OCCUPATIONAL SUPERANNUATION STANDARDS REGULATIONS 1987 (REPEALED)

PART I - PRELIMINARY  

REGULATION 3   INTERPRETATION  

3(1)   [ Definitions ]  

In these Regulations, unless the contrary intention appears:

actuary
means a Fellow or an Accredited Member of The Institute of Actuaries of Australia;

benefit
means a superannuation pension or an annuity, or an amount payable under a superannuation pension or an annuity, and includes an ETP;

business income
means the income of a business run by a person either alone or in partnership;

commencement day
, in relation to a superannuation pension or an annuity, means the first day of the period to which the first payment of the pension or annuity relates;

Commonwealth industrial authority
means any board, court, tribunal, body or person having authority under a Commonwealth Act to exercise any power of conciliation or arbitration in relation to industrial disputes;

CPI
means the consumer price index (all capital cities) published by the Australian Statistician;

defined benefit superannuation fund
means a superannuation fund whose governing rules provide that:

(a) in all cases - one or more members of the fund 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 fund is not a public sector fund - some or all of the contributions to the fund (out of which, together with earnings on those contributions, 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;

eligible bank
means:

(a) a savings bank or trading bank as defined by subsection 5(1) of the Banking Act 1959 ; or

(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on banking business;

eligible financial corporation
means a registered corporation within the meaning of the Financial Corporations Act 1974 , being a corporation that is:

(a) a corporation to which that Act applies by reason of paragraph 8(1)(a) or (b) of that Act; and

(b) a financial corporation within the meaning of paragraph 51(xx) of the Constitution;

eligible scheme
has the meaning given by section 159TE of the Tax Act;

employer
includes a person who engages another person to perform work under a subcontract;

employer representative
, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the employer or employers of the members of the fund or by an organisation nominated by that employer or those employers as representing the interests of that employer or those employers;

ETP
means an eligible termination payment;

fully funded fund
means a defined benefit superannuation fund that is funded in advance in accordance with actuarial advice at a level that is intended to be reasonably adequate to provide for present and prospective liabilities in respect of benefits relating to the fund;

issue
, in relation to a prospectus, has the meaning given to it by section 9 of the Corporations Law;

large fund
has the meaning given by subregulation 13(2) ;

life assurance company
means:

(a) a company registered under section 19 of the Life Insurance Act 1945 ; or

(b) a public authority constituted by a law of a State or Territory, being a public authority that carries on life insurance business within the meaning of subsection 4(1) of that Act;

life policy
has the same meaning as in the Life Insurance Act 1945 ;

member-financed benefits
means:

(a) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of contributions to the fund or such contributions and income derived from those contributions - the sum of:

(i) the contributions made by the member to the fund; and

(ii) the net earnings of the fund allotted to the member in accordance with the governing rules in respect of the earnings attributable to those contributions;

less an amount equal to any administrative or other costs that are deducted from those contributions in accordance with the governing rules but:

(iii) are not otherwise deducted from those contributions; and

(iv) are not otherwise deducted from fund income for the purpose of determining the net earnings of the fund; and

(v) are not otherwise charged to the account of the member;

(b) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is calculated on the basis of the benefits purchased under an endowment or whole of life policy - the amount of the benefits purchased by contributions made by the member to that policy, whether payment of the benefits pursuant to the policy is to be made on death, retirement, disablement or the occurrence of some other event; and

(c) where the amount of benefits that are vested in a member of a superannuation fund on withdrawal from the fund is defined in terms that include the member ' s salary at the date of withdrawal from the fund or at a date prior to such withdrawal or averaged over a period of employment prior to such withdrawal - benefits calculated in accordance with subregulation (5), together with the net earnings of the fund that are allotted to the member, in accordance with the terms of the governing rules, on the basis of such of those last-mentioned benefits as have been preserved in the fund;

member representative
, in relation to a board or committee of trustees of a superannuation fund, the board of a body corporate acting as the sole trustee of a superannuation fund or a management board, management committee or other management body that exercises actual control over the policies of a superannuation fund, means a member of that board, committee or body nominated by the members of the fund or by a trade union or other organisation representing the interests of those members;

minimum requisite benefit
, in relation to a member of a superannuation fund, means the minimum benefit required to be vested in the member by the superannuation fund conditions;

potential entitlement
has the meaning given by subregulation 9(1C) ;

prescribed agreement or award
means an agreement or award (including a consent award) that is certified or made by a Commonwealth industrial authority or a State industrial authority on or after 1 July 1986;

private sector fund
means a superannuation fund other than a public sector fund;

public sector fund
means a superannuation fund established:

(a) by 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;

recognised member
has the meaning given by section 159TE of the Tax Act;

registered auditor
means a person registered as an auditor, or deemed to be registered as an auditor, under the Companies Act 1981 or a law of a State or Territory relating to companies;

registered medical practitioner
means a person who is registered as a medical practitioner under a law of a State or Territory providing for the registration of medical practitioners;

registered organisation
means:

(a) an association registered under a law of a State or Territory as a trade union; and

(b) a society registered under a law of a State or Territory providing for the registration of friendly or benefit societies; and

(c) an association of employees that is registered as an organisation under the Conciliation and Arbitration Act 1904 ;

related entity
, in relation to a fund, means a corporation that is, under subsection 7(5) of the Companies Act 1981 , deemed to be related to the trustee or to any of the trustees, as the case may be, of the fund for the purposes of that Act;

rules
, in relation to a superannuation fund, means a trust instrument, other document or legislation, or any combination of those things, governing the establishment and operation of the fund;

shortfall component
means a shortfall component within the meaning of section 64 of the Guarantee Act;

State industrial authority
means:

(a) any board or court of conciliation or arbitration, or tribunal, body or person, having authority under any State law to exercise any power of conciliation or arbitration in relation to industrial disputes within the limits of the State; or

(b) any special board constituted under any State law relating to factories;

superannuation fund conditions
, in relation to a superannuation fund, means the superannuation fund conditions within the meaning of section 5 of the Act that are applicable to the fund;

the Act
means the Occupational Superannuation Standards Act 1987 ;

the Guarantee Act
means the Superannuation Guarantee (Administration) Act 1992 .

3(2)   [ Member contributions ]  

For the purposes of these Regulations, a reference to contributions to a superannuation fund made by a member of the fund shall be read as including a reference to:

(a) an amount transferred to that fund by another superannuation fund or by an approved deposit fund in respect of the member, being a benefit from the other fund that had, prior to that transfer, become vested in the member; and

(b) contributions made by the member to the fund that are remitted to the fund by the member ' s employer or some other person on behalf of that member other than contributions made by a member ' s employer to a superannuation fund on the employer ' s own behalf.

3(3)   [ " Net earnings " ]  

For the purposes of these Regulations, a reference to the net earnings of a superannuation fund is read as a reference to fund earnings after allowing for, at the discretion of the trustees in accordance with the governing rules:

(a) the sum of all costs deducted or charged as mentioned in subparagraphs (a)(iii), (iv) and (v) of the definition of member-financed benefits in subregulation (1); and

(b) any averaging of fund earnings (calculated after deducting the amount of any costs referred to in paragraph (a)) to reduce the effect of actual or possible periodic fluctuations in those earnings; and

(c) any losses incurred by the fund that have not otherwise been deducted.

3(4)   [ Employer contributions ]  

For the purposes of these Regulations, unless the contrary intention appears, a reference to contributions to a superannuation fund made by an employer of a member of the fund is taken to include a reference to:

(a) the amount of a shortfall component in respect of the member that is contributed to that fund; and

(b) any other contributions to the fund made by or on behalf of a person, other than the member, in respect of the member.

3(5)   [ Member-financed benefits based on salary ]  

Benefits shall be calculated as follows for the purposes of paragraph (c) of the definition of member-financed benefits in subregulation (1):

(a) where, throughout the period during which the member has contributed to the fund, contributions have been made by the member at the same rate - an amount calculated in accordance with the formula:

R × N × S 12

where:

R
is the rate, expressed as a percentage of the member ' s salary, at which contributions are, or have been, made to the fund by the member;

N
is the number of months that the member has contributed to the fund at that rate; and

S
is the amount of the member ' s salary at the date of withdrawal from the fund or at a date prior to such withdrawal or averaged over a period of employment prior to such withdrawal, as the case requires; and

(b) where, in respect of 2 or more periods within the period during which the member has contributed to the fund, the contributions have been made by the member at different rates - the sum of the amounts calculated by applying the formula specified in paragraph (a) in respect of each of such first-mentioned periods as if, for the purpose of ascertaining the relevant rate and number of months, that period were the whole of the period during which the member has contributed to the fund.

3(6)   [ Employment: gainful, full time, part time ]  

For the purposes of these Regulations:

(a) a person is gainfully employed if the person is employed for earnings including business income, bonuses, commissions, fees, gratuities, salary or wages;

(b) a person is employed part time if the person is gainfully employed for 10 hours or more weekly but less than 30 hours weekly;

(c) a person is employed full time if the person is gainfully employed for 30 hours or more weekly.

3(7)   [ Member withdrawal after latest allotment of net earnings ]  

For the purposes of paragraphs (a) and (c) of the definition of member-financed benefits in subregulation (1), if a member withdraws from a superannuation fund after the end of the latest period in respect of which the net earnings of the fund have been allotted to members in accordance with the governing rules, the benefits must include a reasonable share of the estimated net earnings of the fund for the period:

(a) that begins at the end of that latest period; and

(b) that ends when the member withdraws from the fund.

3(8)   [ Discharge of obligations as to net earnings ]  

Payment to the member of a superannuation fund of the share referred to in subregulation (7) discharges the obligation of the trustees of the fund under these Regulations to pay net earnings of the fund to that member in respect of the second-mentioned period in that subregulation.

3(9)   [ Particular portfolio of investments ]  

If a member of a superannuation fund:

(a) joined the fund under an arrangement; or

(b) otherwise agreed;

that the whole or a part of the contributions of the member to the fund would be invested in a particular portfolio or other division of the fund, a reference in this regulation to that fund is read, in respect of those, or that part of those, contributions as a reference to that portfolio or other division of the fund.

3(10)   [ Costs deducted re particular portfolio ]  

A reference in this regulation to costs deducted from the contributions of a member of a superannuation fund to whom subregulation (9) applies is a reference to costs in respect of the particular portfolio or other division of the fund referred to in that subregulation.