authorised version no. 075...22dn definitions 127 22do transfer of assets and liabilities of the...

Authorised Version No. 075

Emergency Services Superannuation Act 1986

No. 94 of 1986 Authorised Version incorporating amendments as at

16 June 2015

TABLE OF PROVISIONS Section Page

Part 1—Preliminary 1 1 Purpose 1 2 Commencement 1 3 Definitions 2 3A Declaration of eligible salary sacrifice contributors 18 4 Application of Act 18 4A Payment of contributions by employers 24 4AA Eligible protective services officer may make election 25 4B Effect of Act 26 4C Guarantee of no detriment 26 4D Review of decision 26

Part 2—Emergency Services Superannuation Board 27 5 Establishment of Board 27 6 Objectives and duties of Board 27 6A Functions and powers of the Board 33 6B Prudential superannuation standard 35 7 Membership of the Board 35 8 Vacancies on Board 39 9 Deputies—elected members 41 9A Deputies—nominated members 41 10 Suspension and removal of members 42 11 Payment of members 42 12 Procedure of the Board 42 12A Resolutions without meetings 44 12B Improper use of information 44 12C Committees of the Board 45 12D Pecuniary interests of members of the Board 45 13 Chief Executive Officer 46 13A Staff 47 14 Delegation 49

Authorised by the Chief Parliamentary Counsel

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Section Page

Part 3—Emergency Services Superannuation Scheme 50 15 Establishment of Scheme 50 17 Borrowing and investment powers 50 17A Investment funds 50 17B Group accounts 50 18 Management Account of the Board 51 19 Actuarial investigation of the Scheme 52

Part 3AA—Contributions and benefits 54 20 Scheme may be supplemented by Consolidated Fund 54 20A Contributions 55 20B Membership 59 20C Accrued benefits 61 20D Retirement of contributor 66 20E Death of contributor or police recruit 66 20F Disability of contributor or police recruit 69 20G Temporary pension for illness or injury 75 20H Termination due to ill health 77 20I Indexation of pensions 78 20J Retrenchment of contributor 79 20K Other termination of service of contributor 79 20L Restriction of death and disability benefits 80 20M Optional contributions during leave of absence 82 20N Nominated personal representatives 83 20NA Registration of names of dependants 84 20O Death benefit when no dependants 84 20P Payment of benefits in case of multiple claimants 85 20PA Entitlements in respect of returning members who are

operational staff members 86 20Q Separate employer accounts 86 20R Remittance of contributions 88 20S Minimum Requisite Benefit 88

Part 3A—ESSPLAN Scheme 89 21 Definitions 89 21A ESSPLAN Scheme 91 21B Membership of ESSPLAN 92 21C Employer contributions 94 21D Member's contributions for ESSPLAN 95 21E Amount and payment of benefits under ESSPLAN 96 21F Disability and death cover under ESSPLAN 97 21FA Optional additional disability and death cover under

ESSPLAN 99 21G Disability and death insurance under ESSPLAN 100 21H Amount and payment of disability or death benefits 100 21I Member's accounts for ESSPLAN 101


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Section Page

21IA Contribution splitting 102 21J Beneficiaries Accounts 104 21JA Spouse Accounts 106 21JB Optional disability and death cover for eligible spouses 108 21K Investment funds 109 21L Net earning rate 110 21M Roll over or transfer of preserved benefit 111 21N Transfer to or from new scheme 111 21O Roll over or transfer of benefits to other fund 112

Part 4—Transfer from other superannuation funds 113 22 Pensions for former contributors to other funds 113 22A Transfer of assets and liabilities of Police Pensions Fund and

Police Superannuation Fund 114 22B Transfer of assets in respect of VEISF beneficiaries 114 22C Provisions relating to transferred beneficiaries 116 22D Commutation of pension not exceeding declared rate 117

Part 4AA—Transfer of the State Superannuation Fund and transfer of administration of the MTA Superannuation Fund and related matters 118

22DA Definitions 118 22DB Transfer of assets and liabilities of the State Superannuation

Fund 118 22DC Board is successor in law 119 22DD Exemption from stamp duty or other tax 121 22DE Transitional provision—Registrar of Titles 121

Part 4AB—Transfer of administration of declared public sector superannuation schemes 122

22DF Application of this Part 122 22DG Declaration of administered schemes 122 22DH Board is successor in law 122 22DI Conflict between duties, functions and powers 123 22DJ Matters which may be included in Order in Council 124 22DK General provisions relating to Orders in Council 124 22DL Exemption from stamp duty or other tax 125 22DM Transitional provision—Registrar of Titles 126

Part 4AC—Transfer of the Parliamentary Contributory Superannuation Fund and related matters 127

22DN Definitions 127 22DO Transfer of assets and liabilities of the Parliamentary

Contributory Superannuation Fund 127 22DP Board is successor in law 128 22DQ Exemption from stamp duty or other tax 129 22DR Transitional provision—Registrar of Titles 129


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Section Page

22DS Actuarial investigation 129 22DT Scheme may be supplemented by Consolidated Fund 130

Part 4A—Family law provisions 131 22E Definitions 131 22EA Accrued benefit multiple 134 22F Obligation on Board 134 22G Reduction of benefit or accrued benefit entitlement 137 22H Board may provide additional information 138 22I Charging of fees 138

Part 5—Review of decisions of Board 140 23 Person may request Board to reconsider decision 140

Part 6—General 142 23AA Payment of benefits subject to specified standards 142 23A Application for disability benefit 142 24 Medical issues 142 25 Disclosure of contents of medical reports 143 25A Taxation on benefits 143 25AA No detriment provision 147 25B Surcharge debt account 149 25C Commutation of pension to meet surcharge liability 152 26 Assignment or charging of interest 153 26A Early release of benefits 154 27 Money owing to the Scheme 154 27A Unpaid lump sum benefits 155 28 Minors 155 28A Payment of benefits if person is incapable of managing

financial affairs 155 29 Board may require information 156 29A Specified standards 158

Part 7—Regulations 160 31 Regulations generally 160 32 Regulations under this Act 161

Part 8—Transitional provisions 163 33 Victoria Police Act 2013 163

═══════════════


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Section Page

Endnotes 164 1 General information 164

2 Table of Amendments 165 3 Amendments Not in Operation 172

4 Explanatory details 173


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Authorised Version No. 075

Emergency Services Superannuation Act 1986

No. 94 of 1986 Authorised Version incorporating amendments as at

16 June 2015

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose (1) The purpose of this Act is to establish an

Emergency Services Superannuation Board and Scheme to provide superannuation benefits for persons employed in the emergency services.

(2) In addition to the purpose specified in subsection (1), the purpose of this Act as amended by the Superannuation Legislation (Governance Reform) Act 2005 is to—

(a) re-constitute the Board and empower the Board to administer public sector superannuation schemes; and

(b) improve the administration of public sector superannuation schemes.

2 Commencement This Act comes into operation on 1 January 1987.

S. 1 amended by No. 94/2005 s. 3 (ILA s. 39B(1)).

S. 1(2) inserted by No. 94/2005 s. 3.


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Part 1—Preliminary

Emergency Services Superannuation Act 1986 No. 94 of 1986

3 Definitions (1) In this Act—

actuary means a fellow or accredited member of the Institute of Actuaries of Australia approved by the Minister;

adjusted total contributions means the sum of— (a) the total contributions (other than

optional contributions under section 20M made after 31 December 1987) which would have been made by a contributor under the Scheme if the salary of the contributor had always been equal to the salary of the contributor at the date of termination of service; and

(b) a percentage of salary at the date of termination of service of the contributor determined by the Board having regard to the period of membership and contributions under a prior fund and any benefits paid to the contributor from a prior fund; and

(c) a percentage of salary at the date of termination of service of the contributor determined by the Board having regard to any money or other assets transferred from an approved superannuation arrangement;

S. 3 amended by No. 27/2001 s. 5(Sch. 3 item 2.2) (ILA s. 39B(1)).

S. 3(1) def. of actuary substituted by No. 4/1996 s. 3(a).

S. 3(1) def. of adjusted total contributions inserted by No. 82/1996 s. 6(1).


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administered scheme means— (a) the MTA Superannuation Fund; and

(b) a public sector superannuation scheme which is declared to be an administered scheme under section 22DG;

appointed day, in respect of an administered scheme within the meaning of paragraph (b) of the definition of "administered scheme", means the appointed day specified in the Order in Council made under section 22DG in respect of the transfer of the administered scheme;

approved superannuation arrangement means a superannuation arrangement which has been approved by the Minister;

benefit means any amount paid or payable by the Board out of the Scheme under this Act;

Board means Emergency Services Superannuation Board;

Chief Executive Officer means the Chief Executive Officer of the Board appointed to be the Chief Executive Officer under section 13 or a person appointed to act as the Chief Executive Officer under that section;

child in relation to a deceased contributor or former contributor or member or former member or police recruit or former police recruit means a child of the person or the person's partner other than any child born more than 10 months after the person's death who is—

(a) under 18 years of age; or

S. 3(1) def. of administered scheme inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of appointed day inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of benefit amended by No. 94/2005 s. 4(2).

S. 3(1) def. of Chief Executive Officer inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of child inserted by No. 27/2001 s. 5(Sch. 3 item 2.1(a)).


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(b) between the age of 18 and 25 years and in the opinion of the Board is a full-time student;

complying superannuation fund means a superannuation entity or a superannuation fund within the meaning of section 10 of the Commonwealth Superannuation Industry (Supervision) Act 1993 which is a complying superannuation fund or a complying approved deposit fund within the meaning of Part IX of the Commonwealth Income Tax Assessment Act 1936;

consumer price index means the all groups consumer price index in original terms for all capital cities in respect of a half year ending on 30 June or 31 December published by the Australian Bureau of Statistics;

contributor means an employee who will be, is, or has been, liable to contribute to the Scheme under Part 3AA with respect to the entitlement to benefits under that Scheme;

current equivalent of salary on termination of service means the salary (in accordance with section 4(1E)(f)) that the Board determines, having regard to increases in salary that have occurred since the termination of service of the former contributor or former police recruit, as being equivalent to the salary that was payable to the contributor or police recruit immediately prior to termination of service;

S. 3(1) def. of complying super-annuation fund inserted by No. 4/1996 s. 3(b).

S. 3(1) def. of consumer price index inserted by No. 82/1996 s. 6(1), substituted by No. 44/2014 s. 33(Sch. item 10(1)).

S. 3(1) def. of contributor substituted by No. 84/1998 s. 3, amended by No. 94/2005 s. 4(3).

S. 3(1) def. of current equivalent of salary on termination of service inserted by No. 82/1996 s. 6(1), amended by No. 29/2000 s. 3(1).


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dependant means in relation to a deceased contributor or former contributor or member or former member or police recruit or former police recruit—

(a) the partner or any child of the contributor or former contributor or member or former member or police recruit or former police recruit; or

(b) any other person who in the opinion of the Board was at the date of death of the contributor or former contributor or member or former member or police recruit or former police recruit, wholly or partially dependent on the contributor or former contributor or member or former member or police recruit or former police recruit or who at that date had a legal right to look to the contributor or former contributor or member or former member or police recruit or former police recruit for financial support;

disability means— (a) if a disability benefit insurance policy is

in force in respect of a member, disability as defined in or for the purposes of that policy; or

(b) in any other case, the inability of a contributor or member before the age of 60 years or of a police recruit due to a continuing or recurring injury, disease or infirmity to ever—

(i) perform his or her duties; and

S. 3(1) def. of dependant inserted by No. 82/1996 s. 6(1), amended by No. 27/2001 s. 5(Sch. 3 item 2.1(b)).

S. 3(1) def. of disability inserted by No. 4/1996 s. 3(c), amended by No. 82/1996 s. 6(2).


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(ii) perform any other duties for which he or she is suited by education, training or experience or for which he or she would be suited as a result of retraining—

as determined by the Board on the basis of reports provided by at least 2 registered medical practitioners appointed by the Board;

domestic partner of a person means— (a) a person who is, or was at the time of

the person's death, in a registered domestic relationship with the person; or

(b) a person to whom the person is not married but with whom, in the opinion of the Board, the person is, or was at the time of the person's death, living as a couple on a genuine domestic basis (irrespective of gender);

eligible beneficiary means a person who is entitled to a benefit under a Superannuation Act (other than this Act or Part 3 of the Parliamentary Salaries and Superannuation Act 1968) or an administered scheme;

eligible protective services officer means a person who was appointed as a protective services officer during the period commencing on or after 1 January 1994 and ending on the day on which section 3 of the Superannuation Legislation Amendment Act 2009 comes into operation;

S. 3(1) def. of domestic partner inserted by No. 27/2001 s. 5(Sch. 3 item 2.1(a)), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 19.1), amended by No. 4/2009 s. 37(Sch. 1 item 12.1).

S. 3(1) def. of eligible beneficiary inserted by No. 43/2008 s. 3, amended by No. 61/2013 s. 12(a).

S. 3(1) def. of eligible protective services officer inserted by No. 38/2009 s. 3(1).


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eligible salary sacrifice contributor means a contributor in respect of whom a declaration is in force under section 3A;

employee means a person who is— (a) a police officer; or

(b) a police reservist who has not, on retirement (on grounds other than disability) at the age of 50 or over, become entitled to a benefit under the State Superannuation Act 1988 or this Act; or

(ba) a protective services officer; or

(c) an officer or employee of the Metropolitan Fire Brigades Board or a member of the Metropolitan Fire Brigades Board appointed under section 7(1) of the Metropolitan Fire Brigades Act 1958; or

(d) a person appointed by the Country Fire Authority under section 17 of the Country Fire Authority Act 1958 or a member of the Country Fire Authority appointed under section 7 of that Act; or

(e) an officer of the Department of Sustainability and Environment or Department of Primary Industries who is a permanent officer who is employed full time in operational fire protection duties and is declared or is within a class of persons which are declared for the purposes of this Act by the Minister

S. 3(1) def. of eligible salary sacrifice contributor inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of employee amended by Nos 50/1988 s. 93(2)(Sch. 2 Pt 2 item 15), 81/1988 s. 3(a)(i)–(iv), 72/1990 s. 17, 58/1994 s. 10(a)–(c), 82/1996 s. 20(1)(2), 38/1998 s. 15(a), 94/2005 s. 4(4), 38/2009 s. 3(2)(a), 40/2010 s. 3(a), 37/2014 s. 10(Sch. item 54.1(b)).


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by notice published in the Government Gazette; or

(f) an employee of Ambulance Service—Victoria within the meaning of the Ambulance Services Act 1986 or any other ambulance service declared for the purposes of this Act by the Minister by notice published in the Government Gazette; or

(g) a person employed by the Board before 1 December 2005 or in accordance with section 13 or 13A or to which section 13A(3)(b) applies; or

(h) a person referred to in paragraph (a), (b), (ba), (c), (d), (e), (f) or (g) who has resigned or has been given leave of absence without pay to act as a full-time officer of—

(i) a union; or

(ii) an employee organisation—

which is approved by the Minister; or

(i) an employee within the meaning of the Commonwealth Superannuation Guarantee (Administration) Act 1992 not being a person whose eligibility to be a member would but for this paragraph be determined by the application of paragraph (e) or (h);

employer means the employer of— (a) an employee; or

(b) a police recruit;


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governing body means the person or body administering a public sector superannuation scheme but does not include the Board;

governing instrument means the Act, regulations, by-law, trust deed or other document whatsoever or any combination of such documents by or under which a public sector superannuation scheme is established or maintained;

ill health means a continuous or recurring impairment of the health of a contributor which is due to a physical or mental incapacity, bodily injury, illness or disease, which in the opinion of the Board—

(a) is not a disability; and

(b) is likely to be adversely affected if the contributor remains in his or her employment or returns to employment with an employer; and

(c) does not preclude the contributor from seeking alternative employment; and

(d) has not been incurred or inflicted for the purpose of obtaining a benefit;

nominee, in relation to a deceased contributor or former contributor, means—

(a) any person nominated by the contributor as a nominated personal representative under section 20N(1); or

(b) any person deemed to be a contributor's nominated personal representative under section 20N(3); or

S. 3(1) def. of governing body inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of governing instrument inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of ill health inserted by No. 82/1996 s. 6(1).

S. 3(1) def. of nominee inserted by No. 82/1996 s. 6(1), amended by No. 70/2003 s. 3, substituted by No. 61/2013 s. 3.


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(c) any person over the age of 18 years who is not in the opinion of the Board a full-time student and to whom the contributor has been the natural or adoptive parent;

* * * * *

operational staff member means a contributor who is or has been during any period of service in respect of which benefits may become payable under the Scheme—

(a) a police officer who has completed a course either in Victoria or elsewhere which enables him or her to undertake general duties as a police officer and who has taken and subscribed an oath or affirmation under section 50 of the Victoria Police Act 2013;

(ab) subject to section 4(7C), a protective services officer who has completed a course either in Victoria or elsewhere which enables him or her to undertake general duties as a protective services officer and who has taken and subscribed an oath or affirmation under section 50 of the Victoria Police Act 2013;

(b) an employee of the Department of Sustainability and Environment or Department of Primary Industries;

S. 3(1) def. of occupational super-annuation standards inserted by No. 49/1992 s. 33, repealed by No. 4/1996 s. 3(d).

S. 3(1) def. of operational staff member inserted by No. 82/1996 s. 6(1), amended by Nos 38/2009 s. 3(2)(b)(c), 40/2010 s. 3(b), 37/2014 s. 10(Sch. item 54.1(c)).


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(c) any employee within the meaning of paragraphs (c), (d) and (f) of the definition of employee who is declared or is within a class of persons which are declared for the purposes of this Act by the Minister by notice published in the Government Gazette and is designated by an employer as an operational staff member;

(d) any other employee (other than an employee within the meaning of paragraphs (a), (e) and (g) of the definition of "employee") who is designated by an employer as an operational staff member and who is approved as such by the Board;

Parliamentary Contributory Superannuation Fund means the Parliamentary Contributory Superannuation Fund established and kept under Part 3 of the Parliamentary Salaries and Superannuation Act 1968 and as in existence immediately before the commencement of section 12 of the Superannuation Legislation Amendment Act 2013;

partner of a person means the person's spouse or domestic partner;

part-time contributor means a contributor employed on a permanent basis which requires less than full-time service;

S. 3(1) def. of Parliamentary Contributory Super-annuation Fund inserted by No. 61/2013 s. 12(c).

S. 3(1) def. of partner inserted by No. 27/2001 s. 5(Sch. 3 item 2.1(a)), substituted by No. 40/2010 s. 4(1).

S. 3(1) def. of part-time contributor inserted by No. 82/1996 s. 6(1).


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pensioner means a person receiving a pension under this Act;

police officer has the same meaning as in the Victoria Police Act 2013;

police recruit has the same meaning as in the Victoria Police Act 2013;

police reservist has the same meaning as in the Victoria Police Act 2013;

prior fund means— (a) the Superannuation Fund operated

under the Superannuation Act 1958; or

(b) the Police Pensions Fund operated under the Police Regulation Act 1958; or

(c) the Metropolitan Fire Brigades Superannuation Fund operated under the Metropolitan Fire Brigades Superannuation Act 1976; or

(d) the Hospitals Superannuation Fund operated under the Hospitals Superannuation Act 1965; or

S. 3(1) def. of pensioner amended by No. 82/1996 s. 20(3).

S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 54.1(a)).

S. 3(1) def. of police recruit substituted by No. 37/2014 s. 10(Sch. item 54.1(d)).

S. 3(1) def. of police reservist inserted by No. 37/2014 s. 10(Sch. item 54.1(a)).

S. 3(1) def. of prior fund inserted by No. 82/1996 s. 6(1).


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(e) the State Superannuation Fund operated under the State Superannuation Act 1988;

protective services officer has the same meaning as in the Victoria Police Act 2013;

public sector superannuation scheme means a scheme for the payment of superannuation, retirement or death benefits which is established or maintained—

(a) by or under an Act; or

(b) by a public authority, statutory body, body corporate or other body constituted by or under an Act;

retrenchment means the termination of employment or service of a contributor who has not attained the minimum age for retirement and in respect of whom the employer certifies in writing to the Board that the contributor has been retrenched for the purposes of this Act;

returning officer means a person who— (a) was a police officer; and

(b) is re-appointed under a fixed term agreement as a police officer;

S. 3(1) def. of protective services officer inserted by No. 38/2009 s. 3(1), substituted by No. 37/2014 s. 10(Sch. item 54.1(e)).

S. 3(1) def. of public sector super-annuation scheme inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of retrenchment inserted by No. 82/1996 s. 6(1).

S. 3(1) def. of returning member inserted by No. 43/2008 s. 3, substituted asreturning officer by No. 37/2014 s. 10(Sch. item 54.1(f)).


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salary means— (a) the amount, computed as determined by

the Board, of the annual rate of remuneration for the time being payable periodically and regularly to a contributor or a police recruit by an employer excluding any expense of office or uniform allowance, reimbursement of travelling or other incidental expenses and all other allowances which would not ordinarily be payable in respect of every pay period in a year of employment or during the training of the police recruit; or

(b) in the case of a contributor who is engaged under a contract of employment, salary means the salary for superannuation purposes specified from time to time in that person's contract of employment, notified in writing by that contributor's employer to the Board and which is approved by the Board;

Scheme means Emergency Services Superannuation Scheme;

specified standards means standards specified under section 29A;

spouse of a person means a person to whom the person is, or was at the time of the person's death, married;

S. 3(1) def. of salary inserted by No. 82/1996 s. 6(1).

S. 3(1) def. of specified standards inserted by No. 4/1996 s. 3(e).

S. 3(1) def. of spouse inserted by No. 82/1996 s. 6(1), substituted by No. 27/2001 s. 5(Sch. 3 item 2.1(c)).


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State Superannuation Fund means the Superannuation Fund established under the Superannuation Act 1925 and continued under the State Superannuation Act 1988 as the State Superannuation Fund and as in existence immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005;

Superannuation Act means— (a) this Act;

(ab) Part 3 of the Parliamentary Salaries and Superannuation Act 1968;

(b) Part III of the Police Regulation (Pensions) Act 1958;

(c) the State Employees Retirement Benefits Act 1979;

(d) the State Superannuation Act 1988; (e) the Superannuation Act 1958; (f) the Transport Superannuation Act

1988; superannuation benefits includes superannuation

payments, annuities, pensions, allowances, lump sum payments or other benefits;

superannuation system has the same meaning as it has in regulation 5.01(1) of the Superannuation Industry (Supervision) Regulations 1994 of the Commonwealth;

S. 3(1) def. of State Super-annuation Fund inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of Super-annuation Act inserted by No. 94/2005 s. 4(1), amended by Nos 61/2013 s. 12(b), 37/2014 s. 10(Sch. item 54.1(g)).

S. 3(1) def. of super-annuation benefits inserted by No. 94/2005 s. 4(1).

S. 3(1) def. of super-annuation system inserted by No. 37/2007 s. 3.


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surchargeable contributions means the surchargeable contributions of a contributor for a particular financial year worked out in accordance with section 8 of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and any regulations made under that section that apply in respect of that particular financial year;

surcharge debt account means, in relation to a person who is or has been a contributor to the Scheme or member of the ESSPLAN Scheme, the surcharge debt account kept for that person (while he or she was a contributor to the Scheme or member of the ESSPLAN Scheme) under section 25B;

surcharge deduction amount means, in relation to a person—

(a) who is or has been a contributor; and

(b) to or in respect of whom benefits become payable under this Act—

the surcharge deduction amount that is specified in a determination made by the Board under section 25B in relation to the person;

termination of service means the cessation of the employment of a contributor whether voluntary or compulsory;

transferred officer means a person who has made a choice, or is deemed to have made a choice, under section 4 to contribute to the Scheme.

S. 3(1) def. of surchargeable contributions inserted by No. 29/2000 s. 3(2).

S. 3(1) def. of surcharge debt account inserted by No. 29/2000 s. 3(2).

S. 3(1) def. of surcharge deduction amount inserted by No. 29/2000 s. 3(2).

S. 3(1) def. of termination of service inserted by No. 82/1996 s. 6(1).

S. 3(1) def. of transferred officer amended by No. 64/1991 s. 4(a).


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(2) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered domestic relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not or were not in a registered domestic relationship are or were domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.

(2A) The definition of partner as substituted by section 4(1) of the Superannuation Legislation Amendment Act 2010 applies in respect of the determination by the Board of an entitlement arising under this or any other Superannuation Act on or after the commencement of the substituting section.

(3) A reference in this Act to the administration of a public sector superannuation scheme includes a reference to the management and control of the policies of that scheme.

(4) If there is any inconsistency between a provision which by virtue of this Act is deemed to form part of or is to be read and construed as forming part of a governing instrument and any other provision of the governing instrument, the first-mentioned provision prevails.

S. 3(2) inserted by No. 27/2001 s. 5(Sch. 3 item 2.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 19.2).

S. 3(2)(a) amended by No. 4/2009 s. 37(Sch. 1 item 12.2(a)).

S. 3(2)(b) amended by No. 4/2009 s. 37(Sch. 1 item 12.2(b)).

S. 3(2A) inserted by No. 40/2010 s. 4(2).

S. 3(3) inserted by No. 94/2005 s. 4(5).

S. 3(4) inserted by No. 94/2005 s. 4(5).


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3A Declaration of eligible salary sacrifice contributors The Minister may by notice published in the Government Gazette declare—

(a) a contributor to be an eligible salary sacrifice contributor from the date specified in the notice; or

(b) a class of contributors to be eligible salary sacrifice contributors from the date specified in the notice.

4 Application of Act (1) A person who is an employee and is entitled to

any benefits from—

(a) the State Superannuation Fund; or

(b) the Hospitals Superannuation Fund; or

* * * * *

(d) any approved superannuation arrangement—

may, within the period or periods determined by the Board, choose to contribute to the Scheme.

(1A) A person who is an employee but is not as at the day on which section 3(d) of the Superannuation Acts (Amendment) Act 1988 comes into operation entitled to any benefits from a superannuation fund or arrangement to which subsection (1) applies may within the prescribed period under the Emergency Services Superannuation (Election to Contribute) Regulations 1988 or a subsequent period

S. 3A inserted by No. 94/2005 s. 5.

S. 4(1) amended by Nos 81/1988 s. 3(c), 49/1992 s. 34.

S. 4(1)(a) amended by No. 81/1988 s. 3(b).

S. 4(1)(c) repealed by No. 64/1991 s. 4(b).

S. 4(1A) inserted by No. 81/1988 s. 3(d), amended by No. 82/1996 s. 20(4).


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determined by the Board choose to contribute to the Scheme.

(1B) Despite paragraph (e) of the definition of employee in section 3, an officer of the Department of Sustainability and Environment or Department of Primary Industries who is transferred to an office which was held by a person or a class of persons declared for the purposes of that paragraph may within the period of 3 months after that transfer elect to continue to be a member of the State Superannuation Fund.

(1BA) If an officer to whom subsection (1B) applies—

(a) does not make an election under that subsection; and

(b) subsequently ceases to hold the office referred to in that subsection; and

(c) continues to be eligible to be a member of a public sector superannuation scheme—

the officer may within the period of 3 months after ceasing to hold that office elect to continue to contribute to the Scheme or to transfer to the new scheme under the State Superannuation Act 1988.

(1C) For the purposes of the definition of employee in section 3, a person who is appointed under an Act to an office for a fixed term of years is to be taken to be employed permanently.

(1D) Despite paragraphs (a), (c) and (d) of the definition of employee in section 3, a person who becomes an employee by being appointed to the office of—

(a) Chief Commissioner of Police; or

(b) President of the Metropolitan Fire Brigades Board; or

S. 4(1B) inserted by No. 81/1988 s. 3(d), amended by Nos 82/1996 s. 20(5)(a)(b), 40/2010 s. 5(1).

S. 4(1BA) inserted by No. 82/1996 s. 20(6).

S. 4(1C) inserted by No. 81/1988 s. 3(d).

S. 4(1D) inserted by No. 81/1988 s. 3(d).


19



(c) Chairman of the Country Fire Authority; or

(d) Deputy Chairman of the Country Fire Authority—

is not to be taken to be an employee unless he or she chooses to contribute to the Scheme within 3 months of being appointed to that office.

(1DA) For the purposes of paragraph (f) of the definition of employee, a person continues to be an employee within the meaning of that paragraph if the person—

(a) is an employee of Ambulance Service—Victoria within the meaning of the Ambulance Services Act 1986 on 1 July 2010; and

(b) transfers to an office of employment with the Emergency Services Telecommunications Authority within the meaning of the Emergency Services Telecommunications Authority Act 2004.

(1E) For the purposes of the definition of salary in section 3—

(a) in the case of the contributor who is on leave of absence without pay or less than full pay and is not acting as a full-time officer of a union or employee organisation, salary means the salary that the contributor would have received had the contributor not been on leave of absence without pay or less than full pay and not been acting as a full-time officer of a union or employee organisation, or such greater salary as is paid to the contributor by any other employer and approved by the Board;

(b) in the case of the contributor who is an employee of a union or employee organisation, the salary that the contributor

S. 4(1DA) inserted by No. 40/2010 s. 5(2).

S. 4(1E) inserted by No. 82/1996 s. 7.


20



would have received had the contributor not been an employee of a union or employee organisation, or such greater salary as is paid to the contributor by the union or employee organisation and approved by the Board;

(c) in the case of a part-time contributor, salary means the salary which would be payable at that time to a person in similar employment on a full-time basis;

(d) if a contributor's salary is reduced, and the Board agrees that the reduction is not to be taken into account, salary means the greater of—

(i) the salary of the contributor immediately prior to the reduction; and

(ii) the actual salary;

(e) in the case of a contributor who receives payments under section 20F(17) or 20F(18), salary includes those payments;

(f) on and from 1 January 1994, the salary used to determine the accrued benefit of a former contributor is the salary averaged over a period of 2 years prior to the date of termination of service calculated—

(i) in relation to a contributor with less than 2 years of service, an amount calculated in accordance with the formula—

1365

×BA

where—

"A" is the aggregate salary paid to the contributor in respect of the contributor's period of service;

S. 4(1E)(f) amended by No. 84/1998 s. 4(1).


21



"B" is the total number of days in that period;

(ii) in relation to a contributor with 2 years or more of service, an amount equal to one-half of the contributor's aggregate salary for the period of service of 2 years ending on the contributor's last day of service—

and if the period of recognised service includes a period of leave without pay, there is deemed to have been payable to that contributor during that period of leave without pay, salary at the rate payable to the contributor immediately before the period of leave, or such higher salary as has been approved by the Board for the purposes of this subsection.

(2) A person who is employed by the Ambulance Service—Victoria within the meaning of the Ambulance Services Act 1986 or any other declared ambulance service and is not a contributor to the Hospitals Superannuation Fund may, within the prescribed period under the Emergency Services Superannuation (Transfer Period) Regulations 1987 or a subsequent period determined by the Board, choose to contribute to the Scheme.

(3) A person becomes a contributor to the Scheme—

(a) if the person becomes an employee on or after the date on which this Act comes into operation, on the commencement of that employment; or

(b) if the person is a transferred officer, when that person chooses to contribute to the Scheme.

S. 4(2) amended by Nos 82/1996 s. 20(7)(a)(b), 38/1998 s. 15(b).


22



(4) A police recruit cannot become a contributor to the Scheme.

(5) A person who is a contributor to the Metropolitan Fire Brigades Superannuation Fund immediately before section 4 of the Emergency Services Superannuation (MFBSF Transfer) Act 1991 comes into operation is deemed on that commencement to have chosen to contribute to the Scheme.

(6) A person to whom subsection (5) applies is entitled to elect to contribute to make the same contributions and receive the same benefits that he or she would have been entitled to make and receive as a contributor to the Metropolitan Fire Brigades Superannuation Fund.

(7) A person who is not an operational staff member cannot become a contributor to the Scheme on or after 1 January 1994 except as a member of the ESSPLAN Scheme.

(7A) Despite subsection (7), an eligible protective services officer who—

(a) is a member of the ESSPLAN Scheme; and

(b) elects to become a contributor to the Scheme in accordance with section 4AA—

becomes a contributor to the Scheme under Part 3AA from the day on which the Board accepts the election.

(7B) An eligible protective services officer who is a member of the ESSPLAN Scheme and does not make an election under section 4AA continues to be a member of the ESSPLAN Scheme.

S. 4(5) inserted by No. 64/1991 s. 4(c).

S. 4(6) inserted by No. 64/1991 s. 4(c).

S. 4(7) inserted by No. 110/1993 s. 138, amended by No. 82/1996 s. 20(8).

S. 4(7A) inserted by No. 38/2009 s. 4.

S. 4(7B) inserted by No. 38/2009 s. 4.


23



(7C) An eligible protective services officer who is a member of the ESSPLAN Scheme and has not made an election under section 4AA cannot be a contributor to the Scheme under Part 3AA.

(8) A returning member who is an operational staff member cannot become a contributor.

(9) Despite anything to the contrary in this section, an eligible beneficiary—

(a) may become a member of the ESSPLAN Scheme in accordance with section 21B(1)(c);

(b) who becomes a member of the ESSPLAN Scheme in accordance with section 21B(1)(c) is not a contributor to the Scheme.

(10) For the avoidance of doubt, despite the transfer of the Parliamentary Contributory Superannuation Fund, a member of the Parliament of Victoria who under Part 3 of the Parliamentary Salaries and Superannuation Act 1968 is entitled to be a member of the Scheme cannot become a member of the ESSPLAN Scheme.

4A Payment of contributions by employers (1) For the purposes of the provisions of this Act

relating to contributions by employers, employer means—

(a) an employer within the meaning of the definition of "employer" in section 3; and

(b) any other person, authority or body declared by the Minister by notice published in the Government Gazette to be an employer in respect of an employee or a pensioner.

S. 4(7C) inserted by No. 38/2009 s. 4.

S. 4(8) inserted by No. 43/2008 s. 4.

S. 4(9) inserted by No. 43/2008 s. 4.

S. 4(10) inserted by No. 61/2013 s. 13.

S. 4A inserted by No. 102/1995 s. 3, amended by No. 82/1996 s. 20(9).


24



(2) The Minister may by notice published in the Government Gazette declare a class or classes of employers.

4AA Eligible protective services officer may make election

(1) An eligible protective services officer who is a member of the ESSPLAN Scheme may within the election period elect to become a contributor to the Scheme under Part 3AA.

(2) An election under subsection (1)—

(a) must be in writing addressed to the Board in a form approved by the Board;

(b) cannot be withdrawn after the eligible protective services officer has been advised by the Board that the election has been accepted;

(c) ceases to have effect, if before the Board has accepted the election, the eligible protective services officer—

(i) dies; or

(ii) suffers a disability; or

(iii) terminates service.

(3) The Minister may, on the advice of the Board, by further notice published in the Government Gazette before the expiry of the election period extend the election period to a later date specified in the notice.

(4) For the purposes of this section, election period means the period specified by the Minister by notice published in the Government Gazette to be the specified period in respect of all eligible protective services officers or in respect of classes of eligible protective services officers specified in the notice.

S. 4AA inserted by No. 38/2009 s. 5.


25



4B Effect of Act This Act does not confer any power on the Government of Victoria, the Minister or the Board to close the Scheme established under section 15 to new members.

4C Guarantee of no detriment (1) Subject to subsection (2), no benefit or entitlement

to a benefit calculated or payable under a Superannuation Act shall be less than the benefit or entitlement to which a person would have been entitled if this Act had not been amended by the Superannuation Legislation (Governance Reform) Act 2005.

(2) This section applies to a benefit or entitlement to a benefit calculated or payable under Part 3A only to the extent that the benefit is not impacted by investment decisions, changes to the rate or amount of member contributions made at the direction of a member or matters at the discretion of the Board.

4D Review of decision A person who is aggrieved as to a decision of the Board that a benefit or entitlement to a benefit calculated or payable under a Superannuation Act to which section 4C applies is not less than the benefit or entitlement to which a person would have been entitled if this Act had not been amended by the Superannuation Legislation (Governance Reform) Act 2005, is entitled to a review of that decision in accordance with the Superannuation Act under which the benefit or entitlement to the benefit is calculated or payable.

__________________

S. 4B inserted by No. 94/2005 s. 6.

S. 4C inserted by No. 94/2005 s. 6.

S. 4D inserted by No. 94/2005 s. 6.


26

Part 2—Emergency Services Superannuation Board


PART 2—EMERGENCY SERVICES SUPERANNUATION BOARD

5 Establishment of Board (1) There is established a body corporate called the

Emergency Services Superannuation Board.

(2) The Board—

(a) has perpetual succession; and

(b) has a common seal; and

(c) may sue and be sued in its corporate name; and

(d) is capable of taking, purchasing, leasing, holding, selling, exchanging and disposing of real and personal property for the purposes of this Act; and

(e) may do and suffer all acts and things which a body corporate may by law do and suffer and which are necessary or expedient for the purposes of this Act.

(3) The common seal of the Board—

(a) can only be attached to a document if the Board so resolves; and

(b) must be authenticated by the signature of one member of the Board and an officer authorised by the Board.

6 Objectives and duties of Board (1) The following are the objectives of the Board—

(a) to collect contributions and other assets due to the Scheme or an administered scheme;

(b) to manage and determine investment objectives for the assets of the Scheme or an administered scheme so as to achieve

S. 6(1) amended by No. 120/1994 s. 3(1), substituted by No. 94/2005 s. 7(1).


27



optimal risk and return outcomes having regard to—

(i) the need to provide for payments out of the Scheme or administered scheme; and

(ii) the need to exercise reasonable care and prudence so as to maintain the integrity of the Scheme or administered scheme;

(c) to administer the payment of benefits under a Superannuation Act or the governing instrument of an administered scheme.

(2) It is the duty of the Board to—

(a) establish policies for the administration of each Superannuation Act and administered scheme and to adopt strategies for the achievement of those policies; and

(b) determine, authorise or approve programs for the administration of each Superannuation Act and administered scheme; and

(c) determine objectives for the investment of money in the Scheme and standing to the credit of each administered scheme; and

(d) establish and implement strategies for the investment of money in the Scheme and standing to the credit of each administered scheme; and

(e) ensure that the assets of each administered scheme are administered in accordance with this Act and with those provisions of the governing instrument under which the administered scheme is constituted which continue to apply to an administered scheme by virtue of this Act; and

S. 6(2) amended by Nos 49/1992 s. 35(1), 120/1994 s. 3(2), 4/1996 s. 4(1), 84/1998 s. 5(1), substituted by No. 94/2005 s. 7(1).


28



(f) have regard to the interests of persons entitled to benefits under the Scheme, a Superannuation Act or an administered scheme; and

(fa) have regard to the interests of contributing employers under the Scheme, a Superannuation Act or an administered scheme; and

(g) ensure that the Scheme and each administered scheme is administered in accordance with the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 and the Commonwealth Superannuation Contributions Tax Imposition Act 1997 and any regulations under those Acts; and

(h) ensure that the provisions of Part VIIIB and VIIIAB of the Commonwealth Family Law Act 1975 and regulations made under that Act for the purposes of that Part are complied with; and

(ha) ensure that the provisions of Subdivision B of Division 3 of Part VI of the Commonwealth Bankruptcy Act 1966 and regulations made under that Act for the purposes of that Subdivision are complied with; and

(i) ensure that the decisions and operations of the Board are directed towards achieving its objectives; and

(j) ensure that the Board has, or has access to, the skills, facilities and resources required to achieve its objectives; and

S. 6(2)(fa) inserted by No. 43/2008 s. 5.

S. 6(2)(h) amended by No. 38/2009 s. 6(1).

S. 6(2)(ha) inserted by No. 38/2009 s. 6(2).


29



(k) subject to subsection (3), inform contributors and members, about their rights and the benefits under the Scheme, a Superannuation Act or an administered scheme and about the management and investment of the Scheme or the administered scheme including making available to contributors and members at least once in each year a summary of information about the management and investment of the Scheme or administered scheme; and

(l) subject to subsection (3), liaise with relevant industrial organisations about the interests of contributors and members and inform those organisations about the management and investment of the Scheme or administered scheme; and

(m) ensure that the Board conducts its operations in an efficient manner.

(2A) In relation to the investment of all or part of the money in the Scheme and standing to the credit of each administered scheme, the Board is to be taken to have discharged the relevant duties specified in subsection (2), other than the duty to determine investment objectives under subsection (2)(c), if in respect of that money—

(a) the Board has appointed the Victorian Funds Management Corporation under section 9A of the Victorian Funds Management Corporation Act 1994 to perform investment related functions on behalf of the Board; and

(b) the terms of the appointment with respect to the investment of money are in accordance with an approval given by the Governor in Council under section 20 of the Borrowing and Investment Powers Act 1987.

S. 6(2A) inserted by No. 49/1992 s. 35(2), repealed by No. 4/1996 s. 4(1), new s. 6(2A) inserted by No. 84/1998 s. 5(2), substituted by No. 94/2005 s. 7(1).


30



(2B) If any provision of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 or the Commonwealth Superannuation Contributions Tax Imposition Act 1997 or of any regulations under those Acts is inconsistent with a Superannuation Act or any regulations under a Superannuation Act or the governing instrument of an administered scheme, the Board is to be taken to have complied with the Superannuation Act or the regulations or the governing instrument of the administered scheme if the Board has complied with the provision of the Commonwealth Superannuation Contributions Tax (Assessment and Collection) Act 1997 or the Commonwealth Superannuation Contributions Tax Imposition Act 1997 or of the regulations under those Acts.

(2C) If any provision of Part VIIIB or VIIIAB of the Commonwealth Family Law Act 1975 or of any regulations made under that Act for the purposes of those Parts is inconsistent with a Superannuation Act or any regulations under a Superannuation Act or the governing instrument of an administered scheme, the Board is to be taken to have complied with the Superannuation Act or the regulations or the governing instrument of the administered scheme if the Board has complied with the provision of Part VIIIB or VIIIAB of the Commonwealth Family Law Act 1975 or of any regulations made under that Act for the purposes of those Parts.

(2D) If any provision of Subdivision B of Division 3 of Part VI of the Commonwealth Bankruptcy Act 1966 or of any regulations made under that Act for the purposes of that Subdivision is inconsistent with a Superannuation Act or any regulations made under a Superannuation Act or the governing instrument of an administered scheme,

S. 6(2B) inserted by No. 94/2005 s. 7(1).

S. 6(2C) inserted by No. 94/2005 s. 7(1), amended by No. 38/2009 s. 6(3).

S. 6(2D) inserted by No. 38/2009 s. 6(4).


31



the Board is to be taken to have complied with the Superannuation Act or the regulations or the governing instrument of the administered scheme if the Board has complied with the provision of Subdivision B of Division 3 of Part VI of the Commonwealth Bankruptcy Act 1966 or of any regulations made under that Act for the purposes of that Subdivision.

(3) The Board must, in performing its duties under subsections (2)(k) and (2)(l), consider the need to protect information the disclosure of which could adversely affect the financial position or the commercial or other operations of the Board.

(4) If the Minister at any time gives the President a statement of government policy on any matter that is relevant to the performance of the duties of the Board, together with a request that the Board consider that policy in the performance of its duties, the Board must ensure that consideration is given to that policy.

(5) If the Minister gives a statement to the President under subsection (4), the Board must publish that statement in its next annual report.

(6) The Minister may issue a direction in writing to the Board in respect of the administration of this Act as amended by the Superannuation Legislation (Governance Reform) Act 2005 relating to or consequent on—

(a) the closure of the State Superannuation Fund and the transfer of the assets and liabilities of the State Superannuation Fund to the Scheme;

(b) the transfer of administration from the Government Superannuation Office to the Board;

(c) the re-constitution of the Board.

S. 6(3) amended by No. 94/2005 s. 7(2).

S. 6(6) inserted by No. 94/2005 s. 7(3).


32



(7) The Board must give effect to a direction issued under subsection (6).

(8) If the Minister issues a direction under subsection (6), the Board must publish that direction in its next annual report.

6A Functions and powers of the Board (1) Without derogating from section 6, the Board has

the functions and powers conferred or imposed on the Board by—

(a) a Superannuation Act and any regulations made under a Superannuation Act;

(b) any other Act and any regulations made under that other Act;

(c) the governing instrument of an administered scheme.

(2) Subject to this Act, the Board has power to do all things necessary or convenient to be done for or in connection with the performance of its functions and duties and to enable it to achieve its objectives.

(3) Without limiting or derogating from the generality of the powers of the Board under this Act, the powers of the Board include—

(a) power to enter into agreements or arrangements with any other person or body—

(i) to carry out on behalf of the Board any one or more of the functions or powers of the Board in relation to the Scheme or an administered scheme;

S. 6(7) inserted by No. 94/2005 s. 7(3).

S. 6(8) inserted by No. 94/2005 s. 7(3).



33



(ii) to arrange death and disability cover insurance for individual members or classes of members of the Scheme or an administered scheme;

(iii) to provide custodial or nominee services;

(iv) to provide superannuation advice and financial planning services for beneficiaries, contributors, members and eligible spouses;

(b) power to engage any person or body to act as an agent on behalf of the Board.

(4) The Board may make arrangements with—

(a) the bodies administering the superannuation funds referred to in section 4(1) of the Transport Superannuation Act 1988; or

(b) any Minister, employer, employing authority, Government Department or agency or any other statutory body—

relating to the members of a superannuation fund or the provision of any services to the members of a superannuation fund or other pension or compensation fund.

(5) Any arrangements in effect under section 26 of the Transport Superannuation Act 1988 as in force immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 are deemed to have been made under subsection (4).

(6) The Board may engage an actuary to advise it about the administration of the Scheme or an administered scheme.

S. 6A(3)(a)(iv) inserted by No. 43/2008 s. 6.


34



6B Prudential superannuation standard (1) The Governor in Council may by Order in

Council make a prudential superannuation standard.

(2) A prudential superannuation standard made under subsection (1)—

(a) must be published in the Government Gazette; and

(b) takes effect on and from the date on which it is published or any later date of commencement as may be specified in the Order in Council.

(3) The Board must in the performance of its functions and duties comply with a prudential superannuation standard.

7 Membership of the Board (1) The Board is to consist of 12 members appointed

by the Governor in Council of whom—

(a) 1 is to be a contributor elected by contributors who are employed under the Victoria Police Act 2013 or by the employee organisations representing those contributors; and

(b) 1 is to be a contributor elected by contributors who are officers or employees of the Metropolitan Fire and Emergency Services Board or persons appointed by the Country Fire Authority under section 17 of the Country Fire Authority Act 1958 or by the employees of the unions representing those contributors; and


S. 7 amended by Nos 64/1991 s. 5, 102/1995 s. 4, 4/1996 s. 5, 82/1996 s. 8, substituted by No. 94/2005 s. 9.

S. 7(1)(a) amended by No. 37/2014 s. 10(Sch. item 54.2).


35



(c) 1 is to be a contributor elected by contributors who are employees appointed by Ambulance Services—Victoria under the Ambulance Services Act 1986 or by any other ambulance service specified by the Minister under this Act and by contributors who are not employees referred to in paragraph (a) or (b); and

(d) 3 are to be members of the Scheme elected by members of the Scheme; and

(e) 6 are to be persons nominated by the Minister.

(2) The Governor in Council must appoint a member nominated under subsection (1)(e) to be the President of the Board.

(3) For the purposes of subsection (1)(a), (1)(b) and (1)(c), each of the contributor members of the Board in office immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 continue in office for the remainder of the term for which the member was elected unless the member ceases to be a member for any of the reasons specified in section 8(1) or is suspended or removed from office;

(4) Despite subsection (1)(d), until 31 December 2006 the members appointed for the purposes of that subsection as from 1 December 2005 are to be members of the Scheme being the persons elected under section 10(1)(c) of the Government Superannuation Act 1999 and in office as members of the Board of Directors of the Government Superannuation Office immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 and who are to be members until 31 December 2006, unless the member ceases to be a member for any


36



of the reasons specified in section 8(1) or is suspended or removed from office.

(5) Despite subsection (1)(e)—

(a) each of the members of the Board, not being an elected member, in office immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 continue in office for the remainder of the term for which the member was appointed; and

(b) 3 of the members appointed for the purposes of that subsection as from 1 December 2005 are to be the persons appointed under section 10(1)(b) of the Government Superannuation Act 1999 and in office as members of the Board of Directors of the Government Superannuation Office immediately before the commencement and who are to be members for the remainder of the term for which the member was appointed as a member of the Board of Directors of the Government Superannuation Office—

unless the member ceases to be a member for any of the reasons specified in section 8(1) or is suspended or removed from office.

(6) Despite subsection (2), the person who immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 was the President continues, subject to this Act, in office for the remainder of the term for which the person was appointed to be the President.

(7) A member of the Board is to be appointed for a term not exceeding 5 years as is specified in the member's instrument of appointment.


37



(8) Despite subsection (7), the term of office of an elected member of the Board may exceed 5 years but not 6 years if the member is elected to fill a casual vacancy in respect of a member who had an unexpired term of less than 1 year.

(9) A member of the Board is eligible for re-appointment.

(10) Elections of members to the Board must be held in accordance with procedures determined by the Board.

(11) If there is no candidate at an election or no person is elected at an election, the Governor in Council may appoint a person to be a member who is approved by the Minister and recommended by the relevant employee organisation or union, although that person has not been elected.

(12) The Board is deemed to be the same body on and after as before the commencement of the Superannuation Legislation (Governance Reform) Act 2005.

(13) In this section and sections 8(1)(d) and 12—

contributor means— (a) a person who is a contributor within the

meaning of section 3(1); or

(b) a person who is a member within the meaning of section 21;

contributor member of the Board" means a member of the Board under subsection (1)(a), (1)(b) or (1)(c);

member of the Scheme means— (a) a person who is eligible to make

contributions under the State Superannuation Act 1988 and be the subject of contributions to the Scheme


38



by an employing authority under that Act; or

(b) a person who is eligible to make contributions under the State Employees Retirement Benefits Act 1979 and be the subject of contributions to the Scheme by an employer under that Act; or

(c) a person who is eligible to make contributions under the Transport Superannuation Act 1988 and be the subject of contributions to the Scheme by a Transport Authority under that Act; or

(d) a person who is eligible to make contributions under the governing instrument of an administered scheme and be the subject of contributions by an employer under that governing instrument;

Scheme member of the Board means a member of the Board under subsection (1)(d).

8 Vacancies on Board (1) A member of the Board ceases to be a member if

that person—

(a) becomes bankrupt; or

(b) is absent, without leave first granted by the Board, from three consecutive meetings of which reasonable notice has been given to that member personally or by post; or

(c) is convicted of an offence against a law of the State of Victoria or a law of the Commonwealth or of another State or of a Territory, being an offence in respect of dishonest conduct; or

S. 8(1)(c) repealed by No. 110/1993 s. 139, new s. 8(1)(c) inserted by No. 4/1996 s. 6.


39



(d) being a contributor member of the Board, ceases to be a contributor; or

(da) being a Scheme member of the Board, ceases to be a member of the Scheme; or

(db) becomes permanently incapable of performing the duties of office; or

(e) resigns office by writing signed and addressed to the Minister.

(2) If an elected member dies or otherwise ceases to be a member—

(a) the deputy of the elected member under section 9 is to be appointed by the Governor in Council to fill the vacancy; or

(b) if there is no deputy of the elected member, the Governor in Council may appoint a person elected in the same manner as that member was elected to fill the vacancy.

(3) If a nominated member dies or otherwise ceases to be a member—

(a) the Governor in Council is to appoint a person nominated by the Minister to fill the vacancy; or

(b) if the Minister does not nominate a person to fill the vacancy within 28 days, the Governor in Council may appoint a person who is a member of the pool of deputies under section 9A to fill the vacancy.

S. 8(1)(d) substituted by No. 94/2005 s. 10(1).

S. 8(1)(da) inserted by No. 94/2005 s. 10(1).

S. 8(1)(db) inserted by No. 94/2005 s. 10(1).

S. 8(1)(e) amended by No. 61/2013 s. 4.

S. 8(2) substituted by Nos 84/1998 s. 6, 37/2007 s. 4.

S. 8(3) repealed by No. 84/1998 s. 6, new s. 8(3) inserted by No. 37/2007 s. 4.


40



(3A) In subsection (2) and section 9, elected member means a member of the Board elected under section 7(1)(a), 7(1)(b), 7(1)(c) or 7(1)(d) or appointed under section 7(11).

(3B) In subsection (3) and section 9A, nominated member means a member of the Board nominated under section 7(1)(e).

(4) A vacancy in the office of a member of the Board must be filled within 60 days of the vacancy occurring.

9 Deputies—elected members (1) Each elected member is to have a deputy elected

in the same manner as the member and appointed by the Governor in Council.

(2) The deputy of an elected member is to act in the case of illness, suspension or absence of that member.

(3) A deputy of an elected member has while acting as a member the powers and authority of the member.

(4) A person may act as the deputy of more than one elected member except for the purposes of forming a quorum or voting on a resolution, provided that the member is elected in the same manner as all of those members.

9A Deputies—nominated members (1) The Minister must appoint 3 persons to constitute

a pool of deputies in respect of nominated members to act in the case of illness, suspension or absence of a nominated member.

(2) The President of the Board must develop the procedure for determining the manner in which a deputy is to be appointed from the pool of deputies of a member to act in the case of illness,

S. 8(3A) inserted by No. 37/2007 s. 4.

S. 8(3B) inserted by No. 37/2007 s. 4.

S. 8(4) inserted by No. 49/1992 s. 36.

S. 9 substituted by No. 84/1998 s. 7, amended by No. 41/2006 s. 28, substituted by No. 37/2007 s. 5.



41



suspension or absence of a particular nominated member.

(3) A deputy has while acting as a nominated member the powers and authority of the nominated member.

(4) A deputy may act as the deputy of more than one nominated member except for the purposes of forming a quorum or voting on a resolution.

10 Suspension and removal of members The Governor in Council may remove or suspend a member of the Board from office for misbehaviour or incompetence whether by act or omission while performing the duties of that person as a member.

11 Payment of members Each member is entitled to be—

(a) paid such remuneration as the Governor in Council fixes from time to time; and

(b) reimbursed for expenses incurred in the course of performing the duties of office which are expenses approved by the Board.

12 Procedure of the Board (1) Except as otherwise provided, all duties, functions

and powers of the Board may be performed or exercised at any meeting of the Board at which at least two-thirds of the members are present.

(2) Subject to subsection (9), a decision of the Board requires at least a two-thirds majority of the total number of members of the Board.

(3) During any vacancy in the Board, the continuing members may subject to there being a quorum act as if there were no vacancy.

S. 11 substituted by No. 4/1996 s. 7.

S. 12 amended by No. 49/1992 s. 37, substituted by No. 94/2005 s. 11.


42



(4) The Board may hold its meetings at any time and place it appoints and may adjourn a meeting.

(5) The Board may transact any of its business at a meeting at which the members or any of the members participate by telephone, closed-circuit television or in any other similar way.

(6) The President of the Board must preside at all meetings of the Board at which the President is present.

(7) If the President of the Board is not present at a meeting of the Board, the longest serving member present at the meeting is to act as the President at the meeting.

(8) The President or the member presiding at any meeting of the Board has a deliberative vote only.

(9) If a matter to be determined by the Board at a meeting is a matter affecting a benefit entitlement of a contributor or a member of the Scheme, the matter can only be determined by a resolution passed by a two-thirds majority of the total number of members of the Board that includes—

(a) if the matter relates to the benefit entitlement of a contributor, at least two members elected under section 7(1)(a), 7(1)(b) or 7(1)(c); or

(b) if the matter relates to the benefit entitlement of a member of the Scheme, at least two members elected under section 7(1)(d).

(10) The Board must keep minutes of each meeting of the Board.

(11) Subject to this Act, the Board may regulate its own procedure.


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(12) An act or decision of the Board is not invalid by reason only—

(a) of a vacancy in the office of a member; or

(b) of any defect or irregularity in or in connection with the appointment of a member; or

(c) in the case of a person appointed to act as President or as a member, that the occasion for so acting has not arisen or has ceased.

12A Resolutions without meetings (1) If all of the members of the Board for the time

being sign a document containing a statement that they are in favour of a resolution in terms set out in the document, a resolution in those terms shall be taken to have been passed at a meeting of the Board held on the day on which the document is signed or, if the members of the Board do not sign it on the same day, on the day on which the last member signs the document.

(2) If a resolution is, under subsection (1), taken to have been passed at a meeting of the Board, each member of the Board must immediately be advised of the matter and given a copy of the terms of the resolution.

(3) For the purposes of subsection (1), two or more separate documents containing a statement in identical terms, each of which is signed by one or more members of the Board, shall be taken to constitute one document.

12B Improper use of information A person who is, or has been, a member of the Board, the Chief Executive Officer or a person employed under section 13A or to which section 13A(3)(b) applies, or member of the staff of the Board must not make improper use of any


S. 12B inserted by No. 110/1993 s. 140, amended by No. 94/2005 s. 10(2).


44



information acquired only in the course of his or her duties to obtain directly or indirectly any pecuniary or other advantage for himself or herself or for any other person.

Penalty: 50 penalty units.

12C Committees of the Board (1) The Board may establish one or more committees

of members of the Board.

(2) The Board may by instrument of delegation delegate any of its functions or powers, other than this power of delegation, to a member of a committee.

(3) A committee is to have an equal number of members appointed (non-elected) under section 7(1) and of members elected under sections 7(1)(a), 7(1)(b), 7(1)(c) and 7(1)(d).

(4) A quorum of a committee is constituted by not less than two-thirds of the total number of members of the committee in office for the time being.

(5) Sections 12, 12A and 12D apply with such modifications as are necessary in respect of a committee.

12D Pecuniary interests of members of the Board (1) A member of the Board who has any pecuniary

interest in a matter being considered or about to be considered by the Board or in any other matter in which the Board is concerned must, as soon as practicable after the relevant facts have come to the member's knowledge, declare the nature of that interest at a meeting of the Board.

(2) The requirements of subsection (1) do not apply in any case where the interest of the member of the Board consists only of being a shareholder or creditor of a company which has an interest in a

S. 12C inserted by No. 110/1993 s. 140.

S. 12C(3) amended by No. 94/2005 s. 10(3).

S. 12D inserted by No. 110/1993 s. 140.


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contract or proposed contract with the Board if the interest of the member may properly be regarded as not being a material interest.

(3) The person presiding at a meeting at which a declaration is made under subsection (1) must cause a record of the declaration to be made in the minutes of the meeting.

(4) After a declaration is made by a member of the Board under subsection (1)—

(a) that member must not be present during any deliberation of the Board with respect to that matter; and

(b) that member is not entitled to vote on the matter; and

(c) if that member does vote on the matter, the vote must be disallowed.

(5) A member of the Board is not to be taken to have a pecuniary interest in a matter only because the member has or may become entitled to a benefit from the Fund.

13 Chief Executive Officer (1) The Chief Executive Officer is subject to the

direction and control of the Board.

(2) The Chief Executive Officer is to be appointed by the Board with the approval of the Minister.

(3) Subject to this section, the terms and conditions of appointment of the Chief Executive Officer are to be determined by the Board with the approval of the Minister.

S. 13 amended by No. 50/1988 s. 93(2)(Sch. 2 Pt 2 item 15), substituted by No. 94/2005 s. 12.

S. 13(2) substituted by No. 61/2013 s. 5.

S. 13(3) substituted by No. 61/2013 s. 5.


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* * * * *

(6) The Chief Executive Officer holds office for the period, not exceeding 5 years, specified in the instrument of his or her appointment.

(7) The Chief Executive Officer is eligible for re-appointment at the end of the period of office.

(8) A person appointed to be the Chief Executive Officer who was, immediately before that appointment, an officer within the meaning of the State Superannuation Act 1988 continues, subject to that Act, to be an officer within the meaning of that Act while holding the office of Chief Executive Officer.

(9) The Board may appoint a person, including a member of the Board, to act as the Chief Executive Officer for a period not exceeding 60 days.

(10) The Chief Executive Officer may, by instrument, delegate to any employee referred to in section 13A, any responsibility, power, authority, duty or function conferred on the Chief Executive Officer under this Act or the regulations, except this power of delegation.

13A Staff (1) The Chief Executive Officer may on behalf of the

Board employ any persons necessary for the purposes of this Act under Part 3 of the Public Administration Act 2004.

(2) Persons employed in accordance with section 22 of the Government Superannuation Act 1999 under Part 3 of the Public Administration Act 2004 are to be taken to have been employed in

S. 13(4)(5) repealed by No. 61/2013 s. 5.



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accordance with subsection (1) for the purposes of this Act.

(3) A person employed by the Board in accordance with section 13 as in force before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 must, within 90 days of that commencement, elect in writing to the Chief Executive Officer to—

(a) be employed in accordance with subsection (1) under Part 3 of the Public Administration Act 2004; or

(b) continue to be employed by the Board in accordance with section 13 as in force before the commencement of the Superannuation Legislation (Governance Reform) Act 2005.

(4) A person to whom subsection (2) or (3) applies is entitled to a salary and terms and conditions of employment no less favourable than those which he or she received or was entitled to receive immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005 and to all his or her accrued benefits arising from his or her prior employment.

(5) A person to whom subsection (2) or (3) applies who, immediately before the commencement of the Superannuation Legislation (Governance Reform) Act 2005, was—

(a) an officer within the meaning of the State Superannuation Act 1988; or

(b) an employee within the meaning of the State Employees Retirement Benefits Act 1979; or


48



(c) an employee within the meaning of the Transport Superannuation Act 1988—

continues, subject to the relevant Act, to be an officer or an employee (as the case may be) within the meaning of that Act while employed for the purposes of this Act.

(6) The transfer of an employee by subsection (2) does not constitute a resignation or termination of employment of that employee and the post-transfer service of that employee is to be regarded as continuous with the pre-transfer service of that employee.

14 Delegation The Board may, by an instrument of delegation under its common seal, delegate to the President, a member of the Board, the Chief Executive Officer or a person employed under section 13A or to which section 13A(3)(b) applies or to any other person or corporation—

(a) any function, power or duty of the Board under a Superannuation Act or any other Act or under a governing instrument, other than this power of delegation; or

(b) any power or duty of the Board under the Borrowing and Investment Powers Act 1987.

__________________

S. 14 substituted by No. 102/1995 s. 5, amended by No. 94/2005 s. 13(a).

S. 14(a) amended by No. 94/2005 s. 13(b).


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Part 3—Emergency Services Superannuation Scheme


PART 3—EMERGENCY SERVICES SUPERANNUATION SCHEME

15 Establishment of Scheme There is established a Scheme called the Emergency Services Superannuation Scheme, which is to be administered by the Board.

* * * * *

17 Borrowing and investment powers1 The Board has the powers conferred on it by the Borrowing and Investment Powers Act 1987.

17A Investment funds The Board may establish special arrangements within the ESSPLAN Scheme to be called investment funds.

17B Group accounts (1) The Board may establish and maintain separate

group accounts within the Scheme.

(2) A group account must show the asset and liability position of the account.

(3) Group accounts may be established for a part or all of the Scheme and any administered scheme.

(4) A group account must be credited with—

(a) all contributions and amounts received by the Board by or on behalf of the contributors, beneficiaries, members or pensioners to which the group account relates;

S. 16 amended by No. 81/1988 s. 4(1), repealed by No. 102/1995 s. 6.

S. 17 substituted by No. 81/1988 s. 4(2).



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