Superannuation and Family Benefits Act 1938

The Act affects a limited but still-important cohort:

• Legacy scheme members: WA public servants who joined the public sector before the Government Employees Superannuation Act 1987 and chose to remain in the original scheme, as well as post-1987 joiners who were permitted to elect into the scheme from the Provident Account under s 32.
• Spouses and children of members: The Act provides death and family benefits. De facto partners are treated as spouses (s 6AA). Where there are multiple spouses, the Board may apportion the benefit between them (s 6AA(6)).
• Employers including non-standard departments: Entities approved as departments under the broad definition in s 6(1) -- including hospital boards, port authorities, VET colleges, and State trading concerns -- must ensure employee contributions are deducted and State contributions are made.
• Police Force members: Special retirement provisions apply to police (s 60). A police officer who has completed 30 years of aggregate service and attains 55 may retire with the full actuarial equivalent; those who retire before 30 years of service are subject to a modified formula.
• Civil Service Association employees: A separate provision (s 6A) allows employees of the Civil Service Association of WA who were contributing to the Association's existing scheme to transfer into the Act, with service under the Association treated as service with the State.

Section 31: Employees who were contributors at the commencement of the 1987 Act must continue to contribute while employed, unless they make an election under s 39A or join the Gold State Super Scheme.

Section 36: Contributions commence on the day of employment in a permanent capacity and cease on the day of retirement, death, discharge, resignation, or dismissal. Contributions are otherwise compulsory while the employee is in service.

Section 43: The State must make matching contributions where employee contributions are at the rate prescribed for the employee's age (at the specified multiple for the relevant number of units), funding the State's share of the eventual pension liability.

Section 44: Where employee contributions are not at the full age-rate (for example, where the employee elected a lower rate), the State makes a lower proportional contribution, with the difference to be made up from the actuarial reserve portion.

Section 47: If an employee is on leave without pay, contributions may be suspended, but the employee's pension entitlement is adjusted accordingly.

Section 49: If contributions fall into arrears, interest at the prescribed rate is charged on outstanding amounts.

Section 50: Contributions must be deducted from the employee's salary by the employing department and paid to the Board.

Section 83P: Where a superannuation guarantee top-up benefit (s 83N) is payable, the Board may make actuarial adjustments to the calculation of other benefits to avoid double-counting.

Board powers (general): The Board administers the Fund, determines questions of invalidity (s 84, on a medical officer's report), resolves disputes (s 85), and exercises discretionary remedial powers under s 85A.

Section 85A: The Board's broad discretionary power allows it to grant a right, privilege, or benefit to a person who has, without fault, lost entitlement, or to recognise an out-of-time application or election, if hardship would otherwise accrue and it is just and equitable to do so. This is a significant safety valve for members who miss deadlines.

Section 7: The Board may declare a contributor an accepted part-time employee, allowing them to retain contributor status when their hours are reduced for health or other special reasons. The Board may also revoke such a declaration.

Section 30: Actuarial investigations are conducted annually as at 30 June. The State Government Actuary or a Board-appointed actuary reports on the Fund's state and sufficiency. Where investment returns fall below 3.75% per annum, the State must make up the shortfall (s 30(5)). Surpluses are credited to offset State contributions (s 30(6)).

Section 53: The Governor may make regulations prescribing matters required or permitted by the Act or necessary for carrying it into effect.

Section 6(1) (department definition): The Treasurer has a gatekeeping power over whether a hospital board or other corporate Crown instrumentality is included as a department, and may require funding arrangements as a precondition.

The Act does not create criminal offences or civil penalty provisions in the conventional sense. Its enforcement mechanisms are administrative:

• Section 85: Disputes are resolved by the Board, with a right of appeal to a Supreme Court judge sitting in Chambers whose decision is final and conclusive (s 85(2)).
• Section 88: The Board has a general power to recover amounts owing under the Act.
• Section 49: Interest is charged on contributions in arrears, discouraging default by employing departments.
• Section 24(3): The income of the Fund is not subject to State taxation.

There is no regulatory oversight body with infringement powers under this Act; the Board is both regulator and trustee.

Commencement of contribution: Automatic on the day of employment in a permanent capacity (s 36). Employees do not apply to join; membership is automatic for eligible employees.

Election to become a contributor: Under s 32, an employee who is a Provident Account contributor under Division 3 of Part VA may elect to convert to pension units. An election to become a contributor is in writing in a form approved by the Board (s 32(1a)), and the Board may require a medical examination (s 32(3)).

Scale elections: Under s 41, an employee may elect to contribute for full pension at age 60 (rather than the default 65) by electing the higher contribution rate applicable to their age at the time of election.

Salary sacrifice: Under s 36A, a contributor may arrange salary sacrifice contributions in accordance with a salary sacrifice agreement approved by the Board.

Retirement age: The maximum age for retirement is 65 years, or the earlier age fixed by law for a particular contributor (s 6(1)). Contributions cease on the day of retirement (s 36). A contributor of 60 may elect early retirement and receive an actuarially adjusted pension (s 60, first proviso). A contributor of 55 may elect earlier retirement with a further actuarial adjustment (s 60, second proviso).

Death benefits: On the death of a contributor, their widow (and any de facto partner treated as a spouse) and children become entitled to benefits under Division 2 of Part V. The commencing date for pension payments under s 59 is the date the entitlement arises, regardless of when a claim is made.

Dispute resolution: A dispute is first determined by the Board. An aggrieved person may appeal to a Supreme Court judge in Chambers (s 85(1)). The judge's decision is final (s 85(2)).

Actuarial investigations: Annual as at 30 June, with the actuary required to report to the Board and recommend any necessary changes in contribution rates or the State's share (s 30(4)).

State Superannuation Act 2000: The Fund now forms part of the Government Employees Superannuation Fund under this Act (s 24(2)). The Board administering the 1938 Act is the Government Employees Superannuation Board under the 2000 Act. Annual actuarial investigations under s 17 of the 2000 Act satisfy the requirement under s 30 of this Act (s 30(2a)).

State Superannuation (Transitional and Consequential Provisions) Act 2000: Section 26 of this transitional Act preserves the 1938 Act's provisions for legacy members after formal repeal. Amended provisions may be varied by regulation under s 26(3) of the transitional Act.

Government Employees Superannuation Act 1987: This Act amended the scheme significantly. Employees who were contributors at its commencement continue under the 1938 Act unless they elect into the newer scheme.

State Superannuation Regulations 2001: The employer's compulsory contribution concept in Part VB (s 83M) is defined by reference to Part 3 of these Regulations. Actuarial adjustments under s 83P are also governed by these Regulations (Schedule 2, Part 1).

Superannuation Act 1871: Preserved for employees who were employed at the commencement of the 1938 Act (s 5). Persons becoming employees after commencement of the 1938 Act cannot claim benefits under the 1871 Act.

Commonwealth legislation: Section 4 requires construction subject to Commonwealth laws that prevail over WA legislation. The superannuation guarantee top-up scheme in Part VB aligns the 1938 Act with the Commonwealth's Superannuation Guarantee (Administration) Act 1992, ensuring members are not worse off than under a modern accumulation scheme.

Hospitals and Health Services Act 1927: Hospital boards constituted under this Act are included in the definition of "department" (s 6(1)), making their employees eligible for the scheme.

Public Sector Management Act 1994: Executive officers within the meaning of this Act are deemed to be employed in a permanent capacity (s 6(1)(aa)), making them eligible contributors.

Vocational Education and Training Act 1996: Colleges within the meaning of this Act are included in the definition of "department" (s 6(1)).

Police Benefit Fund Ordinance 1866: The Police Benefit Fund referenced in s 6(1) is maintained under this ordinance.

Act is formally repealed but continues to apply: A reader checking whether the Act is in force may find it listed as repealed by the State Superannuation Act 2000. The continuing application arises from s 26 of the transitional Act and the opening note in the stored text. Legacy members remain subject to the Act as a live instrument.

Missing Part II: Sections 8 to 23 (Part II) have been deleted. The numbering gaps in the text are a consequence of historical deletions, not drafting error.

De facto partners as spouses: Section 6AA treats de facto relationships as marriages for purposes of spouse and family benefits. The commencement of the de facto relationship is deemed the date of marriage, and its cessation (other than by death) is deemed a divorce. Multiple-spouse situations can arise where a pension member has both a legal spouse and a de facto partner, and the Board has discretion to apportion.

Unit-based pension means partial years matter: The pension quantum depends on the number of units contributed, which in turn depends on the salary at the time units are elected and whether any reserve or supplementary units have been added. Employees who fail to elect additional units when salary increases may be locked into a lower pension than their final salary would suggest.

Part-time work may require Board declaration: An employee whose hours are reduced ceases to be a full-time employee and technically ceases to be an "employee" for the purposes of the Act. Without a Board declaration under s 7, they would also cease to be a contributor. This requires proactive application.

Provident Account track for female subscribers: The Division 2 provisions for female subscribers (s 83B) reflect a historical distinction that was significantly modified after 1 July 1973. Female employees who were subscribers as at the commencement of the 1987 Act continue to contribute under these legacy terms unless they make an application under s 83B(5) to withdraw.

Appeals are final: Under s 85(2), a Supreme Court judge's decision on a dispute appeal is expressly stated to be final and conclusive and without further appeal. This creates a hard ceiling on litigation.

Example 1: Retirement at 65: A WA public servant who has been a contributor since 1985 has been contributing for 20 units of pension throughout their career. On retirement at age 65, they receive a pension comprising: first 2 units at $149.50 = $299 per annum; next 5 units at $78 = $390 per annum; remaining 13 units at $91 = $1,183 per annum. Total: approximately $1,872 per annum per unit of the relevant base amounts. These amounts are indexed under s 46A and s 46C using the Indexation Account.

Example 2: Early retirement at 60: A contributor aged 60 with 30 years of service elects to retire under the first proviso to s 60(1). Their pension is calculated by adding the actuarial equivalent of contributions made or to be made to the State's share as if they had continued to age 65. The actuarial adjustment accounts for the longer period of payment, generally resulting in a lower pension than would be received at 65.

Example 3: Death in service with family: A contributor dies with a surviving spouse and two dependent children under 16. The widow and children become entitled to pension benefits under Division 2 of Part V. If the contributor also had a de facto partner, both the legal spouse and the de facto partner may claim benefits as spouses under s 6AA. The Board may apportion the benefit between them.

Example 4: Missed election to increase units: An employee's salary increases from $80,000 to $120,000, moving them into a higher Scale B bracket entitling them to more units. If they fail to make an election to contribute for additional units, they remain on the number of units they already hold. They may not retrospectively claim entitlement to units they failed to elect. The Board has discretion under s 85A to correct this if the failure was without fault and hardship would otherwise result.

Example 5: Superannuation guarantee top-up: A contributor under the 1938 Act retires and would receive a pension whose present value is less than the entitlement they would have received under the 1993 scheme (the State Superannuation Act 2000 scheme) had they been a member. Under s 83N, the Board calculates the guaranteed benefit as if the person had been a member of the 1993 scheme since 1 July 1992 with only employer compulsory contributions credited, and pays a top-up benefit (s 83N(1)(c)) for the shortfall.