New South Wales Consolidated Acts

SUPERANNUATION ACT 1916 - SECT 38C

38C Break in service may be cured on certain conditions

(1) In this section, a reference to the prescribed rate is a reference to the rate of interest for the time being fixed by STC under section 86A for the purposes of this section.

(2) Where a person who ceases to be employed by an employer (otherwise than by retirement or retrenchment on pension under this Act) enters the service of the same or a different employer within the next succeeding period of three months and, within that same period of three months, would (but for section 1A) be required to contribute to the Fund, the person may, subject to subsection (8), elect to resume payment of the person’s contributions as if the person had not ceased to be employed if the person elects within three months after the person would (but for section 1A) be required to contribute to the Fund to comply, and upon the election taking effect does comply, with this section.

(3) A person referred to in subsection (2) complies with this section if:

(a) the person pays to the Fund any lump sum received by the person, or authorises the retention in the Fund of any lump sum payable to the person, under section 37, 37A, 38 or 38A in consequence of the cessation of the person’s employment together with, where the person has received any such amount, interest thereon at the prescribed rate from the date the amount was paid to the person to the date of receipt in the office of STC of the amount payable pursuant to this paragraph,

(b) the person pays to the Fund the amount referred to in subsection (4), and

(c) the person resumes payment to the Fund of the contributions that would, had the person continued in the employment of the person’s previous employer, have been payable by the person on and from the beginning of the four-weekly contribution period in which the person ceased to be employed.

(4) The amount required to be paid under paragraph (b) of subsection (3) by a person who makes an election under this section is an amount equal to the sum of:

(a) all the contributions that would have been payable:

(i) by the person from the day following the day to which the person’s contributions were paid before cessation of the person’s former employment, and

(ii) by the person’s employer from the beginning of the four-weekly contribution period in which the person ceased to be employed,

had the person continued in the employment of the person’s former employer, at the same salary as that which the person was receiving immediately before cessation of the contributions the person was required to make by reason of the person’s former employment, until the beginning of the first contribution period in which the person’s employment resumes, and

(b) interest at the prescribed rate on the amount of each contribution referred to in paragraph (a) from the termination of the four-weekly contribution period in respect of which it is required to be paid to the date of receipt of the contribution in the office of STC.

(5) STC may, in special circumstances and in a particular case:

(a) waive payment of interest under this section or any part thereof, or

(b) permit payment over an extended period of any amount required to be paid pursuant to paragraph (a) or (b) of subsection (3).

(6) Where a person who makes an election under this section was, immediately before cessation of the person’s employment, contributing for reserve units of pension under section 15A, the person may, when making an election under this section, make an election under subsection (6) of that section and, where the person so elects under that section, contributions in respect of the reserve units to which the election under that section relates shall not be taken into account when calculating any amount payable by that person under this section.

(7) Part 3 applies to and in respect of a person who makes an election under this section and does not comply with this section, and so applies as if the person had not made the election.

(8) Section 10B does not apply to a person who makes an election under this section, unless STC directs that that section shall apply to the person.

(9) A person who ceases to be an employee and elects under section 38B to take the benefit of Division 3A may not, upon entering the service of an employer within the next succeeding period of 3 months, make an election under this section if, during that period, the person received any benefit under that Division.

(10) Where a person who is deemed under subsection (11) not to have ceased to be an employee had, upon ceasing to be an employee, elected under section 38B to take the benefit of Division 3A:

(a) the person shall be deemed not to have elected to take the benefit of Division 3A, and

(b) no person has any rights in the Fund in relation to the employee-contributed pension component, or the employer-financed pension component, calculated in relation to the person.

(11) A person who makes an election under, and complies with, this section shall, for the purposes of this Act, but subject to subsection (8), be deemed not to have ceased to be an employee or a contributor by reason of the cessation of employment that gave rise to the election.

(12) If a person who is deemed under subsection (11) not to have ceased to be an employee had, on ceasing to be an employee, elected to take the benefit of section 37B:

(a) the person is deemed not to have elected to take the benefit of that section, and

(b) any lump sum amount payable by the employee to the Fund under that section ceases to be payable and, if it has already been paid to the Fund, is to be refunded to the employee.