18Ordinary employer‑sponsored member of PSSAP

#### 18 Ordinary employer‑sponsored member of PSSAP (1) This section sets out the 5 situations in which a person is an ordinary employer‑sponsored member of PSSAP. PSSAP is the person’s chosen fund or stapled fund (2) If, at a particular time: (a) a person is a member of PSSAP; and (b) if the person had not been a member of PSSAP, the person would have been eligible to become a member because of particular employment or holding a particular office; and (c) assuming that the person’s employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) were to make a basic employer contribution to PSSAP for the benefit of the person, the employer would rely on: (i) subsection 32C(1) or (1A) of that Act; or (ii) subsection 32C(2AB) of that Act in a case where subparagraph 32C(2AB)(b)(iii) of that Act applies; to satisfy the choice of fund requirements in relation to the contribution; and (d) the person’s salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) would be taken into account for the purpose of making a calculation under section 19 of that Act; the person is an ordinary employer‑sponsored member of PSSAP in respect of that employment or the holding of that office. PSSAP is the person’s mandated fund (3) Subject to subsection (4), if, at a particular time: (a) a person is a member of PSSAP; and (b) if the person had not been a member of PSSAP, the person would have been eligible to become a member because of particular employment or holding a particular office; and (c) there is no chosen fund for the person (within the meaning of Part 3A of the Superannuation Guarantee (Administration) Act 1992); and (d) assuming that the person’s employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992) were to make a basic employer contribution to PSSAP for the benefit of the person, the employer would rely on: (i) subsection 32C(2) or (6) of that Act; or (ii) subsection 32C(2AB) of that Act in a case where subparagraph 32C(2AB)(b)(i) or (ii) of that Act applies; to satisfy the choice of fund requirements in relation to the contribution; and (e) the person’s salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) would be taken into account for the purpose of making a calculation under section 19 of that Act; the person is an ordinary employer‑sponsored member of PSSAP in respect of that employment or the holding of that office. (4) Subsection (3) does not apply to a person if the person’s employer (within the meaning of the Superannuation Guarantee (Administration) Act 1992): (a) gives; or (b) has given; or (c) proposes to give; the person a standard choice form (within the meaning of Part 3A of the Superannuation Guarantee (Administration) Act 1992) that sets out the name of a fund (within the meaning of that Part) other than PSSAP that the employer will contribute to if the person does not make a choice. Superannuation Guarantee (Administration) Act 1992 does not apply to the person (5) Subject to subsection (6), if: (a) a person is a member of PSSAP; and (b) if the person had not been a member of PSSAP, the person would have been eligible to become a member because of particular employment or holding a particular office; and (c) the person’s salary or wages (within the meaning of the Superannuation Guarantee (Administration) Act 1992) would not be taken into account for the purpose of making a calculation under section 19 of that Act; the person is an ordinary employer‑sponsored member of PSSAP in respect of that employment or the holding of that office. (6) Subsection (5) does not apply to a person in relation to particular employment or holding a particular office if: (a) the person has, in a manner approved by CSC in writing under this paragraph, chosen not to be an ordinary employer‑sponsored member of PSSAP in respect of that employment or the holding of that office; and (b) that choice has not been withdrawn. Eligible PSSAP member (7) Subject to subsections (8) and (9), if: (a) at a particular time, a person is a member of PSSAP; and (b) the person is, or previously was, an ordinary employer‑sponsored member of PSSAP under one or more of subsections (2), (3) and (5); and (c) the person is, or previously would have been eligible to become, a member of PSSAP because of particular employment or holding one or more particular offices, where the periods of any such employment, and the periods of holding any such office, taken together constitute or constituted a continuous period of at least 12 months; the person is an ordinary employer‑sponsored member of PSSAP. > Note: A person who is an ordinary employer‑sponsored member of PSSAP under this subsection is known as an eligible PSSAP member. (8) If: (a) subsection (2), (3) or (5) applies to a person in respect of any employment of the person or any holding of an office by the person; or (b) a person is, or would be able to become, a member of the PSS or an eligible employee (within the meaning of the Superannuation Act 1976) in respect of any employment of the person or any holding of an office by the person; the person is not an ordinary employer‑sponsored member of PSSAP under subsection (7) in respect of that employment or the holding of that office. Eligible CSS/PSS member or former member (8A) Subject to subsections (8B) and (9), if: (a) at a particular time, a person is a member of PSSAP; and (b) the person is, or previously would have been able to become, a member of the PSS or an eligible employee (within the meaning of the Superannuation Act 1976) because of particular employment or holding one or more particular offices, where the periods of any such employment, and the periods of holding any such office, taken together constitute or constituted a continuous period of at least 12 months; and (c) either: (i) the person was a former Australian government superannuation scheme member at the time the Superannuation Amendment (PSSAP Membership) Act 2020 commences; or (ii) the person is a member of the PSS or an eligible employee (within the meaning of the Superannuation Act 1976) at any time on or after the day the Superannuation Amendment (PSSAP Membership) Act 2020 commences; the person is an ordinary employer‑sponsored member of PSSAP. > Note: A person who is an ordinary employer‑sponsored member of PSSAP under this subsection is known as an eligible CSS/PSS member or former member. (8B) If: (a) subsection (2), (3) or (5) applies to a person in respect of any employment of the person or any holding of an office by the person; or (b) a person is, or would be able to become, a member of the PSS or an eligible employee (within the meaning of the Superannuation Act 1976) in respect of any employment of the person or any holding of an office by the person; or (c) paragraph 6(2)(ba) of the Superannuation Act 1990 applies to a person in respect of any employment of the person or any holding of an office by the person; the person is not an ordinary employer‑sponsored member of PSSAP under subsection (8A) in respect of that employment or the holding of that office. Minister may determine class of excluded persons (9) A person cannot be an ordinary employer‑sponsored member of PSSAP under subsection (7) or (8A) if the person is included in a class of persons determined in an instrument under subsection (10). (10) The Minister may, by legislative instrument, determine a class of persons for the purposes of subsection (9). (11) Despite anything in regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument under subsection (10) of this section.