4Application of Act

4 Application of Act S. 4(1) amended by Nos 81/1988 s. 3(c), 49/1992 s. 34. (1) A person who is an employee and is entitled to any benefits from— S. 4(1)(a) amended by No. 81/1988 s. 3(b). (a) the State Superannuation Fund; or (b) the Hospitals Superannuation Fund; or S. 4(1)(c) repealed by No. 64/1991 s. 4(b). (d) any approved superannuation arrangement— may, within the period or periods determined by the Board, choose to contribute to the Scheme. S. 4(1A) inserted by No. 81/1988 s. 3(d), amended by No. 82/1996 s. 20(4). (1A) A person who is an employee but is not as at the day on which section 3(d) of the **Superannuation Acts (Amendment) Act 1988** comes into operation entitled to any benefits from a superannuation fund or arrangement to which subsection (1) applies may within the prescribed period under the Emergency Services Superannuation (Election to Contribute) Regulations 1988 or a subsequent period determined by the Board choose to contribute to the Scheme. S. 4(1B) inserted by No. 81/1988 s. 3(d), amended by Nos 82/1996 s. 20(5)(a)(b), 40/2010 s. 5(1). (1B) Despite paragraph (e) of the definition of ***employee*** in section 3, an officer of the Department of Sustainability and Environment or Department of Primary Industries who is transferred to an office which was held by a person or a class of persons declared for the purposes of that paragraph may within the period of 3 months after that transfer elect to continue to be a member of the State Superannuation Fund. S. 4(1BA) inserted by No. 82/1996 s. 20(6). (1BA) If an officer to whom subsection (1B) applies— (a) does not make an election under that subsection; and (b) subsequently ceases to hold the office referred to in that subsection; and (c) continues to be eligible to be a member of a public sector superannuation scheme— the officer may within the period of 3 months after ceasing to hold that office elect to continue to contribute to the Scheme or to transfer to the new scheme under the **State Superannuation Act 1988**. S. 4(1C) inserted by No. 81/1988 s. 3(d). (1C) For the purposes of the definition of ***employee*** in section 3, a person who is appointed under an Act to an office for a fixed term of years is to be taken to be employed permanently. S. 4(1D) inserted by No. 81/1988 s. 3(d). (1D) Despite paragraphs (a), (c) and (d) of the definition of ***employee*** in section 3, a person who becomes an employee by being appointed to the office of— (a) Chief Commissioner of Police; or (b) President of the Metropolitan Fire Brigades Board; or (c) Chairman of the Country Fire Authority; or (d) Deputy Chairman of the Country Fire Authority— is not to be taken to be an ***employee*** unless he or she chooses to contribute to the Scheme within 3 months of being appointed to that office. S. 4(1DA) inserted by No. 40/2010 s. 5(2). (1DA) For the purposes of paragraph (f) of the definition of ***employee***, a person continues to be an employee within the meaning of that paragraph if the person— (a) is an employee of Ambulance Service—Victoria within the meaning of the **Ambulance Services Act 1986** on 1 July 2010; and S. 4(1DA)(b) substituted by No. 32/2023 s. 99. (b) transfers to an office of employment with Triple Zero Victoria within the meaning of the **Triple Zero Victoria Act 2023**. S. 4(1E) inserted by No. 82/1996 s. 7. (1E) For the purposes of the definition of ***salary*** in section 3— (a) in the case of the contributor who is on leave of absence without pay or less than full pay and is not acting as a full-time officer of a union or employee organisation, salary means the salary that the contributor would have received had the contributor not been on leave of absence without pay or less than full pay and not been acting as a full-time officer of a union or employee organisation, or such greater salary as is paid to the contributor by any other employer and approved by the Board; (b) in the case of the contributor who is an employee of a union or employee organisation, the salary that the contributor would have received had the contributor not been an employee of a union or employee organisation, or such greater salary as is paid to the contributor by the union or employee organisation and approved by the Board; (c) in the case of a part-time contributor, salary means the salary which would be payable at that time to a person in similar employment on a full-time basis; S. 4(1E)(d) amended by No. 36/2019 s. 3. (d) if a contributor's salary is reduced, on or after 1 July 2019 then, unless the contributor agrees in writing that the reduced salary applies, salary means the greater of— (i) the salary of the contributor immediately prior to the reduction; and (ii) the actual salary; (e) in the case of a contributor who receives payments under section 20F(17) or 20F(18), salary includes those payments; S. 4(1E)(f) amended by No. 84/1998 s. 4(1). (f) on and from 1 January 1994, the salary used to determine the accrued benefit of a former contributor is the salary averaged over a period of 2 years prior to the date of termination of service calculated— (i) in relation to a contributor with less than 2 years of service, an amount calculated in accordance with the formula— "A" is the aggregate salary paid to the contributor in respect of the contributor's period of service; "B" is the total number of days in that period; (ii) in relation to a contributor with 2 years or more of service, an amount equal to one-half of the contributor's aggregate salary for the period of service of 2 years ending on the contributor's last day of service— and if the period of recognised service includes a period of leave without pay, there is deemed to have been payable to that contributor during that period of leave without pay, salary at the rate payable to the contributor immediately before the period of leave, or such higher salary as has been approved by the Board for the purposes of this subsection. S. 4(2) amended by Nos 82/1996 s. 20(7)(a)(b), 38/1998 s. 15(b). (2) A person who is employed by the Ambulance Service—Victoria within the meaning of the **Ambulance Services Act 1986** or any other declared ambulance service and is not a contributor to the Hospitals Superannuation Fund may, within the prescribed period under the Emergency Services Superannuation (Transfer Period) Regulations 1987 or a subsequent period determined by the Board, choose to contribute to the Scheme. (3) A person becomes a contributor to the Scheme— (a) if the person becomes an employee on or after the date on which this Act comes into operation, on the commencement of that employment; or (b) if the person is a transferred officer, when that person chooses to contribute to the Scheme. (4) A police recruit cannot become a contributor to the Scheme. S. 4(5) inserted by No. 64/1991 s. 4(c). (5) A person who is a contributor to the Metropolitan Fire Brigades Superannuation Fund immediately before section 4 of the **Emergency Services Superannuation (MFBSF Transfer) Act 1991** comes into operation is deemed on that commencement to have chosen to contribute to the Scheme. S. 4(6) inserted by No. 64/1991 s. 4(c). (6) A person to whom subsection (5) applies is entitled to elect to contribute to make the same contributions and receive the same benefits that he or she would have been entitled to make and receive as a contributor to the Metropolitan Fire Brigades Superannuation Fund. S. 4(7) inserted by No. 110/1993 s. 138, amended by No. 82/1996 s. 20(8). (7) A person who is not an operational staff member cannot become a contributor to the Scheme on or after 1 January 1994 except as a member of the ESSPLAN Scheme. S. 4(7A) inserted by No. 38/2009 s. 4. (7A) Despite subsection (7), an eligible protective services officer who— (a) is a member of the ESSPLAN Scheme; and (b) elects to become a contributor to the Scheme in accordance with section 4AA— becomes a contributor to the Scheme under Part 3AA from the day on which the Board accepts the election. S. 4(7B) inserted by No. 38/2009 s. 4. (7B) An eligible protective services officer who is a member of the ESSPLAN Scheme and does not make an election under section 4AA continues to be a member of the ESSPLAN Scheme. S. 4(7C) inserted by No. 38/2009 s. 4. (7C) An eligible protective services officer who is a member of the ESSPLAN Scheme and has not made an election under section 4AA cannot be a contributor to the Scheme under Part 3AA. S. 4(8) inserted by No. 43/2008 s. 4. (8) A returning member who is an operational staff member cannot become a contributor. S. 4(9) inserted by No. 43/2008 s. 4. (9) Despite anything to the contrary in this section, an eligible beneficiary— (a) may become a member of the ESSPLAN Scheme in accordance with section 21B(1)(c); (b) who becomes a member of the ESSPLAN Scheme in accordance with section 21B(1)(c) is not a contributor to the Scheme. S. 4(10) inserted by No. 61/2013 s. 13, amended by No. 5/2019 s. 81(1)(b). (10) For the avoidance of doubt, despite the transfer of the Parliamentary Contributory Superannuation Fund, a member of the Parliament of Victoria who under Part 3 of the **Parliamentary Salaries, Allowances and Superannuation Act 1968** is entitled to be a member of the Scheme cannot become a member of the ESSPLAN Scheme. S. 4A inserted by No. 102/1995 s. 3, amended by No. 82/1996 s. 20(9).