32CContributions that satisfy the choice of fund requirements

#### 32C Contributions that satisfy the choice of fund requirements Contributions to certain funds (1) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if the contribution is made to a fund that, at the time that the contribution is made, is: (a) a chosen fund for the employee (see Division 4); or (b) if the employee is not a Commonwealth employee who is a member of the CSS or the PSS—an unfunded public sector scheme. Contributions to stapled funds (1A) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made: (a) there is no chosen fund for the employee; and (b) the most recent notification to the employer: (i) by the Commissioner; and (ii) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee; is that the Commissioner is satisfied that the fund is the stapled fund for the employee. Contributions to certain eligible choice funds (2) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made: (a) there is no chosen fund for the employee; and (aa) the most recent notification to the employer: (i) by the Commissioner; and (ii) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee; is that the Commissioner is satisfied that there is no stapled fund for the employee; and (b) the fund is an eligible choice fund for the employer; and (ba) the fund: (i) is specified under section 32P in the standard choice form provided as the fund to which the employer will contribute for the benefit of the employee if the employee does not make a choice or will be so specified within the time specified in section 32N for the provision of a standard choice form to the employee; or (ii) if the employer has not contributed, and cannot contribute, to a fund (the first employer fund) that was so specified or that was purportedly so specified—will be so specified within 28 days of the employer becoming aware that the employer cannot contribute to the first employer fund; and (c) a class of beneficial interest in the fund is a MySuper product within the meaning of the Superannuation Industry (Supervision) Act 1993; and (d) the fund complies with the requirements (if any) set out in the regulations in relation to the provision of a benefit in respect of MySuper members of the fund that is payable only in the event of the death of the member; and (e) the fund complies with the requirements (if any) set out in the regulations in relation to offering a benefit in respect of members of the fund (other than MySuper members) that is payable only in the event of the death of the member. (2A) Subsection (2) does not apply if the employer is required under section 32N to give the employee a standard choice form and the employer does not do this by the time specified in the subsection concerned. However, this subsection ceases to apply from the time that the employer gives the standard choice form to the employee. (2AA) Paragraph (2)(ba) does not apply if the employee is, within the meaning of the Migration Act 1958, the holder of a temporary visa. Contributions to certain successor funds (2AB) A contribution to a fund (the new fund) by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if: (a) the employee’s interest in the new fund was transferred to the new fund from another fund (the original fund) without the employee’s consent; and (b) at the time of the most recent contribution before the transfer to the original fund by the employer for the benefit of the employee, the original fund was a fund: (i) to which subparagraph (2)(ba)(i) applies; or (ii) to which subparagraph (2)(ba)(ii) applies, or would have applied if the transfer had not occurred; or (iii) to which subsection (1A) applies; and (c) the new fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer. Contributions through an approved clearing house (2B) A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if: (a) section 79A (which is about a contribution through an approved clearing house) applies to the contribution; and (b) the employee or the Commissioner gives the employer notice to the effect that the employee wants a fund to be a chosen fund for the employee in accordance with Division 4 of Part 3A (Choosing a fund); and Note: Under section 32G (Limit on funds that may be chosen), the fund chosen by the employee must be an eligible choice fund and must be a fund to which the employer can make contributions. (c) the employer passes onto the approved clearing house mentioned in section 79A the information included in the notice, and any other prescribed information: (i) within 21 days after the employer is given the notice; and (ii) before or at the time the contribution is made; and (d) the approved clearing house accepts the information. Contributions to the CSS (3) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the CSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection. Contributions to the PSS (4) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the PSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection. Contributions under the Superannuation (Productivity Benefit) Act 1988 (5) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under the Superannuation (Productivity Benefit) Act 1988. However, this subsection does not apply if that Act has been prescribed in relation to that time under regulations made for the purpose of this subsection. Contributions under certain agreements and workplace determinations (6) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with: (a) a pre‑reform certified agreement; or (b) an AWA; or (c) a pre‑reform AWA; or (d) a collective agreement; or (e) an old IR agreement; or (f) an ITEA; or (g) if subsection (6AAA) applies—a workplace determination made before 1 January 2021; or (h) if subsection (6AAA) applies—an enterprise agreement made before 1 January 2021; or (i) an award mentioned in paragraph 2(2)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or (j) a State reference transitional award or common rule. > Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009. (6AAA) For the purposes of paragraph (6)(g) or (h), this subsection applies if, at the time the contribution (or part of the contribution) is made, the most recent notification to the employer: (a) by the Commissioner; and (b) relating to a request by the employer (or by the employer’s agent) for the Commissioner to identify any stapled fund for the employee; is that the Commissioner is satisfied that there is no stapled fund for the employee. Contributions previously covered by paragraphs (6)(g) and (h) (6AA) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if: (a) at the time the contribution is made, there is no chosen fund for the employee; and (b) the fund is a fund to which the employer has previously made contributions, in compliance with the choice of fund requirements under paragraph (6)(g) or (h), for the benefit of the employee. Contributions under notional agreements preserving State awards (6A) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made: (a) under, or in accordance with, a notional agreement preserving State awards; and (b) in respect of salary or wages paid before 1 July 2006. > Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009. Contributions under preserved State agreements (6B) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a preserved State agreement. > Note: A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009. Contributions under Division 2B State instruments (7) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a Division 2B State instrument. > Note: The expression Division 2B State instrument is defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Contributions under State awards (8) A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a State industrial award. Contributions under prescribed legislation (9) A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under a law of the Commonwealth, of a State or of a Territory and the law is prescribed in relation to that time under regulations made for the purpose of this subsection. Contributions made after employees cease employment (10) If: (a) an employee ceases to be employed by an employer; and (b) after the employment ceases, the employer makes a contribution to a fund for the benefit of the employee and in respect of the employment; then, for the purposes of this section, the contribution is taken to have been made immediately before the employment ceases. > Note: This section is used in determining if an individual superannuation guarantee shortfall is increased under subsection 19(2A) or (2B). Where subsection 19(2B) is relevant, the contributions referred to in this section are the notional contributions referred to in paragraph 19(2B)(b).