New South Wales Consolidated Acts

NEW SOUTH WALES RETIREMENT BENEFITS ACT 1972 - SECT 3

3 Definitions

(1) In this Act, except to the extent that the context or subject-matter otherwise indicates or requires:
"Account" means the Government Railways Superannuation Account under the Government Railways Act 1912 .
"annual wages" means, in relation to an employee at a particular time, the amount determined by the Board as the amount of wages or salary payable at that time on an annual basis to that employee, having regard to his ordinary remuneration but disregarding amounts payable in respect of overtime.
"appointed day" means the day appointed pursuant to section 2 (3).
"Board" means the SAS Trustee Corporation continued under the Superannuation Administration Act 1996 .
"contributor" means:

(a) a person who is contributing, or is liable to contribute, to the Fund,

(b) a person who was so contributing, or was liable so to contribute, but ceased, pursuant to section 20 (1) so to contribute, and

(c) a person eligible for a benefit under this Act calculated by reference only to his initial credit.

"contributor to the Account" means a person who is contributing to the Account.
"contributor to the Transport Retirement Fund" means a person who is a contributor under the Transport Employees Retirement Benefits Act 1967 .
"employee" means a person employed by an employer but:

(a) does not include a person employed on a part-time basis,

(b) does not include a person who is not within a class of persons specified in the Second Column of Schedule 2,

(c) does not, except in the case of:

(i) a person referred to in section 11 or 12 (3), or

(ii) a person who is within a class of persons referred to in section 12 (1) (a) (ii),

include a person who, by virtue of his employment, participates in or, in the opinion of the Board, would with the effluxion of time participate in, a superannuation scheme,

(d) subject to subsection (10), does not include a person who, for any reason based on non-compliance with a requirement as to medical fitness, is ineligible to participate in a superannuation scheme in which, but for that reason, he would be eligible to participate,

(e) does not include a person who, being eligible to contribute to the Fund established under the Superannuation Act 1916 , has been granted exemption from contributing thereto,

(f) does not include a person who, by an act or omission not involving a requirement as to medical fitness, renders himself ineligible to participate in a superannuation scheme in which, but for the act or omission, he would be eligible to participate, and

(g) does not include a person engaged as a contractor, or on a contract basis, otherwise than under a contract of employment.

"employer" means:

(a) the Crown or a Minister of the Crown,

(b) a person described in the First Column of Schedule 2 and an association of persons so described.

"financial year" means:

(a) except as provided by paragraph (b)-the year ended on 31 March, or

(b) the period prescribed for the purposes of this definition.

"Fund" means the New South Wales Retirement Fund established by this Act.
"initial credit" means:

(a) in relation to a contributor who, before he became a contributor, was a contributor to the Account-an amount equal to the sum of:

(i) the total amount of his contributions to the Account before he ceased to contribute thereto pursuant to section 12 (9) reduced, where any amounts have been paid to him pursuant to Part 9 of the Government Railways Act 1912 , by an amount determined by the Board, and

(ii) an allowance of an amount calculated as provided by subsection (2),

(b) in relation to a contributor who, before he became a contributor, was a contributor to the Transport Retirement Fund-an amount equal to the sum of:

(i) the amount of his initial credit, if any, within the meaning of the Transport Employees Retirement Benefits Act 1967 , immediately before he became a contributor,

(ii) an amount calculated as provided by subsection (3),

(iii) an amount calculated as provided by subsection (4),

(c) in relation to a contributor who, before he became a contributor, was a participant in a superannuation scheme by virtue of his employment, not being a superannuation scheme referred to in paragraph (a) or (b)-any amount paid into the Fund by or in relation to the contributor as a consequence of an order under section 12 (1) or an election under section 12A, being the amount of any money paid to him or on his behalf, or recovered by him or on his behalf, upon withdrawal from the scheme less such part of that amount, if any, as may be required, by terms and conditions referred to in section 12 (1) (c) or in accordance with a determination of the Board under section 12A (4), to be paid into the Fund on behalf of an employer or any other person or otherwise disbursed to or on behalf of an employer or any other person.

"initial credit benefit" means, in relation to a contributor who, immediately before he became a contributor, was a contributor to the Account, the Transport Retirement Fund or another superannuation scheme-an amount equal to the sum of:

(a) his initial credit, and

(b) interest on that initial credit, as provided by section 53, for the period from the date on which he became a contributor to the date on which he attains the age of sixty years.

"maximum benefit" means, in relation to a person at a particular time, an amount equivalent to twice his annual wages at that time, reduced by so much of his initial credit benefit, if any, as is a multiple of one hundred dollars.
"minimum benefit" means, in relation to a person at a particular time, an amount equivalent to one-half of his annual wages at that time reduced by so much of his initial credit benefit, if any, as is a multiple of one hundred dollars.
"regulations" means regulations made under this Act.
"retrenchment" means compulsory termination by an employer of the services of an employee on the ground that the employee’s office has been abolished, no other office in the service of that employer or another employer having been found for him at not less than two-thirds of his annual wages at the date of that termination, but does not include termination of employment:

(a) by reason of the expiration of the term of service for which the employee was engaged, or

(b) where the employee was engaged until certain work ceased to be available-by reason of that work ceasing to be available.

"superannuation scheme" means a retirement scheme, fund or arrangement to or in respect of which an employer or a public or local authority constituted by an Act makes, or is liable to make, a payment in respect of a person employed by the employer or authority but does not include the scheme established by this Act.
"Transport Retirement Fund" means the Transport Retirement Fund established by the Transport Employees Retirement Benefits Act 1967 .
"widow" includes widower and words in the feminine gender relating to a widow include the corresponding words in the masculine gender that relate to a widower.

(1A) For the purposes of paragraph (a) of the definition of "employee" in subsection (1), a person is employed on a part-time basis if, and only if:

(a) he is a person specified in Schedule 2A or is a member of a class of persons so specified, or

(b) he:

(i) is not a person referred to in paragraph (a),

(ii) is classified by his employer as a person employed on a part-time basis and the Minister has not directed the employer to withdraw that classification,

(iii) would be an employee if he were employed otherwise than on a part-time basis, and

(iv) has failed before the day prescribed for him by subsection (1B) to appeal to the Minister, in the manner prescribed, against the classification referred to in subparagraph (ii) or, where he has so appealed, his appeal has been dismissed.

(1B) For the purposes of subsection (1A) (b) (iv), the day prescribed for a person by this subsection is:

(a) the day that is three months after the day appointed under section 2 (2) of the New South Wales Retirement Benefits (Amendment) Act 1976 , or

(b) the day on which that person would, if he were not a person employed on a part-time basis, be entitled to elect to contribute to the Fund,

whichever is the later day.

(1C) In determining an appeal referred to in subsection (1A) (b) (iv), the Minister shall have regard to:

(a) the hours and days during which work is ordinarily done at the appellant’s place of employment by persons employed at that place, and

(b) such other matters as the Minister considers to be relevant.

(1D) Where an appeal referred to in subsection (1A) (b) (iv) is upheld, the Minister may direct any employer of a person within a specified class of persons (being a class of which the successful appellant is a member) to withdraw any classification of that person as a person employed on a part-time basis and the employer shall forthwith:

(a) inform that person of the direction and of the days specified by the Minister under subsections (1E) (a) (ii) and (1E) (b) (ii), and

(b) give effect to the direction.

(1E) Where an appeal referred to in subsection (1A) (b) (iv) is upheld, section 10 or 12, whichever is appropriate, applies to and in respect of the successful appellant, and any person in respect of whom a direction under subsection (1D) applies, as if:

(a) in the case of section 10, the day on which an election may be made under that section were any day that is:

(i) not earlier than the day specified in section 10 (1), and

(ii) not later than a day specified by the Minister for the purposes of this paragraph when giving his decision on the appeal and when giving any direction under subsection (1D), and

(b) in the case of section 12, the day on which an election may be made under that section were any day that is:

(i) not earlier than the election date under that section for that appellant or person, and

(ii) not later than a day specified by the Minister for the purposes of this paragraph when giving his decision on the appeal and when giving any direction under subsection (1D).

(2) For the purposes of paragraph (a) (ii) of the definition of "initial credit" in subsection (1), the amount of allowance for a contributor is an amount equal to such percentage of the amount referred to in paragraph (a) (i) of that definition as is specified in the Second Column of Schedule 6 opposite the number of years specified in the First Column of that Schedule that is equal to the number of complete years for which the contributor contributed to the Account.

(3) The amount referred to in paragraph (b) (ii) of the definition of "initial credit" in subsection (1) is, in respect of a contributor so referred to, an amount equal to the total amount of the contributions paid by him or on the behalf to the Transport Retirement Fund before he became a contributor under this Act, reduced by the sum of:

(a) the difference between that total amount and the total amount of contributions that would have been paid by him or on his behalf to the Transport Retirement Fund had they been made in accordance with Scale 2 of Schedule 2 to the Transport Employees Retirement Benefits Act 1967 , and

(b) where any amounts have been paid to him from the Transport Retirement Fund-such amount as the Board may determine.

(4) The amount referred to in paragraph (b) (iii) of the definition of "initial credit" in subsection (1) is, in respect of a contributor so referred to, an amount equal to the sum of:

(a) an amount of interest on his initial credit, if any, for the period for which he contributed to the Transport Retirement Fund, and

(b) an amount of interest on the amount calculated in accordance with paragraph (b) (ii) of that definition, calculated in a manner determined by the Board in respect of that person (regard being had to the respective dates of payment of each of the contributions so referred to),

the interest in each case being calculated at a rate or rates determined by the Board having regard to the average earning rate on the Transport Retirement Fund for each year ending on 30th June that ended during the period referred to in paragraph (a), that average earning rate being calculated in accordance with the formula

"I" represents the total amount of interest, dividends and rents credited to the Transport Retirement Fund during that year ending on 30th June, together with any profit derived from the realisation or appreciation of assets, reduced by:

(a) the amount of any interest charges against the Transport Retirement Fund,

(b) the amount of any depreciation of assets and the amount of any loss on the realisation of assets, and

(c) costs of management of the Transport Retirement Fund.

"C" represents the amount of the Transport Retirement Fund at the beginning of that year ending on 30 June.
"D" represents the amount of the Transport Retirement Fund at the end of that year ending on 30 June, "I" "C" "D"

(5) For the purposes of this Act, the time at which a person becomes a contributor is, in the case of a person who becomes a contributor on more than one occasion, the later or latest of those occasions, except where the regulations otherwise provide.

(6) Where a period of service is referred to in this Act in relation to an employee, the period so referred to is a period of continuous employment as an employee, being a period that is continuous with, and includes, the period of employment by virtue of which he is an employee and, for the purposes of calculating the duration of the period of service of an employee:

(a) he shall be deemed to have been an employee at a time before the coming into force of the provisions of this Act whereby he is an employee if, had those provisions been in force at that time, he would have been an employee at that time,

(b) where he became an employee by reason of his being within a class of persons referred to in section 12 (1) (a) (ii), he shall be deemed to have been an employee during any continuous period immediately before he so became an employee during which he participated in, or, in the opinion of the Board, would with the effluxion of time have participated in, a superannuation scheme by virtue of his employment with:

(i) an employer, or

(ii) such other public or local authority constituted by an Act as the Minister may approve in respect of him,

(b1) where he became an employee pursuant to an election under subsection (10), he shall be deemed to have been an employee during any continuous period immediately before he so became an employee during which:

(i) for any reason based on non-compliance with a requirement as to medical fitness, he was ineligible to participate in a superannuation scheme in which, but for that reason, he would have been eligible to participate, and

(ii) he was employed by an employer or such other public or local authority constituted by an Act as the Minister may approve in respect of him,

(b2) where the employee:

(i) was a contributor to the State Superannuation Fund,

(ii) made the election referred to in section 12A (1), and

(iii) paid an amount to the Board in accordance with section 12A (3),

the employee shall be deemed to have been an employee during any continuous period immediately before ceasing to be a contributor to the State Superannuation Fund during which the employee was such a contributor, and

(c) he shall, if he becomes a contributor pursuant to an election under section 16, be deemed, notwithstanding paragraphs (a) and (b), not to have been an employee during any period before the day that was twelve months earlier than the day on which he becomes a contributor.

(6A) Notwithstanding subsection (6), the regulations may prescribe that a period specified or described in the regulations is, or is not, a period of service for the purposes of this Act.

(7) A reference in this Act to the first day of a pay period for or applicable to a person that next follows a specified day or event includes a reference to a pay period for or applicable to that person the first day of which is that specified day or the day on which the specified event occurred.

(8) A reference in this Act to a description of a person, or to a class of persons, includes a reference to the name of a person and, where the reference is to a class of persons, the class may be described by reference to:

(a) all persons within a specified class of persons, or

(b) all persons within a specified class of persons other than:

(i) a specified person or specified persons, or

(ii) a specified class, or specified classes, of persons.

(9) Where this Act provides for the making of an election on a specified day, the Board may arrange for the election to be made in anticipation of that day but:

(a) an election so made does not take effect before that day, and

(b) takes effect only to the extent that, had it not been made, it could be made on that day.

(10) Where a person is not an employee by reason only of his being a person described in paragraph (d) of the definition of "employee" in subsection (1), he becomes an employee if, within the period of three months after being notified by the Board that he may do so, and while in the employment of an employer, he elects to be subject to the provisions of this Act.

(11) In this Act, a reference to the amount in respect of which a contributor is contributing to the Fund:

(a) is a reference to the amount upon which his rate of contribution is based, and

(b) does not include any amount referred to in section 26 (3) (b) or 26 (5) (c).