Government Superannuation Act 1999 - Victorian …FILE/99-8a022.docx · Web viewOCPC-VIC, Word...

Version No. 022

Government Superannuation Act 1999No. 8 of 1999

Version incorporating amendments as at 6 September 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 13 Definitions 24 Interpretation and application of Act and governing instruments 4

PARTS 2–4—Repealed 4

5–41 Repealed 4

PART 5—GENERAL 5

42 MTA Superannuation Fund 543 Provisions relating to SCES 1344 Provisions relating to LASB 1445 Provisions relating to HSF 1446 Provisions relating to VSF 1646A Commencement of specified standards Order 1847 Repealed 18

PART 6—Repealed 18

48–54 Repealed 18═══════════════

ENDNOTES 19

1. General Information 19

2. Table of Amendments 20

3. Explanatory Details 22

1

Version No. 022


Version incorporating amendments as at 6 September 2012

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose

The purpose of this Act is to—

* * * * *

(b) facilitate the transfer of the Victorian Superannuation Fund to Commonwealth supervision;

(c) repeal the Public Sector Superannuation (Administration) Act 1993 and consequentially amend the Borrowing and Investment Powers Act 1987, the State Employees Retirement Benefits Act 1979, the State Superannuation Act 1988, the Superannuation (Portability) Act 1989, the Transport Superannuation Act 1988 and the Victorian Funds Management Corporation Act 1994.

2 Commencement

(1) This Act (other than sections 30 and 48) comes into operation on 1 July 1999.

(2) Sections 30 and 48 come into operation on the day on which this Act receives the Royal Assent.

1

S. 1(a) repealed by No. 94/2005 s. 21.

3 Definitions

(1) In this Act—

administered scheme means—

(a) the State Superannuation Fund; and

(b) the MTA Superannuation Fund; and

(c) a public sector superannuation scheme which is declared under section 34 to be an administered scheme;

appointed day, in respect of an administered scheme within the meaning of paragraph (c) of the definition of administered scheme, means the appointed day specified in the Order in Council made under section 34 in respect of the transfer of the administered scheme;

Board means the Emergency Services Superannuation Board established under section 5 of the Emergency Services Superannuation Act 1986;

commencement of this Act means 1 July 1999;

common fund means a common fund established under section 26;

* * * * *

governing body means the person or body administering a public sector superannuation scheme but does not include the Board;

2

s. 3

S. 3(1) def. of Board substituted by No. 94/2005 s. 22(a).

S. 3(1) def. of Director repealed by No. 94/2005 s. 22(b).

S. 3(1) def. of governing body amended by No. 94/2005 s. 22(c).

governing instrument means the Act, regulations, by-law, trust deed or other document whatsoever or any combination of such documents by or under which a public sector superannuation scheme is established or maintained;

* * * * *

public sector superannuation scheme means a scheme for the payment of superannuation, retirement or death benefits which is established or maintained—

(a) by or under an Act; or

(b) by a public authority, statutory body, body corporate or other body constituted by or under an Act;

State Superannuation Fund means the Fund within the meaning of section 3(1) of the State Superannuation Act 1988 as in force immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005;

superannuation benefits includes superannuation payments, annuities, pensions, allowances, lump sum payments or other benefits.

(2) A reference in this Act to the administration of a public sector superannuation scheme includes a reference to the management and control of the policies of that scheme.

3

S. 3(1) def. of Office repealed by No. 94/2005 s. 22(b).

s. 3

S. 3(1) def. of State Super-annuation Fund amended by No. 94/2005 s. 22(d).

4 Interpretation and application of Act and governing instruments

(1) If there is any inconsistency between this Act and any other Act or the governing instrument of any public sector superannuation scheme, the provisions of this Act prevail.

(2) If there is any inconsistency between a provision which by virtue of this Act is deemed to form part of or is to be read and construed as forming part of a governing instrument and any other provision of the governing instrument, the first-mentioned provision prevails.

_______________

* * * * *

* * * * *

4

s. 4

Pt 2 (ss 5–27) amended by Nos 29/2000 s. 7, 70/2003 s. 8, 108/2004 s. 117(1) (Sch. 3 item 91), repealed by No. 94/2005 s. 23.

Pts 3, 4 (ss 28–41) repealed by No. 94/2005 s. 23.

PART 5—GENERAL

42 MTA Superannuation Fund

(1) The provisions of sections 44C, 44D, 45 and 46 of the Transport Superannuation Act 1988, with such modifications as are necessary to make those provisions consistent with the governing instrument of the MTA Superannuation Fund, are deemed to form part of the governing instrument of the MTA Superannuation Fund.

(1A) The provisions of Part 7A of the Transport Superannuation Act 1988, with such modifications as are necessary to make those provisions consistent with the governing instrument of the MTA Superannuation Fund, are deemed to form part of the governing instrument of the MTA Superannuation Fund.

(2) The governing instrument of the MTA Superannuation Fund is to be read and construed as if subsections (3), (4) and (5) formed part of the governing instrument.

(3) Any benefit to which an employee may from time to time be eligible which is determined by reference to a recognised period of service, employment or membership of the employee, as the case may be, and the employee's salary must be determined on the basis of the final average salary of the employee calculated as follows—

(a) in relation to an employee with less than 2 years of recognised service, an amount calculated in accordance with the formula—

AB

× 3651

s. 42

S. 42(1A) inserted by No. 70/2003 s. 9(1).


5

Where—

"A" is the aggregate salary paid to the employee in respect of the employee's period of recognised service;

"B" is the total number of days in that period;

(b) in relation to an employee with 2 years or more of recognised service, an amount equal to one-half of the employee's aggregate salary for the period of such recognised service of 2 years ending on the employee's last day of service—

and if the period of recognised service includes a period of leave without pay there is deemed to have been payable to that employee during that period of leave without pay salary at the rate payable to the employee immediately before the period of leave, or such higher salary as has been approved by the Trustee of the MTA Superannuation Fund for the purposes of the Fund, but in no case shall the amount in relation to a person who was an employee on 1 January 1994 be less than that employee's final adjusted salary (as defined by the governing instrument) on that date.

(4) An employee must not contribute at a rate greater than 5 percent of salary unless contributing at a higher rate will not make him or her eligible for an accrued retirement benefit greater than that for which he or she would be eligible by contributing at the rate of 5 percent for the whole of his or her recognised period of service, employment or membership, as the case may be.

s. 42


6

(5) Any employee contributing at a rate greater than 5 percent on the date that section 66(5) of the Public Sector Superannuation (Administration) Act 1993 came into operation who is no longer eligible to contribute at that rate is deemed as from that date to have elected to contribute at 5 percent.

(6) The governing instrument of the MTA Superannuation Fund must not be amended in any manner that will increase employer costs by way of any—

(a) improvement in the amount or availability of any benefit; or

(b) reduction of any amount payable by an employee—

without the approval of the Minister.

(7) Any amendment of the governing instrument of the MTA Superannuation Fund made in contravention of subsection (6) is void.

(8) Notwithstanding anything to the contrary in this section, the governing instrument of the MTA Superannuation Fund is to be read and construed subject to—

s. 42S. 42(8)(a) amended by No. 29/2000 s. 8(1).

(a) any relevant specified standards made under section 53 of the Transport Superannuation Act 1988; and

(b) any provisions of a relevant Commonwealth or Victorian law relating to anti-discrimination which the Office is required to comply with; and

(c) if a member of the MTA Superannuation Fund is subject to a notice of surcharge

S. 42(8)(b) amended by No. 29/2000 s. 8(2).

S. 42(8)(c) inserted by No. 29/2000 s. 8(2), amended by No. 70/2003 s. 9(2).


7

assessment, sections 44CA and 44CB of the Transport Superannuation Act 1988; and

(d) Part 7A of the Transport Superannuation Act 1988.

(9) In this section, eligible salary sacrifice contributor means an employee in respect of whom a declaration is in force under subsection (10).

(10) The Minister may by notice published in the Government Gazette declare—

(a) an employee to be an eligible salary sacrifice contributor from the date specified in the notice; or

(b) a class of employees to be eligible salary sacrifice contributors from the date specified in the notice.

(11) An eligible salary sacrifice contributor may by notice in writing to his or her employer elect to make his or her member contributions by way of salary sacrifice at the rate calculated to the nearest highest 01% in accordance with the following formula—

M1 − Rwhere—

"M" is the applicable member contribution rate in accordance with the provisions of the governing instrument of the MTA Superannuation Fund without salary sacrifice;

S. 42(8)(d) inserted by No. 70/2003 s. 9(2).

S. 42(9) inserted by No. 40/2004 s. 18.

S. 42(10) inserted by No. 40/2004 s. 18.

s. 42

S. 42(11) inserted by No. 40/2004 s. 18.


8

"R" is the tax rate for the financial year on taxable contributions to the MTA Superannuation Fund under the Commonwealth Income Tax Assessment Act 1936.

(12) An election under subsection (11)—

(a) can only be made if there is in force an agreement between the employer and the employee under which the employer can make the member contributions required by the provisions of the governing instrument of the MTA Superannuation Fund by way of salary sacrifice;

(b) is subject to the terms and conditions specified in the agreement referred to in paragraph (a);

(c) can only be made in respect of the whole of the member contributions;

(d) can not be made in respect of any contributions made by an employee in addition to the applicable member contributions under the provisions of the governing instrument of the MTA Superannuation Fund.

(13) Member contributions made in accordance with the rate determined under subsection (11) are for the purposes of the provisions of the governing instrument of the MTA Superannuation Fund (other than the provisions relating to surchargeable contributions) to be taken to be—

(a) the applicable member contributions to be paid under the provisions of the governing instrument of the MTA Superannuation Fund; and

S. 42(12) inserted by No. 40/2004 s. 18.

s. 42

S. 42(13) inserted by No. 40/2004 s. 18.


9

(b) the member contributions that would have been payable if an election had not been made under subsection (11).Note

The effect of paragraph (b) is that, for the purpose of calculating benefit entitlements, the member contributions are taken to be the member contributions that would have been payable if no election had been made.

(14) An election under subsection (11) does not affect the amount that would otherwise constitute the salary of the employee for the purposes of the provisions of the governing instrument of the MTA Superannuation Fund.

s. 42S. 42(15) inserted by No. 40/2004 s. 18.

(15) The minimum benefit required to be paid to ensure compliance with the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth is to be determined as if no election had been made under subsection (11).

(16) In this section—

eligible contribution means the Government co-contribution payable under the Superannuation (Government Co-contributions for Low Income Earners) Act 2003 of the Commonwealth that the Commissioner of Taxation determines under that Act is to be paid to the Fund or to the person;

eligible member means an employee who is a person in respect of whom a Government co-contribution is payable in accordance with section 6 of the Superannuation (Government Co-contributions for Low Income Earners) Act 2003 of the Commonwealth;

Note to s. 42(13)(b) inserted by No. 37/2007 s. 17.

S. 42(14) inserted by No. 40/2004 s. 18.

S. 42(16) inserted by No. 78/2004 s. 11.


10

eligible member account means the account established under subsection (17).

(17) The Trustee of the MTA Superannuation Fund must establish and maintain a separate eligible member account for each employee who is an eligible member.

(18) The Trustee of the MTA Superannuation Fund must credit to an employee's eligible member account—

(a) eligible contributions received on behalf of, or from, the employee; and

(b) interest on the amount in the account at the rate determined by the Trustee of the MTA Superannuation Fund.

(19) The Trustee of the MTA Superannuation Fund must debit to an employee's eligible member account—

(a) any reasonable costs incurred in maintaining the account as determined by the Trustee of the MTA Superannuation Fund; and

(b) any taxes payable in respect of the account; and

(c) any refund of overpaid or ineligible contributions required to be made to the Commissioner of Taxation under the Superannuation (Government Co-contributions for Low Income Earners) Act 2003 of the Commonwealth.

(20) The Trustee of the MTA Superannuation Fund may for the purposes of subsection (18)(b) determine that it is appropriate in the circumstances to apply a negative interest rate.

(21) If benefits become payable under the provisions of the governing instrument of the MTA Superannuation Fund to or in respect of a person

S. 42(17) inserted by No. 78/2004 s. 11.

S. 42(18) inserted by No. 78/2004 s. 11.

S. 42(19) inserted by No. 78/2004 s. 11.

s. 42

S. 42(20) inserted by No. 78/2004 s. 11.

S. 42(21) inserted by No. 78/2004 s. 11.


11

who has been an employee, the Trustee of the MTA Superannuation Fund must ensure that the person receives an additional benefit equal to the net balance of the employee's eligible member account as at the date of the payment of the benefits.

s. 42S. 42(22) inserted by No. 78/2004 s. 11.

(22) The net balance of the employee's eligible member account as at the date of the payment of the benefits must be paid—

(a) as a lump sum; and

(b) in accordance with the specified standards.

(23) Eligible contributions—

(a) do not constitute member contributions which are required to be paid under the provisions of the governing instrument of the MTA Superannuation Fund;

(b) do not create a corresponding liability requiring the employer to make contributions to the MTA Superannuation Fund;

(c) must not be taken into account in the calculation of any benefits under the provisions of the governing instrument of the MTA Superannuation Fund other than this section.

(24) A benefit paid in accordance with this section—

(a) does not affect the payment of any other benefits under the provisions of the governing instrument of the MTA Superannuation Fund; and

(b) must not be taken into account in determining any minimum or maximum benefit entitlement under the provisions of

S. 42(23) inserted by No. 78/2004 s. 11.

S. 42(24) inserted by No. 78/2004 s. 11.


12

the governing instrument of the MTA Superannuation Fund.

43 Provisions relating to SCES

(1) In this section, contributor means a contributor transferred to the Victorian Superannuation Fund under section 34 of the Superannuation Acts (General Amendment) Act 1995.

(2) Despite the transfer of a contributor and the repeal of the Superannuation Acts (General Amendment) Act 1995—

(a) the contributor is entitled to receive the same benefits that he or she would have been entitled to receive had he or she not been so transferred; and

(b) the contributor is entitled to have his or her rights and obligations in existence at the date of the transfer determined in accordance with the provisions of the State Casual Employees Superannuation Act 1989 as in force immediately before that transfer.

(3) Despite the repeal of the State Casual Employees Superannuation Act 1989 and Superannuation Acts (General Amendment) Act 1995, the Minister must continue to pay into the Victorian Superannuation Fund such amounts as would have been payable from time to time under sections 26(3), 27(2) and 31 of the State Casual Employees Superannuation Act 1989 into the State Casual Employees Superannuation Fund if the State Casual Employees Superannuation Act 1989 had not been repealed.

(4) Section 42A of the Public Sector Superannuation (Administration) Act 1993

s. 43


13

applies to the early release of part or all of a contributor's benefits as if that Act had not been repealed.

44 Provisions relating to LASB

(1) The Local Authorities Superannuation Fund as constituted under and governed by the Local Authorities Superannuation Act 1988 immediately before 1 July 1998 continues, on and after 1 July 1998, as the Local Authorities Superannuation Fund continued in force and governed by the Trust Deed made before 1 July 1998 by Local Authorities Super Pty Ltd, Trustee of the Local Authorities Superannuation Fund.

(2) All assets and liabilities of the Local Authorities Superannuation Fund immediately before 1 July 1998 are transferred on 1 July 1998 to Local Authorities Super Pty Ltd, as Trustee of the Local Authorities Superannuation Fund under the Trust Deed.

(3) Except as in the Trust Deed expressly or by necessary implication provided, all persons, things and circumstances appointed or created by or under the Local Authorities Superannuation Act 1988 or existing or continuing under that Act immediately before 1 July 1998 (including benefit accruals and benefit entitlements) shall under and subject to the Trust Deed continue to have the same status, operation and effect as they respectively would have had if that Act had not been repealed.

(4) No stamp duty or other tax is payable under any Act in respect of anything done under this section.

45 Provisions relating to HSF


14

(1) The Hospitals Superannuation Fund as constituted under and governed by the Hospitals Superannuation Act 1988 immediately before 1 January 1999 continues, on and after 1 January 1999, as the Hospitals Superannuation Fund continued in force and governed by the Trust Deed made before 1 January 1999 by Health Super Pty Ltd as Trustee of the Hospitals Superannuation Fund from 1 January 1999.

(2) All assets and liabilities of the Hospitals Superannuation Fund immediately before 1 January 1999 are transferred on 1 January 1999 to Health Super Pty Ltd as Trustee of the Hospitals Superannuation Fund under the Trust Deed.

(3) Except as in the Trust Deed expressly or by necessary implication provided, all persons, things and circumstances appointed or created by or under the Hospitals Superannuation Act 1988 or existing or continuing under that Act immediately before 1 January 1999 (including benefit accruals and benefit entitlements) shall under and subject to the Trust Deed continue to have the same status, operation and effect as they respectively would have had if that Act had not been repealed.

(4) Without limiting the operation of the Trust Deed, any entity which immediately before 1 January 1999 was making, or was liable to make, contributions to the Hospitals Superannuation Fund—

(a) is on 1 January 1999 deemed to be a participating employer in the Hospitals Superannuation Fund as governed by the Trust Deed; and

(b) must not later than 30 June 1999 provide or execute such documents as Health Super Pty Ltd may require for the purposes of

s. 44s. 45


15

administering the Hospitals Superannuation Fund.

(5) All persons appointed under section 14(1) of the Hospitals Superannuation Act 1988 who are employees of the Hospitals Superannuation Board immediately before 1 January 1999 are deemed as from 1 January 1999 to be employees of Health Super Pty Ltd.

(6) A person to whom subsection (5) applies is entitled to a salary and terms and conditions of employment no less favourable than those which he or she received or was entitled to receive immediately before 1 January 1999 and to all his or her accrued benefits arising from his or her prior employment.

(7) A person to whom subsection (5) applies is not entitled to receive any payment or other benefit by reason only of having ceased to be an employee of the Hospitals Superannuation Board because of this section.


46 Provisions relating to VSF

(1) The Victorian Superannuation Fund as constituted under and governed by the Public Sector Superannuation (Administration) Act 1993 immediately before 1 July 1999 continues, on and after 1 July 1999, as the Victorian Superannuation Fund continued in force and governed by the Trust Deed made before 1 July 1999 by VicSuper Pty Ltd as Trustee of the Victorian Superannuation Fund from 1 July 1999.

s. 46


16

(2) All assets and liabilities of the Victorian Superannuation Fund immediately before 1 July 1999 are transferred on 1 July 1999 to VicSuper Pty Ltd as Trustee of the Victorian Superannuation Fund under the Trust Deed.

(3) Except as in the Trust Deed expressly or by necessary implication provided, all persons, things and circumstances appointed or created by or under the Public Sector Superannuation (Administration) Act 1993 or existing or continuing under that Act immediately before 1 July 1999 (including benefit accruals and benefit entitlements) shall under and subject to the Trust Deed continue to have the same status, operation and effect as they respectively would have had if that Act had not been repealed.

(4) Without limiting the operation of the Trust Deed, any entity which immediately before 1 July 1999 was making, or was liable to make, contributions to the Victorian Superannuation Fund—

(a) is on 1 July 1999 deemed to be a participating employer in the Victorian Superannuation Fund as governed by the Trust Deed; and

(b) must not later than 31 December 1999 provide or execute such documents as VicSuper Pty Ltd may require for the purposes of administering the Victorian Superannuation Fund.

(5) A designated employee who has accepted an offer of employment under section 30 is as from 1 July 1999 an employee of VicSuper Pty Ltd and is entitled to a salary and terms and conditions of employment no less favourable than those which he or she received or was entitled to receive

s. 46


17

immediately before 1 July 1999 and to all his or her accrued benefits arising from his or her prior employment.


46A Commencement of specified standards Order

(1) This section applies to the Order in Council cited as Specified Standards for the Preservation of Superannuation Benefits which was—

(a) made on 16 June 1999; and

(b) published in the Government Gazette on 20 July 2000.

(2) Notwithstanding anything to the contrary in any Act under which the Order in Council was made or the failure to publish the Order in Council on or before 1 July 1999, the Order in Council is deemed—

(a) to have come into operation on 1 July 1999 as specified in the Order in Council; and

(b) to have full force and effect from 1 July 1999.

* * * * *

__________________

* * * * *

═══════════════

S. 46A inserted by No. 95/2000 s. 10.

s. 46A

S. 47 repealed by No. 94/2005 s. 24.

Pt 6 (Heading and ss 48–54) repealed by No. 95/2000 s. 11.


18

ENDNOTES

1. General InformationMinister's second reading speech—

Legislative Assembly: 5 March 1999

Legislative Council: 21 April 1999

The long title for the Bill for this Act was "to provide for the administration of certain Victorian superannuation schemes, to repeal the Public Sector Superannuation (Administration) Act 1993, to consequentially amend certain other Acts and for other purposes."

The Government Superannuation Act 1999 was assented to on 11 May 1999 and came into operation as follows:

Sections 30 and 48 on 11 May 1999: section 2(2); rest of Act on 1 July 1999: section 2(1).

Endnotes


19

2. Table of AmendmentsThis Version incorporates amendments made to the Government Superannuation Act 1999 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Superannuation Acts (Amendment) Act 2000, No. 29/2000Assent Date: 30.5.00Commencement Date: Ss 7, 8 on 31.5.00: s. 2(1)Current State: This information relates only to the provision/s

amending the Government Superannuation Act 1999

Superannuation Acts (Beneficiary Choice) Act 2000, No. 95/2000Assent Date: 5.12.00Commencement Date: S. 10 on 1.7.99: s. 2(5); s. 11 on 6.12.00: s. 2(1)Current State: This information relates only to the provision/s


Superannuation Acts (Family Law) Act 2003, No. 70/2003Assent Date: 14.10.03Commencement Date: Ss 8, 9 on 15.10.03: s. 2(1)Current State: This information relates only to the provision/s


Treasury and Finance Legislation (Amendment) Act 2004, No. 40/2004Assent Date: 8.6.04Commencement Date: S. 18 on 9.6.04: s. 2(1)Current State: This information relates only to the provision/s


Parliamentary Superannuation Legislation (Reform) Act 2004, No. 78/2004Assent Date: 9.11.04Commencement Date: S. 11 on 10.11.04: s. 2(1)Current State: This information relates only to the provision/s


Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 91) on 5.4.05: Government

Gazette 31.3.05 p. 602Current State: This information relates only to the provision/s


Endnotes


20

Superannuation Legislation (Governance Reform) Act 2005, No. 94/2005Assent Date: 29.11.05Commencement Date: Ss 21–24 on 1.12.05: s. 2Current State: This information relates only to the provision/s


Superannuation Legislation Amendment (Contribution Splitting and Other Matters) Act 2007, No. 37/2007

Assent Date: 14.8.07Commencement Date: S. 17 on 15.8.07: s. 2Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


21

3. Explanatory DetailsNo entries at date of publication.

Endnotes


22

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