Coal and Oil Shale Mine Workers (Superannuation) Act 1941 (NSW)

Coal and Oil Shale Mine Workers (Superannuation) Act 1941 No 45 An Act to prohibit the employment and the continuance in employment in the coal or oil shale mining industries, and in certain callings related thereto, of certain persons of or above the age of sixty years; to make provision for and with respect to the payment of benefits to such persons and certain other persons; to amend the Widows Pensions Act 1925–1937 and certain other Acts; and for purposes connected therewith. Part 1 Preliminary 1 Name of Act, commencement and construction (1) This Act may be cited as the Coal and Oil Shale Mine Workers (Superannuation) Act 1941. (2) (Repealed) (3) (a) Parts 1 and 5 shall commence on the day upon which the assent of His Majesty to this Act is signified. (b) Parts 2, 3 and 4 shall commence upon such day or days as may be appointed by the Governor and notified by a proclamation published in the Gazette. A different day may be so appointed and notified in respect of any of such Parts. (4) This Act shall be read and construed subject to the Commonwealth of Australia Constitution Act and so as not to exceed the legislative power of the State to the intent that where any provision of this Act or of the regulations or the application thereof to any person or circumstance is held invalid, the remainder of this Act or of such regulations and the application of such provision to other persons or circumstances shall not be affected. (5) This Act shall be read and construed with the Work Health and Safety (Mines and Petroleum Sites) Act 2013. 1A Contributions and benefits payable on and after 3 January 1993 (1) On and after 3 January 1993, a mine worker is not entitled or liable to contribute to the Old Fund or the Amalgamated Fund, whether or not the mine worker was, or was entitled to be, a contributor before that date. (1A) Subsection (1) does not prevent a mine worker from making voluntary contributions to the Amalgamated Fund as provided by the AUSCOAL Trust Deed. (2)–(4) (Repealed) 2 Definitions (1) In this Act, unless the context or subject-matter otherwise indicates or requires— Accumulation Fund means the New South Wales Coal and Oil Shale Mining Industry (Superannuation) Accumulation Fund referred to in the Restructuring Agreement. actuary means a person, appointed by the Corporate Trustee, who is a member of the Institute of Actuaries of Australia. Amalgamated Fund means the AUSCOAL Superannuation Fund, that was formerly named the COALSUPER Retirement Income Fund as referred to in section 18. AUSCOAL Rules means the AUSCOAL Superannuation Fund Rules, that were formerly named the COALSUPER Rules, (as amended or substituted from time to time) included in the AUSCOAL Trust Deed that govern the occupational superannuation schemes to which the AUSCOAL Trust Deed relates. AUSCOAL Trust Deed means the AUSCOAL Superannuation Fund Trust Deed, that was formerly named the COALSUPER Trust Deed (as amended or substituted from time to time) for the reconstitution of the occupational superannuation schemes referred to in section 15C (1). COALSUPER Rules means the rules (as amended or substituted from time to time) included in the COALSUPER Trust Deed that govern the occupational superannuation schemes to which the COALSUPER Trust Deed relates. COALSUPER Trust Deed means the trust deed (as amended or substituted from time to time) for the reconstitution of the occupational superannuation schemes referred to in section 15C (1). Column 5 pension means a pension payable under the AUSCOAL Rules at the rate specified (as at 31 December 1999) in Column 5 of Appendix 3A to those Rules. complying fund means a complying superannuation fund within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. Corporate Trustee means the body incorporated as a result of arrangements made under section 4 of the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994. COSAF Fund means the superannuation fund referred to in clause 2.1 of the COSAF Trust Deed. COSAF Trust Deed means the trust deed establishing the COSAF Superannuation Fund, made on 6 October 1988 by COSAF Pty Limited (ACN 003 566 989) and as amended from time to time, and includes the rules contained in the Schedule to that deed. Dormant member means a former contributor to the Old Fund— (a) whose last period of service as a mine worker ceased due to retrenchment, resignation or dismissal, and (b) who has not taken any benefit from the Old Fund or the Amalgamated Fund, and (c) who may become entitled— (i) for the purposes of the Amalgamated Fund, to be credited with past service on being re-employed as a mine worker, or (ii) to a payment from the Amalgamated Fund. Exercise a function includes perform a duty. Function includes a power, duty or authority. member of Part 3 of the Fund means a person who is a Member of Part 3 of the Fund within the meaning of the AUSCOAL Trust Deed. Mine worker means— (a) a person engaged in the coal or oil shale mining industries in New South Wales who was, immediately before the commencement of the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1990, contributing to the Old Fund, or (b) a person who, after that commencement, becomes employed by an owner in or about a coal or oil shale mine in New South Wales (whether underground or above ground), or (c) a person who is engaged in the coal or oil shale mining industries, either before or after that commencement, and in respect of whom the Corporate Trustee has made a determination under section 15B declaring the person to be a mine worker for the purposes of this Act, or (d) a person in respect of any period during which the person was the holder of a permit in force under section 2E (as in force before the commencement of Schedule 3 to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994) authorising the person to be employed in some industry, other than the coal or oil shale mining industries, specified in the permit, or (e) a person who is engaged in work declared by a determination in force under section 2J to be mine work, but does not include such a person who is ordinarily so engaged or employed for less than 10 hours per week. Old Fund means the Coal and Oil Shale Mine Workers Superannuation Fund established under section 18 of this Act (as in force before the commencement of Schedule 2 to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994). Owner means any person who is the immediate proprietor, the lessee or the occupier of a coal or oil shale mine, and includes— (a) where a coal or oil shale mine is being worked by a person who is an official liquidator, receiver, manager or other person authorised by law to carry on the business of working the mine—that person, (b) where a coal or oil shale mine belongs to, or is held in trust for, the Crown, a department of the Government or a statutory authority—the Crown, the department or the statutory authority, as the case may be, and (c) where a coal or oil shale mine is being worked by a contractor—in addition to any other person, the contractor, but, except as provided by subsection (7), does not include a person who merely receives a royalty, rent or fine from a coal or oil shale mine or is merely holding the property on or in which a coal or oil shale mine is situated subject to any lease, grant or licence to, or contract with, another person for the working of the coal or oil shale mine. Part 2 of the Fund means Part 2 of the Amalgamated Fund. Part 3 of the Fund means Part 3 of the Amalgamated Fund. pension CPI contribution means a contribution calculated at the pension CPI rate. pension CPI rate means the rate determined under section 19AD. Prescribed means prescribed by this Act or the regulations. Reciprocating State means Queensland, Tasmania or Western Australia. Reference Rate, as at any particular time, means such rate as the Corporate Trustee declares in a determination under subsection (5) in force as at that time to be the specified rate for the purposes of this definition. Editorial note— For determinations under subsection (5), see the Historical notes at the end of this Act. Regulations means regulations made under this Act. Restructuring Agreement means the New South Wales Coal Mining Industry Statutory Fund (Restructuring) Agreement originally made on 25 June 1992 between the parties set out in Part 1 of Schedule 3, as varied by the 1999 Superannuation Agreement. Subsidy Fund means the Coal and Oil Shale Mine Workers Compensation Subsidy Fund established by section 19C. Superannuation fund means a scheme, fund or arrangement (whether or not established by an Act) under which any superannuation or retirement benefits are provided by an employer. 1999 Superannuation Agreement means the 1999 Superannuation Agreement made on 23 December 1999 between the parties set out in Part 3 of Schedule 3. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) For the purposes of this Act, a mine worker is retrenched if the employment of the mine worker is terminated and the termination is stated by the employer to have taken place because— (a) the employer no longer required the services of the mine worker and does not propose to fill the position then held by the mine worker, or (b) the work that the mine worker was employed to perform has been completed, or (c) the amount of work that the employer required to be performed has diminished and it has accordingly become necessary to reduce the number of employees employed by the employer, or (d) the mine worker has accepted an offer by the employer of terms on which retrenchment of the mine worker was proposed by the employer on a ground referred to in paragraph (a), (b) or (c). (2) A person shall, for the purposes of this Act, be deemed to be "engaged in the coal or oil shale mining industries"— (a) for any period (whether before or after the commencement of Part 2) during which the person is employed as a mine worker, (b) for any period (whether before or after the commencement of Part 2) during which the person is unemployed, if, immediately before the date upon which the person so became unemployed— (i) the person was employed (whether underground or above ground) in or about a coal or oil shale mine in New South Wales by the owner of the mine, or (ii) the person was a member of a permanent rescue corps established at a central rescue station pursuant to the Mines Rescue Act 1925, or (iii) the person was a member of the New South Wales Mines Rescue Brigade established under the Mines Rescue Act 1994— Provided that a person shall not be deemed to be "engaged in the coal or oil shale mining industries" by reason of the operation of paragraph (b) unless the Corporate Trustee is satisfied that the person's employment was terminated otherwise than for misconduct and that the person's failure to obtain other employment was through no fault on the person's part— Provided further that the period for which any such person is unemployed shall be deemed not to be interrupted by periods during which the person is employed upon relief work or upon other work of a casual nature, (c) for any period (whether before or after the day on which the assent of Her Majesty to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1957 is signified) during which the person is employed pursuant to a request by the Corporate Trustee to accept available employment under and in accordance with section 19F. (3), (4) (Repealed) (5) Where there is a variation in the weekly rate of wage prescribed for Group B of the Coal Mining Industry (Production and Engineering) Interim Consent Award, September 1990 (or such other rate as may be agreed upon by the parties to the Restructuring Agreement), the Corporate Trustee— (a) shall, in and by a determination published in the Gazette as soon as practicable after the variation is made— (i) subject to subparagraph (ii)—specify that rate as so varied and declare it to be the specified rate for the purposes of the definition of Reference Rate in subsection (1), or (ii) where there are 2 or more such rates so prescribed—specify one of those rates as so varied and declare it to be the specified rate for the purposes of that definition, and (b) shall, in the determination, specify the date as from which the determination takes effect, being the date as from which the specified rate became or becomes payable as wages to loadermen or any class of loadermen, and any previous determination made under this subsection shall not be in force in respect of any period commencing on or after the date so specified. (6) (Repealed) (7) For the purposes of sections 19 and 19D, if a mine worker is employed by a person who is not an owner as defined in subsection (1), a reference to an owner includes a reference to the employer of the mine worker. (8) Subsection (7) does not apply to a mine worker who is— (a) a check-weigher or district check inspector, or (b) an elected official of an industrial or trade union of employees or of an association of employees registered as an organisation under the Industrial Relations Act 1988 of the Commonwealth, of which union or organisation the membership is principally confined to persons who are employed in or about a coal or oil shale mine (whether underground or above ground). (8A) On and after the relevant date (as defined in section 14PA (7)), subsection (7) of this section ceases to apply to a mine worker who is an officer of the Department of Mineral Resources (or its successor) and to a person who is a member of or employed by the Joint Coal Board. (9) Notes included in this Act do not form part of this Act. 2A Cessation of legal effect of agreements The following agreements do not have any legal effect from the commencement of this section insofar as they require contributions to be made to Part 2 or Part 3 of the Amalgamated Fund as referred to in the AUSCOAL Trust Deed or to another fund to which the mine worker has elected to contribute— (a) the Restructuring Agreement, (b) the 1999 Superannuation Agreement, (c) the Industrial Agreement made on 6 September 1988 between N.S.W. Colliery Proprietors' Association Limited and 8 trade unions, (d) the Industrial Agreement made on 14 May 1991 between New South Wales Coal Association, Cornwall Coal Company No Liability and 4 trade unions. Note— New South Wales Coal Mining Industry Statutory Superannuation Fund (Salary Sacrifice) Agreement (ODN No 292 of 1992) is revoked by order of the Australian Industrial Relations Commission dated 14 May 2008. 2B–2I (Repealed) 2J Further extension of the definition of mine worker (1) Where any work is performed or to be performed in or about or in connection with a coal or oil shale mine in New South Wales, whether in pursuance of a contract or otherwise, the Corporate Trustee may, from time to time, by determination in writing (which determination is, in this section, referred to as the determination), declare that that work or so much of that work as is specified or described in the determination shall be mine work for the purposes of this section. Editorial note— For determinations under this subsection see the Historical notes at the end of this Act. (2) The specification or description of any work in the determination may be made by reference to such matters as the Corporate Trustee thinks fit. (3) Without affecting the generality of subsection (2), work may be specified or described in the determination by reference to the work performed or to be performed by a person or class of persons specified or described therein. (4) A determination shall take effect from the day specified therein as the date of commencement of the determination. (5) The Corporate Trustee shall not, in the determination, specify a day under subsection (4) that is earlier than three months before the date of the determination unless the Corporate Trustee is satisfied that in all the circumstances of the case it is just and reasonable to do so. (6) Subject to this section, the Corporate Trustee may, in the determination, specify a day under subsection (4) that is before or after the commencement of section 2 of the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1971. (7) As from the date of commencement of the determination, this section applies to a person who is engaged in mine work, whether or not the person is or would, but for subsection (8), be a mine worker by virtue of any other provision of this Act, but does not apply to a person who is ordinarily so engaged for less than 10 hours per week. (8) During any period that a person is a mine worker by virtue of this section and the operation of the determination the person shall be deemed, notwithstanding anything elsewhere contained in this Act, not to be a mine worker during that period by virtue of any other provision of this Act. (9) Without affecting the generality of any other provision of this section, the Corporate Trustee may, in the determination, declare that a person specified or described therein, or a person of a class of persons specified or described therein, is not a mine worker by virtue of this section and the operation of the determination, and the declaration shall have effect according to its tenor. (10)–(10B) (Repealed) (11) As from the date of commencement of the determination the provisions of this Act shall, subject to this section, apply to and in respect of persons who are mine workers by virtue of this section and the operation of the determination— Provided that the provisions of this Act in their application to and in respect of any such person shall be deemed to have been modified to the following extent, that is to say—references, express or implied, in this Act, to the commencement of Part 2, shall be construed as references— (a) where the date of the determination is later than the date of commencement of the determination—to the date of the determination, or (b) in any other case—to the date of commencement of the determination. (12) For the purposes of this Act, all mine work shall be deemed to be work in or about a coal or oil shale mine. (13), (14) (Repealed) (15) In this section— date of commencement of the determination means the day specified in the determination as the date of commencement thereof. date of the determination means the date on which the determination is made. mine work means any work declared to be mine work under subsection (1). 2K Notices under section 2J (1) Before any work is commenced by a person other than a mine worker in or about, or in connection with, a coal or oil shale mine in New South Wales, the owner must give to the Corporate Trustee a written notice that complies with subsection (2). Maximum penalty—5 penalty units for each day in any period of days during which this subsection is not complied with. (2) The notice is to contain the following particulars— (a) the name and address of the employer, or proposed employer, of the person, (b) the proposed date of commencement of the work, (c) the terms of any contract for doing the work, (d) the number of persons who will be doing the work, (e) the nature of the work, (f) each location at which it is proposed that the work be done, (g) the number of persons by whom the work is proposed to be performed who are, to the knowledge of the owner, members of an association of employees registered as an organisation of employees under Part IX of the Industrial Relations Act 1988 of the Commonwealth, (h) the period for which it is proposed that the work be performed. 3–4 (Repealed) 4A Special provisions for persons engaged in the coal mining industry in a reciprocating State (1) In this section— (a) a reference to the applicable provisions is a reference to sections 3 (8) and 7 (1A), and to Division 4 of Part 2, except section 14P, and (b) a reference to a person to whom this section applies is a reference to a person whose last period of service as a mine worker was in a reciprocating State, who has had prior service in the coal or oil shale mining industries in New South Wales and— (i) who has applied for a benefit under this Act, or (ii) who has died and in respect of whom application has been made for such a benefit. (2) For the purposes of the applicable provisions and of qualifying for a benefit under this Act, a person to whom this section applies is taken to have been a mine worker if he or she— (a) is or was, on or after 3 January 1993, employed in the coal mining industry in a reciprocating State, and (b) by the operation of section 2 (2), would be taken to have been engaged in the coal or oil shale mining industries had the employment been in New South Wales, but, for the purpose of calculating any benefit, industry service in New South Wales only (and no other service) is to be taken into account. (3) The provisions of section 3 (1), (3) and (4) apply to a person taken by this section to have been a mine worker and so apply as if a reference in those provisions to New South Wales included a reference to a reciprocating State. (4) Section 6 applies to a person taken by this section to have been a mine worker and so applies as if— (a) a reference in that section to having been continuously resident, or resident, in New South Wales during a specified period included a reference to any period during which the person was continuously resident, or resident, in a reciprocating State, and (b) a reference in that section to having been continuously engaged, or engaged, in the coal or oil shale mining industries in New South Wales during a specified period included a reference to any period during which the person was continuously employed, or employed, in the coal mining industry in a reciprocating State, and (c) a reference in that section to having actually worked in or about a coal or oil shale mine in New South Wales for a specified period included a reference to any period during which the person worked in or about a coal mine in a reciprocating State. (5) If a person dies or is incapacitated while employed in the coal mining industry in a reciprocating State, the same benefit is payable to the person or persons entitled on the death or incapacity as would have been payable if the deceased or incapacitated person had retired on the date of death or incapacity. Part 2 5–14V (Repealed) Part 3 The Corporate Trustee 15 Functions of Corporate Trustee The Corporate Trustee has the functions conferred or imposed on it by and under this or any other Act. 15A (Repealed) 15B Power of Corporate Trustee to make determinations declaring certain persons to be mine workers for the purposes of this Act (1) The powers of the Corporate Trustee include a power to make determinations declaring persons engaged in the coal or oil shale mining industries to be mine workers for the purposes of this Act. Editorial note— For determinations under this subsection see the Historical notes at the end of this Act. (2), (3) (Repealed) (4) A determination under this section takes effect— (a) from and including a date specified in the determination (which may be the date of the determination or a date before or after that date but not earlier than the date on which the person to whom the determination relates was first engaged in the coal or oil shale mining industries), or (b) if no such date is specified—from and including the date of the determination. (5) The Corporate Trustee may not make a determination under subsection (1) in respect of a person who is ordinarily engaged in the coal or oil shale mining industries for less than 10 hours per week. 15C Corporate Trustee to maintain trust deed and governing rules (1) On the dissolution of the Coal and Oil Shale Mine Workers' Superannuation Tribunal— (a) the COALSUPER Trust Deed (including the COALSUPER Rules) takes effect as the trust deed and rules of the Corporate Trustee as if it had been executed by the parties named in the Deed, and (b) the occupational superannuation schemes established by this Act and by the COSAF Trust Deed are reconstituted under the COALSUPER Trust Deed for the benefit of— (i) mine workers and dormant members, and (ii) the members of the COSAF Fund, and (iii) the dependants of mine workers, dormant members and members of the COSAF Fund, and (iv) persons who, immediately before the dissolution of the Tribunal, were receiving or entitled to receive pensions under this Act. Note— The COALSUPER Trust Deed (including the COALSUPER Rules) has been renamed the AUSCOAL Superannuation Fund Trust Deed (including the AUSCOAL Superannuation Fund Rules) by amendment of the Trust Deed and Rules. (2) The Corporate Trustee must at all times ensure— (a) that the AUSCOAL Trust Deed (including the AUSCOAL Rules) is consistent with the requirements of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth for a regulated superannuation fund within the meaning of that Act, and (b) that that Deed is consistent with the requirements of that Act relating to a corporate trustee of such a fund. (3) The Corporate Trustee must also ensure that the AUSCOAL Trust Deed, if amended or substituted, continues to comply with this section. (4) The AUSCOAL Trust Deed must— (a) prescribe the functions of the Corporate Trustee in relation to the reconstituted superannuation schemes, and (b) provide for the operation, management and investment of the Amalgamated Fund, and (c) include the AUSCOAL Rules, and (d) provide for such other matters as may be necessary for the effective and efficient operation of those schemes. (4A) The AUSCOAL Trust Deed must also empower the Corporate Trustee— (a) to determine the priority of claims for payment out of the Amalgamated Fund, on the winding-up of the Amalgamated Fund (or on the occurrence of any event that, in the opinion of the Corporate Trustee, makes a determination of the priority of claims on that Fund necessary or appropriate), of pensions, lump sum benefits, refunds of contributions and any other benefits required or authorised to be paid under this Act or under the AUSCOAL Trust Deed. (b) (Repealed) (5) The AUSCOAL Rules must— (a) provide for determining which persons are eligible for membership of a reconstituted superannuation scheme to which those Rules apply, and (b) prescribe the procedure for eligible persons to become members of such a scheme, and (c) determine the liability for payment of contributions to such a scheme, and (d) provide for the payment of those contributions, and (e) prescribe benefits that are payable under the Rules on the retirement of members of such a scheme (including retirement on the grounds of physical or mental incapacity) and provide for the payment of those benefits, and (f) prescribe the procedure for retirement of mine workers on the grounds of physical or mental incapacity (including the assessment of incapacity), and (g) prescribe benefits that are to be payable under such a scheme to members who are retrenched from their employment as mine workers and provide for the payment of those benefits, and (h) prescribe benefits that are to be payable to dependants of members and former members of such a scheme on the death of those members or former members and provide for the payment of those benefits, and (i) in the case of persons who are not entitled to a retirement or other benefit on ceasing to be members of such a scheme—prescribe circumstances in which those persons' contributions (if any) are refundable, and (j) provide for a benefit under such a scheme to be preserved until a contingency arises on which the benefit is payable, and (k) provide for a preserved benefit under such a scheme to be transferred to another superannuation fund in circumstances specified in the Rules, and (l) provide for a benefit in another superannuation fund to be transferred to such a scheme in specified circumstances, and (m) prescribe the procedure for making a claim for a benefit under the Rules and for meeting such a claim, and (n) include such other provisions as the Corporate Trustee thinks necessary for the effective and efficient operation of the reconstituted schemes and the Amalgamated Fund. (6) The AUSCOAL Trust Deed is invalid to the extent that it is inconsistent with this Act. (7) The Corporate Trustee must ensure that the AUSCOAL Trust Deed does not in any way restrict or remove a right that— (a) a mine worker or a dormant member, or (b) a dependant of a mine worker or dormant member, or (c) a person entitled to a pension under this Act or the AUSCOAL Rules, had when that Deed, or any amendment to or substitution of that Deed, took effect. The AUSCOAL Rules may, however, confer additional rights on such a mine worker, dormant member, dependant or person. (8) (Repealed) 16 (Repealed) 16A Corporate Trustee may delegate its functions The Corporate Trustee may delegate to— (a) a member of its board of directors, or (b) a committee comprising members that include members of its board of directors, or (c) a member of its staff, or (d) a person employed by it under a contract for the performance of services, any of its functions under this Act, other than this power of delegation. 16B–17A (Repealed) Part 4 Funds and contributions 17B Definition In this Part, Approved Company means the company approved by the Minister administering the Coal Industry Act 2001 for the purpose of exercising the function specified in section 10 (1) (l) of that Act. 18 AUSCOAL Superannuation Fund (the Amalgamated Fund) (1) On the commencement of Schedule 2 to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994— (a) the COSAF Fund is amalgamated with the Coal and Oil Shale Mine Workers Superannuation Fund (as established under this section as in force before that commencement), and (b) the fund so established is continued with the name COALSUPER Retirement Income Fund ("the Amalgamated Fund"). (2) The Amalgamated Fund is to consist of— (a) all money that, immediately before the commencement of Schedule 2 to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994, was credited to the Coal and Oil Shale Mine Workers Superannuation Fund and the COSAF Fund, and (b) money that is required or authorised to be paid to the Amalgamated Fund by or under this or any other Act or by the COALSUPER Trust Deed. Note— The Amalgamated Fund has been renamed the AUSCOAL Superannuation Fund by amendment of the Trust Deed and Ru