for any other quarter
(8) A contribution to a superannuation fund
or an RSA made by an employer for the benefit of an employee that is taken into
account under this section in relation to a quarter is not to be taken into
account under this section in relation to any other quarter.
[Contribution made when conversion notice has effect
not to be taken into account under this section]
(8A) A contribution to a superannuation fund or superannuation
scheme made by an employer for the benefit of an employee at a time when a
conversion notice has effect in relation to the fund or scheme is not at any
time to be taken into account under this section.
[Certain awards, arrangements, laws and schemes taken
not to specify requisite contribution as percentage of notional earnings base]
(9) An industrial award, an occupational
superannuation arrangement, a law of the Commonwealth, a State or a Territory
or a superannuation scheme is to be taken not to specify the requisite employer
contribution as a percentage of an employee’s notional earnings base if the
award, arrangement, law or scheme:
(a) determines the earnings of the
employee by reference to which the requisite employer contribution is to be
calculated by specifying an amount of money; and
(b) makes no provision for adjustment
of that amount by reference to changes in the earnings of an employee.
[Contributions to estate of deceased employee]
(9A) If:
(a) an employee has died; and
(b) the employer would, if the
employee had not died, have made a contribution to a complying superannuation
fund or RSA for the benefit of the employee; and
(c) the
employer pays to the legal personal representative of the employee an amount
equal to the amount of the contribution that would have been paid;
the amount paid is taken for the purposes of this section
to have been a contribution made by the employer to a complying superannuation
fund or RSA for the benefit of the employee.
[Charge percentage not to be less than 0]
(10) The charge percentage for an employer for
a quarter cannot be reduced below 0.
[Reduction of notional earnings base if amount excluded
from employee’s salary or wages]
(11) If an employee’s notional earnings base
includes an amount of the employee’s salary or wages that, because of section 27
or 28, is not taken into account for the purpose of making a calculation under
section 19, the employee’s notional earnings base for the purposes of this
section is taken to be reduced by that amount.
[Reduction of ordinary time earnings if amount excluded
from employee’s salary or wages]
(12) If, because of section 27 or 28, an
amount of an employee’s salary or wages is not taken into account for the
purpose of making a calculation under section 19, the employee’s ordinary
time earnings for the purposes of this section are taken to be reduced by that
amount.
(13) Subject to subsection (15), if:
(a) an employer makes a deposit under
the Small Superannuation Accounts Act 1995 in respect of an employee
before 1 July 2006; and
(b) the
deposit form that accompanied the deposit, in so far as the form relates to the
deposit, did not contain a declaration that is false or misleading;
this section has effect as if the deposit were a
contribution made by the employer for the benefit of the employee to a
complying superannuation fund.
(14) Subsection (13) has effect despite
section 9 of the Small Superannuation Accounts Act 1995.
(15) If:
(a) an employer makes a deposit under
the Small Superannuation Accounts Act 1995 in respect of an employee;
and
(b) the
employer receives a payment under Part 8 of that Act by way of a refund of
the deposit;
this section has effect as if the deposit had never been
made.
(16) In subsections (13) and (15):
deposit has the same meaning as in the Small
Superannuation Accounts Act 1995.
deposit form has the same meaning as in the Small
Superannuation Accounts Act 1995.
23A
Offsetting late payments against charge
(1) A contribution to a complying
superannuation fund or an RSA made by an employer for the benefit of an
employee is offset under subsection (3) if:
(a) the contribution is made:
(i) after the end of the
period of 28 days after the end of a quarter; and
(ii) before the end of the
28th day of the second month after the end of the quarter; and
(b) the employer elects, in the
approved form, that the contribution be offset.
(2) The election must be made within 4 years
after the employer’s superannuation guarantee charge for the quarter became
payable. The election cannot be revoked.
(3) The contribution is offset against the
employer’s liability to pay superannuation guarantee charge to the extent that
the liability relates to:
(a) that part of the employer’s
nominal interest component for the quarter that relates to the employee; or
(b) the employer’s individual
superannuation guarantee shortfall for the employee for the quarter.
(4) The contribution is offset against that
part of the employer’s nominal interest component for the quarter that relates
to the employee before any remainder is offset against the employer’s
individual superannuation guarantee shortfall for the employee for the quarter.
(5) A contribution to a superannuation fund
or an RSA made by an employer for the benefit of an employee that is taken into
account under this section in relation to a quarter is not to be taken into
account:
(a) under this section in relation to
any other quarter; or
(b) under section 22 or 23.
24
Certain benefit certificates presumed to be certificates in relation to
complying superannuation scheme
(1) Subject to subsection (4), a benefit
certificate that has effect in relation to a superannuation scheme (being a
scheme to which an employer has contributed for the benefit of an employee) for
the whole or a part of a quarter is, for the purposes of section 22,
conclusively presumed, in relation to the employer, to be a certificate that
has effect in relation to a complying superannuation scheme for the whole, or
that part, as the case may be, of the quarter if:
(a) within 30 days of the starting day
in relation to that certificate, the employer obtains a written statement,
provided by or on behalf of the trustee of the scheme, that the scheme:
(i) is a resident
regulated superannuation fund within the meaning of the Superannuation
Industry (Supervision) Act 1993; 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; or
(b) in an earlier quarter, the
employer has obtained a statement of the kind referred to in paragraph (a).
(2) Subject to subsection (4), a benefit
certificate that has effect in relation to a superannuation scheme (being a
scheme to which an employer has contributed for the benefit of an employee) for
the whole or a part of a quarter is, if the employer obtains a statement of the
kind referred to in paragraph (1)(a):
(a) within the quarter; but
(b) later
than 30 days after the starting day in relation to that certificate;
for the purposes of section 22, conclusively
presumed, in relation to the employer, to be a certificate that has effect in
relation to a complying superannuation scheme for the period commencing on the day
on which the employer obtains the statement and ending on the last day of the
quarter.
(4) A presumption relating to a benefit
certificate under subsection (1) or (2) is not, in relation to an employer
and a superannuation scheme, effective in respect of any period for which the
scheme is not a resident regulated superannuation fund within the meaning of
the Superannuation Industry (Supervision) Act 1993 or is operating in
contravention of a regulatory provision, as defined in section 38A of that
Act if, in that period:
(a) the employer:
(i) is the trustee or
manager of the scheme; or
(ii) has an association,
within the meaning of section 318 of the Income Tax Assessment Act 1936,
with the trustee or the manager of the scheme; and
(b) the employer has reasonable
grounds for believing that the scheme is not a resident regulated
superannuation fund within the meaning of the Superannuation Industry
(Supervision) Act 1993 or is operating in contravention of a regulatory
provision, as defined in section 38A of that Act.
(4A) Section 39 of the Superannuation
Industry (Supervision) Act 1993 applies for the purposes of subsection (4)
of this section in a corresponding way to the way in which it applies for the
purposes of Division 2 of Part 5 of that Act.
(5) In this section:
starting day means:
(a) in relation to a benefit
certificate that has effect in relation to a superannuation scheme for the
whole of a quarter—the first day of the quarter; or
(b) in relation to a benefit
certificate that has effect in relation to a superannuation scheme for a part
of a quarter—the first day in the quarter for which the benefit certificate has
effect.
25
Certain contributions presumed to be contributions to complying superannuation
fund
(1) Subject to subsection (2), a
contribution by an employer for the benefit of an employee to a superannuation
fund is conclusively presumed to be a contribution to a complying
superannuation fund for the purposes of section 23 if, 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, 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.
(2) Subsection (1) does not apply to a
contribution to a superannuation fund if, at the time the contribution is made:
(a) the employer:
(i) is the trustee or the
manager of the fund; or
(ii) has an association,
within the meaning of section 318 of the Income Tax Assessment Act 1936,
with the trustee or the manager of the fund; and
(b) the employer has reasonable
grounds for believing that the fund is not a resident regulated superannuation
fund within the meaning of the Superannuation Industry (Supervision) Act
1993 or is operating in contravention of a regulatory provision, as defined
in section 38A of that Act.
(3) Section 39 of the Superannuation
Industry (Supervision) Act 1993 applies for the purposes of subsection (2)
of this section in a corresponding way to the way in which it applies for the
purposes of Division 2 of Part 5 of that Act.
26
Certain periods not to count as periods of employment
(1) Any period in respect of which excluded
salary or wages are paid by an employer to an employee is not, for the purposes
of section 22 or 23, to be taken into account as a period for which the
employee is employed by the employer.
(2) For the purposes of subsection (1),
excluded salary or wages are salary or wages that, under section 27 or 28,
are not to be taken into account for the purpose of making a calculation under
section 19.
27
Salary or wages: general exclusions
(1) The following salary or wages are not to
be taken into account for the purpose of making a calculation under section 19:
(a) salary or wages paid to an
employee who is 70 or over;
(b) salary or wages paid to an
employee who is not a resident of Australia for work done outside Australia
(except to the extent that the salary or wages relate to employment covered by
a certificate under section 15C);
(c) salary or wages paid by an
employer who is not a resident of Australia to an employee who is a resident of
Australia for work done outside Australia;
(ca) salary or wages paid by an employer
to an employee who is not a resident of Australia for work done in the Joint
Petroleum Development Area (within the meaning of the Petroleum (Timor Sea
Treaty) Act 2003);
(d) salary or wages paid to an
employee who is a prescribed employee for the purposes of this paragraph;
(e) salary or wages prescribed for the
purposes of this paragraph.
(2) If an employer pays an employee less than
$450 by way of salary or wages in a month, the salary or wages so paid are not
to be taken into account for the purpose of making a calculation, in relation
to the employer and the employee, under section 19.
28
Salary or wages: excluded earnings of young persons
Salary or wages paid to a part‑time
employee who is under 18 are not to be taken into account for the purpose of
making a calculation under section 19.
29
Salary or wages: excluded earnings of members of Reserves
If an employee receives income that is
exempt from income tax under item 1.4 of the table in section 51‑5
of the Income Tax Assessment Act 1997, that income is not to be taken
into account for the purposes of this Act.
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 quarter 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 the quarter 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.
31
Nominal interest component
The nominal interest component in
relation to an employer for a quarter is the amount that would accrue by way of
interest on the total of the employer’s individual superannuation guarantee
shortfalls for the quarter if interest were calculated at the rate applicable
under the regulations for the purposes of this subsection from the beginning of
the quarter in question until the date on which superannuation guarantee charge
in relation to the total would be payable under this Act.
32
Administration component
An employer’s administration component
for a quarter is the amount worked out using the formula:
where:
base amount is the amount (if any) prescribed
in the regulations.
N is the number of employees in respect of
whom the employer has an individual superannuation guarantee shortfall for the
quarter.
Per capita amount is $20 or such other amount
as is from time to time prescribed.
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 individual superannuation
guarantee shortfall for an employee for a quarter may be increased where
contributions do not comply.
32B
Structure of Part
The structure of this Part is as
follows:
|
Structure of Part
|
|
Division
|
Topic
|
|
Division 1
|
Overview of Part
|
|
Division 2
|
Which contributions satisfy the choice of fund
requirements?
|
|
Division 3
|
Eligible choice funds
|
|
Division 4
|
Choosing a fund
|
|
Division 6
|
Standard choice forms
|
|
Division 8
|
Miscellaneous
|
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 other 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
(b) the fund is an eligible choice
fund for the employer; and
(ba) the fund either:
(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) the fund complies with the
requirements (if any) set out in the regulations in relation to offering
insurance in respect of death.
(2A) Subsection (2) does not apply if the
employer is required under section 32N to give the employee a standard
choice form and the employer does not do 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 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 to PSSAP
(4A) 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 PSSAP. This
subsection ceases to have effect on 1 July 2006.
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 workplace agreements
(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.
Note: A number of the expressions used in this
subsection are defined in section 12A by reference to the Workplace
Relations Act 1996.
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 Workplace
Relations Act 1996.
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 Workplace
Relations Act 1996.
Contributions under certain Victorian agreements
(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 is made under, or in accordance with, an
employment agreement that was in force under the Employee Relations Act 1992
of Victoria and which continues to be in operation by virtue of section 890
of the Workplace Relations Act 1996.
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.
Note: This section is used in determining if an
individual superannuation guarantee shortfall is increased under subsection
19(2A) or (2B). Where subsection 19(2B) is relevant, the contributions referred
to in this section are the notional contributions referred to in paragraph
19(2B)(b).
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, a benefit
certificate in relation to the fund is conclusively presumed under section 24,
in relation to the employer, to be a certificate in relation to a complying
superannuation scheme; or
(e) contributions made by the employer
to the fund at that time are conclusively presumed under section 25 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 give the employer written
notice to that effect.
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 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, 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 if the employee does not provide,
together with the notice under that section:
(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) the employee has not given the
employer a written notice 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.
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 during a quarter if:
(a) the employee is a defined benefit
member of a defined benefit superannuation scheme; and
(b) subsection 20(2) is satisfied in
relation to that scheme and that quarter.
(8) An employer is not required under section 32N
to give an employee a standard choice form during a quarter if:
(a) the employee is a defined benefit
member of a defined benefit superannuation scheme; and
(b) subsection 20(3) is satisfied in
relation to the defined benefit that has accrued to that member.
(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.
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 8—Miscellaneous
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.
32Y
Notional earnings base to continue to be used
(1) This section applies if:
(a) an employer is contributing to a
fund (the choice fund) that is a chosen fund of an employee; and
(b) it is reasonable to assume that,
if the choice of fund requirements did not apply, the employer would instead
have contributed to a different fund (the other fund) for the
benefit of that employee; and
(c) contributions to the other fund
would not have been covered by subsection 23(5).
(2) This section also applies if:
(a) an employer is contributing to a
fund (the choice fund) that is a chosen fund of an employee; and
(b) it is reasonable to assume that,
if the choice of fund requirements did not apply, that a reduction in the
charge percentage for the employer would have been made under subsection 22(2)
as a result of a scheme (the other fund) for the benefit of that
employee.
(3) In working out the reduction in the
charge percentage under subsection 23(2), (3), (4), (4A) or (4D) as a result of
a contribution to the choice fund, the employee’s notional earnings base is
taken to be equal to the lesser of that notional earnings base and the amount
that would have been the employee’s notional earnings base if the contribution
had been made to the other fund, or the reduction had been made under
subsection 22(2) as a result of the other fund (as the case requires).
(4) In working out the reduction in the
charge percentage under subsection 23(5) as a result of a contribution to the
choice fund, the employee’s ordinary time earnings are taken to be equal to the
lesser of those ordinary time earnings and the amount that would have been the
employee’s notional earnings base if the contribution had been made to the
other fund, or the reduction had been made under subsection 22(2) as a result of
the other fund (as the case requires).
32Z
Contributions satisfy Commonwealth or Territory industrial award requirements
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, in compliance with this Part, to another superannuation
fund that is a chosen fund.
32ZAA
Contributions satisfy State or Territory law requirements
(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, in compliance with
this Part, to another superannuation fund that is a chosen fund.
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—Superannuation
guarantee statements and assessments
33 Superannuation
guarantee statements
(1) An employer who has a superannuation
guarantee shortfall for a quarter must lodge a superannuation guarantee
statement for the quarter on or before:
(a) for a quarter beginning on 1 January—28 May
in the next quarter; and
(b) for a quarter beginning on 1 April—28 August
in the next quarter; and
(c) for a quarter beginning on 1 July—28 November
in the next quarter; and
(d) for a quarter beginning on 1 October—28 February
in the next quarter.
(1A) However, the Commissioner may allow an
employer to lodge a superannuation guarantee statement on a later day.
(2) The statement must set out:
(a) the name and postal address of the
employer; and
(b) the name, postal address and tax
file number (so far as is known to the employer) of each employee in relation
to whom the employer had an individual superannuation guarantee shortfall for the
quarter; and
(c) the amount of each such shortfall;
and
(d) the employer’s nominal interest
component for the quarter; and
(e) the employer’s administration component
for the quarter; and
(g) the total of the employer’s
individual superannuation guarantee shortfalls for the quarter; and
(h) the amount of the employer’s
superannuation guarantee charge for the quarter.
(3) The statement must:
(a) be in a form approved by the
Commissioner; and
(b) be lodged with the Commissioner in
accordance with the regulations; and
(c) be signed by or on behalf of the
employer making the statement.
(4) Subsection (1) does not apply to the
employer if the employer has previously given the Commissioner a statement for the
quarter under section 34.
34
Power to require information where no superannuation guarantee statement
The Commissioner, by written notice, may
require a person who was at any time during a quarter an employer and who has
not lodged a superannuation guarantee statement for that quarter to give the
Commissioner, within a specified period of not less than 14 days, a written
statement for the quarter stating whether the person has a superannuation
guarantee shortfall for the quarter and if so, setting out the matters referred
to in subsection 33(2).
35
First superannuation guarantee statement for a quarter taken to be assessment
(1) If:
(a) an employer lodges a
superannuation guarantee statement for a quarter; and
(b) a
superannuation guarantee statement has not previously been lodged, and an
assessment has not previously been made, for the quarter in relation to the
employer;
then:
(c) the statement has effect as an
assessment of the employer’s superannuation guarantee shortfall for the quarter
and of the superannuation guarantee charge payable on the shortfall; and
(d) the assessment is taken to have
been made on the later of the day on which the statement was lodged and the
following day:
(i) for a quarter
beginning on 1 January—28 May in the next quarter; and
(ii) for a quarter
beginning on 1 April—28 August in the next quarter; and
(iii) for a quarter
beginning on 1 July—28 November in the next quarter; and
(iv) for a quarter beginning
on 1 October—28 February in the next quarter.
(e) the sum of:
(i) the total of the
employer’s individual superannuation guarantee shortfalls; and
(ii) the employer’s nominal
interest component; and
(iii) the
employer’s administration component;
specified in the statement is to
be taken to be the amount of superannuation guarantee charge payable by the
employer for the quarter; and
(f) the statement has effect as if it
were a notice of assessment signed by the Commissioner and given to the
employer on the day on which the assessment is taken to have been made.
(2) In subsection (1), superannuation
guarantee statement includes a statement under section 34 that
indicates that an employer has a superannuation guarantee shortfall for a
quarter.
36
Default assessments
(1) If:
(a) an employer has not lodged a
superannuation guarantee statement for a quarter; and
(b) the
Commissioner is of the opinion that the employer is liable to pay
superannuation guarantee charge for the quarter;
the Commissioner may make an assessment of the employer’s
superannuation guarantee shortfall for the quarter and of the superannuation
guarantee charge payable on the shortfall.
(2) For the purposes of making an assessment
under subsection (1), the superannuation guarantee shortfall is taken to
be the amount that in the Commissioner’s opinion might reasonably be expected
to be the shortfall.
(3) Superannuation guarantee charge in
relation to an assessment made under subsection (1) is payable on the day
on which 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 subsection (1):
overpaid amount includes any overpaid amount
of additional superannuation guarantee charge under section 49 or Part 7
of this Act or administrative penalty under Part 4‑25 in Schedule 1
to the Taxation Administration Act 1953.
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.
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.
45
Secrecy
(1) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
person to whom this section applies means a
person who is or has been:
(a) the Commissioner, a Second
Commissioner or a Deputy Commissioner; or
(b) a person engaged under the Public
Service Act 1999 in an Agency (within the meaning of that Act) of which the
Commissioner is the Agency Head (within the meaning of that Act); or
(c) otherwise appointed or employed
by, or a provider of services for, the Commonwealth.
produce includes permit access to.
protected document means a document that:
(a) contains information that concerns
a person; and
(b) is obtained or made by a person to
whom this section applies in the course of, or because of, the person’s duties
under or in relation to this Act.
protected information means information that:
(a) concerns a person; and
(b) is disclosed to, or obtained by, a
person to whom this section applies in the course of, or because of, the
person’s duties under or in relation to this Act.
(2) Subject to subsection (3), a person
to whom this section applies must not:
(a) make a record of any protected
information; or
(b) whether directly or indirectly,
divulge or communicate to a person any protected information concerning another
person.
Penalty: Imprisonment for 2 years.
(2A) Subsection (2) does not apply to the
extent that the record is made, or the information divulged or communicated:
(a) under or for the purposes of this
Act; or
(b) in the performance of duties, as a
person to whom this section applies, under or in relation to this Act.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal
Code.
(3) Subsection (2) does not prevent the
Commissioner, a Second Commissioner or a Deputy Commissioner or a person
authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner
from divulging or communicating any protected information to a person
performing, as a person to whom this section applies, duties under or in relation
to an Act of which the Commissioner has the general administration, or under
regulations made under such an Act, for the purpose of enabling the person to
perform the duties.
(4) A person divulges or communicates
protected information to a person in contravention of subsection (2) if
the person divulges or communicates the information to any Minister.
(5) A person to whom this section applies is
not required:
(a) to divulge or communicate
protected information to a court; or
(b) to
produce a protected document in court;
except where it is necessary to do so for the purpose of
carrying into effect the provisions of this Act.
(6) Nothing in this or any other Act of which
the Commissioner has the general administration is taken to prohibit the Commissioner,
a Second Commissioner, a Deputy Commissioner, or a person authorised by the
Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or
communicating any information to a person performing, as a person to whom this
section applies, duties under or in relation to this Act for the purpose of
enabling the person to perform the duties.
(7) Nothing in an Act of which the
Commissioner has the general administration is taken to prohibit the
Commissioner, a Second Commissioner, a Deputy Commissioner, or a person
authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner,
from:
(a) divulging or communicating to a
court any information obtained under or for the purposes of such an Act; or
(b) producing
in court a document obtained or made under or for the purposes of such an Act;
where it is necessary to do so for the purpose of carrying
into effect the provisions of this Act.
(8) A person to whom this section applies
must, if and when required by the Commissioner, a Second Commissioner or a
Deputy Commissioner to do so make an oath or declaration, in a manner and form
specified by the Commissioner in writing, to maintain secrecy in accordance
with this section.
45A
Disclosure of information to give advice to employee about progress of
complaint against employer
(1) An employee or former employee (the employee)
of an employer may make a complaint to the Commissioner that the employer has
not complied with one or more specified obligations under this Act in relation
to the employee.
(2) To avoid doubt, a person may make a
complaint under subsection (1) even if at the time the complaint is made
it is in dispute or uncertain whether he or she is an employee or former
employee of the employer.
(3) If a complaint has been made under
subsection (1), the Commissioner may divulge or communicate information
covered under subsection (4) to the employee (and make a record necessary
for the divulging or communication of the information).
(4) Information is covered under this subsection
if it relates to the Commissioner’s response to the complaint, including
information about any of the following matters:
(a) the steps (if any) that the
Commissioner has taken to investigate the complaint;
(b) the actions (if any) that have been
taken in relation to the complaint under this Act or the Taxation
Administration Act 1953 by the Commissioner or the employer;
(c) the steps (if any) that the
Commissioner has taken to recover superannuation guarantee charge from the
employer in relation to the employee.
(5) However, information is not covered under
subsection (4) if it relates to the general financial affairs of the
employer.
(6) Making a record, or divulging or
communicating information, under subsection (3) is not a breach of a provision
of a taxation law (within the meaning of the Income Tax Assessment Act 1997)
that prohibits the Commissioner or an officer from making a record of, or
disclosing, information.
Example: Examples of such provisions are section 45
of this Act and section 3C of the Taxation Administration Act 1953.
Part 6—Collection and recovery of charge
46
When superannuation guarantee charge becomes payable
(1) Superannuation guarantee charge for a
quarter is payable:
(a) if, on or before the lodgment day
for the quarter, the employer lodges a superannuation guarantee statement or a
statement under section 34 indicating a superannuation guarantee shortfall
for that quarter—on the lodgment day; or
(b) if, after the lodgment day, the
employer lodges a superannuation guarantee statement or a statement under
section 34 indicating a superannuation guarantee shortfall for that
quarter—on the day on which the statement is lodged.
Note 1: If a default assessment is made for a quarter
then the superannuation guarantee charge is payable on the day on which the
assessment is made: see section 36.
Note 2: For provisions about collection and recovery of
superannuation guarantee charge, see Part 4‑15 in Schedule 1 to
the Taxation Administration Act 1953.
(2) In this section:
lodgment day for a quarter means:
(a) for a quarter beginning on 1 January—28 May
in the next quarter; and
(b) for a quarter beginning on 1 April—28 August
in the next quarter; and
(c) for a quarter beginning on 1 July—28 November
in the next quarter; and
(d) for a quarter beginning on 1 October—28 February
in the next quarter.
47
When additional superannuation guarantee charge becomes payable
Additional superannuation guarantee
charge under Part 7 becomes payable on the day specified for the purpose
in the notice of assessment of the additional charge.
Note: For provisions about collection and recovery
of additional superannuation guarantee charge, see Part 4‑15 in
Schedule 1 to the Taxation Administration Act 1953.
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.
Note: The general interest charge is worked out
under Part IIA of the Taxation Administration Act 1953.
(2) However, the unpaid amount must be
reduced by those amounts in respect of:
(a) the employer’s administration
component for the quarter; and
(b) the employer’s nominal interest
component for the quarter.
(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 additional superannuation guarantee charge payable
under this section.
(5) In this section:
superannuation guarantee charge includes
additional superannuation guarantee charge under Part 7.
50
Order of payments
The Commissioner must apply payments of
superannuation guarantee charge, or related penalty charge, for a quarter that
are made by or on behalf an employer, so that the employer’s liability to pay
the nominal interest component for the quarter is discharged before all other
amounts.
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.
(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.
(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 company or public officer may, if the
Commissioner thinks fit, be given to, served on or brought against any
director, secretary or other officer of the company or any attorney or agent of
the company, and the director, secretary, officer, attorney or agent has the
same liability in relation to the notice, process or proceeding as the company
or public officer would have had if it had been given to, served on or brought
against the company or public officer.
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—Additional superannuation guarantee charge
59
Failure to provide statements or information
(1) If an employer other than a government
body refuses or fails to provide, when and as required under this Act, a
superannuation guarantee statement or information relevant to assessing the
employer’s liability to pay superannuation guarantee charge for a quarter, the
employer is liable to pay, by way of penalty, additional superannuation
guarantee charge equal to double the amount of superannuation guarantee charge
payable by the employer for the quarter.
(2) An employer liable to pay superannuation
guarantee charge for a quarter must:
(a) keep a record in relation to the
quarter containing details of the basis of calculation of the following
amounts:
(ii) the individual
superannuation guarantee shortfalls of the employer for the quarter;
(iii) the employer’s nominal
interest component for the quarter;
(iv) the
employer’s administration component for the quarter;
that were specified in a
superannuation guarantee statement under section 33 or a statement under
section 34; or
(b) produce
to the Commissioner, when and as required by the Commissioner under this Act, a
document containing details of the basis of calculation of the amounts referred
to in paragraph (2)(a) that were specified in a superannuation guarantee
statement under section 33 or a statement under section 34.
(3) If the amount of additional
superannuation guarantee charge that would, but for this subsection, be payable
under subsection (1) or (2) is less than $20, the additional superannuation
guarantee charge payable is $20.
62
Assessment of additional superannuation guarantee charge
(1) The Commissioner must make an assessment
of the additional superannuation guarantee charge payable by an employer under
this Part and must, as soon as practicable after the assessment is made, give
written notice of the assessment to the employer.
(2) Nothing in this Act is taken to prevent a
notice from being incorporated in a notice of any other assessment made in
relation to the employer under this Act.
(3) The Commissioner may remit all or part of
the additional superannuation guarantee charge payable by an employer under
this Part, but, for the purposes of applying subsection 33(1) of the Acts
Interpretation Act 1901 to the power of remission conferred by this subsection,
nothing in this Act is taken to prevent the exercise of the power at a time
before an assessment is made of the additional superannuation guarantee charge.
62A
Offsets to be disregarded
In working out the amount of superannuation
guarantee charge payable by an employer for a quarter for the purposes of this
Part, disregard the amount of any offset under section 23A (about
offsetting late payments against charge).
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, or related penalty charge, for a quarter.
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, is the sum of the following amounts:
(a) the individual superannuation
guarantee shortfall for the employee for the quarter;
(b) any general interest charge, in
respect of non‑payment of superannuation guarantee charge payable on that
shortfall, that has been paid by, or is payable at, the particular time;
(c) any nominal interest component for
the quarter that 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 same quarter,
employer and employee.
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, is the sum of the following amounts:
(a) the employer’s individual
superannuation guarantee shortfalls for the quarter;
(b) any general interest charge, in
respect of non‑payment of superannuation guarantee charge payable on
those shortfalls, that has been paid by, or is payable at, the particular time;
(c) any nominal interest component for
the quarter that 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 same quarter,
employer and employees.
65
Payment of shortfall component
(1) Except in a case covered by section 65A,
66 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.
65A
Payment to employee who is over 65
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
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.
67
Payment where employee deceased
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 in relation to a shortfall component
If an amount paid by the Commissioner
under a provision of this Part (other than paragraph 65(1)(c)) exceeds the
amount properly payable by the Commissioner under that provision, the party to
whom the payment has been made is liable to repay to the Commonwealth the
amount of the excess.
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.
70
Recovery of overpayments
The amount of any excess payment
referred to in section 69 may be recovered by the Commonwealth as a
debt due to the Commonwealth.
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
Judicial notice of signature
All courts and tribunals, and all judges
and persons acting judicially or authorised by law or consent of parties to
hear, receive and examine evidence, are to take judicial notice of the
signature of a person who holds or has held the office of Commissioner, Second
Commissioner or Deputy Commissioner.
75
Evidence
(1) The mere production of:
(a) a notice of assessment; or
(b) a
document signed by the Commissioner, a Second Commissioner or a Deputy
Commissioner purporting to be a copy of a notice of assessment;
is conclusive evidence of the due making of the assessment
and, except in proceedings under Part IVC of the Taxation
Administration Act 1953 on a review or appeal relating to the assessment,
that the amounts and all of the particulars of the assessment are correct.
(2) A document signed by the Commissioner, a
Second Commissioner or a Deputy Commissioner purporting to be a copy of a
document issued or given by the Commissioner, a Second Commissioner or a Deputy
Commissioner is prima facie evidence that the second‑mentioned
document was so issued or given.
(3) A document signed by the Commissioner, a
Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an
extract from, a superannuation guarantee statement or a notice of assessment is
evidence of the matter set out in the document to the same extent as the
original statement or notice, as the case may be, would be if it were produced.
(4) A certificate signed by the Commissioner,
a Second Commissioner or a Deputy Commissioner certifying that a sum specified
in the certificate was, on the day of the certificate, payable by a person in
relation to an amount of superannuation guarantee charge or by way of penalty
under section 49 or Part 7, is prima facie evidence of the
matters stated in the certificate.
(5) A superannuation guarantee statement
purporting to be made or signed by or on behalf of an employer is prima
facie evidence that the statement was made by the employer or with the
employer’s authority.
76
Access to premises etc.
(1) For the purposes of this Act, an
authorised officer:
(a) may, at any reasonable time, enter
and remain on any land or premises; and
(b) is entitled to full and free
access at any reasonable time to all documents; and
(c) may inspect, examine, make copies
of, or take extracts from, any documents.
(2) An authorised officer is not entitled to
enter or remain on any land or premises if, on being requested by the occupier
of the land or premises for proof of authority, the officer does not produce a
written authority signed by the Commissioner stating that the officer is
authorised to exercise powers under this section.
(3) The occupier of land or premises entered
or proposed to be entered by an authorised officer under subsection (1)
must, for the purpose of enabling the effective exercise of the officer’s
powers under this section, provide the officer with all reasonable facilities
and assistance that the occupier is reasonably capable of providing.
Penalty for contravention of this subsection: 30 penalty
units.
Note: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
77
Obtaining information and evidence
(1) The Commissioner may, for the purposes of
this Act, by written notice, require a person:
(a) to give to the Commissioner,
within a reasonable period, and in a reasonable manner, specified in the
notice, any information that the Commissioner requires; and
(b) to attend before the Commissioner,
or an authorised officer, at a reasonable time and place specified in the
notice, and then and there to answer questions; and
(c) to produce to the Commissioner, at
a reasonable time and place specified in the notice, any documents in the
custody or under the control of the person.
(2) The Commissioner may require the
information or answers to be verified or given on oath or affirmation, and
either orally or in writing, and for that purpose the Commissioner or an
authorised officer may administer an oath or affirmation.
(3) The oath to be taken or affirmation to be
made by a person for the purposes of this section is an oath or affirmation
that the information or answers the person will give will be true.
(4) The regulations must prescribe scales of
expenses to be allowed to persons required to attend under this section.
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 ascertaining the individual superannuation guarantee shortfalls of
the employer for a quarter.
(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
is guilty of 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.