consolidated trust deed for sunsuper pty ltd as trustee …
TRANSCRIPT
CORRS CHAMBERS WESTGARTH Lawyers
Level 42, One One One
111 Eagle Street
BRISBANE QLD 4000
AUSTRALIA
Tel: (07) 3228 9333
Fax: (07) 3228 9444
Ref: CM
5280858
3470-0456-6018v23
CONSOLIDATED TRUST DEED FOR
SUNSUPER PTY LTD
AS TRUSTEE FOR SUNSUPER SUPERANNUATION FUND
SUNSUPER PTY LTD
ABN 88 010 720 840
SUNSUPER SUPERANNUATION FUND
CONSOLIDATED TRUST DEED
Consolidated to 20 April 2018
CORRS CHAMBERS WESTGARTH Lawyers
Level 42, One One One
111 Eagle Street
BRISBANE QLD 4000
AUSTRALIA
Tel: (07) 3228 9333
Fax: (07) 3228 9444
DX: 135 Brisbane
Ref: CM
5416072
3470-0456-6018v23
TRUST DEED DATED 1 OCTOBER 1987
CONSOLIDATED TRUST DEED COMPRISING:
DEED OF VARIATION DATED 7 JULY 1999 (REPLACEMENT TRUST DEED)
AS AMENDED BY:
Deed of variation dated 8 August 2001
Deed of variation dated 27 June 2002
Deed of variation dated 20 April 2005
Deed of variation dated 8 November 2005
Deed of variation dated 15 June 2007
Deed of variation dated 16 July 2008
Deed of variation dated 25 February 2013
Deed of variation dated 27 September] 2013 (effective 25 February 2013)
Deed of variation dated 23 October 2013
Deed of variation dated 24 November 2014 (effective 22 October 2014)
Deed of variation dated 16 December 2015
Deed of variation dated 22 June 2016
Deed of variation dated 17 February 2017 (effective 22 June 2016)
Deed of variation dated 20 April 2018
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CONTENTS
1 DEFINITIONS AND INTERPRETATIONS ........................................................................ 1 1.1 Definitions ............................................................................................................... 1 1.2 Definitions from SIS ................................................................................................ 7 1.3 Statutes ..................................................................................................................... 8 1.4 Plurals and Genders ................................................................................................. 8
1.5 Clauses, Schedules and Rules .................................................................................. 8 1.6 Headings and Sub-Headings .................................................................................... 8 1.7 Bodies and Associations .......................................................................................... 8
2 CONSTITUTION OF TRUST .............................................................................................. 8 2.1 Trust ......................................................................................................................... 8
2.2 Commencement ....................................................................................................... 8
2.3 Name of Fund .......................................................................................................... 8
2.4 Fund ......................................................................................................................... 9 2.5 Interest in the Fund .................................................................................................. 9 2.6 Participating Employers and Members bound by Deed .......................................... 9 2.7 Purpose .................................................................................................................... 9
2.8 Compliance .............................................................................................................. 9
3 PARTICIPATING EMPLOYERS....................................................................................... 10
3.1 Application for Participation as a Participating Employer .................................... 10 3.2 Trustee may reject application for Participation .................................................... 10 3.3 Participation without application ........................................................................... 11
3.4 Date of Admission ................................................................................................. 11 3.5 Information to be given to Employers or prospective Employers ......................... 11
3.6 Terms of Participation ........................................................................................... 11 3.7 Termination of Participation .................................................................................. 11
3.8 Substituted Employer ............................................................................................. 12 3.9 Consequences of termination ................................................................................. 12
3.10 Rights of Employer maintained ............................................................................. 12
4 MEMBERS .......................................................................................................................... 12 4.1 Eligibility ............................................................................................................... 12
4.2 Application for membership .................................................................................. 12 4.3 Admission with no application .............................................................................. 13 4.4 Applicant to provide information .......................................................................... 13
4.5 Admission to membership ..................................................................................... 13 4.6 Date of admission .................................................................................................. 13
4.7 Provisional Members ............................................................................................. 13 4.8 Information to be given to Members or prospective Members ............................. 14
4.9 Subsequent failure to provide Information ............................................................ 14 4.10 Termination of Membership/Provisional Membership ......................................... 14 4.11 Cooling Off Period ................................................................................................ 14
5 ACCOUNTS OF THE FUND ............................................................................................. 14 5.1 Establishment of Reserve Account ........................................................................ 14 5.2 Crediting of Reserve Account ............................................................................... 15 5.3 Debiting of Reserve Account ................................................................................. 15 5.4 Application of Reserve Account Credit ................................................................. 15 5.5 Establishment of Retirement Credit ....................................................................... 15
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5.6 Allocations to Retirement Credit ........................................................................... 15 5.7 Other Accounts ...................................................................................................... 16
5.8 Change in value of the Fund .................................................................................. 16
5.9 Unallocated Accounts for Defined Benefits .......................................................... 17 5.10 Reserves for parts of the Fund ............................................................................... 19
6 MANAGEMENT OF TRUST ............................................................................................. 20 6.1 Powers of Trustee .................................................................................................. 20 6.2 Delegation of Trustee powers ................................................................................ 21
6.3 Appointment of Administrator, Custodians and Advisers ..................................... 22 6.4 Remuneration of Delegates and Advisers .............................................................. 22 6.5 Exercise of Discretion ............................................................................................ 22 6.6 Trustee not required to give security ..................................................................... 22 6.7 Remuneration of Trustee ....................................................................................... 22
6.8 Registration in name of nominee or custodian trustee ........................................... 23
6.9 Director may be a Member .................................................................................... 23 6.10 Discretions Absolute .............................................................................................. 23
6.11 MySuper Classes ................................................................................................... 23 6.12 Employer’s MySuper Classes ................................................................................ 24 6.13 MySuper Class and other classes ........................................................................... 25
7 TRUSTEE ............................................................................................................................ 26
7.1 Constitutional Corporation .................................................................................... 26 7.2 Removal of Trustee ................................................................................................ 26
7.3 Trustee may retire .................................................................................................. 26 7.4 Appointment of new Trustee ................................................................................. 26 7.5 Vesting of Fund in New Trustee ............................................................................ 26
7.6 Defects in Appointment ......................................................................................... 26
7.7 Covenants by new trustee ...................................................................................... 26 7.8 [Deleted] ................................................................................................................ 27
8 INVESTMENT AND BORROWING ................................................................................. 27
8.1 Investment strategy ................................................................................................ 27 8.2 Trustee to give effect to investment strategy ......................................................... 27
8.3 Implementing the investment strategy ................................................................... 27 8.4 Investment directions from Member ..................................................................... 27
8.4A MySuper Investment Strategy ............................................................................... 28 8.4B Investment strategy for Reserve Account and reserves ......................................... 28 8.5 Authorised Investments ......................................................................................... 28 8.6 Appointment of Investment Manager .................................................................... 29 8.7 Underwriting of Authorised Investments .............................................................. 30
8.8 Borrowing .............................................................................................................. 30 8.9 Dealings with Members ......................................................................................... 30
8.10 Loans to Participating Employers .......................................................................... 30
9 EXPENSES AND FEES ...................................................................................................... 31 9.1 Expenses ................................................................................................................ 31 9.2 Payment of Expenses ............................................................................................. 32 9.3 Charges .................................................................................................................. 33
10 CONTRIBUTIONS ............................................................................................................. 34 10.1 Employer Contributions ......................................................................................... 34
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10.2 Member Contributions ........................................................................................... 35 10.3 Contributions by other persons .............................................................................. 35
10.4 Payment of Contributions ...................................................................................... 35
10.5 Cessation of contributions ..................................................................................... 36
11 BENEFITS ........................................................................................................................... 36 11.1 Payment of Benefits ............................................................................................... 36 11.2 Deduction of Tax from Benefits ............................................................................ 36 11.3 Reduction of Benefit payable ................................................................................ 36
11.4 Benefits payable to Members ................................................................................ 36 11.5 Amount of benefit payable .................................................................................... 37 11.5A Insured Benefits for MySuper Class ...................................................................... 37 11.5B Total and Permanent Disablement benefits for TPD Class ................................... 37 11.6 Severe Financial Hardship and Compassionate Grounds ...................................... 38
11.7 Deferral of benefit payments ................................................................................. 39
11.8 Death benefits ........................................................................................................ 39 11.9 Partial payments ..................................................................................................... 40
11.10 Benefit payment standards ..................................................................................... 40 11.11 Form of benefit payments ...................................................................................... 40 11.12 Payment of lump sum benefits .............................................................................. 40 11.13 Payment of pension benefits .................................................................................. 41
11.14 Payment to a Superannuation Entity ...................................................................... 42 11.15 Release to Trustee .................................................................................................. 42
11.16 Evidence of entitlement to benefits ....................................................................... 42 11.17 Incapacity ............................................................................................................... 42 11.18 Transfer to Eligible Rollover Fund ........................................................................ 43
11.19 Payment Splits ....................................................................................................... 43
12 TRANSFER FROM ANOTHER FUND ............................................................................. 44 12.1 Arrangements for transfer to the Fund ................................................................... 44 12.2 Member’s consent .................................................................................................. 44
12.3 Value of transfer .................................................................................................... 44
13 TRANSFER TO ANOTHER FUND ................................................................................... 44
13.1 Member or Employer may request transfer ........................................................... 44 13.2 Member’s consent to transfer out .......................................................................... 45
13.2A Transfers without member consent ........................................................................ 45 13.2B Partial transfers ...................................................................................................... 45 13.3 Transfer of assets ................................................................................................... 45 13.4 Receipt sufficient discharge ................................................................................... 45
14 ACCOUNTS AND AUDIT ................................................................................................. 46 14.1 Records to be kept ................................................................................................. 46 14.2 Accounting Records ............................................................................................... 46
14.3 Accounts ................................................................................................................ 46 14.4 Auditor ................................................................................................................... 46 14.5 Auditor’s access ..................................................................................................... 47 14.6 Information for Members ...................................................................................... 47
15 REGISTERS ........................................................................................................................ 47 15.1 Participating Employers Register .......................................................................... 47 15.2 Members Register .................................................................................................. 47
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16 TERMINATION OF THE FUND ....................................................................................... 48 16.1 Circumstances of Termination ............................................................................... 48
16.2 Termination Procedure .......................................................................................... 48
16.3 Distribution ............................................................................................................ 48 16.4 Receipt for Distribution ......................................................................................... 49
17 TRUSTEE’S INDEMNITY ................................................................................................. 49 17.1 Trustee’s entitlement to indemnity ........................................................................ 49 17.2 No indemnity for breach ........................................................................................ 49
17.2A Restriction on indemnity for operational risks ...................................................... 50 17.3 Indemnity for Directors ......................................................................................... 50 17.4 Trustee not liable for actions Trustee is obliged to perform .................................. 50 17.5 Discharge on receipt by Trustee ............................................................................ 50
18 LIMITATION ON LIABILITY OF PARTICIPATING EMPLOYERS AND
MEMBERS .......................................................................................................................... 50 18.1 No liability to make payments ............................................................................... 50 18.2 No obligation to indemnify Trustee ....................................................................... 50
19 AMENDMENT OF DEED .................................................................................................. 51
19.1 Permitted Amendments ......................................................................................... 51 19.2 Amendments .......................................................................................................... 51 19.3 Notification of Amendments ................................................................................. 51
20 STATUTORY SUPERANNUATION SCHEME ............................................................... 51
21 GENERAL PROVISIONS .................................................................................................. 51
21.1 Notices ................................................................................................................... 51
21.2 Prohibition on reversion of assets .......................................................................... 52 21.3 Governing Law ...................................................................................................... 52 21.4 Workers’ Compensation not affected .................................................................... 52
21.5 Severance ............................................................................................................... 52 21.6 Disputes ................................................................................................................. 52
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1 DEFINITIONS AND INTERPRETATIONS
1.1 Definitions
In this Deed unless the context otherwise requires the following expressions have the
meanings given to them in this clause 1.
“Accrued Benefit” means in relation to a Defined Benefit Member at any time, the value
of the benefit that has accrued to that Member up to that date as determined by the Trustee
on the advice of an actuary in accordance with the Defined Benefit Agreement applicable
to that Member. A Defined Benefit Member’s Accrued Benefit comprises:
(a) the Defined Benefit applicable to the Member, in the circumstances in which the
benefit has become payable (whether on retirement, death, Total and Permanent
Disablement or other termination of Service); and
(b) the Member’s Retirement Credit (if any).
“Administrator” means a person appointed to administer the Fund pursuant to clause 6.3.
“Auditor” means a person appointed under clause 14.4(a) to perform the functions of
auditor of the Fund.
“Authorised Investments” means the investments more particularly described in
clause 8.5 and any of them.
“Binding Nomination” means a notice to the Trustee given by an applicant or Member
directing the Trustee to pay all or part of the benefit payable on their death to a person or
persons nominated in the notice, and the notice complies with the following:
(a) each person nominated is within a class of persons the Trustee has prescribed as
eligible to be nominated in a Binding Nomination;
(b) the notice is in a form prescribed by the Trustee;
(c) the notice otherwise complies with form and content requirements prescribed by
the Trustee; and
(d) the nomination was given or confirmed within the period before the Member’s
death prescribed by the Trustee.
“Charging Rules” means all of the rules set out in SIS prescribing the manner in which
fees and charges payable in respect of a Member who holds a MySuper Interest may or
must be calculated and allocated to Members holding MySuper Interests.
“Commodities” means any tangible personal property, currency, interest rate, financial
index or indices (including any share index) or such other tangible or intangible thing
determined by the Trustee for the purposes of this definition.
“Custodian” means any person appointed under clause 6.3(b) to perform the functions of
custodian of part or all of the Fund.
“Deed” means this document as amended from time to time, and includes the Rules and
any other schedules.
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“Defined Benefit” means a benefit to which a Member is or may become entitled, the
amount of which is determined other than by reference to the Member’s Retirement Credit.
“Defined Benefit Agreement” has the meaning given to that term in clause 5.9(a).
“Defined Benefit Member” means a Member whose entitlement to benefits from the Fund
includes a Defined Benefit.
“Dependant” of a Member means any person who is or was at the relevant time:
(a) a Spouse of the Member;
(b) a Child of the Member; or
(c) dependent upon the Member for maintenance or support; or
(d) in an Interdependency Relationship with the Member, where the relevant time
occurs on or after 1 July 2004.
“Derivative” means any financial instrument or arrangement whose economic
performance is dependent on any change in interest rate, currency value or exchange rate
or the economic performance of another security or Commodity.
“Eligible Person” means a person who is eligible under Superannuation Law to join, and
remain a member of, a Regulated Superannuation Fund.
“Eligible Reversionary Beneficiary” means, in relation to a Member’s nomination of a
Reversionary Beneficiary, a person who:
(a) is a Dependant of the Member (at the time of the nomination and at the time of the
Member’s death);
(b) where the person is the Member’s Spouse at the time of nomination, is the
Member’s Spouse at the time of the Member’s death; and
(c) is otherwise eligible under Superannuation Law to be a Reversionary Beneficiary
of the pension (at the time of the nomination and at the time of the Member’s
death).
“Employee” has the meaning given to that term in section 15A of SIS, and in relation to
any Participating Employer means an employee of that Participating Employer.
“Employer” has the meaning given to that term in section 15A of SIS, and in relation to a
Member, or former Member, at any time, means an employer of that Member at that time.
“Expenses” means the expenses listed in clause 9.1.
“Financial Year” means each successive period of 12 Months commencing on 1 July and
ending on 30 June, or any part of such period that may occur at the commencement or
termination of the Fund.
“Fund” means the superannuation trust fund constituted by the Deed.
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“Index Linked Securities” means any investment whose economic performance is
dependent on changes in any index.
“Insurance Investments” means any investment offered by an insurance company or life
office, whether the same involves a deposit, a loan, payment of premiums, acquisition of a
right or interest in or arising out of insurance or life policies, or in a statutory fund or any
similar investment.
“Insured Benefit” means the proceeds payable under a Policy of Insurance covering a
Member or group of Members.
“Interest Crediting Rate” refers to allocation to Member Accounts of a net change in
value of the assets of the Fund or an investment strategy under clause 5.8 (expressed in
such manner as the Trustee determines, which may or may not refer to crediting rate or net
earning rate).
“Investment Manager” means a person appointed as an a investment manager pursuant to
clause 8.6.
“Land” includes:
(a) land of any tenure and any estate or interest whether vested or contingent in land;
(b) buildings or parts of buildings whether the division is horizontal vertical or made
in any other way;
(c) a lot comprised in a building units plan or group titles plan;
(d) an easement, right, privilege, share, interest or benefit in, over, derived from or
attached to Land.
“Land Swaps” means any investment whose economic performance is dependent on
changes in the performance or relative performance of any Land or any agreement,
arrangement or understanding tied to the changes in the performance of any Land or
relative performance of any Land.
“Large Participating Employer” has the meaning given to that term in clause 6.12(a)(i).
“Lifecycle Exception” means, in relation to a MySuper Investment Strategy, that gains
and losses from different classes of asset may be streamed to different subclasses of
Members who hold a MySuper Interest:
(a) on the basis, and only on the basis, of the age of those Members;
(b) on the basis of the age of those Members and other factors prescribed under SIS;
or
(c) on the basis of the age of those Members and other factors prescribed in
circumstances prescribed under SIS.
“Member” means a person whom the Trustee has accepted as a Member and who has not
ceased to be a Member and includes, unless the contrary intention appears, a Provisional
Member.
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“Member Account” means in relation to a Member, the Retirement Credit of that
Member.
“Month” means a calendar month.
“MySuper Class” has the meaning given to that term in clause 6.11.
“MySuper Interest” of a Member means a beneficial interest of the Member in a
MySuper Class.
“MySuper Investment Strategy” has the meaning given to that term in clause 6.11(a).
“Offer Document” means any document issued by the Trustee offering membership of the
Fund.
“Participating Employer” means an Employer which the Trustee has accepted as a
Participating Employer to the Fund and which has not ceased to be a Participating
Employer.
“Participation Agreement” has the meaning given to that term in clause 6.12(e).
“Permitted Fees” means, in relation to a MySuper Class, fees and charges as provided in
clause 9.3(c).
“Permitted Limitation” means a limitation on the source or kind of contributions that is:
(a) a prescribed limitation for a MySuper Product under SIS; or
(b) imposed by or under the general law or another law of the Commonwealth.
“person” includes partnerships, associations or corporations as the context may require.
“Policy of Insurance” means any policy of insurance or assurance of any kind covering a
Member, or a group of Members.
“Preserved Benefit” means:
(a) the amount of any benefit or any part of a benefit; or
(b) in relation to a Member who has not become entitled to a benefit, the Retirement
Credit or Accrued Benefit or any part of it,
which comprises the amount of the Member’s Preserved Benefit for the purposes of SIS, or
as otherwise determined by the Trustee, and which has not become unrestricted non-
preserved benefits under SIS.
“Provisional Member” means a person whom the Trustee has accepted as a Provisional
Member, and who has not become a Member.
“Repos” means agreements, arrangements or understandings with a person whereby any
Investments are transferred to or Investments are acquired from that person on the basis
that the transaction will be reversed on a predetermined rate and at an agreed price.
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3470-0456-6018v23
“Reserve Account” means an account kept pursuant to clause 5.1.
“Retire” has the meaning assigned to that expression in SIS and “Retires”, “Retired” and
“Retirement” have corresponding meanings.
“Retirement Credit” means in relation to a Member at any time, the balance of the
account established for the Member under clause 5.5.
“Reversionary Beneficiary” means, in relation to a Member, a person who is an Eligible
Reversionary Beneficiary of that Member at the relevant time, and:
(a) the Member:
(i) on commencement of the Member’s pension benefit, in a form acceptable
to the Trustee, nominated the person to receive the Member’s pension
benefit on the Member’s death; and
(ii) has not made another nomination permitted by the Trustee;
(b) the Member:
(i) at such time during the term of the pension as the Trustee permits, in a
form acceptable to the Trustee, nominated the person to receive the
Member’s pension benefit on the Member’s death; and
(ii) has not made another nomination permitted by the Trustee; or
(c) where the Member’s pension benefit is transferred to the Fund from another
Superannuation Entity:
(i) immediately before transfer of the benefit the person was recognised by
that Superannuation Entity as a reversionary beneficiary of the benefit;
and
(ii) the Trustee has determined to accept that nomination for the purposes of
the Fund (either for that Member individually or for all or a group of
Members transferring from that Superannuation Entity),
and the Member has not made another nomination permitted by the Trustee.
“RITS” means the Reserve Bank Information & Transfer System.
“Service” means service as an Employee of an Employer and includes service as a full-
time or part-time salaried director of an Employer and such other categories of service as a
Participating Employer and the Trustee may agree to from time to time in respect of a
Member.
The following periods shall, at the Trustee’s discretion, be included in a Member’s
Service:
(a) any period during which the Member is employed by any other person directly or
indirectly allied or associated with an Employer;
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(b) any period of employment during which the Member is employed (whether in
military employment or otherwise) in connection with or in contemplation of
hostilities or compulsory national service;
(c) any period of absence from duty with an Employer which by operation of any
statute is deemed to be employment with that Employer;
(d) any period of absence from duty with an Employer not exceeding six (6) Months
(or such longer period as the Trustee upon the advice of the Employer may
determine in any particular case) where such absence is due to illness or injury;
and
(e) the whole or any part of a period of absence from duty with an Employer which
that Employer determines with the agreement of the Trustee shall be regarded as
service of the Member with the Employer.
“SIS” means the Superannuation Industry (Supervision) Act 1993 and includes the
regulations to it.
“Superannuation Entity” means any entity which provides superannuation or similar
benefits and which the trustee of a Regulated Superannuation Fund may, in accordance
with the Superannuation Law, transfer or rollover a member’s accrued benefit to, or accept
a transfer or rollover of benefits from. A Superannuation Entity includes an Eligible
Rollover Fund.
“Superannuation Law” means any requirement of a law or a Superannuation Regulator:
(a) prescribed for the operation of Regulated Superannuation Funds; or
(b) which must be complied with in order to:
(i) obtain the maximum tax concessions available to Regulated
Superannuation Funds; or
(ii) avoid any penalty.
“Superannuation Regulator” means the governmental body or bodies having
responsibility for the regulation of, or the administration of tax concessions available to,
Regulated Superannuation Funds, including:
(a) the Australian Prudential Regulation Authority;
(b) the Australian Securities & Investments Commission; and
(c) the Australian Taxation Office.
“Tax” means all forms of taxes, duties, governmental imposts and surcharges together with
interest, penalties, charges, fees and other amounts payable on or in respect of them.
“Total and Permanent Disablement”, in relation to an Insured Benefit of a Member has
the meaning given to the term “total and permanent disablement” or a corresponding term
in the applicable Policy of Insurance.
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“Total Disability”, in relation to an Insured Benefit of a Member, has the meaning given
to the term “total disability” or a corresponding term in the applicable Policy of Insurance.
“Trustee” means the Trustee for the time being of the Fund.
1.2 Definitions from SIS
In this Deed unless the context otherwise requires, the following expressions have the
meanings given to them in SIS:
“Activity Fee”;
“Administration Fee”;
“Approved Trustee”;
“Associate”;
“Buy-Sell Spread”;
“Child”;
“Compassionate Ground”;
“Constitutional Corporation”;
“Eligible Rollover Fund”;
“Exit Fee”;
“Insurance Fee”;
“Interdependency Relationship”;
“Investment Fee”;
“Large Employer”;
“Legal Personal Representative”;
“MySuper Product”;
“Permanent Incapacity”;
“Registrable Superannuation Entity”;
“Regulated Superannuation Fund”;
“Severe Financial Hardship”;
“Spouse”;
“Switching Fee”;
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“Terminal Medical Condition”.
1.3 Statutes
References in this Deed to any statutory enactment include, and shall be construed as,
references to the enactment as amended, modified, consolidated, replaced or re-enacted
from time to time.
1.4 Plurals and Genders
Words importing the singular number include the plural and vice versa and words
importing any gender include all genders.
1.5 Clauses, Schedules and Rules
Any reference in this Deed to a Clause, Schedule or Rule is a reference to the
corresponding Clause, Schedule or Rule of this Deed.
1.6 Headings and Sub-Headings
The use of headings in this Deed is for convenience only, and headings do not form part of,
and are not to be used in the interpretation of, any provision of this Deed.
1.7 Bodies and Associations
References to authorities, institutes, associations and bodies whether statutory or
otherwise, in the event of any such authority, institute, association or body ceasing to exist
or being reconstituted, renamed or replaced or its powers or functions being transferred to
any other authority, institute, association or body, is deemed to refer respectively to the
authority, institute, association or body established or constituted to replace it or
succeeding to its powers or functions or any of them.
2 CONSTITUTION OF TRUST
2.1 Trust
The Trustee declares that it holds the Fund upon the trusts, terms and conditions of this
Deed.
2.2 Commencement
The date of the Fund’s commencement is 1 October 1987.
2.3 Name of Fund
The superannuation trust fund constituted under this Deed is known as “Sunsuper
Superannuation Fund”.1
1 Name of Fund changed to “Sunsuper Superannuation Fund” on 20 April 2018. Previous name (since commencement)
was “Sunsuper”.
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2.4 Fund
The trust fund of the Fund includes:
(a) the initial investment settled on commencement of the Fund;
(b) such contributions as may be made from time to time by Participating Employers,
Members and other persons;
(c) all assets, property, benefits or policies in which the Fund is from time to time
invested; and
(d) all earnings from time to time arising from contributions or investments.
2.5 Interest in the Fund
Each Member has a beneficial interest in the Fund, but that interest does not:
(a) entitle the Member other than as provided in this Deed or permitted by law:
(i) to interfere with the rights or powers of the Trustee in its dealings with
the Fund;
(ii) to exercise any rights, powers or privileges in respect of any Authorised
Investments; or
(iii) to require the transfer to the Member of any of the assets of the Fund;
(b) confer any interest in any particular part of the Fund.
2.6 Participating Employers and Members bound by Deed
The terms and conditions of this Deed are binding on the Trustee, each Participating
Employer and each Member and all persons claiming through them respectively as if each
such Participating Employer and Member had severally been a party to this Deed.
2.7 Purpose
The Fund must be maintained solely for one or more of the core or ancillary purposes
identified in SIS as the purposes for which a Regulated Superannuation Fund must be
solely maintained.
2.8 Compliance
(a) The Trustee may comply with any Superannuation Law notwithstanding that:
(i) compliance with the Superannuation Law conflicts with an express
provision of this Deed;
(ii) the Superannuation Law is not required under SIS or otherwise to be
included in this Deed.
(b) The Trustee is not taken to have committed any breach of trust by virtue of any
act or thing done to comply with any Superannuation Law.
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(c) Notwithstanding any other provision in this Deed:
(i) the Trustee in the exercise of its powers under this Deed is not subject to
the direction of any other person except where the Superannuation Law
permits the direction to be given to the Trustee by that person, and where
any provision of the Deed would permit any person to give a direction to
the Trustee other than as permitted by the Superannuation Law the
Trustee must disregard any direction given by that person, and the
Trustee may alone exercise the power, authority or discretion which is by
the terms of this Deed subject to the direction of that other person;
(ii) where any discretion under this Deed may be exercised by a person other
than the Trustee:
(A) the person on whom the discretion is conferred may not exercise
that discretion in any case unless the Trustee consents to the
exercise of the discretion in the manner in which the person
proposes to exercise the discretion;
(B) the provision conferring the discretion is deemed to require the
consent of the Trustee to the exercise of the discretion; and
(C) the person on whom the discretion is conferred may exercise the
discretion with the Trustee’s consent.
(d) Without limiting the preceding provisions of this clause 2.8, the provisions of
Part 6 of SIS override any provision of this Deed which is inconsistent with them.
(e) This Deed is to be construed as containing covenants in the terms prescribed
under SIS as covenants that are taken to be contained in the governing rules of a
Registrable Superannuation Entity.
3 PARTICIPATING EMPLOYERS
3.1 Application for Participation as a Participating Employer
An Employer who wishes to provide retirement and other approved ancillary benefits for
its Employees may apply to become a Participating Employer in a form acceptable to the
Trustee.
3.2 Trustee may reject application for Participation
The Trustee may:
(a) accept or reject an application to become a Participating Employer without giving
any reason;
(b) impose any conditions when accepting an application; and
(c) at any time, remove or vary any condition so imposed.
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3.3 Participation without application
If Superannuation Law permits, the Trustee may accept an Employer as a Participating
Employer without having received an application for participation, on such terms and
conditions and effective from such date as the Trustee determines.
3.4 Date of Admission
An applicant becomes a Participating Employer on the date determined by the Trustee.
3.5 Information to be given to Employers or prospective Employers
The Trustee must give a new or prospective Participating Employer such information as is
prescribed by the Superannuation Law.
3.6 Terms of Participation
(a) The Trustee may agree (“Participation Agreement”) that a Participating
Employer’s participation in the Fund is to be governed, wholly or partly, by rules
other than the terms of this Deed, in respect of Employees of the Participating
Employer and if applicable former Employees and other persons that the
participation relates to.
(b) Without limiting clause 3.3, where the benefits of Employees of a Participating
Employer are transferred to the Fund from another Superannuation Entity, the
Trustee may determine to accept a document specifying terms and conditions of
membership of those Employees (and if applicable former Employees and other
persons that the participation relates to) in that Superannuation Entity as
comprising a Participation Agreement for that Participating Employer.
(c) A Participation Agreement overrides inconsistent provisions of this Deed to the
extent of the inconsistency.
(d) The same Participation Agreement may apply in respect of Employees of two or
more Participating Employers, and may identify one “Principal Employer”, that
has special rights and obligations, and one or more “Associated Employers”.
(e) The Trustee may amend the Participation Agreement from time to time in
accordance with the terms of the Participation Agreement or, where the
Participation Agreement does not specify amendment terms, clause 19.
(f) To avoid doubt, a Participation Agreement operates as an amendment to this Deed
in respect of the beneficiaries the Participation Agreement applies to, and does not
constitute a separate trust.
(g) The Trustee may regard any instruction given or purported to be given by an
officer of a Participating Employer as a valid instruction.
3.7 Termination of Participation
(a) A Participating Employer may at any time by notice in writing to the Trustee
terminate its participation in the Fund as from a date specified in the notice and
accepted by the Trustee.
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(b) The Trustee may by notice in writing given to a Participating Employer terminate
the Participating Employer’s participation in the Fund on a date determined by the
Trustee and specified in the notice.
3.8 Substituted Employer
(a) Where:
(i) the whole or substantially the whole of the assets of a Participating
Employer’s business are acquired by another person; or
(ii) another person commences to employ all or any Members formerly
employed by a Participating Employer,
the Trustee may elect to accept the performance by that other person of the
obligations of the Participating Employer under this Deed in place of the
performance of those obligations by the Participating Employer.
(b) Acceptance by the Trustee of performance of a Participating Employer’s
obligations by another person discharges the Participating Employer from any
further obligations under this Deed.
3.9 Consequences of termination
On termination of a Participating Employer’s participation taking effect:
(a) no persons shall be admitted as Members as Employees of the former
Participating Employer;
(b) the former Participating Employer must not make further contributions to the
Fund except contributions due prior to the date of termination.
3.10 Rights of Employer maintained
Neither membership of the Fund nor anything contained in this Deed in any way prejudices
or affects the right of a Participating Employer to dismiss any Employee or to vary the
terms of an Employee’s employment, and neither membership of the Fund nor the rights or
benefits of a Member under this Deed may be used as grounds for granting or increasing
damages in any action brought by any Employee against the Participating Employer
whether in respect of any alleged wrongful dismissal or otherwise.
4 MEMBERS
4.1 Eligibility
Any Eligible Person is eligible to become a Member, subject to this clause 4.
4.2 Application for membership
(a) An Employee nominated for membership of the Fund by a Participating Employer
may apply to become a Member.
(b) A Participating Employer may apply for an Employee to become a Member.
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(c) Any Eligible Person other than an Employee of a Participating Employer may
apply to become a Member.
(d) An application for membership must be in a form acceptable to the Trustee.
4.3 Admission with no application
If Superannuation Law permits, the Trustee may admit an Eligible Person as a Member
without having received an application for membership, on such terms and conditions and
effective from such date as the Trustee determines.
4.4 Applicant to provide information
An applicant who wishes to become a Member must:
(a) have any medical examination; and
(b) provide any information or take any other steps,
which the Trustee requests in relation to the application.
4.5 Admission to membership
(a) The Trustee may:
(i) accept or reject an application to become a Member without giving any
reason;
(ii) impose any conditions when accepting an application; and
(iii) at any time remove or vary any condition so imposed.
(b) The Trustee must reject an application unless the applicant is an Eligible Person
and the Trustee is satisfied that the applicant is an Eligible Person.
4.6 Date of admission
Where an Eligible Person is admitted as a Member, their membership commences on the
date determined by the Trustee or, if the Trustee makes no determination, on the earlier of:
(a) the date the Trustee accepts the application for membership in respect of the
Eligible Person;
(b) the date the Trustee accepts the first contribution or rollover for the credit of the
Member.
4.7 Provisional Members
(a) An Employee:
(i) whose Participating Employer has applied on the Employee’s behalf; and
(ii) who has not lodged an application,
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becomes a Provisional Member upon acceptance by the Trustee of the
Participating Employer’s application for the Employee’s membership, unless the
Trustee accepts the Employee as a Member.
(b) A Provisional Member may apply for membership.
(c) A Provisional Member becomes a Member on the Trustee accepting them as a
Member, and their membership commences on a date determined by the Trustee.
4.8 Information to be given to Members or prospective Members
The Trustee must:
(a) provide to prospective Members, prior to accepting an application for
membership, such information as is prescribed by Superannuation Law;
(b) provide such information to a new Member as is prescribed by Superannuation
Law.
4.9 Subsequent failure to provide Information
If a Member fails after admission to provide information or evidence as and when required
by the Trustee and to its satisfaction, the Trustee may refuse to accept any further
contributions by or for that Member.
4.10 Termination of Membership/Provisional Membership
(a) A person ceases to be a Member on the first to occur of:
(i) the Member’s benefit being paid in full; or
(ii) transfer of the full amount of the Member’s Retirement Credit or
Accrued Benefit to another Superannuation Entity.
(b) A person ceases to be a Provisional Member on the first to occur of:
(i) the Provisional Member’s benefit being paid in full;
(ii) the Provisional Member becoming a Member; or
(iii) transfer of the full amount of the Provisional Member’s Retirement
Credit to another Superannuation Entity.
4.11 Cooling Off Period
The Trustee must comply with any requirements of Superannuation Law in relation to
notification and operation of cooling off periods.
5 ACCOUNTS OF THE FUND
5.1 Establishment of Reserve Account
The Trustee must maintain a Reserve Account for the Fund.
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5.2 Crediting of Reserve Account
The Trustee must credit to the Reserve Account:
(a) all income earned on the Fund’s investments;
(b) any gains on the realisation of any of the Fund’s investments, and any other
accretions to or arising out of the Fund’s investments;
(c) any amounts debited to provide for payment of Expenses;
(d) any other amounts which may be credited to the Reserve Account under this Deed
or in accordance with Superannuation Law.
5.3 Debiting of Reserve Account
The Trustee must debit to the Reserve Account:
(a) any losses on realisation of any of the Fund’s investments;
(b) any amounts applied by the Trustee in accordance with clause 5.4.
5.4 Application of Reserve Account Credit
The Trustee may apply the Reserve Account for any of the following purposes:
(a) in payment of Expenses;
(b) to provide additional benefits for Members or their Dependants in such manner as
the Trustee determines;
(c) in determining the amount of a net change in value of the assets of the Fund or an
investment strategy which is available for allocation to Member Accounts;
(d) for any other purpose permitted by Superannuation Law.
5.5 Establishment of Retirement Credit
The Trustee must maintain for each Member (other than a Member entitled only to Defined
Benefits) an account referred to as the Retirement Credit.
5.6 Allocations to Retirement Credit
(a) The Trustee must allocate to a Member’s Retirement Credit:
(i) any contributions made by or for the credit of the Member;
(ii) any amount transferred from another Superannuation Entity for the credit
of the Member;
(iii) any part of a contribution made for the credit of another Member which
that other Member has requested or directed is to be allocated to the
Member Account, where:
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(A) Superannuation Law permits the allocation and the Trustee
determines to make the allocation; or
(B) Superannuation Law requires the allocation;
(iv) any amount otherwise received by the Trustee for the credit of the
Member or which under this Deed the Trustee may allocate for the
benefit of the Member (including the proceeds of any Policy of Insurance
received in respect of the Member).
(b) The Trustee must also allocate to each Member Account:
(i) net changes in value of the assets of the Fund, or of an investment
strategy or investment strategies, as applicable to the Member;
(ii) any amount transferred to another Superannuation Entity for the credit of
the Member;
(iii) any charges applicable to that Member;
(iv) any share of Expenses the Trustee determines to allocate to the Member,
and any particular Expenses applicable to that Member;
(v) any other debits or credits applicable to the Member or which the Trustee
decides to allocates to the Member.
(c) Despite clause 5.6(b), the Trustee must not allocate to a Member’s Retirement
Credit an amount for charges or Expenses in respect of a MySuper Interest, where
Superannuation Law does not permit those charges or Expenses to be charged in
respect of a MySuper Product.
5.7 Other Accounts
The Trustee may maintain any other accounts as the Trustee considers appropriate.
5.8 Change in value of the Fund
(a) The Trustee must determine the net change in the value of the assets of the Fund
from time to time, to be declared at such times and in respect of such periods as
the Trustee nominates.
(b) In determining the net change in value of the assets of the Fund for a period, the
Trustee may take into account, in relation to the period:
(i) investment returns on the assets of the Fund;
(ii) expenses, and any provision for expenses, in connection with the Fund;
(iii) capital gains and losses on realisation of any of the assets of the Fund;
(iv) unrealised gains and losses arising on revaluation of any of the assets of
the Fund;
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(v) allowance for capital appreciation and depreciation on any of the assets
of the Fund;
(vi) write-offs of bad debts;
(vii) the appropriateness of averaging the net earnings of the Fund over two or
more periods;
(viii) any reserves maintained by the Trustee; and
(ix) any other factors which the Trustee considers appropriate.
(c) The net change in value of the assets of the Fund for a period may be positive or
negative.
(d) Where the Trustee maintains two or more investment strategies during a period,
the Trustee must determine the net change in value of the assets of the Fund for
that period which is attributable to each investment strategy, instead of
determining the change in value of the assets of the Fund for that period.
(e) The Trustee must on determining a net change in value of the assets of the Fund
or any investment strategy, determine the extent to which, and the manner in
which, that net change in value is to be allocated to Member Accounts.
(f) The Trustee may adopt procedures for determining a net change in value of the
assets of the Fund or an investment strategy on an interim basis at such times as
the Trustee determines.
5.9 Unallocated Accounts for Defined Benefits
(a) The Trustee may enter into an agreement with a Participating Employer that some
or all of the benefits for some or all Employees of the Participating Employer who
become Members are Defined Benefits (“Defined Benefit Agreement”). A
Defined Benefit Agreement forms part of the governing rules of the Fund
applicable to Members whose benefits are provided under the terms of the
Defined Benefit Agreement.
(b) Where a Defined Benefit Agreement is in place, the Trustee must maintain an
unallocated account for that Participating Employer (“Unallocated Account”).
The Trustee must allocate to each Unallocated Account net changes in the value
of the assets of the Fund, or of an investment strategy or investment strategies, as
applicable to that Unallocated Account.
(c) The Trustee must credit to an Unallocated Account:
(i) contributions made by the Participating Employer for the purpose of
providing Defined Benefits for Employees of that Participating
Employer;
(ii) any contributions made by Employees of that Participating Employer
required for the provision of their Defined Benefits;
(iii) [deleted];
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(iv) any proceeds payable under a Policy of Insurance taken out to provide
Defined Benefits on death or Total and Permanent Disablement for
Employees of that Participating Employer;
(v) any other amount held pursuant to this Deed in relation to the provision
of Defined Benefits for Employees of that Participating Employer.
(d) The Trustee must debit to a Unallocated Account:
(i) the amount of any Defined Benefit:
(A) paid in respect of an Employee of that Participating Employer;
or
(B) for any reason converted to an accumulation benefit and
allocated to a Retirement Credit for an Employee of that
Participating Employer;
(ii) the amount of any Defined Benefit paid to another Superannuation Entity
in respect of an Employee of that Participating Employer;
(iii) any insurance premiums payable under a Policy of Insurance taken out to
provide Defined Benefits on death or Total and Permanent Disablement
for Employees of that Participating Employer;
(iv) a share of any Expenses which the Trustee decides to debit to the
Unallocated Account;
(v) any Expense the Trustee determines is properly attributable to that
Unallocated Account; and
(vi) any other debits applicable to the Unallocated Account or the provision
of Defined Benefits for Employees of that Participating Employer, or
which the Trustee decides to allocate to the Unallocated Account.
(e) The amount of a Defined Benefit payable in respect of a Member:
(i) must not have the effect that the balance in the Unallocated Account after
payment of the benefit will be less than the aggregate vested Defined
Benefits of the other Members entitled to Defined Benefits out of that
Unallocated Account; and
(ii) cannot be paid out of any assets of the Fund other than the Unallocated
Account out of which the Defined Benefit is payable.
(f) A Participating Employer which enters into a Defined Benefit Agreement must
make such contributions as are necessary to fund the Defined Benefits provided
for in the Defined Benefit Agreement, but subject to any provisions of the Defined
Benefit Agreement allowing for:
(i) suspension or termination of contributions;
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(ii) decrease in the future accrual of Defined Benefits payable from the
Unallocated Account.
(g) Where the Trustee determines that there is a surplus in an Unallocated Account,
the Trustee may, if the Participating Employer requests:
(i) pay an amount out of the surplus to the Participating Employer, or an
associated entity nominated by the Participating Employer, where the
Defined Benefit Agreement authorises the payment;
(ii) increase the amount of Defined Benefits payable from the Unallocated
Account;
(iii) otherwise apply the surplus in a manner permitted by Superannuation
Law.
(h) Where the Trustee determines that there is a deficiency in an Unallocated
Account, the Trustee may take such steps as the Trustee is authorised or required
to take under Superannuation Law in relation to the deficiency (which may
include reducing the accrued Defined Benefits of Employees of the Participating
Employer). However the Trustee cannot make good any deficiency in an
Unallocated Account by making any payment out of any assets of the Fund other
than that Unallocated Account.
(i) Where the Trustee has formulated more than one investment strategy for the Fund,
the Trustee must determine the investment strategy or combination of investment
strategies for investment of an Unallocated Account. The Trustee may consider,
but is not bound by, any recommendation of the Participating Employer as to the
investment strategy for that Participating Employer’s Unallocated Account.
5.10 Reserves for parts of the Fund
(a) The Trustee may:
(i) separately maintain and account for a reserve in respect of any part of the
Fund; and
(ii) allocate to the reserve any amounts the Trustee determines in respect of
that part of the Fund.
(b) The Trustee may apply a reserve in respect of a part of the Fund:
(i) in payment of Expenses attributable to that part of the Fund;
(ii) to provide additional benefits for Members or their Dependants relevant
to that part of the Fund;
(iii) for any other purpose permitted by Superannuation Law, in respect of
that part of the Fund.
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6 MANAGEMENT OF TRUST
6.1 Powers of Trustee
The Trustee has all the powers over and in respect of the property and assets constituting
the Fund which it could exercise if it were the absolute and beneficial owner. Without in
any way limiting the generality of the foregoing or of any other provision of this Deed
which gives powers to the Trustee, the Trustee has full and absolute powers of:
(a) purchase and sale for cash or upon terms any Authorised Investment and
investment of the proceeds of any sale of Authorised Investments;
(b) leasing and accepting surrenders of leases (or agreeing so to do) with power to
compromise with lessees and others;
(c) executing and paying for repairs and improvements;
(d) instituting, prosecuting, compromising and defending legal proceedings and to
secure compliance with the terms of this Deed or to recover any loss suffered by
Members in respect of their investment under this Deed;
(e) attending and voting at meetings;
(f) paying all outgoings reasonably and properly incurred in connection with the
Fund or this Deed, including any Administrator’s or Investment Manager’s fees or
remuneration;
(g) opening and operating accounts with financial institutions;
(h) subject to clauses 8.9 and 8.10, lending money;
(i) developing, improving, subdividing, building, rebuilding, altering, extending,
replacing, repairing, managing, operating, leasing and otherwise dealing with any
Authorised Investment and purchasing such plant, equipment and fittings as are
necessary having regard to the purposes for which an Authorised Investment is
from time to time being used or intended to be used;
(j) entering into, performing and enforcing agreements;
(k) drawing, endorsing, discounting, selling, purchasing and otherwise dealing with
bills of exchange either alone or jointly and in particular commercial bills but so
that the totality of the moneys for the time being the subject of liability on the part
of the Trustee whether as drawer, acceptor or endorser of any and all of such bills
of exchange and whether alone or jointly or severally with other persons are
liabilities of the Fund;
(l) entering into agreements with joint or co-owners of assets an interest in which
constitutes an Authorised Investment for the time being held by the Fund for such
purposes as the Trustee may consider conducive to the interests of the Fund;
(m) entering into agreements (whether in the nature of partnerships, joint ventures or
otherwise) for the development of Authorised Investments with other reputable,
financial, solvent and stable persons and corporations;
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(n) setting aside out of the capital and income of the Fund such moneys as may be
required to meet the obligations of the Trustee under this Deed;
(o) collecting and accepting contributions to the Fund and crediting the contributions
to any account with a financial institution;
(p) allocating any amounts by way of income, capital or contributions to any
Investment Manager;
(q) paying or otherwise dealing with benefits in accordance with this Deed;
(r) insuring or re-insuring any risks, contingencies or liabilities of the Fund;
(s) taking out, or otherwise acquiring or surrendering any Policy of Insurance, and
paying premiums;
(t) determining as and when the need arises, who are Dependants of a deceased
Member;
(u) exercising any rights of ownership attaching to any asset of the Fund whether
alone or jointly with other persons having rights of ownership, and meeting out of
the assets of the Fund any liability attaching to ownership of any asset of the
Fund, whether alone or jointly with other persons;
(v) varying or transposing any investments into or for any other Authorised
Investment and varying the terms of any document or security;
(w) maintaining a register of Participating Employers and register of Members;
(x) irrevocably electing that the Fund shall become a Regulated Superannuation
Fund; and
(y) doing such other things as may appear to the Trustee to be incidental to any or all
of the above powers.
6.2 Delegation of Trustee powers
(a) The Trustee may delegate any functions, authorities, discretions or powers
exercisable by the Trustee (including a power which the Trustee has a duty to
exercise) to any person upon such terms and conditions as it determines.
(b) The Trustee is not liable or responsible for any act or omission, error of judgment,
negligence or breach of trust of a delegate.
(c) The Trustee may:
(i) revoke any delegations;
(ii) exercise any delegated function, authority, discretion or power itself
concurrently with or to the permanent or temporary exclusion of a
delegate.
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6.3 Appointment of Administrator, Custodians and Advisers
(a) The Trustee may:
(i) appoint in writing on such terms as it determines a person
(“Administrator”) to administer the Fund;
(ii) delegate to an Administrator such matters as it determines from time to
time related to the administration of the Fund.
(b) The Trustee may:
(i) appoint in writing on such terms as it determines any person eligible for
appointment in accordance with Superannuation Law as a custodian
(“Custodian”), to receive, hold and retain registration of any of the
assets of the Fund (whether or not those assets are located in Australia).
(ii) by the terms of appointment of a Custodian, allow the Custodian to
appoint and remove agents or sub-Custodians to carry out the
Custodian’s duties or any of those duties.
(c) The Trustee may engage accountants, actuaries, bankers, barristers, solicitors,
brokers, consultants, valuers and such other professional advisers from time to
time, to give such advice, as the Trustee determines.
(d) The Trustee is not liable for the neglect, default or misconduct of any person
appointed or engaged by it, nor for allowing trust funds or securities to remain in
the custody or control of any person so appointed or engaged for any time.
6.4 Remuneration of Delegates and Advisers
The Trustee may pay from the Fund, as an Expense, such remuneration as it determines to
any delegate appointed by it or adviser engaged by it.
6.5 Exercise of Discretion
Any exercise by the Trustee of any power, discretion or authority of the Trustee may be
made by a resolution of the corporation or by a resolution of its board of directors or other
governing body.
6.6 Trustee not required to give security
The Trustee is not required to give bond or security for the due and faithful administration
of the Fund or for the discharge of the trusts of this Deed.
6.7 Remuneration of Trustee
The Trustee is entitled to pay itself from the Fund from time to time a reasonable
remuneration for its services as trustee.
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6.8 Registration in name of nominee or custodian trustee
The title to any property forming part of the Fund may be registered in the name of a
custodian, nominee or other delegate of the Trustee.
6.9 Director may be a Member
(a) A director, officer or Employee of the Trustee is not, subject to the
Superannuation Law, by virtue of that person’s office, or of powers being
delegated by the Trustee to that person, disqualified from being a Member or from
exercising any rights or deriving any benefits as a Member.
(b) A director or other executive officeholder of a Participating Employer is not by
virtue of that person’s office, or of any powers being delegated by the
Participating Employer to that person, disqualified from being a Member or from
exercising any rights or deriving any benefits as a Member.
6.10 Discretions Absolute
(a) The Trustee has an absolute and uncontrolled discretion in the exercise of all of its
powers, authorities and discretions, and may exercise or refrain from exercising
all or any of those powers, authorities and discretions at any time.
(b) The powers, authorities and discretions conferred on the Trustee by this Deed are
in addition to any powers, authorities and discretions conferred by any statute
upon the Trustee, and nothing in this Deed limits any such powers, authorities and
discretions.
6.11 MySuper Classes
The Trustee may establish one or more classes of membership (“MySuper Class”) that
must have the following terms and conditions:
(a) the Trustee must determine the investment strategy applicable in respect of the
MySuper Class as a single diversified investment strategy (“MySuper
Investment Strategy”);
(b) all Members who hold a MySuper Interest must be entitled to access the same
options, benefits and facilities, except that:
(i) different terms and conditions may apply in respect of benefits under a
Policy of Insurance; and
(ii) access to options, benefits and facilities may otherwise be different if
permitted under Superannuation Law;
(c) net changes in value of the assets of the MySuper Investment Strategy must be
allocated to MySuper Interests in a way that does not stream gains or losses to
only some of those Members, except to the extent permitted under a Lifecycle
Exception;
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(d) the same process is to be adopted in attributing amounts to Members in respect of
their MySuper Interest, except to the extent that a different process is necessary to
allow for fee subsidisation by Participating Employers;
(e) if fee subsidisation by Participating Employers is permitted, that subsidisation
does not favour one Member who holds a MySuper Interest and is an Employee of
a subsidising Participating Employer over another such Member who is an
Employee of that Participating Employer;
(f) there are no limitations on the source or kind of contributions made by or on
behalf of Members who hold a MySuper Interest, other than Permitted
Limitations;
(g) a MySuper Interest cannot be replaced with an interest in another class of
membership in the Fund unless:
(i) the replacement is with an interest in another MySuper Class within the
Fund;
(ii) the Member consents in writing to the replacement within the time period
prescribed under Superannuation Law; or
(iii) the MySuper Interest is replaced with a beneficial interest of another
class in the Fund of a kind, and in the circumstances, permitted under
Superannuation Law;
(h) a Member’s MySuper Interest cannot be replaced with a beneficial interest in
another Superannuation Entity (“New Interest”) unless:
(i) the New Interest is a MySuper Product and the replacement with the New
Interest is permitted under a law of the Commonwealth;
(ii) the replacement is otherwise permitted, or is required, under a law of the
Commonwealth; or
(iii) the Member consents in writing to the replacement with the New Interest;
(i) to the extent that assets of the Fund are attributable to the MySuper Class, a
pension is not payable out of those assets (other than an Insured Benefit payable
as an income on the Member’s Total Disability).
6.12 Employer’s MySuper Classes
(a) The Trustee may establish a MySuper Class in respect of a Participating Employer
(“Employer’s MySuper Class”) where:
(i) the Participating Employer is a Large Employer, or the Trustee is
satisfied that the Participating Employer will become a Large Employer
within a period determined by the Trustee and prescribed by a
Superannuation Regulator (“Large Participating Employer”);
(ii) the Participating Employer is specified in the Participation Agreement as
a Large Participating Employer; and
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(iii) the Trustee is authorised by a Superannuation Regulator to establish the
Employer’s MySuper Class.
(b) A person is not entitled to hold a MySuper Interest in an Employer’s MySuper
Class unless the person is:
(i) an Employee or former Employee of:
(A) the Large Participating Employer; or
(B) an Associate of the Large Participating Employer; or
(ii) a relative or Dependant of such a person.
(c) Subject to clause 6.12(d), where an Employer’s MySuper Class is established for
a Large Participating Employer and:
(i) the Large Participating Employer or an Associate contributes to the Fund
(or would contribute apart from a temporary cessation of contributions)
for an Employee of the Large Participating Employer, any Employee of
the Large Participating Employer other than a Defined Benefit Member
is eligible to hold a MySuper Interest in that Employer’s MySuper Class;
(ii) the Large Participating Employer or an Associate contributes to the Fund
(or would contribute apart from a temporary cessation of contributions)
for an Employee of an Associate, any Employee of that Associate other
than a Defined Benefit Member is eligible to hold a MySuper Interest in
that Employer’s MySuper Class.
(d) An Employee of a Large Participating Employer is not eligible to hold a MySuper
Interest in that Employer’s MySuper Class where:
(i) under Superannuation Law, the governing rules of the Employer’s
MySuper Class cannot permit that Employee to be eligible to hold a
MySuper Interest; or
(ii) the Employee is not eligible under the Participation Agreement to hold a
MySuper Interest in the Employer’s MySuper Class, and Superannuation
Law does not require that the Employee is so eligible.
(e) An agreement between the Trustee and a Large Participating Employer in relation
to the terms of membership of the Fund applicable to Members of that Employer’s
MySuper Class (“Participation Agreement”) forms part of the governing rules of
the Fund applicable to those Members.
6.13 MySuper Class and other classes
(a) No Member who holds a beneficial interest in a MySuper Class is precluded from
holding a beneficial interest of another class in the Fund because of that fact.
(b) No Member is precluded from holding a beneficial interest in a MySuper Class
because the Member holds a beneficial interest of another class in the Fund.
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7 TRUSTEE
7.1 Constitutional Corporation
The Trustee must be a Constitutional Corporation and an Approved Trustee in respect of
the Fund.
7.2 Removal of Trustee
The office of the Trustee becomes vacant if:
(a) the Trustee becomes a disqualified person as defined in Section 120(2) of SIS;
(b) an order is made by a court removing the Trustee; or
(c) the Superannuation Regulator removes or suspends the Trustee in accordance with
the Superannuation Law.
7.3 Trustee may retire
The Trustee may retire if the Trustee has arranged for a Constitutional Corporation to
become the new Trustee.
7.4 Appointment of new Trustee
(a) If the Superannuation Regulator removes the Trustee, the Trustee must by deed
retire from office and appoint in its stead the Constitutional Corporation approved
by the Superannuation Regulator for the purpose.
(b) If the Trustee resigns from office, the Trustee must by deed retire from office and
appoint in its stead the Constitutional Corporation nominated by it and approved
by the Superannuation Regulator for the purpose.
7.5 Vesting of Fund in New Trustee
A Trustee vacating office shall do all acts and execute all documents necessary to transfer
the assets of the Fund to the new trustee. The retiring Trustee shall deliver to the new
trustee all books, documents, records and other property whatsoever relating to the Fund.
The costs and expenses incidental to this are an Expense of the Fund.
7.6 Defects in Appointment
The acts of the Trustee are valid despite any defects that may be discovered in its
appointment.
7.7 Covenants by new trustee
(a) A new trustee must execute upon appointment a deed which provides that the new
trustee undertakes to be bound by all the covenants and obligations on the part of
the Trustee from the date of appointment.
(b) From the date of appointment of a new trustee:
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(i) the retiring trustee is absolved and released from all covenants and
obligations under this Deed except for liability for any breach prior to the
new appointment;
(ii) the new trustee is entitled to exercise all the powers and rights and, is
subject to all the covenants and obligations, of the Trustee in all respects
as if the new trustee had been originally named as a party to this Deed.
7.8 [Deleted]
8 INVESTMENT AND BORROWING
8.1 Investment strategy
Subject to clauses 8.4, 8.4A and 8.4B, the Trustee:
(a) must set investment objectives for the Fund, and formulate an investment strategy
to achieve those objectives, in accordance with Superannuation Law; and
(b) may from time to time change the investment objectives and strategy.
8.2 Trustee to give effect to investment strategy
Subject to this Deed and to all proper enquiries and legal steps deemed by it necessary, the
Trustee must implement and give effect to any investment strategy settled by it.
8.3 Implementing the investment strategy
In implementing an investment strategy settled by it, the Trustee may invest so much of the
Fund as is available for investment in or upon such Authorised Investments and upon such
terms and conditions as the Trustee determines, and may generally manage and deal with
the property forming part of the Fund as fully as if the Trustee legally and beneficially
owned that property.
8.4 Investment directions from Member
(a) The Trustee will be taken to have formulated an investment strategy in accordance
with the requirements of clause 8.1 if the Trustee formulates a number of different
investment strategies for the Fund, each having different investment objectives
and invites Members and prospective members to select an investment strategy or
combination of investment strategies to be followed by the Trustee in relation to
the investment of Assets of the Fund on behalf of the Member.
(b) The Trustee must give to each Member and prospective Members invited to select
an investment strategy or combination of investment strategies such details of the
investment strategies formulated as the Superannuation Law requires to be given
to persons offered a choice of investment strategies, so that the Trustee is
permitted under Superannuation Law to give effect to the selection as an
investment direction.
(c) The Trustee may prescribe that a Member may select an investment strategy or
combination of investment strategies only where the balance of the Member’s
Retirement Credit exceeds a specified amount.
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(d) The directions from a Member must be given in the manner prescribed by the
Superannuation Law.
(e) From time to time and subject to the Trustee’s requirements a Member can change
the investment direction given by the Member.
(f) The Trustee must implement and give effect to any investment direction from a
Member approved by the Trustee and any variation thereof.
8.4A MySuper Investment Strategy
Where the Trustee offers a MySuper Product, the Trustee must determine and review the
investment objectives and investment strategy for the MySuper Investment Strategy in
accordance with the requirements of Superannuation Law for a MySuper Product.
8.4B Investment strategy for Reserve Account and reserves
Where the Trustee maintains:
(a) a Reserve Account; or
(b) reserves for part of the Fund (under clause 5.10),
the Trustee must formulate, review regularly and give effect to a strategy for the prudential
management of the Reserve Account or reserves (as applicable), consistently with the
Fund’s investment strategies and the capacity of the Fund to discharge liabilities (whether
actual or contingent) as and when they fall due.
8.5 Authorised Investments
The Trustee may only invest in the following Authorised Investments:
(a) moneys deposited (whether for a term or at call) with any financial institution
(with or without interest) or with any person, including short term money market
investments;
(b) stock, bonds, shares, notes, options, debentures, loan securities or any other
securities of any corporation or securities of any government, semi-governmental
body or public authority, whether in Australia or any other country, and whether
or not listed on a securities exchange in Australia or any other country;
(c) any investment in which by the laws of Queensland or any State or Territory of
Australia trustees are authorised to invest;
(d) Commodities;
(e) the purchase, lease or other acquisition of Land and any improvements, fixtures
and fittings erected or installed or to be erected or installed, or rights conferring
options, rights of first refusal or otherwise relating to the acquisition of Land;
(f) the purchase, lease, hire or other acquisition of any personal property and any
share or estate or interest in personal property;
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(g) units or sub-units or other rights or interests (however described) in any trust,
managed investment scheme or other mutual or common fund or pooled
superannuation trust;
(h) bills of exchange, promissory notes and other negotiable instruments whether
purchased or discounted which have been either drawn, issued, endorsed or
accepted by a corporation;
(i) any Derivative including but not limited to any one or more of:
(i) a futures contract;
(ii) a swap, cap, floor or collar;
(iii) a swaption;
(iv) a forward agreement;
(v) an option; or
(vi) options over any of the above Derivatives;
whether or not entered into or acquired for the purpose of hedging against or
minimising any loss concerning Authorised Investments held by the Trustee;
(j) Insurance Investments;
(k) the investment of money on security (by way of a registrable or registered first
mortgage) of any Land;
(l) discounting of loans, mortgages or leases;
(m) the purchase of a secondary mortgage market security;
(n) RITS in respect of investments mentioned elsewhere in this definition and
included in RITS;
(o) Repos;
(p) Index Linked Securities;
(q) Land Swaps;
(r) the making of any other investments the Trustee considers to be appropriate in the
circumstances.
8.6 Appointment of Investment Manager
(a) The Trustee may appoint on such terms as it determines one or more bodies
corporate (“Investment Managers”) to manage the investments of the Fund or
any part of the Fund.
(b) An Investment Manager may only be appointed if the following conditions are
satisfied:
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(i) the appointment is in writing;
(ii) the Investment Manager is eligible under the Superannuation Law to be
appointed to act;
(iii) the terms of the appointment comply with any applicable Superannuation
Law.
(c) The Trustee may delegate to an Investment Manager the whole or any part of the
Trustee’s powers, authorities and discretions relating to the investment, selling,
receiving, variation and disposal of assets of the Fund.
8.7 Underwriting of Authorised Investments
The Trustee may:
(a) underwrite or sub-underwrite, or join with others in underwriting or sub-
underwriting, the subscription of any Authorised Investment;
(b) delegate to any Investment Manager general authority to enter into and carry out
underwriting or sub-underwriting agreements and the like, whether for the Fund
alone or for the Fund in conjunction with other funds and institutions.
8.8 Borrowing
(a) Subject to clause 8.8(b), the Trustee may borrow any sum or sums of money,
whether with or without security, on such terms and conditions in all respects as it
determines, and in particular may draw, accept, endorse, discount and issue
promissory notes, bills of exchange and other negotiable or transferable
instruments without any qualification as to bank acceptance or otherwise.
(b) The Trustee shall not borrow otherwise than as permitted under Superannuation
Law.
8.9 Dealings with Members
The Trustee must not:
(a) lend money of the Fund, or give any other financial assistance using the resources
of the Fund, to any Member or an associate of any Member;
(b) intentionally acquire an asset from a Member, or an associate of a Member,
except as permitted under Superannuation Law.
8.10 Loans to Participating Employers
The Trustee must not lend any moneys of the Fund to, or invest any moneys of the Fund in,
any Participating Employer or an associate of a Participating Employer, except to the
extent that the loan or investment complies with the restrictions on the in-house assets
prescribed by the Superannuation Law.
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9 EXPENSES AND FEES
9.1 Expenses
The Expenses of the Fund comprise such of the following costs, charges and expenses as
are reasonably and properly incurred in or about the administration of the Fund:
(a) the costs of establishing the Fund including the costs of the preparation, stamping
and approval of this Deed, the incorporation of the Trustee and such other costs as
the Trustee determines have been reasonably incurred in establishing the Fund;
(b) the costs of keeping and auditing the books of account required by this Deed;
(c) the costs of establishing and maintaining the Registers;
(d) disbursements in connection with the acquisition, sale, collection, maintenance,
distribution of or other dealing with any Authorised Investment including legal
fees, consultant fees, stamp duties, brokerage and commission;
(e) without limiting paragraph (d), expenses incurred by the Trustee in ascertaining,
examining and satisfying itself from time to time in connection with the attempted
or proposed acquisition or disposal of, or on the suitability of possible Authorised
Investments;
(f) the costs of acquiring, establishing and developing computer hardware and
software systems required for the administration of the Fund;
(g) the fees and disbursements payable to any managing agents or collection agents
not exceeding the prevailing commercial rates chargeable by managing agents or
collection agents for services performed by them;
(h) fees payable to any Administrator, Investment Manager, Custodian, consultant or
any other delegate or adviser;
(i) advertising expenses relating to the sale of property;
(j) fees and charges imposed by financial institutions, and duties, levies and other
imposts imposed by governments or governmental bodies in relation to financial
transactions;
(k) fees payable to and expenses in connection with any dealing with, the
Superannuation Regulator or other government entity;
(l) stamp duties and similar imposts;
(m) costs of preparing, printing and issuing of confirmations, accounts, other
statements, taxation information, cheques, notice or any other document or report
sent to Members or Participating Employers in accordance with the provisions of
this Deed or the Superannuation Law;
(n) costs of postage of all cheques, accounts, notices and other documents posted to
Participating Employers, Members;
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(o) disbursements and costs incurred by or on behalf of the Trustee or in connection
with the retirement of the Trustee under this Deed and the appointment of a new
trustee and anything ancillary or incidental to such retirement or appointment;
(p) except where the court otherwise directs, disbursements and costs by or on behalf
of the Trustee in or in connection with the initiation, carriage and settlement of
any court proceedings (including any negotiations and demands relating to any
such proceedings) arising in respect of the operation of the Fund;
(q) costs and disbursements incurred in amending the Deed;
(r) all rates, taxes, charges, surcharges, assessments and impositions whatsoever
(whether parliamentary, municipal or otherwise and whether assessed, charged or
imposed by or under Federal or State law or by Federal, State or Local Authorities
and whether on a capital or revenue value or any other basis and even though of a
novel character) which are assessed, charged or imposed (or the Trustee
determines may be assessed, charged or imposed) in respect of the Fund, any part
of the Fund or the provision of any goods and services to the Fund;
(s) costs of the preparation and lodgment of any statutory returns;
(t) any remuneration payable to the Trustee;
(u) the cost of premiums payable under any policy of insurance effected by the
Trustee for the purpose of indemnifying the Trustee or its directors against any
personal liability that any of them may incur in the administration or investment
of the Fund;
(v) costs of preparing, printing, lodging and issuing any brochures or Offer Document
advertising the Fund and otherwise incurred in marketing and advertising the
Fund including, without limitation, legal, accounting, consulting and other fees;
(w) any other disbursements properly incurred in the administration of the Fund.
9.2 Payment of Expenses
(a) The Trustee may pay (or reimburse itself or any other party for) any Expenses
from the Fund’s assets. However the Trustee must not pay or reimburse itself for
Expenses out of the Fund’s assets attributable to a MySuper Class, where
Superannuation Law does not permit those Expenses to be charged in respect of a
MySuper Product.
(b) The Trustee may account for the Expenses paid or payable from the Fund by:
(i) deducting any Expenses from income of the Fund which has not been
allocated;
(ii) debiting the Reserve Account;
(iii) debiting amounts from Retirement Credits and any Unallocated Accounts
maintained under clause 5.9,
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as determined by it from time to time, for Expenses generally or for any particular
Expense or class of Expenses.
9.3 Charges
(a) The Trustee may in its discretion from time to time levy charges for entry into the
Fund, exit from the Fund, the administration of the Fund, the switching of
investment strategies or for any other purpose determined by the Trustee.
However, the Trustee must not levy a charge of a type or for a purpose that is not
permitted under Superannuation Law.
(b) Any charges levied may be applied, as determined by the Trustee:
(i) as remuneration of the Trustee;
(ii) to cover any Expense (partly or wholly).
(c) Despite the preceding provisions in this clause 9.3, in respect of a MySuper Class
the Trustee must:
(i) only impose fees and charges of one or more of the following kinds:
(A) Administration Fee;
(B) Investment Fee;
(C) Buy-Sell Spread;
(D) Switching Fee;
(E) Exit Fee;
(F) Activity Fee;
(G) Insurance Fee;
(H) any other fee or charge permitted under Superannuation Law;
and
(ii) only charge an amount of each of the Permitted Fees calculated in
accordance with, and in the circumstances prescribed in, the Charging
Rules.
(d) The Trustee may charge lower Administration Fees in respect of a sub-plan of a
Participating Employer than are charged in respect of other Members holding
MySuper Interests in the same MySuper Class where:
(i) the arrangement between the Participating Employer and the Trustee in
relation to the Participating Employer’s terms of participation specifies
the lower Administration Fees; and
(ii) the lower Administration Fees are charged in accordance with the
Charging Rules.
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10 CONTRIBUTIONS
10.1 Employer Contributions
(a) In this clause 10.1 the following words have the following meanings:
“Active Employment” means active continuous attendance by a Member to
normal duties as an Employee of an Employer, and “Actively Employed” has a
corresponding meaning.
“Annual Base Earnings” means the annual rate of a Member’s base earnings as
at the coincident or last preceding Review Date (or the date the Member last
became a Member if that is later) but while a Member is on leave of absence
without pay the Member’s Annual Base Earnings is the annual rate of the
Member’s Salary as at the Review Date coincident with or immediately preceding
the beginning of that leave (or the date the Member last became a Member if that
is later) or such other amount (if any) as the Trustee determines.
“Base Earnings” means the salary, wages or other remuneration periodically
received by a Member in respect of the time worked in ordinary hours:
(i) including:
(A) shift work penalties in the case of a shift worker;
(B) payments which are made for the purpose of district or location
allowances;
(C) any other rate paid for the purposes of the award to which the
Member is entitled for ordinary hours of work;
(ii) not including any payment which is of a similar nature to or is paid for
the same reasons as, or is paid in lieu of, payments for overtime,
disability payments, vehicle allowances, fares or travelling time
allowances (including payments made for travelling related to distant
work), commission or bonus,
but in special circumstances, the Member’s Base Earnings shall be such other
amount, not exceeding the Member’s actual earnings, as the Trustee in
consultation with the Participating Employer may from time to time determine.
“Employed” in relation to a Member includes:
(i) each period in respect of which accident pay is payable and any period
agreed upon in respect of which workers’ compensation is payable,
subject to a maximum of twenty-six (26) weeks for each separate
accident; and
(ii) each period of leave in respect of which the Member is entitled to be
paid.
“Review Date” means 1 January and 1 July in each year.
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(b) Subject to this Deed, each Participating Employer shall contribute to the Fund for
each Member employed by that Participating Employer, from the commencement
of that Member’s membership, whichever of the following amounts (whether or
not calculated by reference to a rate or percentage of Annual Base Earnings) is
applicable:
(i) an amount ratified from time to time by an industrial tribunal;
(ii) if clause 10.1(b)(i) is not applicable, the amount payable from time to
time under any agreement made by the Participating Employer.
(c) The Trustee may accept for the credit of a Member, in place of any contributions a
Participating Employer may otherwise be obliged to pay, a shortfall component as
defined in the Superannuation Guarantee (Administration) Act 1992.
10.2 Member Contributions
(a) A Member may contribute any amount if the Trustee agrees.
(b) A Member who is an Employee is not obliged to contribute to the Fund.
(c) Where a Member who is an Employee of a Participating Employer has agreed to
pay regular contributions, the Trustee may arrange with the Participating
Employer for the Member’s contributions to be deducted by the Participating
Employer from the Member’s salary.
(d) Despite the preceding provisions of this clause 10.2, where a Participating
Employer on admission to participation notifies the Trustee that Employees of
that Participating Employer who become Members are required to contribute to
the Fund, those Members must contribute to the Fund on the basis prescribed
unless the Participating Employer subsequently notifies the Trustee (either
generally or in relation to a particular Employee or group of Employees) that
Member contributions need not be made.
10.3 Contributions by other persons
Any person may otherwise make such contributions for the credit of a Member as the
Trustee accepts and Superannuation Law permits.
10.4 Payment of Contributions
(a) A contribution may be paid in cash or by transfer of assets which are Authorised
Investments to the Fund. The person paying the contribution is responsible for
payment of all stamp duty, brokerage fees, commission and other costs, charges
and expenses in respect of the transfer.
(b) The Trustee:
(i) may refuse to accept all or any part of any contribution from any person
without giving any reason;
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3470-0456-6018v23
(ii) must refuse to accept a contribution where the Trustee is aware that
Superannuation Law prohibits acceptance of the contribution by the
trustee of a Regulated Superannuation Fund;
(iii) where under Superannuation Law the Trustee is required to refund all or
part of an amount paid to the Trustee as a contribution, must refund that
amount;
(iv) may make such adjustments to an amount refunded as the Trustee
considers appropriate and Superannuation Law permits.
10.5 Cessation of contributions
Contributions must cease to be made for a Member:
(a) when the Member’s membership ceases; or
(b) where Superannuation Law prohibits the acceptance of contributions for the
Member.
11 BENEFITS
11.1 Payment of Benefits
The amount of a benefit payable under this Deed is determined in accordance with this
clause 11.
11.2 Deduction of Tax from Benefits
The Trustee may deduct from any benefit any amount on account of Tax paid or payable in
relation to the benefit of the Member as the Trustee determines, and the recipient is entitled
to receive only the net benefit after deduction of any such Tax.
11.3 Reduction of Benefit payable
If at any time:
(a) the Trustee is of the opinion that it is not reasonably practicable to obtain
insurance or an increase in insurance or to maintain insurance in respect of a
Member under a Policy of Insurance on terms acceptable to the Trustee; or
(b) pursuant to the Policy of Insurance the insurer for any reason whatsoever fails to
provide, or reduces, terminates or withholds, insurance in respect of a Member, or
refuses to admit a claim for the whole or part of the insurance covering a Member,
the amount of the Insured Benefit applicable to the Member is limited to the amount (if
any) the insurer agrees to pay.
11.4 Benefits payable to Members
A benefit becomes payable in respect of a Member when the Member:
(a) Retires;
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3470-0456-6018v23
(b) attains age 65 and asks the Trustee to pay the benefit;
(c) attains an age at which a benefit is payable under the terms of a Defined Benefit
Agreement applicable to the Member;
(d) dies;
(e) suffers Total and Permanent Disablement, where a benefit is payable on Total and
Permanent Disablement under the terms of a Policy of Insurance applicable to the
Member, subject to clause 11.5B(b);
(f) suffers Total Disability, where a benefit is payable on Total Disability under the
terms of a Policy of Insurance applicable to the Member;
(fa) suffers Permanent Incapacity (whether or not a benefit is also payable for Total
and Permanent Disablement);
(fb) suffers a Terminal Medical Condition (whether or not a benefit is also payable for
Total and Permanent Disablement);
(g) otherwise ceases Service with a Participating Employer and asks the Trustee to
pay the benefit,
or where Superannuation Law otherwise permits payment of the benefit and the Trustee
agrees to pay the benefit, subject to clause 11.6(c).
11.5 Amount of benefit payable
(a) Where a benefit is payable in respect of a Member other than on Total Disability:
(i) for a Defined Benefit Member, the amount of the benefit is the Member’s
Accrued Benefit;
(ii) for a Member other than a Defined Benefit Member, the amount of the
benefit is equal to the Member’s Retirement Credit.
(b) Where a benefit is payable in respect of a Member pursuant to Total Disability,
the amount of and terms on which the benefit is paid will be in accordance with
the Policy of Insurance pursuant to which the benefit is paid.
(c) To avoid doubt, clause 0(a)(ii) is subject to any arrangement under clause 12.1.
11.5A Insured Benefits for MySuper Class
The Insured Benefits available to Members holding a MySuper Interest must comply with
the requirements of Superannuation Law.
11.5B Total and Permanent Disablement benefits for TPD Class
(a) The Trustee may at any time determine:
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3470-0456-6018v23
(i) a class, category or group of Members whose entitlement to claim
benefits for Total and Permanent Disablement is governed by this
clause 11.5B (“TPD Class”); and
(ii) a commencement date for that TPD Class (“Commencement Date”),
which must be not less than seven days after the date the Trustee makes
the determination.
(b) A Member in a TPD Class, who satisfies the definition of Total and Permanent
Disablement under a Policy of Insurance applicable to the Member, is only
entitled to a benefit for that Total and Permanent Disablement if:
(i) the Date of Disablement is before the Commencement Date for that TPD
Class; or
(ii) where the Date of Disablement is on or after the Commencment Date for
that TPD Class, the Member gives the Trustee the first Disablement
Claim, in respect of the particular illness or injury or other ill-health to
which the claim for a Total and Permanent Disablement benefit relates,
no later than five years after the Date of Disablement.
(c) The Trustee must not assess a Disablement Claim that is given to the Trustee after
the time prescribed in clause 11.5B(b)(ii).
(d) In this clause 11.5B:
“Commencement Date”, for a TPD Class, means the date determined by the
Trustee under clause 11.5B(a)(ii) in respect of that TPD Class.
“Date of Disablement” in respect of a definition of Total and Permanent
Disablement, has the meaning given in Appendix A.
“Disablement Claim” means a notice to the Trustee, in a form prescribed or
accepted by the Trustee, that a Member requests payment of a benefit for Total
and Permanent Disablement.
“TPD Class” means any class, category or group of Members, identified by the
Trustee for the purposes of a determination under clause 11.5B(a)(i).
11.6 Severe Financial Hardship and Compassionate Grounds
(a) The Trustee may pay an amount from the Fund to or for the benefit of the
Member or the Member’s Dependants where:
(i) the Member has requested payment of the amount;
(ii) the Member or the Member’s Legal Personal Representative has satisfied
the Trustee that the amount is required on a Compassionate Ground; and
(iii) Superannuation Law permits.
(b) The Trustee may pay an amount from the Fund to or for the benefit of the
Member or the Member’s Dependants where:
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3470-0456-6018v23
(i) the Member has requested payment of the amount;
(ii) the Member or the Member’s Legal Personal Representative has satisfied
the Trustee that the amount is required on the grounds of the Member’s
Severe Financial Hardship occurring before 1 January 2014; and
(iii) Superannuation Law permits.
(c) From 1 January 2014 no benefit is payable on the grounds of a Member’s Severe
Financial Hardship, unless the Member met the requirements for a person to be
taken to be in Severe Financial Hardship before 1 January 2014.
11.7 Deferral of benefit payments
(a) If a Member requests, the Trustee may defer payment of all or part of the
Member’s benefit.
(b) Where payment of a Member’s benefit is deferred, the Trustee may (subject to
Superannuation Law) continue to accept contributions for the Member.
(c) If a Member requests, the Trustee must (subject to Superannuation Law) pay all or
any part of the Member’s deferred benefit.
11.8 Death benefits
(a) The Trustee may offer Members (other than a Member who has nominated a
Reversionary Beneficiary) the option of making a Binding Nomination.
(b) A Member (other than a Member who has nominated a Reversionary Beneficiary)
may nominate any one or more of their Dependants or Legal Personal
Representative to receive any part or all of the benefit payable on their death,
where the Member’s nomination is not binding on the Trustee.
(c) A Member may change a Binding Nomination or other nomination at any time in
a form approved by the Trustee for that purpose.
(d) On the death of a Member:
(i) where there is a Reversionary Beneficiary, the Trustee must pay the
death benefit as a pension to the Reversionary Beneficiary;
(ii) where there is a Binding Nomination, the Trustee must pay the benefit to
the person or persons nominated, and if more than one person is
nominated in the proportions specified;
(iii) otherwise, the Trustee must pay the benefit to such of the Member’s
Dependants or Legal Personal Representative, in such proportions, as the
Trustee determines.
(e) If the Trustee after making reasonable enquires is unable to identify any
Dependants or Legal Personal Representative of a deceased Member, the Trustee
may pay the benefit to any individual who in the Trustee’s opinion has a fair claim
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3470-0456-6018v23
to the benefit, where the benefit can be paid to that person in accordance with
Superannuation Law.
11.9 Partial payments
(a) Despite any other provision of this clause 11 but subject to Superannuation Law,
the Trustee may impose conditions and restrictions on partial payment of benefits,
including (for example):
(i) limits on how often partial payments are made;
(ii) a minimum amount for a partial payment;
(iii) a minimum balance that must remain in the Member’s Retirement Credit
after a partial payment.
(b) If a Member requests, the Trustee may pay an amount out of the Member’s
Retirement Credit which comprises unrestricted non-preserved benefits (subject to
Superannuation Law and clause 11.9(a)).
11.10 Benefit payment standards
Notwithstanding any other provisions of this Deed, any benefit which is a Preserved
Benefit must be either:
(a) retained in the Fund until cashing of the benefit is permitted or required by
Superannuation Law;
(b) rolled over to another Superannuation Entity; or
(c) used to purchase a non-commutable life pension or life annuity in accordance with
Superannuation Law.
11.11 Form of benefit payments
A benefit is payable as a lump sum, unless:
(a) the benefit is a reversionary pension; or
(b) the person entitled to the benefit requests and the Trustee agrees that all or part of
the benefit is to be paid as a pension.
11.12 Payment of lump sum benefits
Where a benefit is payable as a lump sum, the Trustee:
(a) must pay the benefit as soon as practicable after it becomes payable; and
(b) may pay the benefit in more than one instalment.
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11.13 Payment of pension benefits
(a) Where a benefit is payable as a pension, the Trustee may:
(i) pay the pension from the Fund; or
(ii) use the benefit to purchase a pension or an annuity;
(iii) rollover the benefit to a Superannuation Entity nominated by the
Member.
(b) Where a benefit is paid as a pension, the terms of the pension must comply with
Superannuation Law applicable to allocated pensions, market linked pensions or
account based pensions. The terms of a market linked pension must also comply
with the Social Security Act 1991 unless the Trustee determines otherwise.
(ba) The Trustee may offer the person entitled to a pension benefit such options in
relation to:
(i) the annual amount of the pension;
(ii) the frequency of pension payments;
(iii) the term for which the pension is payable;
(iv) nomination of a Reversionary Beneficiary:
(A) on commencement of the pension; or
(B) if the Trustee permits, at any time during the term of the
pension,
as Superannuation Law applicable to the pension permits, and the person may
select from the options offered.
(c) The amount of and frequency of the instalments of a pension, and the terms on
which payment is made, may be varied from time to time by the Trustee in
accordance with any standards prescribed by Superannuation Law applicable to
the pension.
(d) The Trustee may commute to a lump sum all or part of the capital value of an
allocated pension or account based pension, other than a pension which is a
transition to retirement income stream, at any time at the request of the person
entitled. The Trustee may otherwise commute all or part of a pension as permitted
by Superannuation Law. On commutation on any part of a pension, the Trustee
must adjust the amount of the subsequent pension payments to take account of the
commutation.
(e) On the death of:
(i) a Member in receipt of a pension where there is no Reversionary
Beneficiary;
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(ii) a Reversionary Beneficiary (other than in receipt of a market linked
pension),
the Trustee must pay the remaining balance in the Member Account as a death
benefit of the Member.
(f) On the death of a Spouse of a Member in receipt of a market linked pension as a
Reversionary Beneficiary, the Trustee must pay the remaining balance in the
Member Account either:
(i) as a death benefit of the Member; or
(ii) to one or more of the Spouse’s Dependants (and if more than one in
proportions determined by the Trustee) or to the Spouse’s Legal Personal
Representative.
11.14 Payment to a Superannuation Entity
The Trustee may satisfy an entitlement to a benefit by paying the benefit to another
Superannuation Entity in accordance with clause 13.
11.15 Release to Trustee
The Trustee may require any person to whom an amount is paid or payable under this Deed
to give the Trustee a receipt and release for the amount in a form prescribed by the Trustee.
A receipt and release given by any such person is a complete discharge to the Trustee for
the amount paid.
11.16 Evidence of entitlement to benefits
(a) Any person claiming a benefit from the Fund must on request by the Trustee
produce to the Trustee such information or evidence, and execute such documents,
as the Trustee reasonably requires to establish the person’s entitlement to the
benefit.
(b) The Trustee when deciding a person’s entitlement to a benefit may rely on proofs
or presumptions the Trustee considers satisfactory whether or not the proofs or
presumptions relied on are strictly legal proofs or presumptions.
(c) The Trustee may refuse to pay a benefit to any person until the Trustee’s
requirements for information, evidence or documents have been complied with to
the Trustee’s satisfaction.
11.17 Incapacity
Where a person to whom a benefit is payable is under a legal disability or is in the
Trustee’s opinion incapable of managing their own affairs for any reason, the Trustee may:
(a) pay the benefit to another person on trust for the person entitled to the benefit, or
otherwise to be used for the advantage of the person entitled to the benefit; and
(b) accept the other person’s receipt as a valid discharge to the Trustee of its
obligations in respect of the payment of the benefit.
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11.18 Transfer to Eligible Rollover Fund
Subject to any applicable Superannuation Law, the Trustee may pay the amount of a
Member’s Retirement Credit to an Eligible Rollover Fund in any circumstances which the
Trustee may from time to time determine are the circumstances in which a Member’s
Retirement Credit will be paid to an Eligible Rollover Fund.
11.19 Payment Splits
(a) Despite any other provision in this Deed or the terms of any agreement in relation
to a Member’s benefits, where the Trustee:
(i) creates a new interest for the Spouse or former Spouse of a Member to
give effect to a Payment Split; or
(ii) transfers or rolls over the entitlement of the Spouse or former Spouse of a
Member under a Payment Split,
the Trustee must reduce the amount of the Member’s benefit by an amount
determined by the Trustee in accordance with the Family Law Requirements to
account for the interest or entitlement of the Member’s Spouse or former Spouse.
(b) On the death of a person:
(i) who is a Non-Member Spouse of a Member;
(ii) who is not a Member; and
(iii) in respect of whom a Payment Split is in operation in relation to the
Member’s benefit,
the Trustee must pay the amount of the Non-Member Spouse’s interest under the
Payment Split, calculated in accordance with the Family Law Requirements,
under clause 11.8 as if the Non-Member Spouse were a Member or as otherwise
prescribed under the Family Law Requirements.
(c) In this clause 11.19:
“Family Law Act means the Family Law Act 1975 (C’wlth).
“Family Law Requirements” means any requirements under:
(i) the Family Law Act and the regulations to that Act;
(ii) Superannuation Law; or
(iii) any other legislation,
in relation to superannuation benefits of parties or former parties to a marriage
and incidental matters.
“Non-Member Spouse” has the meaning given by Section 90MD of the Family
Law Act.
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“Payment Split” has the meaning given by Section 90MD of the Family Law
Act.
12 TRANSFER FROM ANOTHER FUND
12.1 Arrangements for transfer to the Fund
(a) The Trustee may make arrangements with:
(i) any Member or prospective Member;
(ii) any Participating Employer;
(iii) any employer or former employer of a Member or prospective Member;
and
(iv) any Superannuation Entity, or the trustee or administrator of any other
superannuation scheme,
in relation to the transfer or rollover to the Fund of any superannuation entitlement
of any Member or prospective Member or any group of Members or prospective
Members.
(b) To avoid doubt, arrangements that the Trustee may make include (where
Superannuation Law permits) an arrangement that all or part of the
superannuation entitlement transferred or rolled over to the Fund does not form
part of the Member’s Retirement Credit, or otherwise is not payable as a benefit of
the Member, unless the Member satisfies a condition specified in the arrangement.
12.2 Member’s consent
The Trustee must not give effect to an arrangement referred to in clause 12.1 unless it is
satisfied that the Member gave written consent to the transfer or rollover of the entitlement
to the Fund or that under Superannuation Law their written consent is not required.
12.3 Value of transfer
Subject to any arrangement made pursuant to clause 12.1, the Trustee must determine the
value of any payment, assignment or transfer of assets for the credit of a Member or group
of Members and credit the value so determined to provide additional benefits for that
Member or those Members respectively.
13 TRANSFER TO ANOTHER FUND
13.1 Member or Employer may request transfer
The Trustee may pay to a Superannuation Entity any amount comprising the Retirement
Credit or Accrued Benefit (or part of the Retirement Credit or Accrued Benefit) of:
(a) a Member, at the request of the Member or the Member’s Participating Employer;
(b) in the case of a Provisional Member, at the request of the Provisional Member’s
Participating Employer.
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13.2 Member’s consent to transfer out
The Trustee must not pay an amount pursuant to clause 13.1 at the request of a
Participating Employer unless:
(a) the Trustee has received the Member’s or Provisional Member’s written consent
to the payment; or
(b) the Member’s or Provisional Member’s written consent is not required pursuant to
the Superannuation Law.
13.2A Transfers without member consent
The Trustee may pay to a Superannuation Entity any amount comprising the Retirement
Credit or Accrued Benefit of a Member or Provisional Member (or any part of the
Retirement Credit or Accrued Benefit) without the consent of the Member or a
Participating Employer, where:
(a) Superannuation Law permits the transfer; and
(b) the Trustee is of the opinion that the transfer is in the best interests of the Member
or Provisional Member.
13.2B Partial transfers
Subject to Superannuation Law, the Trustee may impose conditions and restrictions on
partial transfers, including (for example):
(a) limits on how often partial transfers are made;
(b) a minimum amount for a partial transfer;
(c) a minimum balance of the Member’s Retirement Credit that must remain after a
partial transfer.
13.3 Transfer of assets
The Trustee may pay an amount under clause 13.1 by transfer of any of the Fund’s assets.
Any Expenses associated with the transfer, including (but not limited to) stamp duty,
brokerage fees and commission, must be paid by the Member or the Employer or deducted
from the amount transferred.
13.4 Receipt sufficient discharge
The receipt of any entity which appears to the Trustee to be responsible for the
management of the Superannuation Entity to which an amount is paid or transferred under
clause 13.1 is sufficient discharge to the Trustee, and neither the Trustee nor the
Participating Employer is in any way responsible or liable for the application of that
amount.
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14 ACCOUNTS AND AUDIT
14.1 Records to be kept
The Trustee must keep or cause to be kept a complete record of such matters as are
required to comply with its obligations under this Deed and Superannuation Law,
including (but not limited to):
(a) minutes of all meetings of directors of the Trustee;
(b) changes of Trustee or the directors of the Trustee;
(c) reports to Members;
(d) entry and withdrawal of Members.
14.2 Accounting Records
The Trustee must:
(a) keep such accounting records as correctly record and explain the transactions and
financial position of the Fund;
(b) keep the accounting records so as to enable:
(i) the preparation of accounts, statements and returns of the Fund as
prescribed by Superannuation Law;
(ii) the accounts, statements and returns to be conveniently and properly
audited.
14.3 Accounts
The Trustee must:
(a) prepare as at the end of each Financial Year such accounts and statements of the
Fund as are prescribed by Superannuation Law;
(b) make such arrangements as are necessary to enable those accounts to be audited.
14.4 Auditor
(a) The Trustee must from time to time appoint a person who is an “approved
auditor” (as defined in section 10 of SIS) to audit the accounts and statements of
the Fund.
(b) The Trustee must ensure that, for each Financial Year, the Auditor audits the
accounts and statements of the Fund and reports in writing to the Trustee within
the time specified in the Superannuation Law.
(c) The Trustee shall fix the remuneration of the Auditor, and that remuneration is
payable as an Expense.
(d) The Trustee may at any time remove an Auditor from office.
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(e) The Auditor may retire from office on 1 Month’s notice to the Trustee, but must
not retire within a period of 3 Months before or after the end of a Financial Year
without the consent of the Trustee.
14.5 Auditor’s access
The Trustee must allow the Auditor access at all reasonable times to all the books and
records under the Trustee’s control, and give to the Auditor such information and
explanations as the Auditor requires for the performance of the Auditor’s duties.
14.6 Information for Members
The Trustee must provide such information to Members and Participating Employers in
relation to the records and accounts of the Fund as is prescribed as Superannuation Law.
15 REGISTERS
15.1 Participating Employers Register
The Trustee must keep in Brisbane, a Register of Participating Employers, in which the
Trustee will enter the following information:
(a) the name and address of each Participating Employer;
(b) the date on which the name of each Participating Employer was entered in the
Register;
(c) details of Members for whom the Participating Employer contributes;
(d) the date on which a Participating Employer ceases participation in the Fund;
(e) such other details as the Trustee determines.
15.2 Members Register
The Trustee must keep in Brisbane, a Register of Members, in which the Trustee will enter
such of the following information as the Trustee has available to it:
(a) the name, current residential address and date of birth of each Member;
(b) the date on which the name of each Member was entered in the Register as a
Member;
(c) the name of each Participating Employer which contributes for the Member;
(d) the date on which a Member ceases to be employed by the Employer Group;
(e) the date on which the Member benefit is paid;
(f) such other details as the Trustee determines.
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16 TERMINATION OF THE FUND
16.1 Circumstances of Termination
The Fund terminates on a date determined by the Trustee in any of the following
circumstances:
(a) If at any time during the term of the Fund any legislation is enacted having the
effect in the opinion of the Trustee of materially diminishing the amount of
income of the Fund available for distribution to the Members, and the Trustee
determines that the Fund shall be wound up;
(b) If the Trustee determines that it would be in the best interests of Members to
terminate the Fund;
(c) If the office of the Trustee becomes vacant for any reason and a new Trustee is
not appointed.
16.2 Termination Procedure
On termination of the Fund, the Trustee must:
(a) give notice in writing to all Participating Employers and Members that the Fund is
to terminate;
(b) pay any outstanding Expenses, including Expenses associated with termination of
the Fund, and make provision for any outstanding liabilities or anticipated
Expenses;
(c) realise the assets of the Fund;
(d) calculate the Retirement Credit or Accrued Benefit (“Interest in the Fund”) of
each Member as at the termination date, taking into account the realisable value of
the Assets of the Fund, the level of credit in the Reserve Account, any unallocated
earnings and any Expenses which remain outstanding.
16.3 Distribution
(a) The Trustee must on calculation of the Interest in the Fund of each Member:
(i) where a benefit has become payable in respect of the Member, pay the
amount of the Interest in the Fund as a benefit in accordance with this
Deed;
(ii) otherwise, notify the Member in writing of the amount of the Interest in
the Fund and request that the Member nominate within 1 Month of
receipt of the request a Superannuation Entity to which the Interest in the
Fund is to be transferred.
(b) The Trustee must use its best endeavours to obtain a nomination of a
Superannuation Entity from each Member.
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(c) The Trustee must pay or apply the Interest in the Fund of any Member in
accordance with the nomination received from the Member where the nominated
Superannuation Entity agrees to accept that amount.
(d) If the Trustee does not receive from any Member within the time period
prescribed a nomination which the Trustee is able to implement, the Trustee may
make such arrangements in relation to payment of the Member’s Interest in the
Fund as Superannuation Law permits.
(e) Despite the preceding provisions of this clause 16.3, the Trustee may pay or apply
the Interest in the Fund of a Member by transfer to another Superannuation Entity
selected by the Trustee, where:
(i) Superannuation Law permits the transfer; and
(ii) the Trustee is of the opinion that the transfer is in the best interests of the
Member.
16.4 Receipt for Distribution
A person entitled to a distribution on termination of the Fund is entitled to that distribution
only on delivery to the Trustee of such form of receipt and discharge as may be required by
the Trustee.
17 TRUSTEE’S INDEMNITY
17.1 Trustee’s entitlement to indemnity
Subject to clause 17.2, the Trustee:
(a) is not liable for any loss to the Fund arising from any act or omission by the
Trustee;
(b) is entitled to be indemnified out of the Fund for any liability or loss incurred by it
while acting as Trustee.
17.2 No indemnity for breach
Clause 17.1 does not apply to exempt the Trustee from liability for or indemnify the
Trustee against:
(a) a breach of trust where the Trustee:
(i) failed to act honestly in a matter concerning the Fund; or
(ii) intentionally or recklessly failed to exercise, in relation to a matter
affecting the Fund, the degree of care and diligence that the Trustee was
required to exercise; or
(b) a monetary penalty under a civil penalty order issued under SIS.
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17.2A Restriction on indemnity for operational risks
Clause 17.1 does not apply to allow the Trustee to indemnify itself:
(a) out of the assets of the Fund for any amount expended out of the capital of the
Trustee managed and maintained by the Trustee to cover the operational risk of
the Fund; or
(b) out of any assets of the Fund that do not form part of a reserve maintained for the
purpose of covering the operational risk relating to the Fund, any amount that
relates to that risk, without first exhausting the reserve and any other financial
resources managed and maintained by the Trustee to cover the risk.
17.3 Indemnity for Directors
References in this clause 17 to “Trustee” include directors of the Trustee acting in that
capacity.
17.4 Trustee not liable for actions Trustee is obliged to perform
The Trustee is not liable to any person for:
(a) doing or performing any act or thing which the Trustee is required to do or
perform; or
(b) failing to do or perform any act or thing which the Trustee is hindered, prevented
or forbidden from doing or performing,
by any statutory provision or a decree, order or judgment of any court of competent
jurisdiction.
17.5 Discharge on receipt by Trustee
The receipt of the Trustee or a person duly authorised by the Trustee in that behalf is a
sufficient discharge to any person for any money paid or other property transferred to the
Fund and such person is not obliged to enquire further as to the authority of the Trustee or
such person to receive the money or property.
18 LIMITATION ON LIABILITY OF PARTICIPATING EMPLOYERS AND
MEMBERS
18.1 No liability to make payments
Notwithstanding any other provision of this Deed, a Participating Employer or Member
does not by virtue of participation in the Fund have any liability to make any payment to
the Fund or payments to the Trustee.
18.2 No obligation to indemnify Trustee
No Participating Employer or Member shall be under any obligation personally to
indemnify the Trustee or any creditor of the Trustee in respect of any of the liabilities
(actual, contingent or otherwise and whether due to any deficiency or not) of the Trustee in
relation to, arising from or in connection with the Fund, whether arising from or by reason
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of participation in the Fund or any relationship with the Trustee arising from participation.
Any such liability is expressly excluded. The only rights, if any, of indemnity of the
Trustee and its respective creditors are limited to having recourse to the Fund.
19 AMENDMENT OF DEED
19.1 Permitted Amendments
The Trustee may at any time amend all or any of the provisions of this Deed (including this
clause), to take effect from a date before or after the date of the amendment, provided that
the amendment must not:
(a) permit the appointment of a person other than a Constitutional Corporation as
trustee unless the Deed is amended to provide and will continue to provide that
the Fund as its sole or primary purpose the provision of old age pensions; or
(b) reduce the amount of the benefit entitlement accrued in respect of a Member or a
benefit payable to a Member, or otherwise adversely affect the interests and
entitlements of any Member up to the date of the amendment, without that
Member’s written consent.
19.2 Amendments
Despite any other clause of this Deed, the Trustee may make any amendment to this Deed
which is necessary or desirable in order to comply with Superannuation Law or is
approved by the Superannuation Regulator.
19.3 Notification of Amendments
The Trustee must give to each Member the information concerning the changes effected by
any amendments of the Deed which must be given to that Member to comply with the
Superannuation Law. The failure to so notify a Member does not invalidate the
amendment in any way.
20 STATUTORY SUPERANNUATION SCHEME
If at any time during the continuance of the Fund there comes into existence any scheme
introduced by the Government of Australia or of any Australian State or Territory for
securing part or the whole of the benefits provided under the Fund, and a Participating
Employer or a Member is compelled to pay directly or indirectly any portion of the
contributions or other cost of such scheme, the Trustee may make such adjustments to the
obligations of any Participating Employer or Member to contribute to the Fund, and such
amendments to the Deed, as the Trustee determines.
21 GENERAL PROVISIONS
21.1 Notices
(a) Any notice which is required to be or which may be given to any Participating
Employer or Member may be delivered to the Participating Employer or Member
personally or sent through the post addressed to the Participating Employer or
Member at the address according to the records of the Trustee.
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(b) If sent by post a notice is deemed to have been delivered on the day following the
posting of the notice.
21.2 Prohibition on reversion of assets
No part of the Fund shall in any circumstances whatsoever revert to or be paid to the
Trustee or the Participating Employers or any of them, except as expressly provided in this
Deed.
21.3 Governing Law
All matters arising in relation to this Deed and the interpretation thereof shall be governed
by the law of the State of Queensland.
21.4 Workers’ Compensation not affected
(a) Nothing in this Deed in any way affects the right of a Member or Legal Personal
Representative or other person to claim damages or compensation for any accident
arising out of and in the course of a Member’s employment or payment for long
service leave.
(b) An amount payable under this Deed shall not be reduced by reason of any
payment that may be made in respect of damages or compensation or for sick
leave, but this clause 21.4(b) does not affect the terms of any Policy of Insurance
under which a benefit is payable.
21.5 Severance
(a) If any provision of this Deed is void or voidable or unenforceable or illegal, but
would not be void or voidable or unenforceable or illegal if it were read-down and
it is capable of being read-down, it shall be read-down accordingly.
(b) If notwithstanding clause 21.5(a), a provision of this Deed is void or voidable or
unenforceable or illegal:
(i) if the provision would not be void or voidable or unenforceable or illegal
as aforesaid if a word or words (as the case may be) were omitted, that
word or those words are hereby severed; and
(ii) in any other case, the whole provision is hereby severed,
and the remainder of this Deed has full force and effect.
21.6 Disputes
The Trustee must establish such procedures to deal with enquiries and complaints in
relation to the Fund by Members and other persons as it determines necessary to comply
with Superannuation Law.
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APPENDIX A
DATE OF DISABLEMENT FOR CLASSES OF MEMBERS UNDER CLAUSE
11.5B(a)(i)
A1 Date of Disablement definitions
“Date of Disablement”, for a Member in a TPD Class determined by the Trustee under
clause 11.5B(a)(i), means:
(a) in respect of the definition of Total and Permanent Disablement in clause A2
(specific loss) – the date:
(i) on which the Member suffers the loss of the use of two limbs (where ‘limb’
is defined as the whole hand or the whole foot), the sight in both eyes, or the
sight in one eye and the use of one limb; or
(ii) three months after a total and permanent deterioration or loss of intellectual
capacity;
(b) in respect of the definition of Total and Permanent Disablement in clause A3 (any
occupation (1)):
(i) the first day of the three month qualifying period being the day the Member
permanently ceases work solely as a result of an injury or sickness; or
(ii) for a Member who is Unemployed for less than six months this will be on
the first day of the three month qualifying period on which the Member is
medically certified by a Medical Practitioner that the injury or sickness is
preventing the Member from being able to work, even though work may not
be available at that time.
(c) in respect of the definition of Total and Permanent Disablement in clause A4 (any
occupation (2)):
(i) the first day the Member permanently ceased all work, solely as a result of
an injury or sickness; or
(ii) for a Member who is Unemployed for less than six months the date on
which the Member is medically certified by a Medical Practitioner that the
injury or sickness is preventing the Member from being able to work, even
though work may not be available at that time;
(d) in respect of the definition of Total and Permanent Disablement in clause A5
(specified Activities) – the first day of the three month qualifying period which
commences on the date on which the Member as a result of an injury or sickness
is unable to perform at least three Activities, and is not able ever again to perform
these three Activities and medical certification has been provided with respect of
that date;
(e) in respect of the definition of Total and Permanent Disablement in clause A6
(Medical Conditions):
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(i) the first day the Member ceased all work solely as a result of suffering one
or more of the listed Medical Conditions as certified by a Medical
Practitioner; or
(ii) for a Member who is Unemployed for less than six months the first day on
which the Member is certified by a Medical Practitioner as suffering one or
more of the listed Medical Conditions;
(f) in respect of the definition of Total and Permanent Disablement in clause A7
(Activities of Daily Living) – the first day on which the Member is unlikely to
perform at least two Activities of Daily Living as certified by a qualified Medical
Practitioner;
(g) in respect of any other definition of Total and Permanent Disablement:
(i) the date determined to apply in respect of that definition, as specified by the
Trustee;
(ii) if on the date a definition of Total and Permanent Disablement is adopted
the Trustee has not specified how the Date of Disablement is determined for
that definition – the first day the Member permanently ceased all work,
solely as a result of an injury or sickness.
A2 Total and Permanent Disablement – specific loss
For clause A1(a), “Total and Permanent Disablement” means:
As a result of an injury or sickness the Member has suffered, at the Date of
Disablement;
(a) the total and irrecoverable loss of:
(i) the use of two limbs; or
(ii) the use of the sight of both eyes; or
(iii) the use of one limb and the sight of one eye;
(where limb is defined as the whole hand or the whole foot); or
(b) the loss of Cognitive Function;
and
(c) the insurer, after considering all relevant evidence which is reasonably available,
then determines that the Member will be unable ever again to be gainfully
employed in any occupation for which he or she is reasonably suited by education,
training or experience.
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A3 Total and Permanent Disablement – any occupation (1)
For clause A1(b), “Total and Permanent Disablement” means:
Where a Member was Employed immediately prior to the Date of Disablement and solely by
reason of an injury or sickness:
(a) the Member is unable to perform his or her occupational duties for a period of three
consecutive months since the Date of Disablement solely due to the injury or sickness;
and
(b) the Member is under the care of, and following the advice and treatment of a Medical
Practitioner; and
(c) the insurer, after considering all relevant evidence which is reasonably available, then
determines that the Member will be unable ever again to be gainfully employed in his
or her usual occupation, or any other occupation for which he or she is reasonably suited
by education, training or experience;
A4 Total and Permanent Disablement – any occupation (2)
For clause A1(c), “Total and Permanent Disablement” means:
Where a Member who was Employed immediately prior to the Date of Disablement and
solely by reason of an injury or sickness:
(a) the Member has been continuously unable to perform his or her occupational
duties since the Date of Disablement and remains so at the Date of Lodgement
solely due to the injury or sickness; and
(b) the Member is under the care of, and following the advice and treatment of a
Medical Practitioner; and
(c) the insurer determines in its opinion that the Member, as at the Date of
Lodgement, will be unable ever again to be gainfully employed in any occupation
for which he or she is reasonably suited by education, training or experience.
The determination by the insurer under paragraph (c) is to be made after considering all
relevant evidence which is reasonably available to the insurer as at the Date of
Lodgement, including any education, training or experience acquired by the Member up
to the Date of Lodgement.
A5 Total and Permanent Disablement – specified Activities
For clause A1(d), “Total and Permanent Disablement” means:
Where the Member is not Employed immediately prior to the Date of Disablement and
solely by reason of an injury or sickness:
(a) the Member has not been able to perform at least three of the following Activities
for a period of three consecutive months after the Date of Disablement;
(i) Mobility
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(ii) Hearing
(iii) Communicating through speech
(iv) Seeing
(v) Lifting and carrying
(vi) Manual dexterity; and
(b) the Member is under the care of, and following the advice and treatment of a
Medical Practitioner; and
(c) the insurer, after considering all relevant evidence which is reasonably available,
then determines that it is likely, due to the injury or sickness, that the Member is
totally and permanently unable to perform (with Aids and adaptations) at least
three Activities; and
(d) the insurer, after considering all relevant evidence which is reasonably available,
then determines that the Member will be unable ever again to be gainfully
employed in any occupation for which he or she is reasonably suited by education,
training or experience.
A6 Total and Permanent Disablement – Medical Conditions
For clause A1(e), “Total and Permanent Disablement” means:
Where a Member was Employed immediately prior to the Date of Disablement and is
absent from all work and has been certified by a Medical Practitioner as being unable to
perform his or her occupational duties since the Date of Disablement:
(a) solely as a result of suffering one or more of the following listed Medical
Conditions;
(i) Primary Pulmonary Hypertension;
(ii) Major Head Trauma;
(iii) Motor Neurone Disease;
(iv) Multiple Sclerosis;
(v) Muscular Dystrophy;
(vi) Dementia and Alzheimer’s Disease;
(vii) Parkinson’s Disease; or
(viii) Chronic Lung Disease; and
(b) the insurer, after considering all medical evidence which is reasonably available,
then determines that the Member will be unable ever again to be gainfully
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employed in any occupation for which he or she is reasonably suited by education,
training or experience.
A7 Total and Permanent Disablement – Activities of Daily Living
For clause A1(f), “Total and Permanent Disablement” means:
Where a Member was a Former Chifley Super Member aged 67 or over at the Date of
Disablement and solely because of sickness or injury the Member is unlikely ever again
to be able to perform at least two of the following Activities of Daily Living as certified
by a qualified Medical Practitioner:
Bathing: the ability to wash or shower without the assistance of another person.
Dressing: the ability to put on and take off clothing without the assistance of another
person.
Feeding: the ability to get food from a plate into the mouth without the assistance of
another person.
Toileting: the ability to use the toilet, including getting on and off, without the
assistance of another person.
Mobility: the ability to get in and out of bed and a chair without the assistance of
another person.
A8 Other definitions in Appendix A
In this Appendix A, the following terms have the following meanings:
“Activities” means:
(a) Mobility: The ability to:
(i) Bend, kneel or squat to pick something up from the floor and straighten up
again and get into and out of a standard sedan car; or
(ii) To walk more than 200 metres at a normal pace on a level surface without
stopping due to breathlessness as a result of a medical condition or angina.
(b) Hearing: the ability to hear such that an audiologist can certify that the Member
has a hearing ability of less than or equal to 40db in the better ear (averaged over
the frequencies 0.5, 1, 2 and 3 KHz) in an audiometry test.
(c) Communicating through speech: The ability to speak with sufficient clarity to be
able to hold a conversation in a quiet room in the Member’s first language. This
involves understanding a simple message and relaying that message to another
person.
d) Seeing: the ability to see even when tested with visual aids, such that an
ophthalmologist can certify that the Member’s visual acuity is better than 6/60 in
the better eye or a visual field of greater than 10 degrees (i.e not legally blind).
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(e) Lifting and carrying: The ability to lift (from bench height) and carry a 5kg weight
a distance of ten metres and place the item back down at bench height.
(f) Manual dexterity: The ability to use:
(i) at least one hand to pick up and/or manipulate small objects such as picking
up a coin from a desk, using cutlery or fastening buttons; or
(ii) a pen or pencil or keyboard to write a short note that can be understood by
another person.
Where a Member is unable to perform one or more of the Activities upon the date cover
commences, that Activity shall not be taken into consideration for TPD assessment.
“Aids and adaptations” means equipment or fixtures to assist a Member without the
assistance of another person to carry out Activities.
“Cognitive Function” means intellectual capacity, loss of which requires the Member
to be under the continuous care and supervision of another adult person for at least three
consecutive months and, at the end of that three month period, they are likely to require
permanent ongoing continuous care and supervision by another adult person.
“Date of Lodgement” means the date the Member lodges a claim for a Total and
Permanent Disablement benefit with the Trustee under the definition in clause A4 and
provides all mandatory documentation required by the insurer in relation to the claim to
commence assessment.
"Domestic Duties" means where the Member has chosen to remain at home and
perform unpaid home duties as their primary occupation. The choice to remain at home
should not be due to unemployment or as a result of a sickness or injury.
“Employed” means:
(a) the Member is engaged under a contract of employment with an Australian
employer, (which includes on secondment or transfer to an international
subsidiary or an associated or affiliated company of an Australian employer); or
(b) the Member is a Self-Employed Person and earning an income under an ABN
registered entity; or
(c) the Member has been Unemployed for less than six months; or
(d) the Member has been on Unpaid Leave for less 24 months with an Australian
employer; or
(e) the Member is working for an overseas employer for at least 15 hours per week;
or
(f) the Member is engaged in unpaid Domestic Duties in their own home.
“Former Chifley Super Member” means a member of Chifley Super on the 31st
December 2013 who transferred to the Fund on 1 January 2014.
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“Medical Condition” means a medical condition listed in Appendix B.
"Medical Practitioner" means a legally qualified and registered medical practitioner. It
does not include an Employer of the Member, the Member, or a member of the
Employer’s or the Member’s immediate family or business partner.
“Self-Employed Person” means a person who operates a business or profession as a
sole proprietor, partner in a partnership, independent contractor or consultant and
reports income earned from self-employment.
“Unemployed” means a person without a paid job but is available to work.
“Unpaid Leave” in relation to a Member, means leave (not being cessation of
employment) without pay from the Member’s Employer:
(a) that is:
(i) approved by that Employer; or
(ii) authorised by:
(A) the Commonwealth, a State or a Territory; or
(B) a certified agreement or award made by a tribunal or body having the
authority to do so under a law of the Commonwealth, a State or a
Territory;
(b) in relation to which that person has a statutory or contractual right to resume
employment at the end of the leave; and
(c) in relation to which the person is not being paid by the Employer,
but excludes leave:
(d) due to injury or sickness of that Member; or
(e) during which that Member receives or is entitled to receive income benefits under
any statutory benefits scheme such as workers’ compensation or any industrial
award; or
(f) during which that Member receives or is entitled to receive disability income
benefits from a superannuation fund including the Fund or under a Policy of
Insurance or from any personal sickness and/or accident insurance policy; or
(g) during which the Member is or is entitled to receive social security sickness
benefits; or
(h) due to strike or lockout.
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APPENDIX B
MEDICAL CONDITION DEFINITIONS
Medical Condition Definition
“Chronic Lung Disease” means end stage respiratory failure requiring permanent oxygen
therapy with FEV 1 test results consistently showing less than one
litre.
“Dementia / Alzheimer’s
Disease”
means the diagnosis of dementia as confirmed by a consultant
neurologist or geriatrician resulting in significant cognitive
impairment. Significant cognitive impairment means deterioration in
the Member’s mini-mental state examination, or equivalent thereof,
scores to 20 or less.
“Major Head Trauma” means an accidental head injury resulting in permanent neurological
deficit, resulting in the Member suffering at least a 25% impairment
of whole person function as defined in Guides to the Evaluation of
Permanent Impairment 5th edition, American Medical Association.
Diagnosis must be confirmed by a consultant neurologist
“Motor Neurone Disease” means the unequivocal diagnosis of motor neurone disease
confirmed by a consultant neurologist.
“Multiple Sclerosis” means the unequivocal diagnosis of multiple sclerosis confirmed by
a consultant neurologist
“Muscular Dystrophy” means the unequivocal diagnosis of muscular dystrophy, confirmed
by a consulting neurologist
“Parkinson’s Disease” means the unequivocal diagnosis of idiopathic Parkinson’s disease
as confirmed by a consultant neurologist. All other types of
Parkinsonism are excluded (e.g. secondary to medication or
Parkinson-plus syndromes).
“Pulmonary Hypertension
(Primary)”
means primary pulmonary hypertension associated with right
ventricular enlargement established by cardiac catheterisation and
echocardiography, resulting in significant irreversible physical
impairment of at least Class III of the New York Heart Association
classification of cardiac impairment.
Pulmonary Hypertension in association with chronic lung disease is
specifically excluded.
Other forms of hypertension (involving increased blood pressure)
are specifically excluded.
The New York Heart Association classifications are:
Class I – no limitation of physical activity, no symptoms with
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Medical Condition Definition
ordinary physical activity.
Class II – slight limitation of physical activity, symptoms occur with
ordinary physical activity.
Class III – marked limitation of physical activity and comfortable at
rest, symptoms occur with less than ordinary physical activity.
Class IV – symptoms with any physical activity and may occur at
rest, symptoms increased in severity with any physical activity.