{"id":"F2015L01519","name":"Superannuation Industry (Supervision) modification declaration No. 1 of 2015","slug":"superannuation-industry-supervision-modification-declaration-no-1-of-2015","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":173079,"registerId":"commonwealth-F2015L01519-current","compilationNumber":null,"startDate":"2026-04-05","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Schedule - the class of persons to whom ","sectionType":"part","heading":"Schedule - the class of persons to whom this declaration applies","content":"#   \nSchedule \\- the class of persons to whom this declaration applies\n\nAll RSE licensees of registrable superannuation entities that are regulated superannuation funds.","sortOrder":0},{"sectionNumber":"Schedule - the manner in which the speci","sectionType":"part","heading":"Schedule - the manner in which the specified modifiable provisions are modified","content":"# Schedule \\- the manner in which the specified modifiable provisions are modified\n\nRegulation 5.08 of the Regulations is modified by inserting after subregulation 5.08(2):\n\n“(2A) Subregulation (1) does not apply in relation to an amount of minimum benefits of a member (the forfeited member) in an accumulation fund (the forfeiting fund) that is not a self-managed superannuation fund if all the following conditions are satisfied:\n\n    (a) The amount is attributable only to non-mandated employer contributions that were made, for the benefit of the forfeited member, to:\n\n(i) the forfeiting fund; or\n\n(ii) another regulated superannuation fund (other than a self-managed superannuation fund) of which the forfeited member was a member and in which the forfeited member did not have a defined benefit interest.\n\n(b) The forfeited member’s entitlement to the amount is subject to certain minimum service provisions (the applicable minimum service provisions) that are contained in one or more of the following:\n\n(i) the governing rules of the forfeiting fund;\n\n(ii) a written agreement between the forfeited member and the forfeited member’s employer;\n\n(iii) an award relating to the forfeited member’s conditions of employment;\n\n(iv) a certified agreement relating to the forfeited member’s conditions of employment.\n\nNote: Some of the applicable minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.\n\n(c) The forfeited member failed to satisfy the minimum service requirement contained in the applicable minimum service provisions.\n\n(d) As a result of that failure, the forfeited member lost their entitlement to the amount.\n\n(e) Either:\n\n(i) the applicable minimum service provisions applied to the forfeited member during the whole of the period (the post-11 May 2004 period) from 11 May 2004 to the occurrence of the forfeiting event; or\n\n(ii) the applicable minimum service provisions applied to the forfeited member during the latter part of the post-11 May 2004 period and predecessor minimum service provisions applied to the member during the rest of the post-11 May 2004 period.\n\n(f) If subparagraph (e)(i) applies - the trustee of the forfeiting fund is satisfied, on reasonable grounds, that the applicable minimum service provisions are not more unfavourable to the forfeited member than the predecessor minimum service provisions.\n\nNote: An example of the applicable minimum service provisions being more unfavourable to the forfeited member than the predecessor minimum service provisions is where the predecessor minimum service provisions specify a minimum service period of 10 years, while the applicable minimum service provisions specify a minimum service period of 12 years.\n\n(g) If any of the applicable minimum service provisions are contained in the governing rules of the forfeiting fund - the trustee of the forfeiting fund believes, on reasonable grounds, that the provisions, or their effect, were disclosed to the forfeited member in accordance with applicable disclosure requirements imposed by or under the Act or the Corporations Act 2001.\n\n(h) The contributions mentioned in paragraph (a) were required to be made by:\n\n(i) the applicable minimum service provisions; or\n\n(ii) predecessor minimum service provisions.\n\nNote 1: Note the use of the term required in paragraph (h). If, under the applicable minimum service provisions or predecessor minimum service provisions, the employer merely has a discretion to make non-mandated employer contributions to the fund for the benefit of the forfeited member, but is not obliged to make the contributions, the exception in subregulation (2A) will not apply to the minimum benefits financed by such discretionary contributions.\n\nNote 2: If a member loses their entitlement to an amount of benefits in the manner described in subregulation (2A), the amount cannot be paid out to the employer unless the payment complies with section 117 of the Act.\n\nInterpretation\n\n(2B) In this regulation:\n\nAct means the Superannuation Industry (Supervision) Act 1993.\n\napplicable minimum service provisions has the meaning given in subregulation (2A).\n\naward means an award relating to conditions of employment which is made by an employment tribunal under a law of the Commonwealth, a State or a Territory.\n\ncertified agreement means an agreement relating to conditions of employment which is certified, approved or registered by an employment tribunal under a law of the Commonwealth, a State or a Territory.\n\nemployment tribunal means a tribunal or body having authority under a law of the Commonwealth, a State or a Territory to make an award or to certify, approve or register an agreement relating to conditions of employment.\n\nforfeited member has the meaning given in subregulation (2A).\n\nforfeiting event, in relation to the forfeited member, means the event (involving ceasing to be an employee or member) which results in the forfeited member failing to satisfy the minimum service requirement in the applicable minimum service provisions, and consequently losing their entitlement to the amount of minimum benefits mentioned in subregulation (2A).\n\nforfeiting fund has the meaning given in subregulation (2A).\n\nminimum service provisions has the meaning given in subregulation (2C).\n\nminimum service requirement has the meaning given in subregulation (2C).\n\nnon-mandated employer contributions means employer contributions other than mandated employer contributions.\n\npredecessor minimum service provisions has the meaning given in subregulation (2D).\n\n(2C) In this regulation, minimum service provisions means provisions that satisfy all the following conditions:\n\n    (a) The provisions are contained in one or more of the following:\n\n(i) the governing rules of a regulated superannuation fund (other than a self-managed superannuation fund);\n\n(ii) a written agreement between a member of the fund and the member’s employer;\n\n(iii) an award relating to the member’s conditions of employment;\n\n(iv) a certified agreement relating to the member’s conditions of employment.\n\nNote: Some of the minimum service provisions may be contained in one of the documents mentioned in subparagraphs (i) to (iv) while others may be contained in another of those documents.\n\n(b) The provisions require the member’s employer to make non-mandated employer contributions to the fund for the benefit of the member.\n\n(c) The provisions make the member’s entitlement to the benefits that are attributable to those non-mandated employer contributions conditional or contingent on the member satisfying a stipulation (a minimum service requirement) contained in the provisions that the member be, for a specified minimum period (a minimum service period):\n\n(i) an employee (or a particular class or category of employee) of the employer; or\n\n(ii) an employee (or a particular class or category of employee) of a person (a previous employer) who previously carried on the business of the employer; or\n\n(iii) an employee (or a particular class or category of employee) of a related body corporate (a related employer) of the employer or a previous employer; or\n\n(iv) a member (or a particular class or category of member) of the fund; or\n\n(v) a member (or a particular class or category of member) of another regulated superannuation fund (other than a self-managed superannuation fund) to which the employer, a previous employer or a related employer made contributions for the benefit of the member.\n\nNote: The minimum service requirement may require the member to belong to only one of the categories mentioned in paragraphs (i) to (v), or to only some of those categories. For example, a given minimum service requirement may require the member to be an employee of either the employer or a related employer for a minimum of 10 years.\n\nAlso, a minimum service requirement may permit the member to be in different categories during different parts of the minimum service period (as long as the member is in one or other of those categories at all times during that period).\n\n(2D) In this regulation, predecessor minimum service provisions, in relation to the applicable minimum service provisions, means:\n\n(a) an earlier version of the applicable minimum service provisions, which applied to the forfeited member when they were a member of the forfeiting fund; or\n\n(b) other minimum service provisions, which applied to the forfeited member when they were a member of another regulated superannuation fund (other than a self-managed superannuation fund) from which they were subsequently transferred to the forfeiting fund.”","sortOrder":1}],"analysis":{"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"kimi_summary":{"content_quality":"ok","complexity_score":7,"scope_assessment":{"changed":false,"description":"This is a targeted modification declaration under the Superannuation Industry (Supervision) Act, which is the standard mechanism for creating exceptions to superannuation regulations. The scope remains precisely limited to the specific policy problem it addresses: allowing forfeiture of voluntary employer contributions tied to minimum service periods. It does not expand beyond this narrow technical fix."},"complexity_factors":["Nested conditional structure: 8 separate conditions (paragraphs a-h) must all be satisfied simultaneously for the exception to apply","Extensive cross-referencing: Multiple subregulations define terms used in other subregulations (2B, 2C, 2D all interlinked)","Temporal complexity: Requires tracking of 'post-11 May 2004 period' and comparison between 'applicable' vs 'predecessor' minimum service provisions","Multiple document sources: Conditions can be spread across governing rules, written agreements, awards, and certified agreements — with explicit notes that provisions can be split across documents","Defined terms: 11 specific defined terms in subregulation 2B alone, plus additional definitions in 2C and 2D","Hierarchical definitions: Terms like 'minimum service provisions' are themselves defined through multi-part tests (paragraphs a-c in 2C, with sub-paragraphs i-v)","Discretionary vs mandatory distinction: Note 1 creates a subtle but critical distinction between 'required' and 'discretionary' contributions that could trap unwary readers","Multiple entity relationships: Provisions must track relationships between employer, previous employer, related body corporate, and related employer across different funds"],"plain_english_summary":"This legislation creates a narrow exception to preservation rules so employers can claw back voluntary, conditional super contributions if an employee leaves before meeting a contract’s minimum service requirement. It applies to regulated super funds (RSE licensees) and employees covered by such minimum-service provisions and proper disclosure.\n\nWhy it matters: it lets employers offer enhanced super as a retention tool without being unable to recover those conditional contributions, subject to strict safeguards — including compliance with section 117 limits on payments to employers."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"This instrument narrows the operation of regulation 5.08(1) by inserting an exception (new subreg (2A)) permitting forfeiture of certain non‑mandated employer contributions where specific minimum service provisions apply and conditions are met. It therefore changes the regulatory scope for RSE licensees of regulated (non‑SMSF) funds by authorising trustees to withhold or retain amounts in specified circumstances and by allocating decision‑making and compliance burdens to trustees, employers and affected members (see subregs (2A)–(2D))."},"complexity_factors":["Multiple interlocking defined terms (forfeited member, forfeiting fund, applicable/predecessor minimum service provisions) across subregs (2A)–(2D)","Temporal complexity tied to the post‑11 May 2004 period and possible predecessor provisions (subreg (2A)(e), (2D))","Cross‑document inquiry required: governing rules, written agreements, awards and certified agreements may together determine entitlement (subreg (2A)(b), (2C)(a))","Distinction between 'required' and discretionary employer contributions affects applicability (note to subreg (2A)(h))","Trustee factual judgment 'satisfied, on reasonable grounds' about comparative favourability and disclosure creates discretionary decision points and evidentiary burden (subreg (2A)(f),(g))","Exclusion of self‑managed superannuation funds narrows scope but adds segmentation in application","Interaction with external rules for paying amounts to employers (cross‑reference to s117) introduces statutory compliance constraints (note to subreg (2A))","Multiple factual pathways to trigger forfeiture (failure to satisfy minimum service requirement; transfer between funds) increase case variety and administrative complexity"],"plain_english_summary":"This modification to regulation 5.08 creates a limited exception allowing trustees of RSE‑licensed regulated superannuation funds (not self‑managed funds) to forfeit certain non‑mandated employer contributions when a member fails contracted minimum service requirements. It sets conditions — including post‑11 May 2004 timing, that contributions were required (not discretionary), trustee satisfaction and disclosure — and makes trustees the decision‑makers while imposing evidentiary and compliance obligations on funds, employers and affected members."}},"importantCases":[],"_links":{"self":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015","history":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015/history","analysis":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015/analysis","conflicts":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015/conflicts","importantCases":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015/important-cases","documents":"/api/acts/superannuation-industry-supervision-modification-declaration-no-1-of-2015/documents"}}