C2004A04402 — Superannuation Guarantee (Administration) Act 1992

1 Short title This Act may be cited as the Superannuation Guarantee (Administration) Act 1992 . 2 Commencement This Act commences on 1 July 1992. 3 Act binds Crown etc. (1) This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory and the Northern Territory. (2) Nothing in this Act permits the Crown to be prosecuted for an offence. 4 Application This Act extends to every external Territory referred to in the definition of Australia . 5 Application of Act to Commonwealth (1) The Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are not liable to pay superannuation guarantee charge. (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. (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. (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. (2C) Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth. (3) Part 8 has effect as if any superannuation guarantee charge in respect of a superannuation guarantee shortfall of either of the following entities: (a) a responsible Department; (b) an untaxable Commonwealth authority; had been paid on the day that the charge would have become payable had that entity been a company. (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) 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 . 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. 5A Application of Act to Commonwealth authorities (1) In this section: Commonwealth authority means an authority or body that is established by or under a law of the Commonwealth. (2) 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. (3) 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. 5B Jurisdiction etc. of the Fair Work Commission not affected (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 (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. (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 . 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. 6 Interpretation—general Note: The meanings of some old kinds of industrial instruments referred to in this Act can be worked out under subsection 12A(1). (1) In this Act, unless the contrary intention appears: actuary means a Fellow or Accredited Member of The Institute of Actuaries of Australia. administrative uplift amount has the meaning given by subsection 19B(1). 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 an assessment under subsection 36(1). associate has the meaning given by section 318 of the Income Tax Assessment Act 1936 . Australia , when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997 . benefit certificate has the meaning given by section 10. business day means a day other than: (a) a Saturday or a Sunday; or (b) a day which is a public holiday for the whole of: (i) any State; or (ii) the Australian Capital Territory; or (iii) the Northern Territory. choice loading has the meaning given by subsection 20A(1). choice loading limit has the meaning given by section 20C. 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 fund or scheme means: (a) a complying superannuation fund; or (b) a complying superannuation scheme. complying superannuation scheme has the meaning given by section 7. concessional contributions has the same meaning as in the Income Tax Assessment Act 1997 . conversion notice has the meaning given by section 6B. 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. eligible contribution has the meaning given by sections 18A and 18B. employee has a meaning affected by section 12. employer has a meaning affected by section 12. employer shortfall exemption certificate means a certificate issued under section 17C. enterprise agreement has a meaning affected by subsection 12A(2). excess concessional contributions has the same meaning as in the Income Tax Assessment Act 1997 . extended usual period , for a QE day and an employer, means the period: (a) starting on the QE day; and (b) ending on the 20th business day after the QE day. 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. individual base superannuation guarantee shortfall has the meaning given by subsection 18C(1). individual final superannuation guarantee shortfall has the meaning given by subsection 18D(1). individual notional earnings component has the meaning given by subsection 19A(1). individual superannuation guarantee amount has the meaning given by subsection 17A(2). industrial award means a Commonwealth industrial award, a State industrial award or a Territory industrial award. late period , for a QE day, an employer and an employee, means the period: (a) starting on the day after the latest day that an eligible contribution made by the employer for the benefit of the employee is able to be applied under subsection 18C(1) for the QE day; and (b) ending on the day before the day an assessment for the QE day is made for the employer. 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. maximum contributions base has the meaning given by subsection 10A(5). MySuper member has the same meaning as in the Superannuation Industry (Supervision) Act 1993 . 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 , for a person, means all of the person’s earnings as an employee made up of: (a) earnings in respect of ordinary hours of work; and (b) earnings consisting of over ‑ award payments, shift ‑ loading or commission; other than a lump sum payment of any of the following kinds made to the person on the termination of the person’s employment: (c) a payment in lieu of unused sick leave; (d) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997 . part ‑ time employee means a person who is employed to work not more than 30 hours per week. payment day , for an eligible contribution, has the meaning given by paragraph 33(3)(b). payment of qualifying earnings to or for an employee has the meaning given by subsection 10A(4). penalty assessment means an assessment under subsection 59D(1). 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. QE day has the meaning given by subsection 17A(1). qualifying earnings has the meaning given by subsection 10A(1). quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October. receipt day , for an eligible contribution, has the meaning given by paragraph 33(3)(a). resident of Australia has the meaning given by section 8. resident regulated superannuation fund has the same meaning as in the Superannuation Industry (Supervision) Act 1993 . 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 an arrangement described in paragraph 10A(1)(h) (about salary sacrifice arrangements). Second Commissioner means a Second Commissioner of Taxation. stapled fund has the meaning given by section 32Q. 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. 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 16B. superannuation provider means: (a) the trustee of a complying superannuation fund; or (b) the trustee of a complying approved deposit fund; or (c) an RSA provider. 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. 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. usual period , for a QE day and an employer, means the period: (a) starting on the QE day; and (b) ending on the seventh business day after the QE day. voluntary disclosure statement has the meaning given by section 33. workplace determination has a meaning affected by subsection 12A(3). year means financial year. (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. 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. 6A Interpretation: defined benefit superannuation scheme (1) 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. (2) 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. (3) 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. (4) Subsection (3) has effect regardless of the making of any assessment, or the payment of any superannuation guarantee charge, in respect of a QE day after the conversion notice took effect. 6B Interpretation: conversion notice (1) 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. (2) 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. (3) 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. (4) A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives written notice of: (a) the trustee’s intention to give the notice; and (b) the proposed date of effect of the notice; to each employer contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme. (5) If, while the conversion notice is in effect, an employer begins contributing to the fund or scheme for the benefit of employees as defined benefit members of 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 7 business days of the receipt by the trustee of the employer’s first contribution. 7 Interpretation: complying superannuation fund or scheme A superannuation fund or scheme is a complying superannuation fund or complying superannuation 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 . 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 . 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 . 10 Interpretation: benefit certificate (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 defined benefit 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. (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. (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. (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. (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). 10A Interpretation: expressions relating to qualifying earnings Meaning of qualifying earnings (1) A person’s qualifying earnings are amounts covered by one or more of the following paragraphs: (a) the person’s ordinary time earnings; (b) all commissions payable to the person; (c) all payments for the performance of the person’s duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate; (d) all payments under a contract referred to in subsection 12(3) that are in respect of the person’s labour under the contract; (e) all remuneration of the person as a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory; (f) all payments to the person for work referred to in subsection 12(8); (g) all remuneration of the person in circumstances referred to in subsection 12(9) or (10); (h) if under an arrangement the person agreed for: (i) a contribution to be made to a complying superannuation fund or an RSA for the benefit of the person by the person’s employer; and (ii) in return, for the reduction (including to nil) of one or more amounts of a kind described in paragraphs (a) to (g) of this subsection but not in subsection (3) of this section; an amount equal to the total of those reductions. Note: For paragraph (h), reductions are not counted if they are of amounts excluded by subsection (3) from being qualifying earnings. (2) To the extent that an amount is covered by more than one paragraph of subsection (1), the amount is counted only once. Exclusions (3) However, a person’s qualifying earnings do not include any of the following: (a) a payment of an amount that represents the reversal of all or part of a sacrificed contribution; (b) earnings or remuneration of, or payments to, the person to the extent that: (i) the person is an employee of a kind prescribed by the regulations; or (ii) the earnings, remuneration or payments are for work done of a kind prescribed by the regulations; or (iii) the earnings, remuneration or payments are otherwise of a kind prescribed by the regulations. Meaning of payment of qualifying earnings to or for an employee (4) A payment of qualifying earnings to or for an employee by an employer means: (a) a payment of qualifying earnings to the employee by or on behalf of the employer; or (b) for qualifying earnings described by paragraph (1)(h)—the reductions described in that paragraph made in return for the making of the sacrificed contribution for the benefit of the employee. Meaning of maximum contributions base (5) The maximum contributions base , for a payment of qualifying earnings to or for an employee, is the following amount (rounded down to the nearest multiple of $10): where: charge percentage has the same meaning as in subsection 17A(2). 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 payment is made. (6) For the purposes of this Act (other than this section), if an employer’s payment of qualifying earnings to or for an employee during a financial year results in the employee’s total qualifying earnings: (a) during the financial year; and (b) in relation to the employer; exceeding the maximum contributions base, then treat the amount of that payment as if it were equal to: (c) if that payment caused that total to exceed that base—so much of that payment as does not include the excess; or (d) if an earlier payment had already caused that total to exceed that base—nil. 12 Interpretation: employee, employer (1) 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. (2) 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. (3) 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. (4) A member of the Parliament of the Commonwealth is an employee of the Commonwealth. (5) A member of the Parliament of a State is an employee of the State. (6) A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory. (7) A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory. (8) 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. (9) 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. (9A) Subject to subsection (10), a person who holds office as a member of a local government council is not an employee of the council. (10) 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. (11) 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. 12A Interpretation: references to industrial instruments (1) 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 . (2) In this Act, enterprise agreement has the same meaning as in the Fair Work Act 2009 . (3) In this Act, workplace determination means a workplace determination made under the Fair Work Act 2009 or the Workplace Relations Act 1996 . 15B Application of Part to former employees This Part applies to payments of qualifying earnings to or for a former employee as if the former employee were an employee of the person who was the former employee’s employer. 15C Certificates of coverage for international social security agreements (1) 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. (2) 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. (3) 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. (4) 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). (5) 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. (6) 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. (7) 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 . (8) If the entity that made the application is not the employee’s employer, this Part (apart from this section) applies to qualifying earnings 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. 16 Simplified outline of this Division Superannuation guarantee charge is payable on an employer’s superannuation guarantee shortfalls. Such a shortfall can arise in 2 ways. The first way is if the employer: (a) pays qualifying earnings to an employee; or (b) reduces an employee’s qualifying earnings so that a sacrificed contribution can be made for the employee; without also making sufficient timely eligible superannuation contributions for the benefit of the employee (see Subdivisions B and C). The amount of charge on a shortfall arising in this way will include notional earnings on the shortfall and an administrative uplift amount (see Subdivision D). The second way is if the employer fails to comply with the choice of fund requirements when making eligible superannuation contributions for the employee (see Subdivision E). 16A Superannuation guarantee charge payable by employers Superannuation guarantee charge imposed on an employer’s superannuation guarantee shortfall for a QE day is payable by the employer. 16B Superannuation guarantee shortfalls (1) This section applies if an employer has: (a) one or more individual base superannuation guarantee shortfalls for a QE day that are greater than nil; or (b) one or more choice loadings for a QE day that are greater than nil. (2) The employer has a superannuation guarantee shortfall for the QE day equal to the sum of the following: (a) the total of the employer’s individual final superannuation guarantee shortfalls for the QE day; (b) the total of the employer’s individual notional earnings components for the QE day; (c) the employer’s administrative uplift amount for the QE day; (d) the total of the employer’s choice loadings for the QE day. Note: Some (but not all) of these amounts may be nil. 17 Simplified outline of this Subdivision If on a particular day an employer: (a) pays qualifying earnings to an employee; or (b) reduces an employee’s qualifying earnings so that a sacrificed contribution can be made for the employee; then, on that day, the employer has an individual superannuation guarantee amount for the employee equal to a particular percentage of the payment or reduction. However, the amount will be nil if an exemption certificate covers the employer and the employee for that day. 17A When an individual superannuation guarantee amount arises (1) This Subdivision applies if an employer makes a payment of qualifying earnings to or for an employee on a particular day (the QE day ). Note: This includes reducing the employee’s earnings so that a sacrificed contribution can be made for the employee (see paragraphs 10A(1)(h) and (4)(b)). (2) On the QE day, the employer has an individual superannuation guarantee amount for the employee equal to: where: amount of the qualifying earnings means: (a) if there is one such payment—the amount of the payment; or (b) if there are 2 or more such payments—the sum of the amounts of the payments. Note: If the payment of qualifying earnings is in the form of a reduction so that a sacrificed contribution can be made, the amount of the payment is the amount of the reduction (see paragraph 10A(1)(h)). charge percentage means 12. 17B An exemption certificate can reduce this amount to nil However, if an employer shortfall exemption certificate is in force for the employee in relation to: (a) the employer; and (b) a period that includes the QE day; treat the employee as having already reached the maximum contributions base before the QE day. Note 1: This means: (a) the amount of the payment of qualifying earnings on the QE day is treated as if it were nil (see subsection 10A(6)); and (b) the individual superannuation guarantee amount is nil. Note 2: If the employee has more than one employer and the certificate is issued in relation to only this employer, then the certificate does not affect the other employers’ individual superannuation guarantee amounts. 17C Issuing an exemption certificate Issuing of certificate (1) The Commissioner may, on application by an employee, issue a certificate (an employer shortfall exemption certificate ) to the applicant for: (a) a specified employer of the applicant at the time the application is made; and (b) a specified period ending at the end of a specified financial year; if the Commissioner is satisfied of the matters in subsection (2). (2) The matters are that: (a) if the certificate is not issued, the applicant is likely to have excess concessional contributions for that financial year (whether or not issuing the certificate would prevent that result); and (b) if the certificate is issued for that period, at least one other employer of the applicant is likely to have an individual superannuation guarantee amount for: (i) the applicant; and (ii) a QE day during that financial year; that is greater than nil; and (c) it is appropriate in the circumstances to issue the certificate. (3) When considering a matter in subsection (2), the Commissioner: (a) for the matter in paragraph (2)(a) or (b)—must have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, to the applicant for that financial year; and (b) for the matter in paragraph (2)(c)—may have regard to: (i) the effect that issuing the certificate is likely to have on the applicant’s concessional contributions for that financial year; and (ii) any other matter that the Commissioner considers relevant. Application for certificate (4) An application for an employer shortfall exemption certificate: (a) must be in the approved form; and (b) must specify the employer, period and financial year to be specified in the certificate; and (c) must be made at least 30 days before the first day of the period. Objections and other matters (5) A person who is dissatisfied with a decision of the Commissioner under subsection (1) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953 . (6) The Commissioner may not vary or revoke an employer shortfall exemption certificate. (7) An employer shortfall exemption certificate: (a) may be issued after the first day of the period specified in the certificate; and (b) is not a legislative instrument. 17D Notice about an exemption certificate (1) If the Commissioner makes a decision under subsection 17C(1) about an application, the Commissioner must give written notice of the decision to: (a) the applicant; and (b) if the decision is to issue a certificate—the employer to which the certificate relates. (2) A notice of a decision to issue a certificate must include a copy of the certificate. (3) The Commissioner is treated as having decided not to issue a certificate to the applicant if the Commissioner does not give notice (under subsection (1)) of the decision during the 60 ‑ day period starting on the day the application was made. 18 Simplified outline of this Subdivision This Subdivision is relevant if an employer has an individual superannuation guarantee amount for an employee that is greater than nil. The employer will have an individual base superannuation guarantee shortfall for the employee that will result in superannuation guarantee charge if the employer does not make an equivalent amount of eligible superannuation contributions: (a) for the benefit of the employee; and (b) within a particular period. The employer can reduce the amount of the charge by making eligible superannuation contributions: (a) for the benefit of the employee; and (b) up until the day before the Commissioner makes an assessment of the amount of the charge. 18A Meaning of eligible contribution —main rules (1) An eligible contribution , made by an employer for the benefit of an employee, is: (a) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee that: (i) is to a complying superannuation fund; and (ii) is able to be allocated within the fund for the benefit of the employee; and (iii) is not made for the benefit of the employee as a defined benefit member of a defined benefit superannuation scheme; and (iv) is not made at a time when a conversion notice has effect in relation to the fund; or (b) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee: (i) to an RSA; and (ii) that is able to be allocated within the RSA for the benefit of the employee; or (c) if: (i) the employee has died; and (ii) the employer would, if the employee had not died, have made a contribution covered by paragraph (a) or (b) for the benefit of the employee; and (iii) the employer instead pays an equivalent amount to the employee’s legal personal representative; that equivalent amount paid by the employer; or (d) a contribution notionally made as described in subsection (3) to a defined benefit superannuation scheme for the benefit of the employee as a defined benefit member of the scheme. Note: For the purposes of subparagraphs (a)(ii) and (b)(ii), regulations under the Superannuation Industry (Supervision) Act 1993 and under the Retirement Savings Accounts Act 1997 deal with the allocation of contributions. Presumption for contributions to certain superannuation funds (2) A contribution made by the employer for the benefit of the employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of subparagraph (1)(a)(i) if: (a) 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; and (b) the statement provides that the fund: (i) is a resident regulated superannuation fund; and (ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993 . Note 1: The presumption does not extend to any of the other elements of paragraph (1)(a), such as that the contribution must not be a sacrificed contribution. Note 2: The presumption may not always be available (see section 18B). Notional contributions for defined benefit members of defined benefit superannuation schemes (3) If, on a QE day for the employer and the employee: (a) a benefit certificate for a defined benefit superannuation scheme has effect; and (b) the scheme is operating for the benefit of the employee: (i) as a defined benefit member of the scheme; and (ii) in relation to payments of qualifying earnings to or for the employee by the employer; and (c) the benefit certificate: (i) covers a class of employees (that includes the employee) as defined benefit members of the scheme; and (ii) specifies the notional employer contribution rate in relation to that class of employees; and (d) the employer has a written statement, provided by or on behalf of the trustee of the scheme, that the scheme: (i) is a resident regulated superannuation fund; 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; treat the scheme as having received, on the QE day, a notional contribution made by the employer for the benefit of the employee that is equal to: where: amount of the qualifying earnings has the same meaning as in subsection 17A(2) for the one or more payments of qualifying earnings to or for the employee made by the employer on the QE day. Note: The written statement may not always have effect (see section 18B). 18B Meaning of eligible contribution —exceptions (1) However: (a) the presumption in subsection 18A(2) is unavailable for a contribution to a fund if subsection (2) of this section applies on the day the contribution is made; or (b) a statement provided as described in paragraph 18A(3)(d) has no effect for a scheme if subsection (2) of this section applies on the QE day. (2) This subsection applies on a day if, on that day: (a) one of the following subparagraphs applies: (i) the employer is the trustee or manager of the fund or scheme; (ii) the employer is an associate of the trustee or manager of the fund or scheme; (iii) the trustee or manager of the fund or scheme is an associate of the employer; and (b) the employer reasonably believes that the fund or scheme: (i) is not a resident regulated superannuation fund; or (ii) is operating in contravention of a regulatory provision (within the meaning of section 38A of the Superannuation Industry (Supervision) Act 1993 ). (3) Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subparagraph (2)(b)(ii) of this section in a corresponding way to the way that section applies for the purposes of Division 2 of Part 5 of that Act. Note: Section 39 of that Act allows certain contraventions to be ignored. 18C Employer’s individual base superannuation guarantee shortfall for an employee and a QE day Meaning of individual base superannuation guarantee shortfall (1) An employer’s individual base superannuation guarantee shortfall for an employee and a QE day is equal to: where: eligible contributions relevant for the QE day means so much of each eligible contribution made by the employer for the benefit of the employee as: (a) is applied under this subsection for the QE day (the current QE day ), and has not been applied under this subsection or section 18D for an earlier QE day; and (b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and (c) is so received during one of these periods (the standard periods ): (i) the usual period for the current QE day; or (ii) the 12 ‑ month period ending on the day before the current QE day; or before the end of the latest day in any applicable items of the table in subsection (2) of this section; and (d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil. Note: An eligible contribution in the form of a notional contribution to a defined benefit superannuation scheme will always be covered by subparagraph (c)(i) because it is treated as being received on the current QE day (see subsection 18A(3)). Allowable longer periods for receiving eligible contributions (2) In addition to the standard periods, the eligible contribution can be received before the end of the latest day in any applicable item of the following table: Allowable longer periods for receiving eligible contributions Item If this happens: The eligible contribution is to be received: 1 the eligible contribution is the first eligible contribution made to a particular complying superannuation fund or RSA by the employer for the benefit of the employee: (a) after the employee commenced (or recommenced) employment with the employer; or (b) after the employer ceased making one or more eligible contributions for the benefit of the employee to another complying superannuation fund or RSA during the extended usual period for the current QE day. 2 (a) the current QE day relates to qualifying earnings of a kind determined under subsection (3); and (b) a later QE day (a standard QE day ) for the employer and the employee relates to qualifying earnings not of a kind determined under subsection (3) before the end of the usual period for the first standard QE day after the current QE day. 3 the employer and the current QE day are covered by a determination under subsection (4) before the later of: (a) the end of the extended usual period for the current QE day; and (b) the end of the period of 20 business days starting on the day after the determination is made. 4 the usual period for the current QE day ends before the latest day (the latest due day ) that an earlier eligible contribution that: (a) was made by the employer for the benefit of the employee; and (b) was applied under subsection (1) for an earlier QE day; was able to be received for the purposes of subsection (1) before the end of the latest due day. Note: When the contribution is received is not the only factor for whether it is an eligible contribution relevant for the QE day (see paragraphs (a), (b) and (d) of the definition of that expression in subsection (1)). Kinds of out ‑ of ‑ cycle qualifying earnings (3) The Commissioner may, by legislative instrument, determine: (a) kinds of out ‑ of ‑ cycle qualifying earnings; and (b) the circumstances that must exist for qualifying earnings to be one of those kinds. Qualifying earnings in exceptional circumstances (4) The Commissioner may, by legislative instrument, determine: (a) one or more kinds of employers that are affected by exceptional circumstances of a kind prescribed by the regulations that affect the ability of the employers to make eligible contributions; and (b) the period during which any QE days for payments of qualifying earnings by those employers are affected by those exceptional circumstances. The period determined for the purposes of paragraph (b) may start before the day the determination is made. Note 1: Examples of exceptional circumstances for this purpose include natural disasters, or widespread outages of information and communications technology services, that affect multiple employers on a large scale. Note 2: If the period starts before the day the determination is made, eligible contributions can still be counted if made before the end of the 20 business day period starting on the day after the determination is made (see item 3 of the table in subsection (2)). 18D Employer’s individual final superannuation guarantee shortfall for an employee and a QE day (1) An employer’s individual final superannuation guarantee shortfall for an employee and a QE day is: (a) if the employer’s individual base superannuation guarantee shortfall for the employee and QE day is nil—nil; or (b) otherwise—equal to the amount in subsection (2). (2) The amount is: where: eligible contributions relevant for the late period for the QE day means so much of an eligible contribution made by the employer for the benefit of the employee as: (a) is applied under this section for the QE day, and has not been applied under this section for an earlier QE day; and (b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and (c) is so received during the late period for the QE day; and (d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil. 19 When this Subdivision applies This Subdivision applies if an employer has an individual base superannuation guarantee shortfall for an employee and a QE day that is greater than nil. 19A Individual notional earnings component—sum of an amount for each day that the individual final superannuation guarantee shortfall is greater than nil (1) The employer’s individual notional earnings component for the employee and the QE day is the sum of each amount worked out under subsection (2) for each day that: (a) is during the late period for the QE day; and (b) is a day on which the employer’s individual final superannuation guarantee shortfall for the employee and the QE day is greater than nil. Note: Subsection 36(3) may affect the days that paragraph (b) applies to. (2) For a day referred to in subsection (1) for the QE day, work out: where: general interest charge rate has the same meaning as in section 8AAD of the Taxation Administration Act 1953 . notional sum means the sum of: (a) the employer’s individual base superannuation guarantee shortfall for the employee and the QE day; and (b) the amount worked out under this subsection for each earlier day referred to in subsection (1) for the QE day. 19B Administrative uplift for a QE day (1) The employer’s administrative uplift amount for the QE day is equal to 60% of the sum of: (a) the total of the employer’s individual final superannuation guarantee shortfalls for the QE day; and (b) the total of the employer’s individual notional earnings components for the QE day. Note: The administrative uplift amount will be nil if these totals are nil. (2) However, this amount may be reduced (but not below nil) in accordance with the regulations. (3) For the purposes of (but without limiting) subsection (2), the regulations may prescribe the following: (a) a method for reducing an employer’s administrative uplift amount for a QE day that relies on one or more of the following: (i) whether the Commissioner has previously made an assessment for the employer on the Commissioner’s own initiative; (ii) whether the Commissioner has previously made an estimate under subsection 268 ‑ 10(1) in Schedule 1 to the Taxation Administration Act 1953 for the employer for a liability to pay superannuation guarantee charge; (iii) whether (and when) the employer lodges a voluntary disclosure statement under section 33 for the QE day; (b) a method that depends on a person being satisfied of one or more specified matters. 20 When this Subdivision applies This Subdivision applies if: (a) an employer has an individual superannuation guarantee amount for an employee and a QE day; and (b) the employer makes, for the benefit of the employee, one or more eligible contributions that: (i) result in the employer’s individual base superannuation guarantee shortfall, or individual final superannuation guarantee shortfall, for the employee and the QE day being less than what it would otherwise be; or (ii) if the amount mentioned in paragraph (a) is nil—would have resulted in a shortfall mentioned in subparagraph (i) being less than what it would have otherwise been had the amount mentioned in paragraph (a) been greater than nil. 20A Employer’s choice loading for the QE day (1) The employer’s choice loading for the employee and the QE day is: (a) if subsection (2) or (3) applies to some or all of those eligible contributions—the lower of: (i) the amount equal to 25% of the total of the contributions to which that subsection applies; and (ii) the choice loading limit for the QE day; or (b) otherwise—nil. Contributions made to an RSA or a fund other than a defined benefit superannuation scheme (2) This subsection applies if: (a) some or all of the contributions mentioned in paragraph 20(b) are not made in compliance with the choice of fund requirements; and (b) section 20D (relying on most recent Commissioner notification) does not apply to the contributions. Contributions notionally made to a defined benefit superannuation scheme (3) This subsection applies if: (a) some or all of the contributions mentioned in paragraph 20(b): (i) are notionally made as described in subsection 18A(3) to a defined benefit superannuation scheme; and (ii) if paragraph 32C(2)(c) were disregarded—would not have been made in compliance with the choice of fund requirements if they had been actually (rather than notionally) made to the scheme; and (b) none of subsections 20B(2), (3) and (4) apply to the employer for the employee, the scheme and the QE day; and (c) section 20D (relying on most recent Commissioner notification) does not apply to the contributions. Note: Paragraph 32C(2)(c) is a requirement for a fund to include a MySuper product. 20B Defined benefit schemes—certain cases where members cannot choose another fund (1) This section applies for the purposes of paragraph 20A(3)(b). Scheme in surplus (2) This subsection applies 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 during the period (the membership period ): (i) starting on 1 July 2005; and (ii) ending at the end of the QE day; 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 a period including the QE day, 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 during the membership period 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)