Superannuation Industry (Supervision) Regulations 1994

PART 5 - BENEFIT PROTECTION STANDARDS  

Division 5.2 - Minimum benefits  

REGULATION 5.05   MANDATED EMPLOYER CONTRIBUTIONS - REGULATED SUPERANNUATION FUNDS  

5.05(1)   [Contributions deemed mandated employer contributions]  

Subject to this regulation, contributions to a regulated superannuation fund are taken to be mandated employer contributions.

5.05(2)   [Contributions received after one year]  

If:

(a) at least 1 year has elapsed since the fund received the contributions; and

(b) the trustee:

(i) is satisfied that the contributions are not in fact mandated employer contributions; and

(ii) decides not to continue to treat the contributions as mandated employer contributions;

subregulation (1) ceases to apply to the contributions.

5.05(3)   [Contributions received before lapse of one year]  

If:

(a) less than 1 year has elapsed since the fund received the contributions; and

(b) the trustee is satisfied that the contributions are not in fact mandated employer contributions;

subregulation (1) ceases to apply to the contributions.

5.05(4)   [Power of trustee]  

The trustee has power to make a decision of the kind mentioned in subparagraph 2(b)(ii) despite anything in the governing rules of the fund.

Example of the application of this regulation

A trustee of a fund may receive a non-mandated employer contribution from an employer-sponsor of the fund that the trustee does not know is a non-mandated employer contribution (i.e. a contribution not made in satisfaction of the employer-sponsor's superannuation guarantee or award obligation).

Upon acceptance, the contribution will be taken to be a mandated employer contribution and therefore subject to the minimum benefits standards.

From this point, one of three circumstances may apply:

(a) the trustee may become aware in the first year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the trustee must treat the contribution as a non-mandated employer contribution; or

(b) the trustee may become aware more than a year after the contribution was received that the contribution is a non-mandated employer contribution, and, if this is the case, the trustee may continue to treat the contribution as a mandated employer contribution instead of making corrections to reflect the change; or

(c) the trustee may never become aware that the contribution is a non-mandated employer contribution, and, if this is the case, the contribution will always be taken to be a mandated employer contribution.