Superannuation (CSS) Continuing Contributions for Benefits Regulations 1981 — Zoe

Commonwealth legislation

Superannuation (CSS) Continuing Contributions for Benefits Regulations 1981

In ForceCTH

Jurisdiction

Commonwealth

Act Number

36 of 1981

Collection

legislative instrument

Plain English Summary

9/10 complexity

What these regulations do, mechanically

They identify who keeps receiving continuing CSS (Commonwealth Superannuation Scheme) contributions when people move between the Australian Public Service and other employers or bodies, and they set the conditions and timing for when that continuing-contributions treatment starts and stops (see regs 3, 3A, 3B and 4).
They define key terms and special categories used to apply section 14A of the Superannuation Act 1976 (for example, “top-up arrangement”, “mobility allowance”, and lists of named employers) so the Commissioner and employers can decide entitlement and contribution obligations (reg 2(1) and reg 2(2)–(4)).
They prescribe the day on which the continuing-contributions rule (s 14A of the Act) stops applying for particular classes of workers — typically when the person leaves the named employment, becomes a member of a different superannuation scheme, the relevant employer’s control changes, or other specified events occur (reg 4 and paras in reg 4(3)–(30)).
They give detailed, entity-specific lists of classes of workers to whom s 14A does apply (reg 3A) and lists of classes to which it does not apply (reg 3). These lists name specific organisations, employment dates and prior employment conditions (for example, many paragraphs in reg 3A name particular companies or dates).
They add tailored modifications to the main Superannuation Act for those covered by s 14A:

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Deep Dive

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What it does

These regulations, made under the Superannuation Act 1976 (the Act), define the classes of persons to whom section 14A of the Act applies and the classes to whom it does not apply. Section 14A is a provision that allows certain individuals who cease to be eligible employees under the Act (i.e. who leave employment that ordinarily attracts Commonwealth Superannuation Scheme (CSS) membership) to nevertheless continue making contributions to the CSS and remain within the scheme. The regulations also fix the times at which section 14A ceases to apply for each class, and modify the operation of the Act for those persons by inserting deemed leave periods and altering contribution calculations.

The regulations achieve this by listing, in regulation 3 and 3A, dozens of specific employer entities and employment circumstances. Persons in classes listed in regulation 3 are excluded from the benefit of section 14A - they cannot continue CSS contributions after moving. Persons in classes listed in regulation 3A are included - they may remain in the CSS despite moving to employment with a listed body such as AIDC Ltd, Australian Postal Corporation, Qantas, Medibank, Snowy Hydro Limited, or the CSS/PSS Board itself. Each class is defined by a combination of: the person’s employment history (e.g. was an eligible employee immediately before transfer), the nature of the new employment (full-time, non-casual), and the requirement not to have joined another superannuation scheme (with limited exceptions for top-up arrangements or performance-pay-only membership).

Further, regulation 4 provides detailed cessation triggers for each class - for example, when the person ceases employment with the listed entity, becomes a casual or temporary part-time employee, joins a different superannuation scheme, or when Commonwealth control of the entity ceases. Regulation 4A creates a special window (1 March to 31 August 1996, with extensions) during which certain persons could elect to transfer out of the CSS into the Public Sector Superannuation Scheme (PSS). Schedule 1 inserts a new Part VIIIA into the Act for persons who have been reinstated after dismissal or deemed retirement, deeming the gap period as leave without pay and overriding benefit payments. Schedule 2 modifies the Act for persons receiving a mobility allowance, allowing them to elect a notional salary equal to the maximum mobility allowance rate, and excluding them from certain leave and salary decrease provisions. Schedule 3 extends special fixed-term employee provisions to persons who are eligible employees by virtue of being in Division 3 of Part IV of the Public Service Act or being a section 14A(1)(b) or (e) person.

Current sections

Direct links to the current provisions in Superannuation (CSS) Continuing Contributions for Benefits Regulations 1981.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

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Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.

Main concepts

The central concept is the relevant person: defined in regulation 2(1) as a person to whom section 14A of the Act applies. That status is determined by inclusion in one of the classes in regulation 3A (or, for repatriation staff, regulation 3B). A person becomes a relevant person only if they meet all the conditions of the applicable class paragraph.

Eligible employee is a term from the Superannuation Act 1976. The regulations use it as a baseline: someone must have been an eligible employee immediately before the employment change to qualify for inclusion. For example, paragraph 3A(1)(a)(iii) requires that immediately before becoming employed by AIDC Ltd, the person was both an officer or employee of Australian Industry Development Corporation and an eligible employee. The regulations repeatedly use the phrase “was an eligible employee” as a gate.

Superannuation scheme is defined broadly in regulation 2(1) to mean a scheme applying to persons by reason of their engagement in certain employment, but expressly excludes: (a) productivity-related benefit preservation under section 110A of the Act, (b) PSS membership relating to other employment, and (c) contributions made solely to satisfy the employer’s Superannuation Guarantee obligations. This exclusion is critical because many of the classes allow membership only of the CSS or of schemes that fall within those exclusions. The definition also has a special element: superannuation scheme for top-up purposes (regulation 2(2)). A person is taken to be a member of a scheme for top-up purposes only if membership arises from a top-up arrangement, possibly combined with performance pay contributions, productivity benefit preservation, or SG contributions, but no other basis. This allows persons who have a top-up arrangement (essentially a salary packaging arrangement where part of remuneration is paid as superannuation contributions) to still be treated as not having joined a new scheme, preserving their CSS continuation.

Top-up arrangement is defined in regulation 2(3) and (4). It is an arrangement between the payer and payee where the payer makes contributions to a superannuation scheme that constitute part of the payee’s overall remuneration (not an addition), and the payer also makes payments under the Act (i.e. CSS contributions) in respect of the payee for that employment. This is a mechanism to allow salary packaging without breaking CSS continuation.

Commonwealth control and ACT Government control are defined in regulation 2(1) to mean holding a controlling interest by the Commonwealth (or its nominees, authorities, or controlled companies) or the ACT respectively. Many cessation triggers for classes depend on whether the employing entity ceases to be under Commonwealth control (e.g. paragraph 4(13)(c) for Avalon/ASTAAS, regulation 4(22)(c) for Australian Government Solicitor, regulation 4(30)(c) for ASPI Ltd). Loss of control automatically terminates section 14A application.

Mobility allowance is defined by reference to a determination under section 82D of the Public Service Act 1922. Schedule 2 contains bespoke modifications for persons eligible for mobility allowance, including an election to treat the maximum mobility allowance rate as their salary for contribution purposes (new section 47A inserted by Schedule 2 item 4).

The regulations also define specific entities by name (e.g. ASPI Ltd, AWB Limited, ATP Ltd, Medibank, Snowy Hydro Limited) and provide special rules for each. The definitions section is extensive and often cross-referenced in the class lists.

Who it affects

The regulations directly affect employees who move from Commonwealth employment (the Australian Public Service or employment with an approved authority under the Superannuation Act 1976) to employment with one of the specific listed entities. The classes in regulation 3A cover a wide range of corporatised and privatised entities: AIDC Ltd, Australian Postal Corporation (for staff who were eligible employees on 30 June 1990 and did not join the Australia Post Superannuation Scheme), Australian and Overseas Telecommunications Corporation (Telstra), Dairy Research and Development Corporation, Northern Land Council, ASP Ship Management, Qantas (employees who became Qantas employees before the 50% sale day and had been employed by Australian Airlines Limited), New South Wales Red Cross Blood Transfusion Service, Australian Meat Technology, Australian Information Media, Avalon Airport Geelong/ASTAAS, ACTTAB, Nuclear Safety Bureau, Australian Law Reform Commission, Medibank, Employment National, AWB Limited, Northern Territory Legal Aid Commission, Australian Government Solicitor, Sydney Airports Corporation Ltd, Bankstown Airport Ltd, Essendon Airport Ltd, Sydney Harbour Federation Trust, Snowy Hydro Limited, ATP Ltd, ASPI Ltd, and the CSS/PSS Board itself. Also, regulation 3B covers repatriation staff who were transferred to State operation under the Repatriation Institutions (Transfer) Act 1992.

The regulations also indirectly affect the employers themselves, because they become liable to make payments to the Commonwealth under section 159 of the Act (as extended by Schedule 1 item 2, which lists the bodies to which section 159 applies). The employers must also pay for medical examinations under section 160 (as modified by Schedule 1 item 3). For example, an employer such as Medibank is required to pay the cost of medical examinations for persons who propose to become employed by Medibank and are required to undergo examination under section 16 or 16AB of the Act.

The regulations also affect fixed-term office holders and employees who are eligible employees because they fall under Division 3 of Part IV of the Public Service Act or because they are persons referred to in section 14A(1)(b) or (e) of the Act - Schedule 3 extends the existing special provisions in section 57B, 58A and 58B to these persons.

Persons who are excluded from the benefit of section 14A are listed in regulation 3. These include officers reappointed after dismissal who were not eligible employees before the dismissal, persons who became members of a State superannuation scheme (e.g. under the Commonwealth Legal Aid Commission Act), persons who transferred to the Australia Post Superannuation Scheme or Telecom Superannuation Scheme, and contributions-barred persons under the SIS Act. These persons cannot continue CSS contributions despite moving to covered employment. The effect is that the regulations create a two-track system: some employees retain CSS access, others must transfer to the new employer’s scheme or leave the CSS.

Key duties and rights

The principal right conferred by these regulations is the right to continue as an eligible employee under the Act after moving to specified employment. This means the person continues to make contributions to the CSS and remains entitled to benefits under the Act. The right is conditional on the person not joining another superannuation scheme (with the carve-outs for top-up, performance pay, productivity benefits, and SG-only schemes). The person also has the duty to continue making contributions as required under the Act, including basic contributions (typically a percentage of salary) and any productivity contributions.

A key right for persons in the mobility allowance class (class 3A(1)(h)) is the election under section 47A (inserted by Schedule 2) to have their annual rate of salary taken as the maximum amount per year of mobility allowance payable. This election must be made within three months of becoming eligible for the allowance or would-be eligible but for income. If the person elects and the resulting notional salary is lower than the salary previously used for contribution calculations, the lower amount is used for future basic contributions until the next birthday anniversary. This protects the person from having to pay contributions on a salary they are no longer earning.

For persons who are covered by the Part VIIIA special provisions (Schedule 1), the regulations deem any period during which the person was not an eligible employee (e.g. between dismissal and reinstatement) to be a period of leave of absence without pay. This period, if 12 weeks or less, is deemed to exceed 12 weeks for the purposes of section 51 (which deals with the effect of unpaid leave on benefits). Further, if a benefit became payable on the commencement of that gap period, the benefit is taken never to have been payable, and any amount already paid must be repaid to the Commissioner. This effectively reverses any payout that occurred during the gap and restores the person’s CSS membership as if continuous.

The regulations also impose a duty on the listed employers to make payments under section 159 of the Act. Schedule 1 item 2 inserts a new subsection 159(1A) that lists the bodies to which the section applies (e.g. AIDC Ltd, Dairy Research and Development Corporation, ASP Ship Management, Qantas, Medibank, Snowy Hydro Limited, ASPI Ltd, etc.). These employers must pay to the Commonwealth the amount of any contributions and other payments for which the Commonwealth is liable in respect of the person under the Act. The employer also has a duty to pay for medical examinations under section 160 as modified.

Another important right is the ability to elect to cease being a relevant person. For example, under regulation 4(1), a person in Division 3 of Part IV of the Public Service Act who is a relevant person may elect by written notice to the Commissioner to cease to be a person to whom section 14A applies. The section 14A coverage then ends the day before the election. Similarly, regulation 4A creates a voluntary transfer window to move from CSS to PSS for certain classes.

The regulations also give the Minister a power to veto the continuation for repatriation staff: regulation 3B(2) says the regulation does not apply if the Minister signs a certificate that there are no satisfactory arrangements for the State or authority to pay the Commonwealth for the superannuation provision.

Penalties and enforcement

The regulations themselves do not create independent penalty provisions. Enforcement mechanisms derive from the Superannuation Act 1976 and the general law. The key enforcement lever is the consequence of failing to meet the conditions for continued CSS membership: the person automatically loses the benefit of section 14A. For example, if a person in class 3A(1)(a) (AIDC Ltd employees) becomes a member of a new superannuation scheme that does not fall within the permitted exceptions, section 14A ceases to apply at the end of the day before that membership begins (regulation 4, via the cessation rules). This means the person must thereafter leave the CSS. No fine or penalty is imposed, but the loss of scheme membership is a significant practical consequence.

Similarly, if a person fails to make required contributions under the Act, the Act itself contains provisions for arrears and benefit reductions. The regulations do not modify those provisions. For employers, failure to make payments under section 159 (as extended by Schedule 1) could be a breach of the statutory obligation, and the Commonwealth could recover the amounts as debts. However, the regulations do not specify any penalty for non-payment by an employer; that would be a matter for the Act or for contract.

One provision in the regulations that carries a specific financial consequence is Schedule 1, section 124D: if a benefit becomes payable on the commencement of a relevant gap period and the person later becomes a relevant person again, the benefit is taken never to have been payable, and the person must repay any amount received to the Commissioner. This is a mandatory repayment obligation, not a penalty per se, but it functions as clawback. Failure to repay would likely give rise to a debt recoverable by the Commonwealth.

The regulations also interact with the SIS Act (Superannuation Industry (Supervision) Act). Regulation 4(12) provides that if under the SIS Act any of the person’s CSS benefits become compulsorily payable, section 14A ceases to apply at the end of the day before the benefits become payable. This ensures that forced benefit payments (e.g. upon reaching preservation age, or on cashing out) terminate the continuation arrangement. The SIS Act itself contains penalties for breaches of its provisions, but the regulations do not add to them.

In summary, enforcement is primarily through automatic cessation of the right to continue CSS membership, and through the general law of debt recovery and the Act’s own machinery. The regulations rely on self-executing triggers rather than regulatory enforcement actions. The only person who can take a proactive step is the Minister in respect of repatriation staff (certificate under regulation 3B(2)). Otherwise, the regulations operate mechanically based on the facts of employment and scheme membership.

How it interacts with other laws

The regulations sit under the Superannuation Act 1976 and modify its operation. The most direct interaction is with section 14A of the Act itself. The regulations define who section 14A applies to and when it ceases. Without these regulations, the Act would have a broader or narrower scope.

The regulations also interact heavily with the Public Service Act 1922. Many class definitions refer to Divisions 2 and 3 of Part IV of that Act. The regulations often exclude persons who are to whom Division 2 or 3 of Part IV of the Public Service Act applies, unless they fall within specific categories. For example, regulation 3(1)(p) excludes persons who on or after 1 August 1998 become persons to whom Division 2 or 3 of Part IV of the Public Service Act applies, unless they are in a class under regulation 3A(1). This prevents automatic CSS continuation for new APS employees. The mobility allowance is defined by reference to a determination under section 82D of the Public Service Act 1922, linking to that Act.

The Superannuation Act 1990 (the PSS Act) is interact with through regulation 4A, which allows certain persons to transfer from CSS to PSS during a specified window. The expression “re-employed former contributor with preserved rights” used in several class paragraphs (e.g. 3A(1)(o)(iv)(D)) is a concept from the Superannuation Act 1976, but the PSS Act contains its own provisions for preserved benefits.

The SIS Act is directly referenced: regulation 4(12) uses the SIS Act as a trigger for cessation when benefits become compulsorily payable. The definition of contributions-barred person in regulation 3(1)(o) refers to the SIS Act. The superannuation scheme definition excludes participation solely for SG purposes, linking to the Superannuation Guarantee (Administration) Act 1992.

The Qantas Sale Act 1992 defines “50% sale day” and “Qantas employee”, used in class 3A(1)(j) and cessation regulation 4(8). The Snowy Hydro Corporatisation Act 1997 defines the SMHEA corporatisation date. The Repatriation Institutions (Transfer) Act 1992 is referenced in regulation 3B.

The Commonwealth Authorities and Companies Act 1997 is referenced in cessation provisions for entities like Australian Government Solicitor, Sydney Airports Corporation Ltd, Bankstown Airport Ltd, Essendon Airport Ltd, Sydney Harbour Federation Trust, and ASPI Ltd. Loss of status as a Commonwealth company or authority triggers cessation.

The Corporations Act 2001 (and previously the Corporations Law) is used to define the incorporation of certain entities. The Judiciary Act 1903 Division 2 of Part VIIIB establishes the Australian Government Solicitor.

Finally, the regulations modify the Act itself by inserting a new Part VIIIA (Schedule 1). That Part defines concepts like “relevant period” and “reinstated” for the purposes of the Act. It also overrides section 51 of the Act by deeming certain periods to exceed 12 weeks. Schedule 2 modifies sections 3, 5, 47, 51, 110A of the Act for mobility allowance recipients. Schedule 3 modifies sections 57B, 58A, 58B for fixed-term employees.

Thus the regulations are a dense web that ties together the Superannuation Act 1976 with multiple other Commonwealth laws, ensuring that CSS continuation is only available in defined circumstances and that the Act’s provisions are tailored for those circumstances.

Amendment history

The regulations were originally made as Statutory Rules 1981 No. 36, notified in the Gazette on 13 March 1981, and commenced on 15 March 1981 (see Gazette 1981 No. S44). The compilation before us is dated 14 February 2005, taking into account amendments up to SLI 2005 No. 7.

The regulations have been amended extensively. Major amendments include: 1987 No. 290 (which amended regulation 3 and Schedule 1, and substituted regulation 5); 1989 No. 168 (inserted regulation 3A); 1990 No. 179 (amended definition in regulation 2, amended regulation 3, substituted regulation 3A, amended regulation 4, and amended Schedule); 1991 No. 97 (amended regulation 2 and 3A and Schedule); 1991 No. 168 (amended regulation 3 and Schedule); 1991 No. 446 (inserted regulation 3B); 1991 No. 465 (amended regulation 3A and Schedule); 1992 No. 27 (amended regulation 2, 3A, 4, and Schedule); 1992 No. 213 (amended regulation 3B); 1992 No. 323 (amended regulation 3A, 4, and Schedule); 1992 No. 428 (amended regulation 2, 3, 3A, 4, 5, and substituted Schedule heading, amended Schedule 1); 1992 No. 460 (amended regulation 2, 3, 3A, 4); 1993 No. 3 (amended regulation 3A, 4, Schedule 1); 1993 No. 50 (amended regulation 2, 3A, 4, Schedule 1); 1993 No. 348 (amended Schedule 1); 1994 No. 8 (amended regulation 3A, 4, Schedule 1); 1994 No. 115 (amended regulation 2, 3A, 4, 5, Schedule 1, Schedule 2); 1994 No. 116 (amended regulation 5, inserted Schedule 3); 1994 No. 248 (amended regulation 3B); 1994 No. 271 (amended regulation 2, 3, 3A, 3B, 4, Schedule 1); 1994 No. 335 (amended regulation 3A); 1995 No. 97 (amended regulation 2, 3A, 4, Schedule 1); 1995 No. 201 (amended regulation 1, 2, 4); 1995 No. 349 (amended regulation 3A, 4, Schedule 1); 1995 No. 438 (inserted regulation 4A); 1996 No. 6 (amended regulation 3); 1996 No. 97 (amended Schedule 3); 1996 No. 297 (amended regulation 2, 3A, 4); 1997 No. 47 (amended regulation 4); 1997 No. 215 (amended regulation 3A, 4, Schedule 1); 1998 No. 91 (amended regulation 2, 3A, 4, Schedule 1); 1998 No. 242 (amended regulation 2, 3, 3A, 4, Schedule 1); 1999 No. 63 (amended regulation 1, 2, 3A, 4, Schedule 1); 1999 No. 172 (amended regulation 2, 3, 3A, 4, Schedule 1); 2001 No. 230 (amended regulation 2, 3A, 4, Schedule 1); 2002 No. 94 (amended regulation 2, 3A, 4, Schedule 1); 2002 No. 341 (amended regulation 2, 3A, 4, Schedule 1); and lastly 2005 No. 7 (amended Schedule 1). The tables in the Notes provide precise commencement dates, some retrospective. For instance, 1991 No. 97 commenced on 23 May 1991, but 1991 No. 168 had some provisions backdated to 1 July 1990. Many amendments merely added new classes to regulation 3A as new entities were corporatised or privatised.

The evolution reflects the progressive corporatisation and privatisation of Commonwealth entities from the late 1980s through the 2000s. Each batch of amendments added classes for specific entities (e.g. Qantas in 1995, Medibank in 1997, AWB in 1998, Snowy Hydro in 2002). The last amendment in this compilation (2005 No. 7) added the CSS/PSS Board as a body under section 159(1A) and made related changes.

Litigation history

The regulations themselves do not cite any judicial decisions. The compilation contains no annotations referring to cases. However, given the long history and many specific classes, it is plausible that litigation has occurred under the Superannuation Act 1976 concerning the interpretation of section 14A and these regulations. For example, there may have been disputes about whether a person fell within a class, or whether a particular benefit was payable under the modified provisions. The regulations’ complexity , particularly the interplay between ‘top-up arrangements’ and ‘superannuation scheme’ , could give rise to interpretive litigation.

The regulations also refer to concepts from other Acts (e.g. ‘Commonwealth control’, ‘reinstated’) that may have been judicially considered. But without case names in the source, we can only note that the regulations have been in force for over 20 years at the date of the compilation, and it is reasonable to assume that the Administrative Appeals Tribunal and federal courts have dealt with related matters. The note in the compilation indicates that the regulations were prepared by the Office of Legislative Drafting and Publishing, and no case list is appended.

Practitioners should be aware that the Federal Court and the AAT have jurisdiction over superannuation matters under the Act. Any litigation would likely concern the proper characterisation of a person’s employment or scheme membership. For example, whether a person’s membership of a State superannuation scheme is solely for top-up purposes under regulation 2(2) could be contentious. Also, the meaning of ‘continues to be an employee’ in class definitions may have been litigated.

Given the absence of cited cases in the source, this deep dive cannot provide specific case references. The user’s instructions forbid inventing cases, so the only accurate statement is that the compilation contains no litigation history. This is itself a useful datum: it suggests that the regulations have operated relatively smoothly without high-profile litigation, or that any litigation has been under the parent Act without directly involving the regulations’ text.

Gotchas

Several provisions in these regulations are traps for the unwary. The first is the definition of superannuation scheme in regulation 2(1), which excludes schemes to the extent that membership is only for productivity-related benefits (section 110A of the Act), the PSS for other employment, and SG-only contributions. However, these exclusions do not apply for the purposes of regulation 2(2) and (3) (the top-up arrangement provisions) or for any reference in the regulations to a scheme of which a person is taken to be a member for top-up purposes (regulation 2(5)). This means that when assessing whether a person has ‘become a member of a superannuation scheme’ for the purpose of class conditions or cessation triggers, you must carefully check whether the membership is only for excluded purposes. If it is, then the person is not considered to have joined a new scheme and can continue CSS. If the membership goes beyond those limited purposes, then the person is disqualified. The line is fine.

Second, the top-up arrangement provisions are narrow. Regulation 2(4) requires that the contributions constitute part of the payee’s overall remuneration (not an addition) and that the payer makes payments under the Act for the payee in relation to the employment. This means a simple salary sacrifice arrangement that results in additional employer contributions may not qualify if the employer does not also continue CSS payments. The regulations allow a person to have a top-up arrangement and still be treated as not having joined a new scheme, but only if all conditions are met. Many practitioners may assume any salary packaging is fine; it is not.

Third, the cessation triggers are multi-layered and often automatic. For example, regulation 4(1) for persons in Division 3 of Part IV of the Public Service Act: if the person becomes a member of a superannuation scheme (other than excepted ones), section 14A ceases to apply the day before. There is no grace period. Similarly, for many classes, loss of Commonwealth control of the employer immediately ends coverage (e.g. regulation 4(15) for ACTTAB, 4(20)(c) for AWB Limited). A person may not realise that a change in shareholding has terminated their CSS continuation.

Fourth, the deemed leave without pay provisions in Schedule 1 Part VIIIA are counterintuitive. For a person who is reinstated after a period of non-membership, that gap period is deemed to be leave without pay, and if it is 12 weeks or less it is deemed to exceed 12 weeks for section 51 purposes. This can affect benefit calculations and eligibility for certain benefits (e.g. invalidity). Also, if a benefit was paid during the gap, it must be repaid (section 124D). A person who received a refund of contributions upon leaving the APS and later returns may be surprised to find they must repay that amount.

Fifth, the mobility allowance modifications (Schedule 2) are elective but have strict time limits. The election under section 47A must be made within three months of becoming eligible (or would-be eligible). If the person does not elect, the default annual rate of salary is the salary from the office held immediately before becoming eligible for the allowance. That could be higher or lower than the maximum mobility allowance. The election can reduce contributions but also affect benefit entitlements because benefits are based on salary.

Sixth, the regulations exclude certain persons from section 14A entirely - for example, persons who become members of a State superannuation scheme after becoming an approved person under the Commonwealth Legal Aid Commission Act (regulation 3(1)(f)). Persons leaving the APS to work for a State government must check whether they have inadvertently disqualified themselves. The same applies to persons who transfer to the Australia Post Superannuation Scheme or Telecom Superannuation Scheme (classes 3(1)(m) and (n)).

Finally, the definitions of Commonwealth control and ACT Government control require a controlling interest. A person may assume that because an entity is still majority-owned by the Commonwealth, it remains under Commonwealth control. But the definition includes only the Commonwealth itself, its nominees, authorities established for a public purpose by Commonwealth law, and companies under Commonwealth control. A complex corporate structure might mean actual control does not fall within the definition, leading to unexpected cessation.

How to comply

For an employer that is listed in the regulations (e.g. AIDC Ltd, Medibank, Snowy Hydro Limited, the CSS/PSS Board), the key compliance obligation is to make payments under section 159 of the Act as extended by Schedule 1. This means the employer must pay to the Commonwealth the amount of contributions and other payments that the Commonwealth is liable for in respect of the eligible employee. The employer must also pay for medical examinations under section 160 as modified. To comply, the employer should have arrangements in place with CSS/PSS Board to remit contributions and other costs. The employer must ensure that it continues to make these payments as long as the person is a relevant person under the regulations.

For the employer, it is also critical to monitor the cessation triggers. If the employer ceases to be under Commonwealth control (e.g. through privatisation), the employer should notify affected employees that section 14A will cease to apply at the end of the last day of Commonwealth control. The employer should also keep records of employees’ scheme membership to know if an employee has joined another superannuation scheme, which would also trigger cessation.

For an employee who is a relevant person, compliance means continuing to make contributions under the Act as required (typically basic member contributions at the applicable rate). The employee must also refrain from joining another superannuation scheme (except for the limited exceptions of performance-pay-only schemes, top-up arrangements, productivity benefits, and SG-only schemes). Joining a new employer’s standard superannuation fund would likely terminate CSS continuation. The employee should review the new employer’s superannuation arrangements and seek confirmation that membership is limited to the permitted exceptions.

The employee who is eligible for a mobility allowance and wishes to take advantage of the election under Schedule 2 must do so in writing within three months of becoming eligible (or would-be eligible). The election should be sent to the Commissioner (now the CSS/PSS Board). Once made, the employee’s salary for contribution purposes becomes the maximum mobility allowance amount, which may lower contributions. The employee should also be aware that the election removes them from the operation of section 47 (decreases in salary) and section 51 (leave without pay) - they will not have to worry about contribution increases if their salary reduces, but they also lose the protection of section 51 for unpaid leave.

Persons who are in a class that allows transfer to PSS (regulation 4A - classes 3A(1)(e), (l), and regulation 3B) had a window of 1 March to 31 August 1996, with extensions for leave without pay or preclusion. That window has long closed, so no current compliance action is possible, but those who made the election validly should have transferred to PSS.

For employers and employees alike, record-keeping is essential. The definitions of ‘relevant person’ and the class conditions involve precise facts: was the person an eligible employee immediately before the employment change? Did they ever become a member of another scheme? The employer should keep copies of the employee’s CSS membership history and any elections made.

Because many provisions turn on the meaning of ‘superannuation scheme’ and ‘top-up arrangement’, employers should seek legal advice before implementing salary sacrifice arrangements for CSS continuation employees. The arrangement must meet the definition in regulation 2(3) and (4) to avoid jeopardising CSS membership.

Finally, the Minister’s certificate power under regulation 3B(2) means that repatriation staff coverage can be blocked if the Minister is not satisfied with arrangements. The relevant State or authority should proactively negotiate satisfactory payment arrangements with the Commonwealth to ensure coverage for transferred staff. If no certificate is signed, the regulation does not apply, and those staff lose CSS continuation.## What it does

In essence, the regulations are a detailed machinery that preserves CSS membership for a defined set of employees who move from the Australian Public Service or approved authorities into corporatised or privatised entities, while preventing double coverage and ensuring that only those who meet strict criteria can continue. They also manage the eventual termination of that preserved membership.