Aware Super Act 1992 (NSW)

Aware Super Act 1992 No 100 An Act to provide for employer contributions to superannuation for certain employees in the public sector; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Aware Super Act 1992. 2 Commencement This Act commences on the date of assent to this Act. 3 Definitions The Dictionary at the end of this Act contains definitions of words and expressions used in this Act. 4 Meaning of "salary or wages" (1) For the purposes of this Act, the salary or wages of an employee is— (a) in the case of an employee who is not an executive officer, the total of— (i) earnings in respect of ordinary hours of work, and (ii) earnings consisting of over-award payments, shift-loading or commission, and (iii) allowances and other payments of a kind prescribed by the regulations for the purposes of this subsection, and (iv) if employment benefits of a kind prescribed by the regulations for the purposes of this subsection are provided to the employee, the cost of providing the employment benefits, or (b) in the case of an employee who is an executive officer, the salary or wages as last nominated or changed in accordance with this section. (1A) A regulation made for the purposes of subsection (1) (a) (iii) or (iv)— (a) may only be made with the concurrence of the Treasurer, and (b) may apply to all employees who are not executive officers, or to specified employees or classes of employees who are not executive officers. (2) An amount of salary or wages for the purposes of this Act must be nominated to the employer of an employee who is an executive officer by the employee on, or as soon as practicable after, becoming an employee or being appointed as an executive officer (whichever occurs first). An amount may also be nominated to the employer by the employee on, or as soon as practicable after, being reappointed, or appointed to another position, as an employee. (3) The amount nominated is to be not less than— (a) the monetary remuneration payable to the employee at the date of nomination, or (b) the maximum contribution base, within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth, applicable at that time, whichever is the lower. (4) The amount nominated is to be not more than the total value of the remuneration package paid to the employee (less the cost of providing employer's contributions to superannuation and any performance-related incentive payment), expressed as an annual rate. (5) If the employee fails to nominate an amount of salary or wages within 28 days after first becoming an employee or being appointed as an executive officer (whichever occurs first) or within such further period as the trustee may allow, the employee is taken to have nominated an amount of salary or wages that is equal to the monetary remuneration payable to the employee at the end of the applicable period. (6) An employee who is an executive officer may, from time to time, by notice to the employee's employer elect to reduce the amount of salary or wages nominated under this section, but not so that the amount is less than the monetary remuneration payable to the employee at the date of the election. (7) An employee who is an executive officer may, from time to time, by notice to the employee's employer elect to increase the amount of salary or wages nominated under this section, but not so as to increase the amount nominated by a percentage of that amount that is more than the percentage by which the remuneration package of the employee has increased since the amount of the salary or wages was last nominated or changed. (8) An employer must notify the trustee of a nomination or election under this section. Any such nomination or election takes effect on the date of notification to the trustee or on such other date as the trustee may determine with the consent of the employee concerned. (9) Nothing in this section requires the nominated amount of salary or wages to be increased if, because of a variation in the remuneration package of an employee or in the proportions of the remuneration package comprising monetary remuneration and employment benefits of the employee, the amount of salary or wages as last nominated or changed for the purposes of this section is less than the monetary remuneration of the employee. (10) In this section— employment benefit means a benefit provided to an employee at the cost of the employee's employer (being a benefit of a private nature). trustee means the trustee of the superannuation scheme or approved deposit fund, or the provider of the retirement savings account, to which the compulsory employer superannuation contributions are payable. 5 Notes Matter appearing under the heading "Note" does not form part of this Act. Part 2 Compulsory employer superannuation contributions 6 Employers to whom Act applies (1) The employers to whom this Act applies are— (a) the Crown, the Government or a Minister or other member of Parliament, and (b) the authorities specified in Schedule 1. (2) Members of the NSW Police Force are, for the purposes of this Act, taken to be employed in the NSW Police Force by the Crown. (3) An employee who is employed by the Crown, the Government or a Minister or other member of Parliament is, for the purposes of this Act, taken to be employed by the person or organisation prescribed by the regulations for the purposes of this section. 7 Employers may be changed (1) The Governor may, by order published on the NSW legislation website, amend Schedule 1. (2) An order under this section, and any order revoking or varying such an order, may be made— (a) to take effect on and from a day specified in the order, whether or not the day is earlier than the day of publication of the order, and (b) to effect the amendment to which it relates with such limitations as are specified in the amendment. 8 Compulsory employer superannuation contributions (1) An employer must make, for each employee (other than an excluded employee), a superannuation contribution equivalent to the salary contribution percentage for the employee for each financial year, or part, for which the employee is an employee. (2) The salary contribution percentage for a person, in relation to a financial year referred to in Column 1 in the table to this subsection, is the percentage of the salary or wages of the person specified in Column 2 for that financial year. Column 1 Column 2 Year Percentage Year starting on 1 July 2013 9.25 Year starting on 1 July 2014 9.5 Year starting on 1 July 2015 10 Year starting on 1 July 2016 10.5 Year starting on 1 July 2017 11 Year starting on 1 July 2018 11.5 Year starting on or after 1 July 2019 12 (2A) The regulations may prescribe a period or a percentage to replace, or in addition to, any period or percentage in the table to subsection (2) to reflect any changes to the superannuation guarantee charge percentage prescribed by section 19 (2) of the relevant Commonwealth legislation. (2B) When a period or percentage is prescribed under subsection (2A), it applies for the purposes of subsection (2) in place of the period or percentage that it replaces or (if additional) as if it formed part of the table to that subsection. (3) An employer is not required to make a contribution in respect of an employee if, in order to be consistent with any relevant Commonwealth superannuation standard, a superannuation fund must not accept contributions in respect of the employee. (4) Nothing in this section prevents an employer from making superannuation contributions in addition to those required by this section in respect of employees. (5) Subsection (1) does not apply in relation to— (a) an employee to whom an employer pays a total salary or wages in any month, including any amount payable under subsection (6), that is less than the amount prescribed by section 27 (2) of the relevant Commonwealth legislation, or (b) an employee to whom section 27 (1) (a) of the relevant Commonwealth legislation applies, in relation to employment of a kind prescribed by the regulations. (6) Where subsection (1) does not apply, the employer must pay to the employee an amount equivalent to the superannuation contribution that would have been payable but for the operation of subsection (5). (7) The amount payable under subsection (6) is in addition to any salary or wages payable to the employee. (8) In this section, relevant Commonwealth legislation means the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. Note— The amount prescribed by section 27 (2) of the relevant Commonwealth legislation is $450. Section 27 (1) (a) of the relevant Commonwealth legislation provides that the salary or wages of an employee who is aged 70 or over is to be excluded from the calculation of the superannuation guarantee shortfall under the relevant Commonwealth legislation. 9 Payment of compulsory employer superannuation contributions (1) An employer must pay the compulsory employer superannuation contribution for an employee to— (a) the Fund, or (b) if a nomination is in force under this section, the nominated complying superannuation fund, complying approved deposit fund or retirement savings account. (2) An employee may, by written notice to the employer, nominate a complying superannuation fund other than the Fund or a complying approved deposit fund or a retirement savings account as the fund or account to which the compulsory employer superannuation contribution is to be paid. (3) An employee may, by written notice to the employer, revoke or vary a nomination under this section at any time. 10 Excluded employees (1) The compulsory employer superannuation contribution is not payable for the following employees— (a) an employee who is a contributor to or a member of an STC scheme (within the meaning of the Superannuation Administration Act 1996) in respect of the same contract of employment, (b) an employee who is a Judge within the meaning of the Judges' Pensions Act 1953, a master within the meaning of the Supreme Court Act 1970, the Solicitor General or the Director of Public Prosecutions, (c) an employee who, while receiving salary or wages for work done outside Australia, is not treated as a resident of Australia for the purposes of the Income Tax Assessment Act 1936 of the Commonwealth. (2) Subsection (1) (a) does not apply to an employee who has preserved a benefit in an STC scheme, or is entitled to a deferred accrued benefit under the State Authorities Non-contributory Superannuation Act 1987, and who is not otherwise a participant in any such scheme. 11 Certain employees may elect to have compulsory employer superannuation contributions cease where pension RBL exceeded (1) An employee may give his or her employer a written notice requiring the employer to cease to make the compulsory employer superannuation contribution in respect of the employee. (2) The notice may be given only if it is accompanied by the statements referred to in section 19 (4) (b) of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. (3) A notice given under this section is irrevocable. (4) An employer who is given a notice under this section— (a) must comply with it, and (b) is not required to make the compulsory employer superannuation contribution in respect of the employee concerned. 12 Contributions for employees who fund their own superannuation (1) This section applies to an employee, other than an executive officer, who is employed under a contract under which contributions made by the employer to the employee's superannuation form part of the total remuneration package of the employee and are deducted from the monetary remuneration otherwise payable to the employee. (2) An employee to whom this section applies may give his or her employer a written notice requiring the employer to cease to make the compulsory employer superannuation contribution in respect of an amount of salary or wages of the employee that exceeds the maximum contribution base. (3) An employer who is given such a notice— (a) must comply with it, and (b) is not required to make the compulsory employer superannuation contribution in respect of that part of the salary or wages of the employee that exceeds the maximum contribution base, as applicable from time to time. (4) A notice given under this section may be revoked by the employee by further written notice given to the employer. (5) If the notice is revoked, the employer is required to resume making the compulsory employer superannuation contribution in respect of that part of the salary or wages of the employee that exceeds the maximum contribution base in the financial year that commences after the notice of revocation is given to the employer. Part 3 Miscellaneous 13 Removal of employers from Act (1) This section applies where an employer is removed from Schedule 1. (2) On an employer being so removed, an employee of the employer is taken to have ceased to be employed by an employer for the purposes of this Act. 14 Trust deed to continue previous firefighter disability arrangements (1) The trust deed or rules made under the trust deed must make provision for or with respect to the continuation of arrangements, in force immediately before the registration day for FTC, relating to the payment of amounts from the Fund in respect of death or incapacity benefits under the firefighters award, and the subsequent reduction or application of benefits, and other ancillary matters. (2) Provision made for the purposes of this section may be in general or particular terms and may be by means of special arrangements permitted to be entered into under the trust deed or rules under the trust deed. (3) Nothing in this section requires the continuation of any arrangement at any time after the relevant provisions of the firefighters award cease to have effect. (4) Nothing in this section requires the trust deed or rules under the trust deed to make provision for or with respect to a matter that is inconsistent with the Superannuation Industry (Supervision) Act 1993 of the Commonwealth or any regulations or other instruments made under that Act. (5) In this section— death or incapacity benefit means a benefit payable to or in respect of a firefighter under the firefighters award if— (a) the firefighter dies, or (b) the firefighter suffers total and permanent incapacity or partial and permanent incapacity. firefighter means— (a) a member of the permanent fire brigade, or (b) a member of a retained fire brigade, under the Fire and Rescue NSW Act 1989. firefighters award means the Crown Employees (NSW Fire Brigades Firefighting Staff Death and Disability) Award 2003. registration day for FTC means the day on which FTC is taken to be registered as a proprietary company limited by shares for the purposes of section 5H of the Corporations Act 2001 of the Commonwealth. 15 Regulations (1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act. (2) In particular, the regulations may make provision for or with respect to the manner in which notices under this Act are to be given. 16 Savings, transitional and other provisions Schedule 3 has effect. 17 Review of Act (1) The Minister is to review this Act to determine whether the policy objectives of this Act remain valid and whether the terms of the Act remain appropriate for securing those objectives. (2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act. (3) A report of the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years. Schedule 1 Employers (Sections 6 and 7) A Public Service agency within the meaning of the Government Sector Employment Act 2013 NSW Police Force Health Administration Corporation Water Administration Ministerial Corporation Sydney Water Corporation Hunter Water Corporation Australian Museum Trust TransGrid (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) The Corporation constituted under the Superannuation Administration Authority Corporatisation Act 1999 FSS Trustee Corporation SAS Trustee Corporation New South Wales Treasury Corporation Judicial Commission Independent Commission Against Corruption A corporation constituted under the Growth Centres (Development Corporations) Act 1974 Clann Limited Homebush Bay Ministerial Corporation Hunter Valley Catchment Management Trust Justice and Police Museum Limited Waste Recycling and Processing Corporation New South Wales Film and Television Office The Trustees of the Anzac Memorial Building Garvan Institute of Medical Research (limited to those persons— (a) who were employees of that Institute immediately before 6 March 1998, and (b) who were members of the Fund immediately before that date) The New South Wales Teachers' Federation Public Service Association of New South Wales Australian Transport Officers Federation (New South Wales Division) The Water and Sewerage Employees Union (Salaried Division and Wages Division) Australian Railways Union The Australian Tramway and Motor Omnibus Employees' Association Australian Federated Union of Locomotive Enginemen Police Association of New South Wales Trustees of Arakoon State Conservation Area Trustees of Bent's Basin State Conservation Area Trustees of Burrendong State Conservation Area Trustees of Burrinjuck State Conservation Area Trustees of Copeton State Conservation Area Trustees of Lake Glenbawn State Conservation Area Trustees of Grabine State Conservation Area Trustees of Killalea State Conservation Area Trustees of Lake Keepit State Conservation Area Trustees of Wyangala State Conservation Area Sydney Opera House Trust Wentworth Park Trust Zoological Parks Board of New South Wales Roads and Maritime Services State Transit Authority The Hills Centre Limited (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Parramatta Park Reserve Trust Parramatta Stadium Trust Ambulance Service of New South Wales New South Wales Lotteries Corporation Technical and Further Education Commission The Wild Dog Destruction Board Audit Office Lord Howe Island Board New South Wales Casino Control Authority Burrendong Arboretum Trust Government Pricing Tribunal of New South Wales Financial Institutions Commission (limited to those persons— (a) who, being members of the Fund, were employed in the Registry of Co-operatives, Department of Local Government and Co-operatives, immediately before the transfer date specified in the order by which their employment was transferred to that Commission in accordance with clause 3 of Schedule 3 to the Financial Institutions Commission Act 1992, and (b) who did not cease to be members of the Fund by that date) Public Transport Union NSW Branch (limited to— (a) persons who were employed by the Public Transport Union NSW Branch and were members of the Fund on 1 March 1993, and (b) persons who have become employed by that Branch after that date and who were members of the Fund immediately before they became so employed) Sydney Organising Committee for the Olympic Games New South Wales Aboriginal Land Council Hawkesbury-Nepean Catchment Management Trust Newcastle Port Corporation Port Kembla Port Corporation Sydney Ports Corporation Maritime Authority of NSW Port Macquarie Base Hospital (limited to those persons— (a) who were, immediately before 2 November 1994— (i) employees of Hastings District Hospital, Port Macquarie, and (ii) full or optional members of the First State Superannuation Fund, and (b) who, on that date— (i) transferred their employment to Port Macquarie Base Hospital, and (ii) did not cease to be members of that Fund) Great Southern Energy (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Delta Electricity Macquarie Generation Advance Energy (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Australian Inland Energy Water Infrastructure (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) EnergyAustralia (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Integral Energy Australia (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) NorthPower (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Hawkesbury District Health Service Limited (limited to persons— (a) who were, immediately before 7 August 1996, employees of the Hawkesbury District Hospital, Windsor and full or optional members of the First State Superannuation Fund, and (b) who, on that date, transferred their employment to Hawkesbury District Health Service Limited and did not cease to be members of that Fund) Benevolent Society of New South Wales (limited to Genoveva Almeida, Robyn Brooks, Adrian Ford, Caroline Lynn, Lynne Perl, Angela Plant, Elizabeth Sawtell, Beulah Warren, Pauline Wells, Barbara Wittig and Joan Lunz while continually employed by the Society) Olympic Roads and Transport Authority Australian Prudential Regulation Authority (limited to those persons— (a) who, being members of the Fund or the State Authorities Superannuation Fund or the State Superannuation Fund, were employed by the Financial Institutions Commission immediately before they became employees of the Authority under section 32 of the Financial Sector Reform (New South Wales) Act 1999, and (b) who did not cease to be members of the State Authorities Superannuation Fund or the State Superannuation Fund before they became employees of the Authority) Police Integrity Commission Eraring Energy New South Wales Institute of Sport Parramatta Rail Link Company Pty Limited Catholic Health Care Services Limited (limited to those persons— (a) who were employed at the Bodington Hospital, Wentworth Falls, immediately before 1 September 2001, or (b) who were employed at Lourdes Hospital and Community Health Service immediately before 9 August 2004 and who, on or after that date, transferred their employment to Holy Spirit Dubbo, or (c) who were employees of Mid Western Area Health Service immediately before 1 October 2004 and transferred their employment to Macquarie Care Centre, Bathurst, on that date) Mercy Care Centre Young Limited (limited to those persons who were employed at the Mt St Joseph's Residential Care Facility, Young, immediately before 1 September 2001) The Trustees of the Roman Catholic Church for the Diocese of Lismore (limited to those persons who were employed at the St Joseph's Nursing Home, Lismore, immediately before 1 September 2001) Landcom Pacific National (NSW) Pty Ltd (limited to those persons who were, immediately before 21 February 2002, employees of the Freight Rail Corporation) Pacific National (ACT) Limited (limited to those persons who were, immediately before 21 February 2002, employees of the Freight Rail Corporation) A body corporate constituted under the Local Government Act 1993 as a council or a county council (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) A livestock health and pest authority constituted under the Rural Lands Protection Act 1998 The NSW Local Government Industry Training Committee Incorporated Local Government Association of New South Wales (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) Shires Association of New South Wales (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) Electricity Association of New South Wales (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Electricity Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) Health Services Association of New South Wales Institute of Municipal Management (limited to those employees— (a) who were, on 1 July 1997, employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002) New South Wales Nurses and Midwives' Association State Sports Centre Trust Venues NSW Australian Health Management Group Pty Limited (formerly known as Government Employees Health Club, Government Employees Health Fund Limited and Australian Health Management Group Limited) Keep Australia Beautiful } (limited to persons who were employees of the employer on 7 December 1992) Sydney Credit Union Waverley-Woollahra Destruction Committee (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) Richmond-Tweed Regional Library (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) Richmond-Upper Clarence Regional Library (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997) Health Services Union, being the authority registered under that name on 1 October 2003 as a State industrial organisation of employees under Chapter 5 of the Industrial Relations Act 1996 Northern Area Regional Organisation of Councils (limited to those employees— (a) who were employees referred to in clause 6 (2), (4) or (5) of the Superannuation Administration (Local Government Superannuation Scheme Transitional Provisions) Regulation 1997, or (b) who became employees after 1 July 1997 and before the commencement of the First State Superannuation (Local Government and Energy Employers) Order 2002, not being employees referred to in clause 11 of the Superannuation A