Superannuation Guarantee (Administration) Act 1992

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 .

SECTION 4A   4A   EXTENSION TO JOINT PETROLEUM DEVELOPMENT AREA  
(Repealed by No 2 of 2015)

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.

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.

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.

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.

5(2C)  


Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth.

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.

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.

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.

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.

Finance Department
means the Department administered by the Finance Minister.

Finance Minister
means the Minister administering the Public Governance, Performance and Accountability Act 2013.

modifications
(Repealed by No 46 of 2011)

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.

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.

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.

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.

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.

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.

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.

annual national payroll
(Repealed by No 51 of 2002)

approved clearing house
has the meaning given by subsection 79A(3).

approved deposit fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.

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.

Australia
, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.

authorised officer
(Repealed by No 2 of 2015)

base year
(Repealed by No 51 of 2002)

Commissioner
means the Commissioner of Taxation.

Commonwealth employee
means an employee of the Commonwealth.

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.

complying approved deposit fund
has the meaning given by section 7A.

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)

CSS
means the scheme known as the Commonwealth Superannuation Scheme.

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.

defined benefit superannuation scheme
has the meaning given by section 6A.

Deputy Commissioner
means a Deputy Commissioner of Taxation.

employer shortfall exemption certificate
means a certificate issued under section 19AB.

general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.

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)

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.

industrial award
means a Commonwealth industrial award, a State industrial award or a Territory industrial award.

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)

MySuper member
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.

nominal interest component
, in relation to an employer and a quarter, has the meaning given by section 31.

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.

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.

penalty unit
(Repealed by No 9 of 2007)

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.

PSSAP
means the Public Sector Superannuation Accumulation Plan within the meaning of the Superannuation Act 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.

quarterly salary or wages base
, for an employer in respect of an employee, for a quarter has the meaning given by subsection 19(1).

resident of Australia
has the meaning given by section 8.

RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.

RSA provider
has the same meaning as in the Retirement Savings Accounts Act 1997.

sacrificed contribution
means a contribution to a complying superannuation fund or an RSA made under a salary sacrifice arrangement.

sacrificed ordinary time earnings amount
has the meaning given by subsection 15A(2).

sacrificed salary or wages amount
has the meaning given by subsection 15A(2).

salary sacrifice arrangement
has the meaning given by subsection 15A(1).

Second Commissioner
means a Second Commissioner of Taxation.

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.

stapled fund
has the meaning given by section 32Q.

superannuation fund
has the same meaning as in the Superannuation Industry (Supervision) Act 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)

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

6B(6)   [Manner of giving notice]  

A notice under this section may be given by post.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

SECTION 13   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)

SECTION 13A   13A   INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO SEAFARERS' RETIREMENT FUND  
(Repealed by No 93 of 2004)

SECTION 13B   13B   INTERPRETATION: NOTIONAL EARNINGS BASE WHERE EMPLOYER CONTRIBUTING TO ABERFOYLE AWARD SUPERANNUATION FUND  
(Repealed by No 93 of 2004)

SECTION 14   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)

SECTION 15   INTERPRETATION: MAXIMUM CONTRIBUTION BASE  

15(1)  


The maximum contribution base for a quarter in the 2001-02 year is $27,510.

15(2)  
(Repealed by No 51 of 2002)

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

15(4)  


Amounts calculated under subsection (3) must be rounded to the nearest 10 dollar multiple (rounding 5 dollars upwards).

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.

15(6)  


Amounts calculated under subsection (5) must be rounded down to the nearest 10 dollar multiple.

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.

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.

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.

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.

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.

SECTION 18   18   INDIVIDUAL SUPERANNUATION GUARANTEE SHORTFALL FOR 1992-93  
(Repealed by No 51 of 2002)

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.

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.

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

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:
formula_19_2A

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.

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:

formula_19_2B

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.

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).

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).

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.

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.

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.

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.

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.

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.

19(5)  
(Repealed by No 15 of 2007)

19(6)  
(Repealed by No 15 of 2007)

19(7)  
(Repealed by No 15 of 2007)

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.

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.

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.

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.

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. 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.

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.

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.

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).

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.

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:


A × B

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.
  • 22(3)   [Definitions]  

    For the purposes of subsection (2):

    the employment period
    means the period, or the aggregate of the periods, in the quarter for which the employee is employed by the employer.

    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.

    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.

    22(4)   [No reduction to less than 0]  

    The charge percentage for an employer for a quarter cannot be reduced below 0.

    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.

    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.

    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)

    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.

    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.

    23(4)  
    (Repealed by No 93 of 2004)

    23(4A)  
    (Repealed by No 93 of 2004)

    23(4B)  
    (Repealed by No 93 of 2004)

    23(4C)  
    (Repealed by No 93 of 2004)

    23(4D)  
    (Repealed by No 93 of 2004)

    23(4E)  
    (Repealed by No 93 of 2004)

    23(4F)  
    (Repealed by No 93 of 2004)

    23(5)  
    (Repealed by No 93 of 2004)

    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.

    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.

    23(6B)  
    (Repealed by No 51 of 2002)

    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.

    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.

    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.

    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.

    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.

    23(9)  
    (Repealed by No 93 of 2004)

    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.

    23(10)   Charge percentage not to be less than 0.  

    The charge percentage for an employer for a quarter cannot be reduced below 0.

    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.

    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.

    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.

    23(14)  
    Subsection (13) has effect despite section 9 of the Small Superannuation Accounts Act 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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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).

    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).

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    SECTION 25A   25A   CERTAIN CONTRIBUTIONS TAKEN TO BE IN ACCORDANCE WITH INDUSTRIAL AWARD THAT SPECIFIES NOTIONAL EARNINGS BASE  

    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.

    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.

    SECTION 27   SALARY OR WAGES: GENERAL EXCLUSIONS  

    27(1)  


    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.

    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 thepurpose of making a calculation, in relation to the employer and the employee, under section 19.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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

    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.

    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.

    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. 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.

    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.

    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)

    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.

    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.

    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.

    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.

    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.

    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.

    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).

    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.

    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.

    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.

    32E(2)   [RSAs]  

    For the purposes of this Part, the holder of an RSA is taken to be a member.

    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)).

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    32N(6)   [Any other time]  

    An employer may also give a standard choice form at any time.

    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)

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    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.

    Division 7 - Stapled funds  

    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.

    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.

    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.

    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.

    SECTION 32Y   32Y   NOTIONAL EARNINGS BASE TO CONTINUE TO BE USED  
    (Repealed by No 46 of 2021)

    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).

    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).

    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).

    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.

    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.

    33(1A)  


    However, the Commissioner may allow an employer to lodge a superannuation guarantee statement on a later day.

    33(2)  


    The statement must be in the approved form.

    33(3)  
    (Repealed by No 2 of 2015)

    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.

    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).

    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.

    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.

    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.

    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.

    SECTION 37   AMENDMENT OF ASSESSMENTS  

    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.

    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.