1Short title
This Act may be cited as the State Employees Retirement Benefits Act 1979.
S. 2 amended by No. 81/1988 s. 22(2)(a).
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This Act may be cited as the State Employees Retirement Benefits Act 1979.
S. 2 amended by No. 81/1988 s. 22(2)(a).
In this Act unless inconsistent with the context or subject-matter—
S. 2(1) def. of Actuary substituted by Nos 10258 s. 10(b)(i), 4/1996 s. 91(1)(a).
Actuary means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Minister;
S. 2(1) def. of adjusted final salary amended by No. 9978 s. 2(a), substituted by No. 110/1993 s. 150(1).
adjusted final salary means—
in relation to a member with less than 2 years of recognised service, an amount calculated in accordance with the formula—
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where—
"A" is the aggregate salary paid to the member in respect of the member's period of recognised service;
"B" is the total number of days in that period;
in relation to a member with 2 years or more of recognised service, an amount equal to one-half of the member's aggregate salary for the period of recognised service of 2 years ending on the member's last day of service—
and if the period of recognised service includes a period of leave without pay, there is deemed to have been payable to that member during that period of leave without pay, salary at the rate payable to the member immediately before the period of leave, or such higher salary as has been approved by the Board for the purposes of this section, but in no case shall the amount in relation to a person who was a member on 1 January 1994 be less than the member's salary on that date;
S. 2(1) def. of adult child inserted by No. 40/2010 s. 45.
adult child has the same meaning as in section 43B(1);
S. 2(1) def. of Board inserted by No. 120/1994 s. 43(1), repealed by No. 8/1999 s. 50(1)(b), new def. of Board inserted by 94/2005 s. 27(1)(a).
Board means the Emergency Services Superannuation Board established under section 5 of the Emergency Services Superannuation Act 1986;
S. 2(1) def. of child inserted by No. 120/1994 s. 39(a), amended by No. 27/2001 s. 5(Sch. 3 item 4.1(b)).
child in relation to a person means a child of himself or herself or of his or her partner other than any child born more than 10 months after his or her death who is—
under 18 years of age; or
between the age of 18 and 25 years and in the opinion of the Board is a full-time student;
S. 2(1) def. of complying super-annuation fund inserted by No. 4/1996 s. 91(1)(b).
complying superannuation fund means a superannuation entity or a superannuation fund within the meaning of section 10 of the Commonwealth Superannuation Industry (Supervision) Act 1993 which is a complying superannuation fund or a complying approved deposit fund within the meaning of Part IX of the Commonwealth Income Tax Assessment Act 1936;
S. 2(1) def. of contract officer inserted by No. 87/1992 s. 17(1)(a) (as amended by No. 97/1993 s. 46(2)(a)), substituted by No. 120/1994 s. 41(1)(a), amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 186.1).
contract officer means—
an executive within the meaning of section 4(1) of the Public Administration Act 2004 employed under a contract of employment under that Act, other than an exempt officer; or
any person who—
is declared or deemed to be a contract officer; or
is a member of a class of persons declared or deemed to be contract officers—
by the Minister by instrument in writing for the purposes of this Act;
S. 2(1) def. of contributor substituted by No. 94/2005 s. 27(1)(b).
contributor means a member who is liable to make contributions under section 23;
S. 2(1) def. of disability inserted by No. 10258 s. 10(b)(ii), amended by Nos 49/1992 s. 79(1)(a), 23/1994 s. 118 (Sch. 1 item 53.1(a)), substituted by No. 120/1994 s. 40.
disability, in relation to a member, means the permanent inability of the member before the age of 60 years due to a continuing or recurring injury, disease or infirmity—
to perform his or her duties; and
to perform any other duties for which he or she is suited by education, training or experience or for which he or she would be suited as a result of retraining—
as determined by the Board on the basis of reports provided by at least 2 registered medical practitioners appointed by the Board;
S. 2(1) def. of domestic partner inserted by No. 27/2001 s. 5(Sch. 3 item 4.1(a)), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 57.1), amended by No. 4/2009 s. 37(Sch. 1 item 22.1).
domestic partner of a person means—
a person who is, or was at the time of the person's death, in a registered domestic relationship with the person; or
a person to whom the person is not married but with whom, in the opinion of the Board, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);
S. 2(1) def. of eligible contribution inserted by No. 78/2004 s. 12.
eligible contribution means the Government co‑contribution payable under the Superannuation (Government Co‑contributions for Low Income Earners) Act 2003 of the Commonwealth that the Commissioner of Taxation determines under that Act is to be paid to the Fund or to the person;
S. 2(1) def. of eligible member inserted by No. 78/2004 s. 12.
eligible member means a member who is a person in respect of whom a Government co‑contribution is payable in accordance with section 6 of the Superannuation (Government Co-contributions for Low Income Earners) Act 2003 of the Commonwealth;
S. 2(1) def. of eligible member account inserted by No. 78/2004 s. 12.
eligible member account means the account established under section 24A;
S. 2(1) def. of eligible salary sacrifice contributor inserted by No. 40/2004 s. 21.
eligible salary sacrifice contributor means a member in respect of whom a declaration is in force under section 2A;
S. 2(1) def. of employee amended by Nos 9400 s. 3(a), 9478 s. 2(a)(b), 9657 s. 2, 9921 s. 255, 9978 s. 3(1), 10258 s. 10(b)(iii) (A)–(D), 58/1987 s. 11(1)(a)(i) (A)–(D), 50/1988 s. 93(2)(Sch. 2 Pt 2 item 53) (as amended by No. 81/1988 s. 34(g)(h)), 87/1992 s. 17(1)(b) (as amended by No. 97/1993 s. 46(2)(a)), 50/1997 s. 11, 46/1998 s. 7(Sch. 1), 12/1999 s. 4(Sch. 2 item 12.1), 108/2004 s. 117(1) (Sch. 3 item 186.2).
employee means[1]—
any person in the service or employment of the Road Construction Authority other than—
an officer within the meaning of the interpretation of Officer in section 3(1) of the State Superannuation Act 1988;
a person who declines or has declined to become an officer pursuant to that interpretation;
any employee or person or class of employees or persons (other than Associates to Judges of the Supreme Court or Judges of the County Court) employed pursuant to the Public Administration Act 2004 other than—
a person who is an officer within the meaning of the State Superannuation Act 1988; or
a member of a class of persons who are officers within the meaning of that Act;
any person who is not an officer within the meaning of the State Superannuation Act 1988 who holds any office—
under the Crown; or
as a member or of a class of persons who are members or in the service or employment of any body created by or under any Act of Parliament—
to which person or office or class of persons the Governor in Council, on the recommendation of the Minister, by Order published in the Government Gazette declares that the provisions of this Act shall apply;
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any person who is not an officer within the meaning of the State Superannuation Act 1988 or any member of a class of persons who are not officers within the meaning of that Act in the service or employment of any body that the Governor in Council, on the recommendation of the Minister, by Order published in the Government Gazette, declares to be a body to which this paragraph applies to which person or class of persons the Governor in Council on the recommendation of the Minister, by Order published in the Government Gazette declares that the provisions of this Act shall apply; or
a person referred to in a preceding paragraph who as a result of a change of employment becomes a person referred to in—
any other paragraph of this definition; or
any paragraph of the definition of officer in section 3(1) of the State Superannuation Act 1988; or
any paragraph of the definition of employee in section 3(1) of the Transport Superannuation Act 1988—
but does not include an exempt officer;
S. 2(1) def. of employer amended by No. 10258 s. 10(b)(iv).
employer means any person or any public statutory body constituted under the law of the State of Victoria who employs under a contract of employment an employee under this Act and includes any person or body approved for the purposes of section 33(3);
S. 2(1) def. of exempt officer inserted by No. 87/1992 s. 17(1)(c) (as amended by No. 97/1993 s. 46(2)(a)), substituted by No. 120/1994 s. 41(1)(b), amended by Nos 46/1998 s. 7(Sch. 1)), 108/2004 s. 117(1) (Sch. 3 item 186.3).
exempt officer means—
an executive within the meaning of section 4(1) of the Public Administration Act 2004 employed under a contract of employment under the Act during any period that a certificate in writing issued under section 7(5) of the Superannuation (Public Sector) Act 1992 by the employer to the Board is in force; or
a contract officer whose employer advises the Board in writing that the contract of employment under which the contract officer is employed provides that the contract officer is an exempt officer for the purposes of this Act;
S. 2(1) def. of expense allowance inserted by No. 10258 s. 10(b)(v).
expense allowance means an allowance payable periodically which is designated as an expense allowance or an expense of office allowance or is in fact an allowance which is granted to an employee in respect of expenses which are normally and properly incurred by the employee in carrying out his or her duties;
S. 2(1) def. of Fund substituted by Nos 4/1996 s. 91(1)(c), 94/2005 s. 27(1)(c).
Fund means the Scheme established under section 15 of the Emergency Services Superannuation Act 1986;
S. 2(1) def. of Government Actuary inserted by No. 10258 s. 10(b)(vi), repealed by No. 4/1996 s. 91(1)(d).
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S. 2(1) def. of ill health inserted by No. 102/1995 s. 18, amended by No. 4/1996 s. 91(2).
ill health means a continuous or recurring impairment of the health of a member which is due to a physical or mental incapacity, bodily injury, illness or disease, which in the opinion of the Board—
is not a disability; and
is likely to be adversely affected if the member remains in his or her employment or returns to employment with the former employer; and
does not preclude the member from seeking alternative employment; and
has not been incurred or inflicted for the purpose of obtaining a benefit;
S. 2(1) def. of joining date inserted by No. 9400 s. 2.
joining date means such day, not being a day earlier than the day the Order is made under this section, on which the provisions of this Act are expressed to apply to any officer, employee or person or class of officers, employees or persons by an Order;
Member includes contributor and former contributor;
S. 2(1) def. of occupational super-annuation standards inserted by No. 49/1992 s. 79(1)(b), repealed by No. 4/1996 s. 91(1)(d).
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S. 2(1) def. of partner inserted by No. 27/2001 s. 5(Sch. 3 item 4.1(a)), substituted by No. 40/2010 s. 46(1).
partner of a person means the person's spouse or domestic partner;
S. 2(1) def. of pensioner inserted by No. 9978 s. 12(1).
pensioner means a person receiving or presently entitled to receive a pension under this Act;
S. 2(1) def. of permanent employee substituted by No. 9478 s. 2(c), amended by No. 9978 s. 2(b), substituted by No. 58/1987 s. 11(1)(a)(ii).
permanent employee means an employee who has been in the employment of an employer for a period of twelve months or such lesser period as may be specified by the employer;
prescribed means prescribed by this Act or by regulations made under this Act;
S. 2(1) def. of registered medical practitioner inserted by No. 23/1994 s. 118(Sch. 1 item 53.1(b)), amended by No. 97/2005 s. 182(Sch. 4 item 47), substituted by No. 13/2010 s. 51(Sch. item 51).
registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
S. 2(1) def. of resign inserted by No. 10258 s. 10(b)(vii).
resign means cease to be an employee before attaining the age of 55 years other than on account of disability, death or retrenchment;
S. 2(1) def. of RSA inserted by No. 40/2004 s. 20(1).
RSA means a retirement savings account within the meaning of the Commonwealth Retirement Savings Accounts Act 1997;
S. 2(1) def. of salary amended by No. 10258 s. 10(b)(viii).
salary means the annual rate, computed as determined by the Board on the basis of a year, of pecuniary emoluments payable periodically and regularly to an employee for the performance of the duties of his grade of employment as such employee but does not include a recreation leave allowance or an expense allowance or payments for overtime or in the form of bonuses, or for travelling allowances or for incidental expenses or payments of a temporary character;
S. 2(1) def. of service amended by No. 9400 s. 3(b).
service means continuous service or employment as a permanent employee within the meaning of this Act and in relation to any qualifying period of service includes any service or employment on any permanent staff or in any office to which this Act relates in addition to service or employment as such a permanent employee;
S. 2(1) def. of specified standards inserted by No. 4/1996 s. 91(1)(e).
specified standards means standards specified under section 73;
S. 2(1) def. of spouse inserted by No. 120/1994 s. 39(b), substituted by No. 27/2001 s. 5(Sch. 3 item 4.1(c)).
spouse of a person means a person to whom the person is, or was at the time of the person's death, married;
S. 2(1) def. of State Super-annuation Fund inserted by No. 94/2005 s. 27(1)(d).
State Superannuation Fund means the Superannuation Fund established under the Superannuation Act 1925 and continued under the State Superannuation Act 1988 as the State Superannuation Fund and as in existence immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005;
S. 2(1) def. of super-annuation system inserted by No. 37/2007 s. 18.
superannuation system has the same meaning as it has in regulation 5.01(1) of the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth;
S. 2(1) def. of surcharge-able contributions inserted by No. 29/2000 s. 12.
surchargeable contributions means the surchargeable contributions of a contributor for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year;
S. 2(1) def. of surcharge debt account inserted by No. 29/2000 s. 12.
surcharge debt account means, in relation to a person who is or has been a contributor, the surcharge debt account kept for that person (while he or she was a contributor) under section 74CA;
S. 2(1) def. of surcharge deduction amount inserted by No. 29/2000 s. 12.
surcharge deduction amount means, in relation to a person—
who is or has been a contributor; and
to or in respect of whom benefits become payable under this Act—
the surcharge deduction amount that is specified in a determination made by the Board under section 74CA in relation to the person;
S. 2(1) def. of Treasurer repealed by No. 46/1998 s. 7(Sch. 1).
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S. 2(2) inserted by No. 81/1988 s. 22(2)(b), amended by No. 49/1992 s. 79(2).
A reference in this Act to periods of service or membership in years includes fractions for any completed months and days.
S. 2(3) inserted by No. 87/1992 s. 17(2) (as amended by No. 97/1993 s. 46(2)(b)), substituted by No. 120/1994 s. 41(2).
For the purposes of the definition of salary in subsection (1)—
in the case of a person referred to in paragraph (a) of the definition of contract officer, salary means the salary for superannuation purposes in accordance with section 12 of the Superannuation (Public Sector) Act 1992 and notified in writing by the employer to the Board; or
S. 2(3)(b) amended by Nos 120/1994 s. 42(1)(2), 74/2000 s. 3(Sch. 1 item 115.1).
subject to paragraph (c), in the case of a person referred to in paragraph (b) of the definition of contract officer, salary means the salary for superannuation purposes specified in that person's contract of employment and notified in writing by the employer to the Board; or
S. 2(3)(c) inserted by No. 120/1994 s. 42(2), amended by No. 24/2006 s. 6.1.2(Sch. 7 item 37.1).
if a person to whom paragraph (b) applies is a member of the Principal Class within the meaning of the Education and Training Reform Act 2006, the salary specified for the purposes of paragraph (b) must not exceed 82⋅3 percent of that person's remuneration package.
S. 2(4) inserted by No. 87/1992 s. 17(2) (as amended by No. 97/1993 s. 46(2)(b)).
For the purposes of the definition of salary in subsection (1), if a member's salary is reduced then, unless the officer agrees in writing that the reduced salary applies, salary means the greater of—
the salary of the member immediately before the reduction; or
the actual salary.
S. 2(5) inserted by No. 8/1999 s. 50(2), repealed by No. 94/2005 s. 27(2).
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S. 2(5A) inserted by No. 70/2003 s. 12.
A person cannot become a member on or after the commencement of section 72 of the Public Sector Superannuation (Administration) Act 1993.
S. 2(6) inserted by No. 27/2001 s. 5(Sch. 3 item 4.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 57.2).
For the purposes of the definition of domestic partner in subsection (1)—
S. 2(6)(a) amended by No. 4/2009 s. 37(Sch. 1 item 22.2(a)).
registered domestic relationship has the same meaning as in the Relationships Act 2008; and
S. 2(6)(b) amended by No. 4/2009 s. 37(Sch. 1 item 22.2(b)).
in determining whether persons who are not or were not in a registered domestic relationship are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
S. 2(7) inserted by No. 40/2010 s. 46(2).
The definition of partner as substituted by section 46(1) of the Superannuation Legislation Amendment Act 2010 applies in respect of the determination by the Board of an entitlement arising under this or any other Superannuation Act within the meaning of section 3(1) of the Emergency Services Superannuation Act 1986 on or after the commencement of the substituting section.
S. 2A inserted by No. 40/2004 s. 22.
The Minister may by notice published in the Government Gazette declare—
a member to be an eligible salary sacrifice contributor from the date specified in the notice; or
a class of members to be eligible salary sacrifice contributors from the date specified in the notice.
Pt 1 (Heading) amended by No. 120/1994 s. 43(2), repealed by No. 8/1999 s. 50(1)(d).
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S. 3 amended by No. 10258 s. 10(c)(i)(ii), repealed by No. 120/1994 s. 43(3).
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S. 3A inserted by No. 10258 s. 10(d), amended by Nos 49/1992 s. 80(1)(2), 4/1996 s. 92(1), 46/1998 s. 7(Sch. 1), 84/1998 s. 41(1)(2), repealed by No. 8/1999 s. 50(1)(c).
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Ss 4–11 repealed.[2]
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Pt 2 (Heading) repealed by No. 4/1996 s. 93.
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Ss 12–17 repealed.[3]
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Pt 2 (ss 18, 19) amended by Nos 10258 s. 10(i)(i)(ii), 49/1992 s. 83, 82/1996 s. 52, 46/1998 s. 7(Sch. 1), 8/1999 s. 50(1)(e), repealed by No. 94/2005 s. 28.
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S. 20(1) amended by Nos 9978 s. 4(1), 10258 s. 10(j)(i).
Subject to this section and section 21, this Act shall apply to and include a permanent employee who is employed on a basis which requires him to render—
S. 20(1)(a) inserted by No. 9978 s. 4(1).
part-time service of at least fifteen hours in each week; or
S. 20(1)(b) inserted by No. 9978 s. 4(1).
intermittent service of an average of at least fifteen hours in each week—
and who during the qualifying period of service for that person becoming a permanent employee rendered—
S. 20(1)(c) inserted by No. 10258 s. 10(j)(i).
in the case of a qualifying period of one year or more, an average service of at least 780 hours in each year; and
S. 20(1)(d) inserted by No. 10258 s. 10(j)(i).
in the case of a qualifying period of less than one year, service of at least the number of hours that bears to 780 the same proportion as the length of the qualifying period bears to one year[4].
Any such employee shall be liable to pay contributions under this Part at a rate that bears the same proportion to the rate at which an ordinary employee rendering comparable service would be required to make contributions as in the opinion of the Board the aggregate service that would be rendered by him in any year on the basis on which he is employed bears to the service that would be rendered in any year by an ordinary employee.
For the purpose of calculating benefits under this Act—
the salary payable to any such member at any time shall be deemed to be the salary which would be payable at that time to an ordinary employee rendering comparable service; and
any period of contributory service or prospective contributory service of any such member during which he is not an ordinary employee shall be reduced proportionally according to the basis on which he is employed;
S. 20(3)(c) amended by No. 10258 s. 10(j)(ii) (A)(B).
prospective contributory service shall be calculated on the basis of the service of such member during the 3 years' service preceding the termination of his service or during that member's total service if that member's total service was less than 3 years.
In this section ordinary employee means a permanent employee who is employed on a full-time basis throughout a year.
S. 20(5) inserted by No. 9400 s. 5, amended by No. 9978 s. 4(2).
A member who renders part-time or intermittent service shall not cease to be a member by reason only of his part-time or intermittent service being less than 15 hours in each week[5].
S. 20(6) inserted by No. 10258 s. 10(j)(iii).
Any period of service by a person prior to the date on which contributions become payable by that person during which that person was employed on a basis which required that person to render—
part-time service of less than fifteen hours in each week; or
intermittent service of an average of less than fifteen hours in each week—
or any period of service preceding such a period of service shall not be taken into account for the purposes of section 40(2).
This Part shall apply to or with respect to every permanent employee who—
S. 21(1)(a) amended by No. 9400 s. 6(a)(b).
at the commencement of this Act or on the joining date was a permanent employee and who on or before 1 June 1980 or the day three months after the joining date (as the case requires) does not elect not to contribute in accordance with the provisions of this Act;
S. 21(1)(b) amended by No. 9400 s. 6(c)(d), substituted by No. 9478 s. 3(1), amended by No. 58/1987 s. 11(1)(c)(i).
becomes a permanent employee within a period of twelve months from the commencement of this Act or the joining date and who on or before a day three months from the day of becoming a permanent employee or on or before 1 June 1980 (whichever later occurs) does not elect not to contribute in accordance with the provisions of this Act;
S. 21(1)(c) amended by Nos 9400 s. 6(e) (as amended by No. 9549 s. 2(1)(Sch. item 213)), 9478 s. 3(2)(a).
in the case of an employee within the meaning of paragraph (a), (b) or (c) of the interpretation of Employee in section 2, on or after 12 months after the commencement of this Act or the joining date becomes a permanent employee and has not at the time of becoming a permanent employee attained the age of 57 years;
S. 21(1)(ca) inserted by No. 9478 s. 3(2)(b), repealed by No. 58/1987 s. 11(1)(c)(ii).
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S. 21(1)(d) amended by No. 9400 s. 6(f) (as amended by No. 9549 s. 2(1)(Sch. item 213)).
after the commencement of this Act or the joining date becomes a permanent employee at age 57 years or more and who notifies the Board in writing within six months of becoming a permanent employee that he wishes to contribute in accordance with the provisions of this Act—
and such permanent employees shall be members of the Fund and shall be deemed to be contributors for the purposes of the Act.
S. 21(1A) inserted by No. 9400 s. 7, substituted by No. 9478 s. 3(3).
The Board may upon application by a permanent employee and at its own discretion—
extend the period of election for a person who at the commencement of this Act was a permanent employee for a period ending on a date specified by the Board, being a day not later than 1 April 1981;
extend the period of election in respect of a person who becomes a permanent employee within a period of 12 months from the commencement of this Act for a period ending on a date specified by the Board, being a date not later than the day three months from the day of becoming a permanent employee or from 1 April 1981 (whichever last happens);
extend any other period of election specified in subsection (1) for a period of not more than six months—
and, where a period of election is so extended, may refund any contributions paid by him in respect of the period commencing on the date of commencement of this Act or the date of his becoming a permanent employee (whichever last happens) and ending on the day on which the period of election as so extended expires.
S. 21(1B) inserted by No. 10258 s. 10(k)(i), repealed by No. 40/2010 s. 47(1).
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S. 21(2) amended by No. 9400 s. 8(a)(b), substituted by No. 10258 s. 10(k)(ii), amended by No. 40/2010 s. 47(2).
Notwithstanding anything to the contrary in subsection (1), a permanent employee shall not, on or after the commencement of section 10(k)(ii) of the Superannuation Schemes Amendment Act 1985, become a member of the Fund if on the date on which the permanent employee became eligible to become a member of the Fund the permanent employee had attained the age of 75 years, unless otherwise permitted by Commonwealth superannuation law.
S. 21(2A) inserted by No. 10258 s. 10(k)(ii).
Notwithstanding anything to the contrary in subsection (1), a permanent employee who had elected not to contribute in accordance with the provisions of this Act and had subsequently ceased to be a permanent employee but who is employed again by an employer may elect, not later than one month after the date from which that permanent employee is required to commence paying contributions, not to contribute in accordance with the provisions of this Act.
A person who was an employee with at least 12 months service who would have been a permanent employee at the commencement of the Act if his death or retirement had not occurred shall, where his death or retirement occurred on or after 1 January 1979 and before the commencement of the Act, be deemed to be a member as at the date of his death or retirement and to be a contributor who has contributed continuously under the Act during his completed years of continuous service and be entitled to benefits in accordance with the provisions of section 40(2).
A permanent employee who has not made an election pursuant to paragraph (a) or (b) of subsection (1) and whose service terminates as a result of death or retirement during the period in which he may elect not to contribute pursuant to paragraph (a) or (b), shall be deemed to be a member and contributor at the date of such termination and be entitled to benefits in accordance with section 40(2).
S. 21A inserted by No. 9478 s. 4.
S. 21A(1) amended by No. 10258 s. 10(l)(i).
Where a member ceases to be a permanent employee but within six months thereafter becomes an employee, he shall, subject to subsection (3), be deemed to have again become a permanent employee on the date on which he is employed by the employer, and for the purpose of calculating benefits under this Act he shall be deemed to have commenced his service on that date.
S. 21A(2) amended by No. 58/1987 s. 11(1)(d)(ii).
Notwithstanding anything in subsection (1), a permanent employee who is an employee within the meaning of one of the following provisions of this Act, namely—
paragraph (b) of the interpretation of Employee in section 2;
subparagraph (i) of paragraph (c) of the interpretation of Employee in section 2—
S. 21A(2)(c) repealed by No. 58/1987 s. 11(1)(d)(i).
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and becomes an employee within the meaning of any other provision of this Act mentioned in paragraph (a) or (b) shall not cease to be a permanent employee by reason only of the change in the terms of his employment.
S. 21A(3) amended by No. 10258 s. 10(l)(ii).
Where a member ceases to be a permanent employee but within six months thereafter becomes an employee and makes an election in accordance with this section, he shall be deemed to have continued to be a member while he was not a permanent employee, but shall not be liable to pay the contributions under this Act in respect of the period when he was not a permanent employee unless he has elected to contribute in accordance with section 22, and for the purpose of calculating benefits under this Act his service shall be deemed not to have terminated.
A person who has ceased to be a permanent employee but who within six months thereafter is employed by an employer may within two months elect in writing to have the provisions of subsection (3) apply to him.
S. 21A(5) amended by No. 9978 s. 7(4).
An election made under subsection (4) shall be of no effect unless any benefits paid under section 34A or section 37 in consequence of the cessation of employment of that person as a permanent employee have been repaid to the Board.
Where a person makes an election in accordance with this section, and would but for the election have been entitled to benefits under section 38, he shall be deemed never to have so been entitled.
S. 21B inserted by No. 9478 s. 4.
Subject to section 21A(3), any benefits paid or payable under this Act in respect of a member shall not be increased by reason of the making of an Order in Council under section 2 relating to any employee or employees of the employer by whom or by which the member was employed unless the joining date preceded the date upon which the member became entitled to the benefits.
S. 21C inserted by No. 9478 s. 4, amended by No. 58/1987 s. 11(1)(e)(ii).
Notwithstanding anything in the interpretation of Permanent employee in section 2, where a person (not being a permanent employee) is an employee within the meaning of one of the following provisions of this Act, namely—
paragraph (b) of the interpretation of Employee in section 2;
subparagraph (i) of paragraph (c) of the interpretation of Employee in section 2—
S. 21C(c) repealed by No. 58/1987 s. 11(e)(i).
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and immediately before he became such an employee he was an employee within the meaning of any other provision of this Act mentioned in paragraph (a) or (b) the qualifying period of service for his becoming a permanent employee shall be reduced by the continuous period during which he was employed in that former employment.
A member shall continue to be a contributor so long as and only so long as—
he is a permanent employee; and
S. 22(1)(b) amended by No. 40/2010 s. 48(1).
he has not attained the age of 75 years.
S. 22(1A) inserted by No. 40/2010 s. 48(2).
Despite subsection (1)(b), a member may continue to be a contributor after he or she attains the age of 75 years if he or she is permitted to do so under Commonwealth superannuation law.
Notwithstanding anything in paragraph (a) of subsection (1) where a person who is a contributor ceases to be a permanent employee but—
accepts no benefits in respect of his so ceasing to be employed;
is within two months or within such further period as is fixed by the Board in a particular case, again a permanent employee; and
in respect of the time he is not a permanent employee pays to the Board contributions at three and one-half times the rate at which his contributions were last required to be deducted from his salary—
he shall be deemed to have continued to be a contributor while not a permanent employee.
Notwithstanding anything in paragraph (a) of subsection (1), where a person who is a contributor ceases to be a permanent employee but—
accepts no benefits in respect of his ceasing to be an employee;
within two months after he ceases to be employed or within any further period fixed by the Board in his case for the purposes of paragraph (b) of subsection (2), dies or becomes disabled; and
between the time when he ceases to be employed and the time when he dies or becomes disabled, pays to the Board contributions at three and one-half times the rate at which his contributions were last required to be deducted from his salary—
shall be deemed to have continued to be a member until he died or became disabled.
S. 22A inserted by No. 10258 s. 10(m).
In this section scheme of superannuation has the same meaning as in Part V.
S. 22A(2) amended by No. 46/1998 s. 7(Sch. 1).
The Governor in Council, on the recommendation of the Minister, may by Order published in the Government Gazette declare a scheme of superannuation to be an approved superannuation scheme for the purposes of this section.
Notwithstanding anything to the contrary in this Act—
a permanent employee who wishes to become a member of an approved superannuation scheme may elect to cease to contribute in accordance with the provisions of this Act and, subject to subsection (7), shall on the day prior to becoming a member of the approved superannuation scheme be deemed to have ceased to be a permanent employee for the purposes of this Act; or
an employee who is a member of an approved superannuation scheme may within 3 months prior to becoming a permanent employee elect not to contribute in accordance with the provisions of this Act and, subject to subsection (7), shall thereupon be deemed to have ceased to be an employee for the purposes of this Act.
A member ceasing to be a permanent employee pursuant to subsection (3)(a) may elect to be entitled to—
deferred retirement benefits payable under section 38; or
benefits payable under section 37; or
the transfer of the benefits payable under section 37 in respect of the member to the administrators, trustees or managers of the approved superannuation scheme to be held for the member's benefit.
An election made under subsection (4) shall be of no effect unless it is made in writing within three months of the member ceasing to be a permanent employee or within one month of the Board notifying the member in writing of the right to make the election (whichever is the later).
If a member receives a notice under subsection (5) but fails to make an election within the period of election specified in that subsection the member shall be regarded as having elected to receive a benefit in accordance with subsection (4)(b).
Notwithstanding anything to the contrary in this Act, a member of an approved superannuation scheme shall not be entitled to contribute in accordance with the provisions of this Act while remaining a member of the approved superannuation scheme but shall, subject to this Act, on ceasing to be a member of the approved superannuation scheme again become an employee or permanent employee for the purposes of this Act.
S. 23(1) amended by No. 9657 s. 7(a).
Subject to this section, the rate of contribution to the Fund by a contributor shall be three and one-half per centum of his salary when it does not exceed the minimum wage together with a sum equal to 0⋅05 per centum for each one per centum by which the weekly instalment of his salary exceeds the minimum wage.
S. 23(1A) inserted by No. 9657 s. 7(b).
A reference in subsection (1) to the salary of a contributor is a reference to—
where the contributor was an employee on 1 March preceding the date on which he is liable to pay contributions—the salary payable to him as at that preceding 1 March; or
where the contributor was not an employee on the preceding 1 March mentioned in paragraph (a)—the salary payable to him as at the date on which he became or becomes an employee.
S. 23(2) amended by No. 81/1988 s. 19.
Subject to section 24, a contributor shall not be required to contribute at a rate exceeding five per centum of his salary to the Fund pursuant to subsection (1).
S. 23(2A) inserted by No. 40/2004 s. 23.
An eligible salary sacrifice contributor may by notice in writing to his or her employer elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula—
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where—
M is the applicable member contribution rate in accordance with subsection (1) without salary sacrifice;
R is the tax rate for the financial year on taxable contributions to the Fund under the Commonwealth Income Tax Assessment Act 1936.
S. 23(2B) inserted by No. 40/2004 s. 23.
An election under subsection (2A)—
can only be made if there is in force an agreement between the employer and the member under which the employer can make the member contributions required by this Act by way of salary sacrifice;
is subject to the terms and conditions specified in the agreement referred to in paragraph (a);
can only be made in respect of the whole of the member contributions;
can not be made in respect of any contributions made by a member in addition to the member contributions required under subsection (1).
S. 23(2C) inserted by No. 40/2004 s. 23.
Member contributions made in accordance with the rate determined under subsection (2A) are for the purposes of this Act (other than sections 74CA to 74CC) to be taken to be—
the member contributions required to be paid under this Act; and
the member contributions that would have been payable if an election had not been made under subsection (2A).
Note to s. 23(2C)(b) inserted by No. 37/2007 s. 19.
Note
The effect of paragraph (b) is that, for the purpose of calculating benefit entitlements, the member contributions are taken to be the member contributions that would have been payable if no election had been made.
S. 23(2D) inserted by No. 40/2004 s. 23.
An election under subsection (2A) does not affect the amount that would otherwise constitute the salary of the member for the purposes of this Act.
The contributions which any member is making shall not be reduced by reason only of any increase in the minimum wage.
S. 23(4) amended by No. 40/2010 s. 49(1).
The liability to make contributions shall cease when a member ceases to be a permanent employee or reaches the age of 75 years (whichever first happens).
S. 23(4A) inserted by No. 40/2010 s. 49(2).
Despite subsection (4), a member may make contributions after he or she attains the age of 75 years if he or she is permitted to do so under Commonwealth superannuation law.
S. 23(5) inserted by No. 9400 s. 9.
Subject to subsection (6), the amount of contribution of the contributor shall be adjusted as at 1 March each year based on his salary as at that date and his contributions so adjusted shall be payable as from and inclusive of the first pay day on or after 1 May next following.
S. 23(6) inserted by No. 9400 s. 9, amended by No. 10258 s. 10(n)(i).
Subject to subsection (7), where a contributor receives a reduced salary indefinitely or for a period of more than three months and the amount of contribution which he is required to pay becomes less than the amount of contribution that he was required to pay immediately before the reduction, he shall pay the lesser amount of contribution.
S. 23(7) inserted by No. 10258 s. 10(n)(ii).
If for any reason other than misconduct a contributor receives a reduced salary indefinitely and the amount of contribution that the contributor is required to pay becomes less than the amount of contribution that the contributor was required to pay immediately before the reduction in salary, the contributor may, within 3 months after the first pay day on which the contributor is paid at the reduced rate of salary, elect to continue to contribute the same amount of contribution that the contributor was required to pay immediately before the reduction in salary until by reason of an increase in the contributor's salary the contributor is required to pay more than that amount of contribution and the amount of any pension or benefit to which the contributor is entitled under this Act shall be computed having regard to the salary level according to which the contributor is contributing.
S. 23(8) inserted by No. 49/1992 s. 84, repealed by No. 4/1996 s. 94.
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