• Late Election since 1975 CSS
• Late Election 1959-1975 No 1
• Late Election 1959-1975 No 2
• Late Election Guidelines
• Late Election - Some Cases

• Comsuper Ready Reckoner Disk
• Super Surprise Visits

A late election is a late decision to preserve CSS superannuation benefits after having decided, and taken, a lump sum on termina tion. The late election is one outside the 3 months provided in the Act. The AAT and Comsuper have accepted late elections up to 20 years after the decision was made. A number of staff who resigned from Commonwealth employment since 1975 have returned to Commonwealth employment.

These staff have realised, usually after reading about it in the CEPU journals, that they probably made an bad decision when they resigned and took a lump sum refund of their superannuation payments. They usually were unaware of the very valuable employer payments and the benefits associated with the employer monies.

The CEPU has been successful in having the late elections accepted and members have had their benefits restored. Contact your branch for assistance.

SUPER: LATE ELECTION 1959 AND 1970 No 1

A late election may also be possible prior to 1975. In one representation to Comsuper, a member's application was initially refused. Following CEPU assistance, the member received the reply below:

"In previous correspondence to this office you have sought to have your service between 1959 and 1970 with the Postmaster's General Department taken into account for the purposes of determining your superannuation benefit.

"2. When you resigned from your employment with the Postmaster General's Department in 1970 you received a refund of your accumulated contributions from the superannuation scheme constituted under the Superannuation Act 1922. When you resumed this employment in 1971 under the terms of the legislation as it stood at that time it was not possible for this Office to recognise your prior service for benefit purposes.

3. Changes were made to the superannuation legislation effective from 25 May 1971 to allow persons who cease to be contributors to the scheme to preserve their existing superannuation rights. Transitional arrangements were also made at that time to allow persons who ceased to be scheme members between 1 Jan 1970 and 25 May 1971 to elect within a set time-limit to preserve their superannuation rights. You did not make an election within the statutory time-limit so your superannuation rights in respect of your service from 1959 to 1970 were no preserved.

4. The legislation permits an extension of time to be given to a person to preserve existing superannuation rights. It was initially the view of this office that a difficulty arose in determining whether the merits of any application by you for such an extension of time could be entertained. This view was held because the Commissioner for Superannuation who is invested with the general administration of the Commonwealth superannuation legislation was never expressly provided with the power to consider such an application from a person such as you who exited from the superannuation scheme between 1 Jan 1970 and 25 May 1971
The power to consider such an application was vested in the Commonwealth Superannuation Board which ceased to exist as at 1 July 1976 and that power was never expressly transferred to the Commissioner. You were advised to this effect in the letter from this office dated 10 Feb 1992. That advice has since been reviewed in light of submissions from the Telecommunications Officers Association (TOA) dated 19 Feb 1992.

"5. As noted in the attached letter to the TOA, this difficulty has been resolved in your favour - i.e. this Office is of the view that due to the application of section 15 of the Acts Interpretation Act 1901 to the legislation governing your application for an extension of time, the Commissioner is empowered to consider the merits of your application."

SUPER: LATE ELECTION 1959 AND 1970 No 2

The following letter from Comsuper may also assist members:

I refer to your letter of 18 September 1996, in which you seek to make a late election to preserve your superannuation benefits under the Superannuation Act 1922.

When you resigned on 2 January 1976, the superannuation legislation in force at that time (the Superannuation Act 1922) specified that you had to have completed a minimum of 20 years public employment at resignation, in order to be eligible to preserve your superannuation rights. As you had completed 19 years 339 days eligible employment at the time of your resignation, you did not have an automatic entitlement to preserve your benefits.

The only way in which it would have been possible for you to preserve your superannuation rights would have been if, at a date within 3 months of your resignation, you had been re-employed in public employment, and continued in public employment with out a break of more than 3 months at any time, until a total of 20 years eligible public employment had been completed. For your information a public employer was defined under the Superannuation Act 1922 as follows:-

"Bodies corporate (not being companies, societies or associations) established for a public purpose by or under laws of the Commonwealth, or a State or of a Territory of the Commonwealth. Incorporated companies established under laws of a State or of a Commonwealth, the Government of a State or the Administration of a Territory has a controlling interest".

The conditions governing preservation of superannuation entitlements were explained on the form SB2A which you would have completed when you resigned in 1976 in order to have received a refund of your contributions.

CSS LATE ELECTION GUIDELINES

The following guidelines were approved by Comsuper on 5 Sept 1996.

GUIDELINES APPLICABLE TO LATE ELECTIONS FOR PRESERVATION OF SUPERANNUATION RIGHTS LODGED UNDER s.157(1) OF THE SUPERANNUATION ACT 1976

The Board is of the view that, notwithstanding any current views about the adequacy of forms S2A and S2R. it is not desirable for a late application to be granted solely or largely on the grounds that the applicant now claims not to have properly understood the form at the relevant time;
- in the absence of contrary evidence, completion of form S2A/S2R will be taken to signify an informed decision to select a refund and forgo preservation
- the expectation is that an applicant who may not have understood the choices available should have made inquiries prior to completing the form S2A/S2R. Failure to have made such inquiries without good reason will be taken as signifying an informed choice unless, had they sought advice on the options available from the appropriate official source relevant to their workplace or circumstances, they would have received materially erroneous or misleading advice that would have caused them to misunderstand their options

2. The Board is also of the view that it is generally desirable to grant a late election in cases where an application has been lodged promptly after an applicant has learned that a case for a late election might exist, and where the applicant can provide evidence, where appropriate, that:

(i) they were unable to understand the choice they were making at the time by reason of physical or mental incapacity, medical evidence needs to be provided to satisfy the Board that the incapacity was of sufficient severity to have prevented the applicant from making a reasoned decision

(ii) they were materially misinformed at a relevant time by an authoritative source upon which it was reasonable for them to rely concerning either the options available to them in their circumstances, or the substance of any particular relevant option. Corroboration of receipt of incorrect advice would lend support to an application. Such corroboration could be by way of evidence of prevailing practice, supportive statement from others with contemporary experience, evidence from parties directly involved, or other relevant evidence;

- an authoritative source would include ComSuper (or its predecessors) or the personnel area of the applicant's employer

- the incorrect advice could have been received on an individual basis or provided to all relevant employees, eg by way of a "handout" provided to all employees on termination.

(iii) they sought relevant advice from responsible official sources concerning available options but for no fault of their own, received no response prior to making the choice at the time;

(iv) they had no practicable access to official sources of advice concerning their options because of the particular circumstances of their location or employment or personal affairs at the relevant time;

(v) they did not select any option on the application form but the form was signed by the applicant, or an option was selected but the form was not signed by the applicant;

(vi) they established an interest, through the use to which the refund was put when received by the applicant, in making provision for his or her retirement, eg:
- where the applicant maintained the money through action such as a deposit in a bank account purchase of shares or rolled the money over to a roll-over facility or another Superannuation Fund or Scheme.
- where the funds were invested for long term return or gain (including in real estate or a business venture), as opposed to where the refund was applied to immediate consumption items such as holidays, household goods or consumer debt reduction. Evidence of such action and that the refund monies remain so invested would lend support to an application.

3. The Board would not usually consider it desirable to grant a late election

(i) where the applicant, in making his or her late election, has allowed more than three months to elapse since he or she first became aware that a ]ate election for preservation could be made, or
(ii) if the applicant had made enquiries and received correct advice at any time prior to resignation/termination

LATE ELECTION - SOME CASES

ADMINISTRATIVE APPEALS TRIBUNAL Q93/256
ANTHONY WILLIAM SCHOFIELD v COMMISSIONER FOR SUPERANNUATION

The Administrative Appeals Tribunal (AAT) has found that a Telecom employee is entitled to have his late election to preserve his superannuation benefits recognized. Telecom now has to add 18 years of contributory service to his current contributory service. The decision was given on the 14th February 1995.

The employee (S) resigned from Telecom in 1978 after 18 years service. He got a refund of his superannuation contributions. He did not know that he could have preserved his superannuation benefits and therefore he forfeited Telecom's contributions by obtaining a refund of his contributions.

There were two important aspects to the case:
(a) Would he have opted to preserve had he known his rights? and
(b) what did he know about preservation?

(a) Would he have opted to preserve had he known his rights?

S resigned after having sought leave without pay to work for a telecommunications company in Nigeria. He had no immediate use for the money (eg to set up a farming business) although he did use the money as part of the payment for the purchase of a house overseas. The house was later sold and the monies invested in a bank. The AAT stated:
"We also find that he resigned from Telecom solely because it would not grant him leave without pay to pursue the overseas' experience. This findings is again based on his oral evidence but also upon his letter of resignation and upon the evidence of his attempts to be granted leave without pay.... This leads us to the question of whether Mr S would have elected to preserve his benefits had he been given the option to do so. We have concluded that he would have."

(b) What did he know about preservation?

An important feature of the case was a booklet issued by Telecom which purported to set out all the rights of employees. The AAT stated:
"The booklet to which he referred was that entitled, "Conditions of Employment", and subtitled, "All you need to know or where to find out". It was produced by Telecom and readers were advised to "Use this book as a handy guide to ....(their) entitlements and conditions of employment in the Australian Telecommunications Commission."....
Although a warning was given in relation to contributors to the superseded scheme, no warnings were given regarding the information given in relation to the scheme established after 1 July, 1976 i.e. under the Act. No references were given to manuals or directives to which employees could refer and they were not advised to consult anybody, such as their staff clerks, if they had any queries....
The booklet gave quite detailed information about contributions, the position when an employee took leave without pay and the benefits he or she received on retirement, retrenchment, invalidity retirement, death and resignation. With regard to resignation, it said: "On resignation a contributor is refunded all his or her contributions, plus interest"....

A similar statement was made eleven years later but this time there was added a reference to a Human Resources Department Guideline.

Importantly, many Telecom employees would have been misled by the booklet. The AAT found:
Mr DS, who as also a technical instructor at the Centre from 1974, gave similar evidence to that of Mr S regarding the induction program for new recruits. In particular, he said that the personnel section dealt with superannuation matters. A broad overview was given of the concept of superannuation. That entailed the recruits' being told that, once they had been accepted as permanent officers, they would pay contributions and would, on retirement, be paid their contributions and a pension. If they were to resign, they were told, they would receive their contributions together with interest. Nothing was said about preservation. In his time as a technical instructor, Mr DS said that trainees often asked him about resignation and he always said that they would receive only their contributions and interest. That was his understanding."

The AAT had no trouble finding in favour of S. They stated:
Mr S made no attempt to seek advice from Telecom's personnel section regarding his entitlements on resignation. That is clear on his own admission and on all of the evidence. Like many other people who find themselves in a similar situation, he did not believe that he needed to. He thought that he knew that he would be paid his contributions and accumulated interest and needed to know no more. Unlike many other people, he had some firm foundation for his belief. Telecom's own personnel section gave that advice at each of the induction sessions held at the Centre. Mr DS remembered those sessions clearly as did Mr S. Furthermore, Telecom's own booklet for its employees, which had been printed in 1977 and so was very current in 1978, clearly gave the same advice. Unlike some of the other advice it gave, it gave advice regarding superannuation matters without any qualifications and without any suggestion that employees should contact either the staff clerk of the Commissioner's office...
It is quite clear to us that the advice given by the Commissioner himself at this time was accurate. He correctly states the position in his pamphlet. The difficulty for the Commissioner was that the information, for some reason, was not known to the personnel section of Telecom or to Telecom generally. This leads us to conclude that even if Mr S had decided to approach the personnel section for advice, he would never have been told that he had an option to preserve his superannuation benefits. We are supported in this finding by Telecom's letter to Mr S on 8 February, 1978. That letter clearly contemplates that a person who resigned had only the option of applying for a refund of contributions and accumulated interest. Indeed, the letter told those who had not done so that it was in their "own interests" to complete and return at an early date the application form for refund of superannuation contributions...
Taking all of the circumstances into account, we are satisfied that it is desirable that Mr S's late election should be recognised. Had he known of his right to elect to preserve his superannuation rights he would have done so. While he did not make any enquiries as to his rights, it would not have made any difference if he had for his own opinion would merely have been confirmed as Telecom itself (or at least in its Brisbane office) was not, at the time, aware that such rights existed. Mr S's understanding of his rights, although incorrect, was reasonably based on sources he should have been able to rely upon - his employer's personnel section and his employer's statement of the conditions of his employment.

NOTE: Two other cases have been settled with the Commissioner without the matter going to the AAT.
In one case it was clear that the member had never filled in the s2A form requesting a refund of contributions. This finding was possible as the member was overseas and a note had been kept (by a third party) of all mail received at the relevant time and no record of receipt of the form was noted.

COMSUPER READY RECKONER DISK

Comsuper produce a computer disk which provides members with information on both the PSS and CSS schemes. Included on the disk is a Ready Reckoner.

The CSS/PSS Ready Reckoner is designed to provide members of the CSS/PSS with a guide to the value of benefits under that scheme.

The calculations produced by the program are a guide only and are not official. The calculations are based on current legislation. The benefit estimates calculated by the program are derived from information entered from the Member Information Statement. The program uses pre-set assumptions for interest, salary increase and inflation. The Ready Reckoner is provided on a 3.5" HD disk. A 5.25" disk version is available on application to ComSuper. The Ready Reckoner runs on the IBM and compatible family of computers.

Schemes Promotion Section, ComSuper, PO Box 22, Belconnen ACT 2616 Telephone: (06) 252-7685.

CSS/PSS SUPER - INVALIDITY SURPRISE VISITS

The Commonwealth Superannuation Board of Trustees (the CSS Board and the PSS Board) have requested that I advise you of a recent decision taken in regard to the performance of their function in applying the invalidity retirement provisions of the Superannua tion Act.

As you will no doubt be aware, an integral step in the assessment process of the invalidity retirement provisions administered by the CSS and PSS Boards under the 1976 Act and the 1990 Act respectively is the advice of the Assessment Panel appointed by the Boards. The Assessment Panel comprises a panel of persons with expertise in the assessment of invalidity claims, and assists the Boards in reaching decisions whether or not to approve the retirement of eligible employees on the ground of invalidity by providing recommendations to the Boards on the question of whether an employee is totally and permanently incapacitated (TPI), and on any other matter which the panel considers relevant or the Board may require.

Recent amendments to the legislation mean that panel services will also be extended to cases where an applicant seeks to have his or her mode of termination of employment altered to one of deemed invalidity retirement (ie subsection 7(2) of the 1976 Act), or where an applicant seeks early release of a preserved benefit entitlement on the ground of physical or mental incapacity occurring before his or her 55th birthday.

The Boards recently considered and approved in principle the use of unannounced visits to applicants arranged by the Assessment Panel to assist, where appropriate, in the assessment of claims. However, before proceeding to implement any arrangement of this type the Boards would welcome any comment from the ACTU and the relevant affiliates.

By way of background I should note that these visits are to be carried out by a Senior Claims Counsellor, and will be used to better gauge the validity of an applicant's claim of incapacity. It is envisaged that the visits will only be used in cases where evidence of this nature is considered essential to assist the panel in coming to a conclusion.

The Boards believe that the key benefit to be derived from these visits will be to assist the panel and the Boards to decide what, if any, further medical investigations or examinations are required. Hence, if the counsellor's report is supportive of a TPI finding, then the issue can be quickly decided with consequential savings in time and costly medical examinations.

Conversely, if the report is adverse then the panel and the Boards can then decide on appropriate action, which would usually be a matter of bringing the counsellor's findings to the attention of the specialists for their information.

The Boards are of the view that, in genuine cases, the applicant would be grateful for the opportunity to discuss his or her incapacity with someone considered to be independent to the normal administrative process.

It would only be in cases of exaggeration of incapacity (and where this is discovered) that some criticism of the unexpected nature of the visit might be expected.

In coming to their decisions the Boards were mindful of privacy considerations. The Privacy Commissioner has recently issued guidelines on the obtaining of information by government agencies where optical surveillance is employed.

The Boards noted, however, that these guidelines relate only to situations where surveillance is covert. The panel visits, although unannounced, will not be secretive, as the applicants will, at the start of the interview, be advised of the purpose of the visit, and of the fact that any information obtained will be used for a lawful purpose directly related to the performance by the Trustees of one of their enacted functions or activities.

The Boards considered that provided these measures were observed and that the collection of such information was not to unreasonably invade upon the individual's personal affairs, then the gathering of such information by such means does not infringe the privacy legislation. You may be assured that these visits will not entail any element of covert surveillance.

The Boards consider that there are clear advantages to be gained from the panel and the Boards having access to as much information as possible on which to base their recommendations and decisions respectively, and are of the opinion that the use of unannounced home visits by the panel in appropriate cases will greatly assist in the provision of this information.

M.Dawson Secretary