Trustees must not use goods or services to influence employers
68A Trustees must not use goods or services to influence employers
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if that action could reasonably be expected to:
influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
influence the person to encourage one or more of the person’s employees to remain, or apply or agree to be, a member of the fund.
Under the Superannuation Guarantee (Administration) Act 1992, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).
However, subsection (1) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to:
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if it is reasonable to conclude that the refusal is given because:
the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
the person has not encouraged one or more of the person’s employees to remain, or apply or agree to be, a member of the fund.
Under the Superannuation Guarantee (Administration) Act 1992, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part 3A of that Act).
However, subsection (3) does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
Civil penalty provisions
Subsections (1) and (3) are civil penalty provisions as defined in section 193, and Part 21 therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.
Civil liability
If:
a person (the offender) contravenes subsection (1) or (3); and
another person (the victim) suffers loss or damage because of the contravention;
the victim may recover the amount of the loss or damage by action against the offender.
The action must be begun within 6 years after the day on which the cause of action arose.
This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.
This provision refers to the regulations (prescribed in the regulations
). Made under this Act:
- Superannuation Industry (Supervision) Regulations 1994 · under s 353
15 more instruments made under this Act are listed on the Act’s overview.
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