PART 1 - PRELIMINARY
SECTION 1
1
SHORT TITLE
This Act may be cited as the
Superannuation Guarantee (Administration) Act 1992.
SECTION 2
2
COMMENCEMENT
This Act commences on 1 July 1992.
SECTION 3
ACT BINDS CROWN ETC.
3(1)
[Crown to be bound]
This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory and the Northern Territory.
3(2)
[Crown not liable to prosecution]
Nothing in this Act permits the Crown to be prosecuted for an offence.
SECTION 4
4
APPLICATION
This Act extends to every external Territory referred to in the definition of
Australia
.
History
S 4 substituted by No 2 of 2015, s 3 and Sch 4 item 71, applicable to a quarter that commences on or after 1 July 2015. S 4 formerly read:
SECTION 4 EXTENSION TO TERRITORIES
4
This Act:
(a)
extends to the Territory of Cocos (Keeling) Islands and the Territory of Christmas Island; and
(b)
has effect as if those Territories were part of Australia.
4A
(Repealed) SECTION 4A EXTENSION TO JOINT PETROLEUM DEVELOPMENT AREA
(Repealed by No 2 of 2015)
History
S 4A repealed byNo 2 of 2015, s 3 and Sch 4 item 72, applicable to a quarter that commences on or after 1 July 2015. S 4A formerly read:
SECTION 4A EXTENSION TO JOINT PETROLEUM DEVELOPMENT AREA
4A
This Act:
(a)
extends to the Joint Petroleum Development Area (within the meaning of the Petroleum (Timor Sea Treaty) Act 2003); and
(b)
has effect as if that Area were part of Australia.
S 4A inserted by No 10 of 2003, s 3 and Sch 1 item 76, effective 2 April 2003.
SECTION 5
APPLICATION OF ACT TO COMMONWEALTH
5(1)
The Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are not liable to pay superannuation guarantee charge.
History
S 5(1) amended by No 102 of 2004, s 3 and Sch 1 item 1, by substituting "Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are" for "Commonwealth is", effective 1 July 2005.
5(2)
However, subject to this Act and to such modifications as are prescribed, this Act applies in all other respects, in respect of any matter or thing in respect of the employment of a Commonwealth employee, as if:
(a)
the employee were employed by the responsible Department and not by the Commonwealth; and
(b)
the responsible Department were a company and each other Department, and each authority of the Commonwealth, were a company related to the responsible Department; and
(c)
the responsible Department were a government body.
History
S 5(2), (2A), (2B) and (2C) substituted for s 5(2) by No 102 of 2004, s 3 and Sch 1 item 2, effective 1 July 2005. S 5(2) formerly read:
5(2)
This Act applies in all other respects as if the Commonwealth were liable to pay superannuation guarantee charge.
5(2A)
In addition, subject to such modifications as are prescribed, this Act applies in relation to an untaxable Commonwealth authority in the same way as it applies in relation to a Commonwealth Department.
History
S 5(2), (2A), (2B) and (2C) substituted for s 5(2) by No 102 of 2004, s 3 and Sch 1 item 2, effective 1 July 2005.
5(2B)
The Finance Minister may give such directions in writing as are necessary or convenient to be given for carrying out or giving effect to this section and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or a Commonwealth entity.
History
S 5(2), (2A), (2B) and (2C) substituted for s 5(2) by No 102 of 2004, s 3 and Sch 1 item 2, effective 1 July 2005.
5(2C)
Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth.
History
S 5(2), (2A), (2B) and (2C) substituted for s 5(2) by No 102 of 2004, s 3 and Sch 1 item 2, effective 1 July 2005.
5(3)
Part
8 has effect as if any superannuation guarantee charge for a quarter in respect of a superannuation guarantee shortfall of the Commonwealth had been paid on:
(a)
for a quarter beginning on 1 January - 28 May in the next quarter; and
(b)
for a quarter beginning on 1 April - 28 August in the next quarter; and
(c)
for a quarter beginning on 1 July - 28 November in the next quarter; and
(d)
for a quarter beginning on 1 October - 28 February in the next quarter.
History
S 5(3) substituted by No 147 of 2005, s 3 and Sch 6 item 3, applicable to obligations relating to the quarter beginning on 1 October 2005 and later quarters. S 5(3) formerly read:
5(3)
Part 8 has effect as if any superannuation guarantee charge for a quarter in respect of a superannuation guarantee shortfall of the Commonwealth, a Commonwealth Department or an untaxable Commonwealth authority had been paid on:
(a)
for a quarter beginning on 1 January - 14 May in the next quarter; and
(b)
for a quarter beginning on 1 April - 14 August in the next quarter; and
(c)
for a quarter beginning on 1 July - 14 November in the next quarter; and
(d)
for a quarter beginning on 1 October - 14 February in the next quarter.
S 5(3) amended by No 102 of 2004 by inserting ", a Commonwealth Department or an untaxable Commonwealth authority" after "Commonwealth", effective 1 July 2005.
S 5(3) substituted by No 51 of 2002, s 3 and Sch 1 item 1, effective 1 July 2003. S 5(3) formerly read:
5(3)
Part 8 has effect as if any superannuation guarantee charge in respect of a superannuation guarantee shortfall of the Commonwealth had been paid on 14 August in the year following the year to which the charge relates.
Act No 51 of 2002, s 3 and Sch 1 contained the following application and transitional provisions:
Application of amendments made by Part 1 - general
193
Subject to this Part, the amendments made by Part 1 apply in relation to:
(a)
the determination of superannuation guarantee shortfalls under the Superannuation Guarantee (Administration) Act 1992 for quarters that commence on or after 1 July 2003; and
(b)
matters relating to such shortfalls.
Note 1:
A matter relating to a shortfall includes, for example, the requirement to keep records under section 79 in respect of the period to which the shortfall relates.
Note 2:
The Superannuation Guarantee (Administration) Act 1992 continues to apply in relation to the determination of superannuation guarantee shortfalls for years that ended before 1 July 2003, and matters relating to those shortfalls, as if the amendments made by Part 1 of this Schedule had not been made.
Special rule for the first 2 quarters of the 2003-04 year - nominal interest component and administration component do not apply if charge paid by 28 April 2004
194(1)
This item applies to an employer who, under the
Superannuation Guarantee (Administration) Act 1992 as amended by Part
1 of this Schedule, has one or more individual superannuation guarantee shortfalls for the quarter starting on 1 July 2003 or 1 October 2003.
194(2)
Subject to subitem (3), the employer's nominal interest component for the quarter and the employer's administration component for the quarter are not included in the employer's superannuation guarantee shortfall for the quarter.
194(3)
However, if the employer has not paid the superannuation guarantee charge on the shortfall (determined taking account of the effect of subitem (2)) in full by 28 April 2004, the employer's nominal interest component for the quarter, and the employer's administration component for the quarter, are taken to be, and always to have been, included in the employer's superannuation guarantee shortfall for the quarter.
Note:
This provision does not change the day by which the superannuation guarantee charge is payable for those 2 quarters or the day on which general interest charge will begin to run.
Special provisions relating to conversion notices
195(1)
Subject to subitem (2), the amendments made by items 17 to 21 apply in relation to conversion notices given on or after 1 July 2003 under section
6B of the
Superannuation Guarantee (Administration) Act 1992.
195(2)
Despite the amendment made by item 20, a conversion notice given on or after 1 July 2003 and before 15 August 2003 may be expressed to take effect on a day that is not earlier than 1 July 2002.
195(3)
During the period starting on 1 July 1998 and ending on the commencement of this item, section
6B of the
Superannuation Guarantee (Administration) Act 1992 is taken to have had effect as if the references to the Commissioner of Insurance and Superannuation were instead references to the Australian Prudential Regulation Authority.
Note:
1 July 1998 is the day on which the Insurance and Superannuation Commissioner Act 1987 was repealed and the Australian Prudential Regulation Authority Act 1998 commenced.
195(4)
If this item commences before 1 July 2003, then during the period starting on the commencement of this item and ending on 1 July 2003, section
6B of the
Superannuation Guarantee (Administration) Act 1992 is taken to have effect as if the references to the Commissioner of Insurance and Superannuation were instead references to the Commissioner of Taxation.
Special provisions relating to benefit certificates
196(1)
Subject to subitem (2), the amendment made by item 25 applies in relation to benefit certificates given on or after 1 July 2003 under section
10 of the
Superannuation Guarantee (Administration) Act 1992.
196(2)
Despite the amendment made by that item, a benefit certificate given on or after 1 July 2003 and before 15 August 2003, or a later day allowed by the Commissioner, may be expressed to have effect from a day that is not earlier than 1 July 2002 and not later than the day on which the certificate is issued.
Reporting of superannuation contributions
197
The amendment made by item 116 applies in relation to contributions made on or after 1 July 2003.
Default assessments
198
The amendment made by item 149 applies in relation to assessments made on or after 1 July 2003 (irrespective of when the relevant superannuation guarantee shortfall arose).
Shortfall components - payments direct to superannuation accounts etc. and people over 65
199
The amendments made by items 162, 165 and 166 apply in relation to payments (or other dealings) by the Commissioner of an amount of a shortfall component made on or after 1 July 2003 (irrespective of when the relevant superannuation guarantee shortfall arose).
Relief from annual national payroll requirements for pre-1 July 2003 shortfalls if employer's base year is 1996-97 or later
200
If:
(a)
an employer has a superannuation guarantee shortfall for a period that ended before 1 July 2003; and
(b)
the employer's base year, within the meaning of the
Superannuation Guarantee (Administration) Act 1992 as it continues to apply in relation to shortfalls for years that ended before 1 July 2003 (see item 193), is the year beginning on 1 July 1996 or a later year;
the employer does not, from 1 July 2003, have to comply with the requirements of paragraph 33(2)(f), subparagraph 59(2)(a)(i) and paragraph 79(2)(a) of that Act (as so continuing to apply) in relation to that shortfall and that period.
Note:
This provision relieves the employer from having to comply with requirements related to the employer's annual national payroll. However, an employer whose base year is an earlier year must continue to comply with those requirements in relation to shortfalls for pre-1 July 2003 periods.
Preservation of regulations made for the purposes of subsection 65(1)
201
Regulations in force for the purposes of subsection
65(1) of the
Superannuation Guarantee (Administration) Act 1992 immediately before 1 July 2003 have effect on and after that day as if they were made for the purposes of that subsection as amended by item 162 of this Schedule.
5(4)
Subsection
14ZX(4), section
14ZZ and Divisions
4 and
5 of Part
IVC of the
Taxation Administration Act 1953 do not apply to the Commonwealth, Commonwealth Departments or untaxable Commonwealth authorities.
History
S 5(4) amended by No 102 of 2004, s 3 and Sch 1 item 4, by inserting ", Commonwealth Departments or untaxable Commonwealth authorities" after "Commonwealth", effective 1 July 2005.
5(5)
In this section:
Commonwealth Department
means:
(a)
a Department of State; or
(b)
a Department of the Parliament established under the
Parliamentary Service Act 1999; or
(c)
a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Secretary of a Department of the Australian Public Service.
History
Definition of "Commonwealth Department" amended by No 5 of 2011, s 3 and Sch 6 item 135, by inserting "established under the Parliamentary Service Act 1999" in para (b), effective 19 April 2011.
Commonwealth entity
means a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.
History
Definition of "Commonwealth entity" substituted by No 36 of 2015, s 3 and Sch 5 item 67, effective 14 April 2015. No 36 of 2015, s 3 and Sch 5 items 74-77, contain the following transitional and application provisions:
Part 2 - Transitional and application provisions
74 Corporate and strategic plans
74
An amendment made by an item of this Schedule that relates to a corporate plan or a strategic plan (however described) applies in relation to reporting periods that commence on or after 1 July 2015.
75 Annual reports
75
An amendment made by an item of the Schedule that relates to an annual report applies in relation to reporting periods that commence on or after 1 July 2014.
76 Disclosing interests
76(1)
This item applies if:
(a)
before this item commences, a person discloses an interest in accordance with a provision in an Act; and
(b)
the provision is:
(i)
amended; or
(ii)
repealed; or
(iii)
repealed and substituted;
by an item of this Schedule.
76(2)
The person is taken to have disclosed the interest in accordance with section 29 of the Public Governance, Performance and Accountability Act 2013 and rules made for the purposes of that section.
77 Saving instruments in force at commencement
77(1)
This item applies if:
(a)
a provision of an Act provides that an instrument (whether or not a legislative instrument) may be made under, or for the purposes of, the provision; and
(b)
an instrument made under, or for the purposes of, the provision is in force immediately before the commencement of this Schedule; and
(c)
the provision is:
(i)
amended; or
(ii)
repealed and substituted;
by an item of this Schedule; and
(d)
after the provision has been amended or repealed and substituted, the provision still provides in the same or similar terms that an instrument may be made under, or for the purposes of, the provision.
77(2)
If the provision is amended, the amendment referred to in subparagraph (1)(c)(i) does not affect the continuity of the instrument.
77(3)
If the provision is repealed and substituted, the instrument is taken, after the commencement of this Schedule, to have been made under, or for the purposes of, the provision as substituted.
The definition formerly read:
Commonwealth entity
means:
(a)
an Agency (within the meaning of the Financial Management and Accountability Act 1997); or
(b)
a Commonwealth authority (within the meaning of the Commonwealth Authorities and Companies Act 1997);
that cannot be made liable to taxation by a Commonwealth law.
Finance Department
means the Department administered by the Finance Minister.
Finance Minister
means the Minister administering the Public Governance, Performance and Accountability Act 2013.
History
Definition of "Finance Minister" amended by No 36 of 2015, s 3 and Sch 5 item 68, by substituting "Public Governance, Performance and Accountability Act 2013" for "Financial Management and Accountability Act 1997", effective 14 April 2015. For transitional and application provisions, see note under definition of "Commonwealth entity".
modifications
(Repealed by No 46 of 2011)
History
Definition of "modifications" repealed by No 46 of 2011, s 3 and Sch 2 item 1088, effective 27 December 2011. For saving and transitional provisions see note under s 27(2). The definition formerly read:
modifications
includes additions, omissions and substitutions.
responsible Department
, in relation to the employment of a Commonwealth employee, means:
(a)
where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an annual Appropriation Act - the Commonwealth Department in respect of which the money was appropriated; and
(b)
where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an Act other than an annual Appropriation Act:
(i)
if the employee performs or performed the duties of that employment in, or in respect of, a Commonwealth Department - that Commonwealth Department; or
(ii)
in any other case - the Department of State administered by the Minister who administers the Act under which that money was appropriated, insofar as the Act appropriated that money; and
(c)
where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated by the Constitution - the Finance Department.
untaxable Commonwealth authority
means an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.
History
S 5(5) inserted by No 102 of 2004, s 3 and Sch 1 item 5, effective 1 July 2005.
S 5 substituted by No 56 of 1994.
SECTION 5A
APPLICATION OF ACT TO COMMONWEALTH AUTHORITIES
5A(1)
["Commonwealth authority"]
In this section:
Commonwealth authority
means an authority or body that is established by or under a law of the Commonwealth.
5A(2)
[Law deemed not to exempt authority]
If:
(a)
a law, or a provision of a law, passed before the commencement of this section purports to exempt a Commonwealth authority from liability to pay:
(i)
taxes under the laws of the Commonwealth; or
(ii)
certain taxes under the laws of the Commonwealth; and
(b)
apart from this subsection, the exemption would apply to superannuation guarantee charge;
that law or provision is taken not to have exempted, or not to exempt, that authority from liability to pay the charge.
History
S 5A(2) amended by No 51 of 2002, s 3 and Sch 1 item 2, by omitting ", for the year beginning on 1 July 1993 and for all later years," after "or provision is taken", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
5A(3)
[No exemption unless expressly provided in law]
If:
(a)
a law, or a provision of a law, passed after the commencement of this section purports to exempt a Commonwealth authority from liability to pay:
(i)
taxes under the laws of the Commonwealth; or
(ii)
certain taxes under the laws of the Commonwealth; and
(b)
apart from this subsection, the exemption would apply to superannuation guarantee charge;
the law or provision is not taken to have exempted, or to exempt, the authority from liability to pay the charge unless the law or provision expressly exempts the authority from liability to pay the charge.
History
S 5A(3) amended by No 51 of 2002, s 3 and Sch 1 item 3, by omitting ", for the year beginning on 1 July 1993 and for any later years," after "provision is not taken", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 5A inserted by No 56 of 1994.
SECTION 5B
JURISDICTION ETC. OF THE FAIR WORK COMMISSION NOT AFFECTED
5B(1)
To avoid doubt, but subject to subsection
(2), nothing in this Act (other than Part
3A) or in the
Superannuation Guarantee Charge Act 1992 affects:
(a)
the jurisdiction, functions or powers of the Fair Work Commission; or
(aa)
(Repealed by No 54 of 2009)
(b)
the operation of the
Fair Work Act 2009, the
Fair Work (Registered Organisations) Act 2009, or the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in any other way.
History
S 5B(1) amended by No 46 of 2021, s 3 and Sch 2 item 1, by inserting "(other than Part 3A)", applicable on and after 23 June 2021.
S 5B(1) amended by No 174 of 2012, s 3 and Sch 9 item 1332, by substituting "the Fair Work Commission" for "Fair Work Australia" in para (a), effective 1 January 2013.
S 5B(1) amended by No 54 of 2009, s 3 and Sch 18 items 13 to 15, by substituting "Fair Work Australia" for "the Australian Industrial Relations Commission under the Workplace Relations Act 1996" in para (a), repealing para (aa) and substituting "Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009" for "Workplace Relations Act 1996" in para (b), effective 1 July 2009. No 54 of 2009, s 3 and Sch 18 item 32 contains the following application provision:
Superannuation Guarantee (Administration) Act 1992
Despite the amendments of section 5B made by [Sch 18 of No 54 of 2009], that section continues to apply, on and after the WR Act repeal day, as if those amendments had not been made, in relation to:
(a)the Australian Industrial Relations Commission, as it continues in existence because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and
(b)
the Australian Fair Pay Commission, as it continues in existence because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; and
(c)
the Workplace Relations Act 1996, as that Act continues to apply because of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Para (aa) formerly read:
(aa)
the jurisdiction, functions or powers of the Australian Fair Pay Commission under the Workplace Relations Act 1996; or
S 5B(1) amended by SLI No 50 of 2006, reg 3 and Sch 17 item 1, by inserting para (aa), effective 27 March 2006.
S 5B(1) amended by No 60 of 1996.
5B(2)
Subsection
(1) does not apply to any express reference in the
Fair Work Act 2009, the
Fair Work (Registered Organisations) Act 2009, or the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to this Act or to the
Superannuation Guarantee Charge Act 1992.
History
S 5B(2) amended by No 54 of 2009, s 3 and Sch 18 item 16, by substituting "Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009, or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009" for "Workplace Relations Act 1996", effective 1 July 2009. For application provision, see note under s 5B(1).
S 5B(2) substituted by SLI No 50 of 2006, reg 3 and Sch 17 item 2, effective 27 March 2006. S 5B(2) formerly read:
5B(2)
Subsection (1) does not apply to:
(a)
any express reference in the Workplace Relations Act 1996 to this Act or to the Superannuation Guarantee Charge Act 1992; or
(b)
the reference in subparagraph 113B(3)(a)(ii), 170MC(2)(a)(ii) or 170NC(2)(a)(ii) of the Workplace Relations Act 1996 to a law of the Commonwealth.
S 5B(2) amended by No 60 of 1996.
History
S 5B inserted by No 169 of 1995.
SECTION 5C
5C
APPLICATION OF THE
CRIMINAL CODE
Chapter 2 of the
Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
History
S 5C inserted by No 146 of 2001, s 3 and Sch 4 item 123, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between 2 dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
PART 2 - EXPLANATION OF TERMS USED IN THE ACT
SECTION 6
INTERPRETATION - GENERAL
6(1)
In this Act, unless the contrary intention appears:
actuary
means a Fellow or Accredited Member of The Institute of Actuaries of Australia.
administration component
, in relation to an employer and a quarter, means the amount worked out according to section 32.
History
Definition of "administration component" amended by No 51 of 2002, s 3 and Sch 1 item 4, by substituting "quarter" for "year", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
annual national payroll
(Repealed by No 51 of 2002)
History
Definition of "annual national payroll" repealed by No 51 of 2002, s 3 and Sch 1 item 5, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'annual national payroll'
, in relation to an employer and a year, means the aggregate of the salary or wages paid by the employer during the year:
(a)
in Australia; and
(b)
outside Australia in relation to services performed or rendered wholly in Australia;
approved clearing house
has the meaning given by subsection 79A(3).
History
Definition of "approved clearing house" inserted by No 56 of 2010, s 3 and Sch 1 item 2, applicable to a payment made to an approved clearing house on or after 1 July 2010.
approved deposit fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
History
Definition of "approved deposit fund" inserted by No 118 of 1993.
approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
History
Definition of "approved form" inserted by No 147 of 2005, s 3 and Sch 6 item 4, applicable to contributions made on or after 1 January 2006.
arrangement
, for the purposes of section 30, means:
(a)
an agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b)
any scheme, plan, proposal, action, course of action or course of conduct.
assessment
means:
(a)
the ascertainment of an employer's superannuation guarantee shortfall for a quarter and of the superannuation guarantee charge payable on the shortfall; or
(b)
the ascertainment of additional superannuation guarantee charge payable under Part
7.
History
Definition of "assessment" amended by No 51 of 2002, s 3 and Sch 1 item 6, by substituting "for a quarter" for "in a year", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Australia
, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
History
Definition of "Australia" inserted by No 2 of 2015, s 3 and Sch 4 item 73, applicable to a quarter that commences on or after 1 July 2015.
authorised officer
(Repealed by No 2 of 2015)
History
Definition of "authorised officer" repealed by No 2 of 2015, s 3 and Sch 2 item 62, effective 1 July 2015. The definition formerly read:
authorised officer
means a person appointed or engaged under the Public Service Act 1999 who has been authorised in writing by the Commissioner for the purposes of the provision in which the expression appears.
Definition of "authorised officer" amended by No 146 of 1999.
base year
(Repealed by No 51 of 2002)
History
Definition of "base year" repealed by No 51 of 2002, s 3 and Sch 1 item 7, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'base year'
, in relation to an employer, has the meaning given by subsections 20(2) and 21(2);
Commissioner
means the Commissioner of Taxation.
Commonwealth employee
means an employee of the Commonwealth.
History
Definition of "Commonwealth employee" inserted by No 102 of 2004, s 3 and Sch 1 item 6, effective 1 July 2005.
Commonwealth industrial award
means:
(a)
an industrial award or determination made under a law of the Commonwealth; or
(b)
an industrial agreement approved or registered under such a law; or
(c)
a notional agreement preserving State awards; or
(d)
a preserved State agreement.
History
Definition of "Commonwealth industrial award" amended by SLI No 50 of 2006, reg 3 and Sch 17 items 3 and 4, by inserting paras (c) and (d), effective 27 March 2006.
Definition of "Commonwealth industrial award" inserted by No 102 of 2004, s 3 and Sch 1 item 7, effective 1 July 2005.
complying approved deposit fund
has the meaning given by section 7A.
History
Definition of "complying approved deposit fund" inserted by No 118 of 1993.
complying superannuation fund
has the meaning given by section 7.
complying superannuation scheme
has the meaning given by section 7.
contribution period
(Repealed by No 51 of 2002)
History
Definition of "contribution period" repealed by No 51 of 2002, s 3 and Sch 1 item 8, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'contribution period'
means:
(a)
a period of 6 months commencing on 1 July 1992 or 1 January 1993; or
(b)
a period of 3 months commencing on 1 July, 1 October, 1 January or 1 April in the 1993-94 year or any later year;
CSS
means the scheme known as the Commonwealth Superannuation Scheme.
History
Definition of "CSS" inserted by No 102 of 2004, s 3 and Sch 1 item 8, effective 1 July 2005.
data processing device
means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.
defined benefit member
, subject to section 6AA, means a member entitled on retirement to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(a)
the amount of the member's salary:
(i)
at the date of the member's retirement or an earlier date; or
(ii)
averaged over a period before retirement;
(b)
a specified amount.
History
Definition of "defined benefit member" amended by No 171 of 2012, s 3 and Sch 5 item 1, by inserting ", subject to section 6AA," after "
defined benefit member
", effective 1 January 2014.
Definition of "defined benefit member" inserted by No 102 of 2004, s 3 and Sch 1 item 9, effective 1 July 2005.
defined benefit superannuation scheme
has the meaning given by section 6A.
History
Definition of "defined benefit superannuation scheme" inserted by No 102 of 2004, s 3 and Sch 1 item 10, effective 1 July 2005.
Former definition of "defined benefit superannuation scheme" omitted by No 7 of 1993, effective 27 May 1993. The definition formerly read:
"defined benefit superannuation scheme"
means a scheme under which:
(a)
in all cases - one or more members of the scheme are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(i)
the amount of the member's annual salary:
(A)
at the date of the member's retirement; or
(B)
at a date before retirement; or
(C)
averaged over a period of employment before retirement;
(ii)
a specified amount; and
(b)
if the scheme is not a public sector scheme - some or all of the contributions under the scheme (out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount;
Deputy Commissioner
means a Deputy Commissioner of Taxation.
employer shortfall exemption certificate
means a certificate issued under section 19AB.
History
Definition of "employer shortfall exemption certificate" inserted by No 78 of 2019, s 3 and Sch 1 item 1, effective 3 October 2019 and applicable in relation to quarters starting on or after 1 July 2018.
general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.
History
Definition of "general interest charge" amended by No 101 of 2006, s 3 and Sch 2 item 1055, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
Definition of "general interest charge" inserted by No 11 of 1999.
government body
means:
(a)
the Commonwealth or a State or Territory; or
(b)
a Commonwealth, State or Territory authority.
half-year
(Repealed by No 51 of 2002)
History
Definition of "half-year" repealed by No 51 of 2002, s 3 and Sch 1 item 9, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'half-year'
means a contribution period of 6 months;
indexation factor
, in relation to a year, has the meaning given by section 9.
individual superannuation guarantee shortfall
, has the meaning given by section 19.
History
Definition of "individual superannuation guarantee shortfall" amended by No 51 of 2002, s 3 and Sch 1 item 10, by substituting "section 19" for "sections 18 and 19", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
industrial award
means a Commonwealth industrial award, a State industrial award or a Territory industrial award.
History
Definition of "industrial award" substituted by No 102 of 2004, s 3 and Sch 1 item 11, effective 1 July 2005. The definition formerly read:
'industrial award'
means:
(a)
an industrial award or determination made under a law of the Commonwealth, a State or a Territory; or
(b)
an industrial agreement approved or registered under such a law;
liability to the Commonwealth
means a liability to the Commonwealth arising under an Act of which the Commissioner has the general administration.
lodge
means lodge with the Commissioner.
month
(Repealed by No 46 of 2011)
History
Definition of "month" repealed by No 46 of 2011, s 3 and Sch 2 item 1089, effective 27 December 2011. For saving and transitional provisions see note under s 27(2). The definition formerly read:
month
means the period of a calendar month beginning on the first day of any of the 12 months of the year.
MySuper member
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
History
Definition of "MySuper member" inserted by No 171 of 2012, s 3 and Sch 8 item 1, effective 1 January 2014.
nominal interest component
, in relation to an employer and a quarter, has the meaning given by section 31.
History
Definition of "nominal interest component" amended by No 51 of 2002, s 3 and Sch 1 item 11, by substituting "quarter" for "year", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
occupational superannuation arrangement
, in relation to the employment of a person, means an agreement that imposes an obligation on the person's employer to contribute to a superannuation fund for the benefit of the person.
offence against this Act
includes an offence relating to this Act against:
(a)
the
Crimes Act 1914; or
(b)
the
Taxation Administration Act 1953.
ordinary time earnings
, in relation to an employee, means:
(a)
the total of:
(i)
earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment:
(A)
a payment in lieu of unused sick leave;
(B)
an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and
(C)
(Repealed by No 15 of 2007)
(ii)
earnings consisting of over-award payments, shift-loading or commission; or
(b)
if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter - the maximum contribution base.
History
Definition of "ordinary time earnings" amended by No 15 of 2007, s 3 and Sch 1 item 346, by substituting para (a)(i)(B) for para (a)(i)(B) and (C), applicable to the 2007/08 income year and later years. Para (a)(i)(B) and (C) formerly read:
(B)
a payment in lieu of unused annual leave within the meaning of subsection 26AC(1) of the Income Tax Assessment Act 1936;
(C)
a payment in lieu of unused long service leave within the meaning of subsection 26AD(1) of the Income Tax Assessment Act 1936; and
Definition of "ordinary time earnings" amended by No 51 of 2002, s 3 and Sch 1 item 12, by substituting "quarter" for "contribution period" in para (b), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "ordinary time earnings" amended by No 56 of 1994.
part-time employee
means a person who is employed to work not more than 30 hours per week.
penalty charge
, in respect of superannuation guarantee charge and a quarter, means:
(a)
general interest charge in respect of non-payment of the superannuation guarantee charge; or
(b)
additional superannuation guarantee charge that is payable under section 59 and calculated by reference to the superannuation guarantee charge.
History
Definition of "penalty charge" inserted by No 51 of 2002, s 3 and Sch 1 item 13, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
penalty unit
(Repealed by No 9 of 2007)
History
Definition of "penalty unit" repealed by No 9 of 2007, s 3 and Sch 4 item 6, applicable in relation to things that are done and events that occur on or after 1 July 2007. The definition formerly read:
penalty unit
has the meaning given by section 4AA of the Crimes Act 1914.
Definition of "penalty unit" inserted by No 80 of 2006, s 3 and Sch 7 item 1, applicable in relation to financial years starting on or after 1 July 2005.
proceeding under this Act
includes:
(a)
a proceeding for an offence against this Act; or
(b)
a proceeding under the
Taxation Administration Act 1953 relating to this Act.
PSS
means the Public Sector Superannuation Scheme within the meaning of the Superannuation Act 1990.
History
Definition of "PSS" inserted by No 102 of 2004, s 3 and Sch 1 item 12, effective 1 July 2005.
PSSAP
means the Public Sector Superannuation Accumulation Plan within the meaning of the Superannuation Act 2005.
History
Definition of "PSSAP" inserted by No 81 of 2005, s 3 and Sch 2 item 1, effective 1 July 2005.
public sector scheme
means a scheme of superannuation established:
(a)
by or under a law of the Commonwealth or of a State or Territory; or
(b)
under the authority of:
(i)
the Commonwealth or the government of a State or Territory; or
(ii)
a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.
quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.
History
Definition of "quarter" substituted by No 51 of 2002, s 3 and Sch 1 item 14, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'quarter'
means a contribution period of three months;
quarterly salary or wages base
, for an employer in respect of an employee, for a quarter has the meaning given by subsection 19(1).
History
Definition of "quarterly salary or wages base" inserted by No 95 of 2019, s 3 and Sch 7 item 1, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
resident of Australia
has the meaning given by section 8.
RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.
History
Definition of "RSA" inserted by No 62 of 1997.
RSA provider
has the same meaning as in the Retirement Savings Accounts Act 1997.
History
Definition of "RSA provider" inserted by No 62 of 1997.
sacrificed contribution
means a contribution to a complying superannuation fund or an RSA made under a salary sacrifice arrangement.
History
Definition of "sacrificed contribution" inserted by No 95 of 2019, s 3 and Sch 7 item 1, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
sacrificed ordinary time earnings amount
has the meaning given by subsection 15A(2).
History
Definition of "sacrificed ordinary time earnings amount" inserted by No 95 of 2019, s 3 and Sch 7 item 1, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
sacrificed salary or wages amount
has the meaning given by subsection 15A(2).
History
Definition of "sacrificed salary or wages amount" inserted by No 95 of 2019, s 3 and Sch 7 item 1, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
salary sacrifice arrangement
has the meaning given by subsection 15A(1).
History
Definition of "salary sacrifice arrangement" inserted by No 95 of 2019, s 3 and Sch 7 item 1, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
Second Commissioner
means a Second Commissioner of Taxation.
stapled fund
has the meaning given by section 32Q.
History
Definition of "stapled fund" inserted by No 46 of 2021, s 3 and Sch 1 item 1, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
State industrial award
means:
(a)
an industrial award or determination made under a law of a State; or
(b)
an industrial agreement approved or registered under such a law.
History
Definition of "State industrial award" inserted by No 102 of 2004, s 3 and Sch 1 item 13, effective 1 July 2005.
superannuation fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
History
Definition of "superannuation fund" substituted by No 82 of 1993.
superannuation guarantee charge
means charge imposed by the Superannuation Guarantee Charge Act 1992.
superannuation guarantee shortfall
has the meaning given by section 17.
superannuation guarantee statement
means a superannuation guarantee statement under section 33.
superannuation provider
(Repealed by No 9 of 2007)
History
Definition of "superannuation provider" repealed by No 9 of 2007, s 3 and Sch 4 item 7, applicable in relation to things that are done and events that occur on or after 1 July 2007.
The definition formerly read:
superannuation provider
has the same meaning as in the Superannuation (Government Co-contribution for Low Income Earners) Act 2003.
Definition of "superannuation provider" inserted by No 80 of 2006, s 3 and Sch 7 item 2, applicable in relation to financial years starting on or after 1 July 2005.
superannuation scheme
means:
(a)
a defined benefit superannuation scheme whether or not embodied in the governing rules of a superannuation fund; or
(b)
any other scheme embodied in the governing rules of a superannuation fund.
taxation officer
(Repealed by No 145 of 2010)
History
Definition of "taxation officer" repealed by No 145 of 2010, s 3 and Sch 2 item 80, effective 17 December 2010. The definition formerly read:
taxation officer
means a person exercising powers, or performing functions, under this Act.
Territory industrial award
means:
(a)
an industrial award or determination made under a law of a Territory; or
(b)
an industrial agreement approved or registered under such a law.
History
Definition of "Territory industrial award" inserted by No 102 of 2004, s 3 and Sch 1 item 14, effective 1 July 2005.
trustee
, in relation to a superannuation scheme, means:
(a)
if:
(i)
the scheme is embodied in the governing rules of a fund; and
(ii)
there is a trustee of the fund;
the trustee of the fund; or
(b)
in any other case - the person who manages the scheme.
trustee
, except in relation to a superannuation fund or superannuation scheme, includes:
(a)
a person appointed or constituted trustee by:
(i)
act of parties; or
(ii)
order or declaration of a court; or
(iii)
operation of law; and
(b)
an executor, administrator or other personal representative of a deceased person; and
(c)
a guardian or committee; and
(d)
a receiver or receiver and manager; and
(e)
a liquidator of a company; and
(f)
a person:
(i)
having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust; or
(ii)
acting in any fiduciary capacity; or
(iii)
having the possession, control or management of any real or personal property of a person under any legal or other disability.
History
Definition of "trustee" amended by No 8 of 2007, s 3 and Sch 4 item 27, by substituting "a liquidator of a company" for "an official manager or liquidator of a company" in para (e), effective 15 March 2007.
unfunded public sector scheme
means a public sector scheme that is a defined benefit superannuation scheme:
(a)
in respect of which no fund is established for the purposes of the scheme; or
(b)
under which all or some of the amounts that will be required for the payment of benefits are not paid into the fund established for the purposes of the scheme or are not paid until the members become entitled to receive the benefits.
History
Definition of "unfunded public sector scheme" inserted by No 102 of 2004, s 3 and Sch 1 item 15, effective 1 July 2005.
year
means financial year.
6(2)
For the purposes of this Act, a reference to a contribution made by an employer for the benefit of an employee includes a reference to a contribution made on behalf of the employer.
6(3)
For the purposes of this Act, a reference to salary or wages paid by an employer to an employee includes a reference to a payment made on behalf of the employer.
SECTION 6AA
6AA
INTERPRETATION: DEFINED BENEFIT MEMBER
The regulations may prescribe:
(a)
circumstances in which a member of a superannuation fund is not a
defined benefit member
for the purposes of this Act, or a provision of this Act; and
(b)
circumstances in which a member of a superannuation fund who is not otherwise a
defined benefit member
is to be taken to be a
defined benefit member
for the purposes of this Act, or a provision of this Act.
History
S 6AA inserted by No 171 of 2012, s 3 and Sch 5 item 2, effective 1 January 2014.
SECTION 6A
INTERPRETATION: DEFINED BENEFIT SUPERANNUATION SCHEME
6A(1)
[Definition]
Subject to subsection (2), a defined benefit superannuation scheme is a scheme under which:
(a)
one or more members of the scheme are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(i)
the amount of the member's annual salary:
(A)
at the date of the member's retirement; or
(B)
at a date before retirement; or
(C)
averaged over a period of employment before retirement;
(ii)
a specified amount; and
(b)
if the scheme is not a public sector scheme - some or all of the contributions under the scheme (out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.
6A(2)
[Other schemes and conversion notice]
A scheme embodied in the governing rules of a superannuation fund (other than a scheme of the kind referred to in subsection (1)) is a defined benefit superannuation scheme if a conversion notice has effect in relation to the fund or scheme.
History
S 6A(2) amended by No 51 of 2002, s 3 and Sch 1 item 15, by inserting ``or scheme'' after ``in relation to the fund'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
6A(3)
[When scheme deemed defined]
If the conversion notice is expressed to take effect on a day before the day on which the notice is given, the scheme in question is taken to have been a defined benefit superannuation scheme from the day on which the notice is expressed to take effect.
6A(4)
[Assessment or payment disregarded]
Subsection (3) has effect regardless of the making of any assessment, or the payment of any superannuation guarantee charge, in respect of a quarter that ended after the conversion notice took effect.
History
S 6A(4) amended by No 51 of 2002, s 3 and Sch 1 item 16, by substituting ``quarter'' for ``contribution period'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 6A inserted by No 7 of 1993.
SECTION 6B
INTERPRETATION: CONVERSION NOTICE
6B(1)
[Conversion notice]
A conversion notice is a written notice by the trustee of a superannuation fund given to the Commissioner stating that the fund, or a particular superannuation scheme embodied in the governing rules of the fund, is to be treated as a defined benefit superannuation scheme for the purposes of this Act.
History
S 6B(1) substituted by No 51 of 2002, s 3 and Sch 1 item 17, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 6B(1) formerly read:
6B(1)
A conversion notice is a written notice by the trustee of a superannuation fund given to the Commissioner of Insurance and Superannuation stating that the fund is to be treated as a defined benefit superannuation scheme for the purposes of this Act.
6B(2)
[Revocation notice]
Subject to subsection (4), a conversion notice takes effect in relation to the fund or scheme on the day specified in the notice. Subject to subsection (4), the trustee may, by written notice (
revocation notice
) given to the Commissioner, revoke the conversion notice.
History
S 6B(2) amended by No 51 of 2002, s 3 and Sch 1 items 18 and 19, by inserting "or scheme" after "fund" and omitting "of Insurance and Superannuation" after "given to the Commissioner", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
6B(3)
[Timing of effect]
A conversion notice may be expressed to take effect on a day that is not earlier than:
(a)
if the notice is given before 15 May in a quarter starting on 1 April - 1 January in the previous quarter; or
(b)
if the notice is given before 15 August in a quarter starting on 1 July - 1 April in the previous quarter; or
(c)
if the notice is given before 15 November in a quarter starting on 1 October - 1 July in the previous quarter; or
(d)
if the notice is given before 15 February in a quarter starting on 1 January - 1 October in the previous quarter; or
(e)
in any other case - the first day of the quarter in which the notice is given.
History
S 6B(3) substituted by No 51 of 2002, s 3 and Sch 1 item 20, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 6B(3) formerly read:
6B(3)
A conversion notice may be expressed to take effect on a day (whether before or after the commencement of section 1 of the Taxation Laws Amendment (Superannuation) Act 1993) that is not earlier than:
(a)
the first day of the year in which the notice is given; or
(b)
if the notice is given before 15 August in that year - the first day of the preceding year.
6B(4)
[Precondition]
A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives each employer contributing to the fund or scheme for the benefit of employees written notice of:
(a)
the trustee's intention to give the notice; and
(b)
the proposed date of effect of the notice.
History
S 6B(4) amended by No 51 of 2002, s 3 and Sch 1 item 21, by substituting "each employer contributing to the fund or scheme" for "all employers contributing to the fund", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
6B(5)
[Notice to employer]
If an employer begins contributing to a superannuation fund or a superannuation scheme for the benefit of employees at a time when a conversion notice has effect in relation to the fund or scheme, the trustee must give the employer written notice of:
(a)
the giving of the conversion notice; and
(b)
the date of effect of the notice;
within 30 days of the receipt by the trustee of the employer's first contribution.
History
S 6B(5) amended by No 51 of 2002, s 3 and Sch 1 items 22 and 23, by inserting "or a superannuation scheme" after "superannuation fund" and inserting "or scheme" after "the fund", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
6B(6)
[Manner of giving notice]
A notice under this section may be given by post.
History
S 6B inserted by No 7 of 1993.
SECTION 7
7
INTERPRETATION: COMPLYING SUPERANNUATION FUND OR SCHEME
A superannuation fund or scheme is a complying superannuation fund or scheme (as the case may be) in relation to a period for the purposes of this Act if it is a complying superannuation fund in relation to that period for the purposes of the
Income Tax Assessment Act 1997.
History
S 7 amended by No 15 of 2007, s 3 and Sch 1 item 347, by substituting "the Income Tax Assessment Act 1997" for "Part IX of the Income Tax Assessment Act 1936", applicable to the 2007/08 income year and later years.
SECTION 7A
7A
INTERPRETATION: COMPLYING APPROVED DEPOSIT FUND
An approved deposit fund is a complying approved deposit fund at a particular time for the purposes of this Act if it is a complying approved deposit fund in relation to the year of income in which that time occurred for the purposes of the
Income Tax Assessment Act 1997.
History
S 7A amended by No 15 of 2007, s 3 and Sch 1 item 348, by substituting "complying approved deposit fund in relation to the year of income in which that time occurred for the purposes of the Income Tax Assessment Act 1997" for "complying ADF in relation to the year of income in which that time occurred for the purposes of Part IX of the Income Tax Assessment Act 1936", applicable to the 2007/08 income year and later years.
S 7A inserted by No 118 of 1993.
SECTION 8
8
INTERPRETATION: RESIDENT OF AUSTRALIA
A person is a resident of Australia for the purposes of this Act at any time when the person is a resident of Australia for the purposes of the
Income Tax Assessment Act 1936.
SECTION 9
INTERPRETATION: INDEXATION FACTOR
9(1)
[Determination of factor]
The indexation factor for a year is whichever is the greater of the following:
(a)
1;
(b)
the number calculated (to 3 decimal places) by dividing the AWOTE amount for the December quarter in the preceding year by the AWOTE amount for the December quarter in the year preceding that year.
Note:
The December quarter is a quarter beginning on 1 October.
History
S 9(1) amended by No 124 of 2013, s 3 and Sch 11 items 30-31, by substituting "December quarter" for "March quarter" wherever occurring in para (b) and substituting the note, applicable in relation to working out the indexation factor for the 2013-14 year and later years. The note formerly read:
Note:
The March quarter is a quarter beginning on 1 January.
S 9(1) amended by No 51 of 2002, s 3 and Sch 1 item 24, by inserting the note at the end, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
9(2)
[AWOTE amount]
The AWOTE amount for a quarter is the estimate of the full-time adult average weekly ordinary time earnings for persons in Australia for the middle month of the quarter published by the Australian Statistician in relation to the month.
9(3)
[Later estimate to be disregarded]
If the Australian Statistician publishes an estimate of full-time adult average weekly ordinary time earnings for persons in Australia for a period for which such an estimate was previously published by the Australian Statistician, the publication of the later estimate is to be disregarded for the purposes of this section.
9(4)
[Number calculated to 3 decimal places]
If the number calculated for the purposes of paragraph (1)(b) in relation to a year would, if calculated to 4 decimal places, end with a numeral higher than 4, the number is to be taken to be the number calculated to 3 decimal places and increased by 0.001.
SECTION 10
INTERPRETATION: BENEFIT CERTIFICATE
10(1)
A benefit certificate is a certificate by an actuary relating to one or more specified defined benefit superannuation schemes and specifying the rate, expressed as a percentage, that is, in the opinion of the actuary, the notional employer contribution rate, in relation to a specified class of employees (being members of the scheme or schemes, as the case may be), of an employer who is a contributor under the scheme or schemes (as the case may be) for the benefit of an employee in that class.
10(2)
The notional employer contribution rate, in relation to a class of employees specified in a benefit certificate relating to one or more defined benefit superannuation schemes, is the contribution rate required to meet the expected long-term cost, to an employer who contributes to the scheme or schemes for the benefit of employees in the class, of the minimum benefits accruing in respect of all employees in the class from the date of effect of the benefit certificate onwards.
10(3)
A benefit certificate has effect from the date specified in the certificate until:
(a)
a superannuation scheme to which it relates is amended in a way that affects, or may affect, the level or method of calculation of the minimum benefits provided under the scheme for the class of employees specified in the certificate; or
(b)
another benefit certificate is issued in relation to the same class of employees and the same scheme or schemes; or
(c)
a period of 5 years from the date of issue expires; or
(d)
in the case of a certificate that relates to a scheme that is a defined benefit superannuation scheme because of the operation of subsection 6A(2) - the conversion notice under section 6B is revoked;
whichever occurs first.
History
S 10(3) amended by No 110 of 2014, s 3 and Sch 5 item 122, by inserting "the minimum" before "benefits" in para (a), effective 16 October 2014.
S 10(3) amended by No 7 of 1993.
10(4)
A benefit certificate may be expressed to have effect from:
(a)
a day that is no earlier than:
(i)
if the certificate is issued before 15 May in a quarter starting on 1 April, or before a later day in that quarter allowed by the Commissioner - 1 January in the previous quarter; or
(ii)
if the certificate is issued before 15 August in a quarter starting on 1 July, or before a later day in that quarter allowed by the Commissioner - 1 April in the previous quarter; or
(iii)
if the certificate is issued before 15 November in a quarter starting on 1 October, or before a later day in that quarter allowed by the Commissioner - 1 July in the previous quarter; or
(iv)
if the certificate is issued before 15 February in a quarter starting on 1 January, or before a later day in that quarter allowed by the Commissioner - 1 October in the previous quarter; or
(v)
in any other case - the first day of the quarter in which the certificate is issued; and
(b)
a day that is no later than the day on which the certificate is issued.
History
S 10(4) substituted for s 10(4) and (5) by No 51 of 2002, s 3 and Sch 1 item 25, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 10(4) and 10(5) formerly read:
10(4)
A benefit certificate may not be expressed to have effect from a date earlier than the date of issue except as provided by subsection (5).
10(5)
A benefit certificate issued in the period commencing on 1 July in a particular year and ending on:
(a)
14 August in the following year; or
(b)
a later date allowed by the Commissioner;
may be expressed to have effect from:
(c)
the first day of that period; or
(d)
any later day up to the day of issue.
10(6)
The regulations may make provision regarding:
(a)
the issue and form of benefit certificates; and
(b)
the way in which the expected long-term cost to an employer of benefits accruing to all employees is to be calculated under subsection (2); and
(c)
the manner in which the contribution rate is to be expressed under subsection (2); and
(d)
the way in which minimum benefits accruing to all employees are to be calculated under subsection (2).
SECTION 11
INTERPRETATION - SALARY OR WAGES
11(1)
[Definition]
In this Act,
salary or wages
includes:
(a)
commission; and
(b)
payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate; and
(ba)
payments under a contract referred to in subsection
12(3) that are made in respect of the labour of the person working under the contract; and
(c)
remuneration of a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory; and
(d)
payments to a person for work referred to in subsection
12(8); and
(e)
remuneration of a person referred to in subsection
12(9) or
(10).
History
S 11(1) amended by No 56 of 1994.
11(2)
[Work of domestic or private nature]
Remuneration under a contract for the employment of a person, for not more than 30 hours per week, in work that is wholly or principally of a domestic or private nature is not to be taken into account as salary or wages for the purposes of this Act.
11(3)
[Fringe benefits]
Fringe benefits within the meaning of the Fringe Benefits Tax Assessment Act 1986 are not salary or wages for the purposes of this Act.
SECTION 12
INTERPRETATION: EMPLOYEE, EMPLOYER
12(1)
[Definitions]
Subject to this section, in this Act,
employee
and
employer
have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):
(a)
expand the meaning of those terms; and
(b)
make particular provision to avoid doubt as to the status of certain persons.
History
S 12(1) amended by No 169 of 1995.
12(2)
[Members of board of directors, etc]
A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.
12(3)
[Persons under contract]
If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.
12(4)
[Members of Parliament]
A member of the Parliament of the Commonwealth is an employee of the Commonwealth.
12(5)
[Members of State Parliaments]
A member of the Parliament of a State is an employee of the State.
12(6)
[Members of ACT Legislative Assembly]
A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.
12(7)
[Members of NT Legislative Assembly]
A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.
12(8)
[Artists, musicians, sports persons etc]
The following are employees for the purposes of this Act:
(a)
a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment;
(b)
a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment;
(c)
a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment.
12(9)
[Employees of Commonwealth, State, Territory]
A person who:
(a)
holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or
(b)
is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the Territory, as the case requires. However, this rule does not apply to a person in the capacity of the holder of an office as a member of a local government council.
History
S 12(9) amended by No 169 of 1995.
12(9A)
[Members of local council]
Subject to subsection (10), a person who holds office as a member of a local government council is not an employee of the council.
History
S 12(9A) inserted by No 169 of 1995.
12(10)
[Members of certain local governing bodies]
A person covered by paragraph 12-45(1)(e) in Schedule 1 to the Taxation Administration Act 1953 (about members of local governing bodies subject to PAYG withholding) is an employee of the body mentioned in that paragraph.
History
S 12(10) substituted by No 101 of 2006, s 3 and Sch 2 item 925, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive. S 12(10) formerly read:
12(10)
A person who is a member of an eligible local governing body within the meaning of section 221A of the Income Tax Assessment Act 1936 is an employee of the eligible local governing body.
S 12(10) substituted by No 169 of 1995.
12(11)
[Work of domestic or private nature]
A person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work.
SECTION 12A
INTERPRETATION: REFERENCES TO INDUSTRIAL INSTRUMENTS
12A(1)
[Interpretation]
In this Act, the following expressions have the same meanings as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009:
(a)
AWA
;
(b)
collective agreement
;
(c)
ITEA
;
(d)
notional agreement preserving State awards
;
(e)
old IR agreement
;
(f)
pre-reform AWA
;
(g)
pre-reform certified agreement
;
(h)
preserved State agreement
;
(i)
Division 2B State instrument
;
(j)
State reference transitional award or common rule
.
Note:
For an instrument referred to in this subsection, see item 4 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
History
S 12A(1) amended by No 171 of 2012, s 3 and Sch 4 item 9, by inserting para (j), effective 1 January 2014.
S 12A(1) amended by No 124 of 2009, s 3 and Sch 2 item 135, by inserting para (i) at the end, effective 1 January 2010.
12A(2)
["enterprise agreement"]
In this Act,
enterprise agreement
has the same meaning as in the Fair Work Act 2009.
12A(3)
["workplace determination"]
In this Act,
workplace determination
means a workplace determination made under the Fair Work Act 2009 or the Workplace Relations Act 1996.
History
S 12A substituted by No 54 of 2009, s 3 and Sch 18 item 17, effective 1 July 2009. S 12A formerly read:
SECTION 12A INTERPRETATION: WORDS AND PHRASES IN
WORKPLACE RELATIONS ACT 1996
12A
In this Act:
AWA
has the meaning given by Schedule 7A to the Workplace Relations Act 1996.
History
Definition of "AWA" amended by No 8 of 2008, s 3 and Sch 1 item 284, by substituting "Schedule 7A to" for "section 4 of", effective 28 March 2008.
collective agreement
has the meaning given by section 4 of the Workplace Relations Act 1996.
ITEA
has the meaning given by section 4 of the Workplace Relations Act 1996.
History
Definition of "ITEA" inserted by No 8 of 2008, s 3 and Sch 1 item 285, effective 28 March 2008.
notional agreement preserving State awards
has the meaning given by clause 1 of Schedule 8 to the Workplace Relations Act 1996.
old IR agreement
has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996.
pre-reform AWA
has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996.
pre-reform certified agreement
has the meaning given by clause 1 of Schedule 7 to the Workplace Relations Act 1996.
preserved State agreement
has the meaning given by clause 1 of Schedule 8 to the Workplace Relations Act 1996.
reform commencement
has the meaning given by section 4 of the Workplace Relations Act 1996.
Note:
Some of the definitions in section 4 of the Workplace Relations Act 1996 refer to other provisions of that Act.
S 12A inserted by SLI No 50 of 2006, s 3 and Sch 17 item 5, effective 27 March 2006.
13
(Repealed) SECTION 13 INTERPRETATION: NOTIONAL EARNINGS BASE WHERE SUPERANNUATION CONTRIBUTIONS MADE FOR BENEFIT OF CERTAIN EMPLOYEES IMMEDIATELY BEFORE 21 AUGUST 1991
(Repealed by No 93 of 2004)
History
S 13 repealed by No 93 of 2004, s 3 and Sch 1 item 5, effective 1 July 2008. S 13 formerly read:
SECTION 13 INTERPRETATION: NOTIONAL EARNINGS BASE WHERE SUPERANNUATION CONTRIBUTIONS MADE FOR BENEFIT OF CERTAIN EMPLOYEES IMMEDIATELY BEFORE 21 AUGUST 1991
13(1)
[Application of section]
This section deals with the meaning of the expression
notional earnings base
in relation to an employee (the
current employee
) at a particular time (the
current time
) if at the current time:
(a)
the current employee is a member of a superannuation fund (the
current fund
); and
(b)
the current employee's employer (the
current employer
) is contributing to the current fund, in accordance with an applicable authority (see subsection (5)), for the benefit of the current employee in relation to a quarter; and
(c)
subsection (1A) applies.
History
S 13(1) amended by No 51 of 2002, s 3 and Sch 1 item 26, by substituting "quarter" for "contribution period" in para (b), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 13(1) substituted by No 170 of 1995; amended by No 208 of 1992.
13(1A)
[Employer contributing before 21 August 1991]
This subsection applies at the current time if the current employer, or an employer who is, at the current time, a predecessor employer (see subsection (4A)) of the current employee, was, immediately before 21 August 1991, contributing to:
(a)
the current fund; or
(b)
another fund that, at the current time, is a predecessor fund (see subsection (4D)) in relation to the current employer or the predecessor employer, as the case may be;
in accordance with the applicable authority, for the benefit of the current employee or another employee.
History
S 13(1A) inserted by No 170 of 1995.
13(1B)
[Simplest case to which s 13(1) applies]
The simplest case to which subsection (1) applies is the following:
The meaning of the expression
notional earnings base
, in relation to the current employee at the current time, is determined under this section because:
• Immediately before 21 August 1991, the current employer was:
- employing the current employee; and
- contributing to the current fund, in accordance with the applicable authority, for the benefit of the current employee.
• This situation has continued until the current time.
History
S 13(1B) amended by No 51 of 2002, s 3 and Sch 1 item 27, by omitting "in relation to a contribution period" after "the benefit of the current employee", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 13(1B) inserted by No 170 of 1995.
13(1C)
[Typical case to which s 13(1) applies]
An example of a typical case to which subsection (1) might apply is the following:
The meaning of the expression
notional earnings base
, in relation to the current employee at the current time, is determined under this section because:
• Immediately before 21 August 1991, the current employer was:
- employing an employee other than the current employee; and
- contributing to a fund in accordance with an applicable award, for the benefit of that other employee.
• After 3.55p.m. on 28 June 1994, an employee's benefits were transferred to the current fund, meeting the requirements of subsection (4E), and causing the fund, under subsection (4D), to be a predecessor fund at the current time in relation to the current employer.
• At the current time, the current employer is:
- employing the current employee; and
- contributing to the current fund, in accordance with an applicable authority, for the benefit of the current employee, in relation to a quarter.
History
S 13(1C) amended by No 51 of 2002, s 3 and Sch 1 items 28 and 29, by substituting "that other employee" for "that other employee, in relation to a contribution period" and substituting "the current employee, in relation to a quarter" for "the current employee, in relation to a contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 13(1C) inserted by No 170 of 1995.
13(2)
["notional earnings base"]
Subject to subsections (3) and (4), the expression
notional earnings base
means the reference earnings in relation to the current employee that, under the applicable authority as in force on:
(a)
the first day of the quarter; or
(b)
the first day of employment;
whichever is the later, constitute the earnings by reference to which the requisite employer contribution is to be calculated in relation to the current employee.
History
S 13(2) amended by No 51 of 2002, s 3 and Sch 1 item 30, by substituting "quarter" for "contribution period" in para (a), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 13(2) amended by No 170 of 1995; substituted by No 208 of 1992.
13(3)
[Maximum contribution base]
If an employee's notional earnings base ascertained in accordance with subsection (2) in relation to a quarter would be an amount greater than the maximum contribution base for that quarter, the employee's notional earnings base is the maximum contribution base.
History
S 13(3) amended by No 51 of 2002, s 3 and Sch 1 items 31 and 32, by substituting "quarter" for "contribution period" and substituting "that quarter" for "that period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
13(4)
[Where notional earnings base is reduced]
If the applicable authority that would, but for this subsection, determine an employee's notional earnings base under this section is at any time on or after 21 August 1991 amended in a way that has the effect of reducing an employee's notional earnings base, the employee's notional earnings base is to be determined as if the employee were an employee in relation to whom section 14 applies.
History
S 13(4) amended by No 170 of 1995; No 208 of 1992.
13(4A)
[Predecessor employer]
For the purposes of this section, an employer (the
test employer
) is a
predecessor employer
of another employer (the
primary employer
) in relation to an employee of the primary employer at a particular time (the
test time
), if subsection (4B) or (4C) applies at that time.
History
S 13(4A) inserted by No 170 of 1995.
13(4B)
[Whole business transferred to primary employer]
This subsection applies at the test time if, after 3.55p.m., by legal time in the Australian Capital Territory, on 28 June 1994 and before the test time:
(a)
the test employer transferred to the primary employer, for market value consideration, the whole of the business or other undertaking, or an asset of the business or other undertaking, in which the employee was employed by the test employer immediately before the transfer; and
(b)
immediately after the transfer, the employee was employed by the primary employer solely or principally in the transferred business or other undertaking, or in utilising the asset in the business or other undertaking of the primary employer.
History
S 13(4B) inserted by No 170 of 1995.
13(4C)
[Test employer a predecessor employer of another employer]
This subsection applies at the test time if, because of subsection (4B), the test employer is at that time, in relation to the employee, a predecessor employer of another employer who, because of an application of subsection (4B) or this subsection, is at that time, in relation to the employee, a predecessor employer of the primary employer.
History
S 13(4C) inserted by No 170 of 1995.
13(4D)
[Predecessor fund]
For the purposes of this section, a fund (the
test fund
) is a
predecessor fund
of another fund (the
primary fund
) in relation to an employer at a particular time (the
test time
) if subsection (4E) or (4F) applies at that time.
History
S 13(4D) inserted by No 170 of 1995.
13(4E)
[Benefits transferred to primary fund]
This subsection applies at the test time if:
(a)
during the period beginning at 3.55p.m., by legal time in the Australian Capital Territory, on 28 June 1994 and ending at the test time, the test fund transferred to the primary fund some or all of the benefits, of one or more employees of the employer, in the test fund; and
(b)
the primary fund conferred, on all of the employees whose benefits were transferred during the period, rights, in respect of all the benefits, that were substantially the same as, or better than, those conferred on the employees by the test fund; and
(c)
before the transfer of each of the benefits, a written agreement was in force between the trustee of the primary fund and the trustee of the test fund that the primary fund would confer those rights on the employees.
History
S 13(4E) inserted by No 170 of 1995.
13(4F)
[Test fund a predecessor fund of another fund]
This subsection applies at the test time if:
(a)
because of subsection (4E), the test fund is at the test time a predecessor fund, in relation to the employer, of another fund that is not the primary fund; and
(b)
because of an application of subsection (4E) or of this subsection, that other fund is at the test time a predecessor fund, in relation to the employer, of the primary fund; and
(c)
the test fund became a predecessor fund of the other fund before the other fund became a predecessor fund of the primary fund.
History
S 13(4F) inserted by No 170 of 1995.
13(4G)
[Simplest case to which s 13(4F) applies]
The simplest case to which subsection (4F) applies is the following:
The test fund is a predecessor fund of the primary fund at the test time in relation to the employer because:
• A transfer of an employee's benefits occurs between the test fund and the other fund:
- meeting the requirements of subsection (4E); and
- causing the test fund, under subsection (4D), to be a predecessor fund of the other fund at the test time in relation to the employer.
As a result, paragraph (4F)(a) is satisfied.
• Later, a transfer of employee benefits occurs between the other fund and the primary fund:
- meeting the requirements of subsection (4E); and
- causing the other fund to be a predecessor of the primary fund at the test time in relation to theemployer.
As a result, paragraph (4F)(b) is satisfied.
• As the transfer of employee benefits from the test fund to the other fund happened before the transfer from the other fund to the primary fund, paragraph (4F)(c) is satisfied.
History
S 13(4G) inserted by No 170 of 1995.
13(5)
[Definitions]
In this section:
applicable authority
means any of the following:
(a)
an industrial award;
(b)
an occupational superannuation arrangement;
(c)
a law of the Commonwealth, a State or a Territory;
(d)
the applicable superannuation scheme.
History
Definition of "applicable authority" inserted by No 170 of 1995.
reference earnings
, in relation to an employee, means:
(a)
if the employer is contributing for the benefit of the employee in accordance with an industrial award, or a law of the Commonwealth, a State or a Territory (other than this Act), that specifies the requisite employer contribution by reference to the earnings of a member of a class of employees identified by the award or law - those earnings; and
(aa)
if the employer is contributing for the benefit of the employee in relation to a quarter to the superannuation fund known as the Seafarers' Retirement Fund that was established by a trust deed on 3 May 1973 - the benchmark rate stated in the trust deed; and
(ab)
if the employer is contributing for the benefit of the employee in relation to a quarter to the superannuation fund known as the Aberfoyle Award Superannuation Fund that was established by a trust deed on 18 May 1987 - the amount that is the earnings base for the purposes of the Aberfoyle Limited (Superannuation) Award 1987; and
(b)
in any other case - the earnings of the employee.
History
Definition of "reference earnings" amended by No 51 of 2002, s 3 and Sch 1 item 33, by substituting "quarter" for "contribution period" in paras (aa) and (ab), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "reference earnings" amended by No 76 of 1996; No 170 of 1995; No 56 of 1994.
History
S 13(5) inserted by No 208 of 1992.
13A
(Repealed) SECTION 13A INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO SEAFARERS' RETIREMENT FUND
(Repealed by No 93 of 2004)
History
S 13A repealed by No 93 of 2004, s 3 and Sch 1 item 5, effective 1 July 2008. S 13A formerly read:
SECTION 13A INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO SEAFARERS' RETIREMENT FUND
13A(1)
[Scope of this section]
This section deals with the meaning of the expression
notional earnings base
in relation to an employee if:
(a)
an employer is contributing for the benefit of the employee in relation to a quarter to the superannuation fund known as the Seafarers' Retirement Fund that was established by a trust deed on 3 May 1973; and
(b)
the employer was not so contributing immediately before 21 August 1991; and
(c)
section 13 would apply in relation to the employee if the employer had been so contributing immediately before that date.
History
S 13A(1) amended by No 51 of 2002, s 3 and Sch 1 item 34, by substituting "quarter" for "contribution period" in para (a), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
13A(2)
[Same meaning as s 13]
The expression
notional earnings base
has, in relation to the employee, the same meaning as in section 13.
S 13A inserted by No 56 of 1994.
13B
(Repealed) SECTION 13B INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO ABERFOYLE AWARD SUPERANNUATION FUND
(Repealed by No 93 of 2004)
History
S 13B repealed by No 93 of 2004, s 3 and Sch 1 item 5, effective 1 July 2008. S 13B formerly read:
SECTION 13B INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO ABERFOYLE AWARD SUPERANNUATION FUND
13B
If an employer is contributing for the benefitof the employee in relation to a quarter to the superannuation fund known as the Aberfoyle Award Superannuation Fund that was established by a trust deed on 18 May 1987, the expression
notional earnings base
has, in relation to the employee, the same meaning as in section 13.
S 13B amended by No 51 of 2002, s 3 and Sch 1 item 35, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 13B inserted by No 76 of 1996.
14
(Repealed) SECTION 14 INTERPRETATION: NOTIONAL EARNINGS BASE WHERE SUPERANNUATION CONTRIBUTIONS NOT MADE FOR THE BENEFIT OF CERTAIN EMPLOYEES IMMEDIATELY BEFORE 21 AUGUST 1991
(Repealed by No 93 of 2004)
History
S 14 repealed by No 93 of 2004, s 3 and Sch 1 item 5, effective 1 July 2008. S 14 formerly read:
SECTION 14 INTERPRETATION: NOTIONAL EARNINGS BASE WHERE SUPERANNUATION CONTRIBUTIONS NOT MADE FOR THE BENEFIT OF CERTAIN EMPLOYEES IMMEDIATELY BEFORE 21 AUGUST 1991
14(1)
[Operation of section]
Subject to subsection (1A), this section deals with the meaning of the expression
notional earnings base
in relation to an employee who is a member of a superannuation fund, or the holder of an RSA, to which an employer is contributing, for the benefit of the employee, in the following situations:
(a)
where the employer is contributing to the fund or the RSA in accordance with an industrial award or an occupational superannuation arrangement for the benefit of the employee in relation to a quarter;
(ab)
where the employer is contributing to the fund or the RSA in accordance with a law of the Commonwealth, a State or a Territory for the benefit of the employee in relation to a quarter;
(b)
where the employer is otherwise contributing to the fund or the RSA under the applicable superannuation scheme for the benefit of the employee in relation to a quarter.
History
S 14(1) amended by No 51 of 2002, s 3 and Sch 1 item 36, by substituting "quarter" for "contribution period" in paras (a), (ab) and (b), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 14(1) amended by No 62 of 1997, No 170 of 1995 and No 208 of 1992.
14(1A)
["notional earnings base" dealt with in s 13, 13A or 13B]
This section does not apply if the meaning of the expression
notional earnings base
in relation to the employee is dealt with in section 13, 13A or 13B.
History
S 14(1A) amended by No 76 of 1996; inserted by No 170 of 1995.
14(2)
["notional earnings base"]
Subject to subsections (2A), (2B), (3)and (4), the expression
notional earnings base
means the earnings of the employee that, under the award, arrangement, law or scheme as in force on:
(a)
the first day of a quarter; or
(b)
the first day of employment; or
(c)
the day on which the employer begins to contribute to the fund or the RSA;
whichever is the later, constitute the employee's earnings by reference to which the requisite employer contribution is to be calculated.
History
S 14(2) amended by No 51 of 2002, s 3 and Sch 1 item 37, by substituting "quarter" for "contribution period" in para (a), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 14(2) amended by No 62 of 1997 and No 208 of 1992.
14(2A)
[Contribution under award or law]
If:
(a)
the employer is contributing for the benefit of the employee to the fund in accordance with an industrial award, or a law of a kind referred to in paragraph (1)(ab), that was operative immediately before 21 August 1991; and
(b)
section
13 would operate to determine a notional earnings base in relation to the employee if the employer had been so contributing immediately before 21 August 1991;
the notional earnings base in relation to the employee is the notional earnings base referred to in paragraph (b).
History
S 14(2A) inserted by No 208 of 1992.
14(2B)
[Contribution under Coal Industry Tribunal order]
If:
(a)
the employer is contributing for the benefit of the employee to the fund in accordance with the agreement referred to in Order No. 292 of 1992 of the Coal Industry Tribunal of New South Wales and known as the New South Wales Coal Mining Industry Statutory Superannuation Fund (Salary Sacrifice) Agreement; and
(b)
section
13 would operate to determine a notional earnings base in relation to the employee if the employer had been so contributing immediately before 21 August 1991;
the notional earnings base in relation to the employee is the notional earnings base referred to in paragraph (b).
History
S 14(2B) inserted by No 208 of 1992.
14(3)
[Ordinary time earnings]
If, in a case where the employer is contributing to the fund or the RSA in accordance with an occupational superannuation arrangement, a law of a kind referred to in paragraph (1)(ab) or the applicable superannuation scheme, the employee's notional earnings base calculated in accordance with subsection (2) would, in relation to a quarter, be less than the employee's ordinary time earnings for the quarter, the employee's notional earnings base is the employee's ordinary time earnings.
History
S 14(3) amended by No 51 of 2002, s 3 and Sch 1 item 38, by substituting "quarter" for "contribution period" (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 14(3) amended by No 62 of 1997 and No 208 of 1992.
14(4)
[Maximum contribution base]
If an employee's notional earnings base ascertained in accordance with subsection (2) in relation to a quarter would be an amount greater than the maximum contribution base for that quarter, the employee's notional earnings base is the maximum contribution base.
History
S 14(4) amended by No 51 of 2002, s 3 and Sch 1 items 39 and 40, by substituting "quarter" for "contribution period" and substituting "that quarter" for "that period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 15
INTERPRETATION: MAXIMUM CONTRIBUTION BASE
15(1)
The maximum contribution base for a quarter in the 2001-02 year is $27,510.
History
S 15(1) substituted for s 15(1) and (2) by No 51 of 2002, s 3 and Sch 1 item 41, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 15(1) formerly read:
15(1)
The maximum contribution base for a contribution period in the 1992-93 year is $40,000.
15(2)
(Repealed by No 51 of 2002)
History
S 15(1) substituted for s 15(1) and (2) by No 51 of 2002, s 3 and Sch 1 item 41, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 15(2) formerly read:
15(2)
The maximum contribution base for a contribution period in the 1993-94 year is the amount worked out using the formula:
$40,000 × Indexation factor for the 1993-94 year
2. |
S 15(2) amended by No 208 of 1992.
15(3)
The maximum contribution base for a quarter in any later year is the amount worked out using the formula:
Maximum contribution base for
a quarter in the immediately
preceding year |
× |
Indexation factor
for the year |
[
CCH Note:
From 1997/98, the maximum contribution base for a quarter/contribution period is:
| 1997/98 |
$23,630 |
2011/12 |
$43,820 |
| 1998/99 |
$24,480 |
2012/13 |
$45,750 |
| 1999/2000 |
$25,240 |
2013/14 |
$48,040 |
| 2000/01 |
$26,300 |
2014/15 |
$49,430 |
| 2001/02 |
$27,510 |
2015/16 |
$50,810 |
| 2002/03 |
$29,220 |
2016/17 |
$51,620 |
| 2003/04 |
$30,560 |
2017/18 |
$52,760 |
| 2004/05 |
$32,180 |
2018/19 |
$54,030 |
| 2005/06 |
$33,720 |
2019/20 |
$55,270 |
| 2006/07 |
$35,240 |
2020/21 |
$57,090 |
| 2007/08 |
$36,470 |
2021/22 |
$58,920 |
| 2008/09 |
$38,180 |
2022/23 |
$60,220 |
| 2009/10 |
$40,170 |
2023/24 |
$62,270] |
| 2010/11 |
$42,220 |
|
|
History
S 15(3) amended by No 51 of 2002, s 3 and Sch 1 items 42 and 43, by substituting "quarter" for "contribution period" (first occurring) and substituting the formula, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The formula formerly read:
| "Maximum contribution base for a contribution period in the immediately preceding year |
× |
Indexation
factor
for the year" |
15(4)
Amounts calculated under subsection (3) must be rounded to the nearest 10 dollar multiple (rounding 5 dollars upwards).
History
S 15(4) amended by No 51 of 2002, s 3 and Sch 1 item 44, by omitting "(2) or", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
15(5)
Despite subsections (3) and (4), the maximum contribution base for a quarter in the 2017-18 year or any later year is the amount worked out using the following formula, if that amount is less than the amount worked out under those subsections:
| |
Concessional contributions cap |
× |
100 |
× |
1 |
|
| Charge percentage |
4 |
|
where:
charge percentage
is the number specified in subsection 19(2) for the quarter.
concessional contributions cap
is the basic concessional contributions cap, within the meaning of the Income Tax Assessment Act 1997, for the financial year in which the quarter occurs.
History
Definition of "concessional contributions cap" amended by No 55 of 2017, s 3 and Sch 1 item 22, by substituting "the basic concessional" for "the concessional", effective 1 July 2017 and applicable in relation to working out the concessional contributions cap for the 2019/20 financial year and later financial years.
History
S 15(5) inserted by No 81 of 2016, s 3 and Sch 2 item 21, effective 1 January 2017.
15(6)
Amounts calculated under subsection (5) must be rounded down to the nearest 10 dollar multiple.
History
S 15(6) inserted by No 81 of 2016, s 3 and Sch 2 item 21, effective 1 January 2017.
SECTION 15A
INTERPRETATION: SALARY SACRIFICE ARRANGEMENTS
Salary sacrifice arrangement
15A(1)
An arrangement under which a contribution is, or is to be, made to a complying superannuation fund or an RSA by an employer for the benefit of an employee is a
salary sacrifice arrangement
if the employee agreed:
(a)
for the contribution to be made; and
(b)
in return, for either or both of the following amounts to be reduced (including to nil):
(i)
the ordinary time earnings of the employee;
(ii)
the salary or wages of the employee.
Sacrificed amounts
15A(2)
If an amount mentioned in subparagraph (1)(b)(i) or (ii) is reduced under a salary sacrifice arrangement, the amount of that reduction is:
(a)
if ordinary time earnings for a quarter are reduced - a
sacrificed ordinary time earnings amount
of the employee for the quarter in respect of the employer; and
(b)
if salary or wages for a quarter are reduced - a
sacrificed salary or wages amount
of the employee for the quarter in respect of the employer.
Excluded salary or wages
15A(3)
In working out the amount of a reduction for the purposes of subsection (2), disregard any amounts that, had they been paid to the employee (instead of being reduced), would have been excluded salary or wages.
15A(4)
For the purposes of this section, excluded salary or wages are salary or wages that, under section
27 or
28, are not to be taken into account for the purpose of making a calculation under section
19.
History
S 15A inserted by No 95 of 2019, s 3 and Sch 7 item 2, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
S 15A repealed by No 15 of 2007, s 3 and Sch 1 item 349, applicable to the 2007/08 income year and later years. S 15A formerly read:
SECTION 15A INTERPRETATION: ENTITLEMENT AMOUNT
15A(1)
An employee has an
entitlement amount
in relation to a benefit body at a particular time (the
test time
) in accordance with this section.
15A(2)
Lump sum from complying approved deposit fund.
If at the test time:
(a)
the benefit body is a complying approved deposit fund; and
(b)
the employee has a benefit in the body in the form of a present or future entitlement to a lump sum;
the employee has an
entitlement amount
in relation to the body at the test time equal to the resignation RBL amount in relation to the benefit at that time.
15A(3)
Deferred annuity from life assurance company.
If at the test time:
(a)
the benefit body is a life assurance company; and
(b)
the employee has a benefit in the body in the form of a present or future entitlement to a deferred annuity;
the employee has an
entitlement amount
in relation to the body at the test time equal to the resignation RBL amount in relation to the benefit at that time.
History
S 15A(3) amended by No 101 of 2004, s 3 and Sch 11 items 96 and 100, by omitting "or a registered organisation" after "life assurance company" in para (a), applicable in relation to test times (within the meaning of section 15A of that Act) on or after 1 July 2000.
15A(4)
Lump sum, pension, or combination of lump sum and pension, from complying superannuation fund.
If at the test time:
(a)
the benefit body is a complying superannuation fund or an RSA provider; and
(b)
the employee has a benefit in the body in the form of:
(i)
a present or future entitlement to a lump sum; or
(ii)
an entitlement to a pension that has not become payable; or
(iii)
any combination of the entitlements covered by subparagraphs (i) and (ii);
whether or not the applicable entitlement is at the election of the employee;
the employee has an
entitlement amount
in relation to the body at the test time in accordance with subsection (5).
History
S 15A(4) amended by No 62 of 1997.
15A(5)
For the purposes of subsection (4), the entitlement amount is:
(a)
if the applicable entitlement is at the election of the employee - the greatest possible amount, being a resignation RBL amount or the sum of 2 resignation RBL amounts, in respect of the applicable entitlement at the test time; or
(b)
in any other case:
(i)
if subparagraph (4)(b)(i) applies - the resignation RBL amount in relation to the lump sum at the test time; or
(ii)
if subparagraph (4)(b)(ii) applies - the resignation RBL amount in relation to the pension at the test time; or
(iii)
if subparagraph (4)(b)(iii) applies - the sum of the resignation RBL amount in relation to the lump sum and the resignation RBL amount in relation to the pension at the test time.
15A(6)
In this section:
benefit body
means a complying superannuation fund, a complying approved deposit fund, a life assurance company or an RSA provider.
History
Definition of "benefit body" amended by No 101 of 2004, s 3 and Sch 11 items 97 and 100, by substituting "or an RSA provider" for ", an RSA provider or a registered organisation", applicable in relation to test times (within the meaning of section 15A of that Act) on or after 1 July 2000.
Definition of "benefit body" amended by No 62 of 1997.
deferred annuity
has the meaning given by section 140C of the Income Tax Assessment Act 1936.
ETP
has the meaning given by section 140C of the Income Tax Assessment Act 1936.
life assurance company
has the meaning given by subsection 6(1) of the Income Tax Assessment Act 1936.
History
Definition of "life assurance company" amended by No 101 of 2004, s 3 and Sch 11 items 98 and 100, by substituting "6(1)" for "27A(1)", applicable in relation to test times (within the meaning of section 15A of that Act) on or after 1 July 2000.
pension
means a pension within the meaning of the Superannuation Industry (Supervision) Act 1993 or the Retirement Savings Accounts Act 1997.
History
Definition of "pension" substituted by No 62 of 1997.
registered organisation
(Repealed by No 101 of 2004)
History
Definition of "registered organisation" repealed by No 101 of 2004, s 3 and Sch 11 items 99 and 100, applicable in relation to test times (within the meaning of section 15A of that Act) on or after 1 July 2000. The definition formerly read:
registered organisation
has the meaning given by subsection 27A(1) of the Income Tax Assessment Act 1936.
resignation RBL amount
, in relation to a benefit that exists at a particular time in a benefit body, means:
(a)
if the benefit is in the form of a present or future entitlement, of an employee, to a lump sum - the RBL amount (worked out under section
140ZH of the
Income Tax Assessment Act 1936) of the ETP that would be payable to the employee if he or she resigned at the particular time; or
(b)
if the benefit is in the form of a present or future entitlement, of an employee, to a deferred annuity - the RBL amount (worked out under section
140ZI of the
Income Tax Assessment Act 1936) of the ETP that would be payable to the employee if he or she commuted the entitlement at the particular time; or
(c)
if the benefit is in the form of an entitlement, of an employee, to a pension that has not become payable - the RBL amount (worked out under section
140ZK of the
Income Tax Assessment Act 1936) of the pension that would be payable to the employee if he or she resigned at the particular time.
S 15A inserted by No 170 of 1995.
PART 3 - LIABILITY OF EMPLOYERS OTHER THAN THE COMMONWEALTH AND TAX-EXEMPT COMMONWEALTH AUTHORITIES TO PAY SUPERANNUATION GUARANTEE CHARGE
SECTION 15B
15B
APPLICATION OF PART TO FORMER EMPLOYEES
This Part applies to salary or wages paid to, and contributions for the benefit of, a former employee as if the former employee were an employee of the person who was the former employee's employer.
History
S 15B inserted by No 147 of 2005, s 3 and Sch 7 item 17, applicable to payments made on or after the first day of the first quarter after the quarter in which this Act receives the Royal Assent [ie 14 December 2005]. No 147 of 2005, s 3 and Sch 7 item 19, contains the following provision:
Previous interpretation preserved
19
The amendment is not to be taken to affect by implication the interpretation of a provision amended at a time before commencement.
SECTION 15C
CERTIFICATES OF COVERAGE FOR INTERNATIONAL SOCIAL SECURITY AGREEMENTS
15C(1)
[Application]
This section applies if a scheduled international social security agreement (within the meaning of section 5 of the Social Security (International Agreements) Act 1999) prevents double coverage of the compulsory retirement savings arrangements under the laws of the parties to the agreement.
15C(2)
[Application for certificate]
An entity mentioned in subsection (3) may apply in writing to the Commissioner for a certificate under subsection (4) covering the employment of a particular employee.
15C(3)
[Entity]
For the purposes of subsection (2), the entity must be:
(a)
if the employee's employer is not a resident of Australia - a related entity (within the meaning of the agreement) of the employer; or
(b)
otherwise - the employee's employer.
15C(4)
[Certificate]
The Commissioner may give the entity that made the application a certificate under this subsection if the Commissioner is satisfied that doing so is in accordance with the agreement mentioned in subsection (1).
15C(5)
[Certificate particulars]
The certificate must:
(a)
state the name of the employer and the employee; and
(b)
state the time at which, or the circumstances in which, the certificate stops covering the employment; and
(c)
contain any other information that the Commissioner considers relevant.
15C(6)
[Revocation or variation of certificate]
The Commissioner may revoke or vary a certificate under subsection (4), if doing so would be in accordance with the administrative arrangements to the agreement mentioned in subsection (1) that are agreed between the parties to the agreement.
15C(7)
[Objection]
A person who is dissatisfied with a decision of the Commissioner under subsection (4) or (6) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
15C(8)
[Application to salary or wages]
If the entity that made the application is not the employee's employer, this Part (apart from this section) applies to salary or wages relating to employment covered by the certificate that are paid to the employee as if the entity that made the application were the employee's employer.
History
S 15C inserted by No 15 of 2007, s 3 and Sch 3 item 52, applicable to the 2007/08 income year and later years.
SECTION 16
16
CHARGE PAYABLE BY EMPLOYER
Superannuation guarantee charge imposed on an employer's superannuation guarantee shortfall for a quarter is payable by the employer.
History
S 16 amended by No 51 of 2002, s 3 and Sch 1 item 45, by substituting ``quarter'' for ``year'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 17
17
SUPERANNUATION GUARANTEE SHORTFALL
If an employer has one or more individual superannuation guarantee shortfalls for a quarter, the employer has a superannuation guarantee shortfall for the quarter worked out by adding together:
(a)
the total of the employer's individual superannuation guarantee shortfalls for the quarter; and
(b)
the employer's nominal interest component for the quarter; and
(c)
the employer's administration component for the quarter.
History
S 17 amended by No 51 of 2002, s 3 and Sch 1 item 46, by substituting ``quarter'' for ``year'' (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
18
(Repealed) SECTION 18 INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL FOR 1992-93
(Repealed by No 51 of 2002)
History
S 18 repealed by No 51 of 2002, s 3 and Sch 1 item 47, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 18 formerly read:
SECTION 18 INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL FOR 1992-93
18(1)
An employer's individual superannuation guarantee shortfall in respect of an employee for the 1992-93 year is the sum of the employer's half-yearly shortfalls in respect of that employee for that year.
18(2)
An employer's half-yearly shortfall in respect of an employee for a half-year is the amount worked out using the formula:
| Total salary or wages paid by the employer to the employee for the half-year |
× |
Charge percentage for the employer for
the half-year
100 |
where:
'Charge percentage for the employer for the half-year' means the number ascertained in relation to that employer and that half-year according to section 20 or 21 or that number as reduced, in respect of the employee, by section 22 or 23, as the case may be.
18(3)
If the total salary or wages paid by an employer to an employee in a half-year exceeds the maximum contribution base for the contribution period that corresponds to that half-year, the total salary or wages to be taken into account for the purposes of the application of subsection (2) in relation to the half-year is the amount equal to the maximum contribution base.
History
S 18(3) inserted by No 208 of 1992.
SECTION 19
INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALLS
19(1)
An employer's
individual superannuation guarantee shortfall
for an employee for a quarter is the amount worked out using the formula:
| |
Quarterly salary or wages base, for the employer in respect of the employee, for the quarter |
× |
Charge percentage for the employer for the quarter |
|
| |
100 |
|
where:
charge percentage
, for an employer for a quarter, means:
(a)
the number specified in subsection
(2) for the quarter (unless paragraph (b) applies); or
(b)
if the number specified in subsection
(2) for the quarter is reduced in respect of the employee by either or both sections
22 and
23 - the number as reduced.
History
Definition of "charge percentage" amended by No 22 of 2012, s 3 and Sch 1 item 1, by inserting "for the quarter" in para (a) and (b), applicable for the purpose of calculations under section 19 of the Superannuation Guarantee (Administration) Act 1992 for quarters starting on and after 1 July 2013.
quarterly salary or wages base
, for an employer in respect of an employee, for a quarter means the sum of:
(a)
the total salary or wages paid by the employer to the employee for the quarter; and
(b)
any sacrificed salary or wages amounts of the employee for the quarter in respect of the employer.
History
Definition of "quarterly salary or wages base" inserted by No 95 of 2019, s 3 and Sch 7 item 4, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
History
S 19(1) amended by No 95 of 2019, s 3 and Sch 7 item 3, by substituting the formula, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. The formula formerly read:
| Total salary or wages paid by the employer to the employee for the quarter |
× |
Charge percentage for the
employer for the quarter
100 |
S 19(1) and (2) substituted by No 51 of 2002, s 3 and Sch 1 item 48, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 19(1) formerly read:
19(1)
An employer's individual superannuation guarantee shortfall in respect of an employee for a year (other than the 1992-93 year) is the sum of the employer's quarterly shortfalls in respect of that employee for that year.
19(2)
The charge percentage for a quarter in a year described in an item of the table is the number specified in column 2 of the item.
|
Charge percentage (unless reduced under section 22 or 23)
|
|
Item
|
Column 1
Year
|
Column 2
Charge percentage
|
| 1 |
Year starting on 1 July 2013 |
9.25 |
| 2 |
Year starting on 1 July 2014 |
9.5 |
| 3 |
Year starting on 1 July 2015 |
9.5 |
| 4 |
Year starting on 1 July 2016 |
9.5 |
| 5 |
Year starting on 1 July 2017 |
9.5 |
| 6 |
Year starting on 1 July 2018 |
9.5 |
| 7 |
Year starting on 1 July 2019 |
9.5 |
| 8 |
Year starting on 1 July 2020 |
9.5 |
| 9 |
Year starting on 1 July 2021 |
10 |
| 10 |
Year starting on 1 July 2022 |
10.5 |
| 11 |
Year starting on 1 July 2023 |
11 |
| 12 |
Year starting on 1 July 2024 |
11.5 |
| 13 |
Year starting on or after 1 July 2025 |
12 |
History
S 19(2) substituted by No 96 of 2014, s 3 and Sch 6 item 1, applicable for the purpose of calculations under section 19 of the Superannuation Guarantee (Administration) Act 1992 for quarters starting on or after 1 July 2015. S 19(2) formerly read:
19(2)
The charge percentage for a quarter in a year described in column 1 of an item of the table is the number specified in column 2 of the item.
|
Charge percentage (unless reduced under section 22 or 23)
|
|
Item
|
Column 1
Year
|
Column 2
Charge percentage
|
| 1 |
Year starting on 1 July 2013 |
9.25 |
| 2 |
Year starting on 1 July 2014 |
9.5 |
| 3 |
Year starting on 1 July 2015 |
10 |
| 4 |
Year starting on 1 July 2016 |
10.5 |
| 5 |
Year starting on 1 July 2017 |
11 |
| 6 |
Year starting on 1 July 2018 |
11.5 |
| 7 |
Year starting on or after 1 July 2019 |
12 |
S 19(2) substituted by No 22 of 2012, s 3 and Sch 1 item 2, applicable for the purpose of calculations under section 19 of the Superannuation Guarantee (Administration) Act 1992 for quarters starting on and after 1 July 2013. S 19(2) formerly read:
19(2)
The charge percentage is 9.
Note:
This might be reduced under section 22 or 23.
S 19(1) and (2) substituted by No 51 of 2002, s 3 and Sch 1 item 48, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 19(2) formerly read:
19(2)
Subject to subsection (4), an employer's quarterly shortfall in respect of an employee for a quarter is the amount worked out using the formula:
| Total salary or wages paid by the employer to the employee for the quarter |
× |
Charge percentage for the employer for
the quarter
100 |
where:
'Charge percentage for the employer for the quarter' means the number ascertained in relation to that employer and that quarter according to section 20 or 21 or that number as reduced, in respect of the employee, by section 22 or 23, as the case may be.
S 19(2) amended by No 170 of 1995.
19(2A)
If an employer makes one or more contributions (the
no choice contributions
) to an RSA or a complying superannuation fund other than a defined benefit superannuation scheme, for the benefit of an employee during a quarter and the contributions are not made in compliance with the choice of fund requirements, the employer's
individual superannuation guarantee shortfall
for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection (1) if the no choice contributions had not been made.
Note 1:
See also subsection (2E) and section 19A.
Note 2:
Part 3A sets out the choice of fund requirements.
History
S 19(2A) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2B)
If:
(a)
a reduction of the charge percentage for an employee for a quarter is made under subsection
22(2) in respect of a defined benefit superannuation scheme; and
(b)
there is at least one relevant day in the quarter where, if contributions (the
notional contributions
) had been made to the scheme by the employer for the benefit of the employee on the day, the notional contributions would have been made not in compliance with the choice of fund requirements; and
(c)
section 20 (which deals with certain cases where defined benefit members cannot choose another fund) does not apply to the employer in respect of the employee in respect of the scheme for the quarter;
the employer's
individual superannuation guarantee shortfall
for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection (1) if no reduction were made under subsection 22(2) in respect of the scheme.
number of breach of condition days
is the number of relevant days in the quarter on which, if a contribution had been made to the scheme by the employer for the benefit of the employee, those contributions would have been made not in compliance with the choice of fund requirements.
Note 1:
See also subsection (2E) and section 19A.
Note 2:
Part 3A sets out the choice of fund requirements.
History
S 19(2B) amended by No 80 of 2020, s 3 and Sch 1 item 1, by substituting "(which deals with certain cases where defined benefit members cannot choose another fund)" for "(which deals with certain cases where no contributions are required)" in para (c), effective 4 September 2020.
S 19(2B) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2C)
The following days in a quarter are
relevant days
for the purposes of subsection
(2B):
(a)
if the value of
B
in the formula in subsection
22(2) for the quarter is 1 - every day in the quarter; or
(b)
in any other case - every day in the quarter that is in the shorter of the scheme membership period or the certificate period referred to in subsection
22(2).
History
S 19(2C) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2CA)
For the purposes of paragraph
(2B)(b), if the employee is a defined benefit member of a superannuation fund, subsection
32C(2) applies in relation to the employee and the fund as if it did not include paragraph
32C(2)(c) (requirement that fund includes a MySuper product).
History
S 19(2CA) inserted by No 171 of 2012, s 3 and Sch 5 item 3, effective 1 January 2014.
19(2D)
A reference in subsections
(2A) and
(2B) to an employer's individual superannuation guarantee shortfall being increased includes a reference to the shortfall being increased from nil.
History
S 19(2D) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2E)
The Commissioner may, after taking account, wherever appropriate, of the operation of section
19A, reduce (including to nil) the amount of an increase in an employer's individual superannuation guarantee shortfall for an employee for a quarter under subsection
(2A) or
(2B).
Note:
The Commissioner must have regard to guidelines in force under subsection 21(1) when deciding whether or not to make a decision under this subsection.
History
S 19(2E) amended by No 46 of 2021, s 3 and Sch 1 item 2, by substituting the note, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. The note formerly read:
Note:
The Commissioner must have regard to written guidelines when deciding whether or not to make a decision under this subsection: see section 21.
S 19(2E) amended by No 82 of 2005, s 3 and Sch 1 item 2, by inserting ", after taking account, wherever appropriate, of the operation of section 19A," after "The Commissioner may", effective 1 July 2005.
S 19(2E) inserted by No 102 of 2004, s 3 and Sch 1 item 15A, effective 1 July 2005.
19(2F)
If:
(a)
subsection
(2G) applies to one or more contributions for a quarter that were not able to be made by an employer to a particular fund for the benefit of an employee; and
(b)
after the period of 28 days after the end of the quarter, the employer made those contributions to any fund for the benefit of the employee;
the Commissioner may reduce (including to nil) so much of the amount of the employer's individual superannuation guarantee shortfall for the employee for the quarter as is due to the lateness of those contributions.
Note:
The Commissioner must have regard to guidelines in force under subsection 21(2) when deciding whether or not to make a decision under this subsection.
History
S 19(2F) inserted by No 46 of 2021, s 3 and Sch 1 item 3, effective 23 June 2021.
19(2G)
This subsection applies to a contribution for a quarter that was not able to be made by an employer to a particular fund for the benefit of an employee if:
(a)
the employer attempts to make the contribution at a particular time; and
(b)
at that time, there is no chosen fund for the employee; and
(c)
at that time, 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; and
(d)
the fund does not accept the contribution from the employer for the benefit of the employee.
History
S 19(2G) inserted by No 46 of 2021, s 3 and Sch 1 item 3, effective 23 June 2021.
19(3)
For the purposes of the definition of
quarterly salary or wages base
in subsection
(1), disregard an amount in a quarter if:
(a)
the amount would be covered by paragraph (a) of that definition for the quarter (about amounts paid to the employee); but
(b)
the amount is taken into account under paragraph (b) of that definition (about sacrificed salary or wages amounts) for any quarter.
Note:
This prevents double counting if a sacrificed salary or wages amount is later paid as salary or wages, instead of being contributed to superannuation.
History
S 19(3) substituted by No 95 of 2019, s 3 and Sch 7 item 5, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. S 19(3) formerly read:
19(3)
If the total salary or wages paid by an employer to an employee in a quarter exceeds the maximum contribution base for the quarter, the total salary or wages to be taken into account for the purposes of the application of subsection (1) in relation to the quarter is the amount equal to the maximum contribution base.
S 19(3) amended by No 41 of 2005, s 3 and Sch 10 item 232 by substituting "subsection (1)" for "subsection (2)", effective 1 April 2005.
S 19(3) amended by No 51 of 2002, s 3 and Sch 1 item 49, by substituting "the quarter" for "the contribution period that corresponds to that quarter", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 19(3) inserted by No 208 of 1992.
19(4)
If the quarterly salary or wages base, for an employer in respect of an employee, for a quarter exceeds the maximum contribution base for the quarter, the employer's quarterly salary or wages base to be taken into account for the purposes of the application of subsection
(1) in relation to the quarter is the amount equal to the maximum contribution base.
History
S 19(4) inserted by No 95 of 2019, s 3 and Sch 7 item 5, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
S 19(4) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(4) formerly read:
19(4)
Despite subsections (1), (2A) and (2B), an employer's
individual superannuation guarantee shortfall
for an employee for a quarter, and for all later quarters, is nil if, during the quarter, the employee gives the employer:
(a)
a statement in writing by the employee electing that the employer should not be liable to superannuation guarantee charge in respect of the employee; and
(b)
statements for the purposesof this paragraph in relation to the employee, where:
(i)
the sum of the amounts specified in all of the statements;
exceeds:
(ii)
the pension RBL, under section 140ZD of the Income Tax Assessment Act 1936, for the year of income (within the meaning of that Act) in which the statements are given.
S 19(4) amended by No 102 of 2004, s 3 and Sch 1 item 15B, by substituting "Despite subsections (1), (2A) and (2B), an employer's
individual superannuation guarantee shortfall
" for "An employer's individual superannuation guarantee shortfall", effective 1 July 2005.
S 19(4) amended by No 51 of 2002, s 3 and Sch 1 item 50, by substituting "individual superannuation guarantee shortfall for an employee" for "quarterly shortfall in respect of an employee", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 19(4) inserted by No 170 of 1995.
19(5)
(Repealed by No 15 of 2007)
History
S 19(5) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(5) formerly read:
19(5)
The election is irrevocable.
S 19(5) inserted by No 170 of 1995.
19(6)
(Repealed by No 15 of 2007)
History
S 19(6) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(6) formerly read:
19(6)
For the purposes of paragraph (4)(b), one statement that may be given is a statement in writing by the Commissioner specifying the sum of the adjusted RBL amounts of previous benefits (within the meaning of section 140ZA of the Income Tax Assessment Act 1936) received by the employee before the time when the statement is given.
S 19(6) inserted by No 170 of 1995.
19(7)
(Repealed by No 15 of 2007)
History
S 19(7) repealed by No 15 of 2007, s 3 and Sch 1 item 350, applicable to the 2007/08 income year and later years. S 19(7) formerly read:
19(7)
For the purposes of paragraph (4)(b), another statement that may be given is a statement in writing, by the trustee or manager of a benefit body (within the meaning of section 15A) specifying the entitlement amounts (within the meaning of that section) of the employee in relation to the benefit body at the time the statement is given.
S 19(7) inserted by No 170 of 1995.
SECTION 19AA
EMPLOYER SHORTFALL EXEMPTION CERTIFICATE
19AA(1)
This section applies if the Commissioner has issued an employer shortfall exemption certificate to a person in relation to:
(a)
an employer of the person; and
(b)
a quarter in a financial year.
19AA(2)
Treat the maximum contribution base for the quarter as nil for the purposes of working out the employer's individual superannuation guarantee shortfall under section
19 for the person for the quarter.
Note:
An employer shortfall exemption certificate issued to a person in relation to a particular employer does not affect any other employer's individual superannuation guarantee shortfall for the person.
History
S 19AA inserted by No 78 of 2019, s 3 and Sch 1 item 2, effective 3 October 2019 and applicable in relation to quarters starting on or after 1 July 2018.
SECTION 19AB
EMPLOYER SHORTFALL EXEMPTION CERTIFICATE - APPLICATION AND ISSUING
Application for certificate
19AB(1)
A person may apply to the Commissioner for the Commissioner to issue a certificate under this section (an
employer shortfall exemption certificate
) to the person in relation to:
(a)
a specified employer of the person (which must be an employer of the person at the time the application is made); and
(b)
a specified quarter in a specified financial year.
19AB(2)
The application:
(a)
must be in the approved form; and
(b)
must specify the employer, the quarter and the financial year; and
(c)
must be made on or before the day that is 60 days before the first day of the quarter.
Issuing of certificate
19AB(3)
The Commissioner may issue the employer shortfall exemption certificate if the Commissioner is satisfied that:
(a)
if the certificate is not issued, the person is likely to have excess concessional contributions (within the meaning of the
Income Tax Assessment Act 1997) for the financial year (whether or not issuing the certificate would prevent that result); and
(b)
if the certificate is issued, at least one other employer of the person is likely to have an individual superannuation guarantee shortfall for the person for the quarter that:
(i)
is greater than nil; or
(ii)
would be greater than nil but for a reduction under section 22 or 23; and
(c)
it is appropriate in the circumstances to issue the certificate.
19AB(4)
For the purposes of paragraph (3)(a), the Commissioner is to have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, in relation to the person and a quarter in the financial year.
19AB(5)
For the purposes of paragraph (3)(b), the Commissioner is to have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, in relation to the person and the quarter.
19AB(6)
For the purposes of paragraph (3)(c), the Commissioner may have regard to:
(a)
the effect that issuing the employer shortfall exemption certificate is likely to have on the person's concessional contributions (within the meaning of the
Income Tax Assessment Act 1997) for the financial year; and
(b)
any other matter that the Commissioner considers relevant.
19AB(7)
A person who is dissatisfied with a decision of the Commissioner under subsection (3) may object against the decision in the manner set out in Part
IVC of the
Taxation Administration Act 1953.
19AB(8)
The Commissioner may not vary or revoke an employer shortfall exemption certificate.
19AB(9)
An employer shortfall exemption certificate is not a legislative instrument.
History
S 19AB inserted by No 78 of 2019, s 3 and Sch 1 item 2, effective 3 October 2019 and applicable in relation to quarters starting on or after 1 July 2018.
SECTION 19AC
EMPLOYER SHORTFALL EXEMPTION CERTIFICATE - NOTICE OF DECISION
19AC(1)
If the Commissioner issues an employer shortfall exemption certificate to a person under section
19AB, the Commissioner must give written notice of the decision to:
(a)
the person; and
(b)
the employer to which the certificate relates.
19AC(2)
A notice under subsection (1) must identify the following:
(a)
the person;
(b)
the employer;
(c)
the quarter to which the certificate relates.
19AC(3)
If the Commissioner decides not to issue an employer shortfall exemption certificate to a person under section
19AB, the Commissioner must give written notice of the decision to the person.
19AC(4)
The Commissioner is taken to have refused to issue an employer shortfall exemption certificate to a person if the Commissioner does not give notice of the Commissioner's decision before the end of 60 days after the person made the application for the certificate.
History
S 19AC inserted by No 78 of 2019, s 3 and Sch 1 item 2, effective 3 October 2019 and applicable in relation to quarters starting on or after 1 July 2018.
SECTION 19A
LIMIT ON SHORTFALL INCREASES ARISING FROM FAILURE TO COMPLY WITH CHOICE OF FUND REQUIREMENTS
19A(1)
[Limit of $500]
Subject to subsections (2) and (3), if the total of the amounts worked out for an employee for a quarter under subsections 19(2A) and (2B) exceeds $500, the total is taken to be $500.
19A(2)
[Previous amounts]
If:
(a)
the total (the
previous amount
) of the amounts worked out for an employee under subsections
19(2A) and
(2B) for previous quarters within an employer's notice period for an employee does not exceed $500; and
(b)
the current quarter is within the same employer's notice period for the employee; and
(c)
the total of the amounts worked out under subsections
19(2A) and
(2B) for the employee for the current quarter and the previous quarters within the employer's notice period for the employee exceeds $500;
then, the total of the amounts worked out under subsections 19(2A) and (2B) for the employee for the current quarter is taken to be the amount by which $500 exceeds the previous amount.
19A(3)
[Later quarters]
If a quarter (the
later quarter
) in an employer's notice period for an employee follows a quarter within that notice period:
(a)
to which subsection (1) applied; or
(b)
to which paragraph (2)(c) applied;
in respect of the employee, the total of the amounts worked out for the employee under subsections 19(2A) and (2B) for the later quarter is taken to be nil.
19A(4)
[
employer's notice period
]
An
employer's notice period
for an employee:
(a)
begins on:
(i)
in the case of the first employer's notice period for the employee - the later of 1 July 2005 and the day on which the employee is first employed by the employer; or
(ii)
in any other case - when the immediately preceding employer's notice period for the employee ends; and
(b)
ends on the day the Commissioner gives the employer written notice that the employer's notice period for the employee has ended.
History
S 19A inserted by No 102 of 2004, s 3 and Sch 1 item 15C, effective 1 July 2005.
SECTION 20
DEFINED BENEFIT SCHEMES - CERTAIN CASES WHERE MEMBERS CANNOT CHOOSE ANOTHER FUND
20(1)
This section applies to an employer in respect of an employee in respect of a defined benefit superannuation scheme for a quarter if the employee is a defined benefit member of the scheme and subsection (2), (3) or (3A) is satisfied.
History
S 20(1) amended by No 80 of 2020, s 3 and Sch 1 item 3, by substituting "subsection (2), (3) or (3A) is satisfied" for "either subsection (2) or (3) is satisfied", effective 4 September 2020.
Scheme in surplus
20(2)
This subsection is satisfied if:
(a)
the employee was a defined benefit member of the fund immediately before 1 July 2005 and has not ceased to be such a member since that time and before the start of the quarter; and
(b)
an actuary has provided a certificate in accordance with regulations under the
Superannuation Industry (Supervision) Act 1993 stating that the employer is not required to make contributions for the quarter and there has been such a certificate covering all times since 1 July 2005; and
(c)
an actuary has provided a certificate stating that, in the actuary's opinion, at all times from 1 July 2005 until the end of the quarter, there is a high probability that the assets of the scheme are, and will be, equal to or greater than 110% of the greater of the scheme's liabilities in respect of vested benefits and the scheme's accrued actuarial liabilities.
The certificate under paragraph (c) must have been provided no earlier than 15 months before the end of the quarter.
History
S 20(2) amended by No 82 of 2005, s 3 and Sch 1 item 3, by inserting "there is a high probability that" after "end of the quarter," in para (c), effective 1 July 2005.
Member has accrued maximum benefit
20(3)
This subsection is satisfied if, after the start of the quarter, the defined benefit that has accrued to the employee will not increase other than:
(a)
as a result of increases in the employee's salary or remuneration; or
(b)
by reference to accruals of investment earnings; or
(c)
by reference to indexation based on, or calculated by reference to, a relevant price index or wages index; or
(d)
in any other way prescribed for the purposes of this paragraph.
Member's benefit not affected
20(3A)
This subsection is satisfied if the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions:
(a)
for the quarter; and
(b)
made by the employer for the benefit of the employee;
to a fund (within the meaning of Part 3A) other than the defined benefit superannuation scheme.
History
S 20(3A) inserted by No 80 of 2020, s 3 and Sch 1 item 4, effective 4 September 2020.
Meaning of
scheme's accrued actuarial liabilities
and
scheme's liabilities in respect of vested benefits
.
20(4)
In this section:
scheme's accrued actuarial liabilities
, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the scheme in respect of membership up to that time based on assumptions about future economic conditions and the future of matters affecting membership of the scheme, being assumptions made in accordance with applicable professional actuarial standards (if any).
scheme's liabilities in respect of vested benefits
, at a particular time, means the total value of the benefits payable from the scheme to which the members of the scheme would be entitled if they all voluntarily terminated their service with their employers at that time.
History
S 20 inserted by No 102 of 2004, s 3 and Sch 1 item 15D, effective 1 July 2005.
Former s 20 repealed by No 51 of 2002, s 3 and Sch 1 item 51, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 20 formerly read:
SECTION 20 CHARGE PERCENTAGE FOR A PERSON WHO WAS AN EMPLOYER FOR THE WHOLE OF THE 1991-92 YEAR
20(1)
This section applies to a person who was an employer for the whole of the 1991-92 year.
20(2)
In this section, '
base year
' means the 1991-92 year.
20(3)
Subject to subsection (4) and sections 22 and 23, if an employer's annual national payroll for the base year exceeded $1,000,000, the employer's charge percentage for a contribution period in a year, or a part of a year, specified in the following table is the number specified in that table in relation to that year or part of a year (as the case may be):
|
Year
|
Percentage
|
| 1992-93 (1 January-30 June) |
5 |
| 1993-94 |
5 |
| 1994-95 |
5 |
| 1995-96 |
6 |
| 1996-97 |
6 |
| 1997-98 |
6 |
| 1998-99 |
7 |
| 1999-2000 |
7 |
| 2000-01 |
8 |
| 2001-02 |
8 |
| 2002-03 and subsequent years |
9 |
20(4)
In the case of an employer whose charge percentage for the contribution period commencing on 1 January 1993 would, apart from this subsection, be 5, the charge percentage is 4 if:
(a)
a regulation prescribing a charge percentage of 5 for the contribution period, in relation to employers whose annual national payrolls for the base year exceeded $1,000,000, is not made within 28 days after the day on which this Act receives the Royal Assent; or
(b)
if such a regulation is made, it is disallowed by either House of the Parliament on or before:
(i)
the second day after 8 December 1992 that is a sitting day for both Houses of the Parliament; or
(ii)
31 December 1992;
whichever is earlier.
20(5)
Subject to sections 22 and 23, if an employer's annual national payroll for the base year did not exceed $1,000,000, the employer's charge percentage for a contribution period in a year specified in the following table is the number specified in that table in relation to that year:
|
Year
|
Percentage
|
| 1992-93 |
3 |
| 1993-94 |
3 |
| 1994-95 |
4 |
| 1995-96 |
5 |
| 1996-97 |
6 |
| 1997-98 |
6 |
| 1998-99 |
7 |
| 1999-2000 |
7 |
| 2000-01 |
8 |
| 2001-02 |
8 |
| 2002-03 and subsequent years |
9 |
SECTION 21
GUIDELINES FOR REDUCING AN INCREASE IN AN INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL
21(1)
The Commissioner must, by legislative instrument, make guidelines that the Commissioner must have regard to when deciding whether or not to make a decision under subsection
19(2E).
Note:
Subsection 19(2E) allows the Commissioner to reduce (including to nil) the amount of an increase in an individual superannuation guarantee shortfall under subsection 19(2A) or (2B).
[
CCH Note:
Superannuation Guarantee (Administration) - Choice of Fund - Written Guidelines for the Reduction of an Increase in an Employer's Individual Superannuation Guarantee Shortfall Determination 2021 (F2021L01453 registered 22/10/2021), effective from 1 November 2021, contains the guidelines for the purposes of s 21(1). The determination replaces and repeals Superannuation Guarantee (Administration) Act 1992 - Written Guidelines for the Reduction of an Increase in an Employer's Individual Superannuation Guarantee Shortfall (F2006L01821) registered on 15 June 2006.]
History
S 21(1) amended by No 46 of 2021, s 3 and Sch 1 item 4, by substituting "must, by legislative instrument, make guidelines that the Commissioner" for "must develop written guidelines that he or she", effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. No 46 of 2021, s 3 and Sch 1 item 25 contains the following saving provision:
25 Saving - guidelines for reducing an increase in an individual superannuation guarantee shortfall
25
An instrument made under subsection 21(1) of the Superannuation Guarantee (Administration) Act 1992 that is in force immediately before the commencement of this Schedule continues in force (and may be dealt with) as if it had been made under subsection 21(1) of that Act as amended by this Schedule.
21(2)
The Commissioner must, by legislative instrument, make guidelines that the Commissioner must have regard to when deciding whether or not to make a decision under subsection
19(2F).
Note:
Subsection 19(2F) allows the Commissioner to reduce (including to nil) the amount of an individual superannuation guarantee shortfall when a fund that has been notified as the stapled fund for an employee is unable to accept contributions.
[
CCH Note:
Superannuation Guarantee (Administration) - Stapled Fund - Guidelines for the Reduction of an Employer's Individual Superannuation Guarantee Shortfall for Late Contributions Due to Non-acceptance by Notified Stapled Fund Determination 2021 (F2021L01451 registered 22/10/2021), effective from 1 November 2021, contains the guidelines for the purposes of s 21(2).]
History
S 21(2) substituted by No 46 of 2021, s 3 and Sch 1 item 5, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. S 21(2) formerly read:
21(2)
The guidelines are to be made available for inspection on the internet.
S 21(2) amended by No 8 of 2010, s 3 and Sch 5 item 137, by substituting "internet" for "Internet" (wherever occurring), effective 1 March 2010.
S 21 inserted by No 102 of 2004, s 3 and Sch 1 item 15E, effective 1 July 2005.
Former s 21 repealed by No 51 of 2002, s 3 and Sch 1 item 51, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 21 formerly read:
SECTION 21 CHARGE PERCENTAGE FOR A PERSON WHO WAS NOT AN EMPLOYER FOR THE WHOLE OF THE 1991-92 YEAR
21(1)
This section applies to a person who was not an employer for the whole of the 1991-92 year.
21(2)
The base year for a person to whom this section applies is the first year commencing on or after 1 July 1992 in which the person is an employer for the whole of the year.
21(3)
The employer's charge percentage for a contribution period in a year in the period up to and including the base year is the number specified in the following table in relation to that year:
|
Year
|
Percentage
|
| 1992-93 |
3 |
| 1993-94 |
3 |
| 1994-95 |
4 |
| 1995-96 |
5 |
| 1996-97 |
6 |
| 1997-98 |
6 |
| 1998-99 |
7 |
| 1999-2000 |
7 |
| 2000-01 |
8 |
| 2001-02 |
8 |
| 2002-03 and subsequent years |
9 |
21(4)
If the employer's annual national payroll for the base year exceeds $1,000,000, the employer's charge percentage for a contribution period in a subsequent year specified in the following table is the number specified in that table in relation to that year:
|
Year
|
Percentage
|
| 1992-93 |
4 |
| 1993-94 |
5 |
| 1994-95 |
5 |
| 1995-96 |
6 |
| 1996-97 |
6 |
| 1997-98 |
6 |
| 1998-99 |
7 |
| 1999-2000 |
7 |
| 2000-01 |
8 |
| 2001-02 |
8 |
| 2002-03 and subsequent years |
9 |
21(5)
If the employer's annual national payroll for the base year does not exceed $1,000,000, the employer's charge percentage for a contribution period in a subsequent year specified in the table in subsection (3) is the number specified in that table in relation to that year.
21(6)
This section has effect subject to sections 22 and 23.
SECTION 22
REDUCTION OF CHARGE PERCENTAGE WHERE CONTRIBUTION MADE TO DEFINED BENEFIT SUPERANNUATION SCHEME
22(1)
[Application of section]
This section applies only in relation to defined benefit superannuation schemes.
22(2)
[Charge percentage]
If:
(a)
a benefit certificate in relation to one or more complying superannuation schemes has effect for the whole or part of a quarter; and
(b)
a scheme in relation to which the certificate has effect is operating for the benefit of a person as an employee of an employer; and
(c)
the certificate specifies a figure as the notional employer contribution rate in relation to a class of employees (being a class that includes the employee referred to in paragraph (b)) as members of the scheme or schemes (as the case may be);
the charge percentage for the employer, as specified in subsection 19(2), in respect of an employee in the class for the quarter, is reduced, in addition to any other such reduction made under this section or section 23, by the amount worked out using the formula:
where:
A
is the figure referred to in paragraph (c);
B
is:
(A) 1; or
(B) if, in relation to the quarter, the employment period is greater than the scheme membership period or the certificate period - either the fraction that represents the scheme membership period as a proportion of the employment period or the fraction that represents the certificate period as a proportion of the employment period or, if one fraction is smaller than the other, the smaller fraction.
History
S 22(2) amended by No 51 of 2002, s 3 and Sch 1 items 52 to 54, by substituting "a quarter" for "a contribution period" in para (a), substituting "charge percentage for the employer, as specified in subsection 19(2), in respect of an employee in the class for the quarter," for "charge percentage for the employer, as calculated under section 20 or 21, in respect of an employee in the class for the contribution period" and substituting "the quarter" for "the contribution period" in para (B) of the definition of B, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 22(2) amended by No 208 of 1992.
22(3)
[Definitions]
For the purposes of subsection (2):
the certificate period
means the period, or the aggregate of the periods, in the quarter for which the benefit certificate has effect in relation to the scheme.
History
Definition of "the certificate period" amended by No 51 of 2002, s 3 and Sch 1 item 57, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 22(3) amended by No 208 of 1992.
the employment period
means the period, or the aggregate of the periods, in the quarter for which the employee is employed by the employer.
History
Definition of "the employment period" amended by No 51 of 2002, s 3 and Sch 1 item 55, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
the scheme membership period
means the period, or the aggregate of the periods, in the quarter for which the employee is a member of the superannuation scheme.
History
Definition of "the scheme membership period" amended by No 51 of 2002, s 3 and Sch 1 item 56, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
22(4)
[No reduction to less than 0]
The charge percentage for an employer for a quarter cannot be reduced below 0.
History
S 22(4) amended by No 51 of 2002, s 3 and Sch 1 item 58, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
22(5)
[Effect of leave of absence]
For the purposes of a calculation under this section in relation to an employer and an employee:
(a)
a period of leave of absence without pay granted by the employer to the employee is not to be taken into account as a period for which the employee is employed by the employer; and
(b)
a benefit certificate is taken not to have effect in relation to the employee in respect of such a period.
History
S 22(5) inserted by No 208 of 1992.
SECTION 23
REDUCTION OF CHARGE PERCENTAGE IF CONTRIBUTION MADE TO RSA OR TO FUND OTHER THAN DEFINED BENEFIT SUPERANNUATION SCHEME
23(1)
This section applies only in relation to RSAs and to superannuation funds other than defined benefit superannuation schemes.
History
S 23(1) amended by No 62 of 1997.
23(2)
Reduction of charge percentage where contributions are made by employer.
If, in a quarter, an employer makes a contribution (other than a sacrificed contribution) for the benefit of an employee to a complying superannuation fund or an RSA, then the charge percentage for the employer (as specified in subsection 19(2)) for the employee for the quarter is reduced by the number worked out using the formula:
| |
Contribution |
× |
100 |
|
| |
Ordinary time earnings base |
|
where:
contribution
is the number of dollars in the amount of the contribution.
ordinary time earnings
(Repealed by No 95 of 2019)
History
Definition of "ordinary time earnings" (including the example) repealed by No 95 of 2019, s 3 and Sch 7 item 8, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. The definition formerly read:
ordinary time earnings
is the number of dollars in the ordinary time earnings of the employee for the quarter in respect of the employer.
Example:
If the contribution is $60 and the ordinary time earnings are $1,000 then the charge percentage is reduced by 6.
ordinary time earnings base
is the number of dollars in the sum of:
(a)
the ordinary time earnings of the employee for the quarter in respect of the employer; and
(b)
any sacrificed ordinary time earnings amounts, of the employee for the quarter in respect of the employer.
History
Definition of "ordinary time earnings base" inserted by No 95 of 2019, s 3 and Sch 7 item 9, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
History
S 23(2) amended by No 95 of 2019, s 3 and Sch 7 items 6 and 7, by substituting "makes a contribution (other than a sacrificed contribution)" for "contributes" and the formula, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020. The formula formerly read:
Contribution
Ordinary time earnings |
× 100 |
|
S 23(2) amended by No 22 of 2012, s 3 and Sch 1 item 3, by omitting "If there are no other contributions, and no reduction under section 22, then the charge percentage will be 3 (instead of 9)." from the example at the end, applicable for the purpose of calculations under section 19 of the Superannuation Guarantee (Administration) Act 1992 for quarters starting on and after 1 July 2013.
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(2) formerly read:
23(2)
Reduction of charge percentage where contribution made under industrial award or law.
Subject to subsections (6) and (7), if, in a quarter:
(a)
an employer is required by an industrial award or a law of the Commonwealth, a State or a Territory to contribute for the benefit of an employee to a superannuation fund or an RSA; and
(b)
the requisite contribution is a specified percentage of the employee's notional earnings base or a percentage of that base calculated in accordance with the award or law; and
(c)
the employer contributes to a complying superannuation fund or an RSA for the benefit of the employee in accordance with the award or law;
the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter, is reduced, in addition to any other such reduction made under this section or section 22, by the amount worked out using the formula:
where:
A
is the amount of the percentage figure that expresses the contribution to the fund or the RSA referred to in paragraph (c) as a proportion of the total amount of the employee's notional earnings base:
(A) if the employee is employed under the industrial award or law for the whole of the quarter - for the whole of the quarter; or
(B) if the employee is employed under the award or law for a part of the quarter - for that part of the quarter;
B
is:
(A) 1; or
(B) if, in relation to the quarter, the period for which the employee is employed by the employer is greater than the period of employment under the industrial award or law referred to in paragraph (a) - the fraction that represents the period of employment under the award or law as a proportion of the period of employment in the quarter.
Note:
In certain cases, the choice of fund requirements provide that the employee's notional earnings base is adjusted: see section 32Y.
S 23(2) amended by No 102 of 2004, s 3 and Sch 1 item 16, by inserting the note at the end, effective 1 July 2005.
S 23(2) amended by No 51 of 2002, s 3 and Sch 1 items 59 to 64, by substituting "subsections (6) and (7), if, in a quarter" for "subsections (6), (6A) and (7), if, in a contribution period", substituting "a law of the Commonwealth, a State or a Territory" for "a law of a kind referred to in paragraph 13(1)(ab) or 14(1)(ab)" in para (a), substituting "charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter," for "charge percentage for the employer, as calculated under section 20 or 21, in respect of the employee for the contribution period", substituting "the quarter - for the whole of the quarter" for "the contribution period - for the whole of that period" in para (A) of the definition of A, substituting "the quarter" for "the period" (wherever occurring) in para (B) of the definition of A and substituting "the quarter" for "the contribution period" (wherever occurring) in para (B) of the definition of B, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(2) amended by No 62 of 1997, No 120 of 1995 and substituted by No 208 of 1992.
23(3)
A reduction under subsection
(2) in respect of a contribution is in addition to:
(a)
any other reduction under that subsection in respect of any other contribution; and
(b)
any reduction under section
22.
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(3) formerly read:
23(3)
Reduction of charge percentage where contribution made under occupational superannuation arrangement.
Subject to subsections (6) and (7), if, in a quarter:
(a)
an employer is required by an occupational superannuation arrangement to contribute for the benefit of an employee to a superannuation fund or an RSA; and
(b)
the requisite contribution is a specified percentage of the employee's notional earnings base or a percentage of that base calculated in accordance with the arrangement; and
(c)
the employer contributes to a complying superannuation fund or an RSA for the benefit of the employee in accordance with the arrangement;
the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter, is reduced, in addition to any other such reduction made under this section or section 22, by the amount worked out using the formula:
where:
A
is the amount of the percentage figure that expresses the contribution to the fund or the RSA referred to in paragraph (c) as a proportion of the total amount of the employee's notional earnings base:
(A) if the employee is employed under the occupational superannuation arrangement for the whole of the quarter - for the whole of the quarter; or
(B) if the employee is employed under the arrangement for a part of the quarter - for that part of the quarter;
B
is:
(A) 1; or
(B) if, in relation to the quarter, the period for which the employee is employed by the employer is greater than the period of employment under the occupational superannuation arrangement referred to in paragraph (a) - the fraction that represents the period of employment under the arrangement as a proportion of the period of employment in the quarter.
Note:
In certain cases, the choice of fund requirements provide that the employee's notional earnings base is adjusted: see section 32Y.
S 23(3) amended by No 102 of 2004, s 3 and Sch 1 item 17, by inserting the note at the end, effective 1 July 2005.
S 23(3) amended by No 51 of 2002, s 3 and Sch 1 items 65 to 69, by substituting "subsections (6) and (7), if, in a quarter" for "subsections (6), (6A) and (7), if, in a contribution period", substituting "charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter," for "charge percentage for the employer, as calculated under section 20 or 21, in respect of the employee for the contribution period", substituting "the quarter - for the whole of the quarter" for "the contribution period - for the whole of that period" in para (A) of the definition of A, substituting "the quarter" for "the period" (wherever occurring) in para (B) of the definition of A and substituting "the quarter" for "the contribution period" (wherever occurring) in para (B) of the definition of B, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(3) amended by No 62 of 1997 and No 120 of 1995.
23(4)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4) formerly read:
23(4)
Reduction of charge percentage where contribution made under scheme that specifies notional earnings base.
Subject to subsections (6) and (7), if, in a quarter:
(a)
an employer contributes for the benefit of an employee to a complying superannuation fund or an RSA; and
(b)
the applicable superannuation scheme specifies a requisite total contribution as a percentage of the employee's notional earnings base; and
(c)
the employer's contribution is not taken into account for the purpose of reducing the employer's charge percentage in respect of the employee for the quarter under subsection (2) or (3);
the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter, is reduced, in addition to any other such reduction made under this section or section 22, by the amount worked out using the formula:
where:
A
is the amount of the percentage figure that expresses the contribution to the fund or the RSA, referred to in paragraph (a) as a proportion of the total amount of the employee's notional earnings base:
(A) if the employer contributes for the benefit of the employee to the complying superannuation fund or the RSA for the whole of the quarter - for the whole of the quarter; or
(B) if the employer contributes for the benefit of the employee to the fund or the RSA for a part of the quarter - for that part of the quarter;
B
is:
(A) 1; or
(B) if, in relation to the quarter, the period for which the employee is employed by the employer is greater than the period for which the employer contributes for the benefit of the employee to the fund or the RSA referred to in paragraph (a) - the fraction that represents the period for which the employer contributes to the fund or the RSA as a proportion of the period of employment in the quarter.
Note:
In certain cases, the choice of fund requirements provide that the employee's notional earnings base is adjusted: see section 32Y.
S 23(4) amended by No 102 of 2004, s 3 and Sch 1 item 18, by inserting the note at the end, effective 1 July 2005.
S 23(4) amended by No 51 of 2002, s 3 and Sch 1 items 70 to 75, by substituting "subsections (6) and (7), if, in a quarter" for "subsections (6), (6A) and (7), if, in a contribution period", substituting "the quarter" for "the contribution period" in para (c), substituting "charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for that quarter" for "charge percentage for the employer, as calculated under section 20 or 21, in respect of the employee for the contribution period", substituting "the quarter - for the whole of the quarter" for "the contribution period - for the whole of that period" in para (A) of the definition of A, substituting "the quarter" for "the period" (wherever occurring) in para (B) of the definition of A and substituting "the quarter" for "the contribution period" (wherever occurring) in para (B) of the definition of B, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(4) amended by No 62 of 1997 and No 120 of 1995.
23(4A)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4A) formerly read:
23(4A)
Reduction of charge percentage where contribution made under scheme that does not specify notional earnings base.
Subject to subsections (6) and (7), if:
(a)
an industrial award applying throughout a quarter (the
current quarter
) specifies that an amount (the
award contribution amount
) must be contributed by employers to a superannuation fund or an RSA for the benefit of the employer's employees in a class; and
(b)
the award contribution amount is required, whether by the award or otherwise, to be adjusted by reference to any increase in the earnings of:
(i)
the employees (the
adjustment employees
) in the class; or
(ii)
employees (also the
adjustment employees
) of a particular kind in the class; and
(c)
immediately before 21 August 1991 the award was operative and specified an amount in accordance with paragraphs (a) and (b); and
(d)
the award has not, on or after that date and before the end of the current quarter, been amended in a way that has the effect of reducing the notional earnings base (see subsection (4C)) of the employees in the class for any quarter; and
(e)
during the current quarter, an employer contributes an amount (the
actual contribution amount
), whether or not equal to the award contribution amount, for the benefit of an employee in the class, to the superannuation fund or the RSA;
the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the current quarter, is reduced in accordance with subsection (4B).
Note:
In certain cases, the choice of fund requirements provide that the employee's notional earnings base is adjusted: see section 32Y.
S 23(4A) amended by No 102 of 2004, s 3 and Sch 1 item 19, by inserting the note at the end, effective 1 July 2005.
S 23(4A) amended by No 51 of 2002, s 3 and Sch 1 items 76 to 81, by substituting "subsections (6) and (7)" for "subsections (6), (6A) and (7)", substituting "a quarter" for "a contribution period" and "
current quarter
" for "
current contribution period
" in para (a), substituting "quarter" for "contribution period" (wherever occurring) in para (d), substituting "quarter" for "contribution period" in para (e) and substituting "the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the current quarter" for "the charge percentage for the employer, as calculated under section 20 or 21, in respect of the employee for the current contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(4A) amended by No 62 of 1997 and inserted by No 169 of 1995.
23(4B)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4B) formerly read:
23(4B)
The reduction is in addition to any other reduction under this section or section 22 and its amount is worked out using the formula:
S 23(4B) formula substituted by No 51 of 2002, s 3 and Sch 1 item 82, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The formula formerly read:
S 23(4B) amended by No 76 of 1996; inserted by No 169 of 1995.
23(4C)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4C) formerly read:
23(4C)
In subsection (4A) or (4B):
contribution period factor
(Repealed by No 51 of 2002)
employment factor
, in relation to an employee in the class for a quarter, means:
(a)
if, in the quarter, the period for which the employee is employed by the employer is greater than the period of employment under the award - the fraction that represents the period of employment under the award as a proportion of the period of employment in the quarter; or
(b)
in any other case - 1.
notional earnings base
, in relation to an employee in the class for a quarter, means an amount equal to the lesser of the maximum contribution base (see section 15) for the quarter and:
(a)
if the employee is a full-time employee - the earnings of each of the adjustment employees, under the award, in the quarter; or
(b)
if the employee is a part-time employee - the amount worked out using the formula:
Number of hours employed
Full-time employee's hours |
× |
Adjustment earnings |
where:
Adjustment earnings
means the earnings of each of the adjustment employees, under the award, in the quarter;
Full-time employee's hours
means the number of ordinary hours of work for which an equivalent full-time employee would have been employed in the quarter in which the employee is employed under the award;
Number of hours employed
means the number of hours for which the employee is employed in the quarter.
quarter factor
, in relation to an employee in the class for a quarter, means:
(a)
if, in the quarter, the period for which the employee is employed by the employer under the award is less than the whole of the quarter - the fraction that represents the period for which the employee is employed by the employer under the award as a proportion of the whole of the quarter; or
(b)
in any other case - 1.
History
Definition of "contribution period factor" repealed by No 51 of 2002, s 3 and Sch 1 item 83, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
contribution period factor
, in relation to an employee in the class for a contribution period, means:
(a)
if, in the contribution period, the period for which the employee is employed by the employer under the award is less than the whole of the contribution period - the fraction that represents the period for which the employee is employed by the employer under the award as a proportion of the whole of the contribution period; or
(b)
in any other case - 1.
Definition of "contribution period factor" inserted by No 76 of 1996.
Definition of "employment factor" amended by No 51 of 2002, s 3 and Sch 1 items 84 and 85, by substituting "a quarter" for "a contribution period" and substituting "the quarter" for "the contribution period" (wherever occurring) in para (a), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "notional earnings base" amended by No 51 of 2002, s 3 and Sch 1 items 86 to 88, by substituting "a quarter" for "a contribution period", substituting "the quarter" for "the period" (first occurring) and substituting "the quarter" for "the contribution period" in para (a), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "notional earnings base" amended by No 76 of 1996.
Definition of "Adjustment earnings" amended by No 51 of 2002, s 3 and Sch 1 item 89, by substituting "the quarter" for "the contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "Full-time employee's hours" amended by No 51 of 2002, s 3 and Sch 1 item 90, by substituting "in the quarter in which the employee is employed" for "in the period in which the employee is employed", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "Number of hours employed" amended by No 51 of 2002, s 3 and Sch 1 item 91, by substituting "the quarter" for "the contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Definition of "quarter factor" inserted by No 51 of 2002, s 3 and Sch 1 item 92, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(4C) inserted by No 169 of 1995.
23(4D)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4D) formerly read:
23(4D)
Subject to subsections (6) and (7), if, in a quarter, an employer contributes an amount (the
actual contribution amount
) for the benefit of an employee to the Aberfoyle Award Superannuation Fund that was established by a trust deed on 18 May 1987, the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter, is reduced in accordance with subsection (4E).
Note:
In certain cases, the choice of fund requirements provide that the employee's notional earnings base is adjusted: see section 32Y.
S 23(4D) amended by No 102 of 2004, s 3 and Sch 1 item 20, by inserting the note at the end, effective 1 July 2005.
S 23(4D) amended by No 51 of 2002, s 3 and Sch 1 items 93 and 94, by substituting "subsections (6) and (7), if, in a quarter" for "subsections (6), (6A) and (7), if, during a contribution period" and substituting "as specified in subsection 19(2), in respect of the employee for the quarter" for "as calculated under section 20 or 21, in respect of the employee for the contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(4D) inserted by No 76 of 1996.
23(4E)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4E) formerly read:
23(4E)
The reduction is in addition to any other reduction under this section or section 22 and its amount is worked out using the formula:
S 23(4E) amended by No 51 of 2002, s 3 and Sch 1 item 95, by substituting the formula, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The formula formerly read:
S 23(4E) inserted by No 76 of 1996.
23(4F)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(4F) formerly read:
23(4F)
In subsection (4E):
contribution period factor
(Repealed by No 51 of 2002)
History
Definition of "contribution period factor" repealed by No 51 of 2002, s 3 and Sch 1 item 96, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
contribution period factor
means:
(a)
if, in the contribution period, the period for which the employer contributes for the benefit of the employee to the Aberfoyle Award Superannuation Fund is less than the whole of the contribution period - the fraction that represents the period for which the employer so contributes as a proportion of the whole of the contribution period; or
(b)
in any other case - 1.
employment factor
means:
(a)
if, in the quarter, the period for which the employee is employed by the employer is greater than the period for which the employer contributes for the benefit of the employee to the Aberfoyle Award Superannuation Fund - the fraction that represents the period for which the employer so contributes as a proportion of the period of employment; or
(b)
in any other case - 1.
History
Definition of "employment factor" amended by No 51 of 2002, s 3 and Sch 1 item 97, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
notional earnings base
means:
(a)
if the employee is a full-time employee - the notional earnings base of the employee within the meaning of section 13; or
(b)
if the employee is a part-time employee - the amount worked out using the formula:
Number of hours employed
Full-time employee's hours |
× |
Notional earnings
base (within the
meaning of
section 13) |
where:
full-time employee's hours
means the number of ordinary hours of work for which an equivalent full-time employee would have been employed in the quarter in which the employee is employed.
number of hours employed
means the number of hours for which the employee is employed in the quarter.
History
Definition of "notional earnings base" substituted by No 51 of 2002, s 3 and Sch 1 item 98, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
notional earnings base
means:
(a)
if the employee is a full-time employee - the notional earnings base of the employee within the meaning of section 13; or
(b)
if the employee is a part-time employee - the amount worked out using the formula:
Number of hours employed
Full-time employee's hours |
× |
Notional earnings base (within the meaning of
section 13) |
where:
full-time employee's hours
means the number of ordinary hours of work for which an equivalent full-time employee would have been employed in the period in which the employee is employed in the contribution period.
number of hours employed
means the number of hours for which the employee is employed in the contribution period.
quarter factor
means:
(a)
if, in the quarter, the period for which the employer contributes for the benefit of the employee to the Aberfoyle Award Superannuation Fund is less than the whole of the quarter - the fraction that represents the period for which the employer so contributes as a proportion of the whole of the quarter; or
(b)
in any other case - 1.
History
Definition of "quarter factor" inserted by No 51 of 2002, s 3 and Sch 1 item 99, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(4F) inserted by No 76 of 1996.
23(5)
(Repealed by No 93 of 2004)
History
S 23(2) and (3) substituted for s 23(2) to (5) by No 93 of 2004, s 3 and Sch 1 item 6, effective 1 July 2008. S 23(5) formerly read:
23(5)
Subject to subsections (6) and (7), if, in a quarter:
(a)
an employer contributes for the benefit of an employee to a complying superannuation fund or an RSA; and
(b)
the contribution is not taken into account for the purpose of reducing the employer's charge percentage in respect of the employee for the quarter under subsection (2), (3), (4), (4A) or (4D);
the charge percentage for the employer, as specified in subsection 19(2), in respect of the employee for the quarter, is reduced, in addition to any other such reduction made under this section or section 22, by the amount worked out using the formula:
where:
A
is the amount of the percentage figure that expresses the contribution to the fund or the RSA referred to in paragraph (a) as a proportion of the total amount of the employee's ordinary time earnings:
(A) if the employer contributes for the benefit of the employee to the complying superannuation fund or the RSA for the whole of the quarter - for the whole of the quarter; or
(B) if the employer contributes for the benefit of the employee to the fund or the RSA for a part of the quarter - for that part of the quarter;
B
is:
(A) 1; or
(B) if, in relation to the quarter, the period for which the employee is employed by the employer is greater than the period for which the employer contributes for the benefit of the employee to the fund or the RSA referred to in paragraph (a) - the fraction that represents the period for which the employer contributes to the fund or the RSA as a proportion of the period of employment in the quarter.
Note:
In certain cases, the choice of fund requirements provide that the employee's ordinary time earnings are adjusted: see section 32Y.
S 23(5) amended by No 102 of 2004, s 3 and Sch 1 item 21, by inserting the note at the end, effective 1 July 2005.
S 23(5) amended by No 51 of 2002, s 3 and Sch 1 items 100 to 105, by substituting "subsections (6) and (7), if, in a quarter" for "subsections (6), (6A) and (7), if, in a contribution period", substituting "the quarter" for "the contribution period" in para (b), substituting "as specified in subsection 19(2), in respect of the employee for the quarter," for "as calculated under section 20 or 21, in respect of the employee for the contribution period", substituting "the quarter - for the whole of the quarter" for "the contribution period - for the whole of that period" in para (A) of the definition of A, substituting "the quarter" for "the period" (wherever occurring) in para (B) of the definition of A and substituting "the quarter" for "the contribution period" in para (B) of the definition of B, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(5) amended by No 62 of 1997, No 76 of 1996, No 169 of 1995 and No 120 of 1995.
23(6)
Some contributions made after a quarter ends may be taken into account in the quarter.
A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as having been made in a quarter if it is in fact made within the period of 28 days after the end of the quarter.
History
S 23(6) substituted for s 23(6) and (6A), by No 51 of 2002, s 3 and Sch 1 item 106, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 23(6) and (6A) formerly read:
23(6)
A contribution to a complying superannuation fund made by an employer for the benefit of an employee in the period commencing on 1 July 1992 and ending on 14 August 1993 may be taken into account under this section as if it had been made in either contribution period in the 1992-93 year.
23(6A)
Certain contributions may be taken into account for any of several periods.
A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee in the period starting on the first day of a year and ending on the twenty-eighth day after the end of the year may be taken into account under this section as if it had been made in any of the contribution periods in the year.
S 23(6A) amended by No 62 of 1997, substituted by No 120 of 1995 and inserted by No 56 of 1994.
23(6A)
A contribution (the
actual contribution
) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as having been made in a quarter if:
(a)
the employer attempted to make a contribution to any complying superannuation fund for the benefit of the employee at a particular time within the period of 28 days after the end of the quarter; and
(b)
at that time, the making of the attempted contribution was prevented by the operation of section
60F of the
Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments); and
(c)
the actual contribution is in fact made within the period of 56 days after the end of the quarter.
History
S 23(6A) inserted by No 46 of 2021, s 3 and Sch 2 item 2, effective 23 June 2021 and applicable: (a) in relation to MySuper products - on and after 1 July 2021; and (b) in relation to other Part 6A products identified by regulations made for the purposes of paragraph 60B(b) of the Superannuation Industry (Supervision) Act 1993 - on and after 1 July 2022.
23(6B)
(Repealed by No 51 of 2002)
History
S 23(6B) repealed by No 51 of 2002, s 3 and Sch 1 item 107, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 23(6B) formerly read:
23(6B)
Subsection (6A) applies in relation to the year that began on 1 July 1993 and all later years.
S 23(6B) inserted by No 120 of 1995.
23(7)
Certain contributions made before a quarter may be taken into account in the quarter.
A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as if it had been made during a particular quarter if the contribution is made not more than 12 months before the beginning of the quarter.
History
S 23(7) amended by No 51 of 2002, s 3 and Sch 1 items 108 and 109, by substituting "quarter" for "contribution period commencing after 30 June 1993" and substituting "the quarter" for "the contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(7) amended by No 62 of 1997 and amended by No 120 of 1995.
Sacrificed ordinary time earnings amounts taken into account in a quarter not to be taken into account for any other quarter
23(7A)
For the purposes of the definition of
ordinary time earnings base
in subsection
(2), disregard an amount in a quarter if:
(a)
the amount would be covered by paragraph (a) of that definition for the quarter (about ordinary time earnings of the employee); but
(b)
the amount is taken into account under paragraph (b) of that definition (about sacrificed ordinary time earnings amounts) for any quarter.
Note:
This prevents double counting if a sacrificed ordinary time earnings amount is later paid as ordinary time earnings, instead of being contributed to superannuation.
History
S 23(7A) inserted by No 95 of 2019, s 3 and Sch 7 item 10, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
23(8)
Contributions taken into account for a quarter not to be taken into account for any other quarter.
A contribution to a superannuation fund or an RSA made by an employer for the benefit of an employee that is taken into account under this section in relation to a quarter is not to be taken into account under this section in relation to any other quarter.
History
S 23(8) amended by No 51 of 2002, s 3 and Sch 1 item 110, by substituting "quarter" for "contribution period" (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(8) amended by No 62 of 1997.
23(8AA)
A contribution:
(a)
to a complying superannuation fund or an RSA made by an employer for the benefit of an employee after the end of a quarter; and
(b)
in relation to which the employer's individual superannuation guarantee shortfall for the employee for the quarter is reduced under subsection
19(2F);
is not to be taken into account under this section in relation to any other quarter.
History
S 23(8AA) inserted by No 46 of 2021, s 3 and Sch 1 item 6, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
23(8A)
Contribution made when conversion notice has effect not to be taken into account under this section.
A contribution to a superannuation fund or superannuation scheme made by an employer for the benefit of an employee at a time when a conversion notice has effect in relation to the fund or scheme is not at any time to be taken into account under this section.
History
S 23(8A) amended by No 51 of 2002, s 3 and Sch 1 items 111 and 112, by substituting "superannuation scheme" for "RSA" (first occurring) and substituting "scheme" for "RSA" (second occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(8A) amended by No 62 of 1997 and inserted by No 7 of 1993.
23(9)
(Repealed by No 93 of 2004)
History
S 23(9) repealed by No 93 of 2004, s 3 and Sch 1 item 7, effective 1 July 2008. S 23(9) formerly read:
23(9)
Certain awards, arrangements, laws and schemes taken not to specify requisite contribution as percentage of notional earnings base.
An industrial award, an occupational superannuation arrangement, a law of the Commonwealth, a State or a Territory or a superannuation scheme is to be taken not to specify the requisite employer contribution as a percentage of an employee's notional earnings base if the award, arrangement, law or scheme:
(a)
determines the earnings of the employee by reference to which the requisite employer contribution is to be calculated by specifying an amount of money; and
(b)
makes no provision for adjustment of that amount by reference to changes in the earnings of an employee.
S 23(9) amended by No 51 of 2002, s 3 and Sch 1 item 113, by substituting "a law of the Commonwealth, a State or a Territory" for "a law of a kind referred to in paragraph 13(1)(ab) or 14(1)(ab)", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(9) substituted by No 208 of 1992.
23(9A)
Contributions to estate of deceased employee.
If:
(a)
an employee has died; and
(b)
the employer would, if the employee had not died, have made a contribution to a complying superannuation fund or RSA for the benefit of the employee; and
(c)
the employer pays to the legal personal representative of the employee an amount equal to the amount of the contribution that would have been paid;
the amount paid is taken for the purposes of this section to have been a contribution made by the employer to a complying superannuation fund or RSA for the benefit of the employee.
History
S 23(9A) amended by No 62 of 1997 and inserted by No 56 of 1994.
23(10)
Charge percentage not to be less than 0.
The charge percentage for an employer for a quarter cannot be reduced below 0.
History
S 23(10) amended by No 51 of 2002, s 3 and Sch 1 item 114, by substituting "quarter" for "contribution period", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
23(11)
Reduction of notional earnings base if amount excluded from employee's salary or wages.
If an employee's notional earnings base includes an amount of the employee's salary or wages that, because of section 27 or 28, is not taken into account for the purpose of making a calculation under section 19, the employee's notional earnings base for the purposes of this section is taken to be reduced by that amount.
History
S 23(11) amended by No 51 of 2002, s 3 and Sch 1 item 115, by omitting "18 or" after "calculation under section", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(11) inserted by No 56 of 1994.
Reduction of ordinary time earnings base if amount excluded from employee's salary or wages
23(12)
If:
(a)
because of section
27 or
28, an amount of an employee's salary or wages is not taken into account for the purpose of making a calculation under section
19; and
(b)
a portion of that amount (which could be all of it) is included in the employee's ordinary time earnings base for the quarter in respect of the employer;
for the purposes of this section, the employee's ordinary time earnings base for the quarter in respect of the employer is taken to be reduced by an amount equal to that portion.
History
S 23(12) substituted by No 141 of 2020, s 3 and Sch 4 item 62, effective 18 December 2020. S 23(12) formerly read:
23(12)
If, because of section 27 or 28, an amount of an employee's salary or wages is not taken into account for the purpose of making a calculation under section 19, the employee's ordinary time earnings base for the purposes of this section is taken to be reduced by that amount.
S 23(12) amended by No 95 of 2019, s 3 and Sch 7 items 12 and 13, by inserting "base" and substituting "is" for "are", effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
S 23(12) amended by No 51 of 2002, s 3 and Sch 1 item 115, by omitting "18 or" after "calculation under section", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 23(12) inserted by No 56 of 1994.
23(13)
Subject to subsection
(15), if:
(a)
an employer makes a deposit under the
Small Superannuation Accounts Act 1995 in respect of an employee before 1 July 2006; and
(b)
the deposit form that accompanied the deposit, in so far as the form relates to the deposit, did not contain a declaration that is false or misleading;
this section has effect as if the deposit were a contribution made by the employer for the benefit of the employee to a complying superannuation fund.
History
S 23(13) amended by No 82 of 2005, s 3 and Sch 1 item 4, by inserting "before 1 July 2006" after "in respect of an employee" in para (a), effective 1 July 2005.
S 23(13) inserted by No 53 of 1995.
23(14)
Subsection
(13) has effect despite section
9 of the
Small Superannuation Accounts Act 1995.
History
S 23(14) inserted by No 53 of 1995.
23(15)
If:
(a)
an employer makes a deposit under the
Small Superannuation Accounts Act 1995 in respect of an employee; and
(b)
the employer receives a payment under Part
8 of that Act by way of a refund of the deposit;
this section has effect as if the deposit had never been made.
History
S 23(15) inserted by No 53 of 1995.
23(16)
In subsections
(13) and
(15):
deposit
has the same meaning as in the Small Superannuation Accounts Act 1995.
deposit form
has the same meaning as in the Small Superannuation Accounts Act 1995.
History
S 23(16) inserted by No 53 of 1995.
SECTION 23A
OFFSETTING LATE PAYMENTS AGAINST CHARGE
23A(1)
A contribution (other than a sacrificed contribution) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee is offset under subsection (3) if:
(a)
the contribution is made:
(i)
after the end of the period of 28 days after the end of a quarter; and
(ii)
before the employer's original assessment for that quarter is made; and
(b)
the employer elects, in the approved form, that the contribution be offset.
History
S 23A(1)amended by No 95 of 2019, s 3 and Sch 7 item 14, by inserting "(other than a sacrificed contribution)", effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
S 23A(1) amended by No 14 of 2009, s 3 and Sch 3 item 1, by substituting para (a), applicable to elections under section 23A of the Superannuation Guarantee (Administration) Act 1992 made on or after 26 March 2009. Para (a) formerly read:
(a)
the contribution is made after the end of the period of 28 days after the end of a quarter; and
S 23A(1) amended by No 38 of 2008, s 3 and Sch 2 item 1, by substituting para (a), effective 24 June 2008. For transitional provisions, see note under s 23A(2). Para (a) formerly read:
(a)
the contribution is made:
(i)
after the end of the period of 28 days after the end of a quarter; and
(ii)
before the end of the 28th day of the second month after the end of the quarter; and
23A(2)
The election must be made:
(a)
in a statement having effect under section
35 as the employer's assessment for the quarter; or
(b)
within 4 years after the employer's original assessment for the quarter is made.
The election cannot be revoked.
History
S 23A(2) amended by No 14 of 2009, s 3 and Sch 3 item 2, by substituting "original assessment for the quarter is made" for "superannuation guarantee charge for the quarter became payable" in para (b), applicable to elections under section 23A of the Superannuation Guarantee (Administration) Act 1992 made on or after 26 March 2009.
S 23A(2) substituted by No 38 of 2008, s 3 and Sch 2 item 2, effective 24 June 2008. No 38 of 2008 (as amended by No 56 of 2010, s 3 and Sch 6 item 106), s 3 and Sch 2 items 7A, 8 and 9, contains the following transitional provisions:
7A Application of section 23A of the
Superannuation Guarantee (Administration) Act 1992
as amended
(1)
Section 23A of the Superannuation Guarantee (Administration) Act 1992, as amended by this Schedule, applies to:
(a)
contributions made before, on or after 1 January 2006; and
(b)
elections made on or after 24 June 2008.
Note:
The amendments of that section made by this Schedule commenced on 24 June 2008.
(2)
This item has effect subject to items 8 and 9.
(3)
To avoid doubt, this item:
(a)
has effect despite subitem 10(1) of Schedule 6 to the Tax Laws Amendment (Loss Recoupment Rules and Other Measures) Act 2005; and
(b)
does not affect the application of amendments of section 23A of the Superannuation Guarantee (Administration) Act 1992 commencing after the commencement of the amendments of that section made by this Schedule.
Note:
Subitem 10(1) of Schedule 6 to the Tax Laws Amendment (Loss Recoupment Rules and Other Measures) Act 2005 applied the amendment inserting section 23A in the Superannuation Guarantee (Administration) Act 1992 to contributions made on or after 1 January 2006.
8 Transitional - charge remaining payable at commencement
(1)
If, for the purposes of the Superannuation Guarantee (Administration) Act 1992, superannuation guarantee charge:
(a)
became payable under an assessment before 24 June 2008 (apart from item 7A); and
(b)
was not fully paid before 24 June 2008;this item applies in relation to the employer's liability to pay the proportion of the charge (the
remaining charge
) remaining payable at that commencement.
(2)
After 24 June 2008, subsection 23A(2) applies as if the remaining charge became payable at that commencement.
(3)
If it is proposed to amend the assessment to effect a reduction, as a result of an offset under section 23A of that Act, in the employer's liability to pay the remaining charge, then:
(a)
subsection 37(3) of that Act applies as if the assessment were made at 24 June 2008; and
(b)
paragraph 37(5)(a) of that Act applies as if the remaining charge became payable under the assessment at that commencement.
(4)
If the assessment was of superannuation guarantee charge payable in relation to a year (instead of a quarter), then that Act also applies as if references in that Act to a quarter were references to a year.
9 Transitional - charge for a year that becomes payable after commencement
9
If, for the purposes of the Superannuation Guarantee (Administration) Act 1992, superannuation guarantee charge:
(a)
is payable in relation to a year (instead of a quarter) happening before 24 June 2008 (apart from item 7A); and
(b)
does not become payable until after that commencement;
then that Act applies, in relation to the employer's liability to pay the charge, as if references in that Act to a quarter were references to a year.
S 23A(2) formerly read:
23A(2)
The election must be made within 4 years after the employer's superannuation guarantee charge for the quarter became payable. The election cannot be revoked.
23A(3)
The contribution is offset, at the time the employer's original assessment for the quarter is made, against the employer's liability to pay superannuation guarantee charge to the extent that the liability relates to:
(a)
that part of the employer's nominal interest component for the quarter that relates to the employee; or
(b)
the employer's individual superannuation guarantee shortfall for the employee for the quarter.
History
S 23A(3) amended by No 14 of 2009, s 3 and Sch 3 item 3, by inserting ", at the time the employer's original assessment for the quarter is made," after "The contribution is offset", applicable to elections under section 23A of the Superannuation Guarantee (Administration) Act 1992 made on or after 26 March 2009.
23A(4)
The contribution is offset against that part of the employer's nominal interest component for the quarter that relates to the employee before any remainder is offset against the employer's individual superannuation guarantee shortfall for the employee for the quarter.
23A(4A)
If the election happens after the employer's assessment for the quarter is made, then, for the offset to take effect, the assessment must be amended accordingly under section
37.
History
S 23A(4A) inserted by No 38 of 2008, s 3 and Sch 2 item 3, effective 24 June 2008. For transitional provisions, see note under s 23A(2).
23A(5)
A contribution to a superannuation fund or an RSA made by an employer for the benefit of an employee that is taken into account under this section in relation to a quarter is not to be taken into account:
(a)
under this section in relation to any other quarter; or
(b)
under section
22 or
23.
History
S 23A inserted by No 147 of 2005, s 3 and Sch 6 item 5, applicable to contributions made on or after 1 January 2006.
Former S 23A repealed by No 142 of 2004, s 3 and Sch 1 item 1, applicable to contributions made on or after 1 January 2005. S 23A formerly read:
SECTION 23A EMPLOYER'S REPORTING OBLIGATIONS FOR SUPERANNUATION CONTRIBUTIONS
23A(1)
This section applies if an employer makes a contribution to a superannuation fund or an RSA, for the benefit of an employee, that reduces the rate of the employer's charge percentage under section 23 (other than a contribution that is taken to have been made because of subsection 23(9A)).
Note:
This section does apply to contributions that are taken to have been made because of subsection 23(13).
23A(2)
The employer must give a report to the employee in writing identifying the amount of the contribution and setting out any other information required by the regulations.
23A(3)
The employer must give the report within 30 days of making the contribution.
23A(4)
An employer commits an offence if:
(a)
the employer makes a contribution to an RSA or a superannuation fund for the benefit of an employee; and
(b)
the contribution reduces the rate of the employer's charge percentage under section
23; and
(c)
the employer does not give a report to the employee as required.
Penalty: 30 penalty units.
Note:
False or misleading reports are covered by the offences in sections 137.1 and 137.2 of the Criminal Code.
23A(5)
Strict liability applies to paragraph (4)(b).
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
S 23A inserted by No 51 of 2002. For application and transitional provisions, see note under s 5(3).
SECTION 23B
CONTRIBUTIONS THROUGH AN APPROVED CLEARING HOUSE
23B(1)
For the purposes of a provision covered by subsection (2):
(a)
treat an employer that, at a particular time, pays an amount to an approved clearing house for the benefit of an employee as having made a contribution of the same amount to a complying superannuation fund or an RSA for the benefit of the employee at that time, if the approved clearing house accepts the payment; and
(b)
disregard any contribution that the approved clearing house makes to a complying superannuation fund or an RSA as a result of the payment.
History
S 23B(1) amended by No 95 of 2019, s 3 and Sch 7 items 15 and 16, by inserting "(1)" and substituting "a provision covered by subsection (2)" for "sections 23 and 23A", effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
23B(2)
The provisions are as follows:
(a)
section
15A (which deals with salary sacrifice arrangements);
(b)
section
23 (which deals with reduction of charge percentage);
(c)
section
23A (which deals with offsetting late payments against an employer's liability to pay superannuation guarantee charge).
History
S 23B(2) inserted by No 95 of 2019, s 3 and Sch 7 item 17, effective 29 October 2019 and applicable in relation to working out an employer's superannuation guarantee shortfall for quarters beginning on or after 1 January 2020.
History
S 23B inserted by No 56 of 2010, s 3 and Sch 1 item 3, applicable to a payment made to an approved clearing house on or after 1 July 2010.
SECTION 24
CERTAIN BENEFIT CERTIFICATES PRESUMED TO BE CERTIFICATES IN RELATION TO COMPLYING SUPERANNUATION SCHEME
24(1)
[Trustee's statement that scheme operated in accordance with fund conditions]
Subject to subsection (4), a benefit certificate that has effect in relation to a superannuation scheme (being a scheme to which an employer has contributed for the benefit of an employee) for the whole or a part of a quarter is, for the purposes of section 22, conclusively presumed, in relation to the employer, to be a certificate that has effect in relation to a complying superannuation scheme for the whole, or that part, as the case may be, of the quarter if:
(a)
within 30 days of the starting day in relation to that certificate, the employer obtains a written statement, provided by or on behalf of the trustee of the scheme, that the scheme:
(i)
is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and
(ii)
is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993; and
(iii)
has not been subject to such a direction at any time since the beginning of the day on which the benefit certificate is expressed to take effect; or
(b)
in an earlier quarter, the employer has obtained a statement of the kind referred to in paragraph (a).
History
S 24(1) amended by No 51 of 2002, s 3 and Sch 1 items 117 to 119, by substituting "a quarter" for "a contribution period", substituting "the quarter" for "the contribution period" and substituting "earlier quarter" for "earlier contribution period" in para (b), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 24(1) amended by No 181 of 1994, No 82 of 1993 and No 208 of 1992.
24(2)
[Trustee's statement obtained after 30 days of commencement of period]
Subject to subsection (4), a benefit certificate that has effect in relation to a superannuation scheme (being a scheme to which an employer has contributed for the benefit of an employee) for the whole or a part of a quarter is, if the employer obtains a statement of the kind referred to in paragraph (1)(a):
(a)
within the quarter; but
(b)
later than 30 days after the starting day in relation to that certificate;
for the purposes of section 22, conclusively presumed, in relation to the employer, to be a certificate that has effect in relation to a complying superannuation scheme for the period commencing on the day on which the employer obtains the statement and ending on the last day of the quarter.
History
S 24(2) amended by No 51 of 2002, s 3 and Sch 1 items 120 to 122, by substituting "a quarter" for "a contribution period", substituting "the quarter" for "the contribution period" in para (a) and substituting "the quarter" for the "the contribution period" (last occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 24(2) amended by No 82 of 1993 and No 208 of 1992.
24(3)
(Omitted by No 82 of 1993)
24(4)
[No presumption if employer has grounds to believe that scheme in breach of conditions]
A presumption relating to a benefit certificate under subsection (1) or (2) is not, in relation to an employer and a superannuation scheme, effective in respect of any period for which the scheme is not a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section 38A of that Act if, in that period:
(a)
the employer:
(i)
is the trustee or manager of the scheme; or
(ii)
has an association, within the meaning of section 318 of the Income Tax Assessment Act 1936, with the trustee or the manager of the scheme; and
(b)
the employer has reasonable grounds for believing that the scheme is not a resident regulated superannuation fund within the meaning of the
Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section
38A of that Act.
History
S 24(4) amended by No 101 of 2006, s 3 and Sch 2 item 926, by amending the reference to a repealed inoperative provision in para (a)(ii), effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
S 24(4) amended by No 123 of 2001, s 3 and Sch 1 item 280, by substituting "in contravention of a regulatory provision, as defined in section 38A of that Act" for "while in breach of that Act or regulations under that Act", effective 11 March 2002.
S 24(4) amended by No 181 of 1994; No 82 of 1993.
24(4A)
[Application of s 39 of SIS Act]
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subsection (4) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 5 of that Act.
History
S 24(4A) inserted by No 82 of 1993.
24(5)
["starting day"]
In this section:
starting day
means:
(a)
in relation to a benefit certificate that has effect in relation to a superannuation scheme for the whole of a quarter - the first day of the quarter; or
(b)
in relation to a benefit certificate that has effect in relation to a superannuation scheme for a part of a quarter - the first day in the quarter for which the benefit certificate has effect.
History
Definition of "starting day" substituted by No 51 of 2002, s 3 and Sch 1 item 123, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition formerly read:
'starting day'
means:
(a)
in relation to a benefit certificate that has effect in relation to a superannuation scheme for the whole of a contribution period:
(i)
the day on which the contribution period commenced; or
(ii)
if the contribution period commenced on 1 July 1992 - the day on which the Taxation Laws Amendment (Superannuation) Act 1992 received the Royal Assent; and
(b)
in relation to a benefit certificate that has effect in relation to a superannuation scheme for a part of a contribution period:
(i)
the day on which the part of the contribution period commenced; or
(ii)
if the contribution period commenced on 1 July 1992 - the day on which the part of the contribution period commenced or the day on which the Taxation Laws Amendment (Superannuation) Act 1992 received the Royal Assent, whichever is the later.
S 24(5) inserted by No 208 of 1992.
SECTION 25
CERTAIN CONTRIBUTIONS PRESUMED TO BE CONTRIBUTIONS TO COMPLYING SUPERANNUATION FUND
25(1)
[Where conclusive presumption applies]
Subject to subsection (2), a contribution by an employer for the benefit of an employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of section 23 if, at or before the time the contribution is made, the employer has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:
(a)
is a resident regulated superannuation fund within the meaning of the
Superannuation Industry (Supervision) Act 1993; and
(b)
is not subject to a direction under section 63 of that Act.
History
S 25(1) amended by No 181 of 1994; No 82 of 1993.
25(2)
[Presumption not applicable]
Subsection (1) does not apply to a contribution to a superannuation fund if, at the time the contribution is made:
(a)
the employer:
(i)
is the trustee or the manager of the fund; or
(ii)
has an association, within the meaning of section 318 of the Income Tax Assessment Act 1936, with the trustee or the manager of the fund; and
(b)
the employer has reasonable grounds for believing that the fund is not a resident regulated superannuation fund within the meaning of the
Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section
38A of that Act.
History
S 25(2) amended by No 101 of 2006, s 3 and Sch 2 item 927, by amending the reference to a repealed inoperative provision in para (a)(ii), effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
S 25(2) amended by No 123 of 2001, s 3 and Sch 1 item 281, by substituting ``in contravention of a regulatory provision, as defined in section 38A of that Act'' for ``while in breach of that Act or regulations under that Act'' in para (b), effective 11 March 2002.
S 25(2) amended by No 181 of 1994; No 82 of 1993.
25(3)
[Application of s 39 of SIS Act]
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subsection (2) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 5 of that Act.
History
S 25(3) inserted by No 82 of 1993.
25A
(Repealed) SECTION 25A CERTAIN CONTRIBUTIONS TAKEN TO BE IN ACCORDANCE WITH INDUSTRIAL AWARD THAT SPECIFIES NOTIONAL EARNINGS BASE
(Repealed by No 169 of 1995)
History
S 25A inserted by No 208 of 1992.
SECTION 26
CERTAIN PERIODS NOT TO COUNT AS PERIODS OF EMPLOYMENT
26(1)
Any period in respect of which the only salary or wages paid by an employer to an employee are excluded salary or wages is not, for the purposes of section
22 or
23, to be taken into account as a period for which the employee is employed by the employer.
History
S 26(1) amended by No 141 of 2020, s 3 and Sch 4 item 63, by substituting "the only salary or wages paid by an employer to an employee are excluded salary or wages" for "excluded salary or wages are paid by an employer to an employee", effective 18 December 2020.
26(2)
For the purposes of subsection (1), excluded salary or wages are salary or wages that, under section
27 or
28, are not to be taken into account for the purpose of making a calculation under section
19.
History
S 26(2) amended by No 51 of 2002, s 3 and Sch 1 item 124, by omitting "18 or" after "calculation under section", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 27
27
SALARY OR WAGES: GENERAL EXCLUSIONS
The following salary or wages are not to be taken into account for the purpose of making a calculation under section
19:
(a)
(Repealed by No 22 of 2012)
(b)
salary or wages paid to an employee who is not a resident of Australia for work done outside Australia (except to the extent that the salary or wages relate to employment covered by a certificate under section
15C);
(c)
salary or wages paid by an employer who is not a resident of Australia to an employee who is a resident of Australia for work done outside Australia;
(ca)
salary or wages paid by an employer to an employee who is not a resident of Australia for work done in the Joint Petroleum Development Area (within the meaning of the
Petroleum (Timor Sea Treaty) Act 2003);
(d)
salary or wages paid to an employee who is a prescribed employee for the purposes of this paragraph;
(e)
salary or wages prescribed for the purposes of this paragraph.
History
S 27(1) amended by No 53 of 2015, s 3 and Sch 2 item 1, by substituting para (b) and (c), effective 1 July 2016.No 53 of 2015, s 3 and Sch 2 item 2 contains the following application and transitional provision:
2 Application and transitional
(1)
The amendments made by this Part apply in relation to quarters starting on or after 1 July 2016.
(2)
However, for the purpose of making the calculation of an employer's individual superannuation guarantee shortfall for an employee for a quarter under section 19 of the Superannuation Guarantee (Administration) Act 1992, if:
(a)
some or all of the salary or wages paid by the employer to the employee for the quarter consists of Norfolk Island salary or wages; and
(b)
the quarter occurs in a financial year starting on or after 1 July 2016, and ending before 1 July 2027;
the total salary and wages paid by the employer to the employee for the quarter is taken to be reduced by an amount worked out using the formula:
| Total Norfolk Island salary or wages paid by the employer to the employee for the quarter |
× |
Charge percentage − Norfolk
Island charge percentage
Charge percentage |
where:
charge percentage
is the charge percentage for the employer for the quarter, as specified in subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992.
Norfolk Island charge percentage
is:
(a)
if the quarter occurs in the financial year starting on 1 July 2016 - 1; or
(b)
if the quarter occurs in a later financial year - the number worked out by increasing by 1 the Norfolk Island charge percentage for a quarter that occurred in the financial year preceding that later financial year.
Example:
If the quarter occurs in the 2018-19 financial year, the Norfolk Island charge percentage will be 3, because in the quarters of the 2017-18 financial year it will have been 2 (having increased by 1 from the 2016-17 financial year).
(3)
In this item:
Norfolk Island salary or wages
means salary or wages that, if the amendments made by this Part had not been made, would, because of subparagraph 27(1)(b)(ii) or (c)(ii) of the Superannuation Guarantee (Administration) Act 1992, not have been taken into account for the purpose of making a calculation under section 19 of that Act.
Para (b) and (c) formerly read:
(b)
salary or wages paid to an employee:
(i)
who is not a resident of Australia for work done outside Australia (except to the extent that the salary or wages relate to employment covered by a certificate under section 15C); or
(ii)
who is a resident of Norfolk Island for work done in Norfolk Island or outside Australia;
(c)
salary or wages paid by an employer:
(i)
who is not a resident of Australia to an employee who is a resident of Australia for work done outside Australia; or
(ii)
who is a resident of Norfolk Island to an employee who is a resident of Australia for work done in Norfolk Island;
S 27(1) amended by No 2 of 2015, s 3 and Sch 4 item 74, by substituting para (b) and (c), applicable to a quarter that commences on or after 1 July 2015. Para (b) and (c) formerly read:
(b)
salary or wages paid to an employee who is not a resident of Australia for work done outside Australia (except to the extent that the salary or wages relate to employment covered by a certificate under section 15C);
(c)
salary or wages paid by an employer who is not a resident of Australia to an employee who is a resident of Australia for work done outside Australia;
S 27(1) amended by No 22 of 2012, s 3 and Sch 1 item 4, by repealing para (a), applicable for the purpose of calculations under section 19 of the Superannuation Guarantee (Administration) Act 1992 for quarters starting on and after 1 July 2013. Para (a) formerly read:
(a)
salary or wages paid to an employee who is 70 or over;
S 27(1) amended by No 15 of 2007, s 3 and Sch 3 item 53, by inserting "(except to the extent that the salary or wages relate to employment covered by a certificate under section 15C)" after "Australia" in para (b), applicable to the 2007/08 income year and later years.
S 27(1)(ca) inserted by No 10 of 2003, s 3 and Sch 1 item 77, effective 2 April 2003.
S 27(1) amended by No 51 of 2002, s 3 and Sch 1 item 125, by omitting "18 or" after "calculation under section", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 27(1) amended by No 147 of 1997 and No 208 of 1992.
[
CCH Note:
S 27(2) was repealed by No 10 of 2022, s 3 and Sch 1 item 1. This amendment has been editorially changed to omit "(1)" from section 27, in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003. S 27(2) formerly read:
27(2)
If:
(a)
an employer pays an employee salary or wages in a calendar month; and
(b)
the portion of those salary or wages that is not covered by subsection (1) is less than $450;
that portion of those salary or wages is not to be taken into account for the purpose of making a calculation, in relation to the employer and the employee, under section 19.
]
History
S 27(2) substituted by No 141 of 2020, s 3 and Sch 4 item 64, effective 18 December 2020. S 27(2) formerly read:
27(2)
If an employer pays an employee less than $450 by way of salary or wages in a calendar month, the salary or wages so paid are not to be taken into account for the purpose of making a calculation, in relation to the employer and the employee, under section 19.
S 27(2) amended by No 46 of 2011, s 3 and Sch 2 item 1090, by substituting "calendar month" for "month", effective 27 December 2011. No 46 of 2011, s 3 and Sch 3 items 10 and 11 contain the following saving and transitional provisions:
10 Saving - appointments
10
The amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.
11 Transitional regulations
11
The Governor-General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments and repeals made by Schedules 1 and 2.
S 27(2) amended by No 51 of 2002, s 3 and Sch 1 item 127, by omitting "18 or" after "employee, under section", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 27(2) substituted by No 208 of 1992.
SECTION 28
28
SALARY OR WAGES: EXCLUDED EARNINGS OF YOUNG PERSONS
Salary or wages paid to a part-time employee who is under 18 are not to be taken into account for the purpose of making a calculation under section
19.
History
S 28 amended by No 51 of 2002, s 3 and Sch 1 item 128, by substituting ``section 19'' for ``section 18 or 19'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 29
29
SALARY OR WAGES: EXCLUDED EARNINGS OF MEMBERS OF RESERVES
If an employee receives income that is exempt from income tax under item 1.4 of the table in section
51-5 of the
Income Tax Assessment Act 1997, that income is not to be taken into account for the purposes of this Act.
History
S 29 amended by No 101 of 2006, s 3 and Sch 2 item 928, by omitting the reference to a repealed inoperative provision, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
S 29 amended by No 121 of 1997.
SECTION 30
30
ARRANGEMENTS TO AVOID PAYMENT OF SUPERANNUATION GUARANTEE CHARGE
If:
(a)
an employer makes an arrangement; and
(b)
as a result of the arrangement the employer's superannuation guarantee shortfall for a quarter is reduced; and
(c)
in the Commissioner's opinion the arrangement was made solely or principally for the purpose of avoiding payment of superannuation guarantee charge otherwise than in accordance with this Act;
the employer is liable to pay for the quarter an amount of superannuation guarantee charge equal to the amount that, in the Commissioner's opinion, the employer would have been liable to pay if the arrangement had not been made.
History
S 30 amended by No 51 of 2002, s 3 and Sch 1 items 129 and 130, by substituting ``for a quarter'' for ``in a year'' in para (b) and substituting ``for the quarter'' for ``for the year'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 31
31
NOMINAL INTEREST COMPONENT
The nominal interest component in relation to an employer for a quarter is the amount that would accrue by way of interest on the total of the employer's individual superannuation guarantee shortfalls for the quarter if interest were calculated at the rate applicable under the regulations for the purposes of this subsection from the beginning of the quarter in question until the date on which superannuation guarantee charge in relation to the total would be payable under this Act.
History
S 31 amended by No 58 of 2006, s 3 and Sch 7 items 129 and 130, by substituting "this Act" for "section 46", effective 22 June 2006.
S 31 amended by No 51 of 2002, s 3 and Sch 1 item 131, by substituting ``quarter'' for ``year'' (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 31(1) amended by No 181 of 1994.
S 31(2) omitted by No 181 of 1994
SECTION 32
ADMINISTRATION COMPONENT
32(1)
An employer's administration component for a quarter is the amount worked out using the formula:
|
Base amount + [N × Per capita amount]
|
where:
base amount
is the amount (if any) prescribed in the regulations.
N
is the number of employees in respect of whom the employer has an individual superannuation guarantee shortfall for the quarter.
Per capita amount
is $20 or such other amount as is from time to time prescribed.
History
S 32 amended by No 21 of 2020, s 3 and Sch 1 item 10, by inserting "(1)" before "An", effective 24 May 2018.
32(2)
If:
(a)
under section
74, the employer qualifies for an amnesty in relation to part of the employer's superannuation guarantee shortfall for the quarter; and
(b)
that shortfall includes one or more individual superannuation guarantee shortfalls for employees (
newly included employees
) for the quarter that would not have been so included if the information in the disclosure that gave rise to the amnesty were not taken into account; and
(c)
any assessment of the employer's superannuation guarantee shortfall for the quarter that was made before the employer qualified for the amnesty did not take into account an individual superannuation guarantee shortfall for newly included employees for the quarter;
in working out under subsection (1) the employer's administration component for the quarter, the employer is taken not to have an individual superannuation guarantee shortfall for any of the newly included employees for the quarter.
History
S 32(2) inserted by No 21 of 2020, s 3 and Sch 1 item 11, effective 24 May 2018.
32(3)
Despite subsection (1), an employer's administration component for a quarter is nil if:
(a)
under section
74, the employer qualifies for an amnesty in relation to the whole of the employer's superannuation guarantee shortfall for the quarter; and
(b)
an assessment of the employer's superannuation guarantee shortfall for the quarter has not been made (or taken to have been made) under Part
4 before the employer qualified for the amnesty.
History
S 32(3) inserted by No 21 of 2020, s 3 and Sch 1 item 11, effective 24 May 2018.
History
S 32 amended by No 51 of 2002, s 3 and Sch 1 items 132 to 135, by substituting "a quarter" for "a year", substituting the definition of "base amount", substituting "for the quarter" for "for the year" in the definition of "N" and substituting "$20" for "$30" in the definition of "Per capita amount", effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The definition of "base amount" formerly read:
'Base amount' is $50 or such other amount as is from time to time prescribed;
PART 3A - CHOICE OF FUND REQUIREMENTS
Division 1 - Overview of Part
SECTION 32A
32A
PURPOSE OF PART
This Part sets out the circumstances in which contributions are made in compliance with the choice of fund requirements. This is important because an employer's individual superannuation guarantee shortfall for an employee for a quarter may be increased where contributions do not comply.
History
S 32A inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32B
32B
STRUCTURE OF PART
The structure of this Part is as follows:
|
Structure of Part
|
|
Division
|
Topic
|
| Division 1 |
Overview of Part |
| . |
| Division 2 |
Which contributions satisfy the choice of fund requirements? |
| . |
| Division 3 |
Eligible choice funds |
| . |
| Division 4 |
Choosing a fund |
| . |
| Division 6 |
Standard choice forms |
| . |
| Division 7 |
Stapled funds |
| . |
| Division 8 |
Miscellaneous |
History
S 32B amended by No 46 of 2021, s 3 and Sch 1 item 7, by inserting table item dealing with Division 7, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
S 32B inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
Division 2 - Which contributions satisfy the choice of fund requirements?
SECTION 32C
CONTRIBUTIONS THAT SATISFY THE CHOICE OF FUND REQUIREMENTS
Contributions to certain funds
32C(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
32C(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.
History
S 32C(1A) inserted by No 46 of 2021, s 3 and Sch 1 item 8, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
Contributions to certain eligible choice funds
32C(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
(iii)
(Repealed by No 46 of 2021)
(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.
History
S 32C(2) amended by No 46 of 2021, s 3 and Sch 1 items 10-12, by inserting para (aa), substituting "fund; and" for "fund; or" in para (ba)(ii) and repealing para (ba)(iii), effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. Para (ba)(iii) formerly read:
(iii)
meets the requirements to be a successor default fund under subsection (2AB) of this section; and
S 32C(2) amended by No 71 of 2015, s 3 and Sch 2 items 1-3, by omitting "either" after "the fund" from para (ba), substituting "or" for "and" (last occurring) in para (ba)(ii) and inserting para (ba)(iii), applicable in relation to transfers of interests in superannuation funds that occur on or after 1 July 2015.
S 32C(2) amended by No 171 of 2012, s 3 and Sch 2 item 1, by substituting para (d) and (e) for para (d), effective 1 January 2014. Para (d) formerly read:
(d)
the fund complies with the requirements (if any) set out in the regulations in relation to offering insurance in respect of death.
S 32C(2) amended by No 162 of 2012, s 3 and Sch 1 item 1, by substituting para (c) and (d) for para (c), effective 1 January 2014. Para (c) formerly read:
(c)
the fund complies with the requirements (if any) set out in the regulations in relation to offering insurance in respect of death.
S 32C(2) amended by No 82 of 2005, s 3 and Sch 1 item 5, by inserting para (ba), effective 1 July 2005.
32C(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.
32C(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.
History
S 32C(2AA) inserted by No 71 of 2015, s 3 and Sch 1 item 1, effective 1 July 2015. No 71 of 2015, s 3 and Sch 1 item 3 contains the following application provision:
3 Application of amendments
If:
(a)
an employee commences employment before the commencement of this Schedule; but
(b)
the 28 day period referred to in subsection 32N(2) of the Superannuation Guarantee (Administration) Act 1992 ends after that commencement;
the amendments made by this Schedule are taken to have applied, in relation to that employee, from the commencement of that employment.
Contributions to certain successor funds
32C(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.
History
S 32C(2AB) substituted by No 46 of 2021, s 3 and Sch 1 item 13, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. S 32C(2AB) formerly read:
Contributions to other funds
32C(2AB)
For the purposes of subparagraph (2)(ba)(iii), a fund (the
new fund
) meets the requirements to be a successor default fund if:
(a)
the employee's interest in a fund (the
original fund
) is transferred to the new fund without the consent of the member; and
(b)
the original fund is 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; and
(c)
the new fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer.
S 32C(2AB) inserted by No 71 of 2015, s 3 and Sch 2 item 4, applicable in relation to transfers of interests in superannuation funds that occur on or after 1 July 2015.
Contributions through an approved clearing house
32C(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.
History
S 32C(2B) amended by No 55 of 2016, s 3 and Sch 23 items 25-27, by substituting "or the Commissioner gives the employer notice" for "gives the employer written notice" in para (b), "included in the notice" for "that the employee included in the written notice" in para (c) and substituting para (c)(i), applicable in relation to notices given on or after 1 January 2017. Para (c)(i) formerly read:
(i)
within 21 days after the employee gives the notice to the employer; and
S 32C(2B) inserted by No 56 of 2010, s 3 and Sch 1 item 4, applicable to a payment made to an approved clearing house on or after 1 July 2010.
Contributions to the CSS
32C(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
32C(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.
32C(4A)
(Repealed by No 21 of 2015)
History
S 32C(4A) repealed by No 21 of 2015, s 3 and Sch 7 item 28, effective 20 March 2015. S 32C(4A) formerly read:
32C(4A)
Contributions to PSSAP.
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 PSSAP. This subsection ceases to have effect on 1 July 2006.
S 32C(4A) inserted by No 81 of 2005, s 3 and Sch 2 item 2, effective 1 July 2005.
Contributions under the
Superannuation (Productivity Benefit) Act 1988
32C(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
32C(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.
History
S 32C(6) amended by No 46 of 2021, s 3 and Sch 1 items 14 and 15, by inserting "if subsection (6AAA) applies-" in para (g) and (h), effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
S 32C(6) amended by No 80 of 2020, s 3 and Sch 1 items 5 and 6, by inserting "made before 1 January 2021" in para (g) and (h), effective 4 September 2020.
S 32C(6) amended by No 171 of 2012, s 3 and Sch 4 item 10, by inserting para (i) and (j), effective 1 January 2014.
S 32C(6) amended by No 54 of 2009, s 3 and Sch 18 items 18 and 19, by substituting "agreements and workplace determinations" for "workplace agreements" in the heading, inserting paras (g) and (h) and substituting "Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009" for "Workplace Relations Act 1996" in the note, effective 1 July 2009.
S 32C(6) amended by No 8 of 2008, s 3 and Sch 1 item 286, by inserting para (f), effective 28 March 2008.
S 32C(6), (6A) and (6B) substituted for s 32C(6), by SLI No 50 of 2006, reg 3 and Sch 17 item 6, effective 27 March 2006. S 32C(6) formerly read:
32C(6)
Contributions under AWAs or certified agreements.
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 is made under, or in accordance with, an AWA or a certified agreement under the Workplace Relations Act 1996 or a certified agreement under the Industrial Relations Act 1988.
32C(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.
History
S 32C(6AAA) inserted by No 46 of 2021, s 3 and Sch 1 item 16, effective 23 June 2021.
Contributions previously covered by paragraphs (6)(g) and (h)
32C(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.
History
S 32C(6AA) inserted by No 80 of 2020, s 3 and Sch 1 item 7, effective 4 September 2020.
Contributions under notional agreements preserving State awards
32C(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.
History
S 32C(6A) amended by No 54 of 2009, s 3 and Sch 18 item 20, by substituting "Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009" for "Workplace Relations Act 1996" in the note, effective 1 July 2009.
S 32C(6), (6A) and (6B) substituted for s 32C(6), by SLI No 50 of 2006, reg 3 and Sch 17 item 6, effective 27 March 2006.
Contributions under preserved State agreements
32C(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.
History
S 32C(6B) amended by No 54 of 2009, s 3 and Sch 18 item 21, by substituting "Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009" for "Workplace Relations Act 1996" in the note, effective 1 July 2009.
S 32C(6), (6A) and (6B) substituted for s 32C(6), by SLI No 50 of 2006, reg 3 and Sch 17 item 6, effective 27 March 2006.
Contributions under Division 2B State instruments
32C(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.
History
S 32C(7) inserted by No 124 of 2009, s 3 and Sch 2 item 136, effective 1 January 2010.
Former s 32C(7) repealed by No 54 of 2009, s 3 and Sch 18 item 22, effective 1 July 2009. S 32C(7) formerly read:
32C(7)
Contributions under certain Victorian agreements.
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 is made under, or in accordance with, an employment agreement that was in force under the
Employee Relations Act 1992
of Victoria and which continues to be in operation by virtue of section 890 of the Workplace Relations Act 1996.
S 32C(7) amended by SLI No 50 of 2006, reg 3 and Sch 17 item 7, by substituting "890" for "515", effective 27 March 2006.
Contributions under State awards
32C(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
32C(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
32C(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).
History
S 32C inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32CA
32CA
CERTAIN CONTRIBUTIONS TAKEN NOT TO SATISFY THE CHOICE OF FUND REQUIREMENTS
Despite section
32C, a contribution to a fund by an employer for the benefit of an employee is taken not to comply with the choice of fund requirements if the employer imposes a direct cost or charge on the employee as a consequence of having to contribute to that fund.
History
S 32CA inserted by No 82 of 2005, s 3 and Sch 1 item 6, effective 1 July 2005.
Division 3 - Eligible choice funds
SECTION 32D
32D
WHAT FUNDS ARE ELIGIBLE CHOICE FUNDS?
A fund is an eligible choice fund for an employer at a particular time if:
(a)
it is a complying superannuation fund at that time; or
(b)
it is a complying superannuation scheme at that time; or
(c)
it is an RSA; or
(ca)
if the time is a time before 1 July 2006 - it is the account that is continued in existence under section
8 of the
Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account; or
(d)
at that time, a benefit certificate in relation to the fund is conclusively presumed under section 24, in relation to the employer, to be a certificate in relation to a complying superannuation scheme; or
(e)
contributions made by the employer to the fund at that time are conclusively presumed under section
25 to be contributions to a complying superannuation fund.
History
S 32D amended by No 82 of 2005, s 3 and Sch 1 item 7, by inserting para (ca), effective 1 July 2005.
S 32D inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32E
MEANING OF
FUNDS
-
INCLUDES RSAs AND SCHEMES
32E(1)
[
Fund
]
In this Part:
fund
means:
(a)
a superannuation fund; and
(b)
a superannuation scheme; and
(c)
an RSA;
and, until immediately before 1 July 2006, includes the account that is continued in existence under section 8 of the Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account.
History
S 32E(1) amended by No 82 of 2005, s 3 and Sch 1 item 8, by substituting the definition of ``fund'', effective 1 July 2005. The definition formerly read:
fund
means:
(a)
a superannuation fund; and
(b)
a superannuation scheme; and
(c)
an RSA.
32E(2)
[RSAs]
For the purposes of this Part, the holder of an RSA is taken to be a member.
History
S 32E inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
Division 4 - Choosing a fund
SECTION 32F
WHAT IS A CHOSEN FUND
32F(1)
If an employee wants a fund to be a chosen fund for the employee, the employee must:
(a)
give the employer written notice to that effect; or
(b)
give the Commissioner a notice to that effect in the approved form.
Note:
A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection 32G(2)).
History
S 32F(1) substituted by No 55 of 2016, s 3 and Sch 23 item 28, applicable in relation to notices given on or after 1 January 2017. S 32F(1) formerly read:
32F(1)
If an employee wants a fund to be a chosen fund for the employee, the employee must give the employer written notice to that effect.
Note:
A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection 32G(2)).
32F(1A)
If:
(a)
an employer has offered an employee a choice of fund before 1 July 2005; and
(b)
the employee has chosen a fund in accordance with the choice of funds that is offered; and
(c)
the limitations on that choice are consistent with section
32G or, if the choice was made before the commencement of that section, would have been consistent with section
32G if the section had been in force at the time the choice was made;
then, for the purposes of this Part, any fund chosen by the employee is taken to be the chosen fund for the employee with effect from:
(d)
1 July 2005; or
(e)
a date that is 2 months after the fund is so chosen (unless the employer determines an earlier time after 1 July 2005 but within that 2 months);
whichever last occurs.
History
S 32F(1A) inserted by No 82 of 2005, s 3 and Sch 1 item 9, effective 1 July 2005.
32F(2)
The fund becomes a chosen fund for the employee 2 months after the employee or the Commissioner gives the notice to the employer, or at such earlier time after the notice is given as the employer determines.
History
S 32F(2) amended by No 55 of 2016, s 3 and Sch 23 item 29, by substituting "or the Commissioner gives the notice to the employer," for "gives the notice to the employer", applicable in relation to notices given on or after 1 January 2017.
32F(3)
A fund (the
selected fund
) cannot become a chosen fund for an employee under this section if:
(a)
immediately before the employee gave the notice to the employer or the Commissioner, the employee was a defined benefit member of a defined benefit superannuation scheme; and
(b)
even if the selected fund were to become a chosen fund for the employee, the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme as the employee would be entitled if the selected fund were not a chosen fund for the employee.
History
S 32F(3) amended by No 55 of 2016, s 3 and Sch 23 item 30, by inserting "or the Commissioner" in para (a), applicable in relation to notices given on or after 1 January 2017.
History
S 32F inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32FA
EMPLOYER MAY REFUSE TO ACCEPT CERTAIN CHOSEN FUNDS
32FA(1)
An employer may refuse to accept the fund chosen by an employee under section
32F and notified under paragraph
32F(1)(a) if the employee does not provide, together with the notice:
(a)
a written statement setting out:
(i)
contact details for the fund; and
(ii)
any other prescribed information; and
(b)
written evidence that the fund will accept contributions made by the employer for the benefit of the employee.
History
S 32FA(1) amended by No 55 of 2016, s 3 and Sch 23 item 31, by substituting "and notified under paragraph 32F(1)(a) if the employee does not provide, together with the notice" for "if the employee does not provide, together with the notice under that section", applicable in relation to notices given on or after 1 January 2017.
32FA(2)
An employer may refuse to accept the fund chosen by an employee under section
32F if the employee has chosen another fund within the previous 12 months.
History
S 32FA inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32G
LIMIT ON FUNDS THAT MAY BE CHOSEN
32G(1)
[Fund must be eligible]
The fund chosen by the employee must be an eligible choice fund for the employer at the time that the choice is made.
32G(2)
[Contributions must be possible]
The fund chosen by the employee must be a fund to which the employer can make contributions for the benefit of the employee at the time that the choice is made.
History
S 32G inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32H
WHEN FUND CEASES TO BE A CHOSEN FUND
32H(1)
A fund (the
old fund
) ceases to be a chosen fund for an employee if:
(a)
there is another fund that is a chosen fund for the employee; and
(b)
neither the employee nor the Commissioner has given the employer a written notice stating that the old fund continues to be a chosen fund for the employee.
History
S 32H(1) amended by No 55 of 2016, s 3 and Sch 23 item 32, by substituting "neither the employee nor the Commissioner has given" for "the employee has not given" in para (b), applicable in relation to notices given on or after 1 January 2017.
32H(1A)
The employee may give the employer a written notice, or give the Commissioner a notice in the approved form, stating that the old fund continues to be a chosen fund for the employee.
History
S 32H(1A) inserted by No 55 of 2016, s 3 and Sch 23 item 33, applicable in relation to notices given on or after 1 January 2017.
32H(2)
A fund also ceases to be a chosen fund if the employee requests the employer, under subsection
32N(3), to give him or her a standard choice form and the employer does not do this by the time specified in that subsection.
32H(3)
A fund also ceases to be a chosen fund if it is impossible for the employer to contribute on behalf of the employee to the chosen fund. This may occur immediately after the fund becomes a chosen fund for the employee.
Example:
The chosen fund is closed to new members or ceases to accept further contributions.
32H(4)
A fund also ceases to be a chosen fund if the fund ceases to be an eligible choice fund for the employer. This may occur immediately after the fund becomes a chosen fund for the employee.
History
S 32H inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32J
32J
A SUCCESSOR FUND MAY BECOME A CHOSEN FUND
For the purposes of this Act, if:
(a)
an employee's interest in a superannuation fund (the
original fund
) is transferred to another superannuation fund without the consent of the member; and
(b)
the other fund is a successor fund (within the meaning of the
Income Tax Assessment Act 1997) in relation to the transfer; and
(c)
immediately before the transfer takes effect, the original fund was a chosen fund for the employee; and
(d)
at the time the transfer takes effect, the other fund:
(i)
is an eligible choice fund; and
(ii)
is a fund to which the employer can make contributions for the benefit of the employee;
from the time the transfer takes effect, the other fund is taken to be a chosen fund for the employee, and the original fund is taken no longer to be a chosen fund for the employee.
History
S 32J inserted by No 71 of 2015, s 3 and Sch 2 item 5, applicable in relation to transfers of interests in superannuation funds that occur on or after 1 July 2015.
Division 6 - Standard choice forms
SECTION 32N
WHEN A STANDARD CHOICE FORM MUST BE PROVIDED
32N(1)
[Employee on 1 July 2005]
An employer must give a standard choice form before 29 July 2005 to each employee employed by the employer on 1 July 2005.
Note:
An employer does not have to provide a standard choice form to an existing employee except in the specific circumstances outlined in this section. See also the further exceptions in section 32NA.
History
S 32N(1) amended by SLI No 50 of 2006, reg 3 and Sch 17 item 8, by inserting the note at the end, effective 27 March 2006.
32N(2)
[Commencement of employment]
An employer must give a standard choice form to an employee within 28 days of the employee first commencing employment with the employer.
32N(3)
[Employee request for form]
An employer must also give a standard choice form to an employee within 28 days of the employee giving the employer a written request to do so. However, a request is taken never to have been made if the employee has been given a standard choice form within the previous 12 months.
32N(4)
[Cessation of available fund]
An employer must also give a standard choice form to an employee within 28 days of the employer becoming aware that there ceased to be any chosen fund for the employee because of:
(a)
subsection 32H(3) (employer unable to contribute to fund); or
(b)
subsection 32H(4) (fund ceasing to be eligible choice fund).
32N(5)
[Employer changes fund]
An employer must also give a standard choice form to an employee if:
(a)
the employer is making contributions, in accordance with subsection 32C(2), to a fund for the benefit of the employee; and
(b)
the employer changes the fund to which the employer makes contributions, in accordance with that subsection, for the benefit of the employee.
The standard choice form must be given within 28 days after the change.
32N(5A)
[Employer cannot contribute to fund]
An employer must also give a standard choice form (the
updated standard choice form
) to an employee if:
(a)
the employer has specified a fund (the
employer fund
) in a standard choice form as the fund to which the employer will contribute under subsection
32C(2) in the event of the employee failing to make a choice of fund; and
(b)
the employer discovers, after giving an employee the standard choice form, that the employer cannot contribute to the employer fund for the benefit of the employee.
The updated standard choice form must be given within 28 days after the employer first becomes aware that the employer cannot contribute to the employer fund for the benefit of the employee.
History
S 32N(5A) inserted by No 82 of 2005, s 3 and Sch 1 item 10, effective 1 July 2005.
32N(6)
[Any other time]
An employer may also give a standard choice form at any time.
History
S 32N inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32NA
WHEN A STANDARD CHOICE FORM DOES NOT HAVE TO BE PROVIDED
32NA(1)
An employer is not required under section
32N to give an employee a standard choice form if the employee has chosen a fund under section
32F by the time specified in subsection
32N(1),
(2),
(3) or
(4).
32NA(1A)
(Repealed by No 46 of 2021)
History
S 32NA(1A) repealed by No 46 of 2021, s 3 and Sch 1 item 17, effective 23 June 2021 and in relation to an employee's employment if that employment starts before 1 November 2021, even if the fund became a successor fund on or after 1 November 2021. S 32NA(1A) formerly read:
32NA(1A)
An employer is not required under section 32N to give an employee a standard choice form if:
(a)
the employer is making contributions of a kind mentioned in subsection 32C(2) for the benefit of the employee; and
(b)
the fund to which the contributions are made meets the requirements to be a successor default fund under subsection 32C(2AB).
S 32NA(1A) inserted by No 71 of 2015, s 3 and Sch 2 item 6, applicable in relation to transfers of interests in superannuation funds that occur on or after 1 July 2015.
32NA(2)
An employer is not required under section
32N to give an employee a standard choice form if:
(a)
the employer is making contributions of a kind mentioned in subsections
32C(3) to
(9) for the benefit of the employee; and
(b)
the contributions are made in compliance with the choice of fund requirements.
32NA(3)
Subject to subsections
32N(3) and
(4), an employer is not required under section
32N to give an employee a standard choice form if:
(a)
the employee has chosen a fund before 1 July 2005; and
(b)
the fund so chosen is to be taken, in accordance with subsection
32F(1A), to be the chosen fund for that employee.
History
S 32NA(3) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(4)
An employer is not required under section
32N to give an employee a standard choice form if the employee:
(a)
is a member of an unfunded public sector scheme; and
(b)
is not a Commonwealth employee who is a member of the CSS or the PSS.
History
S 32NA(4) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(5)
An employer is not required under section
32N to give an employee a standard choice form if the employee ceases to be an employee before the end of the period for giving a standard choice form to the employee.
History
S 32NA(5) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(6)
An employer is not required under section
32N to give an employee a standard choice form if:
(a)
it is a condition of the employment of that employee that the employee choose a fund from funds that include all funds that are eligible choice funds for the employer at the time the choice is made; and
(b)
the employer does not have an arrangement to pay contributions to a fund for the benefit of an employee in the event that the employee failed or refused to choose a fund.
History
S 32NA(6) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(7)
An employer is not required under section
32N to give an employee a standard choice form during a quarter if:
(a)
the employee is a defined benefit member of a defined benefit superannuation scheme; and
(b)
subsection
20(2) is satisfied in relation to that scheme and that quarter.
History
S 32NA(7) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(8)
An employer is not required under section
32N to give an employee a standard choice form during a quarter if:
(a)
the employee is a defined benefit member of a defined benefit superannuation scheme; and
(b)
subsection
20(3) is satisfied in relation to the defined benefit that has accrued to that member.
History
S 32NA(8) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(9)
An employer is not required under section
32N to give an employee a standard choice form if:
(a)
the employee is a defined benefit member of a defined benefit superannuation scheme; and
(b)
the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions made by the employer for his or her benefit to a fund other than the defined benefit superannuation scheme.
History
S 32NA(9) inserted by No 82 of 2005, s 3 and Sch 1 item 11, effective 1 July 2005.
32NA(10)
An employer is not required under section
32N to give an employee a standard choice form if:
(a)
the employee is covered by a notional agreement preserving State awards or a preserved State agreement; and
(b)
before the commencement of Schedule 1 to the
Workplace Relations Amendment (Work Choices) Act 2005, the employer was required, under a State law, to give the employee a notification that the employee can choose a superannuation fund; and
(c)
the employer has given the notification mentioned in paragraph
(b) to the employee.
History
S 32NA(10) inserted by SLI No 50 of 2006, reg 3 and Sch 17, effective 27 March 2006.
32NA(11)
An employer is not required under section
32N to give an employee a standard choice form if the employee is, within the meaning of the
Migration Act 1958, the holder of a temporary visa.
History
S 32NA(11) inserted by No 71 of 2015, s 3 and Sch 1 item 2, effective 1 July 2015. No 71 of 2015, s 3 and Sch 1 item 3 contains the following application provision:
3 Application of amendments
If:
(a)
an employee commences employment before the commencement of this Schedule; but
(b)
the 28 day period referred to in subsection 32N(2) of the Superannuation Guarantee (Administration) Act 1992 ends after that commencement;
the amendments made by this Schedule are taken to have applied, in relation to that employee, from the commencement of that employment.
History
S 32NA inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32P
STANDARD CHOICE FORM
32P(1)
[Requirements for form]
For the purposes of this Part, a
standard choice form
is a form that is in writing and that contains the following information:
(a)
a statement that the employee may choose any eligible choice fund for the employer as a chosen fund for the employee;
(c)
the name of the fund that the employer will contribute to if the employee does not make a choice;
(e)
other information that is required, under the regulations, to be included in the form;
(g)
if the employee is a member of a defined benefits scheme - information in relation to that scheme that is required, under the regulations, to be included.
[
CCH Note:
S 32P(1), as enacted, does not contain paras (b), (d) and (f).]
32P(2)
[Regulations]
The regulations may require additional information in relation to funds to be made available to employees and may prescribe where and when such information is to be made available.
History
S 32P inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
[
CCH Note:
The next section is s 32W.]
Division 7 - Stapled funds
History
Div 7 inserted by No 46 of 2021, s 3 and Sch 1 item 18, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
SECTION 32Q
32Q
WHAT IS THE STAPLED FUND FOR AN EMPLOYEE
A fund is the
stapled fund
, for an employee at a particular time, if the requirements prescribed by the regulations for the purposes of this section are met in relation to the fund at that time.
History
S 32Q inserted by No 46 of 2021, s 3 and Sch 1 item 18, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
SECTION 32R
IDENTIFYING ANY STAPLED FUNDS FOR EMPLOYEES
Requesting Commissioner to identify any stapled fund
32R(1)
An employer, or the employer's agent, may request the Commissioner to identify any stapled fund for an employee of the employer. Such a request must be:
(a)
in the approved form; and
(b)
made in accordance with any requirements prescribed by the regulations for the purposes of this paragraph.
Considering and responding to requests
32R(2)
Upon being given such a request by an employer (or by the employer's agent), the Commissioner must:
(a)
consider the request; and
(b)
notify in writing the employer (and the employer's agent if the agent made the request):
(i)
whether the Commissioner is satisfied that there is a stapled fund for the employee; and
(ii)
if the Commissioner is satisfied that there is a stapled fund for the employee - about the details necessary for the employer to make contributions to that fund for the benefit of the employee;
as soon as practicable and in accordance with any requirements prescribed by the regulations for the purposes of this subsection.
Changes to earlier notifications
32R(3)
The Commissioner may, in any circumstances prescribed by the regulations for the purposes of this subsection, change an earlier notification given in relation to the employee. The Commissioner must give written notice of the change as soon as practicable to:
(a)
the employer; and
(b)
if the earlier notification arose from a request by the employer's agent - the employer's agent.
History
S 32R inserted by No 46 of 2021, s 3 and Sch 1 item 18, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
Division 8 - Miscellaneous
SECTION 32W
32W
DISCLOSING TAX FILE NUMBERS PROVIDED IN STANDARD CHOICE FORMS
A taxation officer (within the meaning of the
Income Tax Assessment Act 1997) may disclose another person's tax file number (within the meaning of that Act) if:
(a)
the other person provided the number to the Commissioner in a notice given to the Commissioner under paragraph
32F(1)(b); and
(b)
the disclosure is to the other person's employer.
History
S 32W inserted by No 55 of 2016, s 3 andSch 23 item 34, applicable in relation to disclosures of information on or after 1 January 2017 (whether the information was acquired before, on or after that day).
SECTION 32X
32X
APPLICATION OF PART TO DIFFERENT EMPLOYERS OF AN EMPLOYEE
This Part applies separately to each employer of an employee. For example, a fund that is a chosen fund of an employee as a result of a standard choice form being given by an employer is only a chosen fund in relation to the operation of these provisions to that employer.
History
S 32X inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
32Y
(Repealed) SECTION 32Y NOTIONAL EARNINGS BASE TO CONTINUE TO BE USED
(Repealed by No 46 of 2021)
History
S 32Y repealed by No 46 of 2021, s 3 and Sch 1 item 19, effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021. S 32Y formerly read:
SECTION 32Y NOTIONAL EARNINGS BASE TO CONTINUE TO BE USED
32Y(1)
[Application to other fund]
This section applies if:
(a)
an employer is contributing to a fund (the
choice fund
) that is a chosen fund of an employee; and
(b)
it is reasonable to assume that, if the choice of fund requirements did not apply, the employer would instead have contributed to a different fund (the
other fund
) for the benefit of that employee; and
(c)
contributions to the other fund would not have been covered by subsection 23(5).
32Y(2)
[Application to reduction in charge percentage]
This section also applies if:
(a)
an employer is contributing to a fund (the
choice fund
) that is a chosen fund of an employee; and
(b)
it is reasonable to assume that, if the choice of fund requirements did not apply, that a reduction in the charge percentage for the employer would have been made under subsection 22(2) as a result of a scheme (the
other fund
) for the benefit of that employee.
32Y(3)
[Reduction in charge percentage where contribution taken into account]
In working out the reduction in the charge percentage under subsection 23(2), (3), (4), (4A) or (4D) as a result of a contribution to the choice fund, the employee's notional earnings base is taken to be equal to the lesser of that notional earnings base and the amount that would have been the employee's notional earnings base if the contribution had been made to the other fund, or the reduction had been made under subsection 22(2) as a result of the other fund (as the case requires).
32Y(4)
[Reduction in charge percentage where contribution not taken into account]
In working out the reduction in the charge percentage under subsection 23(5) as a result of a contribution to the choice fund, the employee's ordinary time earnings are taken to be equal to the lesser of those ordinary time earnings and the amount that would have been the employee's notional earnings base if the contribution had been made to the other fund, or the reduction had been made under subsection 22(2) as a result of the other fund (as the case requires).
S 32Y inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32Z
32Z
CONTRIBUTIONS SATISFY COMMONWEALTH OR TERRITORY INDUSTRIAL AWARD REQUIREMENTS - CHOSEN FUNDS AND STAPLED FUNDS ETC.
A requirement in a Commonwealth industrial award or a Territory industrial award that an employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund:
(a)
in compliance with this Part in a case where the other fund is a chosen fund for the employee; or
(b)
in compliance with subsection
32C(1A) (about contributions to stapled funds); or
(c)
in compliance with subsection
32C(2AB) in a case where subparagraph
32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).
History
S 32Z amended by No 46 of 2021, s 3 and Sch 1 item 21, by substituting "to another superannuation fund: (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund)." for ", in compliance with this Part, to another superannuation fund that is a chosen fund.", effective 23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
S 32Z inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
SECTION 32ZAA
CONTRIBUTIONS SATISFY STATE OR TERRITORY LAW REQUIREMENTS - CHOSEN FUNDS AND STAPLED FUNDS ETC.
32ZAA(1)
This section applies to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.
32ZAA(2)
A requirement in a law of a State or Territory that the employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund:
(a)
in compliance with this Part in a case where the other fund is a chosen fund for the employee; or
(b)
in compliance with subsection
32C(1A) (about contributions to stapled funds); or
(c)
in compliance with subsection
32C(2AB) in a case where subparagraph
32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).
History
S 32ZAA amended by No 46 of 2021, s 3 and Sch 1 item 23, by substituting "to another superannuation fund: (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund)." for ", in compliance with this Part, to another superannuation fund that is a chosen fund.", effective23 June 2021 and applicable in relation to an employee's employment by an employer if that employment starts on or after 1 November 2021.
S 32ZAA inserted by No 58 of 2006, s 3 and Sch 6 item 1, applicable to contributions made on or after 1 July 2006.
SECTION 32ZAB
EFFECT OF BLOCKING CONTRIBUTIONS TO PSSAP ETC. - ELIGIBLE CHOICE FUNDS
32ZAB(1)
This section applies if:
(a)
an employer cannot make contributions to a superannuation fund on behalf of an employee because of section
60F of the
Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments); and
(b)
the superannuation fund is any of the following:
(i)
PSSAP;
(ii)
ADF Super (within the meaning of the Australian Defence Force Superannuation Act 2015);
(iii)
if the regulations made for the purposes of this subparagraph specify another superannuation fund - that superannuation fund.
32ZAB(2)
The following provisions do not have effect in relation to the superannuation fund:
(a)
if the superannuation fund is PSSAP - section 16 of the
Superannuation Act 2005;
(b)
if the superannuation fund is ADF Super (within the meaning of the
Australian Defence Force Superannuation Act 2015) - section 15 of that Act;
(c)
if the superannuation fund is another superannuation fund - a provision that:
(i)
is specified in regulations made for the purposes of this subparagraph; and
(ii)
is analogous to the provisions mentioned in paragraphs (a) and (b).
History
S 32ZAB inserted by No 46 of 2021, s 3 and Sch 2 item 3, effective 23 June 2021 and applicable: (a) in relation to MySuper products - on and after 1 July 2021; and (b) in relation to other Part 6A products identified by regulations made for the purposes of paragraph 60B(b) of the Superannuation Industry (Supervision) Act 1993 - on and after 1 July 2022.
SECTION 32ZA
32ZA
EMPLOYERS NOT LIABLE FOR DAMAGES
An employer is not liable to compensate any person for loss or damage arising from anything done by the employer in complying with this Part.
History
S 32ZA inserted by No 102 of 2004, s 3 and Sch 1 item 22, effective 1 July 2005.
PART 4 - SUPERANNUATION GUARANTEE STATEMENTS AND ASSESSMENTS
SECTION 33
SUPERANNUATION GUARANTEE STATEMENTS
33(1)
An employer who has a superannuation guarantee shortfall for a quarter must lodge a superannuation guarantee statement for the quarter on or before:
(a)
for a quarter beginning on 1 January - 28 May in the next quarter; and
(b)
for a quarter beginning on 1 April - 28 August in the next quarter; and
(c)
for a quarter beginning on 1 July - 28 November in the next quarter; and
(d)
for a quarter beginning on 1 October - 28 February in the next quarter.
History
S 33(1) substituted by No 147 of 2005, s 3 and Sch 6 item 6, applicable to obligations relating to the quarter beginning on 1 October 2005 and later quarters. S 33(1) formerly read:
33(1)
An employer who has a superannuation guarantee shortfall for a quarter must lodge a superannuation guarantee statement for the quarter on or before:
(a)
for a quarter beginning on 1 January - 14 May in the next quarter; or
(b)
for a quarter beginning on 1 April - 14 August in the next quarter; or
(c)
for a quarter beginning on 1 July - 14 November in the next quarter; or
(d)
for a quarter beginning on 1 October - 14 February in the next quarter.
S 33(1) and (1A) substituted for s 33(1) by No 51 of 2002, s 3 and Sch 1 item 136, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 33(1) formerly read:
33(1)
An employer who has a superannuation guarantee shortfall for a year must lodge a superannuation guarantee statement for the year on or before:
(a)
14 August in the following year; or
(b)
any later day allowed by the Commissioner.
33(1A)
However, the Commissioner may allow an employer to lodge a superannuation guarantee statement on a later day.
History
S 33(1) and (1A) substituted for s 33(1) by No 51 of 2002, s 3 and Sch 1 item 136, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
33(2)
The statement must be in the approved form.
History
S 33(2) substituted by No 2 of 2015, s 3 and Sch 2 item 114, effective 25 February 2015. S 33(2) formerly read:
33(2)
The statement must set out:
(a)
the name and postal address of the employer; and
(b)
the name, postal address and tax file number (so far as is known to the employer) of each employee in relation to whom the employer had an individual superannuation guarantee shortfall for the quarter; and
(c)
the amount of each such shortfall; and
(d)
the employer's nominal interest component for the quarter; and
(e)
the employer's administration component for the quarter; and
(f)
(Repealed by No 51 of 2002)
(g)
the total of the employer's individual superannuation guarantee shortfalls for the quarter; and
(h)
the amount of the employer's superannuation guarantee charge for the quarter.
S 33(2) amended by No 51 of 2002, s 3 and Sch 1 items 137 to 139, by substituting "the quarter" for "the year" in paras (b), (d) and (e), repealing para (f) and substituting "the quarter" for "the year" in paras (g) and (h), effective 1 July 2003. For application and transitional provisions, see note under s 5(3). Para (f) formerly read:
(f)
if the employer's annual national payroll for the employer's base year is $1,000,000 or less, the amount of that payroll; and
33(3)
(Repealed by No 2 of 2015)
History
S 33(3) repealed by No 2 of 2015, s 3 and Sch 2 item 114, effective 25 February 2015. S 33(3) formerly read:
33(3)
The statement must:
(a)
be in a form approved by the Commissioner; and
(b)
be lodged with the Commissioner in accordance with the regulations; and
(c)
be signed by or on behalf of the employer making the statement.
33(4)
Subsection (1) does not apply to the employer if the employer has previously given the Commissioner a statement for the quarter under section
34.
History
S 33(4) amended by No 51 of 2002, s 3 and Sch 1 item 140, by substituting "the quarter" for "the year", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 34
34
POWER TO REQUIRE INFORMATION WHERE NO SUPERANNUATION GUARANTEE STATEMENT
The Commissioner, by written notice, may require a person who was at any time during a quarter an employer and who has not lodged a superannuation guarantee statement for that quarter to give the Commissioner, within a specified period of not less than 14 days, a written statement for the quarter stating whether the person has a superannuation guarantee shortfall for the quarter and if so, setting out the matters set out in the approved form referred to in subsection
33(2).
History
S 34 amended by No 2 of 2015, s 3 and Sch 2 item 115, by inserting "set out in the approved form", effective 25 February 2015.
S 34 amended by No 51 of 2002, s 3 and Sch 1 item 141, by substituting "quarter" for "year" (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 35
FIRST SUPERANNUATION GUARANTEE STATEMENT FOR A QUARTER TAKEN TO BE ASSESSMENT
35(1)
[Statement deemed an assessment]
If:
(a)
an employer lodges a superannuation guarantee statement for a quarter; and
(b)
a superannuation guarantee statement has not previously been lodged, and an assessment has not previously been made, for the quarter in relation to the employer;
then:
(c)
the statement has effect as an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall; and
(d)
the assessment is taken to have been made on the later of the day on which the statement was lodged and the following day:
(i)
for a quarter beginning on 1 January - 28 May in the next quarter; and
(ii)
for a quarter beginning on 1 April - 28 August in the next quarter; and
(iii)
for a quarter beginning on 1 July - 28 November in the next quarter; and
(iv)
for a quarter beginning on 1 October - 28 February in the next quarter; and
(e)
the sum of:
(i)
the total of the employer's individual superannuation guarantee shortfalls; and
(ii)
the employer's nominal interest component; and
(iii)
the employer's administration component;
specified in the statement is to be taken to be the amount of superannuation guarantee charge payable by the employer for the quarter; and
(f)
the statement has effect as if it were a notice of assessment signed by the Commissioner and given to the employer on the day on which the assessment is taken to have been made.
History
S 35(1) amended by No 97 of 2008, s 3 and Sch 3 item 176, by substituting "next quarter; and" for "next quarter." in para (d)(iv), effective 3 October 2008.
S 35(1) amended by No 147 of 2005, s 3 and Sch 6 item 7, by substituting para (d), applicable to obligations relating to the quarter beginning on 1 October 2005 and later quarters. Para (d) formerly read:
(d)
the assessment is taken to have been made on the later of the day on which the statement was lodged and the following day:
(i)
for a quarter beginning on 1 January - 14 May in the next quarter;
(ii)
for a quarter beginning on 1 April - 14 August in the next quarter;
(iii)
for a quarter beginning on 1 July - 14 November in the next quarter;
(iv)
for a quarter beginning on 1 October - 14 February in the next quarter; and
S 35(1) amended by No 51 of 2002, s 3 and Sch 1 items 142 to 146, by substituting "a quarter" for "a year" in para (a), substituting "the quarter" for "the year" in para (b), substituting "the quarter" for "the year" in para (c), substituting para (d) and substituting "the quarter" for "the year" in para (e), effective 1 July 2003. For application and transitional provisions, see note under s 5(3). Para (d) formerly read:
(d)
the assessment is taken to have been made on 14 August in the following year or the day on which the statement was lodged, whichever is the later; and
35(2)
["superannuation guarantee statement"]
In subsection (1),
superannuation guarantee statement
includes a statement under section 34 that indicates that an employer has a superannuation guarantee shortfall for a quarter.
History
S 35(2) amended by No 51 of 2002, s 3 and Sch 1 item 147, by substituting "a quarter" for "a year", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 36
DEFAULT ASSESSMENTS
36(1)
[Assessment by Commissioner]
If:
(a)
an employer has not lodged a superannuation guarantee statement for a quarter; and
(b)
the Commissioner is of the opinion that the employer is liable to pay superannuation guarantee charge for the quarter;
the Commissioner may make an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall.
History
S 36(1) amended by No 51 of 2002, s 3 and Sch 1 item 148, by substituting ``quarter'' for ``year'' (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
36(2)
[Amount of shortfall]
For the purposes of making an assessment under subsection (1), the superannuation guarantee shortfall is taken to be the amount that in the Commissioner's opinion might reasonably be expected to be the shortfall.
36(3)
[When charge under subsec (1) payable]
Superannuation guarantee charge in relation to an assessment made under subsection (1) is payable on the day on which the assessment is made.
History
S 36(3) substituted by No 51 of 2002, s 3 and Sch 1 item 149, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 36(3) formerly read:
36(3)
Superannuation guarantee charge in relation to an assessment for a year made under this section is taken to have become payable on 14 August in the following year.
SECTION 37
AMENDMENT OF ASSESSMENTS
[
CCH Note:
The sections listed in the first column provide that s 37 does not prevent the amendment of an assessment made before the commencement of such sections for the purpose of giving effect to the respective Acts or parts of Acts listed in the last column.
| Section |
Commencement
Date |
Act |
S 4 of No
51 of 2002 |
29 June 2002 |
No 51 of 2002] |
37(1)
[Commissioner's power]
The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment.
37(2)
[Amendment for avoidance of charge]
Subject to this section, if there has been an avoidance of superannuation guarantee charge, the Commissioner may:
(a)
if the Commissioner is of the opinion that the avoidance of the charge is due to fraud or evasion - at any time; or
(b)
in any other case - within 4 years from the day on which the assessment is made;
amend the assessment by making any alterations or additions that the Commissioner thinks necessary to correct the assessment.
37(3)
[Amendment to reduce liability]
An amendment effecting a reduction in an employer's liability under an assessment is not effective unless it is made within 4 years from the day on which the assessment was made.
37(4)
[Further amendment of assessment]
If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the day on which superannuation guarantee charge became payable under the amended assessment, make, in or in relation to the particular, any further amendment in the assessment that, in the Commissioner's opinion, is necessary to effect such reduction in the employer's liability under the assessment as is just.
37(5)
[Amendment on application of employer]
If:
(a)
an employer applies for an amendment of the employer's assessment within 4 years from the day that superannuation guarantee charge became payable under the assessment; and
(b)
within that period, the employer lodges all information the Commissioner needs to decide the application;
the Commissioner may amend the assessment when considering the application, even if that period has elapsed.
37(6)
[Amendment to give effect to decision on review or appeal]
Nothing in this section prevents the amendment of an assessment to give effect to:
(a)
the decision on any review or appeal; or
(b)
its amendment by reduction of any particular following the employer's objection or pending any review or appeal.
37(7)
[When amended assessment payable]
Superannuation guarantee charge under an amended assessment is taken to have become payable on the day on which charge under the original assessment became payable.
SECTION 38
REFUND OF OVERPAID AMOUNTS
38(1)
[Where liability reduced]
If, because an assessment is amended, a person's liability to superannuation guarantee charge is reduced:
(a)
the amount by which the charge is reduced is taken, for the purposes of section
49, never to have been payable; and
(b)the Commissioner must:
(i)
refund any overpaid amount; or
(ii)
apply any overpaid amount against the person's liability (if any) to the Commonwealth and refund any part of the amount that is not so applied.
38(2)
["overpaid amount"]
In subsection (1):
overpaid amount
includes any overpaid amount of additional superannuation guarantee charge under section 49 or Part 7 of this Act or administrative penalty under Part 4-25 in Schedule 1 to the Taxation Administration Act 1953.
History
Definition of "overpaid amount" amended by No 91 of 2000, s 3 and Sch 2 item 61, by inserting "of this Act or administrative penalty under Part 4-25 in Schedule 1 to the Taxation Administration Act 1953" after "Part 7", effective 1 July 2000.
Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
SECTION 39
39
AMENDED ASSESSMENT TO BE AN ASSESSMENT
Except as otherwise expressly provided by this Act, an amended assessment is taken to be an assessment for all the purposes of this Act.
SECTION 40
40
NOTICE OF ASSESSMENT OR AMENDMENT
As soon as practicable after an assessment is made under section
36 or is amended under section
37, the Commissioner must give written notice of the assessment or amendment (as the case may be) to the person liable to pay the superannuation guarantee charge.
SECTION 41
41
VALIDITY OF ASSESSMENT
The validity of an assessment is not affected because any provision of this Act has not been complied with.
SECTION 42
42
OBJECTIONS AGAINST ASSESSMENT
An employer who is dissatisfied with an assessment may object in the manner set out in Part
IVC of the
Taxation Administration Act 1953.
PART 5 - ADMINISTRATION
SECTION 43
43
GENERAL ADMINISTRATION OF ACT
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
History
S 43 amended by No 145 of 2010, s 3 and Sch 2 item 81, by inserting the note at the end, effective 17 December 2010.
SECTION 44
44
ANNUAL REPORT
After the end of each year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament.
45
(Repealed) SECTION 45 SECRECY
(Repealed by No 145 of 2010)
History
S 45 repealed by No 145 of 2010, s 3 and Sch 2 item 82, effective 17 December 2010. S 45 formerly read:
SECTION 45 SECRECY
45(1)
In this section:
court
includes any tribunal, authority or person having power to require the production of documents or the answering of questions.
person to whom this section applies
means a person who is or has been:
(a)
the Commissioner, a Second Commissioner or a Deputy Commissioner; or
(b)
a person engaged under the Public Service Act 1999 in an Agency (within the meaning of that Act) of which the Commissioner is the Agency Head (within the meaning of that Act); or
(c)
otherwise appointed or employed by, or a provider of services for, the Commonwealth.
History
Definition of "person to whom this section applies" amended by No 146 of 1999.
produce
includes permit access to.
protected document
means a document that:
(a)
contains information that concerns a person; and
(b)
is obtained or made by a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.
protected information
means information that:
(a)
concerns a person; and
(b)
is disclosed to, or obtained by, a person to whom this section applies in the course of, or because of, the person's duties under or in relation to this Act.
45(2)
Subject to subsection (3), a person to whom this section applies must not:
(a)
make a record of any protected information; or
(b)
whether directly or indirectly, divulge or communicate to a person any protected information concerning another person.
Penalty: Imprisonment for 2 years.
History
S 45(2) substituted by No 146 of 2001, s 3 and Sch 4 item 124, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15December 2001. S 45(2) formerly read:
45(2)
Subject to subsection (3), a person to whom this section applies must not:
(a)
make a record of any protected information; or
(b)
whether directly or indirectly, divulge or communicate to a person any protected information concerning another person;
unless the record is made, or the information divulged or communicated:
(c)
under or for the purposes of this Act; or
(d)
in the performance of duties, as a person to whom this section applies, under or in relation to this Act.
Penalty: Imprisonment for 2 years.
45(2A)
Subsection (2) does not apply to the extent that the record is made, or the information divulged or communicated:
(a)
under or for the purposes of this Act; or
(b)
in the performance of duties, as a person to whom this section applies, under or in relation to this Act.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal Code.
History
S 45(2A) inserted by No 146 of 2001, s 3 and Sch 4 item 124, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
45(3)
Subsection (2) does not prevent the Commissioner, a Second Commissioner or a Deputy Commissioner or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner from divulging or communicating any protected information to a person performing, as a person to whom this section applies, duties under or in relation to an Act of which the Commissioner has the general administration, or under regulations made under such an Act, for the purpose of enabling the person to perform the duties.
45(4)
A person divulges or communicates protected information to a person in contravention of subsection (2) if the person divulges or communicates the information to any Minister.
45(5)
A person to whom this section applies is not required:
(a)
to divulge or communicate protected information to a court; or
(b)
to produce a protected document in court;
except where it is necessary to do so for the purpose of carrying into effect the provisions of this Act.
45(6)
Nothing in this or any other Act of which the Commissioner has the general administration is taken to prohibit the Commissioner, a Second Commissioner, a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from divulging or communicating any information to a person performing, as a person to whom this section applies, duties under or in relation to this Act for the purpose of enabling the person to perform the duties.
45(7)
Nothing in an Act of which the Commissioner has the general administration is taken to prohibit the Commissioner, a Second Commissioner, a Deputy Commissioner, or a person authorised by the Commissioner, a Second Commissioner or a Deputy Commissioner, from:
(a)
divulging or communicating to a court any information obtained under or for the purposes of such an Act; or
(b)
producing in court a document obtained or made under or for the purposes of such an Act;
where it is necessary to do so for the purpose of carrying into effect the provisions of this Act.
45(8)
A person to whom this section applies must, if and when required by the Commissioner, a Second Commissioner or a Deputy Commissioner to do so make an oath or declaration, in a manner and form specified by the Commissioner in writing, to maintain secrecy in accordance with this section.
45A
(Repealed) SECTION 45A DISCLOSURE OF INFORMATION TO GIVE ADVICE TO EMPLOYEE ABOUT PROGRESS OF COMPLAINT AGAINST EMPLOYER
(Repealed by No 145 of 2010)
History
S 45A repealed by No 145 of 2010, s 3 and Sch 2 item 82, effective 17 December 2010. S 45A formerly read:
SECTION 45A DISCLOSURE OF INFORMATION TO GIVE ADVICE TO EMPLOYEE ABOUT PROGRESS OF COMPLAINT AGAINST EMPLOYER
45A(1)
An employee or former employee (the
employee
) of an employer may make a complaint to the Commissioner that the employer has not complied with one or more specified obligations under this Act in relation to the employee.
45A(2)
To avoid doubt, a person may make a complaint under subsection (1) even if at the time the complaint is made it is in dispute or uncertain whether he or she is an employee or former employee of the employer.
45A(3)
If a complaint has been made under subsection (1), the Commissioner may divulge or communicate information covered under subsection (4) to the employee (and make a record necessary for the divulging or communication of the information).
45A(4)
Information is covered under this subsection if it relates to the Commissioner's response to the complaint, including information about any of the following matters:
(a)
the steps (if any) that the Commissioner has taken to investigate the complaint;
(b)
the actions (if any) that have been taken in relation to the complaint under this Act or the Taxation Administration Act 1953 by the Commissioner or the employer;
(c)
the steps (if any) that the Commissioner has taken to recover superannuation guarantee charge from the employer in relation to the employee.
45A(5)
However, information is not covered under subsection (4) if it relates to the general financial affairs of the employer.
45A(6)
Making a record, or divulging or communicating information, under subsection (3) is not a breach of a provision of a taxation law (within the meaning of the Income Tax Assessment Act 1997) that prohibits the Commissioner or an officer from making a record of, or disclosing, information.
Example:
Examples of such provisions are section 45 of this Act and section 3C of the Taxation Administration Act 1953.
History
S 45A inserted by No 56 of 2007, s 3 and Sch 2 item 1, applicable to records made, or information divulged or communicated, on or after 1 July 2007, regardless of when the information recorded, divulged or communicated was obtained.
S 45A inserted by No 56 of 2007, s 3 and Sch 2 item 1, applicable to records made, or information divulged or communicated, on or after 1 July 2007, regardless of when the information recorded, divulged or communicated was obtained.
PART 6 - COLLECTION AND RECOVERY OF CHARGE
SECTION 46
WHEN SUPERANNUATION GUARANTEE CHARGE BECOMES PAYABLE
46(1)
[When charge payable]
Superannuation guarantee charge for a quarter is payable:
(a)
if, on or before the lodgment day for the quarter, the employer lodges a superannuation guarantee statement or a statement under section
34 indicating a superannuation guarantee shortfall for that quarter - on the lodgment day; or
(b)
if, after the lodgment day, the employer lodges a superannuation guarantee statement or a statement under section
34 indicating a superannuation guarantee shortfall for that quarter - on the day on which the statement is lodged.
Note 1:
If a default assessment is made for a quarter then the superannuation guarantee charge is payable on the day on which the assessment is made: see section 36.
Note 2:
For provisions about collection and recovery of superannuation guarantee charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
46(2)
[Meaning]
In this section:
lodgment day
for a quarter means:
(a)
for a quarter beginning on 1 January - 28 May in the next quarter; and
(b)
for a quarter beginning on 1 April - 28 August in the next quarter; and
(c)
for a quarter beginning on 1 July - 28 November in the next quarter; and
(d)
for a quarter beginning on 1 October - 28 February in the next quarter.
History
Definition of "lodgment day" substituted by No 147 of 2005, s 3 and Sch 6 item 8, applicable to obligations relating to the quarter beginning on 1 October 2005 and later quarters. The definition formerly read:
lodgment day
for a quarter means the following day:
(a)
for a quarter beginning on 1 January - 14 May in the next quarter;
(b)
for a quarter beginning on 1 April - 14 August in the next quarter;
(c)
for a quarter beginning on 1 July - 14 November in the next quarter;
(d)
for a quarter beginning on 1 October - 14 February in the next quarter.
S 46 substituted by No 51 of 2002, s 3 and Sch 1 item 150, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 46 formerly read:
SECTION 46 WHEN SUPERANNUATION GUARANTEE CHARGE BECOMES PAYABLE
46
Superannuation guarantee charge for a year is payable:
(a)
if, on or before 14 August in the following year, the employer lodges a superannuation guarantee statement or a statement under section 34 indicating a superannuation guarantee shortfall for that year - on that day; or
(b)
if, after that day, the employer lodges a superannuation guarantee statement or a statement under section 34 indicating a superannuation guarantee shortfall for that year - on the day on which the statement is lodged.
Note:
For provisions about collection and recovery of superannuation guarantee charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
S 46 amended by No 179 of 1999.
SECTION 47
47
WHEN ADDITIONAL SUPERANNUATION GUARANTEE CHARGE BECOMES PAYABLE
Additional superannuation guarantee charge under Part
7 becomes payable on the day specified for the purpose in the notice of assessment of the additional charge.
Note:
For provisions about collection and recovery of additional superannuation guarantee charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
History
S 47 amended by No 179 of 1999.
48
(Repealed) SECTION 48 EXTENSION OF TIME FOR PAYMENT
(Repealed by No 179 of 1999)
History
S 48 repealed by No 179 of 1999, s 3 and Sch 2 item 78, effective 22 December 1999. Despite this repeal, anything done under s 48 before 1 July 2000 continues to have effect on and after that day as if s 48 had not been repealed. S 48 formerly read:
SECTION 48 EXTENSION OF TIME FOR PAYMENT
48(1)
The Commissioner may, in such circumstances as the Commissioner thinks fit, extend the time for payment of an amount of superannuation guarantee charge for such period as the Commissioner determines, and, if the Commissioner does so, the charge is payable accordingly.
48(2)
In this section:
'superannuation guarantee charge'
includes additional superannuation guarantee charge payable under section 49 or Part 7.
SECTION 49
UNPAID SUPERANNUATION GUARANTEE CHARGE
49(1)
[Liability to pay general interest charge ("GIC")]
If any of the superannuation guarantee charge which an employer is liable to pay remains unpaid after the time by which it is due to be paid, the employer is liable to pay the general interest charge on the unpaid amount (the
original unpaid amount
).
Note 1:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
Note 2:
Subsections (2) and (3A) deal with reducing the original unpaid amount.
History
S 49(1) amended by No 38 of 2008, s 3 and Sch 2 items 4 and 5, by inserting "(the
original unpaid amount
)" after "unpaid amount" and substituting the note, effective 24 June 2008. For transitional provisions, see note under s 23A(2). The note formerly read:
Note:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
S 49(1) amended by No 101 of 2006, s 3 and Sch 2 item 1056, by omitting a reference to a repealed inoperative Division in the note, effective 14 September 2006. For application and saving provisions see the CCH Australian Income Tax Legislation archive.
49(2)
[Reduction of unpaid amount]
However, the original unpaid amount must be reduced by those amounts in respect of:
(a)
the employer's administration component for the quarter; and
(b)
the employer's nominal interest component for the quarter.
History
S 49(2) amended by No 38 of 2008, s 3 and Sch 2 item 6, by inserting "original" before "unpaid amount", effective 24 June 2008. For transitional provisions, see note under s 23A(2).
S 49(2) amended by No 51 of 2002. For application and transitional provisions, see note under s 5(3).
49(3)
[Days for which GIC to be paid]
The employer is liable to pay the general interest charge for each day in the period that:
(a)
started at the beginning of the day by which the superannuation guarantee charge was due to be paid; and
(b)
finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i)
the superannuation guarantee charge;
(ii)
general interest charge on any of the superannuation guarantee charge.
49(3A)
To avoid doubt, for the purposes of this section and subsection
8AAC(3) of the
Taxation Administration Act 1953, an election under section
23A in relation to the superannuation guarantee has effect from the time the employer's original assessment for the quarter is made.
History
S 49(3A) substituted by No 14 of 2009, s 3 and Sch 3 item 4, applicable to elections under section 23A of the Superannuation Guarantee (Administration) Act 1992 made on or after 26 March 2009. S 49(3A) formerly read:
49(3A)
For the purposes of this section and subsection 8AAC(3) of the Taxation Administration Act 1953, if:
(a)
the employer gives the Commissioner an election under section 23A at a time (the
election time
) after the time the superannuation guarantee charge is due to be paid; and
(b)
the effect of the election is to reduce the employer's liability to pay the superannuation guarantee charge by an amount (the
offset amount
);
then, from the election time, the proportion of the original unpaid amount that remains unpaid immediately before that time is taken to be reduced by the offset amount.
Note:
The original unpaid amount will not be reduced by the offset amount during the period when the charge is payable before the election time.
S 49(3A) inserted by No 38 of 2008, s 3 and Sch 2 item 7, effective 24 June 2008. For transitional provisions, see note under s 23A(2).
49(4)
[GIC is additional superannuation guarantee charge]
The amount of the general interest charge is taken to be
additional superannuation guarantee charge
payable under this section.
49(5)
[Interpretation]
In this section:
superannuation guarantee charge
includes additional superannuation guarantee charge under Part 7.
History
S 49 substituted by No 11 of 1999.
SECTION 50
50
ORDER OF PAYMENTS
The Commissioner must apply payments of superannuation guarantee charge, or related penalty charge, for a quarter that are made by or on behalf an employer, so that the employer's liability to pay the nominal interest component for the quarter is discharged before all other amounts.
History
S 50 inserted by No 51 of 2002, s 3 and Sch 1 item 152, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
Former s 50 repealed by No 179 of 1999.
51
(Repealed) SECTION 51 SUBSTITUTED SERVICE
(Repealed by No 179 of 1999)
52
(Repealed) SECTION 52 LIQUIDATION
(Repealed by No 132 of 2007)
History
S 52 repealed by No 132 of 2007, s 3 and Sch 1 item 11, effective 31 December 2007. S 52 formerly read:
SECTION 52 LIQUIDATION
52
In the winding up of a company, any superannuation guarantee charge payable by the company is, for the purposes of payment, to have a priority equal to that of a debt of the company of the kind referred to in paragraph 556(1)(e) of the Corporations Act 2001.
Note:
The priority of superannuation guarantee charge in a bankruptcy is dealt with in section 109 of the Bankruptcy Act 1966.
[Act No 132 of 2007, s 3 and Sch 1 item 14, contains the following application provision (effective 31 December 2007):
Application - section 52 of the Superannuation Guarantee (Administration) Act 1992
14
The repeal of section 52 of the Superannuation Guarantee (Administration) Act 1992, in so far as it relates to a company that is being wound up under the Corporations Act 2001, applies if the relevant date (within the meaning of the Corporations Act 2001) is on or after the day on which this item commences.
]
S 52 (Note) inserted by No 51 of 2002, s 3 and Sch 6 item 9, effective 5 May 2003.
S 52 amended by No 55 of 2001, s 3 and Sch 3 item 497, by substituting "Corporations Act 2001" for "Corporations Law", effective 15 July 2001.
53
(Repealed) SECTION 53 RECEIVERS
(Repealed by No 179 of 1999)
History
S 53 repealed by No 179 of 1999, s 3 and Sch 2 item 81, effective 22 December 1999. Despite this repeal, s 53 continues to have effect in relation to:
(a) a person who becomes a liquidator before 1 July 2000; or
(b) a receiver, or receiver and manager, who takes possession of a company's assets before 1 July 2000; or
(c) an agent who is instructed, before 1 July 2000, to wind up the principal's business in Australia;
as appropriate.
S 53 formerly read:
SECTION 53 RECEIVERS
53(1)
If a person (the
`asset holder'
), as a receiver or a receiver and manager for debenture holders of an employer that is a company, takes possession of assets of the employer, the asset holder must, within 14 days, give written notice of the fact to the Commissioner.
53(2)
The Commissioner must, as soon as practicable, give the asset holder written notice of the amount that, in the Commissioner's opinion, is sufficient to provide for any amount of superannuation guarantee charge that is or may become payable by the employer (the
`notified charge amount'
).
53(3)
The asset holder:
(a)
must not, without the Commissioner's permission, part with any of the company's assets before receiving notice of the notified charge amount; and
(b)
must set aside, out of the assets available for paying the company's ordinary debts, assets having the value worked out using the formula:
53(4)
The asset holder is liable to pay the superannuation guarantee charge payable by the company to the extent of the value of the assets that the asset holder is required to set aside.
53(5)
Paragraph (3)(a) does not prevent the asset holder from parting with the company's assets to pay the company's debts that are not ordinary debts.
53(6)
For the purposes of subsections (3) and (5), a company's debt is an ordinary debt if:
(a)
it is unsecured; and
(b)
it is not required, under a Commonwealth, State or Territory law, to be paid in priority to some or all of the company's other debts.
53(7)
If the asset holder, without reasonable excuse, contravenes this section or fails to pay the superannuation guarantee charge for which the asset holder is liable under subsection (4), the asset holder is guilty of an offence punishable on conviction by a fine not exceeding $1,000.
53(8)
This section is not taken to limit an obligation or liability of the asset holder arising otherwise than under this section.
53(9)
If 2 or more persons are asset holders in relation to the same company, the obligations and liabilities imposed on an asset holder by this section are imposed on both or all of the persons jointly.
53(10)
In this section:
'notified tax amount'
means an amount that the Commissioner has notified to the company or the respective asset holder under a section of another Act that corresponds to this section;
'superannuation guarantee charge'
includes additional superannuation guarantee charge under section 49 or Part 7.
54
(Repealed) SECTION 54 RECOVERY OF SUPERANNUATION GUARANTEE CHARGE FROM TRUSTEE OF DECEASED EMPLOYER
(Repealed by No 179 of 1999)
History
S 54 repealed by No 179 of 1999, s 3 and Sch 2 item 82, effective 22 December 1999. Despite this repeal, s 54 continues to have effect in relation to a person who dies before 1 July 2000. S 54 formerly read:
SECTION 54 RECOVERY OF SUPERANNUATION GUARANTEE CHARGE FROM TRUSTEE OF DECEASED EMPLOYER
54(1)
This section applies, if at the time of an employer's death:
(a)
superannuation guarantee charge that waspayable by the employer immediately before the employer's death has not been assessed or has not been paid in full; or
(b)
additional superannuation guarantee charge under Part 7 for which, immediately before the employer's death, the employer was liable has not been assessed or paid.
54(2)
The Commissioner has the same powers and remedies for the assessment and recovery of superannuation guarantee charge from a trustee of the estate of the employer as the Commissioner would have had against the employer if the employer were still living.
54(3)
The trustee must:
(a)
lodge any statements or information that the employer was, or would but for the employer's death have been, liable to lodge; and
(b)
lodge any other statements or information that the Commissioner requires.
54(4)
If the trustee fails to lodge a statement in relation to a year, the Commissioner may assess:
(a)
the employer's superannuation guarantee shortfall for the year; and
(b)
the amount of superannuation guarantee charge payable on the shortfall.
54(5)
The trustee is subject to additional superannuation guarantee charge under section 49 or Part 7 to the same extent as the employer would be if the employer were still living.
54(6)
The amount of any superannuation guarantee charge payable by the trustee is a charge on all of the employer's estate in the trustee's hands in priority to any other encumbrance (except a charge in relation to a debt payable to the Commissioner).
54(7)
A trustee who is dissatisfied with an assessment made under this section may object in the manner set out in Part IVC of the Taxation Administration Act 1953.
54(8)
Superannuation guarantee charge in relation to an assessment for a year made under this section is taken to have become payable on 14 August in the following year.
54(9)
In this section:
'superannuation guarantee charge'
includes additional superannuation guarantee charge under section 49 or Part 7.
55
(Repealed) SECTION 55 RECOVERY OF CHARGE FROM UNADMINISTERED DECEASED ESTATES
(Repealed by No 179 of 1999)
History
S 55 repealed by No 179 of 1999, s 3 and Sch 2 item 83, effective 22 December 1999. Despite this repeal, s 55 continues to have effect in relation to a person who dies before 1 July 2000. S 55 formerly read:
SECTION 55 RECOVERY OF CHARGE FROM UNADMINISTERED DECEASED ESTATES
55(1)
If, within 6 months after the death of an employer, neither probate of the employer's will nor letters of administration of the employer's estate have been granted, the Commissioner may assess:
(a)
the superannuation guarantee shortfall (if any) of the employer for the year in which the employer died or for any previous year; and
(b)
the amount of superannuation guarantee charge payable on the shortfall.
55(2)
If the employer resided in a State or Territory immediately before his or her death, the Commissioner must publish notice of the assessment twice in a daily newspaper circulating in the State or Territory.
55(3)
A person who claims an interest in the deceased employer's estate and who is dissatisfied with the assessment may object in the manner set out in Part IVC of the Taxation Administration Act 1953.
55(4)
Subject to any amendment, the assessment is conclusive evidence of the liability of the deceased employer.
55(5)
In spite of subsection (4), if probate of the will, or letters of administration of the estate, of the deceased employer is or are granted to a person and the person is dissatisfied with the assessment, the person may object in the manner set out in Part IVC of the Taxation Administration Act 1953.
55(6)
Part IVC of the Taxation Administration Act 1953 applies in relation to an objection made by a person under subsection (3) or (5) as if the person were the deceased employer.
55(7)
In this section:
"superannuation guarantee charge"
includes additional superannuation guarantee charge payable under section 49 or Part 7.
56
(Repealed) SECTION 56 COMMISSIONER MAY COLLECT SUPERANNUATION GUARANTEE CHARGE FROM PERSON OWING MONEY TO PERSON LIABLE TO SUPERANNUATION GUARANTEE CHARGE
(Repealed by No 179 of 1999)
History
S 56 repealed by No 179 of 1999, s 3 and Sch 2 item 84, effective 22 December 1999. Despite this repeal:
(a) anything done under s 56 before 1 July 2000 continues to have effect on or after that day as if s 56 had not been repealed; and
(b) anything done on or after that day, under s 56 as it continues to have effect because of para (a), has effect as if s 56 had not been repealed.
S 56 formerly read:
SECTION 56 COMMISSIONER MAY COLLECT SUPERANNUATION GUARANTEE CHARGE FROM PERSON OWING MONEY TO PERSON LIABLE TO SUPERANNUATION GUARANTEE CHARGE
56(1)
The Commissioner may, by written notice, require a person (in this section called the
``debtor''
):
(a)
who owes, or may subsequently owe, money to an employer; or
(b)
who holds, or may subsequently hold, money for or on account of an employer, or for or on account of another person for payment to an employer; or
(c)
who has, or may subsequently have, authority from another person to pay money to an employer;
to pay to the Commissioner, at or before a time (in this section called the
``payment time''
) specified in the notice (not being a time before the notice is served on the debtor, or before the money becomes due or is held, or the debtor has the authority, as the case may be) an amount (in this section called the
``garnisheed amount''
) equal to:
(d)
the whole of the money, or so much of it as is sufficient to pay the amount of superannuation guarantee charge due by the employer, whichever is less; or
(e)
the amount specified in the notice out of each payment that the debtor makes or becomes liable to make to the employer, until the amount of superannuation guarantee charge is paid.
History
S 56(1) amended by No 43 of 1996.
56(2)
The Commissioner may, by further written notice, revoke or vary a notice under subsection (1).
56(3)
The Commissioner must arrange for a notice under subsection (1) or (2) to be given to the debtor and a copy of the notice to be given to the employer.
56(4)
A person who, without reasonable excuse, contravenes a notice under this section is guilty of an offence.
Penalty: $1,000.
56(5)
If a person (in this subsection called the
``convicted person''
) is convicted of an offence against subsection (4) in relation to the contravention of the notice by the convicted person or another person, the court may, in addition to imposing a penalty on the convicted person, order the convicted person to pay to the Commissioner an amount not exceeding the amount or the sum of the amounts, as the case requires, that the convicted person or the other person, as the case may be, refused or failed to pay to the Commissioner in accordance with the notice.
56(6)
A person making a payment under this section is taken to be acting with the authority of the employer and of all other persons concerned and is indemnified in relation to the payment.
56(7)
If any payment in relation to the amount due by the employer is made before payment is made by a person under a notice under this section, the Commissioner must immediately give notice to the person under subsection (2).
56(8)
The garnisheed amount is, from the payment time, a debt due to the Commonwealth and recoverable in a court of competent jurisdiction.
56(9)
If:
(a)
money has been paid by a person to a co-operative housing society in respect of the issue of withdrawable shares in the capital of the society; and
(b)
the money has not been repaid;
the money is taken:
(c)
if the money is repayable on demand - to be due by the co-operative housing society to the person; or
(d)
in any other case - to be money that may become due by the co-operative housing society to the person.
History
S 56(9) amended by No 44 of 1999, s 4 and Sch 7 item 224, by substituting ``co-operative housing society'' for ``building society'' (wherever occurring), effective 1 July 1999.
56(10)
If, but for this subsection, a debt is not due, or repayable on demand, to a person unless a condition is fulfilled, the debt is taken, for the purposes of this section, to be due, or repayable on demand, as the case may be, to the person despite the fact that the condition has not been fulfilled.
56(11)
A notice may be given to the Commonwealth, a State or Territory by giving it to a person employed by the Commonwealth, State or Territory, respectively, being a person who, under a law of the Commonwealth, State or Territory, has a duty of disbursing public money, and a notice so given is taken, for the purposes of this section, to have been given to the Commonwealth, the State or the Territory, as the case may be.
56(12)
In this section:
``
building society
''
(Repealed by No 44 of 1999)
History
Definition of ``building society'' repealed by No 44 of 1999, s 4 and Sch 7 item 225, effective 1 July 1999. Definition formerly read:
'building society'
means a society registered or incorporated as a building society, co-operative housing society or other similar society under the law in force in a State or Territory;
co-operative housing society
means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory.
History
Definition of ``co-operative housing society'' inserted by No 44 of 1999, s 4 and Sch 7 item 226, effective 1 July 1999.
"superannuation guarantee charge"
includes:
(a)
additional superannuation guarantee charge under section
49 or Part
7; and
(b)
a judgment debt or costs in relation to:
(i)
superannuation guarantee charge; or
(ii)
additional superannuation guarantee charge under section 49 or Part 7; and
(c)
a fine or costs imposed by a court in relation to an offence against this Act; and
(d)
an amount ordered by a court, on the conviction of a person for an offence against this Act, to be paid by the person to the Commissioner.
SECTION 57
PUBLIC OFFICER OF COMPANY
57(1)
[Public officer under s 252 of Assessment Act]
The person who is, from time to time, the public officer of a company for the purposes of section 252 of the Income Tax Assessment Act 1936 is the public officer of the company for the purposes of this Act, and the public officer's address for service under that Act is the public officer's address for service under this Act.
57(2)
[Service of notices and documents]
Service of a notice or other document at the public officer's address for service, or on the public officer, is sufficient service on the company for the purposes of this Act, but, if at any time there is no public officer of the company, service on a person acting or appearing to act in the business of the company is sufficient.
Note:
See section 57A for alternative ways to give a notice to, or serve another document on, a company (through its officers, attorneys or agents).
History
S 57(2) amended by No 180 of 2012, s 3 and Sch 6 item 27, by inserting Note at the end, effective 11 December 2012.
57(3)
[Obligation and liability of public officer]
The public officer is answerable for doing all acts required to be done by the company under this Act, and in case of default is liable to the same penalties.
57(4)
[Acts by public officer deemed acts by company]
Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.
57(5)
[Situation where no public officer]
If, at any time, there is no public officer of the company, this Act applies in relation to the company as if there were no requirement to appoint a public officer of the company.
57(6)
[Company and public officer jointly liable]
A proceeding under this Act brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.
57(7)
(Repealed by No 180 of 2012)
History
S 57(7) repealed by No 180 of 2012, s 3 and Sch 6 item 28, effective 11 December 2012. S 57(7) formerly read:
57(7)
Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer's obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the company or public officer may, if the Commissioner thinks fit, be given to, served on or brought against any director, secretary or other officer of the company or any attorney or agent of the company, and the director, secretary, officer, attorney or agent has the same liability in relation to the notice, process or proceeding as the company or public officer would have had if it had been given to, served on or brought against the company or public officer.
SECTION 57A
57A
NOTIFYING AND SERVING COMPANIES
For the purposes of this Act, if the Commissioner thinks fit, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:
(a)
a director, the secretary or another officer of the company; or
(b)
an attorney or agent of the company.
Note:
See subsection 57(2) for alternative ways to serve a notice or another document on a company (through its public officer or someone else acting or appearing to act for the company).
History
S 57A inserted by No 180 of 2012, s 3 and Sch 6 item 29, effective 11 December 2012.
SECTION 58
PUBLIC OFFICER OF TRUST ESTATE
58(1)
[Public officer under s 252A of Assessment Act]
The person who is, from time to time, the public officer of a trust estate for the purposes of section 252A of the Income Tax Assessment Act 1936 is the public officer of the trust estate for the purposes of this Act, and the public officer's address for service under that Act is the public officer's address for service under this Act.
58(2)
[Service of notices and documents]
Service of a notice or other document at the public officer's address for service, or on the public officer, is sufficient service on the trustee of the trust estate for the purposes of this Act, but, if at any time there is no public officer of the trust estate, service on a person acting or appearing to act in the business of the trust estate is sufficient.
58(3)
[Obligation and liability of public officer]
The public officer is answerable for doing all acts required to be done by the trustee of the trust estate under this Act, and in case of default is liable to the same penalties.
58(4)
[Acts by public officer deemed acts by trustee]
Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the trustee of the trust estate.
58(5)
[Situation where no public officer]
If, at any time, there is no public officer of the trust estate, this Act applies in relation to the trustee of the trust estate as if there were no requirement to appoint a public officer of the trust estate.
58(6)
[Trustee and public officer jointly liable]
A proceeding under this Act brought against the public officer is taken to have been brought against the trustee of the trust estate, and the trustee is liable jointly with the public officer for any penalty imposed on the public officer.
58(7)
[Liability of agent or attorney]
Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer's obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served on or brought against any agent or attorney of the trustee, and the agent or attorney has the same liability in relation to the notice, process or proceeding as the trustee or public officer would have had if it had been given to, served on or brought against the trustee or public officer.
PART 7 - ADDITIONAL SUPERANNUATION GUARANTEE CHARGE
History
Pt 7 heading substituted by No 51 of 2002, s 3 and Sch 1 item 153, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The heading formerly read:
PART 7 - PENALTY CHARGE
SECTION 59
FAILURE TO PROVIDE STATEMENTS OR INFORMATION
59(1)
[Penalty for failure to provide statement or information]
If an employer other than a government body refuses or fails to provide, when and as required under this Act, a superannuation guarantee statement or information relevant to assessing the employer's liability to pay superannuation guarantee charge for a quarter, the employer is liable to pay, by way of penalty, additional superannuation guarantee charge equal to double the amount of superannuation guarantee charge payable by the employer for the quarter.
History
S 59(1) amended by No 51 of 2002, s 3 and Sch 1 item 154, by substituting ``quarter'' for ``year'' (wherever occurring), effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
59(2)
[Record keeping]
An employer liable to pay superannuation guarantee charge for a quarter must:
(a)
keep a record in relation to the quarter containing details of the basis of calculation of the following amounts:
(i)
(Repealed by No 51 of 2002)
(ii)
the individual superannuation guarantee shortfalls of the employer for the quarter;
(iii)
the employer's nominal interest component for the quarter;
(iv)
the employer's administration component for the quarter;
that were specified in a superannuation guarantee statement under section
33 or a statement under section
34; or
(b)
produce to the Commissioner, when and as required by the Commissioner under this Act, a document containing details of the basis of calculation of the amounts referred to in paragraph (2)(a) that were specified in a superannuation guarantee statement under section
33 or a statement under section
34.
History
S 59(2) amended by No 51 of 2002, s 3 and Sch 1 items 155 to 158, by substituting ``for a quarter'' for ``in relation to a year'', substituting ``the quarter'' for ``the year'' in para (a), repealing para (a)(i) and substituting ``for the quarter'' for ``for the year'' in para(a)(ii), (iii) and (iv), effective 1 July 2003. For application and transitional provisions, see note under s 5(3). Para (a)(i) formerly read:
(i)
the employer's annual national payroll for the employer's base year;
S 59(2) substituted by No 91 of 2000, s 3 and Sch 2 item 62, effective 1 July 2000. S 59(2) formerly read:
59(2)
If an employer liable to pay superannuation guarantee charge in relation to a year:
(a)
fails to keep a record in relation to the year containing details of the basis of calculation of the following amounts:
(i)
the employer's annual national payroll for the employer's base year;
(ii)
the individual superannuation guarantee shortfalls of the employer for the year;
(iii)
the employer's nominal interest component for the year;
(iv)
the employer's administration component for the year;
that were specified in a superannuation guarantee statement under section 33 or a statement under section 34; or
(b)
refuses or fails to produce to the Commissioner, when and as required by the Commissioner under this Act, a document containing details of the basis of calculation of the amounts referred to in paragraph (2)(a) that were specified in a superannuation guarantee statement under section 33 or a statement under section 34;
the employer is liable to pay, by way of penalty, additional superannuation guarantee charge equal to double the amount of superannuation guarantee charge payable by the employer for the year.
Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
59(3)
[Minimum penalty charge]
If the amount of additional superannuation guarantee charge that would, but for this subsection, be payable under subsection (1) or (2) is less than $20, the additional superannuation guarantee charge payable is $20.
SECTION 60
AMNESTY FROM LIABILITY TO PAY ADDITIONAL SUPERANNUATION GUARANTEE CHARGE
60(1)
If
(a)
under section
74, an employer qualifies for an amnesty in relation to part of the employer's superannuation guarantee shortfall for a quarter; and
(b)
any assessment made under section
62, before the employer qualified for the amnesty, of the additional superannuation guarantee charge payable by the employer for the quarter did not take into account the extent of the increase in the shortfall as a result of the disclosure of information that gave rise to the amnesty;
in working out under section 59 the employer's liability to pay additional superannuation guarantee charge, the amount of the superannuation guarantee charge payable by the employer for the quarter is reduced by the extent to which the employer qualifies for the amnesty for the quarter.
60(2)
Despite section
59, an employer's liability to pay additional superannuation guarantee charge under this Part for a quarter is nil if:
(a)
under section
74, the employer qualifies for an amnesty in relation to the whole of the employer's superannuation guarantee shortfall for the quarter; and
(b)
the Commissioner has not, before the employer qualified for the amnesty, made an assessment under section
62 of the additional superannuation guarantee charge payable by an employer under this Part for the quarter.
History
S 60 inserted by No 21 of 2020, s 3 and Sch 1 item 12, effective 24 May 2018.
Former s 60 repealed by No 91 of 2000, s 3 and Sch 2 item 63, effective 1 July 2000. S 60 formerly read:
SECTION 60 FALSE OR MISLEADING STATEMENTS
60(1)
If:
(a)
an employer other than a government body:
(i)
makes a statement that is false or misleading in a material particular to:
(A)
a taxation officer; or
(B)
a person other than a taxation officer for a purpose connected with this Act; or
(ii)
omits from a statement made to:
(A)
a taxation officer; or
(B)
a person other than a taxation officer for a purpose connected with this Act;
anything without which the statement is misleading in a material particular; and
(b)
the superannuation guarantee charge properly payable by the employer exceeds the superannuation guarantee charge that would have been payable by the employer if it were assessed on the basis that the statement were not false or misleading;
the employer is liable to pay, by way of penalty, additional superannuation guarantee charge equal to double the amount of the excess referred to in paragraph (b).
60(2)
If the amount of additional superannuation guarantee charge that would, but for this subsection, be payable under subsection (1) is less than $20, the additional superannuation guarantee charge payable is $20.
60(3)
A reference in this section to a statement made to a taxation officer is a reference to a statement made to a taxation officer orally, in writing, in a data processing device or in any other form and, for example, includes a statement:
(a)
made in an objection, statement or other document lodged, given or prepared, or purporting to be lodged, given or prepared under this Act; and
(b)
made in answer to a question asked of a person under this Act; and
(c)
made in any information provided, or purporting to be provided, under this Act; and
(d)
made in a document provided to a taxation officer otherwise than under this Act.
60(4)
A reference in this section to a statement made to a person other than a taxation officer for a purpose connected with this Act is a reference to a statement made orally, in writing, in a data processing device or in any other form and, for example, includes a statement:
(a)
made in an objection, statement or other document lodged with, given to or prepared for the person; and
(b)
made in answer to a question asked by the person; and
(c)
made in any information provided to the person.
Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
61
(Repealed) SECTION 61 PENALTY SUPERANNUATION GUARANTEE CHARGE WHERE ARRANGEMENT TO AVOID SUPERANNUATION GUARANTEE CHARGE
(Repealed by No 91 of 2000)
History
S 61 repealed by No 91 of 2000, s 3 and Sch 2 item 63, effective 1 July 2000. S 61 formerly read:
SECTION 61 PENALTY SUPERANNUATION GUARANTEE CHARGE WHERE ARRANGEMENT TO AVOID SUPERANNUATION GUARANTEE CHARGE
61
If, under section 30, an employer is liable to pay an amount of superannuation guarantee charge (in this section called the
"amount payable"
) that is greater than the amount that would have been payable if section 30 had not applied to the employer (in this section called the
"notional amount"
), the employer is also liable to pay, by way of penalty, additional superannuation guarantee charge worked out using the formula:
|
2 × [Amount payable − Notional amount].
|
Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
SECTION 62
ASSESSMENT OF ADDITIONAL SUPERANNUATION GUARANTEE CHARGE
62(1)
The Commissioner must make an assessment of the additional superannuation guarantee charge payable by an employer under this Part and must, as soon as practicable after the assessment is made, give written notice of the assessment to the employer.
62(2)
(Repealed by No 81 of 2016)
History
S 62(2) repealed by No 81 of 2016, s 3 and Sch 10 item 85, applicable to documents (however described) that the Commissioner gives on or after 1 July 2017 under taxation laws. S 62(2) formerly read:
62(2)
Nothing in this Act is taken to prevent a notice from being incorporated in a notice of any other assessment made in relation to the employer under this Act.
62(3)
The Commissioner may remit all or part of the additional superannuation guarantee charge payable by an employer under this Part, but, for the purposes of applying subsection
33(1) of the
Acts Interpretation Act 1901 to the power of remission conferred by this subsection, nothing in this Act is taken to prevent the exercise of the power at a time before an assessment is made of the additional superannuation guarantee charge.
62(4)
If:
(a)
an employer is liable under section
59 to additional superannuation guarantee charge for a quarter that started on or before 1 January 2018; and
(b)
there is particular information that is relevant to the amount of the employer's superannuation guarantee shortfall for the quarter; and
(c)
since the start of the amnesty period, either:
(i)
the employer has not disclosed that information to the Commissioner; or
(ii)
the employer has disclosed that information to the Commissioner, but only after the Commissioner informed the employer that the Commissioner was examining, or intended to examine, the employer's compliance with an obligation to pay the superannuation guarantee charge for the quarter; and
(d)
by taking that information into account, the employer's superannuation guarantee shortfall for the quarter exceeds what it would be if that information were not taken into account;
to the extent that the additional superannuation guarantee charge relates to that excess, the Commissioner's power under subsection (3) of this section to remit the additional superannuation guarantee charge is limited to remitting no more than half of the charge.
History
S 62(4) inserted by No 21 of 2020, s 3 and Sch 1 item 13, effective 6 September 2020.
62(5)
However, subsection (4) does not apply if the Commissioner is satisfied that there were exceptional circumstances that prevented the employer from:
(a)
disclosing that information to the Commissioner; or
(b)
disclosing that information to the Commissioner before the Commissioner informed the employer as mentioned in subparagraph (4)(c)(ii);
as the case requires.
History
S 62(5) inserted by No 21 of 2020, s 3 and Sch 1 item 13, effective 6 September 2020.
SECTION 62A
62A
OFFSETS TO BE DISREGARDED
In working out the amount of superannuation guarantee charge payable by an employer for a quarter for the purposes of this Part, disregard the amount of any offset under section
23A (about offsetting late payments against charge).
History
S 62A inserted by No 147 of 2005, s 3 and Sch 6 item 9, applicable to contributions made on or after 1 January 2006.
PART 8 - PAYMENTS OF AMOUNTS OF SHORTFALL COMPONENTS FOR THE BENEFIT OF EMPLOYEES
History
Pt 8 heading substituted by No 51 of 2002, s 3 and Sch 1 item 159, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). The heading formerly read:
PART 8 - DISTRIBUTION OF SHORTFALL COMPONENT OF CHARGE
63
(Repealed) SECTION 63 APPLICATION OF PART
(Repealed by No 51 of 2002)
History
S 63A and 63B substituted for s 63 by No 51 of 2002, s 3 and Sch 1 item 160, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 63 formerly read:
SECTION 63 APPLICATION OF PART
63
This Part is concerned with the way in which the Commissioner is to deal with the shortfall component of a payment of superannuation guarantee charge in relation to a particular employee.
SECTION 63A
PAYMENTS TO WHICH THIS PART APPLIES
63A(1)
[Application]
This Part applies to a charge payment in respect of one or more employees (the
benefiting employee
or
benefiting employees
) that is made by or on behalf of an employer.
63A(1A)
[Application]
This Part applies to a former employee as if the former employee were an employee of the person who was the former employee's employer.
History
S 63A(1A) inserted by No 147 of 2005, s 3 and Sch 7 item 18, applicable to payments made on or after the first day of the first quarter after the quarter in which this Act receives the Royal Assent [ie 14 December 2005]. No 147 of 2005, s 3 and Sch 7 item 19, contains the following provision:
Previous interpretation preserved
19
The amendment is not to be taken to affect by implication the interpretation of a provision amended at a time before commencement.
63A(2)
[Meaning]
In this section:
charge payment
means a payment of superannuation guarantee charge, or related penalty charge, for a quarter.
Estimates under the Taxation Administration Act 1953
63A(3)
For the purposes of this Part, an amount paid to the Commonwealth is treated as being a payment of superannuation guarantee charge:
(a)
in respect of an employee or employees; and
(b)
made by or on behalf of an employer;
to the extent that, as a result of the amount being paid to the Commonwealth, a liability of the employer to pay superannuation guarantee charge in respect of that employee or those employees is discharged under subsection 268-20(3), or section 269-40, in Schedule 1 to the Taxation Administration Act 1953.
Note:
Under Division 268 in that Schedule, the Commissioner may make an estimate of the unpaid and overdue amount of an employer's superannuation guarantee charge for a quarter.
History
S 63A(3) amended by No 99 of 2012, s 3 and Sch 1 item 48, by inserting ", or section 269-40,", applicable to a company's liability to pay superannuation guarantee charge for a quarter if the day by which the company must lodge a superannuation guarantee statement for the quarter occurs on or after 29 June 2012.
S 63A(3) inserted by No 99 of 2012, s 3 and Sch 1 item 35, applicable to superannuation guarantee charge for a quarter if the day by which you must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012.
63A(4)
However, subsection (3) does not apply to the amount until the Commissioner knows which employee or employees the liability to pay the superannuation guarantee charge was in respect of.
History
S 63A(4) inserted by No 99 of 2012, s 3 and Sch 1 item 35, applicable to superannuation guarantee charge for a quarter if the day by which you must lodge a superannuation guarantee statement for the quarter occurs on or after 30 June 2012.
History
S 63A and 63B substituted for s 63 by No 51 of 2002, s 3 and Sch 1 item 160, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 63B
OVERVIEW OF THIS PART
63B(1)
[Shortfall component]
If a payment to which this Part applies is made, the Commissioner is required to pay (or otherwise deal with) an amount, which is called the shortfall component, for the benefit of a benefiting employee under sections 65 to 67.
63B(2)
[If only one benefiting employee]
If there is only one benefiting employee, the shortfall component for the payment is worked out under section 64A.
63B(3)
[If more than one benefiting employee]
If there is more than one benefiting employee, there will be separate shortfall components for each of the employees for the payment, worked out under section 64B.
History
S 63A and 63B substituted for s 63 by No 51 of 2002, s 3 and Sch 1 item 160, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
64
(Repealed) SECTION 64 WHAT IS THE "SHORTFALL COMPONENT"?
(Repealed by No 51 of 2002)
History
S 64A and 64B substituted for s 64 by No 51 of 2002, s 3 and Sch 1 item 161, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 64 formerly read:
SECTION 64 WHAT IS THE "SHORTFALL COMPONENT"?
64(1)
If a payment of superannuation guarantee charge relates only to one employee, the shortfall component of the payment is the amount of the payment less:
(a)
any amount in respect of the administration component for the year to which the payment relates; and
(b)
any amount of penalty charge (other than penalty charge under section 49 that does not relate to additional superannuation guarantee charge under Part 7) included in the payment.
64(2)
If a payment of superannuation guarantee charge relates to 2 or more employees, the shortfall component of the payment is worked out in the following manner:
(a)
the following amounts are deducted:
(i)
any amount in respect of the administration component for the year to which the payment relates;
(ii)
any amount of penalty charge (other than penalty charge under section 49 that does not relate to additional superannuation guarantee charge under Part 7) included in the payment;
(b)
the amount remaining after the amounts referred to in paragraph (a) have been deducted represents the total of the shortfall components for all of the employees concerned;
(c)
the shortfall component in relation to a particular employee is the amount worked out using the formula:
where:
'A'
is the total amount referred to in paragraph (b);
'B'
is the employer's individual superannuation guarantee shortfall in relation to the particular employee for the year concerned;
'C'
is the total of the employer's individual superannuation guarantee shortfalls in relation to all employees to whom the payment or payments related for the year concerned.
SECTION 64A
THE
SHORTFALL COMPONENT
FOR ONE BENEFITING EMPLOYEE
64A(1)
[Application]
This section applies if there is only one benefiting employee.
64A(2)
[Determining the shortfall component]
The
shortfall component
for the payment is the lesser of the following amounts:
(a)
the amount of the payment;
(b)
the amount of the employee entitlement, calculated at the time when the payment is made (see subsection (3)).
64A(3)
[Determining the employee entitlement]
The
employee entitlement
, calculated at a particular time, is the sum of the following amounts:
(a)
the individual superannuation guarantee shortfall for the employee for the quarter;
(b)
any general interest charge, in respect of non-payment of superannuation guarantee charge payable on that shortfall, that has been paid by, or is payable at, the particular time;
(c)
any nominal interest component for the quarter that has been paid by, or is payable at, the particular time;
reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the same quarter, employer and employee.
History
S 64A and 64B substituted for s 64 by No 51 of 2002, s 3 and Sch 1 item 161, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 64B
THE
SHORTFALL COMPONENT
FOR MORE THAN ONE BENEFITING EMPLOYEE
64B(1)
[Application]
This section applies if there is more than one benefiting employee. In this situation, separate shortfall components are worked out for each of the benefiting employees.
64B(2)
[Determining the shortfall component]
The
shortfall component
for a payment, in respect of a particular employee, is the employee's proportion of the lesser of the following amounts:
(a)
the amount of the payment;
(b)
the amount of the total employee entitlement, calculated at the time when the payment is made.
64B(3)
[Determining the employee's proportion]
Subject to subsection (3A), an
employee's proportion
of an amount is the following proportion:
Employer's individual superannuation guarantee
shortfall for the employee for the quarter
Total of the employer's individual superannuation
guarantee shortfalls for the quarter |
History
S 64B(3) amended by No 132 of 2007, s 3 and Sch 1 item 12, by substituting "Subject to subsection (3A), an" for "An", effective 31 December 2007.
64B(3A)
The Commissioner may vary an employee's proportion of an amount if the amount of the charge payment has been affected by:
(a)
the application of the monetary limit imposed by subsection 556(1A) of the
Corporations Act 2001 in respect of the employee; or
(b)
the application of the monetary limit imposed by paragraph 109(1)(e) of the
Bankruptcy Act 1966 in respect of the employee.
History
S 64B(3A) inserted by No 132 of 2007, s 3 and Sch 1 item 13, effective 31 December 2007.
Act No 132 of 2007, s 3 and Sch 1 item 15, contains the following application provision (effective 31 December 2007):
Application - subsection 64B(3A) of the Superannuation Guarantee (Administration) Act 1992
15(1)
Paragraph 64B(3A)(a) of the Superannuation Guarantee (Administration) Act 1992 applies if the relevant date (within the meaning of the Corporations Act 2001) is on or after the day on which this item commences. [Note: see above for commencement information].
15(2)
Paragraph 64B(3A)(b) of the Superannuation Guarantee (Administration) Act 1992, in so far as it relates to a bankruptcy, applies if the date of the bankruptcy is on or after the day on which this item commences. [Note: see above for commencement information].
15(3)
Paragraph 64B(3A)(b) of the Superannuation Guarantee (Administration) Act 1992, in so far as it relates to a personal insolvency agreement, applies if the relevant authority under section 188 of the Bankruptcy Act 1966 became effective on or after the day on which this item commences.
64B(4)
[Determining the total employee entitlement]
The
total employee entitlement
, calculated at a particular time, is the sum of the following amounts:
(a)
the employer's individual superannuation guarantee shortfalls for the quarter;
(b)
any general interest charge, in respect of non-payment of superannuation guarantee charge payable on those shortfalls, that has been paid by, or is payable at, the particular time;
(c)
any nominal interest component for the quarter that has been paid by, or is payable at, the particular time;
reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the same quarter, employer and employees.
History
S 64A and 64B substituted for s 64 by No 51 of 2002, s 3 and Sch 1 item 161, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 65
PAYMENT OF SHORTFALL COMPONENT
65(1)
Except in a case covered by section
65AA,
65A,
66,
66A or
67, the Commissioner is required to deal with the amount of the shortfall component in one of the following ways:
(a)
in any case - pay the amount of the component, for the benefit of the employee, to:
(i)
an RSA; or
(ii)
an account with a complying superannuation fund; or
(iii)
an account with a complying approved deposit fund;
that is held in the name of the employee and that is determined by the Commissioner to belong to the employee;
(b)
if the employee has nominated an RSA, a complying superannuation fund or a complying approved deposit fund in accordance with the regulations:
(i)
pay the amount of the component to the RSA or fund for the benefit of the employee; or
(ii)
make arrangements in accordance with the regulations to enable the amount of the component to be paid to the RSA or fund for the benefit of the employee;
(c)
if the employee has not made a nomination under paragraph (b) - credit the amount of the component to an account kept under the
Small Superannuation Accounts Act 1995 in the name of the employee.
History
S 65(1) amended by No 23 of 2018, s 3 and Sch 1 item 29, by inserting ", 66A", effective 1 April 2018. For general application and transitional provisions, see note under s 66A.
S 65(1) amended by No 27 of 2009, s 3 and Sch 2 item 60, by inserting "65AA," after "section", effective 27 March 2009.
S 65(1) substituted by No 51 of 2002, s 3 and Sch 1 item 162, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 65(1) formerly read:
65(1)
Except in a case covered by section 66 or 67, the Commissioner is required to deal with the shortfall component in one of the following ways:
(a)
pay the amount of the component, for the benefit of the employee, to an RSA, to a complying superannuation fund, or to a complying approved deposit fund, nominated in accordance with the regulations by the employee; or
(b)
in accordance with the regulations, make arrangements to enable the amount of the component to be paid to such a fund for the benefit of the employee; or
(c)
if the employee has not made a nomination under paragraph (a) - credit the amount of the component to an account kept under the Small Superannuation Accounts Act 1995 in the name of the employee.
S 65(1)(a) amended by No 62 of 1997, s 3 and Sch 15 item 34, by inserting "to an RSA," after "of the employee,", effective 2 June 1997.
S 65(1) amended by No 53 of 1995 and No 118 of 1993.
65(2)
A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to a superannuation fund is conclusively presumed to be a payment to a complying superannuation fund for the purposes of subsection (1) if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:
(a)
is a resident regulated superannuation fund within the meaning of the
Superannuation Industry (Supervision) Act 1993; and
(b)
is not subject to a direction under section
63 of that Act.
History
S 65(2) amended by No 51 of 2002, s 3 and Sch 1 item 163, by substituting "A payment of the amount of a shortfall component" for "A payment of a shortfall component", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 65(2) amended by No 181 of 1994; No 82 of 1993.
65(3)
A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to an approved deposit fund is conclusively presumed to be a payment to a complying approved deposit fund for the purposes of subsection (1) if subsection (4) applies.
History
S 65(3) amended by No 51 of 2002, s 3 and Sch 1 item 164, by substituting "A payment of the amount of a shortfall component" for "A payment of a shortfall component", effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
S 65(3) inserted by No 118 of 1993.
65(4)
This subsection applies if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund is operated in accordance with the
Superannuation Industry (Supervision) Act 1993 and regulations under that Act.
History
S 65(4) inserted by No 118 of 1993.
65(5)
If an amount is to be credited under paragraph (1)(c), an amount equal to the credited amount is to be credited to the Superannuation Holding Accounts Special Account.
History
S 65(5) amended by No 8 of 2005, s 3 and Sch 1 item 417, by substituting "credited to the Superannuation Holding Accounts Special Account" for "transferred from the Consolidated Revenue Fund to the Superannuation Holding Accounts Reserve", effective 22 February 2005.
Act No 8 of 2005, s 4, contained the following savings provision for amendments (including the present one) in Part 2 of its first Schedule:
Saving of matters in Part 2 of Schedule 1
(1) If:
(a)
a decision or action is taken or another thing is made, given or done; and
(b)
the thing is taken, made, given or done under a provision of a Part 2 Act that had effect immediately before the commencement of this Act;
then the thing has the corresponding effect, for the purposes of the Part 2 Act as amended by this Act, as if it had been taken, made, given or done under the Part 2 Act as so amended.
(2) In this section:
Part 2 Act
means an Act that is amended by an item in Part 2 of Schedule 1.
S 65(5) inserted by No 53 of 1995.
65(6)
A payment under paragraph (1)(a) to a particular account is taken to be a payment to the complying superannuation fund or the complying approved deposit fund with which the account is held, for the purposes of this section and any other laws of the Commonwealth that refer to payments under this section.
History
S 65(6) inserted by No 51 of 2002, s 3 and Sch 1 item 165, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 65AA
SHORTFALL COMPONENT AND FORMER TEMPORARY RESIDENT
65AA(1)
This section applies if the employee is a former temporary resident (within the meaning of the
Superannuation (Unclaimed Money and Lost Members) Act 1999).
65AA(2)
The Commissioner must treat the amount of the shortfall component as if it had been paid to the Commissioner by a superannuation provider in respect of the employee under section
20F of that Act.
History
S 65AA inserted by No 27 of 2009, s 3 and Sch 2 item 61, effective 27 March 2009.
SECTION 65A
65A
PAYMENT TO EMPLOYEE WHO IS OVER 65
Except in a case covered by section
65AA, the Commissioner must pay the amount of the shortfall component directly to the employee (whether or not he or she is still an employee) if:
(a)
the employee is 65 years or more; and
(b)
the employee has requested the Commissioner in the approved form to pay the amount to him or her.
History
S 65A amended by No 27 of 2009, s 3 and Sch 2 item 62, by substituting "Except in a case covered by section 65AA, the Commissioner must" for "The Commissioner must", effective 27 March 2009.
S 65A inserted by No 51 of 2002, s 3 and Sch 1 item 166, effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
SECTION 66
66
PAYMENT TO EMPLOYEE RETIRED DUE TO PERMANENT INCAPACITY OR INVALIDITY
Except in a case covered by section
65AA, if:
(a)
the employee has retired because of permanent incapacity or permanent invalidity; and
(b)
the former employee has lodged with the Commissioner:
(i)
written notice of the retirement; and
(ii)
a copy of a certificate signed by 2 registered medical practitioners certifying that the former employee is unlikely to be able to work again in a capacity for which he or she is reasonably qualified by education, training or experience;
the Commissioner must pay the amount of the shortfall component to the former employee.
History
S 66 amended by No 27 of 2009, s 3 and Sch 2 item 63, by substituting "Except in a case covered by section 65AA, if" for "If", effective 27 March 2009.
S 66 amended by No 53 of 1995; substituted by No 56 of 1994.
SECTION 66A
66A
PAYMENT TO EMPLOYEE WITH TERMINAL MEDICAL CONDITION
Except in a case covered by section 65AA, the Commissioner must pay the amount of the shortfall component to the employee (whether or not he or she is still an employee) if:
(a)
a terminal medical condition (within the meaning of the
Income Tax Assessment Act 1997) exists in relation to the employee; and
(b)
the employee has requested the Commissioner in the approved form to pay the amount to him or her.
History
S 66A inserted by No 23 of 2018, s 3 and Sch 1 item 30, effective 1 April 2018. No 23 of 2018, s 3 and Sch 1 Pt 7 contain the following general application and transitional provisions:
Part 7 - General application and transitional provisions
75 Object
75
The object of this Part is to ensure that, despite the repeals and amendments made by this Schedule, the full legal and administrative consequences of:
(a)
any act done or omitted to be done; or
(b)
any state of affairs existing; or
(c)
any period ending;
before such a repeal or amendment applies, can continue to arise and be carried out, directly or indirectly through an indefinite number of steps, even if some or all of those steps are taken after the repeal or amendment applies.
76 Making and amending assessments, and doing other things, in relation to past matters
76
Even though an Act is repealed or amended by this Schedule, the repeal or amendment is disregarded for the purpose of doing any of the following under any Act or legislative instrument:
(a)
making or amending an assessment (including under a provision that is itself repealed or amended);
(b)
exercising any right or power, performing any obligation or duty or doing any other thing (including under a provision that is itself repealed or amended);
in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
77 Saving of provisions about effect of assessments
77
If a provision or part of a provision that is repealed or amended by this Schedule deals with the effect of an assessment, the repeal or amendment is disregarded in relation to assessments made, before or after the repeal or amendment applies, in relation to any act done or omitted to be done, any state of affairs existing, or any period ending, before the repeal or amendment applies.
78 Repeals disregarded for the purposes of dependent provisions
78
If the operation of a provision (the
subject provision
) of any Act or legislative instrument depends to any extent on an Act, or a provision of an Act, that is repealed by this Schedule, the repeal is disregarded so far as it affects the operation of the subject provision.
79 Part does not limit operation of section 7 of the
Acts Interpretation Act 1901
79
This Part does not limit the operation of section 7 of the Acts Interpretation Act 1901.
SECTION 67
67
PAYMENT WHERE EMPLOYEE DECEASED
Except in a case covered by section
65AA, if the employee has died, the Commissioner must pay the amount of the shortfall component to the legal personal representative of the employee.
History
S 67 amended by No 27 of 2009, s 3 and Sch 2 item 63, by substituting "Except in a case covered by section 65AA, if" for "If", effective 27 March 2009.
68
(Repealed) SECTION 68 PAYMENT NOT SUBJECT TO TAXATION
(Repealed by No 53 of 1995)
SECTION 69
69
REPAYMENT OF OVERPAYMENTS IN RELATION TO A SHORTFALL COMPONENT
If an amount paid by the Commissioner under a provision of this Part (other than paragraph
65(1)(c)) exceeds the amount properly payable by the Commissioner under that provision, the party to whom the payment has been made is liable to repay to the Commonwealth the amount of the excess.
History
S 69 amended by No 53 of 1995.
SECTION 69A
RECOVERY OF SHORTFALL COMPONENT INCORRECTLY CREDITED TO AN ACCOUNT KEPT UNDER THE
SMALL SUPERANNUATION ACCOUNTS ACT 1995
69A(1)
[Application]
This section applies if:
(a)
an amount credited by the Commissioner under paragraph
65(1)(c) of this Act to an account kept under the
Small Superannuation Accounts Act 1995 exceeds the amount that should have been credited to the account; and
(b)
the balance of the account is attributable, in whole or in part, to the credit.
69A(2)
[Account to be debited]
The account is to be debited by the amount of the excess.
69A(3)
[Special Account amount]
An amount equal to the excess is to be debited from the Superannuation Holding Accounts Special Account.
History
S 69A(3) substituted by No 8 of 2005, s 3 and Sch 1 item 418, effective 22 February 2005. For savings provisions see note under s 65. S 69A(3) formerly read:
69A(3)
An amount equal to the excess is to be:
(a)
debited to the Superannuation Holding Accounts Reserve; and
(b)
credited to the Consolidated Revenue Fund.
S 69A inserted by No 53 of 1995.
SECTION 70
70
RECOVERY OF OVERPAYMENTS
The amount of any excess payment referred to in section
69 may be recovered by the Commonwealth as a debt due to the Commonwealth.
SECTION 71
71
APPROPRIATION
Amounts that the Commissioner is required to pay under this Part are payable out of the Consolidated Revenue Fund, which is appropriated accordingly.
PART 9 - MISCELLANEOUS
SECTION 72
TREATMENT OF PARTNERSHIPS
72(1)
[Partnership a legal person]
Subject to this section, this Act applies as if a partnership were a legal person.
72(2)
[Obligation on partnership]
An obligation that, apart from this subsection, would be imposed by this Act on a partnership is instead imposed on each partner, but may be discharged by any of the partners.
72(3)
[Liability to pay money]
If, apart from this subsection, a liability to pay money would be imposed on a partnership by this Act, the liability is instead imposed on the partners jointly and severally.
72(4)
[Offence committed]
If, because of subsection (1), a partnership would be taken to have committed an offence, the offence is instead taken to have been committed by each of the partners.
72(5)
[Defence]
In a prosecution for an offence taken to have been committed by a person because of subsection (4), it is a defence that the person:
(a)
did not aid, abet, counsel or procure the act or omission constituting the offence; and
(b)
was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.
72(6)
[Reference to Pt III of Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.
SECTION 73
TREATMENT OF UNINCORPORATED ASSOCIATIONS
73(1)
["association"]
In this section,
association
means an unincorporated association or body of persons (other than a partnership).
73(2)
[Association a legal person]
Subject to this section, this Act applies as if an association were a legal person.
73(3)
[Obligation on association]
An obligation that, apart from this subsection, would be imposed on an association is instead imposed on the officers of the association.
73(4)
[Liability to pay money]
If, apart from this subsection, a liability to pay money would be imposed on an association by this Act, the liability is instead imposed on the members of the association jointly and severally.
73(5)
[Offence committed]
If, because of subsection (2), an association would be taken to have committed an offence, the offence is instead taken to have been committed by each of the officers of the association.
73(6)
[Defence]
In a prosecution for an offence taken to have been committed by a person by virtue of subsection (5), it is a defence that the person:
(a)
did not aid, abet, counsel or procure the act or omission constituting the offence; and
(b)
was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence.
73(7)
[Reference to Pt III of Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.
SECTION 74
AMNESTY IN RELATION TO HISTORIC AMOUNTS OF SUPERANNUATION GUARANTEE SHORTFALL
Qualifying for the amnesty
74(1)
An employer qualifies for an amnesty for the employer's superannuation guarantee shortfall for a quarter if:
(a)
during the period (the
amnesty period
) provided by subsection (3), the employer discloses to the Commissioner, in the approved form, information that:
(i)
relates to the amount of the employer's superannuation guarantee shortfall for the quarter; and
(ii)
was not disclosed to the Commissioner before the amnesty period; and
(b)
the amnesty period started after the end of the period of 28 days after the end of the quarter; and
(c)
the Commissioner has not, at any time before the disclosure, informed the employer that the Commissioner is examining, or intends to examine, the employer's compliance with an obligation to pay the superannuation guarantee charge for the quarter.
74(2)
However, if the employer would have a superannuation guarantee shortfall for the quarter even if the information in the disclosure were not taken into account, the employer qualifies for an amnesty for the shortfall only to the extent of the increase in the shortfall as a result of taking the information into account.
74(3)
The
amnesty period
is the period that:
(a)
started on 24 May 2018; and
(b)
ends 6 months after the day the
Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020 receives the Royal Assent.
Ceasing to qualify for the amnesty
74(4)
The employer ceases to qualify, and is taken never to have qualified, for the amnesty for the employer's superannuation guarantee shortfall for the quarter if the Commissioner notifies the employer under subsection (5).
74(5)
The Commissioner may notify the employer in writing that the employer has ceased to qualify, and is taken never to have qualified, for that amnesty if:
(a)
the employer:
(i)
has not, on or before the day on which superannuation guarantee charge on the employer's superannuation guarantee shortfall for the quarter became payable, paid that superannuation guarantee charge; and
(ii)
has not, at any time, entered into an arrangement with the Commissioner that includes the payment of that superannuation guarantee charge; or
(b)
the employer has entered into such an arrangement, but has failed to comply with it.
74(6)
For the purposes of subparagraph (5)(a)(i), a payment under this Act of an amount equal to the amount of the superannuation guarantee charge mentioned in that subparagraph is taken to be a payment of that charge whether or not the Commissioner applies the payment to satisfy the employer's liability to pay that charge.
History
S 74 inserted by No 21 of 2020, s 3 and Sch 1 item 14, effective 24 May 2018.
Former s 74 repealed by No 2 of 2015, s 3 and Sch 2 item 63, effective 1 July 2015. S 74 formerly read:
SECTION 74 JUDICIAL NOTICE OF SIGNATURE
74
All courts and tribunals, and all judges and persons acting judicially or authorised by law or consent of parties to hear, receive and examine evidence, are to take judicial notice of the signature of a person who holds or has held the office of Commissioner, Second Commissioner or Deputy Commissioner.
75
(Repealed) SECTION 75 EVIDENCE
(Repealed by No 2 of 2015)
History
S 75 repealed by No 2 of 2015, s 3 and Sch 2 item 63, effective 1 July 2015. S 75 formerly read:
SECTION 75 EVIDENCE
75(1)
The mere production of:
(a)
a notice of assessment; or
(b)
a document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a notice of assessment;
is conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amounts and all of the particulars of the assessment are correct.
75(2)
A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of a document issued or given by the Commissioner, a Second Commissioner or a Deputy Commissioner is prima facie evidence that the second-mentioned document was so issued or given.
75(3)
A document signed by the Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a copy of, or an extract from, a superannuation guarantee statement or a notice of assessment is evidence of the matter set out in the document to the same extent as the original statement or notice, as the case may be, would be if it were produced.
75(4)
A certificate signed by the Commissioner, a Second Commissioner or a Deputy Commissioner certifying that a sum specified in the certificate was, on the day of the certificate, payable by a person in relation to an amount of superannuation guarantee charge or by way of penalty under section 49 or Part 7, is prima facie evidence of the matters stated in the certificate.
75(5)
A superannuation guarantee statement purporting to be made or signed by or on behalf of an employer is prima facie evidence that the statement was made by the employer or with the employer's authority.
76
(Repealed) SECTION 76 ACCESS TO PREMISES ETC.
(Repealed by No 2 of 2015)
History
S 76 repealed by No 2 of 2015, s 3 and Sch 2 item 63, effective 1 July 2015. S 76 formerly read:
SECTION 76 ACCESS TO PREMISES ETC.
76(1)
For the purposes of this Act, an authorised officer:
(a)
may, at any reasonable time, enter and remain on any land or premises; and
(b)
is entitled to full and free access at any reasonable time to all documents; and
(c)
may inspect, examine, make copies of, or take extracts from, any documents.
76(2)
An authorised officer is not entitled to enter or remain on any land or premises if, on being requested by the occupier of the land or premises for proof of authority, the officer does not produce a written authority signed by the Commissioner stating that the officer is authorised to exercise powers under this section.
76(3)
The occupier of land or premises entered or proposed to be entered by an authorised officer under subsection (1) must, for the purpose of enabling the effective exercise of the officer's powers under this section, provide the officer with all reasonable facilities and assistance that the occupier is reasonably capable of providing.
Penalty for contravention of this subsection: 30 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 76(3) amended by No 91 of 2000, s 3 and Sch 2 item 64, by substituting the penalty and adding the Note, effective 1 July 2000. The penalty formerly read "Penalty for contravention of this subsection: $1,000."
Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
77
(Repealed) SECTION 77 OBTAINING INFORMATION AND EVIDENCE
(Repealed by No 2 of 2015)
History
S 77 repealed by No 2 of 2015, s 3 and Sch 2 item 63, effective 1 July 2015. S 77 formerly read:
SECTION 77 OBTAINING INFORMATION AND EVIDENCE
77(1)
The Commissioner may, for the purposes of this Act, by written notice, require a person:
(a)
to give to the Commissioner, within a reasonable period, and in a reasonable manner, specified in the notice, any information that the Commissioner requires; and
(b)
to attend before the Commissioner, or an authorised officer, at a reasonable time and place specified in the notice, and then and there to answer questions; and
(c)
to produce to the Commissioner, at a reasonable time and place specified in the notice, any documents in the custody or under the control of the person.
77(2)
The Commissioner may require the information or answers to be verified or given on oath or affirmation, and either orally or in writing, and for that purpose the Commissioner or an authorised officer may administer an oath or affirmation.
77(3)
The oath to be taken or affirmation to be made by a person for the purposes of this section is an oath or affirmation that the information or answers the person will give will be true.
77(4)
The regulations must prescribe scales of expenses to be allowed to persons required to attend under this section.
78
(Repealed) SECTION 78 REPORTING SUPERANNUATION CONTRIBUTIONS
(Repealed by No 9 of 2007)
History
S 78 repealed by No 9 of 2007, s 3 and Sch 4 item 8, applicable in relation to things that are done and events that occur on or after 1 July 2007.
S 78 formerly read:
SECTION 78 REPORTING SUPERANNUATION CONTRIBUTIONS
78(1)
A superannuation provider in relation to a fund or RSA is liable to an administrative penalty if:
(a)
a person is a member of the fund (or holder of the RSA) at the end of a year; and
(b)
contributions are made or transferred to the fund or RSA for the benefit of the person in the year; and
(c)
the provider fails to give the Commissioner a statement in the approved form setting out the information mentioned in subsection (3) in respect of the person for the year.
78(2)
The amount of the penalty is 5 penalty units.
Note:
Division 298 in Schedule 1 to the Taxation Administration Act 1953 contains machinery provisions relating to administrative penalties.
78(3)
The regulations may specify information in relation to:
(a)
the total of all contributions made by an employer to a fund or RSA for the benefit of an employee in a year; and
Note:
Contributions made by an employer include contributions made on behalf of the employer (see subsection 6(2)).
(b)
the total of all contributions made to a fund or RSA for the benefit of an employee in a year.
78(4)
The superannuation provider must give the statement to the Commissioner within the period specified in the regulations.
Note:
Section 388-55 in Schedule 1 to the Taxation Administration Act 1953 allows the Commissioner to defer the time for giving an approved form.
78(5)
Regulations made for the purposes of this section may specify different information and periods for different kinds of superannuation providers.
S 78 inserted by No 80 of 2006, s 3 and Sch 7 items 3 and 6, applicable in relation to financial years starting on or after 1 July 2005. Despite subsection 12(2) of the Legislative Instruments Act 2003, the first regulations made for the purposes of sections 78 and 78A of the Superannuation Guarantee (Administration) Act 1992 may be expressed to take effect from 1 July 2005.
Former s 78 repealed by No 179 of 1999, s 3 and Sch 2 item 85, effective 22 December 1999. Despite this repeal, s 78 continues to have effect in relation to a liability that arose before 1 July 2000. S 78 formerly read:
SECTION 78 RIGHT OF CONTRIBUTION
78(1)
If:
(a)
2 or more persons are jointly and severally liable to pay an amount of superannuation guarantee charge; and
(b)one of them has paid the amount or part of it;
the person who paid may, in a court of competent jurisdiction, recover by way of contribution, and as a debt, from any of the other persons an amount equal to as much of the amount paid as the court considers just and equitable.
78(2)
In subsection (1):
'superannuation guarantee charge'
includes additional superannuation guarantee charge under section 49 or Part 7.
78A
(Repealed) SECTION 78A REPORTING WHERE CONTRIBUTIONS TRANSFERRED BETWEEN SUPERANNUATION PROVIDERS
(Repealed by No 9 of 2007)
History
S 78A repealed by No 9 of 2007, s 3 and Sch 4 item 8, applicable in relation to things that are done and events that occur on or after 1 July 2007.
S 78A formerly read:
SECTION 78A REPORTING WHERE CONTRIBUTIONS TRANSFERRED BETWEEN SUPERANNUATION PROVIDERS
78A(1)
A superannuation provider in relation to a fund or RSA is liable to an administrative penalty if:
(a)
the superannuation provider transfers to another superannuation provider any contributions of a kind mentioned in section 78 in relation to a member of the fund (or holder of the RSA) during a year; and
(b)
the superannuation provider fails to give the other superannuation provider a statement in the approved form setting out the information mentioned in subsection (3) within 30 days after the day on which the amount is transferred.
Note:
Section 388-55 in Schedule 1 to the Taxation Administration Act 1953 allows the Commissioner to defer the time for giving an approved form.
78A(2)
The amount of the penalty is 5 penalty units.
Note:
Division 298 in Schedule 1 to the Taxation Administration Act 1953 contains machinery provisions relating to administrative penalties.
78A(3)
The regulations may specify information in relation to:
(a)
the total of all contributions made by an employer to a fund or RSA for the benefit of an employee in a year; and
Note:
Contributions made by an employer include contributions made on behalf of the employer (see subsection 6(2)).
(b)
the total of all contributions made to a fund or RSA for the benefit of an employee in a year.
78A(4)
Regulations made for the purposes of this section may specify different information and periods for different kinds of superannuation providers.
S 78A inserted by No 80 of 2006, s 3 and Sch 7 item 3, applicable in relation to financial years starting on or after 1 July 2005. Despite subsection 12(2) of the Legislative Instruments Act 2003, the first regulations made for the purposes of sections 78 and 78A of the Superannuation Guarantee (Administration) Act 1992 may be expressed to take effect from 1 July 2005.
SECTION 79
RECORDS TO BE KEPT AND RETAINED BY EMPLOYERS
79(1)
An employer must keep records that record and explain all transactions and other acts engaged in by the employer, or required to be engaged in by the employer, under this Act.
Note:
There is an administrative penalty if you do not keep or retain records as required by this section: see section 288-25 in Schedule 1 to the Taxation Administration Act 1953.
History
S 79(1) amended by No 91 of 2000, s 3 and Sch 2 item 65, by adding the Note, effective 1 July 2000. Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
79(2)
The records must include any documents relevant to ascertaining the individual superannuation guarantee shortfalls of the employer for a quarter.
History
S 79(2) substituted by No 51 of 2002, s 3 and Sch 1 item 167, effective 1 July 2003. For application and transitional provisions, see note under s 5(3). S 79(2) formerly read:
79(2)
The records must include any documents relevant to ascertaining:
(a)
the employer's annual national payroll for the employer's base year; and
(b)
the individual superannuation guarantee shortfalls of the employer for a year.
79(3)
The records must be kept:
(a)
in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and
(b)
so that the employer's liability under this Act can be readily ascertained.
79(4)
An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after those records were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is later.
79(5)
Nothing in this section requires an employer to retain records if:
(a)
the Commissioner has notified the employer that the retention of the records is not required; or
(b)
the employer is a company that has gone into liquidation and been finally dissolved.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.
History
S 79(5) amended by No 146 of 2001, s 3 and Sch 4 item 125, by inserting the Note at the end, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
79(6)
An employer who contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
History
S 79(6) amended by No 4 of 2016, s 3 and Sch 4 items 1 and 295, by substituting "commits" for "is guilty of", effective 10 March 2016.
S 79(6) amended by No 146 of 2001, s 3 and Sch 4 item 126, by omitting ", without reasonable excuse," after "An employer who", applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
S 79(6) amended by No 91 of 2000, s 3 and Sch 2 items 66 and 67, by substituting "30 penalty units" for "$3,000" and by adding the Note, effective 1 July 2000. Sch 2 of No 91 of 2000 contains the following transitional provision:
Transitional - existing RBAs
129
Although the A New Tax System (Pay As You Go) Act 1999 repealed subsection 8AAZL(3) of the Taxation Administration Act 1953, special priority credits referred to in that subsection are to continue to be applied in accordance with that subsection.
79(6A)
Subsection (6) does not apply to the extent that the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6A), see subsection 13.3(3) of the Criminal Code.
History
S 79(6A) inserted by No 146 of 2001, s 3 and Sch 4 item 127, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
79(7)
An offence under this section is an offence of strict liability.
Note:
For
strict liability
, see section 6.1 of the Criminal Code.
History
S 79(7) inserted by No 146 of 2001, s 3 and Sch 4 item 128, applicable to acts and omissions that take place after 15 December 2001. If an act or omission is alleged to have taken place between two dates, one before and one on or after 15 December 2001, the act or omission is alleged to have taken place before 15 December 2001.
SECTION 79A
APPROVED CLEARING HOUSE
79A(1)
This section applies if:
(a)
an employer pays an amount to an approved clearing house for the benefit of an employee; and
(b)
as a result, the approved clearing house makes a contribution to an RSA, a superannuation fund or a superannuation scheme for the benefit of the employee.
79A(2)
To avoid doubt, the approved clearing house makes the contribution to the RSA, superannuation fund or superannuation scheme on behalf of the employer, as the employer's agent.
79A(3)
Approved clearing house
means a body specified in the regulations for the purposes of this subsection.
History
S 79A inserted by No 56 of 2010, s 3 and Sch 1 item 5, applicable to a payment made to an approved clearing house on or after 1 July 2010.
SECTION 80
80
REGULATIONS
The Governor-General may make regulations prescribing all matters:
(a)
required or permitted by this Act to be prescribed; or
(b)
necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.
History
S 80 amended by No 51 of 2002, s 3 and Sch 1 item 168, by substituting ``5 penalty units'' for ``$500'', effective 1 July 2003. For application and transitional provisions, see note under s 5(3).
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