Part 2—Executive Officers Under Contract—Superannuation Provisions
3 Definitions
s. 3
(1) In this Part—
administrators in relation to a statutory superannuation scheme means the governing body by whatever name called which administers that scheme;
S. 3(1) def. of complying super-annuation fund inserted by No. 4/1996 s. 119(1)(a).
complying superannuation fund means a superannuation entity or a superannuation fund within the meaning of section 10 of the Commonwealth Superannuation Industry (Supervision) Act 1993 which is a complying superannuation fund or a complying approved deposit fund within the meaning of Part IX of the Commonwealth Income Tax Assessment Act 1936;
S. 3(1) def. of contract officer amended by No. 46/1998 s. 7(Sch. 1).
contract officer means an executive whose contract of employment provides that he or she continues to be a member of a statutory superannuation scheme;
S. 3(1) def. of employer amended by No. 46/1998 s. 7(Sch. 1), substituted by No. 108/2004 s. 117(1) (Sch. 3 item 193.1).
employer means employer within the meaning of section 24 of the Public Administration Act 2004;
S. 3(1) def. of occupational super-annuation standards repealed by No. 4/1996 s. 119(1)(b).
statutory superannuation scheme means—
(a) a superannuation scheme under—
(i) the State Superannuation Act 1988; or
s. 4
(ii) the Transport Superannuation Act 1988; or
(iii) the State Employees Retirement Benefits Act 1979; or
(b) a scheme or fund that is specified in accordance with subsection (2).
S. 3(2) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 193.2).
(2) An Order under section 23(1)(d) or 104 of the Public Administration Act 2004 that relates to a declared authority may specify—
(a) a scheme or fund established by or under an Act which provides superannuation benefits to be a statutory superannuation scheme for the purposes of this Part in relation to that declared authority; and
(b) the provisions of this Part that apply to that declared authority in relation to that scheme or fund.
S. 4 amended by Nos 46/1998 s. 7(Sch. 1), 12/1999 s. 4(Sch. 2 item 15.1), substituted by No. 108/2004 s. 117(1) (Sch. 3 item 193.3).
4 Relationship of this Part to Public Administration Act 2004
This Part must be read as one with the Public Administration Act 2004 and as if this Act formed part of that Act.
S. 5 amended by No. 4/1996 s. 119(2).
5 Part to prevail over inconsistent laws
s. 5
If a provision of this Part is inconsistent with a provision of another Act or a provision of an instrument made under another Act or a provision of a statutory superannuation scheme, the provision of this Part prevails.
6 Executives appointed from outside the public sector
S. 6(1) amended by No. 46/1998 s. 7(Sch. 1).
(1) If a person other than a member of staff of the public service enters into a contract of employment as an executive, that person is not entitled to become a member of a statutory superannuation scheme.
(2) Subsection (1) does not affect any deferred pension or benefit which that person may have under a statutory superannuation scheme which existed before the person enters into that contract.
7 Exemption from scheme for existing executives
S. 7(1) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 193.4).
(1) Subject to section 6, a contract of employment of an executive under Part 3 of the Public Administration Act 2004 must provide—
S. 7(1)(a) amended by No. 46/1998 s. 7(Sch. 1).
(a) that the executive ceases to be a member of a named statutory superannuation scheme; or
s. 7(1)(b) amended by No. 46/1998 s. 7(Sch. 1).
(b) that the executive continues to be a member of a named statutory superannuation scheme.
S. 7(2) amended by No. 46/1998 s. 7(Sch. 1).
(2) The executive must elect which of these terms must be included in the contract.
S. 7(3) amended by No. 97/1993 s. 46(1)(a).
(3) Subsection (1)(a) does not affect any deferred pension or benefit which a person may have under a statutory superannuation scheme.
S. 7(4) amended by Nos 4/1996 s. 119(3), 46/1998 s. 7(Sch. 1).
(4) A contract of employment that provides that an executive ceases to be a member of a statutory superannuation scheme must also provide for membership of an alternative superannuation scheme which must be a complying superannuation fund and to which employer contributions must not be less than the minimum requirement under the Superannuation Guarantee Charge Act 1992 of the Commonwealth.
s. 7
S. 7(5) amended by No. 46/1998 s. 7(Sch. 1).
(5) The employer of an executive whose contract of employment provides that he or she ceases to be a member of a statutory superannuation scheme must certify to the administrator of the scheme that the executive is an exempt officer.
S. 7(6) amended by No. 46/1998 s. 7(Sch. 1).
(6) The employer of an executive in respect of whom a certificate has been issued under subsection (5) must by notice in writing to the administrator of the scheme, revoke the certificate if—
S. 7(6)(a) amended by No. 46/1998 s. 7(Sch. 1).
(a) the officer ceases to be an executive; or
(b) the officer's contract of employment provides that he or she is to be a member of a statutory superannuation scheme.
(7) A certificate under subsection (5) or a notice under subsection (6) is binding on the administrators of a statutory superannuation scheme.
8 Executives with a right of return to public sector
s. 8
S. 8 amended by No. 46/1998 s. 7(Sch. 1).
If the contract of employment of an executive provides that the executive ceases to be a member of a statutory superannuation scheme and includes a right of return to the public sector and the executive exercises that right of return in accordance with the contract—
S. 8(a) amended by No. 46/1998 s. 7(Sch. 1).
(a) the executive's entitlement to any deferred pension or benefit is not affected; and
(b) he or she must contribute to an applicable statutory superannuation scheme as if he or she were a new member and is not entitled to claim any further benefit in respect of his or her previous service; and
S. 8(c) amended by No. 46/1998 s. 7(Sch. 1).
(c) for the purpose of joining that statutory superannuation scheme the executive must be taken to have the same medical classification as he or she had immediately before ceasing to be a member of the first-mentioned statutory superannuation scheme.
9 Expiry of contract of employment
(1) For the purposes only of a statutory superannuation scheme, a contract officer whose contract of employment does not include a right of return to the public sector—
(a) must be taken to have been retrenched on the expiry of that contract if a new contract of employment has not been offered to the officer or the officer is only offered a new contract of employment with terms and conditions that are less favourable to the officer than those of the expired contract and the officer has not accepted the offer; and
(b) must be taken to have resigned on the expiry of that contract if a new contract of employment has been offered to the officer (with terms and conditions that are no less favourable to the officer than those of the expired contract) and the officer has not accepted the offer.
(2) For the purposes only of a statutory superannuation scheme, a contract officer whose contract of employment includes a right of return to the public sector—
(a) must be taken to have been retrenched on the expiry of that contract if, before that expiry—
s. 9
(i) a new contract of employment has not been offered to the officer or the officer is only offered a new contract of employment with terms and conditions that are less favourable to the officer than those of the expired contract and the officer has not accepted the offer; and
(ii) the officer has not exercised the right of return; and
(b) must be taken to have resigned on the expiry of that contract of employment if, before that expiry—
S. 9(2)(b)(i) amended by No. 50/1997 s. 18(5).
(i) a new contract of employment has been offered to the officer (with terms and conditions that are no less favourable to the officer than those of the expired contract) and the officer has not accepted the offer; and
(ii) the officer has not exercised the right of return.
10 Termination of contract during term
s. 10
S. 10(1) amended by No. 46/1998 s. 7(Sch. 1).
(1) For the purposes only of a statutory superannuation scheme, a contract officer must be taken to have resigned on the termination by the executive of his or her contract of employment during its term if—
(a) the contract does not include a right of return to the public sector; and
(b) a new contract is not entered into on or before that termination.
S. 10(2) amended by No. 46/1998 s. 7(Sch. 1).
(2) For the purposes only of a statutory superannuation scheme, a contract officer must be taken to have been retrenched on the termination by the executive's employer of the officer's contract of employment during its term if—
(a) the contract does not include a right of return to the public sector; and
(b) a new contract is not entered into on or before that termination.
(3) For the purposes only of a statutory superannuation scheme, if—
(a) a contract officer's contract of employment includes a right of return to the public sector; and
(b) the contract is terminated during its term by the officer; and
(c) a new contract is not entered into on or before that termination; and
(d) the right of return is not exercised in accordance with the contract—
the officer must be taken to have resigned on not exercising that right of return.
(4) For the purposes only of a statutory superannuation scheme, if—
(a) a contract officer's contract of employment includes a right of return to the public sector; and
(b) the contract is terminated during its term by the employer; and
(c) a new contract is not entered into on or before that termination; and
(d) the right of return is not exercised in accordance with the contract—
the officer must be taken to have been retrenched on not exercising that right of return.
S. 11 amended by No. 97/1993 s. 46(1)(b).
11 Notice to scheme administrator
s. 11
The employer of a contract officer or former contract officer who must be taken by this Part to have resigned or been retrenched and who has not attained the minimum age for retirement must give notice in writing of the resignation or retrenchment to the administrator of the applicable statutory superannuation scheme.
12 Calculation of contributions and benefits for contract officers
(1) For the purpose of calculating contributions and benefits under any statutory superannuation scheme in respect of a contract officer the officer's salary for the purpose of that scheme must be taken to be the amount from time to time specified for that purpose in the contract of employment.
S. 12(2) amended by No. 97/1993 s. 46(1)(c), substituted by No. 102/1995 s. 31.
(2) Subject to subsection (3), the amount specified in the contract must be equal to 70 percent of the officer's remuneration package.
(3) If the amount of the officer's salary for the purposes of that scheme immediately before entering into the contract was more than the amount equivalent to 70 percent of the officer's remuneration package under that contract, the officer must elect in writing which of those amounts is to be the officer’s salary for the purpose of that scheme under the contract.
(4) The employer of a contract officer must give notice in writing to the administrator of that scheme of the officer's salary for the purposes of that scheme.
13 Application to declared authorities
s. 13
If under an Order referred to in section 3(2), section 6 applies to a declared authority, a reference in section 6 to a member of staff of the public service must be taken to be a reference to a member of staff of the declared authority.
14 Salary in relation to declared authority
(1) In relation to a declared authority to which this section applies, if a contract officer's salary for the purposes of a statutory superannuation scheme specified in relation to that declared authority in an Order referred to in section 3(2), is reduced then, unless the officer elects in writing that the reduced salary applies for superannuation purposes, the officer's salary for the purposes of that scheme must be taken to mean the greater of—
(a) the salary of the officer immediately before the reduction; or
(b) the officer's actual salary.
(2) The officer's employer must give notice in writing to the administrator of the applicable statutory superannuation scheme of that agreement.
s. 14
Pt 3 (Heading and ss 15–21) amended by No. 97/1993 s. 46(2)(a)(b), repealed by No. 4/1996 s. 119(4).
ENDNOTES
Endnotes
General Information
Minister's second reading speech—
Legislative Assembly: 10 November 1992
Legislative Council: 17 November 1992
The long title for the Bill for this Act was "A Bill to make further provision relating to superannuation in the public sector and for other purposes.".
The Superannuation (Public Sector) Act 1992 was assented to on 26 November 1992 and came into operation as follows:
Part 1 (sections 1, 2) on 26 November 1992: section 2(1); rest of Act on 27 November 1992: Special Gazette (No. 63) 27 November 1992 page 1.
Table of Amendments
Endnotes
This Version incorporates amendments made to the Superannuation (Public Sector) Act 1992 by Acts and subordinate instruments.