Subdiv 4Income protection

Subdivision 4—Income protection 36—Disability pension (1) Pursuant to section 22(1) of the Act, but subject to these regulations, a member who— (a) is incapacitated for work on account of a disability; and (b) is absent from work in respect of employment to which the Act applies on account of the incapacity; and (c) is receiving treatment from a medical practitioner in respect of the incapacity and is following the advice of the practitioner, is entitled to a disability pension. (2) A member is incapacitated for work on account of a disability for the purposes of this Subdivision if the Board is satisfied that the member— (a) is suffering from ill health (whether physical or mental); and (b) is unable, because of that ill health— (i) to undertake the duties of the position usually occupied by the member or is unable to undertake those duties at the member's usual capacity; and (ii) to undertake the duties of any other suitable position made available to the member. (3) For the purposes of subregulation (2), a position is a suitable position for a member if— (a) the position carries a salary of at least 80% of the salary applicable to the position usually occupied by the member; and (b) the member could reasonably be expected to take the position. (4) A member is not entitled to a disability pension under subregulation (1) if the member— (a) is aged 65 years or over; or (b) is exempted from the ambit of this regulation under regulation 37; or (c) is not entitled to a disability pension under this regulation by virtue of regulation 38. (4a) If regulation 9(1)(a) ceases to apply to a person, the following provisions apply: (a) if the person holds income protection cover immediately before the day on which regulation 9(1)(a) ceases to apply, the person's salary from the relevant employer is to be taken into account on and from that day when calculating the person's notional salary for the purpose of determining the amount of any disability pension to which the person is entitled; (b) however, the person's salary from the relevant employer is not to be taken into account for the purposes of determining the amount of any disability pension payable in respect of a medical condition existing before the day on which regulation 9(1)(a) ceases to apply unless— (i) the person has, after that day, been engaged in work in respect of employment to which the Act applies for a period that exceeds 12 months; and (ii) the incapacity for work occurs after the end of that 12 month period; (c) if, immediately before the day on which regulation 9(1)(a) ceases to apply, the person holds no income protection cover, the person will, subject to subregulation (4), be entitled to income protection cover under Part 3 Division 2 Subdivision 4 on and from that day; (d) however, a disability pension will not be payable to a member who becomes entitled to income protection under paragraph (c) in respect of incapacity for work arising from a medical condition existing before the day on which regulation 9(1)(a) ceases to apply unless— (i) the person has, after that day, been engaged in work in respect of employment to which the Act applies for a period that exceeds 12 months; and (5) If a member who is entitled to a disability pension under subregulation (1) becomes incapacitated for work on account of a disability while on leave without pay for a reason that is not connected to the disability, payment of the pension is not to commence, unless the Board determines otherwise, before the day on which the member was expected to return to work following the period of leave. 36AA—Application for disability pension (1) An application for a disability pension must be made— (a) within 6 months of the day on which the member is first absent from work in respect of employment to which the Act applies; or (b) if the member is entitled to— (i) weekly payments of workers compensation; or (ii) other temporary income replacement benefits payable under an industrial agreement or award applying to the member, immediately after the member's first absence from work in respect of employment to which the Act applies—within 6 months of the day on which the member ceases to be entitled to such payments; or (c) if the member is on recreation leave, long service leave, paid sick leave, paid parental leave or any other form of paid leave immediately after the member's first absence from work in respect of employment to which the Act applies—within 6 months of the day on which the member ceases to be on such leave. (2) If a member notifies the Board when lodging an application for a disability pension that the application should not be assessed until further notice, the application will be taken to have been received by the Board if and when the member subsequently gives notice to the Board that the application is to be assessed. (3) For the purposes of subregulation (1), a period during which a police member receives salary or wages pursuant to an arrangement under which employees forego part of their annual recreation leave in return for the grant of additional sick leave is to be taken to be a period during which the member is not absent from work. The Commissioner of Police may make and carry out such an arrangement with employees under regulation 66 of the Police Regulations 2014. 36AAB—Amount of pension (1) The amount of a disability pension will be 75% of the member's notional salary. (2) In addition, a contribution replacement benefit of an amount determined by the Board will be credited to the member's employer contribution account under regulation 16(2) while the member is in receipt of a disability pension under this Subdivision. (3) In this regulation— notional salary—see regulation 36A. 36AAC—Matters affecting entitlement to pension (1) A disability pension is payable to a member in respect of a disability— (a) only if the member is— (i) incapacitated for work on account of the disability for a period that exceeds the waiting period; and (ii) absent from the member's employment on account of the incapacity for all working days falling within the waiting period; and (b) only in relation to a period of incapacity that occurs after the end of the waiting period. (2) In subregulation (1), the waiting period is— (a) 30 days; or (b) if— (i) the member has elected in the approved form for a longer waiting period to apply and has not withdrawn the election; and (ii) the first day on which the member is absent from employment on account of the incapacity occurs after the day on which notice of the election is lodged with the Board, 90 days. (3) For the purposes of subregulation (1)(a)(ii)— (a) if a member whose waiting period is referred to in subregulation (2)(a) returns to work during the waiting period— (i) for no more than 2 days (whether or not consecutive), those days are not to be taken into account for the purposes of determining the period for which the member has been absent from employment; or (ii) for a total number of hours that does not exceed the total number of hours the member would ordinarily work (as determined by the Board) in a 2 day period, the Board may determine that the member is to be taken to have been absent from work on account of the incapacity for all working days falling within the waiting period; and (b) if a member with any other waiting period returns to work during the waiting period— (i) for 5 days or less, and no more than 2 of those days are consecutive (whether on 1 or 2 occasions), those days are not to be taken into account for the purposes of determining the period for which the member has been absent from employment; or (ii) for a total number of hours that does not exceed the total number of hours the member would ordinarily work (as determined by the Board) in a 5 day period, the Board may determine that the member is to be taken to have been absent from work on account of the incapacity for all working days falling within the waiting period. (4) If a member withdraws an election made under subregulation (2)(b) by notice to the Board in the approved form, the member's waiting period under subregulation (2) will be a period commencing on the first day on which the member is absent from employment on account of the incapacity and ending on the day falling— (a) 90 days from the day on which the notice is lodged with the Board; or (b) 30 days from the first day on which the member is absent from employment on account of the incapacity, whichever occurs later. (5) A disability pension is not payable to a member in respect of— (a) a period in respect of which the member is entitled to weekly payments of workers compensation or would have been entitled to weekly payments of workers compensation if the member had not accepted a redemption of the liability to make those weekly payments under Part 4 Division 4 of the Return to Work Act 2014; or (ab) any period in respect of which the member is entitled to temporary income replacement benefits payable under an industrial agreement or award applying to the member; or (b) a period for which the member is on recreation leave, long service leave, paid sick leave or any other form of paid leave. (7) A person who— (a) is a member of the scheme by virtue of an election under regulation 10; and (b) was aged 55 years or over when the election was made, is not entitled, during the first 24 months of the person's membership of the scheme, to a disability pension in respect of an incapacity attributable to a medical condition existing before the day on which that membership commenced. (8) A person who is a contributor within the meaning of the Superannuation Act 1988 to whom regulation 11 applies is not entitled, during the period of 24 months commencing on the day on which regulation 11 first applies to the person, to a disability pension in respect of an incapacity attributable to a medical condition existing before that day. (9) A member who returns to work in employment to which the Act applies after being on leave without pay for 12 months or more is not entitled, during the period of 24 months commencing on the day on which the member returns to work, to a disability pension in respect of a condition that was known to the member on that day. (10) In this regulation— working day in relation to a member means a day on which the member would be normally required to work in the course of employment. 36AAD—Duration of disability pension (1) A member who is in receipt of a disability pension may, by notice in writing to the Board, suspend payment of the pension for a period specified in the notice. (2) A disability pension cannot be paid in respect of a particular disability— (a) for a continuous period of more than 24 months; or (b) for an aggregate period of more than 24 months in any 1 period of 48 months. (3) For the purposes of subregulation (2)— (a) if an application by a member for a disability pension is taken under regulation 36AA(2) to have been received on a day that is not the day on which it was lodged, and the application is successful, the period commencing on the day on which the application was lodged and ending on the day on which the applicant gives notice to the Board that the application is to be assessed is to be taken into account as a period during which a disability pension was paid to the member; and (b) if payment of a disability pension to a member is suspended at the request of the member under subregulation (1), the period of the suspension is to be taken into account as a period during which a disability pension was paid to the member. (4) A person in receipt of a disability pension whose employment terminates ceases to be entitled to the pension from the day immediately following the day on which the employment terminates or is taken to have been terminated. (5) Subregulation (4) applies irrespective of the manner in which the person's employment terminates. (6) If a member to whom regulation 6(4) applies is entitled to a disability pension in respect of incapacity for work in the 12 month period during which the member is taken to remain in employment, the pension will not be payable after the end of the designated period. (7) For the purposes of subregulation (6), the designated period is a period— (a) commencing on the day following the day on which the 12 month period during which the member is taken to remain in employment expires; and (b) equivalent in length to the waiting period that applied under regulation 36AAC in respect of the member's disability pension. 36AAE—Miscellaneous (1) A member is not required to make a contribution over a period for which the member receives a disability pension. (2) A right to a disability pension under this Subdivision cannot be assigned. (3) Subregulation (2) does not prevent the making of a garnishee order in relation to a pension. (4) If a person who is a member of the scheme by virtue of regulation 9(2) becomes entitled to a benefit under this Subdivision, the person is not entitled to a benefit under section 30 or 36 of the Superannuation Act 1988. (5) Despite any other regulation, a member may receive a disability pension under this Subdivision while engaged in remunerative activities if the Board is satisfied that the member is engaged in the activities for the purposes of a rehabilitation or return to work arrangement. (6) However, if at any time during a financial year a member who is receiving, or would, but for this subregulation, be entitled to receive, a pension under this Subdivision is also receiving income from remunerative activities, the pension will be reduced by the amount by which the pension and income exceed, when aggregated, the amount that the member would be entitled to receive if the member were in receipt of the member's notional salary (within the meaning of regulation 36AAB) and if those payments equal or exceed that amount, the pension will be suspended. 36A—Notional salary (1) For the purposes of regulation 36AAB, the notional salary of a member who is entitled to a disability pension is the salary that the member was receiving immediately before the commencement of the member's incapacity for work, adjusted at the commencement of each adjustment period to reflect— (a) in the case of an April adjustment period—the percentage variation (rounded to 2 decimal places) between the Consumer Price Index for the immediately preceding December quarter and the Consumer Price Index for the immediately preceding June quarter; and (b) in the case of an October adjustment period—the percentage variation (rounded to 2 decimal places) between the Consumer Price Index for the immediately preceding June quarter and the Consumer Price Index for the immediately preceding December quarter. (2) However— (a) if the member was not, immediately before the commencement of the incapacity, in full‑time employment, the notional salary will be calculated by reference to a formula determined by the Board, having regard to such evidence of the member's salary (over the course of the member's employment or, if the member has been employed for more than 3 years, the last 3 years of the member's employment) as the Board considers appropriate (including, without limitation, premiums paid by the member under these regulations); and (b) if the Board is satisfied that— (i) the member was not, immediately before the commencement of his or her incapacity, in receipt of a shift work allowance or an on call allowance to which he or she would ordinarily be entitled; and (ii) he or she was not in receipt of the allowance only because of a medical condition to which his or her incapacity is attributable, the member will be taken to have been receiving the allowance immediately before the commencement of his or her incapacity. (3) Despite subregulations (1) and (2), if a member's notional salary would, but for this subregulation, exceed the automatic acceptance limit, the member's notional salary is fixed at the automatic acceptance limit. (4) A member whose notional salary is fixed under subregulation (3) may apply to the Board for additional income protection cover. (5) Regulation 37A applies in relation to an application under subregulation (4). (6) If the Board approves the member's application, the member's notional salary will be determined, subject to regulation 36B, under subregulation (1) or (2), as appropriate. (7) The member may, by subsequent application in the approved form, apply for a reduction in the level of the member's income protection cover. (8) If the Board approves the member's application, the member's notional salary will be fixed at the automatic acceptance limit unless and until the member's notional salary if determined under subregulation (1) or (2) would be set at a level lower than the automatic acceptance limit (and subregulations (1) and (2) will then apply for the purposes of determining the member's notional salary). (9) If an application for additional income protection cover is granted subject to authorised conditions under regulation 37A, any entitlement of the member to a disability pension based on a notional salary set at a level higher than the automatic acceptance limit will be subject to those conditions (but the member will, if the member has income protection cover under these regulations that the member was not required to apply for, be entitled, without conditions, to a disability pension based on a notional salary fixed at the automatic acceptance limit). (9a) An adjustment is not to be made under subregulation (1) if the effect of the adjustment would be to reduce the amount of a member's disability pension. (10) In this regulation— adjustment period means the period of 6 months commencing on 1 April and 1 October in each year; April adjustment period means an adjustment period commencing on 1 April in any year; automatic acceptance limit means a salary level fixed by the Board from time to time for the purposes of this definition; Consumer Price Index means the Consumer Price Index (All groups index for Adelaide) published by the Australian Bureau of Statistics; October adjustment period means an adjustment period commencing on 1 October in any year. 36B—Maximum level of income protection (1) Despite any other regulation, the level of a member's income protection cover under this Part may not exceed the level of income protection cover provided where notional salary is equal to the maximum salary income protection cap. (2) For the purposes of regulations 36AAB and 36A, the notional salary of a member whose salary exceeds the level of the maximum salary income protection cap will be fixed at the level of that cap and the member's disability pension premium will be determined accordingly. (3) A member whose salary exceeds the maximum salary income protection cap may not apply for a level of income protection cover that exceeds the cover provided to a member whose notional salary is equal to the maximum salary income protection cap. (4) In this regulation— maximum salary income protection cap means a salary level fixed by the Board from time to time for the purposes of this definition. 37—Exemption from ambit of regulation 36 (1) A member (other than a prescribed member under the age of 60 years), may elect, in the approved form, to be exempted from the ambit of regulation 36. (2) An election under subregulation (1) will take effect from a date determined by the Board. (3) Subject to subregulation (4), a member employed on a casual basis is exempted from the ambit of regulation 36 unless— (a) the member was entitled to a disability pension in the event of incapacity for work under section 33A of the repealed Act immediately before the repeal of that Act; or (b) not more than 3 months before commencing that casual employment, the member was engaged in employment to which the Act applies on a full-time or part-time basis (other than as a casual employee) and had an entitlement to a disability pension under this Subdivision. (4) A member who is exempted from the ambit of regulation 36 under subregulation (1) or (3) may apply to the Board to be brought within the ambit of that regulation. (11) If the Board grants an application under subregulation (4), the applicant ceases to be exempted from the ambit of regulation 36 from a date determined by the Board. 37A—Applications for income protection (1) An application under regulation 36A(4) or 37(4) or Schedule 3 must be in the approved form. (2) The applicant must provide the Board with the following information as to the state of the applicant's health: (a) information relating to medical advice, examinations or treatment received by the applicant; (b) information as to any other treatment received by the applicant for any illness, condition or disability suffered by the applicant; (c) information as to any illness, condition or disability suffered by the applicant or any symptoms suffered by the applicant that may indicate an illness, condition or disability; (d) information as to any drugs or other substances (whether legal or illegal and whether medicinal or not) taken by the applicant or to which the applicant has been exposed, and the Board may require an applicant to provide satisfactory evidence of the state of the applicant's health. (3) The cost of any medical examination to which an applicant is required to submit for the purposes of subregulation (2) is to be borne by the applicant. (4) If it appears to the Board— (a) that an applicant's state of health is such as to create a risk of incapacity for work; or (b) that an applicant has in the past engaged in a prescribed activity that increases the risk of incapacity for work; or (c) that an applicant is likely in the future to engage in an activity of a kind referred to in paragraph (b), the Board may refuse the application or grant the application on authorised conditions. (5) Consideration of an application to which subregulation (4) applies may, if the Board thinks fit, be deferred for a reasonable period. (6) A condition on which an application has been granted may be varied or removed by the Board if the Board considers it appropriate to do so following consideration of medical evidence provided by the applicant (but a condition may not be removed unless the Board is satisfied that none of the circumstances specified in subregulation (4)(a), (b) or (c) apply in relation to the applicant). (7) Subject to subregulation (8), if it appears to the Board that an applicant withheld information required in relation to the member's application under this regulation, the Board may withhold or reduce the pension to which the applicant would otherwise have been entitled. (8) If— (a) it appears to the Board that an applicant withheld information required in relation to the member's application under this regulation; and (b) the withheld information relates to a medical condition to which the applicant's incapacity for work is attributable, the Board must withhold the pension to which the applicant would otherwise have been entitled in respect of that incapacity. (9) In this regulation— authorised condition, in relation to the granting of an application under regulation 36A(4), 37(4) or Schedule 3, means— (a) a condition providing that a disability pension is not payable if the applicant's incapacity for work is caused wholly or partly by— (i) a pre‑existing illness, condition or disability; or (ii) an illness, condition or disability arising out of a pre‑existing illness, condition or disability; or (iii) a prescribed activity; or (b) a condition that a disability pension is only to be payable in respect of an incapacity for work arising from— (i) accidental causes; or (ii) an illness or condition that is not related to or associated with a medical condition of a kind specified by the Board; prescribed activity means the smoking, chewing or sucking of a tobacco product or any other activity involving the consumption of a tobacco product; tobacco product means— (a) a cigarette; or (b) a cigar; or (c) cigarette or pipe tobacco; or (d) tobacco prepared for chewing or sucking; or (e) snuff. 38—Persons not entitled to disability pension The following are not entitled to a disability pension under this Subdivision under any circumstances: (a) a spouse member, unless the spouse member is also a member of the scheme; (b) a person who is a member of the scheme solely by virtue of regulation 9(3), (5), (5a), (5b), (6), (7) or (8) or 14(1) (or any combination of these provisions); (c) a member to whom insurance benefits (or benefits of a similar kind) have been paid on account of invalidity or a terminal illness under the Act, the repealed Act, another Act that provides for the payment of benefits by the Treasurer or an administered scheme under Schedule 3 of the Superannuation Act 1988; (d) a person who is— (i) employed or engaged for a specified period of time; and (ii) remunerated solely by a fee, allowance or commission.