New South Wales Consolidated Acts

NEW SOUTH WALES RETIREMENT BENEFITS ACT 1972 - SECT 12

12 Certain classes of persons may elect to contribute to the Fund

(1) The Minister:

(a) by order published in the Gazette may specify a class or classes of persons being either or both of the following classes, namely:

(i) a class of employees,

(ii) a class of persons in the employment of an employer, being persons who, immediately before the date of publication of the order in the Gazette, were participants in a superannuation scheme by virtue of their employment,

(b) shall, where he specifies a class or classes of persons referred to in paragraph (a), declare in the order that a specified date, being a date that is not earlier than 3 months later than the date of publication of the order in the Gazette, is the election date for the purposes of this section in respect of a person within any such class, and

(c) shall, where he specifies a class of persons referred to in paragraph (a) (ii), determine terms and conditions of either or both of the following kinds, namely:

(i) such terms and conditions as he thinks fit in compliance with which a person within that class may elect on that election date to become a contributor to the Fund,

(ii) such terms and conditions as he thinks fit which shall apply to a person within that class who elects on that election date to become a contributor to the Fund.

(1A) The terms and conditions referred to in subsection (1) (c):

(a) in relation to a person within a class of persons referred to in subsection (1) (a) (ii), may include terms and conditions in relation to the withdrawal from a superannuation scheme and the disposition of money payable to him or on his behalf, or recoverable by him or on his behalf, upon withdrawal from the scheme, and

(b) may be made to vary in their application according to time or circumstance.

(1B) The Board shall notify, in writing, a person referred to in subsection (1) (a) (ii) of the terms and conditions determined in relation to him under subsection (1) (c) as soon as practicable after the publication in the Gazette of the order under subsection (1) that relates to him.

(2) Subject to this section and compliance with any terms and conditions determined under subsection (1) (c) (i) in relation to him, an employee who:

(a) is an employee to whom an election date specified in an order under subsection (1) relates, and

(b) if he were to remain in the employment of an employer until immediately before that election date would complete not less than twelve months’ service,

may, subject to section 3 (9), elect on that election date to contribute to the Fund.

(2A) A person within a class of persons referred to in subsection (1) (a) (ii) may, for the purpose of complying with any terms and conditions determined under subsection (1) in relation to him, withdraw from a superannuation scheme in which he was, immediately before the date of publication of the order in the Gazette, a participant by virtue of his employment as if he had resigned, immediately before his withdrawal from the superannuation scheme, from the employment of his employer.

(2B) Where a person within a class of persons referred to in subsection (1) (a) (ii) fails to comply with a term or condition of a kind referred to in subsection (1) (c) (ii), the Board may:

(a) treat the person for the purposes of this Act in such manner, and

(b) take such action,

as will, having regard to the circumstances of the case, on actuarial advice, be reasonably appropriate to deal with the failure.

(2C) Without limiting the generality of subsection (2B), the action which the Board may take under that subsection may include either of the following:

(a) treating the election by the person to contribute to the Fund as having been a nullity and refunding to him an amount equal to the sum of:

(i) the total of the amounts of his contributions to the Fund, and

(ii) the amount of his initial credit, if any,

(b) withholding or reducing any benefit payable under this Act to the extent to which the benefit is attributable to the person’s employer’s contributions to the Fund, or to a lesser extent.

(3) The Minister may, by order published in the Gazette after the appointed day declare that a specified date that is not earlier than three months later than the publication of the order is the election date for the purposes of this section in respect of:

(a) a contributor within the meaning of the Transport Employees Retirement Benefits Act 1967 who attained the age of thirty years on or before the appointed day or an employee within the meaning of that Act who ceased to be such a contributor by reason of his having attained the age of sixty-five years on or before the publication of the order,

(b) a contributor to the Account,

(c) an officer within the meaning of the Transport Act 1930 who was not, immediately before the appointed day, a contributor to a superannuation fund or account established under the Transport Act 1930 , the Government Railways Act 1912 , the Superannuation Act 1916 , or the Transport Employees Retirement Benefits Act 1967 , or

(d) a person who elected under section 24 (1) (b) of the Railways Retirement Fund Act 1964 , or section 17 (2) (b) of the Transport Employees Retirement Benefits Act 1967 , not to be a contributor.

(4) Subject to this section, a person in respect of whom an election date has been specified under subsection (3) may, subject to section 3 (9), elect on that election date to contribute to the Fund.

(5) A person aged sixty years or more is not entitled to make an election under this section unless:

(a) he has completed ten years’ service, or

(b) where he has not completed ten years’ service-it would, in the opinion of the Board, be possible for him to continue in the service of an employer until he completes ten years’ service before retirement.

(6) Where the employer of a person within a class of persons referred to in subsection (1) (a) (ii) is entitled to be paid on its own behalf, or to recover on its own behalf, or has been paid on its own behalf, or has recovered on its own behalf, money from a superannuation scheme from which the person has withdrawn as a consequence of an order under subsection (1), the Minister may direct the employer, in writing, to pay the money into the Fund.

(6A) The Board may, in any court of competent jurisdiction, recover as a debt from an employer any money that the employer has been directed to pay into the Fund pursuant to subsection (6).

(7) Where an election by an employee under this section takes effect, the employee shall contribute to the Fund on and from a day determined by the Board, being a day that is not earlier than the day after the last day on which he could have made the election.

(8) A person referred to in subsection (3) (a) who makes an election under this section shall, upon becoming a contributor, cease to contribute to the Transport Retirement Fund and, except to the extent provided by this Act, shall not be entitled to receive any benefit under the Transport Employees Retirement Benefits Act 1967 .

(9) A person referred to in subsection (3) (b) who makes an election under this section shall, upon becoming a contributor, cease to contribute to the Account and, except to the extent provided by this Act shall not be entitled to receive any benefit from the Account.

(10) A person referred to in subsection (3) (c) shall, upon becoming a contributor, cease to be eligible for any benefit under section 132A of the Transport Act 1930 .