Superannuation (PSS) Membership Inclusion Declaration 2006

This Declaration is the Superannuation (PSS) Membership Inclusion Declaration 2006.

This Declaration is taken to have commenced on 30 December 2005.

Note The Superannuation (PSS) Membership Inclusion Declaration 1995 was taken to have been repealed on 30 December 2005 by operation of section 32 of the Legislative Instruments Act 2003.

3 Interpretation

(1) In this Declaration:

1976 Act means the Superannuation Act 1976.

1990 Act means the Superannuation Act 1990.

alternative superannuation scheme, in relation to a person who is employed in a particular capacity, or who is the holder of a particular office:

(a) means a superannuation scheme to which contributions are made in relation to the person’s employment or holding of the office; but

(b) does not include any of the following:

(i) a scheme to which contributions are made in relation to the person for:

(A) if the person is employed in a particular capacity — other employment or the holding of an office; or

(B) if the person is the holder of a particular office — other employment or the holding of another office;

(ii) a scheme to the extent that membership of that scheme by the person is for the preservation, or payment, of productivity benefits;

(iii) a scheme to the extent that participation in that scheme on the person’s behalf is for purposes solely related to satisfying obligations under the Superannuation Guarantee (Administration) Act 1992;

(iv) a scheme to which contributions are made in relation to the person only in relation to performance pay;

(v) for a prescribed person — a scheme of which the person is taken, under subsection (2), to be a member for top‑up purposes.

Example

If a person is a member, and is making voluntary contributions to an RSA without any employer contributions, the RSA will not be an alternative superannuation scheme. However, if the person’s employer makes contributions to the RSA, above the superannuation guarantee rate, the RSA will be an alternative superannuation scheme.

AWB Limited means the company (ACN 081 890 459) that was established under the Corporations Law on 1 June 1998.

Medibank means the company (ACN 080 890 259) that was incorporated under the Corporations Law on 1 December 1997.

member, of a superannuation scheme that is an RSA, means a holder of the RSA.

performance pay means a payment of that name made under:

(a) an industrial agreement under Division 3A of Part VI of the Industrial Relations Act 1988 as in force immediately before 30 March 1994; or

(b) an agreement under Part VIB of that Act in force before 15 November 1996.

prescribed person means a person who holds office or is employed under terms and conditions that enable the person to choose whether to take part of his or her remuneration in a non‑monetary form (for example, a top‑up arrangement).

productivity benefits means benefits that are productivity related benefits within the meaning of section 110A of the 1976 Act.

PSS/CSS Board means either or both of:

(a) the PSS Board established under section 20 of the Superannuation Act 1990; and

(b) the CSS Board established under section 27A of the Superannuation Act 1976.

SMHEA corporatisation date means the date on which section 59 of the Snowy Hydro Corporatisation Act 1997 commences.

State superannuation scheme, means a superannuation scheme:

(a) established under the law of a State or Territory; and

(b) applying to persons employed in, or appointed to, the Public Service, or any other service, of the State or Territory;

but does not include, in the case of a prescribed person, a scheme of which the person is taken to be a member for top‑up purposes.

superannuation scheme:

(a) means a scheme, fund or arrangement, however established, under which superannuation or retirement benefits are payable; and

(b) includes an RSA within the meaning of the Retirement Savings Account Act 1997.

top‑up arrangement means an arrangement in relation to the employment of, or the holding of an office by, a person (the payee):

(a) under which:

(i) another person (the payer) contributes, on behalf of the payee, to a superannuation scheme (which may be a scheme that applies only to the payee) under which superannuation or retirement benefits are payable to, or in relation to, the payee; and

(ii) the contributions are part of, and not additional to, the payee’s overall remuneration package provided by the payer; and

(b) that is entered into on the basis that:

(i) the payee continues to be, or becomes, a member of the Public Sector Superannuation Scheme; and

(ii) the payer continues to be, or becomes, the designated employer of the payee;

in relation to that employment or holding of office.

Note Unless the contrary intention appears, terms defined in the Superannuation Act 1990 have the same meaning in this Declaration. For example, section 3 of that Act contains the following definition:

Public Sector Superannuation Scheme means the superannuation scheme established by the Trust Deed.

(2) For the purposes of this Declaration, a person is taken to be a member of a superannuation scheme for top‑up purposes if the person is a member of the scheme only because of:

(a) a top‑up arrangement; or

(b) a top‑up arrangement and any of the following circumstances:

(i) contributions relating to performance pay are made to the scheme;

(ii) the person is a member of the scheme for the purpose of the preservation, or payment, of productivity benefits;

(iii) participation in the scheme on the person’s behalf by the person’s employer is for purposes solely related to satisfying the employer’s obligations under the Superannuation Guarantee (Administration) Act 1992.

4 Persons to whom section 6 of the 1990 Act applies

(1) For the purposes of paragraph 6 (1) (j) of the 1990 Act, and subject to this section, section 6 of the 1990 Act applies to a person described in Schedule 1.

(2) Section 6 of the 1990 Act applies to a person referred to in item 8 of Schedule 1 only while a controlling interest in Australian Meat Technology Pty Limited is held by all or any of the following:

(a) the Commonwealth (or its nominees); or

(b) an authority or body, whether a body corporate or not, established for a public purpose by or under a law of the Commonwealth; or

(c) a company, or other body corporate, in which the Commonwealth (or its nominees), or an authority or body referred to in paragraph (b), has a controlling interest.

(3) Section 6 of the 1990 Act applies to a person referred to in item 9 of Schedule 1 only while a controlling interest in Australian Information Media Pty Limited is held by all or any of the following:

(a) the Commonwealth (or its nominees); or

(b) an authority or body, whether a body corporate or not, established for a public purpose by or under a law of the Commonwealth; or

(c) a company, or other body corporate, in which the Commonwealth (or its nominees), or an authority or body referred to in paragraph (b), has a controlling interest.

(4) Section 6 of the 1990 Act applies to a person referred to in item 11 of Schedule 1 only while a controlling interest in ACTTAB Limited is held by all or any of the following:

(a) the Australian Capital Territory (or its nominees);

(b) an authority or body, whether a body corporate or not, established for a public purpose by or under a law of the Australian Capital Territory;

(c) a company, or other body corporate, in which the Australian Capital Territory (or its nominees), or an authority or body referred to in paragraph (b), has a controlling interest.

(5) Section 6 of the 1990 Act ceases to apply to a person referred to in item 12 of Schedule 1 at the end of the first occurring of the following days:

(a) 31 December 1996;

(b) the day on which the person ceases to be employed by the Nuclear Safety Bureau (NSB);

(c) the day immediately before the day on which the person becomes, in relation to the person’s employment with NSB, a member of an alternative superannuation scheme;

(d) the day immediately before the day on which the person becomes a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

(6) Section 6 of the 1990 Act ceases to apply to a person referred to in item 13 or 14 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of Australian Law Reform Commission (in this determination called ALRC);

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with ALRC, a member of an alternative superannuation scheme.

(7) Section 6 of the 1990 Act ceases to apply to a person referred to in item 15 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of Medibank;

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with Medibank, a member of an alternative superannuation scheme;

(8) Section 6 of the 1990 Act ceases to apply to a person referred to in item 16 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of Employment National (Administration) Pty Ltd;

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with Employment National (Administration) Pty Ltd, a member of an alternative superannuation scheme;

(c) if Commonwealth control of Employment National (Administration) Pty Ltd ceases — the last day on which Employment National (Administration) Pty Ltd is under Commonwealth control.

(9) Section 6 of the 1990 Act ceases to apply to a person referred to in item 17 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of AWB Limited;

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with AWB Limited, a member of an alternative superannuation scheme;

(10) Section 6 of the 1990 Act ceases to apply to a person referred to in item 18 of Schedule 1 at the end of the earliest of the following days:

(a) the day on which the person ceases to be an employee of the Australian Government Solicitor;

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with the Australian Government Solicitor, a member of an alternative superannuation scheme;

(c) the day immediately before the day on which the Australian Government Solicitor ceases to be a Commonwealth authority within the meaning of the Commonwealth Authorities and Companies Act 1997.

(11) Section 6 of the 1990 Act ceases to apply to a person referred to in item 19 of Schedule 1 at the end of the first‑occurring of the following days:

(a) the day on which the person ceases to be an employee of the Sydney Harbour Federation Trust (the Trust);

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with the Trust, a member of an alternative superannuation scheme;

(c) the day on which the Trust ceases to be a Commonwealth authority within the meaning of the Commonwealth Authorities and Companies Act 1997.

(12) Section 6 of the 1990 Act ceases to apply to a person referred to in item 20 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of Australian Training Products Limited (ATP Ltd);

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with ATP Ltd, a member of an alternative superannuation scheme;

(13) Section 6 of the 1990 Act ceases to apply to a person referred to in item 21 of Schedule 1 at the end of the first occurring of the following days:

(a) the day on which the person ceases to be an employee of Australian Strategic Policy Institute Limited (ASPI Ltd);

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with ASPI Ltd, a member of an alternative superannuation scheme;

(c) the day on which ASPI Ltd ceases to be a Commonwealth company within the meaning of the Commonwealth Authorities and Companies Act 1997.

(14) Subsection (15) applies on and after the SMHEA corporatisation date.

(15) Section 6 of the 1990 Act ceases to apply to a person referred to in item 22 of Schedule 1 at the end of the first‑occurring of the following days:

(a) the day on which the person ceases to be an employee of Snowy Hydro Limited;

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with Snowy Hydro Limited, a member of an alternative superannuation scheme;

(i) the Commonwealth;

(ii) New South Wales;

(iii) Victoria;

(d) if payments in respect of benefits for members of the Public Sector Superannuation Scheme who are employed by Snowy Hydro Limited cease to be made by Snowy Hydro Limited — the last day to which the last of those payments relates;

(e) if payments in respect of administration costs for members of the Public Sector Superannuation Scheme who are employed by Snowy Hydro Limited cease to be made by Snowy Hydro Limited — the last day to which the last of those payments relates.

(16) Section 6 of the 1990 Act ceases to apply to a person referred to in item 23 of Schedule 1 at the end of the earlier of:

(a) the day on which the person ceases to be an employee of the PSS/CSS Board; and

(b) the day immediately before the day on which the person becomes, in relation to the person’s employment with the PSS/CSS Board, a member of an alternative superannuation scheme.

(17) Section 6 of the 1990 Act applies to a person referred to in item 24 in Schedule 1 only while a controlling interest in Rhodium Asset Solutions Limited is held by all or any of the following:

(a) the Australian Capital Territory (or its nominees);

(b) an authority or body, whether a body corporate or not, established for a public purpose by or under a law of the Australian Capital Territory;

(c) a company, or other body corporate, in which the Australian Capital Territory (or its nominees), or an authority or body referred to in paragraph (b), has a controlling interest.

(18) Section 6 of the 1990 Act ceases to apply to a person referred to in item 25 in Schedule 1 at the end of the earlier of:

(a) the day on which the person ceases to be an employee of the Military Superannuation and Benefits Board of Trustees No. 1; and

(b) the day immediately before the day on which the person becomes a member of an alternative superannuation scheme in relation to the person’s employment by the Military Superannuation and Benefits Board of Trustees No. 1.

Schedule 1 Persons to whom section 6 of the 1990 Act applies

(section 4)

1 A person who:

(a) being a staff member of the Australian Securities Commission, is a temporary employee appointed, or employed in accordance with a direction, under section 81B of the Public Service Act 1922; and

(b) immediately before becoming appointed or employed was a member of a State superannuation scheme; and

(c) has made an election in writing, in a form approved by the Board, to become a member of the Public Sector Superannuation Scheme.

2 A person who:

(a) is employed under subsection 120 (3) of the Australian Securities Commission Act 1989; and

(b) holds office as a Regional Commissioner under section 96 of that Act; and

(c) has made an election in writing, in a form approved by the Board, to become a member of the Public Sector Superannuation Scheme.

3 A person who:

(a) is taken, by force of subsection 15 (2) of the Repatriation Institutions (Transfer) Act 1992, to have resigned from the Australian Public Service at the start of the day (the relevant day) on which a State, or an authority of a State, started to operate a repatriation institution (within the meaning of that Act); and

(b) on the day before the relevant day:

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(c) is, on the relevant day, in employment that is acceptable continuing employment at that repatriation institution within the meaning of the Repatriation Institutions (Transfer) Act 1992; and

(d) on and from the relevant day:

(i) has not ceased to be in that employment; or

(ii) if the repatriation institution was, on the relevant day, operated by a State or an authority of a State — is in other employment with the State or authority, or with another authority of the State; and

(e) is not a member of a State superannuation scheme; and

(f) is not a person in relation to whom the Minister has signed a certificate that there are no arrangements, satisfactory to the Minister, for the State, or the authority of a State referred to in paragraph (d), to pay the Commonwealth for providing superannuation under the 1990 Act for the person.

4 A person who:

(a) is an employee of the Northern Land Council; and

(b) immediately before last becoming an employee of the Council:

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

5 A person who:

(a) on 31 December 1991:

(i) was a member of the Public Sector Superannuation Scheme; and

(ii) was employed by the Canberra Institute of the Arts; and

(b) on 1 January 1992, became employed by The Australian National University; and

(d) is not a member of the Superannuation Scheme for Australian Universities, unless:

(i) if he or she is a prescribed person — he or she is taken to
be a member of that Scheme for top‑up purposes under subsection 3 (2); or

(ii) during a period of leave without pay from the University, he or she:

(A) engages in other employment with the University’s permission; and

(B) is a member of that Scheme because of that other employment.

6 A person who:

(a) became an officer (that is, the Managing Director or an employee) of the Australian Wool Research and Promotion Organisation (AWRPO) because of subsection 36 (1) of the Wool Legislation (Repeals and Consequential Provisions) Act 1993 (the Repeal Act); and

(b) has not subsequently ceased to be an officer of AWRPO; and

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(d) before 15 February 1994, requested, in writing, to continue to be treated as a member of the Public Sector Superannuation Scheme in relation to the person’s holding office as an officer of AWRPO; and

(e) in relation to the person’s holding office as an officer of AWRPO, is not a member of an alternative superannuation scheme; and

(f) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

7 A person who:

(a) is an officer (that is, the Chief Executive or an employee) of Wool International; and

(b) immediately before becoming an officer of Wool International, had continuously been an officer (that is, the Managing Director or an employee) of the Australian Wool Research and Promotion Organisation (AWRPO) since the commencement of the Wool Legislation (Repeals and Consequential Provisions) Act 1993 (the Repeal Act); and

(d) has not subsequently ceased to be an officer of Wool International; and

(e) immediately before the commencement of the Repeal Act:

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(f) before 15 February 1994, requested, in writing, to continue to be treated as a member of the Public Sector Superannuation Scheme; and

(g) in relation to the person’s holding office as an officer of Wool International, is not a member of an alternative superannuation scheme; and

(h) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

8 A person who:

(a) is an employee of Australian Meat Technology Pty Limited (AMT); and

(b) immediately before last becoming an employee of AMT:

(i) was an employee of the Commonwealth Scientific and Industrial Research Organisation; and

(ii) either:

(A) was a member of the Public Sector Superannuation Scheme; or

(B) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(d) if the person became an employee of AMT before 3 May 1994, requested, in writing, before that day, to continue to be treated as a member of the Public Sector Superannuation Scheme in relation to the person’s employment with AMT; and

(e) in relation to the person’s employment with AMT, is not a member of an alternative superannuation scheme.

9 A person who:

(a) is an employee of Australian Information Media Pty Limited (AIM); and

(b) immediately before last becoming an employee of AIM:

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

10 A person who:

(a) is an employee of Airservices Australia (AA) because of a determination under subsection 8 (3) of the Civil Aviation Legislation Amendment Act 1995; and

(b) immediately before last becoming an employee of AA either:

(i) was a member of the Public Sector Superannuation Scheme; or

(ii) made a declaration and an election under subsection 244 (1) of the 1976 Act; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

11 A person who:

(a) is an employee of ACTTAB Limited; and

(b) either:

(i) immediately before last becoming an employee of ACTTAB Limited:

(A) was a member of the Public Sector Superannuation Scheme; or

(B) made a declaration and an election under subsection 244 (1) of the 1976 Act; or

(ii) on 30 June 1996, was a Category A Member of the ACTTAB Staff Superannuation Plan; and

12 A person who:

(a) is an employee of the Nuclear Safety Bureau (NSB); and

(b) after becoming an employee of NSB, made contributions to the Public Sector Superannuation Scheme as if he or she were a member of that Scheme, despite the fact that he or she was not entitled to make contributions to that Scheme; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

13 A person who:

(a) became an employee of the ALRC on 11 November 1996; and

(b) immediately before becoming so employed, was a member employed by the Law Reform Commission; and

(ba) after becoming an employee of ALRC, made contributions to the Public Sector Superannuation Scheme as if he or she were a member of the scheme, despite the fact that he or she was not entitled to make contributions to the scheme; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

14 A person who:

(a) commenced employment with ALRC on or after 11 November 1996; and

(b) made an election under section 8 of the 1990 Act to become a member of the scheme; and

(c) after becoming an employee of ALRC, made contributions to the Public Sector Superannuation Scheme as if he or she were a member of the scheme, despite the fact that he or she was not entitled to make contributions to the scheme; and

(d) is not, in relation to the person’s employment with ALRC, a member of an alternative superannuation scheme; and

(e) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

15 A person who:

(a) on or after 1 December 1997 became, or becomes, an employee of Medibank; and

(b) is either:

(i) a person who, immediately before last becoming so employed, was a member; or

(ii) a person to who had a preserved benefit under the 1990 Act immediately before becoming so employed; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

16 A person who:

(a) became an employee of Employment National (Administration) Pty Ltd on 1 May 1998; and

(b) immediately before becoming so employed, was a member employed by the Department of Employment, Education, Training and Youth Affairs; and

(c) is not, in relation to the person’s employment with Employment National (Administration) Pty Ltd, a member of an alternative superannuation scheme; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

17 A person who:

(a) became an employee of AWB Limited during the period from 1 June 1998 to 30 June 1999 (inclusive); and

(b) immediately before becoming so employed, was a member employed by the Australian Wheat Board; and

(c) is not, in relation to the person’s employment with AWB Limited, a member of an alternative superannuation scheme; and

(d) is not a person to whom Division 2 or 3 of Part IV of the Public Service Act 1922 applies.

18 A person who:

(a) on or after 1 September 1999 becomes an employee of the Australian Government Solicitor; and

(b) is a person who immediately before last becoming so employed, was a member of the Public Sector Superannuation Scheme; and

(c) is not, in relation to the person’s employment with the Australian Government Solicitor, a member of an alternative superannuation scheme.

19 A person who:

(a) immediately before commencing employment with the Sydney Harbour Federation Trust (the Trust) was:

(i) a member of the Public Sector Superannuation Scheme; or

(ii) a person who had a preserved benefit under the Rules; and

(b) is not, in relation to the person’s employment with the Trust, a member of an alternative superannuation scheme.

20 A person who:

(a) became, or becomes, an employee of Australian Training Products Limited (ATP Ltd) on or after 1 July 2001; and

(b) immediately before becoming so employed, was a member of the Public Sector Superannuation Scheme employed by the Australian National Training Authority; and

21 A person who:

(a) became, or becomes, an employee of the Australian Strategic Policy Institute Limited (ASPI Ltd) on or after 7 November 2001; and

(b) is either:

(i) a person who immediately before becoming so employed was a member of the Public Sector Superannuation Scheme; or

(ii) a person who had preserved benefits under the 1990 Act immediately before becoming so employed; and

22 After the SMHEA corporatisation date, a person who:

(a) is, at a time after that date, an employee of Snowy Hydro Limited; and

(b) immediately before that date, was a member of the Public Sector Superannuation Scheme employed by the Snowy Mountains Hydro‑electric Authority; and

(d) is not, in relation to the person’s employment with Snowy Hydro Limited, a member of an alternative superannuation scheme.

23 A person:

(a) who is, or becomes, an employee of the PSS/CSS Board; and

(b) who:

(i) is employed by the PSS/CSS Board on a permanent basis, and, immediately before becoming so employed, was a member of the Public Sector Superannuation Scheme; or

(ii) immediately before becoming so employed, had a preserved benefit under the 1990 Act and made an election, by writing in a form approved by the Board, to become a member of the Public Sector Superannuation Scheme in relation to the person’s employment with the PSS/CSS Board; or

(iii) immediately before becoming so employed, made a declaration and an election under subsection 244 (1) of the 1976 Act to become a member of the Public Sector Superannuation Scheme; or

(iv) makes an election, by writing in a form approved by the Board, to become a member of the Public Sector Superannuation Scheme in relation to the person’s non‑permanent employment with the PSS/CSS Board.

24 A person who:

(a) becomes an employee of Rhodium Asset Solutions Limited on 31 December 2004; and

(b) immediately before becoming so employed:

(i) was an employee of Totalcare Industries Limited; and

(ii) was a member of the scheme provided for by the 1990 Act; and

(d) is not, in relation to that employment, a member of an alternative superannuation scheme.

25 A person who:

(a) is, or becomes, an employee of the Military Superannuation and Benefits Board of Trustees No. 1; and

(b) immediately before becoming so employed, was a member of the Public Sector Superannuation Scheme; and

(c) is not, in relation to the employment with the Military Superannuation and Benefits Board of Trustees No. 1, a member of an alternative superannuation scheme.