114BRecovery of overpayment to retired employee

#### 114B Recovery of overpayment to retired employee (1) If: (a) an employee retires from his or her employment; and (b) the retired employee is or may be entitled to a pension or a lump sum, or both a pension and a lump sum, under a superannuation scheme; and (c) Comcare or a licensed authority is of the opinion that it may pay, or may have paid, to the retired employee an amount or amounts of compensation under this Act in excess of the amount or amounts that he or she was entitled to receive because of section 20, 21 or 21A; the following provisions of this section apply. (2) Comcare or the authority, as the case may be, may give written notice to the administrator of the scheme: (a) stating that Comcare or the authority may make, or may have made, an overpayment of compensation to the retired employee; and (b) requiring the administrator to tell Comcare or the authority whether the retired employee has received any payment in respect of his or her entitlement referred to in paragraph (1)(b) or whether all the retired employee’s benefits under the scheme have been deferred; and (c) requiring the administrator, if the retired employee has not received any such payment (unless all the retired employee’s benefits under the scheme have been deferred): (i) not to pay any pension or lump sum to the retired employee until the administrator receives a notice from Comcare or the authority under subsection (5); and (ii) to give Comcare or the authority, as soon as practicable, particulars of the rate of pension, or the lump sum worked out as at the date of retirement, or the rate of pension and the lump sum as so worked out, as the case may be, that is payable to the retired employee under the superannuation scheme. (3) Comcare or the authority, as the case may be, must give to the retired employee a written notice stating that it has given a notice to the administrator of the scheme under subsection (2) and explaining how this section works. (4) The following provisions apply if the retired employee has not received any payment in respect of his or her entitlement referred to in paragraph (1)(b) but do not apply if all the retired employee’s benefits under the scheme have been deferred. (5) When Comcare or a licensed authority receives from the administrator of the superannuation scheme particulars of the rate of pension, or the lump sum, or the rate of pension and the lump sum, payable to the retired employee, then Comcare or the authority, as the case may be, must, within 2 working days after receiving those particulars: (a) determine whether an overpayment of compensation to the employee has occurred; and (b) give written notice to the administrator: (i) if it determines that no overpayment has occurred—stating that fact; or (ii) otherwise—stating the amount of the overpayment and requiring the administrator to pay that amount to Comcare or the authority in accordance with this section. (6) Comcare or a licensed authority must not reduce the rate or amount of compensation payable to the retired employee under this Act until it has given to the administrator of the superannuation scheme the notice referred to in subsection (5). (7) The amount to be stated in the notice under subparagraph (5)(b)(ii) is the amount by which the sum of the amounts of any compensation paid after the retirement of the employee exceeds the sum of the amounts of compensation that should have been paid because of section 20, 21 or 21A, as the case requires. (8) The administrator of the superannuation scheme is to pay the amount of the overpayment of compensation to Comcare or the licensed authority in accordance with subsections (9) and (10) out of the payments of pension or of a lump sum that would otherwise have been made by the administrator to the retired employee. (9) If the amount of any payment of pension or of a lump sum that would otherwise have been made by the administrator to the relevant employee on any day is less than or equal to the adjusted overpayment worked out as at that day, that amount is to be paid by the administrator to Comcare or the authority instead of to the retired employee. (10) If the amount of any payment of pension or of a lump sum that would otherwise have been made by the administrator to the relevant employee on any day is greater than the adjusted overpayment worked out as at that day, so much of that amount as is equal to that adjusted overpayment is to be paid by the administrator to Comcare or the authority instead of to the retired employee. (11) For the purposes of subsections (9) and (10), the adjusted overpayment as at a particular day is the amount of the original overpayment less any amounts that have been paid by the administrator to Comcare or the authority before that day in reduction of the original overpayment. (12) The payment by the administrator of an amount to Comcare or a licensed authority under a notice given under subsection (5) discharges, to the extent of that amount: (a) the liability of the administrator to pay that amount to the retired employee; and (b) the liability of the employee to pay that amount to Comcare or the authority, as the case may be. (13) The administrator of a superannuation scheme must comply with a requirement made of the administrator under this section by Comcare or a licensed authority. However, failure to comply with the requirement is not an offence. (14) This section has effect despite: (a) sections 143 and 143A of the Superannuation Act 1922; and (b) sections 85 and 85A of the Defence Force Retirement Benefits Act 1948; and (c) sections 129 and 130 of the Defence Force Retirement and Death Benefits Act 1973; and (d) sections 118 and 119 of the Superannuation Act 1976. (15) In this section: > working day, in relation to a notice to be given by Comcare or a licensed authority, means a day other than a Saturday, a Sunday, or a day that is a public holiday in any State or Territory.