94Transfer of members of MWCESF

94 Transfer of members of MWCESF (1) On the commencement of section 41 of the **Superannuation Acts (General Amendment) Act 1995**, a person who is a member of the Melbourne Water Corporation Employees' Superannuation Fund to whom section 42(2) of the **Metropolitan Bridges Highways and Foreshores Act 1974** or section 47(1), 48(1), 49(1) or 51(1) of the **Town and Country Planning (Transfer of Functions) Act 1985** applies is transferred to the Fund. (1A) Despite the transfer of a member under this section to the Fund— (a) the member is entitled to receive the same benefits that he or she would have been entitled to receive had he or she not been so transferred; and (b) the member is entitled to have his or her rights and obligations determined in accordance with the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund as in force immediately before the transfer. (1B) For the purposes of subsection (1A) the Board has in respect of a member the duties and powers conferred on the trustees of the Melbourne Water Corporation Employees Superannuation Fund by or under the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund as in force immediately before the transfer. S. 94(1C) inserted by No. 4/1996 s. 117, amended by No. 13/1999 s. 13(1). (1C) Without derogating from subsections (1A) and (1B), sections 71A, 83 and 85 apply to and in respect of a transferred member. S. 94(1D) inserted by No. 13/1999 s. 13(2). (1D) Subsection (1A) is subject to— (a) any relevant specified standards; and (b) any provisions of a relevant Commonwealth or Victorian law relating to anti-discrimination. S. 94(1E) inserted by No. 95/2000 s. 6(11). (1E) Without derogating from subsections (1A) and (1B), a transferred member who is entitled to a deferred benefit under section 94 or 95 may elect in writing to the Board to— S. 94(1E)(b) substituted by Nos 40/2004 s. 28(10), 37/2007 s. 41(1). (b) have the lump sum rolled over or transferred within the superannuation system as nominated by the member. S. 94(1F) inserted by No. 95/2000 s. 6(11). (1F) The method of calculating the conversion under subsection (1E) is to be determined by the Minister on the advice of an actuary appointed by the Board. S. 94(1G) inserted by No. 70/2003 s. 30. (1G) Subsection (1A) is subject to the provisions of Part 7A. S. 94(1H) inserted by No. 70/2003 s. 30. (1H) For the purposes of subsection (1G), the provisions of Part 7A with such modifications as are necessary to make those provisions consistent with the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund are deemed to form part of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund. (2) With the approval of the Minister, the trustees of the Melbourne Water Corporation Employees' Superannuation Fund must enter into an agreement with the Board which specifies— (a) the liability of the Melbourne Water Corporation Employees' Superannuation Fund up to the date of transfer in respect of the entitlements of transferred members as determined by an actuary appointed by the trustees of the Melbourne Water Corporation Employees' Superannuation Fund; and (b) the value of assets of the Melbourne Water Corporation Employees' Superannuation Fund equal to the liability of the Melbourne Water Corporation Employees' Superannuation Fund under paragraph (a) that are to be transferred to the Fund; and (c) the terms and conditions which apply to the transfer of these assets to the Fund. (3) For the purposes of subsection (2), the liability in respect of each transferred member is to be treated as being in the same proportion as total net assets of the Melbourne Water Corporation Employees' Superannuation Fund are to the total liabilities of the Melbourne Water Corporation Employees' Superannuation Fund. (4) If agreement cannot be reached within 3 months of the commencement of section 41 of the **Superannuation Acts (General Amendment) Act 1995**, the Minister may determine the matters specified in subsection (2) or which are in dispute and the trustees of the Melbourne Water Corporation Employees' Superannuation Fund and the Board are deemed by virtue of this subsection to have entered into an agreement containing the matters determined by the Minister. (5) No stamp duty or other tax is payable under any Act in respect of anything done under this section. S. 94(6) inserted by No. 40/2004 s. 38. (6) An eligible salary sacrifice contributor may by notice in writing to the employing authority elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 0⋅1% in accordance with the following formula— "**M**" is the applicable member contribution rate in accordance with the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund without salary sacrifice; "**R**" is the tax rate for the financial year on taxable contributions to the Melbourne Water Corporation Employees' Superannuation Fund under the Commonwealth Income Tax Assessment Act 1936. S. 94(7) inserted by No. 40/2004 s. 38. (7) An election under subsection (6)— (a) can only be made if there is in force an agreement between the employing authority and the member under which the employing authority can make the member contributions required by the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund by way of salary sacrifice; (d) can not be made in respect of any contributions made by a member in addition to the applicable member contributions under the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund. S. 94(8) inserted by No. 40/2004 s. 38. (8) Member contributions made in accordance with the rate determined under subsection (6) are for the purposes of the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund (other than the provisions relating to surchargeable contributions) to be taken to be— (a) the applicable member contributions to be paid under the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund; and (b) the member contributions that would have been payable if an election had not been made under subsection (6). Note to s. 94(8)(b) inserted by No. 37/2007 s. 41(2). The effect of paragraph (b) is that, for the purpose of calculating benefit entitlements, the member contributions are taken to be the member contributions that would have been payable if no election had been made. S. 94(9) inserted by No. 40/2004 s. 38. (9) An election under subsection (6) does not affect the amount that would otherwise constitute the salary of the member for the purposes of the provisions of the governing instrument of the Melbourne Water Corporation Employees' Superannuation Fund. S. 94(10) inserted by No. 40/2004 s. 38. (10) The minimum benefit required to be paid to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth is to be determined as if no election had been made under subsection (6). S. 95 inserted by No. 64/1995 s. 41.