Superannuation Act 1916 (NSW)

Superannuation Act 1916 No 28 An Act to provide a State provident fund for persons employed by the State or by certain other bodies, and for the families of such persons; to amend and repeal various Acts; and for purposes consequent thereon or incidental thereto. Part 1 Preliminary 1 Name of Act and commencement This Act may be cited as the Superannuation Act 1916 and shall, except where otherwise provided, come into operation on the first day of July, one thousand nine hundred and nineteen. 1A Closure of Scheme to persons employed on or after 1.7.1985 (1) Notwithstanding any other provision of this Act (except subsection (3)), a person is not required or entitled to commence contributing to the Fund on or after 1 July 1985. (2) Subsection (1) applies, subject to subsection (3), to a person who was previously a contributor to the Fund, whether before or after 1 July 1985. (3) Subsection (1) does not apply to— (a) a person who was, immediately before 1 July 1985, an employee but was not contributing to the Fund, being a person to whom Schedule 21 applies and who elects to become a contributor to the Fund in accordance with that Schedule, (b) a person who makes an election under section 38C and complies with that section, (c) a person who is re-employed by an employer under section 51 (1) after the restoration of the person's health, or (c1) a person exercising a transfer option conferred under Part 6 or Part 7 of the Superannuation Administration Act 1996 to rejoin the Fund, (d) a person of a class prescribed by the regulations. (4) Schedule 21 has effect. (5) Regulations may be made for or with respect to elections under Schedule 21 or to any other matter necessary or convenient to be prescribed for the purposes of this section. 2 (Repealed) 3 Definitions (1) In this Act, unless inconsistent with the context or subject-matter— Abandoned unit, in relation to an employee, means— (a) a unit of pension which the employee has, in accordance with this Act, elected to abandon, (b) a unit of pension in respect of which the employee is not to contribute, or has ceased contributing, to the Fund, by reason of electing, in accordance with this Act, to reduce the number of units of pension in respect of which the employee is to contribute, (c) a unit of pension in respect of which the employee has, in accordance with this Act, elected not to contribute to the Fund, or (d) a unit of pension the contributions for which are refunded to the employee or the employee's spouse or de facto partner under section 10AH (3), but does not include a unit of pension to which an election under section 10W (2) relates. Note— "De facto partner" is defined in section 21C of the Interpretation Act 1987. Annual adjustment day, in relation to a contributor, means the day determined to be the contributor's annual adjustment day under section 10L. Annual review day, in relation to a contributor, means the day determined to be the contributor's annual review day under section 10L. Appointed day means the day upon which Part II of the Currency Act 1965 of the Parliament of the Commonwealth of Australia commences. Approved deposit fund means an approved deposit fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth. Aware Super Fund has the same meaning as Fund has in the Aware Super Act 1992. Child means a child who has not attained the age of 18 years and, without limiting the operation of the Status of Children Act 1996, includes an ex-nuptial or adopted child (whether or not the adoption took place in Australia). Commonwealth taxation law means a law of the Commonwealth that provides for the levying and collection of a tax. Contribution period means a four-weekly period commencing on and including a date specified in Column 2 of Schedule 16 and ending on and including the date specified opposite thereto in Column 3 of that Schedule. Contributor means an employee and includes a person who has elected to take the benefit of Division 3A of Part 4, but does not include— (a) an employee while exempted from contributing to the Fund (whether before, on or after 13 January 1977), (b) an employee while rejected or not accepted as a contributor under this Act as in force at any time before 13 January 1977, or (c) an employee to whom clause 4 (1) of Schedule 17 applies. Contributors' reserve means the reserve for contributors' contributions established and maintained under section 5 (1). Contributory unit means a unit of pension other than a reduced value unit, an abandoned unit or a reserve unit of pension under section 15A. Deferred annuity means a deferred annuity within the meaning of Part 5 of the Superannuation Industry (Supervision) Regulations of the Commonwealth. Discharged has the meaning given to that expression by section 23 (2). Dismissed has the meaning given to that expression by section 24. Employee means person employed by an "employer," and who is by the terms of the person's employment required to give the person's whole time to the duties of the person's employment or who is a part-time employee, but does not include a Judge of the Supreme Court, or a judicial member of the Industrial Relations Commission of New South Wales, or a Judge of the District Court, or a Judge of the Compensation Court, or an associate Judge of the Supreme Court, or, subject to subsection (4B), the Solicitor General, or a professor of the University of Sydney, or a professor of the University of New England, or a professor of the Macquarie University, or a professor of the University of Newcastle, or, subject to subsection (4), a professor of The University of New South Wales, or, subject to subsection (4A), a professor of The University of Wollongong, or a person who is subject to the provisions of the Railways Superannuation Act 1910, or the Transport Employees Retirement Benefits Act 1967, or the New South Wales Retirement Benefits Act 1972, or the Police Regulation (Superannuation) Act 1906, or a person who is paid at hourly, daily, weekly, or fortnightly rates, or by piece-work, otherwise than as provided by subsection (1A). Employer means— (a) the Crown, the Government or a Minister or other member of Parliament, or (b) an authority listed in Schedule 3, or (c) an authority to which section 3B (4) applies, and a reference to employment with an employer includes a reference to employment with successive employers. Employer reserve means a reserve referred to in section 5 (1) (b). Employing authority means any person, body or organisation, whether or not constituted under an Act and whether or not an employer, who or which employs persons. Entry payment day, in relation to an employee, means the day determined to be the employee's entry payment day under section 10K. Entry review day, in relation to an employee, means the day determined to be the employee's entry review day under section 10K. Executive officer means a contributor 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 3 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 day, in relation to an employee, means the last day on which the employee is, in the opinion of STC, an employee, whether the employee is an employee for the whole or part only of that day. Family law superannuation legislation has the same meaning as it has in Part 4A. Financial year means the year commencing 1 July. Maturity age means— (a) in the case of an employee who, being a woman contributor, elected to contribute at the rate prescribed for retirement at the age of 55 years—the age of 55 years, or (b) in the case of any other employee—the age of 60 years. Non-contributor spouse has the same meaning as it has in Part 4A. Part-time employee has the same meaning as it has in section 12C. Penalty, in relation to a Commonwealth taxation law, includes (but is not limited to)— (a) a penalty rate of taxation under that law, and (b) the loss of a concessional rate of taxation under that law. Police executive officer means an executive officer within the meaning of Part 5 of the Police Act 1990. Prescribed age means— (a) in the case of an employee who, being a woman contributor, elected to contribute at the rate prescribed for retirement at the age of 55 years—the age of 50 years, or (b) in the case of any other employee—the age of 55 years. Reduced value unit means a reduced value unit allocated under section 47C. Regulations means regulations under this Act. 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. Relieving allowance means an allowance paid to the holder of an office or position for performing any or all of the duties of another office or position, without the person's being appointed to that other office or position on a permanent basis. Resigned has the meaning given to that expression by section 25. Retrenched has the meaning given to that expression by section 23 (1). Salary, in relation to a contributor, means salary of the contributor, determined in accordance with section 3AA or 3A and expressed as an annual rate. Salary sacrifice contribution—see section 10U (2). Service means service under or employment by one or more employers. Spouse of a contributor or pensioner who has died means the surviving spouse (including widow or widower) of the contributor or pensioner. STC means the SAS Trustee Corporation continued under the Superannuation Administration Act 1996. Superannuation contributions surcharge means the superannuation contributions surcharge imposed under the Superannuation Contributions Tax Imposition Act 1997 of the Commonwealth. Superannuation guarantee shortfall has the same meaning as in the Superannuation Guarantee (Administration) Act 1992 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. The Fund means the State Superannuation Fund established for the purposes of this Act. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (1A) A person who is an employee and a contributor does not cease to be a contributor just because at any time after 30 June 1992 the person is paid at hourly, daily, weekly or fortnightly rates, or by piece-work. (2) (a) Notwithstanding anything in the definition of employee a person appointed as a professor of the University of Sydney who, at the date of the person's appointment as such, was a contributor, and who, after such appointment, in addition to such professorship, continues in the employment of an employer in some other capacity, shall be deemed to be an employee for the purposes of this Act and shall, subject to this subsection, continue to be a contributor. (b) This subsection shall apply to and in respect of any such person appointed as a professor before as well as after the commencement of the Superannuation (Amendment) Act 1944. (c) Any such person appointed as a professor before such commencement shall cease to be a contributor unless, within three months after such commencement, the person satisfies STC that the person is no longer a party to any scheme or arrangement to which the University of Sydney is also a party, under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (d) Any such person appointed as a professor after such commencement shall cease to be a contributor if, after such appointment, the person becomes or continues to be a party to any scheme or arrangement to which the University of Sydney is also a party, under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (3) (a) A person appointed as a professor of the University of Sydney or the University of New England may elect to contribute to the Fund, and if the person so elects shall notwithstanding the definition of employee contained in subsection (1) be deemed to be an employee for the purposes of this Act. This subsection shall apply to and in respect of any such person appointed as a professor before as well as after the commencement of this subsection. (b) The election referred to in paragraph (a) shall be in writing and shall be forwarded so as to be received in the office of STC within a period of three months from the date on which the person is appointed as a professor or within such longer period as STC may, in special circumstances, allow, or in the case of a person appointed as a professor before the commencement of this subsection, within three months after such commencement. (c) (Repealed) (d) Any person who makes the election referred to in paragraph (a) shall cease to be a contributor unless within the time prescribed for making that election the person satisfies STC that the person is not a party to any scheme or arrangement to which the University of Sydney or the University of New England, as the case may be, is also a party and under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (e) Any person appointed as a professor as aforesaid shall cease to be a contributor if the person becomes or continues to be a party to any scheme or arrangement to which the University of Sydney or the University of New England, as the case may be, is also a party and under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (f) Subject to paragraphs (d) and (e), any professor who makes the election referred to in paragraph (a) shall be entitled to the rights and be subject to the obligations of an employee under this Act. (g) The provisions of this subsection shall apply, mutatis mutandis, to and in respect of professors of the Macquarie University. (h) The provisions of this subsection shall apply, mutatis mutandis, to and in respect of professors of the University of Newcastle. (4) (a) Subject to this subsection, the exclusion from the definition of Employee of a professor of The University of New South Wales shall not extend to a person whose rights as a contributor are continued by section 2 of the University of New South Wales Act 1968. (b) A person who is a professor of The University of New South Wales shall cease to be a contributor if, after the commencement of the University of New South Wales Act 1968, the person becomes or continues to be a party to any scheme or arrangement to which that University is also a party and under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (c) The provisions of subsection (3) shall apply, mutatis mutandis, to professors of The University of New South Wales other than those who are employees by virtue of paragraph (a). (4A) (a) Subject to this subsection the exclusion from the definition of Employee of a professor of The University of Wollongong shall not extend to a person whose rights as a contributor are continued by section 40 of the University of Wollongong Act 1972. (b) A person who is a professor of The University of Wollongong shall cease to be a contributor if, after the commencement of Part 3 of the University of Wollongong Act 1972, the person becomes, or continues to be, party to any scheme or arrangement to which that University is also a party and under which the person is or may become entitled to any pension or annuity or retiring allowance upon retirement from the person's professorship. (c) The provisions of subsection (3) shall apply, mutatis mutandis, to professors of The University of Wollongong other than those who are employees by virtue of paragraph (a). (4B) A person appointed as Solicitor General who, at the date of the person's appointment, was a contributor may elect to continue to contribute to the Fund and if the person so elects shall, notwithstanding the definition of Employee in subsection (1), be deemed to be an employee for the purposes of this Act. (5) (Repealed) (6) For the purposes of this Act, the salary group within which a salary falls is— (a) in the case of a salary that does not exceed five thousand two hundred dollars—the salary group specified in the scale in paragraph (a) of subsection (1) of section 12 that is appropriate for the salary, or (b) in the case of a salary that exceeds five thousand two hundred dollars—the salary group in the scale in paragraph (a) of subsection (1) of section 12 in which the salary would fall if the scale were extended to express the unit entitlement for that salary as provided by paragraph (b) of that subsection. (7) For the purposes of this Act, the number of abandoned units of pension that a person has at a particular time after the commencement of the Superannuation (Amendment) Act 1972 is the number (if any) by which— (a) the number of units of pension that, pursuant to subsection (1) of section 12, is appropriate for a salary equal to the person's salary at that time, exceeds (b) the number of units of pension in respect of which pension would be paid— (i) if the person had reached the age entitling the person to retire under subsection (1) of section 21 and had so retired, and (ii) if any contributions under section 10AH, 12B or 12C outstanding at that time in respect of any of those units of pension had been paid. (8) Where a contributor employed at a university referred to in this section ceases to be a contributor by reason only of the operation of this section following his or her appointment as a professor at that university the person shall, for the purposes of sections 38, 38A and 38B, be deemed to have, immediately before that appointment, resigned from the service of that university. (9) A person who, but for this subsection, would not be an employee until salary is actually paid to the person shall, for the purposes of this Act, be deemed to become an employee as from the day when salary is or was payable to the person or such later day as STC may fix in respect of the person. (10) (Repealed) (11) A reference in this Act to a pension payable to a person who is a spouse or de facto partner is a reference to a pension payable under section 30, 31 or 52F to the person in her or his capacity as a spouse or de facto partner. (11A)–(11C) (Repealed) (12) A reference in this Act (except in sections 32C and 44 (2)) to a child in respect of whom a pension is payable (being a pension payable at a rate determined in accordance with section 61M or 61N) includes a reference to a student in respect of whom a pension is payable under section 43A or 52H at that rate. (13) Where, under this Act, any period is required to be expressed as a fractional part of a year, the period shall be expressed as a fractional part of 365.25 days. (14) Notes included in this Act do not form part of this Act. 3AAA (Repealed) 3AA 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 officer's 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 this Act and the State Authorities Non-contributory Superannuation Act 1987 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. (6A) Change of salary on change of work The amount of salary nominated for the purposes of this Act is, on an executive officer becoming a full-time employee after being a part-time employee or becoming a part-time employee after being a full-time employee, changed so that it is an amount equal to the same percentage of the employee's remuneration package after the change in work as the amount previously nominated was of the remuneration package before the change. This subsection does not prevent an executive officer from making an election under subsection (5) or (6) at any time after the change in work. (6B) Limit on part-time salary changes An executive officer who is a part-time employee appointed to a full-time position may not make an election under subsection (6) nominating an amount of salary that is more than the amount of the officer's remuneration package, calculated as if the officer were employed in a part-time position (less the cost of providing employer's contributions to superannuation, other than salary sacrifice contributions, under this Act and the State Authorities Non-contributory Superannuation Act 1987 and any performance-related incentive payment). (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, within the meaning of the Government Sector Employment Act 2013, 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. 3A Salary (1) For the purposes of this Act, salary, in relation to a contributor (other than an executive officer) means the sum of— (a) the remuneration, salary or wages payable in money to the contributor in the contributor's capacity as a contributor, as reported to STC from time to time by the contributor's employer, including— (i) a loading in respect of any shift allowance, as determined by or under this Act, 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 contributor 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 are made in respect of the contributor, the amounts payable for those contributions under section 10U (3) (a) and (b), and (b) if approved employment benefits are provided to the contributor, 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 contributor, and (b) the salary actually paid to that contributor while partially incapacitated, exceeds the salary that the contributor would probably have been earning but for the injury (assuming the contributor 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 a contributor is to be treated as salary for the purposes of this Act, being a date not earlier than— (a) 21 December 1984, or (b) if the liability to pay weekly workers compensation in respect of the contributor first arose on a date later than 21 December 1984—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 Schedule 24, 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 contributor takes extended leave (or leave in the nature of extended leave) otherwise than on full pay, such part of the remuneration received by the contributor 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 a contributor'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 contributor in the contributor'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 a contributor in the contributor's capacity as an employee for a continuous period of 1 year that ends after the commencement of this section and, during that period, the allowance has not been treated as part of the contributor'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 contributor's salary while its payment to the contributor continues. (4A) For the purposes of subsection (4), a reference to a continuous period of 1 year is in relation to a contributor who is employed in an educational institution to be read as a reference to the academic year of the institution. (5) 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 a contributor at the cost of the contributor'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 contributor or a class of employees of which the contributor 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 a contributor, means weekly payments of compensation under the Workers Compensation Act 1987 (or the provisions of