Superannuation Alert 2.3.18

- 2 March 2018

The Lander & Rogers Superannuation Alert is a brief overview of new developments in the superannuation industry.

Type Subject matter Source Description

Treasury

Treasury Laws Amendment
(2018 Measures No.1) Bill 2018 (Cth) passed by House of Representatives

Treasury Laws Amendment (2018 Measures No. 1) Bill 2018

On 27 February 2018, the Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 (Cth) passed the House of Representatives without amendment and will now proceed through to the Senate.

  • According to the Explanatory Memorandum, the Bill proposes to:
  • "[amend] the superannuation laws to enable the [ATO] to pay certain superannuation amounts directly to individuals with a terminal medical condition";
  • amend tax legislation to "extend the tax relief for merging superannuation funds until 1 July 2020";
  • amend the Australian Prudential Regulation Authority Act 1998 (Cth) to "enable the Government to recover the ongoing cost of the governance of the superannuation transaction network from the superannuation supervisory levy"; and
  • "[transfer] the regulator role for the early release of superannuation benefits on compassionate grounds from the [Department of Human Services] to the [ATO]".

ATO

ATO Draft Determination

Draft SPR 2018/D1

On 18 February 2018, the ATO released Draft SPR 2018/D1 - Draft Taxation Administration Member Account Attribute Service - the Reporting of Member Account Phases and Attributes 2018 (Draft Determination).

According to the explanatory statement, the Draft Determination "sets out the way in which superannuation providers are required to report superannuation account phases and attributes to the [ATO]".

Consultation on the Draft Determination closes today (2 March 2018).

Case
law
Referral to Royal
Commission

Mao v AMP Superannuation Ltd [2018] NSWCA 20

On 16 February 2018, New South Wales Court of Appeal delivered its decision in Mao v AMP Superannuation Ltd. In this case, the Applicant sought an 'Ex Parte Application for an Order to Refer' to refer a matter to the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (the Royal Commission).

The Applicant sought "an order referring the matters within the Terms of Reference for the Royal Commission inquiry" said to arise out of other court proceedings that she had been involved in.

The Court of Appeal invited the Applicant to identify a source of power pursuant to which it could make the order she sought. The Applicant was unable to point to such a power. The Applicant claimed that her proceeding ought to be heard "in conjunction with" the proceedings of the Royal Commission.

Justice Simpson held that the Order sought was beyond the jurisdiction of the Court, and therefore declined to make the Order.

Case
law
Interpretation of
"ordinary time earnings" for superannuation contributions

Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd [2018] FCA 80

On 14 February 2018, the Federal Court handed down its decision in Australian Workers' Union v BlueScope Steel (AIS) Pty Ltd. The case concerned an application made by the Australian Workers' Union (AWU) in relation to the superannuation entitlements of six employees employed by the two respondents — BlueScope Steel (AIS) Pty Ltd and BlueScope Steel Limited (the Respondents).

At issue was whether superannuation contributions were payable by the Respondents in respect of two components of the employees' annualised salaries: the "additional hours component" and the "public holidays component" of the employees. This required an analysis of the phrase "ordinary time earnings" and "ordinary hours of work" contained in section 6(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SG Act).

The Court interpreted these phrases in the context of the relevant enterprise agreement (EA) applicable to the employees. It was noted that the EA operated in a context where employees were required to work shifts and needed to be available 24 hours per day, 365 days per year. The Court contrasted this against the usual situation where a distinction can be drawn between the ordinary hours of 38 hours per week and overtime or additional time: "the present working context is one in which any distinction between the standard or ordinary hours and overtime or additional hours is more theoretical than real".

The Court examined the terms of the EA and in doing so, held that the fact that components for additional hours and public holidays were recognised by the EA as forming part of an employee's "annualised salary" indicated that the additional hours and public holidays "are so routinely worked - or customarily worked - that they form part of the "ordinary hours of work"".

As such, the Court held that the additional components were "ordinary time earnings" under section 6(1) of the SG Act and thus payable by the Respondents as superannuation contributions.

 Privacy Notifiable Data Breaches
Scheme - updated guidelines released
Updated guidance - Data breach preparation and response — A guide to managing data breaches in accordance with the Privacy Act 1988 (Cth)

On 22 February 2018, the Privacy Amendment (Notifiable Data Breaches) Act 2017 came into effect. Under the new requirements, entities that are bound by the Privacy Act 1988 (Cth) (Privacy Act), known as "APP entities", will be obliged to notify the Australian Information Commissioner (Commissioner) and affected customers of any "eligible data breach" as soon as practicable after becoming aware of the occurrence. Where an APP entity merely suspects that its data has been breached, it will have 30 days to conduct an investigation before it must report.

The Commissioner has released updated guidance in relation to managing data breaches.

  

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.