Western Australia: Superannuation and Family Benefits Act 1938 (WA)

Western Australia Superannuation and Family Benefits Act 1938 This Act was repealed by the State Superannuation Act 2000 s. 39 but its provisions continue to apply to and in relation to certain schemes because of the State Superannuation (Transitional and Consequential Provisions) Act 2000 s. 26 and those provisions may be amended by regulations under subsection (3) of that section 1. Western Australia Superannuation and Family Benefits Act 1938 Contents 1. Short title 1 2. Commencement 1 Part I — Preliminary 4. Construction 2 5. Saving provisions 2 6. Interpretation 2 6AA. De facto spouses 8 6A. Admission to Fund of certain employees of Civil Service Association 9 6B. Eligibility of certain statutory office holders to contribute 10 7. Certain employees who become part‑time may continue as contributors or subscribers 11 Part III — The Superannuation Fund 24. Establishment of the Fund 14 24A. Establishment of Indexation Account 14 30. Investigation by actuary 15 Part IV — Contributions Division 1 — Contributions by employees 31. Continuation of contributions 18 32. Election to become a contributor 18 32A. Contributions where employee formerly contributed to similar fund in the service of the Commonwealth and certain States 20 33. Provisions in relation to contributors who are also contributors to certain statutory funds 21 34. Provisions relating to employees who are qualified for superannuation allowance under the Superannuation Act 1871 25 36. Commencement and cessation of contributions 28 36A. Contributions under salary sacrifice agreement 31 Division 2 — Scale of units 37. Scale of units of pension 31 37A. Non‑contributory units of pension 43 38. Units in excess of 2 units optional 45 39. Employee reduced in salary 46 39A. Withdrawal from the Fund 47 Division 3 — Scale of contributions by employees 40. Contributions according to scale graduated by age at commencement 48 41. Election to contribute for full pension at 60 years of age 49 42. Tables of contributions in Schedules 51 Division 3A — Reserve units of pension 42A. Reserve units of pension 52 Division 4 — Contributions by the State 43. Payments by State where contributions by employee are at rate for age 54 43A. Special provisions for certain contributors 55 44. Payments by State where contributions by employee are not at rate for age 55 45. No payment by the State in respect of pension to widow of qualified contributor 57 46. Payments from Consolidated Fund 57 46A. Increase of pension 57 46AB. Increase in Fund share of pension 58 46B. Supplementary units of pension 60 46C. Alteration of rates of certain pensions 62 Division 5 — General provisions as to contributions 47. Employees on leave of absence 64 48. Lump sum payments in redemption of future contributions 64 49. Interest payable on contributions in arrears 65 50. Manner of payment — deduction from salary 65 51. Continuance of contributions by qualified contributor 65 Part V — Pensions and benefits Division 1 — Retirement on pension 52. Age of compulsory retirement 67 53. Breakdown retirement 67 54. Retrenchment and discharge 67 55. Dismissal 68 56. Resignation 68 Division 2 — Grant of pensions and benefits 58. Pension units 69 59. Commencing dates for payment of pension 69 60. Amount of pension on retirement 70 60AA. Certain contributors may elect to determine pension rights prior to retirement 77 60AB. Contributor remaining in service: deemed retirement on election to take pension 80 60A. Contributor remaining in service after 65 years of age 81 60B. Election by contributors remaining in service after 65 years of age 82 60C. Payment of portion of pension in certain cases 83 60D. Commutation of Fund share of pension 84 60E. Increase in pension for contributors receiving special allowances 87 60F. Pensioner liable to pay contributions tax may commute part of State share of pension 89 61. Retirement through invalidity 90 62. Widow's and children's benefits, etc. 93 62A. Widow's pension enhanced initially 94 64. Pension to orphan on death of contributor or pensioner 94 64A. Discretionary powers in respect of increases 95 65. Payment of contributions of deceased contributor to personal representatives in certain cases 96 66. Retrenchment of contributor 96 66A. Preserved pensions for retrenched persons 97 67. Resignation, dismissal or discharge of contributor 99 68. Refunds 100 69. Desertion by male pensioner of wife or child 101 70. Imprisonment of pensioners 101 71. Insanity of pensioners 102 72. Payments to children 103 73. Pensions payable for life except in the case of children 103 74. Provision in case of qualified contributor ceasing to contribute 103 75. Payment of pension instalments 104 77. Payment to person other than the pensioner 104 Division 3 — Break‑down pensioners 78. Break‑down pensioner to be deemed to be on leave 105 79. Pensioner restored to health may be recalled to the service 106 80AA. Reduced pension for pensioner under another scheme 107 80A. Increases effected by Acts Amendment (Superannuation and Pensions) Act 1951 107 80B. Increases effected by Acts Amendment (Superannuation and Pensions) Act 1957 108 80C. Increases effected by Acts Amendment (Superannuation and Pensions) Act 1960 108 Division 4 — Existing assurance policies 81. Assurance policies may be continued or discontinued at option of contributor 108 82. Transfer of policies to Board 108 Division 5 — Provisions relating to the Western Australian Government Railways and Tramways Employees' Death Benefit and Endowment Fund 83. An employee contributing to Railway Death Benefit and Endowment Fund may transfer rights to Board 109 Part VA — The Provident Account Division 1 — General 83A. The Provident Account 111 83AA. Payments by State into Provident Account 111 Division 2 — Subscribers 83B. Female subscribers to Provident Account 112 Division 3 — Contributors 83C. Contributors to the Provident Account 113 83D. Contributions to the Provident Account 114 83E. Payments on retirement 115 83F. Payments on death of contributor with dependants 115 83G. Payment on death of contributor without dependants 116 83H. Payment on resignation, etc. 116 83I. Retrenchment and discharge 117 83J. Payment to another person 117 83K. Payments by State 117 83L. Contributor under this Division not entitled to other benefits 118 Part VB — Superannuation guarantee scheme 83M. Interpretation 119 83N. Guaranteed benefits 119 83O. Effect on other benefits under this Act 121 83P. Actuarial adjustments 121 Part VI — Miscellaneous 84. Questions as to invalidity, etc., determined by Board on medical officer's report 122 85. Settlement of disputes 122 85A. Discretionary powers of Board 123 86. Returns 123 87. Assignment of pensions 124 88. Power to recover 124 89. Regulations 124 90. Transitional provisions relating to former Superannuation Board 126 First Schedule Second Schedule Third Schedule Fourth Schedule Fifth Schedule Sixth Schedule Seventh Schedule 1. Terms used 143 2. Transfer of assets, liabilities and records 143 3. Agreements, instruments and proceedings 143 4. Final reports on the operations of the Superannuation Board 144 5. Consents to investments 144 6. Staff 144 7. References to the Superannuation Board in laws 145 Notes Compilation table 146 Other notes 151 Defined terms Western Australia Superannuation and Family Benefits Act 1938 An Act to provide Superannuation Benefits for persons permanently employed by or under the Government of the State and to make provision for the families of those persons and for incidental and other purposes. [Long title amended: No. 13 of 1968 s. 2.] 1. Short title This Act may be cited as the Superannuation and Family Benefits Act 1938 1. 2. Commencement (1) This Act shall, except where otherwise provided, commence on a date to be fixed by proclamation. (2) The date so fixed is, in this Act, referred to as "the commencement of this Act". [3. Deleted: No. 57 of 1986 s. 4.] Part I — Preliminary 4. Construction This Act shall be construed subject to the Commonwealth of Australia Constitution Act, to the National Health and Pensions Insurance Act 1938, of the Commonwealth and to any Acts of the Parliament of the Commonwealth with which this Act is or shall be or may be deemed to be inconsistent, and so as not to exceed the legislative power of the Parliament of the State, to the intent that any portion of this Act which may be held to be in excess of that power or which may be held to be inconsistent with any Acts aforesaid shall, to the extent to which it is so in excess or so inconsistent, be deemed to be severable from the other portions of this Act and not to affect the validity or operations thereof. 5. Saving provisions This Act shall not (except insofar as it expressly or impliedly indicates a contrary intention) affect the provisions of the Superannuation Act 1871 (35 Victoriae No. 7) 2 in relation to employees employed at the commencement of this Act but no person who becomes an employee after the commencement of this Act shall be eligible for any benefit, under the said Act notwithstanding anything to the contrary contained in the said Act. 6. Interpretation (1) In this Act, subject to the context — Actuary means a Fellow or Associate of the Institute of Actuaries (London) or a Fellow or Associate of the Faculty of Actuaries (Edinburgh), or any other person of whose actuarial knowledge and experience the Governor approves; actuarial reserve portion of contributions means the balance deemed to remain in the Fund to meet future risks after the estimated value of the risks carried by the Fund during the period of contributions has been assessed on an actuarial basis; children includes children adopted by a contributor or by a pensioner who has been a contributor and dependent on him at the time of his death; contributor means an employee who is or has been contributing under this Act otherwise than as a qualified contributor; department means any department under the administration of a Minister of the Crown in the Government of the State and includes the Western Power Corporation, the Water Corporation 3, every State trading concern, every port authority, every college (within the meaning of the Vocational Education and Training Act 1996), and every Crown instrumentality the employees whereof are remunerated with moneys (other than grants) appropriated by the Parliament of the State for the purpose of such Crown instrumentality. The term department shall, subject as hereinafter provided, also include every hospital board and any other corporate body, being a Crown instrumentality established by or under any Act of the Parliament of the State, the inclusion of which hospital board or other corporate body in the said term is recommended by the Minister and is approved by the Treasurer. Provided that — (i) before approving the inclusion in the term "department" as aforesaid of any such hospital board or other corporate body, the Treasurer may require such hospital board or other corporate body to make arrangements satisfactory to the Treasurer whereby such hospital board or other corporate body is bound to pay and will pay to the Board on behalf of the State during the employment of its employees who become contributors under this Act and thereafter will continue to pay to the Board on behalf of the State so long as may be necessary progressively by way of fortnightly contributions commencing from the date or dates when its employees become contributors under the Act as aforesaid, and payable fortnightly on the days when the contributions by such employees are payable or otherwise on the days when in accordance with section 43 and section 44 payments of its share of the pensions are payable by the Government of the State as the case may be, such amounts in respect of each and every one of its employees who become contributors as aforesaid as are and will be, in the opinion of the Board, sufficient to meet and recoup to the Government of the State the amounts which in accordance with section 43 and section 44 the Government will be liable to pay as its share of the pension or other benefits to which the employees of such hospital board or other corporate body and their dependants will be or are entitled by virtue of being or having been contributors under this Act; and (ii) as and when any hospital board or other corporate body is approved by the Treasurer as a department for the purposes of this Act, notification of such approval shall be published in the Government Gazette; employee means a person employed in a permanent capacity under the State in any department who is by the terms of his employment required to give his whole time to the duties of his employment, but does not include the Chief Justice or any Judge of the Supreme Court or the President or any member of the Court of Arbitration 5, and does not include a person who is a contributor to any Superannuation Fund to which contributions are made by the Crown other than the Crown in right of Western Australia. For the purposes of this definition — (a) a person shall be deemed to be employed in a permanent capacity when he is regularly employed in the ordinary work of the department in which he is employed in circumstances which justify an expectation that, subject to good conduct and efficiency, his employment will be continuous and permanent; (aa) a person who is an executive officer within the meaning of the Public Sector Management Act 1994 shall be deemed to be employed in a permanent capacity; (b) a person shall not be deemed to be employed in a permanent capacity when he is employed casually or in connection with a particular work or undertaking, the completion of which will put an end to his employment; hospital board means — (a) a hospital board constituted under the Hospitals and Health Services Act 1927; and (b) if the Minister to whom the administration of the Hospitals and Health Services Act 1927 is committed is deemed by section 7(2) of that Act to be the board of a hospital, the Minister in his or her capacity as that board; member of the Police Force includes the Commissioner of Police, a commissioned officer, a non‑commissioned officer, a constable and an Aboriginal police liaison officer, but excludes a special constable; Minister means the Minister of the Crown from time to time charged with the administration of this Act; Police Benefit Fund means the Police Benefit Fund as established and administered under the Police Benefit Fund Ordinance 1866 30 Victoriae No. 10 and its amendments 6; qualified contributor means an employee who elects to contribute to the Fund the special contribution in respect of a pension to his widow and children as provided for in section 34(2) and (4); Railway Death Benefit and Endowment Fund means the Western Australian Government Railways and Tramways Employees' Death Benefit and Endowment Fund as established and administered under the authority of section 76 7 of the Government Railways Act 1904; salary means salary or wages and includes the value of allowances such as allowances for rent, house allowed rent free, light, fuel, rations and fees allowed regularly, as emoluments of office, but does not include bonuses, overtime payments or allowances for forage, equipment, climatic disadvantages or travelling expenses; service means service under or employment by or under the State in any department; student child means a child who is not less than 16 years of age but is less than 25 years of age and is receiving full‑time education at a school, college or university; term appointee means an employee whose appointment, whether or not to a statutory office, is for a determinate period but does not include an employee to whom subsection (3) applies; the Board means the Government Employees Superannuation Board under the State Superannuation Act 2000; the Fund means the Superannuation Fund established by this Act; the Provident Account means the Provident Account established under Part VA; the maximum age for retirement means the age of 65 years, or, in the case of a contributor, the age for whose retirement is fixed by law at an earlier age than 65 years, the age so fixed; the 1987 Act means the Government Employees Superannuation Act 1987. (2) References in this Act to the retirement of an employee upon his attaining the age of 65 years shall include the case of an employee whose retirement takes place on the day before he attains the age of 65 years. (3) Where an employee has been or is appointed, whether before or after the commencement of this Act, for a term of years to a statutory office under the Government of the State he shall for the purposes of this Act be deemed, so long as he continues to be employed in the office (whether during or after the expiration of the term for which he was appointed) to continue to be an employee, and the cessation of his employment under the Government of the State (otherwise than by retrenchment, discharge, dismissal or resignation) shall, if he has completed an aggregate period of 7 years' service under the State at the time of such cessation, be deemed to be retirement within the meaning of this Act, and, if it takes place at an earlier age than 65 years, be deemed to be, within the meaning of section 60, the retirement of a contributor, the age for whose retirement is fixed by law at an earlier age than 65 years. Provided that where an employee who is the holder of a statutory office became a contributor before the commencement of the Acts Amendment (Superannuation and Pensions) Act 1960, the requirement of completion of an aggregate period of 7 years' service under the State shall not apply in respect of that employee if the cessation of his employment (otherwise than by retrenchment, discharge, dismissal or resignation) occurs after he attains the age of 60 years. (4) Notwithstanding anything contained in the last preceding subsection, if an employee who is the holder of a statutory office notifies in writing to the authority administering the Act under which he was appointed, that he does not desire reappointment at the expiration of the term for which he was appointed the notice shall, unless — (a) he has attained the age of 55 years; or (b) he has attained the age for retirement fixed by law, be deemed to be resignation within the meaning of this Act. [Section 6 amended: No. 43 of 1939 s. 3; No. 55 of 1945 s. 2; No. 65 of 1947 s. 3; No. 39 of 1950 s. 4; No. 61 of 1960 s. 3; No. 50 of 1961 s. 3; No. 43 of 1963 s. 2; No. 101 of 1964 s. 2; No. 75 of 1973 s. 3; No. 134 of 1976 s. 3; No. 76 of 1979 s. 2; No. 23 of 1982 s. 2; No. 30 of 1984 s. 3; No. 17 of 1987 s. 4; No. 6 of 1994 s. 13; No. 32 of 1994 s. 16; No. 89 of 1994 s. 109; No. 14 of 1995 s. 44; No. 73 of 1995 s. 188; No. 14 of 1996 s. 4; No. 57 of 1997 s. 117(1); No. 5 of 1999 s. 25; No. 58 of 1999 s. 108; No. 24 of 2000 s. 14(13); No. 8 of 2008 s. 20; amended in Gazette 16 Feb 2001 p. 1017; 30 Dec 2003 p. 5726; 25 Jun 2004 p. 2232‑3; 13 Apr 2007 p. 1611-12.] 6AA. De facto spouses (1) For the purposes of this Act de facto partners are to be regarded as spouses. (2) For the purposes of this Act a de facto relationship is to be regarded as a marriage that took place when the relationship commenced and the cessation of the relationship, other than by reason of death, is to be regarded as a divorce. [(3)-(5) deleted] (6) Where, as a result of this section — (a) more than one person is entitled as a spouse to a benefit under this Act; or (b) children of different spouses are entitled to a benefit under this Act, the Board may determine that the amount of the benefit to which each person is entitled is such portion as it considers just of the benefit that would be payable if there had been only one spouse. [Section 6AA inserted: No. 8 of 1993 s. 65; amended in Gazette 28 Jun 2002 p. 3033.] 6A. Admission to Fund of certain employees of Civil Service Association (1) In this section — the Association means the body corporate under the name of The Civil Service Association of Western Australia; the existing Association scheme means the scheme established by deed of trust made on 23 June 1966 between the Association and certain other parties for the purpose of making provision for retiring pensions and benefits to present and future employees of the Association. (2) Upon the execution by the Treasurer pursuant to the authority of this section of an agreement with the Association and subject to any term of the agreement — (a) any employee of the Association who is at the time of the execution of the agreement a contributor to the existing Association scheme shall become a contributor under this Act and shall be deemed — (i) to have become such a contributor on the day on which he became a contributor to the existing Association scheme; and (ii) to have contributed for units of pension under this Act at the same time as he respectively contributed for units of pension under the existing association scheme; and (b) any person who, after the execution of the agreement, becomes a full‑time employee of the Association is eligible to become a contributor under this Act if he would be eligible at that time to become a contributor had he become an employee in a department on that date. (3) For the purposes of any provision of this Act in which the length of service of a contributor is relevant for the purpose of ascertaining the benefits to be paid under this Act, any period of full‑time service by an employee with the Association — (a) for which the employee also was a contributor to the existing Association scheme; or (b) for which the employee makes contributions under this Act, shall be deemed to be service with the State. (4) The Treasurer is hereby authorized on behalf of the State to execute an agreement with the Association and the Trustees of the existing Association scheme for the purposes of giving effect to the provisions of this section, but any such agreement shall contain, inter alia, provisions — (a) requiring the Association or the Trustees to pay to the Fund the total of all contributions made by employees of the Association under the existing Association scheme and held by the Association or the Trustees on the date of execution of the agreement; (b) requiring the Association or the Trustees to pay to the Treasurer the total amount of all contributions which were required to be provided to the Trustees by the Association to meet the Association's liability under the existing Association scheme in respect of employees who are members of the existing Association scheme on the date of execution of the agreement; (c) requiring the Association to pay to the Board for transmission to the Treasurer each fortnight after the date of execution of the agreement a sum equal to 2½ times the aggregate of its employees' contributions in respect of the first 20 units and 5 times the aggregate of its employees' contributions in respect of all other units. [Section 6A inserted: No. 75 of 1973 s. 4.] 6B. Eligibility of certain statutory office holders to contribute (1) Where, before or after the coming into operation of the Superannuation and Family Benefits Amendment Act 1982, a person not being an employee for the purposes of this Act was or is appointed for a term of years to a statutory office under the Government of the State in a department, that person shall be deemed upon his appointment to have been or to be employed in a permanent capacity for the purposes of the definition of "employee" in section 6(1) notwithstanding paragraph (a) of that definition. (2) Where, before the coming into operation of the Superannuation and Family Benefits Amendment Act 1982 a person who was not an employee for the purposes of this Act was appointed for a term of years to a statutory office under the Government of the State in a Department and that person elected or purported to elect to become a contributor for units of a pension under this Act and the Board accepted or purported to accept his election, the election of that person and the acceptance of the Board shall be deemed to be and always to have been valid and that person shall be deemed to have become a contributor and as such in all respects to have become subject to and bound by this Act. [Section 6B inserted: No. 23 of 1982 s. 3.] 7. Certain employees who become part‑time may continue as contributors or subscribers (1) In this section — accepted part‑time employee means a person in respect of whom there is a declaration in force under subsection (2). (2) The Board may declare a contributor for units of pension or a contributor or subscriber to the Provident Account to be an accepted part‑time employee if — (a) the employee's hours of work are reduced so that he or she is no longer required to give his or her whole time to the duties of his or her employment; and (b) the Board is satisfied that the reduction is necessary or desirable— (i) in the interests of the contributor's health; or (ii) for some other special reason that the Board considers to be adequate. (2a) A declaration under subsection (2) comes into force, or is taken to have come into force, on the day on which the person's hours of work are or were so reduced. (2b) The Board may make a declaration under subsection (2) in respect of a person who was formerly a contributor for units of pension or a contributor or subscriber to the Provident Account and any such declaration comes into force and has effect as if this section had been in operation on the day on which the person's hours of work were so reduced. (3) Notwithstanding the definition of "employee" in section 6(1), while a person is an accepted part‑time employee he or she does not cease to be an employee only because he or she is not required to give his or her whole time to the duties of his or her employment. (4) For the purposes of this Act, while a person is an accepted part‑time employee his or her salary is to be taken to be the amount the Board determines to be the salary he or she would earn if he or she gave his or her whole time to the duties of his or her employment. (5) For the purposes of calculating the length of an accepted part‑time employee's service, the period during which the employee is not required to give his or her whole time to the duties of his or her employment is to be counted as if he or she had given his or her whole time to the duties of his or her employment during that period. (6) The Board may, at any time, revoke a declaration under subsection (2) if is satisfied that it is no longer necessary or desirable for the employee to work the reduced hours he or she is then working. (7) A declaration under subregulation (2) remains in force until — (a) it is revoked by the Board; (b) the employee is again required to give his or her whole time to the duties of his or her employment; or (c) the contributor ceases to be an employee. [Section 7 inserted in Gazette 16 Feb 2001 p. 1017-19; amended in Gazette 29 Jun 2001 p. 3106.] [Part II (Sections 8-23). Deleted: No. 17 of 1987 s. 6.] Part III — The Superannuation Fund 24. Establishment of the Fund (1) For the purposes of this Act there shall be a fund, to be called The Superannuation Fund, and to be administered by the Board, to which shall be credited the contributions of contributors or qualified contributors and payments by the State under this Act, and any "employer" payments made on behalf of the State for the purposes of this Act in pursuance of paragraph (i) of the proviso to the second paragraph of the definition of "department" in section 6 and to which shall be charged the benefits provided for in this Act. (2) The Fund shall form, and be maintained and managed as part of, the Government Employees Superannuation Fund under the State Superannuation Act 2000. (3) The income of the Fund shall not be subject to taxation by the State. [Section 24 8 amended: No. 55 of 1945 s. 8; No. 17 of 1987 s. 7; No. 49 of 1996 s. 64; amended in Gazette 16 Feb 2001 p. 1019.] 24A. Establishment of Indexation Account (1) For the purposes of this Act, there shall be an Indexation Account which shall form part of the Fund and to which shall be credited — (a) the surplus disclosed by the investigation made under section 30 as to the state and sufficiency of the Fund as at 30 June 1983; (b) any surpluses that may be disclosed by investigations as to the state and sufficiency of the Fund made under section 30 in respect of annual periods after 30 June 1983; and (c) income in respect of amounts from time to time standing to the credit of the Indexation Account calculated at the average rate of investment income earned during the relevant period by the assets of the Fund and, in the case of an amount that is a surplus credited to the Indexation Account in respect of an annual period ending on 30 June in a year, the income shall be calculated on that amount from 1 July in that year. (2) Subject to subsection (3), payments in respect of benefits payable under section 46C or payable under the Sixth Schedule by reason of the operation of section 46C or item 1A of Part III of that Schedule shall be made, to the extent that the available funds in the Indexation Account permit, from the Indexation Account. (3) The amount credited to the Indexation Account under subsection (1)(a) shall remain standing to the credit of that account and is not available to be applied in the manner provided by subsection (2). (4) Notwithstanding subsection (3), when a benefit is increased under the State Superannuation Regulations 2001, Schedule 2 Part 1 clause 3 the amount of interest included in that benefit by virtue of paragraph (b)(ii) of the definition of "transferred contributions" in clause 1(1) of that Schedule shall be charged against the amount credited to the Indexation Account under subsection (1)(a). [Section 24A inserted: No. 30 of 1984 s. 5; amended: No. 78 of 1985 s. 3; No. 17 of 1987 s. 8; No. 49 of 1996 s. 64; amended in Gazette 16 Feb 2001 p. 1019; 18 Jan 2008 p. 155.] [25, 26, 27. Deleted: No. 17 of 1987 s. 9.] [28. Deleted: No. 98 of 1985 s. 3] [29. Deleted: No. 17 of 1987 s. 9.] 30. Investigation by actuary (1) Investigations shall be made as to the state and sufficiency of the Fund as at 30 June 1984 and as at 30 June in every succeeding year. (2) The investigation shall be made by the State Government Actuary or by an actuary appointed by the Board. (2a) Where an investigation as to the state and sufficiency of the Fund as at 30 June in a year is carried out under section 17 of the State Superannuation Act 2000, that investigation shall be deemed for the purposes of this section to be an investigation made under subsection (1). (3) For the purposes of the investigation, the rate of interest assumed to be earned by the assets of the Fund shall be not less than 3¾ % per annum. (4) The State Government Actuary or the actuary, as the case may be, making the investigation shall report to the Board the result of his investigation, and shall state whether any reduction or increase is necessary in the rates of contributions payable to the Fund or in the proportion payable by the State in respect of any pension. (5) Where in relation to any financial year the amount that the Treasurer, on the advice of an actuary, considers it appropriate to regard as the amount earned by the Fund is less than the amount required to provide the rate specified in subsection (3), the State shall credit to the Fund an amount equal to the difference between those amounts. (6) If any investigation made under this section discloses a surplus of assets over liabilities of the Fund, the amount of the surplus shall be set off against the amount or amounts otherwise payable by the State to the Fund under subsection (5). (7) The remuneration paid to any actuary appointed by the Board in relation to any investigation made by him under this section shall be deemed to be part of the general expenses of the Board incurred in the administration of this Act. [Section 30 amended: No. 65 of 1947 s. 4; No. 106 of 1965 s. 3; No. 134 of 1976 s. 5; No. 30 of 1984 s. 6; No. 17 of 1987 s. 10; No. 8 of 1993 s. 66; No. 49 of 1996 s. 64; amended in Gazette 16 Feb 2001 p. 1019.] Part IV — Contributions Division 1 — Contributions by employees 31. Continuation of contributions (1) Unless he or she makes an election under section 39A or becomes a member of the Gold State Super Scheme under the State Superannuation Act 2000, an employee who was a contributor under this Act at the commencement of the 1987 Act shall continue to be a contributor while he continues to be an employee and is in all respects subject to and bound by this Act as a contributor. (2) Subject to section 39A, an employee who becomes a contributor under this Act after the commencement of the 1987 Act shall continue to be a contributor while he continues to be an employee and is in all respects subject to and bound by this Act as a contributor. [Section 31 inserted: No. 17 of 1987 s. 11; amended in Gazette 16 Feb 2001 p. 1020.] 32. Election to become a contributor (1) Subject to this section — (a) an employee who is a contributor to the Provident Account under Division 3 of Part VA may, in accordance with section 83C(2), elect to become a contributor for units of pension under this Act; (b) an employee who — (i) is a subscriber to the Provident Account under section 83B or is a member of the Western Australian Public Hospitals (Medical Officers) Superannuation Scheme established under section 12A of the Hospitals and Health Services Act 1927; and (ii) was such a subscriber or member at the commencement of the 1987 Act, may, within 6 months after that commencement, elect to become a contributor for units of pension under this Act. (1a) An election under subsection (1) shall be in writing in a form approved by the Board. (2) An employee is not entitled to become a contributor for units of pension under this Act if he is of an age which will prevent him from completing an aggregate period of 7 years' service under the State before attaining the age for retirement for which he desires to contribute. (3) The Board may require any employee who has made an election under subsection (1) to undergo such medical examination or examinations as it directs. (4) Where, after considering the report or reports of the medical examination or examinations of an employee who has made an election under this section, the Board is of opinion that the employee is not suffering from any physical or mental defect or condition which is likely to render him incapable, before his attaining his maximum age for retirement, of performing his duties as an employee, the Board shall accept the election. (5) Where, after considering the report or reports of the medical examination or examinations undergone by an employee who has made an election under this section, the Board is of opinion that the employee is suffering from any physical or mental defect or condition which is likely to render him incapable, before his attaining his maximum age for retirement, of performing his duties as an employee, the Board shall — (a) refuse to accept the election of that employee to become a contributor; or (b) accept the election, but on condition that the employee shall be a contributor for limited benefits under and for the purposes of section 61. (6) An employee who is a contributor for limited benefits under and for the purposes of section 61 shall cease to be subject to limited benefits for the purposes of that section and for the purposes of the Sixth Schedule — (a) at the expiration of the period of 13 years after he became such a contributor; or (b) upon his satisfying the Board that he is no longer suffering from any physical or mental defect or condition which is likely to render him incapable, before his attaining his maximum age for retirement, of continuing to perform his duties as an employee, whichever first occurs. (7) Where a person has been accepted as a contributor for limited benefits pursuant to an election made under this section the Board shall record any defect or condition, the existence of which was disclosed in the report or reports furnished to the Board, by reason of which the Board declined to accept him as a contributor for ordinary benefits, but accepted him as a contributor for limited benefits. [Section 32 inserted: No. 134 of 1976 s. 6; amended: No. 57 of 1986 s. 6; No. 17 of 1987 s. 12; No. 103 of 1994 s. 18.] 32A. Contributions where employee formerly contributed to similar fund in the service of the Commonwealth and certain States (1) In this section — former employee means a person who immediately prior to his becoming an employee within the meaning of this Act, was a contributor to a similar fund for standard benefits which were not liable to be reduced for ill‑health or other reason; former employment means employment by the Commonwealth or any other State; similar fund means a fund or account established under the law applying to the former employment and providing for superannuation or other like benefits for persons employed in the former employment similar to the purposes of the Fund established pursuant to this Act. (2) Notwithstanding the provisions of section 35 but subject to section 60(9), a former employee — (a) who has received or is entitled to receive payment of an amount which is in satisfaction of contributions made by him to a similar fund and which is in lieu of pension or like benefits; (b) who is appointed as an employee within the meaning of this Act; (c) who, within 3 months of that appointment, elects to contribute under the provisions of this Act to the Fund, may, within that period, credit that amount, or cause that amount to be credited, to the Fund, and thereupon — (d) that amount shall be applied in the redemption forthwith of all further contributions which would otherwise be payable fortnightly in respect of the number of whole units for which that amount is, in the opinion of an Actuary, sufficient, and any surplus therefrom shall be refunded; (e) the former employee shall be entitled to pension and benefits pursuant to the provisions of this Act as if he had become a contributor to the Fund on the date of his initial contribution to the similar fund. [Section 32A inserted: No. 15 of 1973 s. 5; amended: No. 134 of 1976 s. 7; No. 49 of 1996 s. 64.] 33. Provisions in relation to contributors who are also contributors to certain statutory funds [(1) deleted] (2) Where an employee, who elects to become a contributor under this Act, is employed in the Police Department of the State and is liable to contribute to the Police Benefit Fund, such employee shall, as from the date when he becomes a contributor under this Act, cease to be liable or to be entitled or permitted to contribute further to the Police Benefit Fund; but such amount as shall be certified in writing by the Government Actuary to be equivalent to the share of the moneys in or the investments representing the moneys in the Police Benefit Fund to which on the date when the employee became a contributor under this Act such employee would have been entitled as a contributor to the Police Benefit Fund if on such date the Police Benefit Fund had been dissolved and the moneys therein distributed amongst all the then contributors to the Police Benefit Fund upon the basis and in the proportions which, in the opinion of the Government Actuary, would be fair and just, shall be paid forthwith out of the Police Benefit Fund by the authority controlling the same to the Board, and by the Board to be held to the credit of the employee as such contributor under this Act and be applied at the option of the employee for either of the following purposes, that is to say — (a) in satisfaction of the contributions from time to time payable by the contributor under this Act until such time as the amount has been fully applied in such manner; or (b) subject to the regulations and provided the amount is sufficient, in payment forthwith by one lump sum of such sum as may be certified by the State Government Actuary to be required to redeem forthwith all future contributions which would be payable fortnightly under this Act by the contributor in respect of the number of units of pension stated by the State Government Actuary in his certificate: Provided that — (i) where the amount held by the Board as aforesaid can be applied only as to a part thereof for the purpose mentioned in paragraph (b), the amount shall, at the option of the employee, be applied as to such part for the purpose mentioned in paragraph (b) and hereafter the balance of such amount shall be applied for the purpose mentioned in paragraph (a); and (ii) where payment in full for one or more units of pensions has been made in accordance with the provisions of paragraph (b), the number of units of pension in respect of which the contributor shall be liable under this Act to contribute by fortnightly payments shall be the number of units of pension appropriate to his rate of salary from time to time less the number of units of pension paid for in full as aforesaid; and (iii) if any balance of the amount held by the Board as aforesaid remains not applied for any of the purposes aforesaid when the employee for any reason ceases to be a contributor of fortnightly payments of contributions under this Act, such balance shall be paid by the Board to the employee or to his legal representative as the case may require. (3) Where an employee who elects to become a contributor under this Act is employed in the Government Railways and Tramways Department and is liable to contribute to the Railway Death Benefit and Endowment Fund, such employee may, notwithstanding anything to the contrary contained in the Government Railways Act 1904, or in any regulation or by‑law made under that Act, elect at any time after he has become a contributor under this Act to cease to contribute to the Railway Death Benefit and Endowment Fund by a notice in writing signed by him and served upon the authority charged with the administration of or having the management and control of such lastmentioned Fund; and where such an election is made the following provisions shall apply: — (a) As from the receipt of the notice of election by the authority required to be served with such notice the employee shall no longer be liable to contribute to the Railway Death Benefit and Endowment Fund; and (b) the employee shall be entitled to be paid out of moneys standing to the credit of the said Fund and the authority aforesaid shall be and is hereby authorized to pay and shall pay out of moneys standing to the credit of the said Fund to the employee in respect of the contributions then previously made by him to the said Fund such amount as upon an actuarial determination by the Government Actuary is a reasonable surrender value for such contributions; or (c) at the option of the employee, the amount to which he is entitled as mentioned in paragraph (b) shall, instead of being paid to the employee, be paid to the Board and, when paid to the Board, shall be held to the credit of the employee as such contributor under this Act, and be applied at the option of the employee for either of the following purposes, that is to say — (a) in satisfaction of the contributions from time to time payable by the contributor under this Act until such time as the amount has been fully applied in such manner; or (b) subject to the regulations and provided the amount is sufficient, in payment forthwith by one lump sum of such sum as may be certified by the State Government Actuary to be required to redeem forthwith all future contributions which would be payable fortnightly under this Act by the contributor in respect of the number of units of pension stated by the State Government Actuary in his certificate: Provided that — (i) where the amount held by the Board as aforesaid can be applied only as to a part thereof for the purpose mentioned in subparagraph (b), the amount shall, at the option of the employee, be applied as to such part for the purpose mentioned in subparagraph (b), and thereafter the balance of such amount shall be applied for the purpose mentioned in subparagraph (a); and (ii) where payment in full for one or more units of pension has been made in accordance with the provisions of subparagraph (b), the number of units of pension in respect of which the contributor shall be liable under this Act to contribute by fortnightly payments shall be the number of units of pension appropriate to his rate of salary from time to time less the number of units of pension paid for in full as aforesaid; and (iii) if any balance of the amount held by the Board as aforesaid remains not applied for any of the purposes aforesaid when the employee for any reason ceases to be a contributor of fortnightly payments of contributions under this Act, such balance shall be paid by the Board to the employee or to his legal representative as the case may require. (4) Nothing in subsection (3) shall operate or be deemed to operate so as to preclude any employee to whom the subsection applies continuing to contribute to the Railway Death Benefit and Endowment Fund after he has become, and while he continues to be, a contributor under this Act, if he so desires. [Section 33 8 amended: No. 65 of 1947 s. 5; No. 49 of 1996 s. 64.] 34. Provisions relating to employees who are qualified for superannuation allowance under the Superannuation Act 1871 (1) Where an employee employed at the commencement of this Act is qualified by length of service for a superannuation allowance under the provisions of the Superannuation Act 1871 2, and does not become a contributor under this Act this Act shall not operate so as to deprive him of any eligibility for superannuation allowance under the Superannuation Act 1871 2. (2) Where an employee employed at the commencement of this Act, is qualified by length of service for a superannuation allowance under the provisions of the Superannuation Act 1871 2, such employee may elect to become either a contributor or a qualified contributor under this Act and section 32 shall, with such adaptations as are necessary, apply. (3) Where an employee mentioned in subsection (2) elects to become a contributor under this Act he shall be liable to contribute to the Fund under this Act as if he were contributing for the full benefits of a pensioner under this Act, and subject thereto the following provisions shall apply: — (a) If when such employee reaches the maximum age for retirement under this Act he is still a person to whom the Governor may lawfully grant a superannuation allowance under the Superannuation Act 1871 2, such employee may, at his option, take any one of the following benefits, namely — (i) accept the pension benefits of a contribution under this Act, and relinquish all qualification or eligibility for a superannuation allowance under the Superannuation Act 1871 2; or (ii) accept a superannuation allowance under and in accordance with the provisions of the Superannuation Act 1871 2, and a refund from the Board of the amount of the contributions made by him as a contributor in accordance with his obligation under this Act to make such contributions; or (iii) accept from the Board a refund of a sum equal to the difference between the aggregate amount of the contributions made by him as a contributor as aforesaid and the amount determined actuarially to be necessary to pay in full the amount of all the contributions which he would have been liable to make as a qualified contributor, if in the first instance he had elected to become a qualified contributor instead of electing to become a contributor. (b) When any employee elects to take the benefit provided in paragraph (a)(iii) — (i) subject to the Superannuation Act 1871 2, he will continue to be qualified and eligible for the grant of a superannuation allowance under that Act; (ii) he shall not be entitled to any benefits personally as a pensioner under this Act; and (iii) upon his death his widow and children shall be entitled in respect of the units of pension for which the employee was contributing as a contributor under this Act to receive from moneys standing to the credit of the Fund in accordance with this Act the same benefits to which they would have been entitled if the employee had elected to take the benefit provided in paragraph (a)(i); and (c) The employee shall make his choice of the benefit under paragraph (a) which he desires to take and shall give notice thereof in writing in the prescribed form to the Board not later than one month after he is notified that he is qualified and eligible for a superannuation allowance under the Superannuation Act 1871 2, or within such further period as the Board may allow. (4) Where an employee mentioned in subsection (2) elects under this section to become a qualified contributor the following provisions shall apply: — (a) Subject to the Superannuation Act 1871 2, the employee will continue to be qualified and eligible for the grant of a superannuation allowance under that Act; (b) the employee shall not be entitled to any benefits personally as a pensioner under this Act; (c) the employee shall contribute to the Fund at a rate to be prescribed by regulations for any number of units of pension for which under this Act he may contribute as a contributor; and (d) upon the death of the employee his widow and children shall be entitled in respect of the units of pension for which the employee was contributing as a qualified contributor in accordance with this Act the same benefits to which they would have been entitled if the employee had been a contributor or a pensioner under this Act. [Section 34 8 amended: No. 65 of 1947 s. 5; No. 49 of 1996 s. 64.] [35. Deleted: No. 134 of 1976 s. 8.] 36. Commencement and cessation of contributions (1) Subject to this Act and except as otherwise provided in this Act, every employee who becomes a contributor or a qualified contributor shall contribute to the Fund from such date (not being more than 6 months after the commencement of this Act) as the Governor notifies in the Government Gazette in the case of an employee employed at the commencement of this Act or after commencement of this Act and on or before the date notified as aforesaid, or, in the case of an employee whose employment commences after the date so notified, from the date of the employee's election to become a contributor. (2) An employee in the service at the commencement of this Act who at that date had not reached his maximum age for retirement and in accordance with the provisions of section 32, and within the period prescribed by that section gave the necessary notice of his election to become a contributor or a qualified contributor, but who attained his maximum age for retirement before the date notified for the commencement of contributions pursuant to subsection (1), shall, subject to payment of his initial contribution on the date appointed under this Act for the payment thereof, be deemed actually to have become a contributor or a qualified contributor, as the case may be, within the meaning and for the purposes of this Act and to have paid his initial contribution within 12 months before he attained his maximum age for retirement as aforesaid and shall be bound by the provisions of this Act, and shall be entitled to the benefits provided by this Act accordingly, notwithstanding that after attaining his maximum age for retirement he ceased to be an employee. (3) The following provisions shall apply in relation to the cessation of payments of contributions, that is to say — (a) the contributions of a contributor and of a qualified contributor shall, subject to the next succeeding paragraph, cease to be paid when he ceases to be employed in the service, or immediately after the last periodical payment of contribution before the anniversary of his initial contribution next preceding the attainment by him of the maximum age for retirement, whichever first happens; and (b) in the case of a contributor or of a qualified contributor whose initial contribution is paid within 12 months before he attains the maximum age for retirement 26 contributions at the periodical rates applicable to the contributor or to the qualified contributor shall be paid before pension in respect of superannuation shall become payable. (c) For the purposes of paragraph (a) and paragraph (b), the initial contribution of an employee in respect of any additional unit or part thereof for which he has elected to contribute shall be deemed to have been made on the date as from which the contribution in respect of such additional unit or part became payable. (4) A contributor or a qualified contributor — (a) who elects or is called upon to retire on or after attaining the age of 60 years; or (b) whose maximum age for retirement is fixed at an earlier age than 65 years, but not less than 60 years, and who retires on attaining the age so fixed may, notwithstanding anything contained in this section, contribute in a lump sum or in such smaller sums and at such periods as the Board approves, the actuarial equivalent of the amount necessary to complete his payments to the Fund up to a later age (not exceeding the age of 65 years). (5) A contributor or pensioner or a qualified contributor — (a) who was, at the time of his retirement, contributing for a number of units not less than his primary unit entitlement; (b) whose salary has been increased subsequently but from a date prior to his retirement to a higher salary group in column one of the scale contained in section 37(1) than the salary group in which it fell prior to the increase may elect to contribute such an amount as will provide additional units of pension but so that the total number of units shall not exceed the number specified in column 2 of the scale contained in section 37(1) opposite to that higher salary group. Provided that in respect of those units 26 contributions at the rate applicable to his age at retirement shall be made before pension in respect of superannuation shall become payable and upon payment of those contributions the pension shall become payable as from the date of retirement in the case of a contributor, and, in the case of a qualified contributor, the pension to his widow shall become payable after the death of the qualified contributor following the payment of the contributions. [Section 36 8 amended: No. 43 of 1939 s. 7; No. 39 of 1950 s. 6; No. 25 of 1951 s. 2; No. 36 of 1955 s. 2; No. 75 of 1973 s. 6.] 36A. Contributions under salary sacrifice agreement (1) If a contributor has entered into a salary sacrifice agreement with the contributor's employer, contributions made by the employer under the agreement are, for the purposes of this Act, to be taken to have been made by the contributor. (2) In this section — salary sacrifice agreement means an agreement under which a contributor's employer agrees to pay, as part of a contributor's remuneration, contributions that would otherwise be payable by the contributor under this Act. [Section 36A inserted in Gazette 16 Feb 2001 p. 1020.] Division 2 — Scale of units 37. Scale of units of pension (1) Subject to this Act, contributions by a contributor and by a qualified contributor shall be in respect of units of pension as defined in section 58, and the maximum number of units in respect of which a contributor or a qualified contributor may contribute shall have relation to the salary of the employee (a) in accordance with scale A appended to this subsection if the employee commenced contributing before 1 January 1958; or (b) in accordance with column 2 of scale B appended to this subsection if the employee (i) commences contributing on or after that day; or (ii) having commenced contributing before that day in respect of any number of units elects to contribute after that day for an increase in the number of units, in which case scale B applies only in respect of the increase in the number of units. Scale A Column 1 Column 2 Where the annual salary of the employee in terms of the currency existing at 1 January 1958 The employee may contribute the amount necessary to provide units of pension as under exceeds does not exceed £ £ ‑ 130 2 130 156 2½ 156 208 3 208 260 4 260 312 5 312 364 6 364 416 7 416 468 8 468 520 9 520 572 10 572 624 11 624 676 12 676 728 13 728 780 14 780 832 15 832 884 16 884 936 17 936 988 18 988 1 040 19 1 040 1 144 20 1 144 1 248 21 1 248 1 352 22 1 352 1 456 23 1 456 1 560 24 1 560 1 664 25 1 664 ‑ 26 Scale B Column 1 Column 2 Column 3 Column 4 where annual salary exceeds does not exceed total unit entitlement primary unit entitlement non-contributory unit entitlement $ $ ‑ 324 2 2 ‑ 324 390 2½ 2½ ‑ 390 520 3 3 ‑ 520 650 4 4 ‑ 650 780 5 5 ‑ 780 910 6 6 ‑ 910 1 040 7 7 ‑ 1 040 1 170 8 8 ‑ 1 170 1 300 9 9 ‑ 1 300 1 430 10 10 ‑ 1 430 1 560 11 11 ‑ 1 560 1 690 12 12 ‑ 1 690 1 820 13 13 ‑ 1 820 1 950 14 14 ‑ 1 950 2 080 15 15 ‑ 2 080 2 210 16 16 ‑ 2 210 2 340 17 17 ‑ 2 340 2 470 18 18 ‑ 2 470 2 600 19 19 ‑ 2 600 2 860 20 20 ‑ 2 860 3 120 22 21 1 3 120 3 380 24 22 2 3 380 3 640 26 23 3 3 640 3 900 28 24 4 3 900 4 160 30 25 5 4 160 4 420 32 26 6 4 420 4 680 34 27 7 4 680 4 940 36 28 8 4 940 5 200 38 29 9 5 200 5 460 40 30 10 5 460 5 720 42 31 11 5 720 5 980 44 32 12 5 980 6 240 46 33 13 6 240 6 500