New South Wales: State Authorities Non-contributory Superannuation Act 1987 (NSW)

State Authorities Non-contributory Superannuation Act 1987 No 212 An Act to establish a non-contributory superannuation scheme 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 State Authorities Non-contributory Superannuation Act 1987. 2 Commencement This Act shall commence on 1 April 1988. 3 Definitions (1) In this Act— additional employer contributions account means an account established and maintained under section 10C. additional employer contributions benefit means the additional employer contributions benefit referred to in section 22B. appointed day means 1 April 1988. approved deposit fund means an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. attributed salary, in relation to an employee at any time, means— (a) where the employee is a full-time employee at that time—the salary of the employee at that time, or (b) where the employee is a part-time employee at that time—the salary that would be payable to the employee at that time if employed as a full-time employee. basic benefit means the basic benefit referred to in section 22. benefit means a benefit payable under this Act. Commonwealth co-contribution means a co-contribution made by the Commissioner of Taxation under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 of the Commonwealth. Commonwealth co-contribution account means an account established and maintained under section 10B. Commonwealth co-contribution benefit means the Commonwealth co-contribution benefit referred to in section 22A. Commonwealth taxation law means a law of the Commonwealth that provides for the levying and collection of a tax. contribution period means a named month or such other period as may be prescribed in relation to any class of persons or circumstances. deferred annuity means a deferred annuity within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations of the Commonwealth. employee means a person who is employed by an employer, but does not include an excluded person referred to in Schedule 2. employer means— (a) the Crown, the Government or a Minister or other member of Parliament, or (b) an authority specified in Schedule 1, and a reference to employment with an employer includes a reference to employment with successive employers. executive officer means an employee who is— (a) a Public Service senior executive within the meaning of the Government Sector Employment Act 2013, or (b) an employee (not being a Public Service senior executive) of an employer specified in Schedule 1 and who holds an office designated by the Secretary of the Treasury as the office of an executive officer, or (c) a police executive officer, or (d) an office holder nominated for the purposes of section 11A of the Statutory and Other Offices Remuneration Act 1975. (e) (Repealed) exit date, in relation to an employee, means the day on which the employee ceases employment with an employer, that cessation of employment being— (a) the only such cessation, or (b) where there has been more than one such cessation of employment of the employee—the later or latest of those cessations of employment. family law superannuation legislation has the same meaning as it has in Part 4D. family law superannuation payment has the same meaning as it has in Part 4D. First State Superannuation Fund has the same meaning as Fund has in the First State Superannuation Act 1992. FTC means the FSS Trustee Corporation established under the Superannuation Administration Act 1996. full-time employee means an employee whose salary ratio is 1. irregular employee is an employee who is neither a full-time employee nor a part-time employee, and includes an employee who is deemed by section 7 to be an irregular employee. non-employee spouse has the same meaning as it has in Part 4D. part-time employee means an employee whose salary ratio is less than 1 but at least 0.1. police executive officer means an executive officer within the meaning of Part 5 of the Police Act 1990. relevant Commonwealth superannuation standard means a standard that would be applicable under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth if the Fund was a regulated superannuation fund under that Act. resign, in relation to an employee, means cease to be employed by an employer before reaching the age of 55 years, otherwise than on account of— (a) death, or (b) invalidity, where STC is satisfied— (i) that the ceasing to be employed was due, directly or indirectly to the permanent physical or mental incapacity of the employee (not caused by any act or default of the employee intended to produce that incapacity), and (ii) that the employee is permanently unable, by reason of that incapacity, to be engaged in, or to be employed in, any remunerative occupation in which, in the opinion of STC, it would otherwise be reasonable to expect the contributor to engage. retire means cease (otherwise than by reason of death) in any manner to be employed by an employer on or after reaching the age of 55 years. retrenchment, in relation to an employee, means the termination of the employment of the employee with an employer where the employment is expressed by the employer to be— (a) compulsorily terminated by the employer on the ground that— (i) the employer no longer requires the employee's services and, on termination of the employee's employment, does not propose to fill the employee's position, or (ii) the work that the employee was engaged to perform has been completed, or (iii) the amount of work that the employer requires to be performed has diminished and, due to that fact, it has become necessary to reduce the number of employees employed by the employer, or (b) terminated as a result of the acceptance by the employee of an offer by the employer of terms of retrenchment made on a ground specified in paragraph (a). salary, in relation to an employee, means salary of the employee, determined in accordance with section 4 or 4A and expressed as an annual rate. salary ratio, in relation to an employee at any time during a contribution period, means the number ascertained by dividing the salary of the employee at the commencement of that contribution period by the attributed salary of the employee at that commencement. section 16A employer contribution means a contribution made by an employer under section 16A. spouse of a deceased employee or deceased former employee means the surviving spouse of the employee or former employee. STC means the SAS Trustee Corporation continued under the Superannuation Administration Act 1996. STC Act means any of the following Acts— (a) Police Regulation (Superannuation) Act 1906, (b) Superannuation Act 1916, (c) Local Government and Other Authorities (Superannuation) Act 1927, (d) Transport Employees Retirement Benefits Act 1967, (e) Police Association Employees (Superannuation) Act 1969, (f) New South Wales Retirement Benefits Act 1972, (g) Public Authorities Superannuation Act 1985, (h) State Public Service Superannuation Act 1985, (i) State Authorities Non-contributory Superannuation Act 1987, (j) State Authorities Superannuation Act 1987. superannuation fund has the same meaning as it has in the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. superannuation scheme 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. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) A reference in this Act to an authority where used in or in connection with the definition of employer is a reference to an authority, organisation, corporation, person or other entity. (3) If the inclusion of an employer in Schedule 1 is expressed to be limited in any respect, this Act has effect in relation to the employer subject to the limitation. (4) Notes included in this Act do not form part of this Act. 4 Salary (1) For the purposes of this Act, salary, in relation to an employee (other than an executive officer) means the sum of— (a) the remuneration, salary or wages payable in money to the employee in the employee's capacity as an employee, as reported to STC from time to time by the employee's employer, including— (i) a loading in respect of any shift allowance, as determined in accordance with the regulations, and (ii) other allowances payable in money that are of a kind included within the value of leave paid on termination of employment, and (iii) weekly workers compensation paid to the employee as from a date determined by STC under subsection (1B), but not including the excluded amounts or allowances referred to in subsection (2), and (a1) if salary sacrifice contributions under an STC Act are made in respect of the employee, the cost of the contributions, and (b) if approved employment benefits are provided to the employee, the cost of providing the approved employment benefits, as determined by the Minister, with the concurrence of the Treasurer. (1A) The weekly workers compensation to be treated as salary for the purposes of this Act does not include any amount by which the aggregate of— (a) the weekly workers compensation paid to an injured employee, and (b) the salary actually paid to the employee while partially incapacitated, exceeds the salary that the employee would probably have been earning but for the injury (assuming the employee had continued to be employed in the same or some comparable employment). (1B) STC may determine a date as from which weekly workers compensation paid to an employee is to be treated as salary for the purposes of this Act, being a date not earlier than— (a) 1 April 1988 (the date of commencement of this Act), or (b) if the liability to pay weekly workers compensation in respect of the employee first arose on a date later than 1 April 1988—that later date. (1C) Despite subsection (1), the regulations may provide that the salary of an employee or class of employees (other than an executive officer) for the purposes of this Act is to be determined in the manner prescribed by the regulations. (1D) A regulation may be made under subsection (1C) only if the Minister and the Treasurer certify in writing that— (a) there has been a change in the basis on which the remuneration of the employee or class of employees is determined, and (b) the effect of that change is to change the basis of remuneration to an annualised one, and (c) the effect of the regulation is not to reduce the benefits that would have accrued under this Act to the employee or class of employees, had there been no change in the basis of remuneration, and (d) the making of the regulation and associated arrangements will not result in a greater financial cost to the Government than if the regulation and associated arrangements were not made. (2) The excluded amounts or allowances are— (a) an amount paid for overtime or as a bonus, or an allowance instead of overtime, (b) except to the extent determined in accordance with the regulations, as referred to in subsection (1) (a)—an amount paid as shift allowance, (c) except to the extent that this section otherwise provides—a relieving allowance, (d) an expense allowance or an allowance for travelling, subsistence or other expenses, (e) an equipment allowance, (e1) in respect of any period during which the employee takes extended leave (or leave in the nature of extended leave) otherwise than on full pay, such part of the remuneration received by the employee as exceeds the salary (within the meaning of subsection (1)) that he or she would have received had he or she taken leave on full pay, (f) an amount paid for rent or as a residence, housing or quarters allowance, and (g) an amount of weekly workers compensation excluded by subsection (1A). (3) If an employee's employer, or a person authorised to do so on behalf of the employer, certifies in writing to STC that a relieving allowance to be, or being, paid to the employee in the employee's capacity as an employee is likely to be paid for a continuous period of 1 year (whether or not the period is partly before the date of the certificate), the allowance is, as from— (a) the date on which the certificate is lodged with STC, or (b) the date from which the allowance becomes payable, whichever is the later, salary for the purposes of this Act. (4) If a relieving allowance has been paid to an employee in the employee's capacity as an employee for a continuous period of 1 year that ends after the appointed day and, during that period, the allowance has not been treated as part of the employee's salary in accordance with subsection (3), the allowance shall, as from the expiration of that period of 1 year, be treated as part of the employee's salary while its payment to the employee continues. (4A) For the purposes of subsection (4), a reference to a continuous period of 1 year in relation to a contributor who is employed in an educational institution is to be read as a reference to the academic year of the institution. (5) If an employee is on secondment to another employer, the salary of the employee for the purposes of this Act is the salary paid or payable to the employee by the other employer. (6) The Governor may, by order in writing, declare unconditionally, or subject to conditions, that subsection (7) applies— (a) to an employee specified in the order who is on secondment but not to another employer, and (b) generally during the period of that secondment, or during such period as is specified in the order, being, in either case, a period commencing before, on or after the date of the order. (7) During the period in which this subsection is declared pursuant to subsection (6) to apply to an employee on secondment, the employee's salary shall, for the purposes of this Act, be that paid or payable in respect of the employment to which he or she is seconded. (8) In this section— academic year, in relation to an educational institution, means a continuous period commencing on the first day of any academic term of the institution and ending on the day before the first day of the corresponding academic term in the following calendar year. approved employment benefit means a benefit provided to an employee at the cost of the employee's employer (being a benefit of a private nature) that is approved by the Minister, with the concurrence of the Treasurer, for the purposes of this section in relation to the employee or a class of employees of which the employee is a member. shift allowance means an allowance paid to an employee in respect of shift work performed by the employee, and includes amounts paid as penalty rates. weekly workers compensation, in relation to an employee, means weekly payments of compensation under the Workers Compensation Act 1987 (or the provisions of the Workers Compensation Act 1926 as applied by that Act) payable to the employee because the employee is partially incapacitated for work through injury. 4A Salary of executive officers (1) Definition of salary For the purposes of this Act, the salary of an executive officer is the salary as last nominated or changed in accordance with this section. (2) Nomination of salary on initial and subsequent appointments An amount of salary for the purposes of this Act must be nominated to an executive officer's employer by the officer, on, or as soon as practicable after, being appointed as an executive officer. An amount may also be nominated to the employer by the officer on, or as soon as practicable after, being reappointed, or appointed to another position, as an executive officer. (3) Amount of salary The amount nominated is to be not less than the monetary remuneration payable to the executive officer at the date of nomination and not more than the total value of the remuneration package paid to the officer (less the cost of providing employer's contributions to superannuation, other than salary sacrifice contributions, under any STC Act and any performance-related incentive payment). (4) Failure to nominate salary If an executive officer fails to nominate an amount of salary within 28 days of first being appointed as an executive officer or within such further period as STC may allow, the officer is taken to have nominated an amount of salary that is equal to the monetary remuneration payable to the officer at the end of the applicable period. (5) Reduction in nominated salary An executive officer may, from time to time, by notice to the officer's employer elect to reduce the amount of salary nominated under this section, but not so that the amount is less than the monetary remuneration payable to the officer at the date of the election. (6) Increase in nominated salary An executive officer may, from time to time, by notice to the officer's employer elect to increase the amount of salary 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 officer has increased since the amount of salary was last nominated or changed. (7) Nominations and elections An employer must notify STC of a nomination or election under this section. Any such nomination or election takes effect on the date of notification to STC or on such other date as STC may determine with the consent of the executive officer concerned. (8) Effect of changes in packages Nothing in this section requires the nominated amount of salary to be increased if, because of a variation in the remuneration package of an executive officer or in the proportions of the remuneration package comprising monetary remuneration and employment benefits of the officer, the amount of salary as last nominated or changed for the purposes of this section is less than the monetary remuneration of the officer. (9) Transitional provision relating to nomination of salary by executive officers An executive officer may, within 3 months after the commencement of this subsection, nominate a new amount of salary in accordance with this section if, immediately before the commencement of this subsection, the officer was an executive officer. (10) Monetary remuneration In this section, the monetary remuneration payable to an executive officer is— (a) if the officer is a Public Service senior executive or a police executive officer, the monetary remuneration payable in accordance with the Government Sector Employment Act 2013 or the Police Act 1990, as the case requires, or (b) if the officer is an office holder nominated for the purposes of section 11A of the Statutory and Other Offices Remuneration Act 1975, the remuneration payable to the officer as reduced under that section by the cost of employment benefits provided to the officer, or (c) in the case of any other executive officer, the monetary remuneration payable to the officer. 4B (Repealed) 5 Employees of the Crown etc An employee of the Crown, the Government or a Minister or other member of Parliament shall, for the purposes of this Act, be deemed to be employed by such person or organisation as may be prescribed. 6 Provisions respecting certain employees (1) Members of the NSW Police Force are, for the purposes of this Act, to be taken to be employed in the NSW Police Force by the Crown. (2) (Repealed) 7 Irregular employees If an employer certifies in writing that the employer has reason to believe that an employee of the employer will not continue to be a full-time employee or part-time employee for at least 1 year from the date of the certificate, the employee shall, for the purposes of this Act, be deemed to be neither a full-time employee nor a part-time employee and to be an irregular employee. 8 Persons not subject to Act Schedule 2 has effect. Part 2 Funds 9 Funds etc (1) STC may establish and maintain such funds, accounts and reserves as, in the opinion of STC, are necessary or convenient for the administration of this Act. (2) STC shall cause to be paid to any such fund— (a) contributions made by employers, and (b) income derived from investment of the fund, and any profit made from realisation of any investment of the fund, and (b1) Commonwealth co-contributions paid to STC, and (c) money borrowed for the purposes of the fund, and (d) any fees paid to STC arising under the family law superannuation legislation or Part 4D. (3) STC shall cause to be paid from any such fund— (a) by transfer from the fund to the STC Administration Account maintained under the Superannuation Administration Act 1996 administration costs incurred by STC, including administration costs arising under the family law superannuation legislation or Part 4D, and (b) such amounts as are necessary to satisfy any liability of the fund with respect to tax payable under any Commonwealth taxation law, and (c) the benefits payable under this Act, and (c1) other amounts payable by STC and arising under the family law superannuation legislation or Part 4D, and (d) any other amount payable from any such Fund under this or any other Act, and (e) any amount payable as a debt due to the Commonwealth under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 of the Commonwealth in respect of a Commonwealth co-contribution paid to STC. (4) If a loss is incurred in realising any investment forming part of the assets of a fund maintained under subsection (1), the fund is accordingly reduced by the amount of that loss. 10 Reserves for employers (1) STC shall, in relation to each employer specified in Part 1 of Schedule 1, establish and maintain within a fund managed by STC a separate employer reserve for the purposes of this Act. (2) STC shall, in relation to each of Parts 2 and 3 of Schedule 1, establish and maintain within a fund managed by STC a separate employer reserve for the purposes of this Act. (3) There shall be credited to such an employer reserve the contributions made by the employer or employers to whom the reserve relates and the Commonwealth co-contributions paid to STC in respect of an employee of an employer or employers to whom the reserve relates. (4) There shall be debited to such an employer reserve— (a) the amount of any benefit paid to, or in relation to, an employee who, immediately before the benefit became payable, was an employee of the employer or an employer to whom the reserve relates, and (b) administration costs incurred by STC under the Superannuation Administration Act 1996 in relation to the employer or an employer to whom the reserve relates, and (c) the whole or part (as determined by STC) of an amount arising under the family law superannuation legislation or Part 4D that is paid to, or in respect of, a spouse or former spouse of an employee or former employee who, immediately before the payment, was an employee or former employee of the employer or an employer to whom the reserve relates. (4A) Despite any other provision of this Act, there is to be debited to the Crown employer reserve such amount of the administration costs incurred by STC in respect of the transfer of a preserved benefit under Part 4B as is approved by the Treasurer. (4B) There may be debited to such an employer reserve— (a) the costs incurred by STC in relation to Commonwealth co-contributions paid in respect of an employee of an employer or employers to whom the reserve relates, and (b) any amount payable as a debt due to the Commonwealth under the Superannuation (Government Co-contribution for Low Income Earners) Act 2003 of the Commonwealth in respect of an employee of an employer or employers to whom the reserve relates. (5) If the amount standing to the credit of the employer reserve established for Part 3 of Schedule 1 is insufficient to meet the amounts payable from the reserve, the deficiency shall be recouped from the Consolidated Fund which is, to the necessary extent, appropriated accordingly. (6) STC may, with the concurrence of the Treasurer and after obtaining actuarial advice, adjust the amount credited to an employer reserve by crediting or debiting an amount, if it appears to STC appropriate to do so because of a change in the constitution or nature of an employer. (7) Subsection (6) does not apply to a change in the constitution or nature of an employer because of a Government privatisation initiative or other Government initiative. 10A Additional payments by certain employers (1) If the amount credited to an employer's reserve maintained for an employer specified in Part 1 of Schedule 1 is insufficient to meet the amounts payable from the reserve in respect of the employer, STC may require the employer to pay an amount into the fund that is equal to the deficiency. (2) Any amount that is not paid by an employer within 14 days of written notice of the requirement to pay the amount being given by STC to the employer is a debt owed to STC and may be recovered by STC accordingly. (3) This section does not apply to a change in the constitution or nature of an employer because of a Government privatisation initiative. 10B Commonwealth co-contribution accounts STC must— (a) establish and maintain, within a fund managed by STC to which Commonwealth co-contributions are paid, a separate account in respect of each employee in respect of whom Commonwealth co-contributions are paid to the fund, and (b) credit the Commonwealth co-contributions paid in respect of the employee to that account. 10C Additional employer contributions accounts STC must— (a) establish and maintain, within a fund managed by STC to which section 16A employer contributions are paid, a separate account in respect of each employee in respect of whom such contributions are paid to the fund, and (b) credit the section 16A employer contributions paid in respect of the employee to that account. 11 Adjustment of accounts and reserves for interest etc STC shall, from time to time, adjust each of the accounts and reserves established under this Part at a rate fixed by STC, having regard to the income of the funds of which they form part and such other matters as STC considers relevant. 11A Source of administration costs payments (1) The administration costs payable in respect of the superannuation scheme established under this Act are to be paid from employer reserves established in accordance with this Act. (2) The administration costs payable in respect of preserved benefits are to be paid from employees' accounts established in accordance with this Act, except as provided by section 10 (4A). 12 Funds, accounts and reserves generally (1) There may be credited to any fund, account or reserve established by or under this Act any amount that is required or permitted by or under this or any other Act to be credited to it. (2) There may be debited to any fund, account or reserve established by or under this Act any amount that is required or permitted by or under this or any other Act to be debited to it. 13 Actuarial investigation (1) An investigation as to the state and sufficiency of any of the funds established under this Act shall, as at 30 June 1994 and at the end of each succeeding period of 3 years, be made by an actuary or actuaries appointed by STC. (2) Actuaries appointed under this section shall complete their investigation, and shall report the result to STC, not later than 6 months after the date as at which the investigation is made. (2A) The report referred to in subsection (2) must— (a) include a statement of the value of the assets of the funds established under section 9, and (b) include a statement of any liability for benefit payments that are not expected to be covered by— (i) the assets of those funds, or (ii) any future contributions to, or earnings of, those funds, or (iii) any guarantee by the Government or by any of its agencies, or (iv) an appropriation in respect of those funds. (3) STC shall, not later than 1 month after it receives a report under this section, forward the report to the Minister with such comments as it thinks fit. (4) The Minister may, in relation to a particular investigation, extend or further extend the period referred to in subsection (2) if the Minister considers that special circumstances exist to justify an extension or further extension. (5) The Minister may, in relation to a particular investigation, extend or further extend the period referred to in subsection (3) if the Minister considers that special circumstances exist to justify an extension or further extension. Part 3 Contributions by employers 14 Contributions by employer under Part 1 of Schedule 1 (The Crown and other employers) Where an employee is employed by an employer specified in Part 1 of Schedule 1, the employer shall pay to STC an amount equal to a percentage of the salary of the employee, being a percentage determined by STC, in relation to the employer, with the concurrence of the Treasurer. 15 Contributions by employer under Part 2 of Schedule 1 (Local government and other authorities) (1) If an employee is employed by an employer specified in Part 2 of Schedule 1, the employer must pay to a fund managed by STC contributions at a rate determined by STC. (2) The rate is to be determined by STC with the concurrence of the Treasurer and after obtaining actuarial advice. (3) In determining the contributions payable by an employer specified in Part 2 of Schedule 1, STC is to have regard to the amount required to meet the full costs of the liabilities under this Act of all employers specified in Part 2 of Schedule 1. (4) STC may, with the concurrence of the Treasurer, require any such employer to pay into the fund additional contributions for a specified period if it appears to STC that there is insufficient money in the reserve for employers specified in Part 2 of Schedule 1 to meet the employers' liabilities under this Act. 16 Contributions by employer under Part 3 of Schedule 1 (Hospitals and other bodies) Where an employee is employed by an employer specified in Part 3 of Schedule 1, the employer shall pay to STC an amount equal to a percentage of the salary of the employee, being a percentage determined by STC, in relation to the employer, with the concurrence of the Treasurer. 16A Additional contributions by certain public sector employers (1) A relevant employer must pay to a fund managed by STC, for each relevant employee, a contribution equivalent to 0.25% of the salary of the employee for each financial year, or part of a financial year, for which the employee is an employee. (2) A contribution under this section is in addition to any other contribution payable by an employer under this or any other Act. (3) The regulations may prescribe a percentage to replace the percentage in subsection (1). When such a replacement percentage is prescribed, it applies for the purposes of subsection (1) in place of the percentage that it replaces, from the start of the financial year (or years) specified in the regulation. (4) In this section— relevant employee means an employee— (a) who is subject to a limitation on wage increases under section 146C of the Industrial Relations Act 1996 or section 6AA of the Statutory and Other Offices Remuneration Act 1975, or (b) who is or is of a class declared by the regulations to be a relevant employee for the purposes of this definition. However, relevant employee does not include an employee— (a) while covered by a State industrial instrument under which payments by the employer to a superannuation fund of the employee as a consequence of the enactment of, or amendments to, the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth do not form part of the salaries or wages provided for in the industrial instrument, or (b) who is or is of a class declared by the regulations not to be a relevant employee for the purposes of this definition. relevant employer means an employer— (a) who employs a relevant employee in the employee's capacity as a relevant employee, or (b) who is or is of a class declared by the regulations to be included in this definition. 17 Contributions for irregular employees (1) The regulations may make provision for or with respect to the contributions to be paid to STC in respect of irregular employees. (2) Any such regulations may have effect despite anything in section 14, 15, 16 or 16A. 18 Basis and making of contributions (1) Contributions under this Part shall be calculated on the basis of contribution periods, and the contributions payable in respect of a contribution period shall be paid to STC within 7 days after the last day of the contribution period to which they relate. (2) The regulations may make provision for or with respect to the determination of salary for the purposes of this Part, where part-time work, irregular employment, leave without pay, secondment or a break in employment is involved. 18A Acceptance of contributions (1) Despite any other provision of this Act, an employer is not required to make a contribution to the fund in respect of an employee during any period specified by STC for which STC determines that it must not accept contributions in respect of the employee. (2) STC may make such a determination only if it is of the opinion that it is necessary to do so in order to be consistent with a relevant Commonwealth superannuation standard. (3) A period in respect of which contributions may not be made to the fund in respect of an employee under this section is not included as eligible service for the purposes of calculating the basic benefit. 19 Transfer of employees (1) This section applies where— (a) an employee ceases to be employed by an employer, (b) the employee commences to be employed by another employer within 2 months, and (c) STC determines that, because of the nature and circumstances of the employment involved (for example, employment in different Public Service agencies), it would not be appropriate to regard the employee as having resigned or retired. (2) STC shall determine the value of the sum of the basic benefit, any additional employer contributions benefit and any Commonwealth co-contribution benefit in respect of the employee at the date of cessation of employment with the former employer and shall— (a) debit the employer reserve of the former employer with that value, and (b) credit the employer reserve of the new employer with that value. 19A Variation of employer contributions (1) Despite any other provision of this Part, STC may determine that the contributions (other than section 16A employer contributions) payable by an employer specified in Part 1 of Schedule 1 in respect of an employee are to be determined, or are payable, on a basis other than that set out in this Part. (2) STC may make such a determination only with the concurrence of the Treasurer. 20 Application of payments Contributions and other amounts payable to STC under this Act shall be paid into such funds, accounts or reserves as STC determines, whether established under this Act or for the purposes of any other superannuation scheme administered by STC. Part 4 Benefits 20A Scheme closed for new employees (1) On and from the commencement of the First State Superannuation Act 1992 (8 December 1992) there is to be no benefit provided by this Act for an employee who ceases to be an employee on or after that commencement, unless the employee is within one of the following categories— (a) non-contributing employees who commenced employment before 1 July 1992, (b) employees who were contributing employees immediately before 8 December 1992, (c) employees who elect to become, are taken to have elected or who become contributing employees on or after 8 December 1992 by virtue of section 2A, 2B or 2C of the State Authorities Superannuation Act 1987, (d) employees exercising a transfer option conferred under Part 6 or Part 7 of the Superannuation Administration Act 1996. (2) The expressions contributing employee and non-contributing employee have the meanings given in Part 4A. (3) Any determination of STC under section 19 (Transfer of employees) is to be taken into account in determining for the purposes of this section whether an employee was employed on a particular date. (4) An irregular employee who commenced employment before 1 July 1992 is taken for the purposes of this Act to have been an employee on 30 June 1992. If the employee carries out any duties after that date, the employee is taken to have commenced to be an employee for the purposes of the First State Superannuation Act 1992 on the first date on which those duties were carried out after 30 June 1992. 21 Definitions (1) In this Part— final average salary, in relation to an employee, means the average of the attributed salaries paid or payable to the employee at the rates applicable— (a) on the employee's exit date, (b) on 31 December (or such other date as STC may determine) last preceding the employee's exit date, and (c) on 31 December (or such other date as STC may determine) last preceding the date referred to in paragraph (b). final salary, in relation to an employee, means the rate of attributed salary paid or payable to the employee on the employee's exit date. (2) Different dates may be determined by STC for the purposes of the definition of final average salary in subsection (1), so as to apply differently according to different classes of employees. 22 Basic benefit (1) The basic benefit provided by this Act for an employee is an amount equal to the amount calculated in accordance with the formula— where— B represents the amount to be ascertained, F represents— (a) in the case of the employee's death or retrenchment, or the employee ceasing to be employed because of physical or mental incapacity, before reaching the age of 55 years—the employee's final salary, or (b) in any other case—the employee's final average salary, and Y represents the years of eligible service on a daily basis, commencing on or after the appointed day. (2) The regulations may make provision for or with respect to the determination of the basic benefit for irregular employees. (3) The regulations may make provision for or with respect to the determination of eligible service for the purposes of this Act, including the manner of determining the length of eligible service where part-time work, irregular employment, leave without pay, secondment or a break in employment is involved. (4) If STC makes a determination under section 26A in relation to a basic benefit to be provided by this section, the amount of that benefit is reduced by the amount specified in STC's determination. (5) For the purpose of determining the amount of a basic benefit provided by section 24 that becomes payable in respect of a person within 12 months after the person— (a) has been appointed as a chief executive officer, senior executive officer or police executive officer, or (b) has been nominated as an office holder for the purposes of section 11A of the Statutory and Other Offices Remuneration Act 1975, the person's salary is taken to be his or her salary as an employee immediately before the appointment or nomination took effect. 22A Commonwealth co-contribution benefit The Commonwealth co-contribution benefit provided by this Act for a person is an amount equal to the balance at credit in the person's Commonwealth co-contribution account at the time the benefit is paid or preserved, as the case may be, except as provided by or under this Act. 22B Additional employer contributions benefit The additional employer contributions benefit provided by this Act for a person is an amount equal to the balance at credit in the person's additional employer contributions account at the time the benefit is paid or preserved, as the case may be, except as provided by or under this Act. 23 When benefits are payable (1) The basic benefit (and any preserved basic benefit), any additional employer contributions benefit (and any preserved additional employer contributions benefit) and any Commonwealth co-contribution benefit (and any preserved Commonwealth co-contribution benefit) in respect of a person is payable by STC to or in respect of a person— (a) if the person dies, or (b) if the person ceases to be employed in the circumstances in which a benefit is payable for the purpose of complying with the requirements of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth for a regulated superannuation fund, or (c) in any other circumstances in which a benefit is payable to comply with any such requirements or may be paid in respect of a member of such a fund under any such requirements, and is so payable in accordance with subsection (3). (2) The whole or part of a benefit may be paid under subsection (1), if such a payment is permitted under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth in the same circumstances in respect of a regulated superannuation fund. (2A) The whole or part of a benefit must be paid by STC under this section if it is required to be paid under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth in the same circumstances in respect of a regulated superannuation fund. (3) The basic benefit, any additional employer contributions benefit and any Commonwealth co-contribution benefit in respect of a former employee is payable— (a) unless the former employee has died—to the former employee, or (b) if the former employee has died and is survived by a spouse or de facto partner—to the surviving spouse or de facto partner, or (c) if the former employee has died and is not survived by a spouse or de facto partner—to the personal representatives of the former employee or, if appropriate, in accordance with section 31 (Payment without grant of probate etc). (d) (Repealed) Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. (4) For the purposes of the payment under subsection (1) (c) of a benefit on compassionate grounds, STC may exercise any function that the Regulator (within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth) may exercise for the purpose of determining whether a benefit is payable. (5) An amount of benefit released under subsection (1) (c) on the grounds of severe financial hardship or on compassionate grounds is not to exceed the amount of any accrued or preserved benefit under this Act that would be payable to the person if the person were eligible to be paid such a benefit. (6) An amount of benefit released under subsection (1) (c) on the grounds of severe financial hardship or on compassionate grounds may not be paid unless any applicable requirements of any regulations made under section 23B have been complied with. 23A Benefit on attaining 65 (1) A person who attains 65 years of age may elect to be paid the basic benefit, any additional employer contributions benefit and any Commonwealth co-contribution benefit to which the person would be entitled on retirement at that age or may elect to preserve the whole of those benefits. (2), (3) (Repealed) (4) If an amount is preserved under this section, it is payable in the same way as a benefit under section 24. (5) A person to whom this section applies is not entitled to any other benefit under this Act in respect of the same period of service, or to be paid or preserve a benefit under this section more than once. 23B Effect on other benefits (1) Regulations may be made for or with respect to the payment and calculation of benefits where part of a benefit has been released to a person under section 23 (1) (c) on the grounds of severe financial hardship or on compassionate grounds. (2) Without limiting subsection (1), regulations may be made for or with respect to the following matters— (a) the adjustment by STC of a benefit that is paid to a person to whom such an amount has been previously released, including interest payable in respect of the amount released, (b) the obtaining of consent to any such adjustment, (c) the obtaining of actuarial advice by STC for the purpose of any such adjustment, (d) enabling the payment to STC of amounts to set-off the amounts released against benefits that would otherwise accrue, (e) any matter ancillary to or consequential on the matters set out in paragraphs (a)–(d). 24 Benefit to be preserved (1) The basic benefit, any additional employer contributions benefit and any Commonwealth co-contribution benefit in respect of a person must be preserved by STC if the basic benefit is not otherwise payable under this Act. (1A) Any section 16A employer contribution or Commonwealth co-contribution received by STC in respect of a former employee while a basic benefit is preserved by STC in respect of the former employee must be preserved by STC and is taken to be a preserved additional employer contributions benefit or a preserved Commonwealth co-contribution benefit (as the case may be). (1AA) Any existing preserved additional employer contributions benefit in respect of a former employee is to be increased by the amount of a section 16A employer contribution preserved under subsection (1A) in respect of the former employee. (1B) Any existing preserved Commonwealth co-contribution benefit in respect of a former employee is to be increased by the amount of a Commonwealth co-contribution preserved under subsection (1A) in respect of the former employee. (2) The basic benefit, any additional employer contributions benefit and any Commonwealth co-contribution benefit must also be preserved by STC when— (a) an executive officer who is an optional member of the First State Superannuation Fund ceases to be a contributor to any other superannuation scheme established by or under an Act, or (b) an executive officer who is not a member of any other superannuation scheme established by or under an Act becomes a member of the First State Superannuation Fund, or (c) an employee becomes eligible under another superannuation scheme for a benefit that is of the same kind as a benefit provided by this Act and STC has not been requested to pay the benefit to another superannuation scheme. (3) (Repealed) (4) When the preserved basic benefit, any preserved additional employer contributions benefit and any preserved Commonwealth co-contribution benefit is to be paid out by STC, it is payable— (a) if the former employee has not died—to the former employee, or (b) if the former employee has died and is survived by a spouse or de facto partner—to the former employee's spouse or de facto partner, or (c) if the former employee has died and is not survived by a spouse or de facto partner—to the personal representatives of the former employee or, if appropriate, in accordance with section 31 (Payment without grant of probate etc). (d) (Repealed) (5) (Repealed) 24A Preservation of benefit for employees aged 55 years and over in certain circumstances Schedule 3 has effect with respect to the preservation of the benefit of an employee of or above the age of 55 years in the circumstances specified in that Schedule. 24B Competing claims for spouses' or de facto partners' benefits (1) This section applies to a benefit which is payable to the spouse or de facto partner of a deceased employee or deceased former employee. (2) If a benefit would be payable to more than one person because a deceased employee or deceased former employee has left more than one spouse or de facto partner, then, despite any other provision of this Act— (a) the benefit is payable in accordance with a determination made by STC, and not otherwise, and (b) the total amount of benefit payable to those persons at any time is not to exceed the amount of benefit that would be payable if there were only one spouse or de facto partner. (3) For the purposes of subsection (2) (a), STC may determine in relation to a benefit— (a) that the benefit is not payable to such of the persons concerned as it specifies, or (b) that the amount of the benefit is to be apportioned between the persons concerned in such manner as it specifies. (4) STC may withhold the payment of any part of a benefit— (a) until 30 days after the death of the employee or former employee in respect of which it is payable, or (b) if an application has been made for the benefit by more than one person, until it is satisfied that only one of those persons is entitled to the benefit or until a determination is made in relation to the matter by STC under this section. (5) If, after 30 days from the death of an employee or former employee, the whole or part of a benefit is paid to a spouse or de facto partner of the deceased employee or deceased former employee— (a) a benefit is not payable to any other spouse or de facto partner of the deceased employee or deceased former employee if the whole of the benefit is paid, or (b) so much of a benefit as is equal to the amount of the benefit so paid is not payable to any other spouse or de facto partner of the deceased employee or deceased former employee if part of the benefit is paid. (6) For the purposes of subsection (5), an amount paid in good faith by STC to a person purporting to be the spouse or de facto partner of a deceased employee or deceased former employee is taken to have been paid to the spouse or de facto partner of the employee or former employee. (7) If, after 30 days from the death of an employee or former employee, any amount is paid under this Act to the employee's personal representatives or to such other persons as STC may determine, any benefit which is payable to the spouse or de facto partner of the employee or former employee is to be reduced by the amount so paid. 25 Preservation of benefit (1) Any amounts preserved by STC under this Act shall be preserved in such funds, accounts or reserves as STC determines, whether established under this Act or the Superannuation Administration Act 1996 or for the purposes of any other superannuation scheme administered by STC. (2) Any such preserved amounts payable by STC under this Act shall be paid from the appropriate fund, account or reserve referred to in this section. 25A Power of STC to purchase annuities etc out of benefit payable under this Act Whenever a benefit becomes payable to or in respect of an employee under this Act, STC must, if requested to do so— (a) by the employee, or (b) where the employee has died, by the spouse or de facto partner or personal representatives of the employee, as the case requires, apply the benefit, or such part of it as is specified by the employee, spouse or de facto partner or personal representatives, in purchasing for the employee or, as the case may be, for the spouse or de facto partner or the beneficiaries of the employee's estate, a right to an annuity or other form of pension from a person nominated by the employee, spouse or de facto partner or personal representatives. 26 Interest STC may, when paying a benefit under this Act, pay interest at such rates, for such periods and in such circumstances as in its absolute discretion it thinks appropriate. 26A Power of STC to reduce benefits to offset certain tax liabilities of a fund maintained under section 9 (1) (1) Whenever— (a) a right to a benefit accrues to or in respect of an employee or former employee, and (b) STC has paid or is liable to pay income tax under a Commonwealth taxation law in respect of employers' contributions to a fund maintained under section 9 (1), and (c) a portion of that tax is referable to that benefit, STC must, subject to subsection (2)— (d) calculate the amount necessary to offset STC's liability to pay tax so far as it is referable to that benefit, and (e) accordingly make a determination reducing the benefit by the amount so calculated. (2) Subsection (1) does not authorise the reduction of a benefit, unless— (a) the benefit is of a kind prescribed by the regulations for the purpose of this section, and (b) the method of calculating the reduction is so prescribed, and (c) the reduction is calculated according to that method. (3) A benefit may also be reduced by STC in accordance with any of the following provisions (which allow STC to apply the benefit toward payment of a superannuation contributions surcharge)— (a) section 14AA of the Police Regulation (Superannuation) Act 1906, (b) section 45A of the State Authorities Superannuation Act 1987, (c) section 61RA of the Superannuation Act 1916. 26AA Restoration of death benefit previously reduced to offset contribution tax liabilities (1) STC may, for the purposes of obtaining a deduction from assessable income under section 295-485 of the Income Tax Assessment Act 1997 of the Commonwealth, increase a benefit payable or paid under this Act on the death of an employee or former employee that has been previously reduced under section 26A. (2) The amount of the increase is to be the amount determined by STC, after obtaining actuarial advice, as the amount of increase required to obtain the deduction referred to in subsection (1). (3) (Repealed) 26AB Power of STC to reduce benefits for no-TFN tax (1) This section applies to a benefit if— (a) a right to the benefit accrues under this Act to or in respect of an employee or former employee, and (b) STC has paid or is liable to pay no-TFN tax in respect of employer contributions to the Fund, and (c) a portion of that tax is referable to that benefit, and (d) the benefit is of a kind prescribed by the regulations for the purposes of this section. (2) The amount of the benefit is reduced by the amount necessary to offset STC's liability to pay no-TFN tax so far as it is referable to that benefit. (3) The amount of the reduced benefit is to be determined by STC after obtaining actuarial advice. (4) The regulations may provide for the establishment of debt accounts in respect of employees or former employees for the purposes of this section. (5) In this section— no-TFN tax means an amount equal to the difference between the amount of— (a) income tax payable by STC under the Income Tax Assessment Act 1997 of the Commonwealth on employer contributions to the Fund for an employee if there is a failure by the employee to provide information about his or her tax file number to STC, and (b) income tax that would be so payable if the information about the tax file number was provided. Note— An employee or former employee may also elect to have a benefit under this Act reduced, instead of having a benefit in the Police Superannuation Scheme, the State Authorities Superannuation Scheme or the State Superannuation Scheme reduced. 26B Benefits not payable if conversion election made (1) This section applies to a person in respect of whom a conversion election has taken effect under Part 3B of the Police Regulation (Superannuation) Act 1906, section 3 (14) of the Police Association Employees (Superannuation) Act 1969 or Part 3B of the Superannuation Act 1916 and who was, before the election took effect, an employee. (2) A person to whom this section applies, and anyone else who would otherwise be a beneficiary under this Act through the contributor, is not eligible to be paid, or to defer or preserve, any benefit under this Act, despite any other provision of this Act. (3) As soon as practicable after being notified that a conversion election has taken effect in respect of a person who was a contributor under the Police Regulation (Superannuation) Act 1906, or a prescribed person within the meaning of section 3 of the Police Association Employees (Superannuation) Act 1969, STC must pay to the Fund under the Police Regulation (Superannuation) Act 1906— (a) the amount of the benefit payable in respect of the person under section 5H (3) of the Police Regulation (Superannuation) Act 1906, or payable under that provision as applied by the Police Association Employees (Superannuation) Act 1969, and (b) if section 5H (4) of the Police Regulation (Superannuation) Act 1906 applies to the conversion benefit, an amount equal to the difference between the amount of the conversion benefit payable and the amount that would have been payable if that provision did not apply to the benefit. (4) As soon as practicable after being notified that a conversion election has taken effect in respect of a person who was a contributor under the Superannuation Act 1916, STC must pay to the reserve of the person's employer in the Fund under the Superannuation Act 1916— (a) the amount of the benefit payable in respect of the person under section 20K (3) of the Superannuation Act 1916, and (b) if section 20K (5) of the Superannuation Act 1916 applies to the conversion benefit, an amount equal to the difference between the amount of the conversion benefit payable and the amount that would have been payable if that provision did not apply to the benefit. (5) Any amount payable under this section is to be paid in accordance with section 9 as if it were a benefit under this Act. 26BA Effect of revocation of conversion election (1) This section applies to a person in respect of whom a revocation election has taken effect under Part 6 of Schedule 6 to the Police Regulation (Superannuation) Act 1906 or Part 9 of Schedule 25 to the Superannuation Act 1916. (2) A person to whom this section applies is taken to have been an employee during the period a conversion election referred to in section 26B had effect in respect of the person. (3) Section 26B (2) does not apply to a person to whom this section applies, or any other person who, but for that section, would be eligible as a beneficiary of a person to whom this section applies to be paid, or to defer or preserve, a benefit under this Act. Part 4A Special provisions for non-contributing employees 26C Definitions In this Part— contributing employee means an employee who— (a) is a contributor to an associated superannuation scheme (within the meaning of the Superannuation Administration Act 1991 as in force immediately before the commencement of the First State Superannuation Act 1992), or (b) elects or is taken to have elected under section 2A, 2B or 2C of the State Authorities Superannuation Act 1987 to contribute to the Fund under that Act. non-contributing employee means an employee who is not a contributing employee. 26D Contributing employees not affected This Part does not apply to contributing employees. 26E Non-contributing employees to have deferred accrued benefit instead of basic benefit (1) On and from the commencement of the First State Superannuation Act 1992, the basic benefit provided by this Act for a non-contributing employee is to be replaced with a deferred accrued benefit. This does not affect benefits that were payable or required to be preserved before that commencement. (2) The deferred accrued benefit is an amount calculated in accordance with Schedule 4. (3) Sections 23–26A apply to the deferred accrued benefit in the same way as they apply to a basic benefit. 26F Deferred accrued benefit to be preserved on transfer of employment (1) A non-contributing employee is taken to have ceased to be an employee for the purposes of the application of section 23 (When benefits are payable) and section 24 (Benefit to be preserved) to the deferred accrued benefit provided by this Part when the employee leaves the employment of the employer who employed him or her on 30 June 1992. (2) Subsection (1) applies even when the employee becomes the employee of another employer after leaving but does not apply in the case of a change of employment occasioned merely by the operation of an administrative change. (3) This section applies even if the employee left the employment of the employer before the commencement of the First State Superannuation Act 1992. 26G Increase in benefit for non-contributing employees who cease employment before start of FSS Scheme (1) This section applies to a person who ceases to be an employee before the commencement of the First State Superannuation Act 1992 and who was a non-contributing employee at the time he or she ceased to be an employee. (2) STC must, after obtaining actuarial advice, determine what the minimum basic benefit provided for the person would have to be to ensure that there is no superannuation guarantee shortfall. (3) The basic benefit provided by this Act for the person is, despite any other provision of this Act, not to be less than the minimum basic benefit determined under subsection (2). The basic benefit provided for the person is to be increased to the extent necessary for the purpose of complying with this section. (4) Subsection (3) applies to a benefit even if it has already been paid or preserved. (5) In this section— superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth. 26H Transfers of contributions to FSS Scheme (1) STC is to transfer any contribution (other than a section 16A employer contribution) made by an employer under this Act that STC determines is in respect of the salary of an employee