Commonwealth Numbered Acts

TAXATION LAWS AMENDMENT ACT (No. 2) 1995No. 169, 1995 - SCHEDULE 4

                         SCHEDULE 4                Section 3

SUPERANNUATION GUARANTEE
PART 1-AMENDMENT OF THE SUPERANNUATION GUARANTEE (ADMINISTRATION) 
ACT 1992 RELATING TO THE JURISDICTION OF THE AUSTRALIAN
INDUSTRIAL RELATIONS COMMISSION 1. After section 5A: Insert in Part 1:
Jurisdiction etc. of Australian Industrial Relations Commission not affected

"5B.(1) To avoid doubt, but subject to subsection (2), nothing in this Act or
in the Superannuation Guarantee Charge Act 1992 affects:

   (a)  the jurisdiction, functions or powers of the Australian Industrial
        Relations Commission under the Industrial Relations Act  1988 ; or

   (b)  the operation of the Industrial Relations Act 1988 in any other way.

"(2) Subsection (1) does not apply to:

   (a)  any express reference in the Industrial Relations Act 1988 to this Act
        or to the Superannuation Guarantee Charge Act 1992; or

   (b)  the reference in subparagraph 113B(3)(a)(ii), 170MC(2)(a)(ii) or
        170NC(2)(a)(ii) of the Industrial Relations Act 1988 to a law of the
        Commonwealth.".
PART 2-AMENDMENT OF THE SUPERANNUATION GUARANTEE (ADMINISTRATION) 
ACT 1992 RELATING TO "FLAT DOLLAR" AWARD CONTRIBUTIONS 2. After subsection
23(4): Insert:

"(4A) Subject to subsections (6), (6A) and (7), if:

   (a)  an industrial award applying throughout a contribution period (the
        current contribution period) specifies that an amount (the award
        contribution amount) must be contributed by employers to a
        superannuation fund for the benefit of the employer's employees in a
        class; and

   (b)  the award contribution amount is required, whether by the award or
        otherwise, to be adjusted by reference to any increase in the earnings
        of:

   (i)  the employees (the adjustment employees) in the class; or

   (ii) employees (also the adjustment employees) of a particular kind in the
        class; and

   (c)  immediately before 21 August 1991 the award was operative and
        specified an amount in accordance with paragraphs (a) and (b); and

   (d)  the award has not, on or after that date and before the end of the
        current contribution period, been amended in a way that has the effect
        of reducing the notional earnings base (see subsection (4C)) of the
        employees in the class for any contribution period; and

   (e)  during the current contribution period, an employer contributes an
        amount (the actual contribution amount), whether or not equal to the
        award contribution amount, for the benefit of an employee in the
        class, to the superannuation fund; the charge percentage for the
        employer, as calculated under section 20 or 21, in respect of the
        employee for the current contribution period, is reduced in accordance
        with subsection (4B).

"(4B) The reduction is in addition to any other reduction under this section
or section 22 and its amount is worked out using the formula:
  Actual contribution amount     x  Employment factor of

  Notional earnings base            the employee in relation

 (see subsection (4C)) of the       to the current

  employee in relation to the       contribution period    x   100%

current contribution period

"(4C) In subsection (4A) or (4B): employment factor, in relation to an
employee in the class for a contribution period, means:

   (a)  if, in the contribution period, the period for which the employee is
        employed by the employer is greater than the period of employment
        under the award-the fraction that represents the period of employment
        under the award as a proportion of the period of employment in the
        contribution period; or

   (b)  in any other case-1; notional earnings base, in relation to an
        employee in the class for a contribution period, means an amount equal
        to the lesser of the maximum contribution base (see section 15) for
        the period and:

   (a)  if the employee is a full-time employee-the earnings of each of the
        adjustment employees, under the award, in the contribution period; or

   (b)  if the employee is a part-time employee-the amount worked out using
        the formula:
       Number of hours employed    x       Adjustment earnings

Full-time employee's hours where: Adjustment earnings means the earnings of
each of the adjustment employees, under the award, in the contribution period;
Full-time employee's hours means the number of ordinary hours of work for
which an equivalent full-time employee would have been employed in the period
under the award; Number of hours employed means the number of hours for which
the employee is employed in the contribution period.". 3. Paragraph 23(5)(b):
Omit "subsection (2), (3) or (4)", substitute "subsection (2), (3), (4) or
(4A)". 4. Section 25A: Repeal the section. 5. Application The amendments made
by this Part apply in relation to assessments of superannuation guarantee
shortfall for the year beginning on 1 July 1994 and for all later years.
PART 3-LOCAL GOVERNMENT COUNCILLORS
Division 1-Superannuation Guarantee (Administration) Act 1992 6. Subsection
12(1): Omit "(10)", substitute "(11)". 7. Subsection 12(9): Omit "Subject to
subsection (10), a person", substitute "A person". 8. Subsection 12(9): Add at
the end "However, this rule does not apply to a person in the capacity of the
holder of an office as a member of a local government council.". 9. Subsection
12(10): Omit the subsection, substitute:

"(9A) Subject to subsection (10), a person who holds office as a member of a
local government council is not an employee of the council.

"(10) A person who is a member of an eligible local governing body within the
meaning of section 221A of the Income Tax Assessment Act  1936 is an employee
of the eligible local governing body.". 10. Application The amendments made by
this Division apply to assessments of superannuation guarantee shortfall for
the year beginning on 1 July 1992 and for all later years.
Division 2-Superannuation Industry (Supervision) Act 1993 11. Section 10
(definition of employee): Omit the definition, substitute the following
definition:

"employee has the meaning given by section 15A;". 12. Section 10 (definition
of employer): Omit the definition, substitute the following definition:

"employer has the meaning given by section 15A;". 13. After section 15:
Insert: Definitions of employee and employer

"15A.(1) Subject to this section, in this Act, employee and employer have
their ordinary meaning. However, for the purposes of this Act, subsections (2)
to (10):

   (a)  expand the meaning of those terms; and

   (b)  make particular provision to avoid doubt as to the status of certain
        persons.

"(2) A person who is entitled to payment for the performance of duties as a
member of the executive body (whether described as the board of directors or
otherwise) of a body corporate is, in relation to those duties, an employee of
the body corporate.

"(3) If a person works under a contract that is wholly or principally for the
labour of the person, the person is an employee of the other party to the
contract.

"(4) A member of the Parliament of the Commonwealth is an employee of the
Commonwealth.

"(5) A member of the Parliament of a State is an employee of the State.

"(6) A member of the Legislative Assembly for the Australian Capital Territory
is an employee of the Australian Capital Territory.

"(7) A member of the Legislative Assembly of the Northern Territory is an
employee of the Northern Territory.

"(8) For the purposes of this Act:

   (a)  a person who is paid to perform or present, or to participate in the
        performance or presentation of, any music, play, dance, entertainment,
        sport, display or promotional activity or any similar activity
        involving the exercise of intellectual, artistic, musical, physical or
        other personal skills is an employee of the person liable to make the
        payment; and

   (b)  a person who is paid to provide services in connection with an
        activity referred to in paragraph (a) is an employee of the person
        liable to make the payment; and

   (c)  a person who is paid to perform services in, or in connection with,
        the making of any film, tape or disc or of any television or radio
        broadcast is an employee of the person liable to make the payment.

"(9) Subject to subsection (10), a person who:

   (a)  holds, or performs the duties of, an appointment, office or position
        under the Constitution or under a law of the Commonwealth, of a State
        or of a Territory; or

   (b)  is otherwise in the service of the Commonwealth, of a State or of a
        Territory (including service as a member of the Defence Force or as a
        member of a police force); is an employee of the Commonwealth, the
        State or the Territory, as the case requires.

"(10) A person who holds office as a member of a local government council is
an employee of the council.".