New South Wales Consolidated Acts New South Wales Consolidated Acts(Section 33)
(1) Regulations may be made under section 32 containing provisions of a savings or transitional nature consequent on the enactment of the following Acts:Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1990Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1992Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1994Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994Superannuation Legislation Amendment Act 1996Coal and Oil Shale Mine Workers (Superannuation) Amendment (1999 Superannuation Agreement) Act 2000Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2006Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2008
(2) Any such provision may, if the regulations so provide:(a) take effect on the date of assent to the Act concerned or a later date, or(b) take effect on 1 July 1992 or a later date, if it is a provision consequent on the enactment of Schedule 1 to the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1992 , and section 3 of that Act in its application to that Schedule, or(c) take effect on 1 July 1990 or a later date, if it is a provision consequent on the enactment of the provisions of Schedule 1 to the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1994 , and section 3 of that Act in its application to those provisions, or(d) take effect on 1 July 2006 or a later date, if it is a provision consequent on the enactment of the provisions of Schedule 1 to the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2008 , and section 3 of that Act in its application to those provisions.
(3) To the extent to which any such provision takes effect on a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Despite its repeal on 3 January 1993, section 4A as in force immediately before its repeal continues to apply to and in respect of a Queensland mine worker who, on or after 4 December 1989 and before the repeal, had retired, had become disabled, had been retrenched or had died.
(1) Section 4A, as in force before its repeal on 3 January 1993, is taken, from and including 1 July 1990 until its repeal, to have applied to a person employed in the coal mining industry in Western Australia in the same way as it applied to a person employed in the coal mining industry in Queensland.
(2) Despite its repeal on 3 January 1993, that section, as so in force, is taken to continue to apply to and in respect of a person employed in the coal mining industry in Western Australia if, before the repeal, the person had retired, had become disabled, had been retrenched or had died.
If the interest paid in respect of a refund of contributions made under section 19J (as in force before the commencement of Schedule 3 (6) to the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1994 ) exceeds the interest allowed by subsection (1A) of that section (as so in force), but did not exceed the interest that would have been payable in respect of the refund if the provisions of Schedule 4 had been applicable to the refund at the time of its payment, the payment of interest is validated and taken to have been lawfully made.
If a person to whom a lump sum benefit was payable under section 14L of this Act has died, the payment of the benefit to the person’s personal representatives before the commencement of this Part is taken to have been lawfully made even though the amendment made to that section by the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 was not in force at the time of payment.
(1) This clause applies to a person to whom a lump sum benefit was paid under section 14L (2) or (3) of this Act, as inserted by the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1992 and repealed by the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 .
(2) Any such person is taken to be entitled to, and to have been entitled to be paid, a benefit equivalent to the greater amount of the amounts of benefit calculated in accordance with section 14L (4) and (5), as so inserted and repealed.
Any contribution paid by an owner under section 19 of this Act (as in force during the period beginning with the commencement of Schedule 2 (10) to the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 1992 and ending with the commencement of this Part) is taken to have been paid on the basis that it was paid in respect of the mine worker concerned for each week during which the mine worker was an employee of the owner and not as provided by subsection (3) of that section (as so in force).
An order of the Minister fixing a Reference Rate for the purposes of section 2 (5) and in force immediately before the commencement of this Part is, after that commencement, taken to be an order made by the Tribunal for those purposes.
(1) An approval or arrangement given or entered into by the Tribunal in relation to the Pension Account under section 18A (as in force immediately before the commencement of this Part) is taken to be an approval or arrangement given or entered into by the Tribunal in relation to the Pension Account under section 18C.
(2) An agreement entered into by the Tribunal in relation to the Pension Account under section 18A (as in force immediately before the commencement of this Part) is taken to be an approval given by the Tribunal in relation to the Pension Account under section 18C.
An order of the Minister fixing a special rate for the purposes of section 19 and in force immediately before the commencement of this Part is, after that commencement, taken to be an order made by the Tribunal for those purposes.
In this Part, "Tribunal" means the Coal and Oil Shale Mine Workers’ Superannuation Tribunal.
(1) The Tribunal is dissolved on the commencement of this Part.
(2) On the dissolution of the Tribunal, the following provisions have effect:(a) by virtue of this clause and without the need for any conveyance, transfer, assignment or assurance, the assets vested in the Tribunal vest in the Corporate Trustee as trustee for:(i) those mine workers and dormant workers who are or may become entitled to receive benefits under the COALSUPER Rules, and(ii) the dependants of mine workers and dormant members who are or may become entitled to receive benefits under those Rules, and(iii) those persons who, immediately before the dissolution of the Tribunal, were receiving or entitled to receive pensions under this Act,(b) the rights and liabilities of the Tribunal become, by virtue of this clause, the rights and liabilities of the Corporate Trustee,(c) all proceedings pending before, by or against the Tribunal are taken to be proceedings pending before, by or against the Corporate Trustee,(d) any act, matter or thing done or omitted to be done in relation to the Tribunal is (to the extent that that act, matter or thing has any force or effect) taken to have been done or omitted to be done by, to or in respect of the Corporate Trustee.
(3) Subject to this Act:(a) mine workers and dormant members, and(b) the dependants of mine workers and dormant members, and(c) persons who were, immediately before the dissolution of the Tribunal, receiving or entitled to receive pensions under this Act,have the same rights and obligations in relation to the Amalgamated Fund after that Fund has become vested in the Corporate Trustee as they had before that dissolution.
(4) Subject to this Act, an owner has the same obligations and liabilities in relation to the COALSUPER Retirement Income Fund after it has become vested in the Corporate Trustee as the owner had before the dissolution of the Tribunal.
(5) The operation of this clause is subject to such modifications as may, from time to time, be made by regulations made under clause 2 of this Schedule.
(1) The operation of this Part is not to be regarded:(a) as a breach of contract or confidence or otherwise as a civil wrong, or(b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or(c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability.
(2) The operation of this Part is not to be regarded as an event of default under any contract or other instrument.
A person who, immediately before the dissolution of the Tribunal, held office as a member of the Tribunal:
(a) ceases to hold office as such on that dissolution, and
(b) is not entitled to any remuneration or compensation because of the loss of that office.
If an order or direction of the Tribunal made for a purpose of a provision of this Act is in force immediately before the commencement of this Part and the Corporate Trustee is, after that commencement, required or authorised to make a determination for that purpose under that provision (as in force after the commencement of this Part), the order or direction is taken to be a determination of the Corporate Trustee made for that purpose under that provision.
A notice given to the Tribunal under section 2K in relation to a person (other than a mine worker) who has not commenced work in or about, or in connection with, a coal or oil shale mine in New South Wales before the commencement of this Part is taken to have been given to the Corporate Trustee under that section (as in force after that commencement).
(1) If the operation of section 5 (1) and (2) is suspended in their application to and in respect of any specified employment of a specified mine worker when this Part commences, then, until revoked, the suspension continues to have effect as if it had been made by the Corporate Trustee.
(2) If such a suspension is subject to conditions imposed by the Tribunal, those conditions are taken to have been imposed by the Corporate Trustee.
(3) Any certificate of exemption issued by the Tribunal in relation to any such suspension is taken to have been issued by the Corporate Trustee.
Despite the repeal of Divisions 3-5 of Part 2 of this Act by Schedule 3 (12) to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 , the Corporate Trustee may dispose of an application for a lump sum benefit that has not been disposed of by the Tribunal before the commencement of this Part. For that purpose, the Corporate Trustee has the same functions that the Tribunal would have had under those Divisions if they had not been repealed.
(1) Any contract or arrangement entered into by the Tribunal under this Act is, if not completed or terminated before the commencement of this Part, taken to be a contract or an arrangement entered into by the Corporate Trustee.
(2) This clause does not apply to an arrangement under section 18C.
If any inquiry or investigation undertaken by the Tribunal under section 17 (as in force immediately before the commencement of this Part) has not been completed, the Corporate Trustee may complete the inquiry or investigation despite the repeal of that section.
An approval or arrangement given or entered into by the Tribunal under section 18C and in force immediately before the commencement of this Part is taken to be an approval or arrangement given or entered into by the Corporate Trustee under that section (as in force after that commencement).
(1) A payment required to be made to the Tribunal under section 19 and not paid before the commencement of this Part is taken to be a payment required to be made to the Corporate Trustee under that section (as in force after that commencement).
(2) An order made or taken to be made by the Tribunal fixing a special rate for the purposes of section 19 and in force immediately before the commencement of this Part is, after that commencement, taken to be a determination made by the Corporate Trustee for those purposes.
(1) An approval given by the Tribunal for the purposes of section 19AA or 19AB (as in force before the commencement of this Part) is taken to be an approval given by the Corporate Trustee for the purposes of that section (as in force after that commencement) until the approval is revoked by that Trustee.
(2) A notice given by an owner for the purposes of section 19AA (as in force before the commencement of this Part) is taken to be a notice given by the owner for the purposes of that section (as in force after that commencement).
A requirement made under section 19AC (as in force before the commencement of this Part) is, to the extent that it has not been complied with before that commencement, taken to be a requirement made by the Corporate Trustee under that section (as in force after that commencement).
A notice sent by the Tribunal in accordance with section 19BA within 4 months before the commencement of this Part is taken to be a notice sent by the Corporate Trustee under that section (as in force after that commencement).
An estimate made by the Tribunal under section 19D (as in force immediately before the commencement of this Part) and not implemented under that section in relation to the period for which it was made is taken to be an estimate made by the Corporate Trustee for that period.
(1) If a person who has been awarded a pension in accordance with this Act or the COALSUPER Rules is sentenced to imprisonment for more than 1 month, the person’s pension rights are suspended for the period of imprisonment. Any person who would, if the pensioner were dead, have been eligible for a pension in accordance with those Rules, is eligible for such a pension during the period of imprisonment.
(2) While a mine worker who is eligible for, or who has been awarded, a pension in accordance with this Act or the COALSUPER Rules is a mentally incapacitated person, the person’s pension rights are, if the Corporate Trustee so determines, suspended. While such a determination is in force, any person who would, if the mine worker were dead, have been eligible for a pension in accordance with the COALSUPER Rules:(a) is eligible for such a pension as if the mine worker were dead, and(b) is entitled to retain the whole of the pension for the person’s own use.
(3) While a person who is eligible for, or who has been awarded, a pension in accordance with this Act or the COALSUPER Rules (either because of the death of a mine worker or because of the operation of section 19H (2) or this clause) is a mentally incapacitated person, the person’s pension rights are, if the Corporate Trustee so determines, suspended.
(4) The period for which the pension rights of an incapacitated person are suspended under this clause does not, if the Corporate Trustee so determines, include a period while the person is on leave from a hospital (being a hospital within the meaning of the Mental Health Act 1990 ) before the person’s discharge.
(5) The eligibility of a person for a pension in accordance with this Act or the COALSUPER Rules (either because of the death of a mine worker or because of the operation of section 19H (2) or this clause), and the rights conferred on the person by this clause, cease on a determination of the Corporate Trustee under subclause (4).
(6) The spouse of a mine worker who is eligible for a pension under the COALSUPER Rules who has been deserted by the mine worker or has been left by the mine worker without support and who satisfies the Corporate Trustee:(a) that the spouse has taken proceedings against the mine worker for an order for the payment of maintenance under the Family Law Act 1975 of the Commonwealth and either:(i) that the spouse has failed to obtain such an order, or(ii) that the spouse has obtained such an order but the order has not been complied with, and(b) that the whereabouts of the mine worker are unknown,is, while deserted or left without support, eligible for a pension in accordance with those Rules as if the mine worker were dead.
(7) The spouse of a mine worker who is receiving a pension under this Act or the COALSUPER Rules who has been deserted by the mine worker or who has been left by the mine worker without support and who satisfies the Corporate Trustee:(a) that the spouse has taken proceedings against the mine worker for an order for the payment of maintenance under the Family Law Act 1975 of the Commonwealth and that any order under that Act as a result of the proceedings has not been complied with, and(b) that the whereabouts of the mine worker are unknown,is, while deserted or left without support, eligible for a pension of the appropriate amount prescribed by the COALSUPER Rules.
(8) If a pension is awarded to the spouse of a mine worker under subclause (6) or (7), the Corporate Trustee may suspend the pension payable to the mine worker.
(9) In this clause, "spouse", in relation to a mine worker, includes any person of the opposite sex with whom the mine worker is living as the mine worker’s spouse on a bona fide domestic basis.
(10) Despite section 15C, this clause is subject to any provision of the COALSUPER Rules to the contrary.
If:
(a) a subsidy right is suspended by order of the Tribunal in accordance with section 19H of this Act (as in force immediately before the commencement of this Part), or
(b) a pension is suspended by order of the Tribunal in accordance with section 21 of this Act (as so in force),the right or pension is taken to be suspended by a determination of the Corporate Trustee made under section 19H of this Act or clause 27 of this Schedule (as in force after that commencement).
The Industrial Court of New South Wales may continue to hear and determine a question referred under section 23 (as in force immediately before the commencement of this Part) after that commencement as if the question had been referred to that Court under that section (as in force after that commencement).
(1) Despite the repeal of section 23A by Schedule 3 (45) to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 , the Corporate Trustee may determine a dispute that had arisen under this Act before the commencement of that repeal but had not been determined by the Tribunal under that section before its repeal.
(2) Any person aggrieved by a determination of the Corporate Trustee under subclause (1) may appeal against the determination to the Industrial Court of New South Wales. Such an appeal must be made within 6 months after the date of the Corporate Trustee’s determination, or within such further period as that Court may allow.
(3) Any person aggrieved by a determination of the Tribunal under section 23A (as in force before the repeal of that section by Schedule 3 (45) to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 ) may, if the determination was made within the 6 months preceding that repeal, appeal against the determination to the Industrial Court of New South Wales. Such an appeal must be made within 6 months after the date of the Tribunal’s determination, or within such further period as that Court may allow.
(4) The Industrial Court may continue to hear and determine an appeal made under section 23A before the repeal of that section by Schedule 3 (45) to the Coal and Oil Shale Mine Workers (Superannuation) Further Amendment Act 1994 as if that repeal had not taken effect.
An application lodged with, or a notice forwarded to the Registrar in accordance with the Coal and Oil Shale Mine Workers (Superannuation) Regulation 1983 (as in force before the commencement of this Part) is taken to have been lodged with, or forwarded to, the Corporate Trustee in accordance with that Regulation (as in force after that commencement).
The rate specified in section 19 (7) (a), as that paragraph was in force immediately before 1 July 2000 (being the date of the repeal and re-enactment of section 19 (7) by Schedule 1 [16] to the Coal and Oil Shale Mine Workers (Superannuation) Amendment (1999 Superannuation Agreement) Act 2000 ), is taken to be the special rate for the purposes of section 19 until a rate is fixed by the Corporate Trustee in accordance with section 19 (7) as so re-enacted.
In this Part, "amending Act" means the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2006 .
Any action taken on or after 21 February 2006, but before 1 July 2006, that purported to allow a person otherwise required to retire under this Act to continue in employment is not invalid only because of the failure to comply with a provision of this Act repealed or amended by the amending Act.
In this Part, "amending Act" means the Coal and Oil Shale Mine Workers (Superannuation) Amendment Act 2008 .
To avoid doubt, any total contribution:
(a) that was paid by an owner for a mine worker prior to the date of assent to the amending Act, and
(b) that exceeded 9% of the mine worker’s ordinary time earnings, as a weekly amount, (excluding any amount paid pursuant to section 19 (2A) as in force immediately before the commencement of the amending Act), and
(c) that was paid in compliance with this Act, the AUSCOAL Trust Deed and any industrial agreement as in force when the payment was made,is taken to have been validly paid.
Note: Clause 36 confirms the validity of any contributions actually paid before the commencement of the amending Act that were in compliance with this Act, the AUSCOAL Trust Deed and any industrial agreement before the amending Act had effect.
(1) If the amount of superannuation contribution that an owner was liable to pay for a mine worker employed by that owner immediately before the date of assent to the amending Act, in respect of any period on or after 1 July 2006, was higher than the amount that the owner is liable to pay after the amending Act commenced, then the owner continues to be liable to pay the superannuation contribution at the higher amount.
(2) For the purposes of subclause (1), an owner’s liability to pay a superannuation contribution includes a liability under any provision of the AUSCOAL Trust Deed or any other superannuation fund to which the owner contributes in respect of that mine worker, this Act or any other Act of the State or Commonwealth, but does not include:(a) the requirement to contribute to Part 3 of the Fund under section 19 (2A) as in force immediately before the commencement of the amending Act and under section 19 (1) as inserted by the amending Act, or(b) any liability to pay a salary sacrifice contribution.
(3) If an additional amount is payable pursuant to subclause (1), the owner must pay the contributions:(a) in the case of a mine worker who contributes to Part 2 of the Fund-to the Corporate Trustee for crediting to that Part of the Amalgamated Fund, and(b) in the case of a mine worker who has elected to contribute to a complying fund other than Part 2 of the Fund-to that fund.
(4) This clause also applies to any other owner who subsequently employs the mine worker.
Note: Clause 37 preserves a mine worker’s right to a higher amount of employer contribution than is required under the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth if a higher amount of contribution was payable immediately before the date of assent to the amending Act. The entitlement extends back in respect of any period from 1 July 2006 and is continuing. The main categories of mine worker to which this clause relates are those for whom the owner paid a flat weekly rate contribution pursuant to the industrial agreements and those whose wages and salaries are excluded from the calculation of employer liability under the Commonwealth legislation, such as employees aged 70 years or over.
Regulations made under Part 1 of this Schedule, for the purposes of this Part, have effect despite anything to the contrary in Part 1.