PART 7
-
PROVISIONS APPLYING ONLY TO REGULATED SUPERANNUATION FUNDS
SECTION 68A
TRUSTEES MUST NOT USE GOODS OR SERVICES TO INFLUENCE EMPLOYERS
68A(1)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if that action could reasonably be expected to:
(d)
influence the choice of the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
(e)
influence the person to encourage one or more of the person
'
s employees to remain, or apply or agree to be, a member of the fund.
Note:
Under the
Superannuation Guarantee (Administration) Act 1992
, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part
3A
of that Act).
History
S 68A(1) amended by No 57 of 2025, s 3 and Sch 1 item 142, by substituting
"
a choice loading
"
for
"
an increased individual superannuation guarantee shortfall
"
in the note, effective 1 July 2026. For application and transitional provisions, see note under s
64(5)
.
S 68A(1) substituted by No 40 of 2019, s 3 and Sch 9 item 4, effective 6 April 2019. No 40 of 2019, s 3 and Sch 9 item 8, contains the following provision:
8 Changes to ban on incentives for choosing a default fund
8(1)
The amendments made by item 4 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection
68A(1)
of the
Superannuation Industry (Supervision) Act 1993
, apply where a trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund:
(a)
supplies, or offers to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supplies, or offers to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.
8(2)
The amendments made by item 5 of this Schedule, and items 6 and 7 of this Schedule to the extent that the amendments relate to subsection
68A(3)
of the
Superannuation Industry (Supervision) Act 1993
, apply where a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, refuses to:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
on or after the day on which this Schedule commences.
S 68A(1) formerly read:
68A(1)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not:
(a)
supply, or offer to supply, goods or services to a person; or
(b)
supply, or offer to supply, goods or services to a person at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;
on the condition that one or more of the employees of the person will be, or will apply or agree to be, members of the fund.
68A(2)
However, subsection
(1)
does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
68A(3)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse to:
(a)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person; or
(b)
supply, or offer to supply, goods or services to a person, or a relative or associate of a person, at a particular price; or
(c)
give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person, or a relative or associate of a person;
if it is reasonable to conclude that the refusal is given because:
(d)
the person has not chosen the fund as the fund into which the person pays superannuation contributions for employees of the person who have no chosen fund; or
(e)
the person has not encouraged one or more of the person
'
s employees to remain, or apply or agree to be, a member of the fund.
Note:
Under the
Superannuation Guarantee (Administration) Act 1992
, employers will need to pay contributions for an employee who has no chosen fund into a fund chosen by the employer, in order to meet the choice of fund requirement and so avoid a choice loading for the employee. There are other limits on the fund that may be chosen by the employer (see Part
3A
of that Act).
History
S 68A(3) amended by No 57 of 2025, s 3 and Sch 1 item 143, by substituting
"
a choice loading
"
for
"
an increased individual superannuation guarantee shortfall
"
in the note, effective 1 July 2026. For application and transitional provisions, see note under s
64(5)
.
S 68A(3) substituted by No 40 of 2019, s 3 and Sch 9 item 5, effective. 6 April 2019. For provision, see note under s
68A(1)
. S 68A(3) formerly read:
68A(3)
A trustee of a regulated superannuation fund, or an associate of a trustee of a regulated superannuation fund, must not refuse:
(a)
to supply, or offer to supply, goods or services to a person; or
(b)
to supply, or offer to supply, goods or services to a person at a particular price; or
(c)
to give or allow, or offer to give or allow, a discount, allowance, rebate or credit in relation to the supply, or the proposed supply, of goods or services to a person;
for the reason that one or more of the employees of the person are not, or have not applied or agreed to be, members of the fund.
68A(4)
However, subsection
(3)
does not apply in relation to a supply of a kind prescribed in the regulations for the purposes of this subsection.
Civil penalty provisions
68A(4A)
Subsections
(1)
and
(3)
are civil penalty provisions as defined in section
193
, and Part
21
therefore provides for civil and criminal consequences of contravening, or being involved in a contravention of, those subsections.
History
S 68A(4A) inserted by No 40 of 2019, s 3 and Sch 9 item 6, effective 6 April 2019. For provision, see note under s
68A(1)
Civil liability
68A(5)
If:
(a)
a person (the
offender
) contravenes subsection
(1)
or
(3)
; and
(b)
another person (the
victim
) suffers loss or damage because of the contravention;
the victim may recover the amount of the loss or damage by action against the offender.
68A(6)
The action must be begun within 6 years after the day on which the cause of action arose.
68A(7)
This section does not affect any liability that the offender or another person has under any other provision of this Act or under any other law.
History
S 68A inserted by No 102 of 2004, s 3 and Sch 1 item 23, effective 1 July 2005.
View history note
Hide history note