Trust Deed

Transcription

Trust Deed

DEED OF CONSOLIDATION
FOR THE
TWU SUPERANNUATION FUND
Division 1: Employer Sponsored
Division 2: Personal
Division 3: Allocated Pension
Division 4: Transuper Division
Original Deed dated 4 October 1984.
The Original Deed was amended on 5 August 1985, 12
September 1985, 14 May 1986,5 November 1986, 1 June 1989,27
June 1994,24 October 1994,14 April1996, 14 May 1997.
The amended Deed was replaced in its entirety by Deed of
Amendment on 17 February 1999 and this Deed of
Consolidation incorporates amendments made by deeds dated
28 June 2001,5 December 2002,16 December 2003,3 February
2005,4 August 2005, 2 February 2006, 1 July 2007, 2 April2009, 7
February 2013,6 June 2013,14 May 2014 and 22 September 2016.
I, Peter Hamilton Charteris of Level 22, No. 1 Martin Place, Sydney NSW,
Partner of DLA Piper Australia for the trustee certify that this page and
the following 103 pages are a true and correct copy of the terms as at the
date of this certificate of the trusts established by Deed of Settlement
dated 4 October 1984 declared by TWU Nominees Pty Ltd as trustee and
subsequently amended and known as TWU Superannuation Fund.
~Ll0:.~~
Peter Hamilton Charteris
o.Qqn0
Syd~~
Level 22, No. 1 Martin Place,
NSW 2000 Australia
Tel +61 2 9286 8000 Fax +61 2 9286 8007 OX 107 SYDNEY
Website: http://www.dlapiper.com
Ref: 3012908 I 282817
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INDEX
PART 1 .................................................................................................................................... 11
1.
INTERPRETATION - DEFINITIONS ............................................. 11
2.
INTERPRETATION- GENERAL .................................................... 21
Plural and gender of words ............................................................... 21
Headings to Clauses ............................................................................ 2.2
Defined words ...................................................................................... 22
Statutory enactments ........................................................................... 22
Fund Subject to Relevant Law .......................................................... 22
Requirements of Commissioner ....................................................... 22
Superannuation Guarantee Legislation .......................................... 22
(a)
(b)
(c)
(d)
(e)
(f)
(g)
PART 2 .................................................................................................................................... 23
3.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
4.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
5.
CONFIRMATION ............................................................................... 23
Maintenance of Fund .......................................................................... 23
Assets of the Fund ............................................................................... 23
Divisions within the Fund ................................................................. 23
Allocation of Assets ............................................................................ 23
Segregation of assets ........................................................................... 23
Initial Divisions ................................................................................... 23
Rules ....................................................................................................... 24
Application of Assets .......................................................................... 24
Assets of Divisions .............................................................................. 24
Constitution of New Division........................................................... 24
Badged Divisions ................................................................................. 24
GENERAL PROVISIONS .................................................................. 25
Employer's powers not prejudiced .................................................. 25
Exercise of Trustee's rights ................................................................ 25
Rights of Members .............................................................................. 25
Inquiries, Complaints and Disputes................................................ 25
Benefits Secured .................................................................................. 25
Members Bound by Deed .................................................................. 26
Relevant Law to Prevail...................................................................... 26
PROPER LAW ...................................................................................... 26
PART 3 .................................................................................................................................... 26
6.
(a)
(b)
(c)
(d)
(e)
(f)
EMPLOYERS AND MEMBERS ....................................................... 26
Employer Application for Membership .......................................... 26
Deleted ................................................................................................... 27
Associated Employers ......................................................................... 27
Application for Membership ............................................................ 27
Deleted ................................................................................................... 28
Admission to Membership ................................................................ 28
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(g)
(h)
(i)
(j)
(k)
(1)
(m)
(n)
(o)
7.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
8.
Members and Beneficiaries to Provide Information .................... 28
Incorrect or Misleading Information ............................................... 28
Information re Age .............................................................................. 29
Cessation of Membership .................................................................. 29
Register of Employers and Members .............................................. 29
Inspection of Register ......................................................................... 30
Termination of Participating Employer's Contributions ............ 30
Deleted ................................................................................................... 31
Reconstruction or Amalgamation of a Participating Employer.. 31
MEMBERSHIP NOTIFICATION REQUIREMENTS .................. 31
Notice to New Members ..................................................................... 31
Disclosure and Reporting Requirements ....................................... 32
Notice to Former Member .................................................................. 32
Disclosure Limitation ......................................................................... 32
Inspection of Trust Deed and other Documents ........................... 32
Deleted ................................................................................................... 33
Deleted ................................................................................................... 33
Sub-Plans .............................................................................................. 33
Commission and Brokerage .............................................................. 33
MEETINGS OF MEMBERS .............................................................. 33
PART 4 .................................................................................................................................... 33
9.
(a)
(b)
10.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
lOA.
THE FUND ............................................................................................ 33
Fund Vested in Trustee ...................................................................... 33
Fund Assets ........................................................................................... 33
FUND ACCOUNTS ............................................................................ 34
Accumulation AcCounts ..................................................................... 34
Credits to Accumulation Accounts ................................................... 34
Debits to Accumulation Accounts .................................................... 35
Income Account ................................................................................... 36
Equalisation Account .......................................................................... 38
Mortality Reser·v e ................................................................................ 39
Adjustment of Accumulation Account or Pension Account ....... 39
Valuation of the Fund ......................................................................... 40
UNITS .................................................................................................... 40
11.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
FUND RECORDS, DISCLOSURE AND INVESTIGATION ..... 43
Receipt and payment of moneys ...................................................... 43
Issue of receipts .................................................................................... 43
Records and accounts to be kept ....................................................... 43
Audit ...................................................................................................... 44
Information for Trustee ...................................................................... 44
Disclosure and Reporting Requirements ....................................... 44
Production of Books or Access to Premises .................................... 45
Directions of Commissioner.............................................................. 45
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(i)
Information and Documents for Tribunal...................................... 45
PART 5 .................................................................................................................................... 45
12.
REMOVAL
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
FUND TRUSTEE - APPOINTMENT, VACANCY AND
45
Trustee must be an Approved Trustee ............................................ 45
Member and Employer Representation .......................................... 45
Policy Committees ............................................................................... 46
Change of Trustee................................................................................ 46
Appointment of Trustee ..................................................................... 46
Retirement of Trustee ......................................................................... 46
Significant Adverse Event ................................................................. 47
Reasonable and Proper Costs ............................................................ 47
Antecedent Breach by Trustee .......................................................... 47
13.
(a)
(b)
(c)
(d)
(e)
(f)
TRUSTEE'S INVESTMENT POWERS ........................................... 47
Investment Strategy ............................................................................ 47
Authorised Investments ..................................................................... 47
Power to Sell, Vary and otherwise deal with Investments ......... 48
Interest of Trustee in Investment ..................................................... 49
Provision of Investment Choice ....................................................... 49
Securities Lending Arrangements .................................................... 52
(a)
(b)
(c)
(d)
(e)
(f)
(g)
TRUSTEE'S POWERS OF MANAGEMENT ................................. 52
Trustee to Manage each Division ..................................................... 52
Additional Powers ............................................................................... 52
Exercise of Trustee Powers ................................................................ 55
Trustee Discretion ............................................................................... 55
Trustee Delegation .............................................................................. 55
Trustee Direction ................................................................................. 56
Reserves ................................................................................................. 56
14.
14A.
(a)
(b)
OPERATIONAL RISK RESERVE ACCOUNT .............................. 56
Amounts credited to the Operational Risk Reserve Account: .... 56
Amounts to be debited to the Operational Risk Reserve
Account: ................................................................................................. 56
14B.
MOVEMENT OF ACCRUED DEFAULT AMOUNTS ................ 57
15.
(a)
(b)
(c)
LIMITATION OF LIABILITY ........................................................... 57
Liability of Trustees, Directors and officers .................................. 57
Loss, Default, bona fide acts, mistake ............................................. 57
Limitation of exemption from liability ........................................... 58
(a)
(b)
(c)
(d)
INDEMNITY O F TRUSTEE .............................................................. 58
Indemnity and Lien ............................................................................. 58
Payments in Good Faith ..................................................................... 58
Opinion or Advice ............................................................................... 58
Failure to Carry Out Agreement ....................................................... 58
16.
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(e)
(f)
(g)
17.
(a)
(b)
(c)
Agents and Servants of Trustee ........................................................ 59
Limitation of Indemnity ..................................................................... 59
Limitation on Indemnity .................................................................... 59
REMUNERATION OF TRUSTEE .................................................... 59
Costs and Disbursements .................................................................. 59
Fees Determined Annually ................................................................ 59
Reimbursement .................................................................................... 60
PART6 .................................................................................................................................... 61
18.
(a)
(b)
(c)
(d)
(e)
(f)
19.
APPOINTMENT OF ACTUARY, AUDITOR AND MANAGERS61
Actuary and Auditor ........................................................................... 61
Administration Manager .................................................................... 61
Investment Manager ........................................................................... 61
Custodian .............................................................................................. 61
Consultants and Officers ................................................................... 62
Removal ................................................................................................. 62
ACTUARIAL INVESTIGATIONS .................................................. 62
PART7 .................................................................................................................................... 62
20.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
CONTRIBUTIONS TO FUND ......................................................... 62
Member's Contributions .................................................................... 62
Employer's Contributions.................................................................. 63
Additional Contributions .................................................................. 63
Refund of Payments ............................................................................ 63
Interest on Contributions................................................................... 63
Contributi ons in Cash or Assets ....................................................... 64
No Obligation to Contribute ............................................................. 64
Limitation on Accepting Contributions .......................................... 64
Level of Contributions ........................................................................ 64
Contribution Splitting ........................................................................ 64
(a)
(b)
(c)
(d)
(e)
TRANSFERS TO APPROVED BENEFIT ARRANGEMENTS .. 65
Transfers to Approved Benefit Arrangements .............................. 65
Effect and Method of Transfer Out.................................................. 65
Roll Over ............................................................................................... 65
Eligible Rollover Funds ...................................................................... 66
Preserved Payment Transfers ............................................................ 66
21.
PART 8 .................................................................................................................................... 66
22.
(a)
(b)
TRANSFERS FROM APPROVED BENEFIT ARRANGEMENTS66
Takeover or Transfer of Benefits ...................................................... 66
Rights and Entitlements of Member in Transferred Benefits .... 66
PART9 .................................................................................................................................... 67
23.
COMMITTEES OF THE TRUST EE ................................................. 67
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(a)
(b)
(c)
(d)
(e)
Appointment ........................................................................................ 67
Equal Representation .......................................................................... 67
Continuation of Membership of Committee ................................. 67
Committee Regulation ........................................................................ 67
Committee Resolution ........................................................................ 67
PART10 .................................................................................................................................. 67
NATURE OF MEMBER'S INTERESTS .......................................... 67
24.
PART11 .................................................................................................................................. 68
25.
(a)
(b)
(c)
TRANSFER IN SPECIE ...................................................................... 68
Transfer of Policy ................................................................................ 68
Transfer of Investments ..................................................................... 68
No Beneficial Interest ......................................................................... 68
PART 12 .................................................................................................................................. 69
26.
(a)
(aa)
(b)
(ba)
(c)
27.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(I)
(m)
(n)
(o)
PAYMENT OF BENEFITS ON DEATH.......................................... 69
Order of Payment of Benefits............................................................ 69
Payments to Dependants or Legal Personal Representatives ..... 69
Payments to Other Persons ................................................................ 69
Binding Nomination ........................................................................... 70
Discharge of Trustee ........................................................................... 71
PAYMENT OF BENEFITS ................................................................. 71
Address for Benefits............................................................................ 71
Notification of Address ...................................................................... 71
Receipt for Benefits ............................................................................. 72
(Repealed 16 December 2003) ............................................................ 72
(Repealed 16 December 2003) ............................................................ 72
No Personal Claim ............................................................................... 72
Payment to Others on Behalf of Beneficiaries ............................... 72
Preservation Conditions ..................................................................... 72
Unclaimed Benefits ............................................................................. 73
D eath of Former Member Prior to Benefit Payment..................... 73
Limitation on Benefits ........................................................................ 73
Where a Family Law Spouse Amount is r equired to be dealt
with in accordance with the Family Law Act 1975 and Relevant
Law, the Member's Account will be debited with the amount
and the amount credited to the account of the Family Law
Spouse or transferred in accordance with the directions of the
Family Law Spouse to an Approved Benefit Arrangement . ....... 73
Amounts unpayable ............................................................................ 73
Unclaimed Money ............................................................................... 74
Application to G eneral Purposes of the Fund ............................... 74
PART 13 .................................................................................................................................. 74
28.
PAYMENT OF TAXATION AND LEVIES .................................... 74
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(a)
(b)
(c)
(d)
(e)
Tax on Benefits ..................................................................................... 74
Tax on contributions and Shortfall Components .......................... 74
Tax on Income ...................................................................................... 74
Surcharge ............................................................................................... 75
Payment to Relevant Authority ........................................................ 75
PART 14 .................................................................................................................................. 75
INSURANCE BENEFITS ................................................................... 75
29.
PART 15 .................................................................................................................................. 76
30.
OTHER SUPERANNUATION OBLIGATIONS .......................... 76
PART 16 ................................................................................................................................... 77
31.
(a)
(b)
(c)
(d)
VARIATION OF TRUST DEED....................................................... 77
Deed ....................................................................................................... 77
Notice ..................................................................................................... 77
Limitation on Variation ...................................................................... 77
Further limitation on Variation ........................................................ 78
PART 17 .................................................................................................................................. 78
32.
(a)
(b)
(c)
WINDING UP OF FUND................................................................... 78
Election to Terminate .......................................................................... 78
Procedure on Winding Up of Fund .................................................. 78
Exhaustion of Fund ............................................................................. 78
PART 18 .................................................................................................................................. 79
33.
(a)
(b)
34.
PAYMENT OF NON-PRESERVED AMOUNTS .......................... 79
Member Election.................................................................................. 79
Minimum Payment ............................................................................. 79
INCREASES TO BENEFITS .............................................................. 79
35.
(a)
(b)
(c)
(d)
RETENTION OF BENEFIT IN FUND............................................. 79
Request .................................................................................................. 79
Death ...................................................................................................... 79
Payment otherwise required ............................................................. 80
Discretion .............................................................................................. 80
PART19 .................................................................................................................................. 80
MARKETING AND PROMOTING FUND ................................... 80
36.
(a)
Activity .................................................................................................. 80
(b)
Promotion to Increase Membership ................................................. 80
Defence of Fund Contribution Base ................................................ 80
Exercise of Powers of Marketing and Promotion .......................... 80
Engagement of Adviser ...................................................................... 81
(c)
(d)
(e)
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PA.R T20 .................................................................................................................................. 81
37.
(a)
(b)
(c)
MYSUPER PRODUCT ......•................................................................ 81
MySuper Product Requirements ...................................................... 81
Fees ......................................................................................................... 83
MySuper membership records .......................................................... 83
38.
TRANSFER OF INTERESTS TO COMPLY WITH MYSUPER. 83
39.
ADDITIONAL RULES ....................................................................... 83
DIVISION 1- RULES OF TWU SUPERANNUATION FUND - EMPLOYER
SPONSORED DIVISION ................................................................................................... 85
1.
(a)
(b)
MEMBERSHIP AND APPLICATION OF DIVISION ................ 85
Membership Criteria........................................................................... 85
Application of this Part ...................................................................... 85
2.
MEMBERSHIP CLASSIFICATION ................................................ 85
3.
DELETED .............................................................................................. 86
4.
CONTRIBUTIONS ............................................................................. 86
Anyone may contribute ...................................................................... 86
Deleted ................................................................................................... 86
Participating Employer Contributions ............................................ 86
Payment Obligations .......................................................................... 86
Payment Directions .............................................................................. 87
Interest .................................................................................................... 87
(a)
(b)
(c)
(d)
(e)
(f)
5.
ACCOUNTS ......................................................................................... 87
6.
RETIREMENT BENEFIT WHERE THE MEMBER IS AGED
LESS THAN 65 YEARS ....................................................................................................... 87
7.
CASHING OF BENEFITS .................................................................. 88
8.
TOTAL AND PERMANENT DISABLEMENT BENEFIT........... 88
9.
TOTAL AND TEMPORARY DISABLEMENT BENEFIT ........... 88
10.
HARDSHIP BENEFITS ...................................................................... 88
11.
PAYMENT OF BENEFITS IN OTHER CIRCUMSTANCES ...... 89
12.
RECEIVING BENEFIT AS A PENSION......................................... 89
13.
PAYMENT ON DEATH ..................................................................... 89
DIVISION 2- RULES OF THE TWU SUPERANNUATION FUND -PERSONAL
DIVISION .............................................................................................................................. 90
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1.
(a)
(b)
Application of this Division.............................................................. 90
2.
3.
CONTRIBUTIONS ............................................................................. 90
(a)
Anyone may contribute ...................................................................... 90
4.
ACCOUNTS ......................................................................................... 90
5.
LESS THAN 65 YEARS ....................................................................................................... 90
6.
CASHING OF BENEFITS .................................................................. 91
7.
TOTAL AND PERMANENT DISABLEMENT BENEFIT........... 91
8.
TOTAL AND TEMPORARY DISABLEMENT BENEFIT ........... 91
9.
HARDSHIP BENEFITS ...................................................................... 91
10.
PAYMENT OF BENEFITS IN OTHER CIRCUMSTANCES ...... 92
11.
RECEIVING BENEFIT AS A PENSION......................................... 92
12.
PAYMENT ON DEATH ..................................................................... 92
DIVISION 3 - RULES OF THE TWU SUPERANNUATION FUND - PENSION
DIVISION .............................................................................................................................. 93
1.
(a)
(b)
Application of this Division.............................................................. 93
2.
3.
CONTRIBUTIONS ............................................................................. 93
4.
(a)
(b)
(c)
(d)
(e)
PENSION PAYMENT AND PENSION ACCOUNT.................... 93
Application to Convert to Pension ................................................... 93
Establishment of Pension Account .................................................. 94
Operation of Pension Account .......................................................... 94
Segregation of Pension Assets .......................................................... 95
Payment to Reversionary Beneficiary ............................................. 96
(a)
(b)
(c)
(d)
PENSION PAYMENT CONDITIONS ............................................ 97
Method of Payment and Security ..................................................... 97
Pension Account Limitation .............................................................. 97
Reversionary Beneficiary ................................................................... 97
Death of Pensioner .............................................................................. 98
5.
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6.
(a)
(b)
(c)
COMMUTATION OF PENSION ..................................................... 98
Conditions of Commutation.............................................................. 98
Payment of Lump Sum Benefit......................................................... 98
Adjustment of Pension following the Commutation ................... 99
DIVISION 4- RULES OF TWU SUPERANNUATION FUND- TRANSUPER
DIVISION ............................................................................................................................ 100
1.
(a)
(b)
MEMBERSHIP AND APPLICATION OF DIVISION .............. 100
Membership criteria .......................................................................... 100
Application of this Part .................................................................... 100
2.
MEMBERSHIP CLASSIFICATION .............................................. 100
3.
CONTRIBUTIONS ........................................................................... 101
(a)
Member Contributions ..................................................................... 101
(b)
Spouse Contributions ....................................................................... 101
(c)
Participating Employer Contributions .......................................... 102
(d)
Payment Obligations ........................................................................ 102
(e)
Payment Directions ........................................................................... 102
Each Employer shall at the time of payment give to the Trustee clear
directions as to the amount of contributions to be allocated to
each Member employed by it.......................................................... 102
Interest ................................................................................................. 102
(f)
4.
ACCOUNTS ....................................................................................... 103
5.
LESS THAN 65 YEARS ..................................................................................................... 103
6.
CASHING OF BENEFITS ................................................................ 103
7.
ELIGIBLE TEMPORARY RESIDENT VISA ............................... 103
8.
TOTAL AND PERMANENT DISABLEMENT BENEFIT......... 103
9.
TOTAL AND TEMPORARY DISABLEMENT BENEFIT ......... 103
10.
HARDSHIP BENEFITS .................................................................... 104
11.
PAYMENT OF BENEFITS IN OTHER CIRCUMSTANCES .... 104
12.
RECEIVING BENEFIT AS A PENSION....................................... 104
13.
PAYMENT ON DEATH ................................................................... 104
14.
SPECIAL ARRANGEMENTS ......................................................... 104
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PARTl
MANAGEMENT AND ADMINISTRATION
1.
INTERPRETATION- DEFINITIONS
In this Deed and Rules unless the context otherwise requires:
"Account" means Accumulation Account or Pension Account;
"Account Based Pension" has the same meaning as set out in Section 1.03(1)
of the Superannuation Industry (Supervision) Regulations 1994;
"Accrued Default Amount" has the meaning ascribed to it in the Relevant
Law;
"Accumulation Account" means the account established on behalf of each
Member or beneficiary as described in Clause 10;
"Actuary" means the actuary (if any) for the time being appointed pursuant
to this Deed;
"Administrator" means the Manager or other organisation appointed as
Administrator of the Fund in accordance with sub-clause 18(b);
"Annuity" means an annuity as defined for the purposes of the Relevant
Law;
"Application Price" means the price per unit calculated in accordance with
Clause 10A.4;
"Approved Benefit Arrangement" means a fund or benefit arrangement
other than the Fund including without limitation another Complying
Superannuation Fund, an Approved Deposit Fund, Retirement Savings
Account and an Annuity arrangement into which or from which assets can
be transferred into or from the Fund without causing the Fund to be in
breach of or to fail to comply with the Relevant Law and includes an
Eligible Rollover Fund;
"Approved Deposit Fund" in relation to a year of income means a fund
which is a complying ADF in accordance with the Tax Act;
"Associated Employer" means a company or person associated with an
Employer which wishes to contribute to the Fund on behalf of Employees of
the Employer;
"Auditor" means the auditor for the time being appointed under sub-clause
18(a) of this Deed and approved under the Relevant Law;
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"Badged Division" means any Division established under sub-clause 30);
"Benefit" means any amount which is payable by the Trustee out of the
Fund in accordance with this Deed to or in respect of a Member and
includes an Insured Benefit, Basic Death Benefit or Additional Death or
Disability Benefit;
" Benefit Entitlement" means any amount held in the Fund which may
become payable to a Member, Dependant or beneficiary but to which the
person has not become absolutely and indefeasibly entitled and it shall
include a contingent right to payment of an amount;
11
Binding Nomination11 means the n omination made by the Member under
clause 26(ba)(i);
"Casual Employee" means an Employee who is not employed on a full time
basis and satisfies the criteria for casual employment determined by the
Trustee from time to time;
"Child" in relation to a Member or former Member, includes:
(a)
an adopted child, a step-child or an ex-nuptial child of the person;
(b)
a child of the Member 1s Spou se; and
(c)
someone who is a child of the person within the meaning of the Family
Law Act 1975.
"Commencement Date" means in respect of this Deed the date of 1 August
1998 and in respect of each Division the Rules or if there is no such date the
date on w hich those Rules are first made by the Trustee;
"Commissioner" means, as the case requires, the Commissioner of Taxation,
the Australian Prudential Regulation Authority, the Australian Securities
and Investments Commission or such other regulatory body as shall have
responsibility for administration of superannuation;
"Company" or "Corporation" includes a body corporate, whether formed
or incorporated within or outside New South Wales and whether or not a
public authority or an instrumentality or agency of the Crown;
"Compassion ate Grounds" has the same meaning as that given to it by the
Relevant Law;
"Complying Superannuation Fund" in relation to a year of income means a
fund w hich is a Complying Superannuation Fund in accordance with the
Relevant Law;
"Constitutional Corporation" has the same meaning as defined for the
purposes of the Relevant Law;
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"Custodian" means a company appointed as Custodian of the Fund in
accordance with sub-clause 18(d) and "Sub-Custodian" shall have a
corresponding meaning;
"Deed" means this Deed and any Rules made under this Deed;
"Dependant" in relation to a Member or former Member means:
(a)
Spouse;
(b)
a Child of the Member or former Member;
(c)
any other person who, in the opinion of the Trustee, was wholly or
partially financial dependent on the Member at the relevant time; or
(d)
any other person with whom, in the opinion of the Trustee, the
Member has (or in the case of a deceased Member at the date of
his/her death had) an Interdependency Relationship;
"Directors" means the directors or board of management for the time being
of the Trustee, or any Employer, as the case requires, and "Director" has a
"Eligible Person" means any person who is permitted by the Relevant Law
to become a Member of the Fund;
"Eligible Rollover Fund" has the same meaning as contained in Part 24 of
the Superannuation Industry (Supervision) Act 1993;
"Eligible Temporary Resident Visa" has the same meaning as in the SIS Act;
"Employee" means a person in the employment of an Employer and who is:
(i)
a Director or Secretary (in the case of a corporation) of that Employer;
or
(ii)
classified by the Employer as an Employee for the purposes of this
Deed;
(iii) a person who is an Employee of the Employer for the purposes of the
Guarantee Act;
(iv) a sub contractor of the prime contractor, where the prime contractor
agrees to be an Employer for the purposes of this Deed.
"Employer" means a company, person, firm or any other employer of an
Employee or of a Member and in relation to an Employee or Member means
the Employer of such Employee or Member and for the purposes of this
Deed it shall include an Employer whose relationship with labour engaged
by it is one of prime contractor and sub contractor;
"Equalisation Account" means the account established pursuant to subclause 10(e);
AZfI AZT130129081282817I AUMI 1206133964.1
14
"Exempt Dealer" has the same meaning as in the Corporations Law;
"Family Law Spouse" means a spouse entitled to a payment split under the
Family Law Act 1975;
"Family Law Spouse Amom1t" means the amount of the payment split
determined in accordance with a Family Court order or Superannuation
Agreement;
"Financial Assistance" means financial assistance granted to the Fund
under Part 23 of the Superannuation Industry (Supervision) Act 1993;
"Financial Year" means a period of twelve months ending on 30 June or
such other period of twelve months as the Trustee shall determine;
"Forfeiture Account" means the account established pursuant to sub-clause
24(c);
"Full-Time Gainful Employment" means Gainfully Employed for at least 30
hours each week;
"Fund" means the fund known as the TWU Superannuation Fund
established by Deed dated 4 October 1984 as varied from time to time and
which commenced operation on the 1 December 1984;
"Fund Earning Rate" means the earning rate for the Fund (which may be
positive or negative) determined under paragraph (iii) of sub-clause 10(d)
after taking into account such provisions or reserves for future
contingencies as the Trustee shall consider reasonable;
"Fund Year" means a period of twelve months ending on 30 June, or such
other period ending on such other date as the Trustee may determine from
time to time;
"Gainful Employment" in relation to a Member means engagement in any
business, h·ade, profession, vocation, calling, occupation or employment for
gain to the extent required by the Relevant Law;
"Gainfully Employed" means engaged in Gainful Employment;
"General Reserve Account" means the account created and operated m
accordance with clause 14(g);
"Guarantee Act" means the Superannuation Guarantee (Administration)
Act 1992 and any regulations made under that Act;
"Income Account" means the account established in respect of each
Division as described in Clause 10(d);
"Incident Date" means:
AZT/ AZT/3012908/282817/ AUM/1206133964.1
15
(a)
the date of death; or
(b)
the first day of the six month period referred to in the definition of
Total and Permanent Disablement in the Insurance Memorandum;
"Industrial Instrument" means a law of the Commonwealth or of a State or
Territory or an award, order, determination or industrial agreement in force
under any such law;
"Insurance
Memorandum"
means
the
memorandum
having
commencement date 1 August 1998 outlining the terms and conditions of
benefits offered by the Fund on the life of a Member or in respect of Total
and Permanent Disablement of a Member that are in addition to the
Member's account balance where the Incident Date occurred between 1
August 1998 and 30 June 1999;
"Insured Benefit" means the proceeds of any Policy of insurance effected by
the Trustee on the life of a Member, in respect of Total and Permanent
Disablement of a Member or in respect of Total and Temporary
Disablement of a Member whether a group Policy or individual Policy;
"Insurer" means any insurer with whom the Trustee effects a Policy or
Policies;
"Interdependency Relationship" means the relationship that exists between
2 persons (whether or not related by family) if:
(a)
they have a close personal relationship; and
(b)
they live together; and
(c)
one or each of them provides the other with financial support; and
(d)
one or each of them provides the other with domestic support and
personal care; and
(e)
any other matters are or are not taken into account as specified in the
regulations.
If paragraph (a) is satisfied, but any or all of paragraphs (b), (c) and (d) are
not satisfied because of a physical, intellectual or psychiatric disability, then
an interdependency relationship still exists;
"Investment Manager" means a person appointed as an Investment
Manager of the Fund in accordance with sub-clause 18(c);
"Legal Personal Representative" shall have the meaning attributed to it in
section 10 of the Superannuation Industry (Supervision) Act 1993;
"Levy" includes a levy payable by the Fund to the Commissioner in
accordance with the Superannuation Supervisory Levy Act 1991, the
Superannuation (Financial Assistance Levy) Act 1993 and any other
legislation or regulations which impose a levy or levies on the Fund;
AZT/ AZT/3012908/282817/ AUM/1 206133964.1
16
"Mandated Employer Contributions" means contributions made in relation
to a Member that represent the sum of:
(a)
contributions made by a Participating Employer that reduce the
liability of the Participating Employer for the Superannuation
Guarantee Charge, or that are payments of a Shortfall Component
within the meaning of the Guarantee Act; and
(b)
contributions made by an Employer that are required to be made
under an Industrial Instrument;
"Member" means an Eligible Person who has been accepted as a Member of
a Division of the Fund under Clause 6 and w ho has not ceased to be a
Member under sub-clause 60) and "Membership" shall mean Membership
of a Division of the Fund;
"Mortality Reserve" means the account established in accordance with
Clause 10(f) of this Deed;
"MySuper product" m eans the class of beneficial interest in the Fund which
satisfies the criteria determined in accordance with clauses 37(a) and 37(b);
"MySuper product Member" means a Member entitled to a MySuper
product;
"Net Asset Value" means, at any time (as the case may be), the amount
determined by the Trustee according to Australian accounting principles (as
referred to in Section 272-5(2) of Schedule 2F of the Income Tax Assessment
Act 1936 to be equal to the total value of the relevant Division, investment
choice or pool of assets of the Fund allocated to a class of Units under
Clause lOA at that time less the liabilities of th e relevant Division,
investment choice or pool of assets of the Fund at that time;
"Non Mandated Employer Contributions" means contributions by an
Employer in relation to a Member that are not Mandated Employer
Contributions;
11
Nominated Beneficiary 11 means the one or more dependents, and/ or the
legal personal representative nominated by the Member under clause
26(ba)(i);
"Nominated Dependant" means a person nominated in writing by a
Member to the Trustee as the Nominated Dependant;
"Non-Preserved Amount" means an amount including a Roll Over
Payment payable to or in respect of a Member or beneficiary which is not
subject to any cashing restrictions at the time of payment;
"Normal Retirement Age" means the age of 65 years or such other age being
not less than 55 years as is acceptable to or required by the Relevant Law
AZfI AZT I3012908I282817I AUMI 1206133964.1
17
and as the Trustee with the consent of the Employer of that Member shall
determine;
"Operational Risk" means those risks characterised as such from time to
time by the Trustee and permitted to be treated as such under the Relevant
Law and the Prudential Standards;
"Operational Risk Financial Requirement Strategy" means the strategy
named as such established and maintained in accordance with the
Prudential Standards;
"Operational Risk Reserve Account" means the account established and
operated pursuant to clause 14A;
"Participating Employer" means any person, firm or corporation that by
agreement with the Trustee is admitted to participation in the Fund under
Clause 6(a) or Clause 6(ca);
"Part-Time Basis" means at least 40 hours in a period of not more than 30
consecutive days in that financial year;
"Part-Time Equivalent Level" means at least 240 hours during the financial
year that ended on the last occurring 30 June;
"Part-Time Gainful Employment" means Gainfully Employed for at least 10
hours but less than 30 hours each week;
"Pension" includes a Benefit payable by instalments out of the
Accumulation Account or the Pension Account of a Member or beneficiary
whether such instalments be equal or unequal;
"Pension Account" means the account established in respect of a Pensioner
in accordance with .s ub-rule 4(b) of Division 3;
"Pensioner" means a Member who is entitled to receive or has applied to
receive Benefits payable to the Member as a Pension and shall include a
Reversionary Beneficiary in receipt of a Pension;
"Permanent Disability" is a disability of the kind described in subsection
8(1) of the Disability Services Act 1986;
"Person" or "person" includes a Company, Corporation, firm or body of
persons;
"Policy" means any policy of assurance including a policy on the life of a
Member for endowment, term, disablement, accident or sickness insurance,
effected either as an individual policy or as a group policy with an Insurer
and includes any policy covering any two or more of the foregoing risks
and it further includes any policy which provides that Insured Benefits shall
be payable to the Trustee on the death or disablement of a Member;
AZT / AZT /3012908/282817/ AUM/1206133964.1
18
"Policy Committee" has the same meaning as set out in Section 10 of the
Superannuation Industry (Supervision) Act 1993;
"Preservation Age" means:
(a) for a person born before 1 July 1960- 55 years; or
(b) for a person born during the year 1 July 1960 to 30 June 1961 - 56
years; or
(c) for a person born during the year 1 July 1961 to 30 June 1962 - 57
years; or
(d) for a person born during the year 1 July 1962 to 30 June 1963 - 58
years; or
(e) for a person born during the year 1 July 1963 to 30 June 1964 - 59
years; or
(f)
for a p erson born after 30 June 1964 - 60 years;
"Preserved Payment" means a payment made to the Fund by an Employer
or a Member or by transfer from an Approved Benefit Arrangement which
is required to be preserved as provided for in this Deed in order for the
Fund to be a Complying Superannuation Fund and "Preserved Payment
Benefit" means a Benefit arising from a Preserved Payment;
"Provisional Member" means a person who has been deemed to be a
Member of the Fund under sub-rule 2( d) of Division 1 but from whom the
Trustee has not received an application in writing in accordance with subrule 2(c) of Division 1, and "Provisional Membership" shall have a like
meaning;
"Prudential Standards" has the meaning ascribed to it in the Relevant Law;
"Register of Members" means the register set up pursuant to sub-clause
6(k);
"Relative" in relation to a Member or former Member means any of the
following, namely:
(a)
the parent, grandparent, brother, sister, uncle, aunt, nephew, niece,
lineal descendant or adopted child of that Member or former Member
or of the Spouse of the Member; and
(b)
the Spouse of any person specified in paragraph (a);
"Relevant Law" means any requirements under the Corporations Act,
Superannuation Industry (Supervision) Act 1993, the Superannuation
Industry (Supervision) Regulations, the Superannu ation Entities (Taxation)
Act 1987, the Superannuation (Resolution of Complaints) Act 1993, the Tax
Az:f/ AZT/3012908/ 282817/ AUM/ 1206133964.1
- - - --- - - --
19
Act and any other present or future legislation which the Trustee must
comply with in order for the Fund (a)
to qualify for concessional Taxation treatment as a Complying
Superannuation Fund; or
(b)
to meet any other requirements of the Commissioner,
and includes any proposed requirements, rulings, announcements or
obligations which the Trustee believes will have effect retrospectively;
"Retirement Savings Account" has the meaning assigned to that expression
in Section 8 of the Retirement Savings Account Act 1997;
"Retires from Employment" means actual retirement by a Member from
employment by the Employer or retirement as defined by the Relevant Law
for the payment of Benefits;
"Retires from Gainful Employment" means actual retirement by a Member
from Gainful Employment or retirement as defined for the purposes of the
Relevant Law to enable the payment of Benefits;
"Reversionary Beneficiary" has the same meaning as set out in sub-rule 4(e)
of Division 3;
"Roll Over Payment" means any payment made by or received by the
Trustee at the request of a Member or former Member or in other
circumstances which satisfy the Relevant Law to or from any Approved
Benefit Arrangement and shall include a Superannuation Lump Sum
payment by an Employer in consequence of the termination of the
employment of a Member and either a capital gains tax exempt amount or a
Superannuation Lump Sum payment in relation to a Member under
Division 17B of the Tax Act;
"Self-Employed Person" means an Eligible Person who is not an Employee
and includes a person in Gainful Employment carrying on business in the
carriage by road of freight or passengers either alone or in partnership and
in respect of whom the Trustee can accept a contribution under the Relevant
Law and a sub contractor of the prime contractor where the sub contractor
is not an Employee for the purposes of this Deed;
"Severe Financial Hardship" has the same meaning as that given to it by the
Relevant Law;
"Shortfall Component" has the same meaning as contained in Section 64 of
the Guarantee Act;
"Spouse" means:
(a)
the husband or wife of a Member; or
AZT/ AZT/3012908/282817/ AUM/1206133964.1
--
20
(b)
another person who, although not legally married to the Member,
lives with the Member on a genuine domestic basis in a relationship as
a couple; or
(c)
in the case of a deceased Member the widow or widower or a person
who was at the date of death of the Member living with the Member
on a genuine domestic basis in a relationship as a couple; or
(d)
another person (whether of the same sex or a different sex) with whom
the person is in a relationship that is registered under a law of a State
or Territory prescribed for the purposes of section 22B of the Acts
Interpretation Act 1901 as a kind of relationship prescribed for the
purposes of that section;
"Successor Fund" has the meaning ascribed to it in the Relevant Law;
"Successor Fund Agreement" means an agreement entered into between the
Trustee and the trustee of another superannuation fund whereby it is
agreed that the Fund is a Successor Fm1d to that other superannuation fund;
"Successor Fund Member" means a Member w ho has joined the fund by
Virtue of the operation of a Successor Fund Agreement;
"Superannuation Agreement" has the same meaning as in the Family Law
Act 1975;
"Superannuation Lump Sum" has the same meaning contained in
subsection 995-1(1) of the Income Tax Assessment Act 1997;
"Tax Act" means the Income Tax Assessment Acts 1936 and 1997 (as
amended) and any regulations issued under those Acts. All references to
sections of the Tax Act in this Deed relate to the 1936 Act and accordingly
will correspond to the equivalent section (if any) in the 1997 Act;
"Taxation" includes income tax, any surcharge or other amount of whatever
description levied on the Fund, the Trustee, any Member, Former Member
or beneficiary pursuant to the Superannuation Conh·ibutions Tax
Imposition Act 1997 and related legislation (including provisional or
advance payments required under that legislation), capital gains tax, tax on
superannuation payments, payroll tax, land tax, stamp duty and any other
taxes or duties of whatever description paid or payable by the Trustee on
behalf of the Fund or, w here applicable, by any Member, former Member or
beneficiary;
"Terminal medical condition" has the same meaning as set out in 6.01A of
the Superannuation Industry (Supervision) Regulations 1994;
"Total and Permanent Disablement":
AZTI AZTI3012908I282817I AUMI1206133964.1
21
(a)
has the same meaning as contained in any Policy effected by the
Trustee with an Insurer in respect of the Member and in force at the
time of the Total and Permanent Disablement of the Member; or
(b)
has the same meaning as contained in the Insurance Memorandum,
where the Incident Date is between 1 August 1998 and 30 June 1999
and the Member is entitled to the benefit of the provisions in the
Insurance Memorandum providing for Total and Permanent
Disablement benefits; or
(c)
if there is no Policy containing such a term effected in respect of a
Member and paragraph (b) does not apply, then a Member is taken to
be suffering Total and Permanent Disablement if a Trustee of the Fund
is reasonably satisfied that the Member's ill-health (whether physical
or mental) mal<es it unlikely that the member will engage in Gainful
Employment for which the Member is reasonably qualified by
education, training or experience,
and the expression "Totally
and
Permanently
Disabled"
has
a
"Total and Temporary Disability" has the same meaning as the
corresponding term in the policy of insurance for such cover (if any);
"Tribunal" means the Superannuation Complaints Tribunal established
under the Superannuation (Resolution of Complaints) Act 1993;
"Trustee" means the Trustee or Trustees for the time being of the Fund
whether original, additional or substituted which are appointed in
accordance with Clause 12 of this Deed;
"Unclaimed Benefits" means those Benefits described as "unclaimed
money" under Part 22 of the Superannuation Industry (Supervision) Act
1993;
"Unit" means a unit established as described in Clause lOA of this Deed;
"Unit Value" means the value determined in accordance with Clause lOA of
this Deed;
"Withdrawal Benefit" means the minimum Benefit which must be paid to a
Member on the Member's withdrawal from the Fund as prescribed by the
Relevant Law.
2.
INTERPRETATION- GENERAL
(a)
Plural and gender of words
In this Deed, unless inconsistent with the subject matter or context,
words importing one gender shall include the other gender and words
importing the singular number shall include the plural number and
vice versa.
AZTI AZT130129081282817I AUMI1206133964.1
22
(b)
Headings to Clauses
The headings in this Deed are for convenience only and shall not affect
the interpretation of this Deed.
(c)
Defined words
For convenience, the first letters of words and expressions defined in
this Deed are indicated by capital letters, but the absence of a capital
letter shall not alone imply that the word or phrase is used with a
meaning different from that given by its definition.
(d)
Statutory enactments
References to any statutory enactment shall be construed as references
to that enactment as amended, modified or re-enacted from time to
time and shall include any enactment in substitution or replacement
for such statutory enactment. Any reference in this Deed to a provision
of an enactment shall include the relevant provision of the enactment
as amended, modified or re-enacted or of any enactment in
substitution for that provision.
(e)
Fund Subject to Relevant Law
This Deed shall be read and construed on the basis that the Relevant
Law is deemed to be incorporated into the Deed to the extent that it
imposes covenants or obligations on the Trustee in order for the Fund
to qualify for concessional Taxation treatment or to satisfy any other
requirements of the Commissioner and this Deed shall be further read
and construed on the basis that w here there is any inconsistency
between a provision in this Deed and a provision under the Relevant
Law the latter shall prevail to the extent of the inconsistency.
PROVIDED THAT this Deed shall not be so read or construed and no
such provision of the Relevant Law shall be so incorporated if to do so
would constitute a breach of the power granted by Clause 31 to add to,
amend, alter, modify, rescind or vary the provisions of this Deed.
(f)
Requirements of Commissioner
Any references to any requirements, consents or approvals being
required to be given by the Commissioner or for the purposes of
satisfying the Relevant Law shall mean requirements, consents or
approvals of the Commissioner or under the Relevant Law.
(g)
Superannuation Guarantee Legislation
The Trustee shall administer the Fund in order to facilitate the
acceptance of contributions in accordance with the Guarantee Act and
AZT/ AZT/3012908/282817/ AUM/ 1206133964.1
23
shall provide all such certificates, reports and other information as
shall be required by the Guarantee Act.
PART2
3.
CONFIRMATION
(a)
Maintenance of Fund
The Trustee agrees to maintain the Fund known as the TWU
SUPERANNUATION FUND which was established by trust deed
dated 4 October 1984 and commenced operation on 1 December 1984.
(b)
Assets of the Fund
The assets of the Fund shall continue to be vested in the Trustee upon
trust or apply the same in the manner set forth in this Deed.
(c)
Divisions within the Fund
The Trustee may from time to time establish and vary Divisions of the
Fund and the Trustee may acquire certain assets or determine that
certain assets are held in respect of a particular Division or in respect
of particular Employers or Members of a particular Division.
(d)
Allocation of Assets
If the Trustee acquires certain assets or determines that certain assets
are held in respect of a particular Division or in respect of particular
Employers or Members of a Division then those assets shall only be
available for the purposes of that Division or those Employers or
Members or in respect of liabilities of that Division or in relation to
those Employers or Members as the case may be.
(e)
Segregation of assets
Every asset shall be allocated to one or more of the Divisions,
investment choice or pool of assets of the Fund constituted pursuant to
this Deed as the Trustee considers appropriate.
(f)
Initial Divisions
As at the Commencement Date the following Divisions of the Fund are
established:
(i)
The TWU Superannuation Fund - Employer Sponsored
Division;
(ii)
The TWU Superam1uation Fund- Personal Division;
(iii)
The TWU Superannuation Fund - Allocated Pension Division.
AZTI AZT 130129081282817 I AUMI1206133964.1
24
(g)
Rules
The Trustee may make Rules governing each Division or in respect of
part of a Division or particular Employers or Members of a Division
and those Rules may be amended or varied in the same manner as this
Deed may be amended or varied.
(h)
Application of Assets
The assets comprised in each Division shall only be applied for the
purpose of that particular Division and shall not be available to meet
any liabilities in respect of the other Divisions of the Fund.
(i)
Assets of Divisions
Notwithstanding the other paragraphs of this Clause, the Trustee may
maintain the assets of two or more, or all, Divisions of the Fund in an
account kept in accordance with sub-clause ll(a) of this Deed.
(j)
Constitution of New Division
The Trustee may establish other Divisions of the Fund by executing a
Memorandum of Commencement constituting the new Division of the
Fund containing the following particulars:
(i)
the name of the Division;
(ii)
the Rules for that Division;
(iii)
the pool of assets for which benefits may be provided; and
(iv)
any other matters the Trustee determines, and
that Memorandum of Commencement shall take effect upon the date
stated in the Memorandum of Commencement.
(k)
Badged Divisions
The Trustee may enter into arrangements with third parties
("Sponsors") for the offer by the Sponsor of participation in a Division
("the Badged Division").
(i)
the provisions of this Deed apply to a Badged Division in the
same manner as they apply to any other Division established
under this Deed, unless the Rules relating to that Division
expressly provide otherwise.
AZTI AZT13012908/282817 I AUMI 1206133964.1
25
4.
GENERAL PROVISIONS
(a)
Employer's powers not prejudiced
Nothing in this Deed shall affect the powers of an Employer with
regard to the remuneration, terms of employment or dismissal of an
Employee or any other dealings between an Employer and its
Employee. The existence or cessation of any actual or prospective or
possible Benefit under the Fund shall not be grounds for claiming or
increasing damages in any action brought against an Employer in
respect of any termination of employment or otherwise.
(b)
Exercise of Trustee's rights
All powers, rights, decisions, discretions, appointments and other
authorisations of whatsoever nature or kind granted to or conferred on
the Trustee by, under or for the purposes of this Deed may be fully
and effectively exercised, made, done or performed by or on behalf of
the Trustee by resolution of its Directors in accordance with its articles
of association or by any person or persons having the authorisation of
such Directors to so act on their behalf PROVIDED THAT any
requirements of the Relevant Law are satisfied.
(c)
Rights of Members
The provisions of this Deed shall not in any way affect the right of a
Member or the personal representative of a Member or any other
person to claim compensation or damages under any Act of
Parliament or at common law or in circumstances where the Member
is injured or dies as a result of an event arising out of or in the course
of the employment of the Member.
(d)
(e)
Inquiries, Complaints and Disputes
(i)
If required by the Relevant Law, the Trustee shall ensure that
there are in force arrangements to deal with inquiries or
complaints from Members, Dependants or Beneficiaries in the
circumstances and within the time limits required by the
Relevant Law.
(ii)
Subject to the Trustee's right to determine in its discretion to
appeal against any decision of a Court or the Tribunal, the
Trustee shall ensure that it implements any decision of a Court
or Tribunal as required by that Court or Tribunal.
Benefits Secured
The rights of the Members and their Dependants to receive Benefits
payable under this Deed shall be fully secured within the meaning of
the Relevant Law.
AZT/ AZT/3012908/282817/ AUM/1206133964.1
26
(f)
Members Bound by Deed
The terms and conditions of this Deed are binding on the Trustee and
Member and all persons claiming through them respectively as if each
Member had severally been a party to this Deed.
(g)
Relevant Law to Prevail
Notwithstanding any of the provisions of this clause, the Trustee must
apply and administer the Deed and Rules in a manner and to the
extent that they comply with the requirements of the Relevant Law,
and where the Relevant Law prohibits the doing of any act or thing
requires the doing of any act or thing then notwithstanding the
requirements of the Deed or Rules the Trustee must refuse to do that
act or thing or do that act or thing as the case requires.
5.
PROPER LAW
This Deed shall be governed and construed and shall take effect in
accordance with the laws of Victoria. The Trustee, Members, Beneficiaries
and Employers shall accept the jurisdiction of the Courts of that State or
Territory. The provisions of Section 35b of the Trustee Act of South
Australia shall not apply to this Deed.
PART3
6.
EMPLOYERS AND MEMBERS
(a)
Employer Application for Membership
(i)
An Employer who is eligible under the Rules of a Division to
participate in that Division may apply for participation in that
Division in the form required by the Trustee.
(ii)
Any corporation, firm, organisation or person who:
A.
makes application in writing to the Trustee for
admission to the Fund by completing an application in
a form acceptable to the Trustee from time to time; or
B.
provides the Trustee with a written acknowledgement
that there is a standard employer-sponsor
arrangement between the Employer and the Trustee
shall become a Participating Employer of the Fund from
either:
A.
the date prior to 1 July 1994 on which it became a
Participating Employer; or
B.
the date the Trustee accepts a completed application to
become a Participating Employer with the Trustee; or
AZT / AZT/3012908/282817/ AUM/1206133964.1
27
C.
the
date
the
Trustee
accepts
a
written
acknowledgement from the Employer that there is a
standard employer-sponsor arrangement between the
Employer and the Trustee and
the Participating Employer shall be bound by the provisions of
this Deed from that date.
(b)
Deleted
(c)
Associated Employers
In its application a Participating Employer may join Associated
Employers as persons who may make contributions in respect of the
Employer's members and those Associated Employers by signing the
application shall become bound to make contributions in the manner
set forth in the application in the same way as a Participating
Employer is so bound and may cease contributions in the same
manner as a Participating Employer may cease contributions under the
Deed.
(ca) Participating Employer following successor fund transfer
(d)
(i)
The Trustee may admit as a Participating Employer an
employer of a Successor Fund Member.
(ii)
An Employer that becomes a Participating Employer pursuant
to clause 6(ca)(i) will, if it makes contributions to the Fund for
at least one of the Members who is Successor Fund Member for
a period of three months, be deemed to be:
(A)
bound by the terms of this trust deed;
(B)
to have agreed to contribute to the Fund for each of its
Employees who is a Successor Fund Member at the
rate and at such times that is not less than the rate and
the times it was obliged to contribute to the fund the
subject of the Successor Fund Agreement.
Application for Membership
(i)
A Participating Employer shall nominate to the Trustee those
of its Employees as it shall in its absolute discretion select to
become Members of the Fund. An Eligible Person in respect of
whom there is no Participating Employer may apply for
Membership of the Fund.
(ii)
The Trustee may at its sole discretion determine to admit an
applicant who is an Eligible Person to Membership of the
Fund.
AZT/ AZT/3012908/282817/ AUM/1206133964.1
28
(e)
Deleted
(f)
Admission to Membership
(g)
(h)
(i)
An Eligible Person becomes a Member on the date on which
the Eligible Person is entered into the administration system as
being a Member of the Fund .
(ii)
Subject to any other conditions which may be applied under
the provisions of this Deed, the Trustee may impose such
conditions on an applicant's admission and the rights and
duties of the Member as it shall determine and may limit and
impose cond itions upon Benefits as it sees fit and the Trustee
may remove or vary all or any of the aforesaid conditions at
any time.
(iii)
Upon admission to Membership of the Fund, the Member
shall be bound by this Deed in all resp ects as if the Member
were an original party to the Deed.
Members and Beneficiaries to Provide Information
(i)
Each applicant for Membership and any beneficiary shall
when requested by the Trustee furnish such information as the
Trustee d eems necessary for the purposes of any investigation
or otherwise in connection with the Fund, and shall submit to
medical examinations as required by the Trustee by a
registered medical practitioner w h o is acceptable to the
Trustee.
(ii)
Where a Member or beneficiary fails to com ply with the
provisions of this sub-clause, the Trustee m ay suspend the
collection of an y conh·ibutions in respect of that Member or
withhold any Benefits in respect of that Member or beneficiary
or impose such other conditions on the continued Membership
of that Member or on the beneficiary as the Trustee shall d eem
appropriate.
Incorrect or Misleading Information
Where a Member or beneficiary furnishes information required by the
Trustee which affects or is likely to affect the Benefits payable to or in
respect of a Member or beneficiary and the inform ation supplied is
incorrect or misleading or any relevant information is deliberately
withheld the Trustee may in its absolute discretion alter or amend the
Benefits to amounts that would h ave applied had full and accurate
information been supplied.
AZT / AZT/3012908/282817/ AUM/1206133964.1
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(i)
Information re Age
A Member shall inform the Trustee as soon as practicable after the
Member ceases to be Gainfully Employed either on a Part-Time Basis
or at the Part-Time Equivalent Level or Full-Time Gainful
Employment after age 65 years.
(j)
Cessation of Membership
A Member's Membership ceases (other than on death) on the last to
occur of the following:
(i)
when the Trustee has paid the Benefits that the Trustee
believes the Member is entitled; and
(ii)
on any insurance cover as specified in the Policy or in writing
by the Trustee ceasing.
(jj)
A person does not continue to be a Member nor does a person again
become a Member of the Fund as a result of a dispute between that
person and the Trustee as to that person's entitlement to a Benefit or
Benefits from the Fund whether or not the dispute is resolved in the
person's favour. Nothing in this provision shall limit a former
Member's entitlement to dispute any decision of the Trustee or remove
any obligation of the Trustee to deal with such a dispute.
(k)
Register of Employers and Members
The Trustee shall keep or cause to be kept a register of all Employers
and Members ("Register of Members") and then shall be entered into
that Register:
(i)
the name and address of each Employer and Member;
(ii)
the date upon which the name of each Employer and Member
became and Employer or Member as the case may be;
(iii)
the amount of the contributions made by each Member or on
behalf of each Member;
(iv)
the amount of the contributions made by an Employer in
respect of each Member;
(v)
the date upon which any Employer ceases to be an Employer,
the date upon which any Member ceases to be a Member; and
(vi)
such other matters and things as the Trustee considers
desirable.
AZTI AZT130129081282817I AUMI 1206133964.1
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(I)
Inspection of Register
Any Employer or Member shall be entitled free of charge to inspect
any entry in respect of that Employer or Member in that Register at
any time during business hours of the Trustee, at the registered office
of the Trustee.
(m) Termination of Participating Employer's Contributions
(i)
Circumstances of Cessation
A Participating Employer shall cease to be a Participating
Employer for the purposes of the Fund and contributions to
the Fund shall terminate from that Participating Employer on
the date that:
(ii)
A.
a deed of appointment placing the Participating
Employer in receivership or under official
management is executed by the appointor of that
receiver or manager;
B.
a resolution of its members or an order of a Court
places the Participating Employer in liquidation; or
C.
the Participating Employer permanently terminates its
contributions to the Fund by notice in writing to the
Trustee.
Exercise of Powers of Participating Employer
If the Participating Employer ceases to be a Participating
Employer as a result of the provisions of sub-clause 6(m)(i)
above, the powers and discretions vested in the Participating
Employer under this Deed shall immediately terminate and
shall then only be exercisable by such of the Participating
Employers as the Trustee shall from time to time determine or,
in the absence of any such determination, by the Trustee.
(iii)
Members' Contributions Terminated
No contribution shall be made by a Member without the
consent of the Trustee where the Participating Employer of the
Member has terminated its contributions in respect of that
Member under sub-clause 6(m)(i).
(iv)
Employees not to be Admitted
No Employee of a Participating Employer shall be admitted as
a Member where the Participating Employer's contributions in
AZf/ AZT/3012908/282817 / AUM/1206133964.1
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respect of its Employees have been terminated under subclause 6(m)(i).
(v)
Benefits Held for Members
In the event that contributions by a Participating Employer
cease in the circumstances described in sub-clause 6(m)(i) then
the Trustee shall deal with all Benefits in accordance with the
existing provisions of the Deed.
(n)
Deleted
(o)
Reconstruction or Amalgamation of a Participating Employer
If a Participating Employer is reconstructed, goes into liquidation for
the purpose of reconstruction, is merged or amalgamated with another
employer or disposes of all or the majority of its undertaking, the
Trustee may deal with the interests of Members in all or any of the
following ways:
(i)
Deed of Adoption
Enter into a deed of adoption with its successor as a
Participating Employer with the object of carrying on a
Complying Superannuation Fund either under this Deed or
any similar deed or rules on such terms and conditions as the
Trustee considers to be reasonable and which protects the
interests of the Members; or
(ii)
Transfer Assets
Transfer some or all of the assets of the Fund representing the
assets applicable to Members who were Employees of the
former
Participating
Employer
to
a
Complying
Superannuation Fund conducted by a new employer in
accordance with and subject to the provisions of Clause 21 in
respect of some or all Members or former Members; or
(iii)
Continue Fund
Continue to operate the Fund for the benefit of any Members
still employed by the former Participating Employer.
7.
MEMBERSHIP NOTIFICATION REQUIREMENTS
(a)
Notice to New Members
As soon as practicable before or after the admission of a person as a
Member of the Fund, the Trustee shall arrange for such Member to be
given a written statement containing:
AZTI AZT130129081282817I AUMI1206133964.1
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(b)
(i)
confirmation of acceptance of Membership detailing date of
admission;
(ii)
a summary of Benefits to which the Member will be entitled
and the method of determining those benefits and any
conditions relating to those Benefits; and
(iii)
all other information and details relating to the Fund as is
required to be provided by the Relevant Law.
Disclosure and Reporting Requirements
The Trustee shall arrange for Members, former Members and
Beneficiaries to be provided with information in writing or copies of
accounts, records or documents of the Fund as required by the
Relevant Law on an annual basis and on other occasions and in such
manner as shall be required by the Relevant Law.
(c)
Notice to Former Member
As soon as practicable after a person ceases to be a Member of the
Fund, the Trustee shall arrange for such former Member or the Legal
Personal Representative of the former Member to be given a written
statement containing such information and details relating to the
Benefits of the former Member as is required to be provided by the
Relevant Law
(d)
Disclosure Limitation
No Member or Dep endant of a Member shall be entitled to obtain
information in respect of any details of the operation of the Fund or on
any matter which may relate to the conduct of the Fund w hich in the
opinion of the Trustee would be inappropriate to disclose other than
as is provided for by this Clause.
(e)
Inspection of Trust Deed and other Documents
A copy of this Deed and any other documents as required by the
Relevant Law shall be made available for inspection by any Member
or beneficiary on the request of that Member or beneficiary and unless
otherwise required by the Relevant Law, it shall be sufficient for the
purposes of this sub-clause to make a copy of this Deed or such
documents available to the Member or beneficiary for inspection at the
office of the Trustee during hours when that office or business is open.
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33
(f)
Deleted
(g)
Deleted
(h)
Sub-Plans
(i)
(i)
The Trustee may in respect of any Division determine to make
a sub-plan for the Division ("Sub-Plan").
(ii)
In determining whether to make a Sub-Plan, the Trustee must
have regard to all relevant matters, including whether there is
a common factor in a segment of the Division (for example
where there is a group of Members of the Division who have
the same Employer).
Commission and Brokerage
(i)
8.
The Trustee may make a payment of commission or brokerage
to a person lawfully entitled to be paid such an amount in
consideration of the p erson applying or agreeing to apply for
participation in a Division or procuring or agreeing to procure
applications or participation.
MEETINGS OF MEMBERS
The Trustee may, and shall if so required by the Relevant Law, put in place
arrangements to facilitate the holding of meetings of Members of the Fund
from time to time PROVIDED THAT such arrangements shall comply with
the requirements of the Relevant Law.
PART4
9.
THEFUND
(a)
Fund Vested in Trustee
The Fund shall be vested in the Trustee and managed by the Trustee
upon the terms and conditions and subject to the trusts, powers,
authorities and discretions contained in this Deed.
(b)
Fund Assets
The gross assets of the Fund shall consist of all the cash, investments
and other property for the time being held by or on account of the
Trustee upon the trusts of this Deed and shall include:
(i)
the amount, if any, standing or transferred to the credit of the
Fund (including any amounts standing to the credit of any
accounts established pursuant to Clause 10 of this Deed) at or
after the date from which this Deed comes into effect;
AZTI AZT130129081282817I AUMI1206133964.1
34
10.
(ii)
such contributions (if any) as the Members shall make to the
Fund at any time;
(iii)
such contributions as an Employer makes to the Fund at any
time;
(iv)
interest, dividends and distributions of incom e arising from
any investment and the accumulation of that income;
(v)
profits and other benefits arising from any investment and the
accumulation of those profits;
(vi)
the proceeds (including bonuses) of any Policy held by the
Fund;
(vii)
moneys, investments and other property transferred to the
Fund as a Roll Over Paym ent;
(viii)
such Shortfall Components as are received by the Fund;
(ix)
any Financial Assistance received by the Fund; and
(x)
such other contributions permitted under this Deed and the
Relevant Law.
FUND ACCOUNTS
(a)
Accumulation Accounts
The Trustee shall establish an Accumulation Account for each Division
in respect of each Member or beneficiary.
(b)
Credits to Accumulation Accounts
The follow ing amounts shall be credited to the appropriate
Accumulation Account:
(i)
any amount paid into the Fund in respect of the Member as a
transfer or a Roll Over Payment which the Trustee considers it
appropriate to credit;
(ii)
any contributions made in r espect of the Member by the
Member or the Member's Spouse;
(iii)
any contributions m ade in respect of the Member or
beneficiary by the Employer;
(iv)
the proceeds of any Policy or Annuity (if any) effected by the
Trustee in respect of the Member or beneficiary and paid to
the Trustee which the Trustee considers it appropriate to
credit;
AZTI AZT130129081282817I AUMI 1206133964.1
35
(c)
(v)
such positive earnings as are determined by the Trustee and
transferred from the Income Account in accordance with subclauses lO(d), lO(g) or 13(e)(v);
(vi)
the number of Units issued and any increase in the Unit Value
as described in Clause lOA;
(vii)
such forfeited amounts as are allocated to but not paid directly
to the Member or beneficiary pursuant to sub-clause 24(d);
(viii)
any amounts transferred from the Pension Account of a
beneficiary;
(ix)
any Shortfall Component paid in respect of the Member;
(x)
any amount of Financial Assistance determined by the Trustee
to be appropriate to credit;
(xi)
any amount that is payable under the Insurance Memorandum
in respect of the Member;
(xii)
such other contributions made in respect of the Member and
permitted under this Deed and the Relevant Law; and
(xiii)
such other amounts as the Trustee shall from time to time
determine.
Debits to Accumulation Accounts
The following amounts shall be debited to the appropriate
Accumulation Account:
(i)
any amount paid out of the Fund in respect of the Member or
beneficiary as a transfer or a Roll Over Payment which the
Trustee considers it appropriate to debit;
(ii)
any other Benefit payments made to or in respect of the
Member or beneficiary other than payments from a Pension
Account;
(iii)
any amount that the Trustee determines is payable to obtain
any benefit offered to the Member under any insurance
contract or Policy;
(iv)
such proportion of any amount payable by way of Taxation in
respect of contributions or any Shortfall Component paid to
the Fund or earnings of the Fund credited to the Accumulation
Account or arising as a result of a Roll Over Payment as the
Trustee may determine;
AZT / AZT/3012908/282817/ AUM/1206133964.1
36
(d)
(v)
such of the costs, charges and expenses incurred in accordance
with Clause 17 or an appropriate portion thereof as the Trustee
may determine;
(vi)
the amount of any lien exercised pursuant to Clause 16;
(vii)
such am ount as is forfeited pursuant to sub-clau ses 24(a) or
24(b);
(viii)
such negative earnings as shall be determined by the Trustee
in accordance with sub-clauses lO(d), lO(g) or 13(e)(v);
(ix)
the number of Units redeemed and any decrease in the Unit
Value as described in Clause lOA;
(x)
any moneys paid in respect of the Trustee indemnity set out in
Clause 16;
(xi)
any amount credited to the Pension Account of a beneficiary;
(xii)
any amount of Levy determined by the Trustee to be
appropriate to debit;
(xiii)
any amount of Taxation attributable to the Member or
beneficiary;
(xiv)
any amount of commission or brokerage payable under Clau se
7(i);
(xv)
any am ount that is p ayable to obtain any benefit offered to the
Member under th e Insurance Memorandum; and
(xvi)
such other amounts as the Trustee shall from time to time
determine and permitted by the Relevant Law.
Income Account
(i)
The Trustee shall establish an Income Account in respect of
each Division to which shall, subject to paragraph 13(e)(v), be
credited from time to time the following:
A.
all income and profits of the Division that is not
represented by Units;
B.
credits arising out of adjustments pursuant to subclause lO(g) below;
C.
any amount transferred from the Equalisation Account
pursu ant to sub-clause lO(e) below;
AZfI AZTI3012908I282817I AUMI 1206133964.1
37
D.
the proceeds of any Policy effected by the Trustee
where the Trustee determines that it should not be
credited to an Account;
E.
any Financial Assistance received by the Fund and not
credited to an Account;
and profits of the Division shall include any surplus arising
from a valuation undertaken at any time during the year in
accordance with sub-clause 10(h) below.
(ii)
The Income Account shall, subject to paragraph 13(e)(v), be
debited from time to time with the following:
A.
any loss sustained on the disposal of any investments
of the Fund that is not represented by Units;
B.
any costs or charges incurred pursuant to Clause 17
which are not debited to an Account;
C.
any debits arising out of adjustments pursuant to subclause lO(g) below;
D.
the cost of any Policy effected by the Trustee where
the Trustee determines that it should not be debited to
an Account;
E.
any deficiency arising from a valuation undertaken in
accordance with sub-clause lO(h) below;
F.
any amount payable or which may become payable by
way of Taxation in respect of contributions, Shortfall
Components and income and profits of the Fund
which are not debited to an Account as the Trustee
determines to be equitable;
G.
any amount of Levy payable by the Fund and not
debited to an Account;
H.
any income transferred to the Equalisation Account.
(iii)
Following the crediting of the Income Account as specified in
paragraph 10(d)(i) and the debiting of the Income Account as
specified in paragraph 10(d)(ii), the Trustee shall from time to
time after having regard to the amount in the Income Account
determine for that part of the Fund that is n ot represented by
Units a Fund Earning Rate for such period as it specifies.
(iv)
Subject to paragraph 13(e)(v), the amount determined as the
earnings of each Division shall be allocated from the Income
Account to each Account in proportion to the amount standing
to the credit of that Account that is not represented by Units at
the time of crediting or debiting the amount allocated.
AZT/ AZT/3012908/282817 / AUM/1206133964.1
38
(e)
(v)
Any amount remaining in the Income Account after
distribution of earnings pursuant to paragraph lO(d)(iv) above
shall be transferred to the Equalisation Account established
under sub-clause lO(e) below .
(vi)
In the event that the Trustee is required to establish a Fund
Earning Rate in respect of a part of a period for w hich a Fund
Earning Rate is determined in accordance with paragraph
10(d)(iii) then an interim Fund Earning Rate for that p eriod
shall be determined by the Trustee on a basis the Trustee
considers to be equitable.
Equalisation Account
(i)
The Trustee shall have power at any time to establish an
Equalisation Account in respect of each Division and may
transfer to the credit of the Equalisation Account any amount
remaining in the Income Account under sub-clause lO(d)
above.
(ii)
Whilst any moneys are held in the Equalisation Account, they
shall not form part of any Accumulation Account or Pension
Account and any income earned by the Fund on the moneys
held in the Equalisation Account shall be credited to the
Equalisation Account.
(iii)
The Equalisation Account shall at the discretion of the Trustee
be used for the following purposes:
A.
to generally give effect to the reserving strategy
established by the Trustee to stabilise the investment
earnings of the Fund
B.
to provide for such contingencies as the Trustee shall
determine;
C.
to augment the Fund Earning Rate;
D.
to meet any Taxation payments payable by the Fund
E.
to pay any expenses, charges, commission or
brokerage payable by the Fund;
F.
to or for the benefit of a Member, Pensioner,
beneficiary or former Member including augmentation
of the Accumulation Account or Pension Account on a
basis that does not breach the Relevant Law; or
G.
for any other purpose determined by the Trustee
which does not breach the Relevant Law and w hich is
not inconsistent with trust law.
Az:rI A'Z:f'130129081282817I AUMI1206133964.1
39
(f)
Mortality Reserve
(i)
The Trustee may establish and maintain a Mortality Reserve
for the purpose of the Fund providing death or disability
benefits for Members and Beneficiaries of the Fund.
(ii)
Whilst any moneys are held in the Mortality Reserve, they
shall not form part of any Accumulation Account, Pension
Account, Income Account or Equalisation Account or any
other account established by the Trustee pursuant to this Deed
and any income earned by the Fund on the moneys held in the
Mortality Reserve shall be credited to the Mortality Reserve.
(iii)
The following amounts shall be credited to the Mortality
Reserve:
(iv)
(g)
A.
amounts payable for any benefit under the Insurance
Memorandum which are debited to Members'
Accumulation Accounts;
B.
any income earned by the Fund on the m oneys held in
the Mortality Reserve; and
C.
such other amounts as the Trustee shall from time to
time determine.
The following amounts shall be debited to the Mortality
Reserve:
A.
the amount of any benefit under the Insurance
Memorandum which is payable in relation to a
Member;
B.
any costs, charges and expenses reasonably incurred
by the Trustee in the provision of basic death cover or
additional death or disability cover; and
C.
such other amounts as the Trustee shall from time to
time determine.
Adjustment of Accumulation Account or Pension Account
In determining the amount standing to the credit of an Account at the
time a Benefit is calculated or becomes payable, the Trustee shall make
such adjustment (up to the date of payment) reflecting the Fund
Earning Rate then applying or changes in value of Units or the number
of Units (as is applicable) as it shall in its discretion consider equitable
and in accordance with the Relevant Law.
AZT/ AZT/3012908/282817/ AUM/1206133964.1
40
(h)
Valuation of the Fund
At the end of each Fund Year or at such other time as the Trustee
considers it appropriate or as the Relevant Law shall require the
Trustee shall make a valuation of all assets of each Division (including
the value of any Policy held by the Fund) at that date and shall
determine whether there is a surplus or deficiency which it is equitable
to transfer to the Income Account or the relevant sub-account referred
to in paragraph 13(e)(v) and the value so determined in respect of each
asset shall then be reflected in the balance sheet and other accounts of
Division and of the Fund.
lOA.
UNITS
lOA.l
(a)
The Trustee may (but need not do so) divide the interest in a Division,
investment choice or pool of assets of the Fund into a separate class or
separate classes of Units. If the Trustee does divide the interest into
Units then provisions of Clause lOA shall apply accordingly.
(b)
All Units of a class of Units shall rank pari passu with all other Units
of the relevant class and each Unit of a class shall:
(c)
(i)
represent an undivided interest in the relevant Division,
investment choice or pool of assets of the Fund referable to
that class of Units in the relevant Division that shall be equal
to that conferred by every other Unit of that class; and
(ii)
have an equal Unit Value to each other Unit of that class.
The Trustee shall not issue any certificates for Units.
10A.2 Creation of Units
When contributions are applied for the creation of Units in a class of Units,
the contribution shall be applied to each Division, investment choice or pool
of assets of the Fund referable to that class of Units and additional Units of
the same class shall be thereby created.
10A.3 Number of Units
The number of additional Units of a class that are created shall be that
number determined by dividing the amount or value of contributions
applied for Units of the class by the Application Price of the Units of that
class at that time.
10A.4 Application Price
The Application Price shall be the aggregate of:
AZT/ AZT/3012908/282817 / AUM/ 1206133964.1
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(i)
Unit Value of the Units as last declared by the Trustee on or prior to
the day the Units are deemed to be created;
(ii)
any transaction costs not taken into account in determining the Net
Asset Value which in the opinion of the Trustee may be payable in
respect of a contribution or creation or issue of Units or the conversion
of contributions to investments.
and the Application Price of a Unit may be rounded down to the nearest
fourth decimal place of a cent or by such other amount determined by the
Trustee.
10A.5 Timing of creation of Units
If the Trustee accepts a contribution, then the Units so applied for shall be
deemed to be created on the next business day or such other time as is
determined by the Trustee.
10A.6 Request to pay a Benefit
The Trustee shall, subject to the provisions of this Deed, upon a Benefit
becoming payable cause the redemption of the Units which relate to such
Benefit.
10A.7 Trustee entitled to redemption
Where under this Deed the Trustee becomes entitled to redeem Units then
such entitlement to redeem Units shall be deemed to be a notice of
redemption given by the Trustee for the purposes of this document.
10A.8 Calculation and payment
(a)
On receipt of a request for payment, the Trustee shall in respect of
each Unit referable to the request for payment calculate the amount
equal to the aggregate of the Unit Value of each Unit the subject of the
request for payment as next declared by the Trustee after the business
day on which the request for payment is taken to be received by or
given by the Trustee or on such other date as reasonably determined
by the Trustee.
(b)
The redemption price of a Unit shall be an amount determined by the
Trustee from time to time by dividing the sum of the Net Asset Value
of the relevant Division, investment choice or pool of assets of the
Fund to which that class of Units are allocated, by the number of
Units. From the amount so calculated will be adjusted as follows:
(i)
by an amount to allow for any transaction cost not taken into
account in determining Net Asset Value which in the opinion
of the Trustee may be payable on or in respect of a
contribution or the creation or issue of Units or the conversion
AZTI AZTI30129081 282817I AUMI 1206133964.1
42
of contributions to investments including any stamp duty,
receipt duty, transaction tax, GST or any other tax, or impost
and any costs, fees, brokerage or commissions;
(ii)
by an amount to round to the nearest fourth decimal place of
$1.00 (or by such other amount determined by the Trustee).
(c)
The Trustee shall pay to the person entitled to receive the proceeds of
the redemption calculated in accordance with this sub clause.
(d)
Unless otherwise agreed with the Member, the Trustee may select
what class of Units are redeemed in order to meet any payment of a
Benefit, premiums payable in respect of any insurance benefit, costs
and disbursements, fees and charges or tax.
10A.9 Cancellation of Units
The Units the subject of a notice of redemption shall be cancelled on the
date on which the Trustee makes the redemption calculation or another date
as determined by the Trustee to be appropriate.
lOA.lO Request to Switch
(a)
A Member may request on a quarterly basis or such other time as
permitted by the Trustee in the approved form as is determined from
time to time by the Trustee that Units of one class held by the Member,
be converted into Units of another class. The provisions as to
redemption shall apply as if that request was a request for redemption
of Units.
(b)
For the purpose of such switching the Trustee may establish
procedures as to the basis upon w hich the Trustee will accept any such
request and as to the time or intervals on which such request shall be
processed.
lOA.ll Number of Units to be Redeemed
In calculating the number of Units to be converted pursuant to a request
under Clause 10A.10, the amount shall be the aggregate of the Unit Value of
each Unit the subject of the conversion request as next declared by the
Trustee after the business day on which the request is r eceived and accepted
by the Trustee, and the amount payable shall not be paid to the Member but
shall be applied by the Trustee on behalf of the Member in the purchase of
Units of the class specified in the request at a price calculated as if it were a
request for a payment of a benefit. The Trustee may waive the deduction or
addition of the transactions costs, if appropriate, having regard to the
number and type of Units subject to the switch.
10A.12 Date of Redemption
AZf / A?:r/3012908/282817/ AUM/1206133964.1
43
The redemption of the Units shall be effected on the day on which the
redemption amount is calculated or other such time as the Trustee deems
appropriate.
10A.l3 Valuation of Units
11.
(a)
The Trustee shall ascertain the Net Asset Value of Units of each
Division, investment choice or pool of assets of the Fund from time to
time as determined by the Trustee or the immediately preceding
business day if that day is not a business day and at any other time in
each month as the Trustee in its discretion may select (including on a
daily basis).
(b)
For the purposes of any valuation of the Net Asset Value of Unit assets
where any Unit assets are valued by reference to a day or date then
that day or date may be any period of 24 hours approved by the
Trustee. For the purpose of calculating the number of business days
after the 24 hour period, the 24 hour period shall be deemed to be the
day or date on which the period commences.
FUND RECORDS, DISCLOSURE AND INVESTIGATION
(a)
Receipt and payment of moneys
All moneys of the Divisions of the Fund shall be lodged as soon as
practicable to the credit of an account in the name of the Trustee or
Custodian kept with a bank or non bank financial institution as
determined from time to time by the Trustee and the Custodian or to
the credit of an Insurer for the payment of premiums or into the trust
account of a Solicitor, Accountant or Investment Manager appointed
by the Custodian in accordance with this Deed.
(b)
Issue of receipts
A receipt given on behalf of the Fund by the Trustee, by the secretary
(if any) of the Fund, by the Custodian or by any other person who may
from time to time be authorised by the Trustee in writing to receive
any moneys of the Fund shall be a sufficient discharge to the person by
whom the moneys are paid.
(c)
Records and accounts to be kept
(i)
The Trustee shall arrange for:
(ii)
the keeping of accounts and records of all moneys received
into and disbursed from each Division of the Fund and of all
dealings in connection with such moneys;
(iii)
the collection, and prompt payment into an authorised
account of each Division of the Fund or the otherwise
AZT I AZTI3012908I282817I AUMI1206133964.1
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appropriate dealing with all moneys due to each Division of
the Fund;
(d)
(iv)
the keeping and safe-custody of all records, books, accounts,
minutes, reports and other documentation as may be required
by the Relevant Law or otherwise m proper order, and the
retention of such records, books, accounts, minutes, reports
and documents for such period as is required by the Relevant
Law;
(v)
the preparation of an annual balance sheet of the Fund, a
statement of financial position, an operating statement or such
accounts and statements m respect of each Fund Year as are
required by the Relevant Law; and
(vi)
the preparation and lodgement of an annual return to the
Commissioner and of such other certificates, statements,
forms, documents and information in such manner and w ithin
such time as is required by the Relevant Law.
Audit
The Trustee shall:
(e)
(i)
make suitable arrangements for the auditing of the accounts,
books and relevant records of the Fund by an approved
Auditor annually or at such other times as required by th e
Relevant Law; and
(ii)
obtain from the approved Auditor a certificate at such time
and in such form as required by the Relevant Law.
Information for Trustee
When requested by the Trustee, an Employer shall give to the Trustee
all information in its power or possession which may in the opinion of
the Trustee be necessary or expedient for the management and
administration of the Fund. The Trustee may act upon any information
given to it by an Employer pursuant to this Deed and shall n ot be
required to verify that information.
(f)
Disclosure and Reporting Requirements
The Trustee shall arrange to provide to:
(i)
Employers;
(ii)
the Commissioner;
(iii)
the Actuary;
AZT/ AZT /3012908/282817/ AUM/ 1206133964.1
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(iv)
the Auditor; and
(v)
any other persons specified in the Relevant Law,
such information or documentation, at such time and in such manner
as shall be required by the Relevant Law.
(g)
Production of Books or Access to Premises
The Trustee shall make suitable arrangements for the production of
any books, records or other information in relation to the Fund and the
access to premises where any such books or information are kept for
the purpose of inspection and the taking of copies in accordance with
the Relevant Law.
(h)
Directions of Commissioner
The Trustee must comply with any direction or requirement of the
Commissioner in relation to the Fund including but not limited to the
acceptance of contributions into the Fund, the disposal of assets of the
Fund, the appointment of an investigator to the Fund and the conduct
of an investigation into the Fund.
(i)
Information and Documents for Tribunal
The Trustee shall arrange to provide to the Tribunal any information
or documents relevant to a complaint before the Tribunal in such
manner and within such time as required by the Superannuation
Resolution of Complaints) Act 1993 and may make submissions to or
attend a conference of the Tribunal as the Trustee sees fit.
PARTS
12.
FUND TRUSTEE- APPOINTMENT, VACANCY AND REMOVAL
(a)
Trustee must be an Approved Trustee
The Trustee of the Fund shall at all times be a Constitutional
Corporation which is eligible to act as a trustee in accordance with the
requirements of the Superannuation Industry Supervision Act 1993
unless the Relevant Law otherwise provides.
(b)
Member and Employer Representation
If so required by the Relevant Law, the Trustee shall put in place
arrangements to facilitate equal representation of Members and
Employers and may for this purpose, and shall if so required by the
Relevant Law, set up one or more Policy Committees.
AZTI AZT 130129081282817I AUMI1206133964.1
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(c)
Policy Committees
In the event that the Trustee is required to establish one or more Policy
Committees for the Fund under the Relevant Law, it shall take all
necessary steps to establish and maintain the operation of such Policy
Committees in order to fulfil the functions required of Policy
Cmnmittees as set out in the Relevant Law and it shall administer,
dissolve, reform or replace such Policy Committees as necessary in
accordance with the Relevant Law.
(d)
Change of Trustee
A Trustee shall immediately cease to act as Trustee of the Fund:
(e)
(f)
(i)
if it is placed in receivership or in liquidation;
(ii)
if it is disqualified from holding office as a Trustee by
operation of the Relevant Law or if the Trustee is removed or
suspended from office under the Relevant Law;
(iii)
if it ceases to satisfy the requirements of the Superannuation
Industry (Supervision) Act 1993 as to trustees; or
(iv)
if it resigns as a Trustee of the Fund by giving written notice to
the Commissioner.
Appointment of Trustee
(i)
A Trustee of the Fund shall be appointed in writing in
accordance with the provisions of this Deed by the retiring
Trustee PROVIDED HOWEVER that in the event that the
Trustee is suspended or removed by the Commissioner, a new
Trustee shall be appointed by the Commissioner in accordance
w ith the Relevant Law.
(ii)
In the event that a new Trustee is not appointed by the Trustee
prior to the vacation of its office, a new Trustee will be
appointed by agreement between the Transport Workers'
Union and the Australian Road Transport Industrial
Organisation or its successor or in the event that th ere is no
successor then one or more Employers representing more than
ten (10) p ercent of the Members of the Fund.
Retirement of Trustee
If the Trustee has retired from office the Trustee shall thereupon or at
any time thereafter (if called upon by the then Trustees to do so), do,
sign and execute all such things, papers, writings, documents, deeds
and instruments as maybe necessary to give proper effect to such
AZT/ AZT/3012908/282817/ AUM/ 1206133964.1
47
retirement from office and the transfer or assignment to or otherwise
the vesting of the assets comprised in the Fund in the new Trustee.
(g)
Significant Adverse Event
The Trustee will on becoming aware of the occurrence of an event
having a significant adverse effect on the financial position of a
Division (as described in section 106(2) of the Superannuation
Industry (Supervision) Act 1993) give within the period prescribed by
the Relevant Law written notice of the event to the Commissioner
setting out particulars of the event.
(h)
Reasonable and Proper Costs
The Trustee will ensure that the costs, charges and expenses of a
Division in respect of which a payment is made are reasonably and
properly incurred.
(i)
Antecedent Breach by Trustee
Nothing contained in this Deed shall relieve a Constitutional
Corporation which ceases to be Trustee from liability for any
antecedent breach of trust for which it would otherwise be liable.
13.
TRUSTEE'S INVESTMENT POWERS
(a)
Investment Strategy
The Trustee shall formulate and give effect to one or more investment
strategies that have regard to the whole of the Circumstances of the
Fund which strategies may be reviewed from time to time and shall be
formulated and effected in accordance with the Relevant Law.
(b)
Authorised Investments
So much of the moneys forming part of the Fund from time to time
(including moneys standing to the credit of the Mortality Reserve) as
shall not be required immediately for the payment of Benefits or other
amounts authorised by this Deed shall be invested in accordance with
the investment strategies of the Fund as determined under sub-clause
13(a) in any of the following investments:
(i)
any investment for the time being authorised by the laws of
the Commonwealth of Australia or any State or Territory for
the investment of trust funds;
(ii)
the purchase or acquisition in any way of shares, stocks,
debentures, notes, bonds, mortgages, options or other like
security in any company incorporated in any part of the world
whether or not carrying on business in Australia and whether
AZT/ AZT/3012908/282817/ AUM/1206133964.1
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the shares or stock be fully or partly paid up and whether
secured or unsecured, registered or unregistered;
(iii)
on deposit with any bank, building society, credit cooperative,
trustee company or other registered financial institution in any
type of account, whether secured or unsecured and on such
terms as the Trustee shall determine;
(iv)
on deposit with or on loan to any Employer or any other
person or organisation whatsoever with or without security
and at such rate of interest and upon such terms as the Trustee
may deem reasonable notwithstanding that the Trustee may
have a direct or indirect interest in the borrowing or may
benefit directly or indirectly from it;
(v)
any Policy or Annuity with an Insurer whether by proposal,
purchase or otherwise, and any choses in action, interests for
life or any lesser term or m reversion or otherwise arising;
(vi)
the purchase or acquisition of any real or personal property
and the improvement or extension of that property;
(vii)
the purchase or acquisition of or subscription for any unit or
sub-unit in any unit trust established or situated anywhere in
the world whether individually or jointly and whether such
units or sub-units are fully paid up or whether their issue
involves any contingent or reserve liability;
(viii)
the acquisition of any futures, options or other synthetic
investment and participation in any hedging, swapping or
other like arrangement irrespective of whether such dealing is
related to any other property forming part of the Fund;
(ix)
any other investments which the Trustee
appropriate and which satisfy the Relevant Law,
considers
and the Trustee shall have all the powers and authorities necessary to
enable it to make each such investment PROVIDED THAT the Trustee
must not make a loan to or give any financial assistance to a Member
or a relative of a Member of the Fund and PROVIDED FURTHER
THAT the Trustee shall ensure that all investments shall be in
accordance with the Relevant Law.
(c)
Power to Sell, Vary and otherwise deal with Investments
The Trustee shall have power to sell any investments, to vary and
transpose any investments into other investments authorised by this
Deed and to otherwise deal with and manage the investments of the
Fund as the Trustee in its discretion sees fit.
A7:f/ AZT/3m 2908/282817/ AUM/1206133964.1
49
(d)
(e)
Interest of Trustee in Investment
(i)
Subject to paragraph (ii) below, the Trustee and any Director
shall have the power and are authorised to make or vary any
of the investments authorised under this Deed
notwithstanding that the Trustee or Director may have a direct
or indirect interest in the investment or may benefit directly or
indirectly from it.
(ii)
The Trustee and any Director shall disclose details of any
interest in an investment to which paragraph (i) applies in the
manner prescribed under the Corporations Law and the
Relevant Law.
Provision of Investment Choice
(i)
The Trustee shall not be obliged to provide investment choice
to Members or Beneficiaries of the Fund. The Trustee may
however in its absolute discretion determine to provide
investment choice either generally or only in respect of certain
Members or Beneficiaries or certain classes of Members or
Beneficiaries of the Fund.
(ii)
Where the Trustee determines to provide investment choice, it
shall establish an investment strategy for each of the
investment choices available to Members and Beneficiaries
under the Fund and where appropriate shall allocate or
designate particular assets of the Fund to be held within that
strategy and shall advise Members and Beneficiaries of the
investment objectives of each of those strategies and provide
any other information required for this purpose by the
Relevant Law to enable Members and Beneficiaries to make an
informed decision regarding the effect of, and risks associated
with, each of those investment strategies. The advice provided
shall include the various directions that a Member or a
beneficiary can give to the Trustee under paragraph (vi) below
and the circumstances in which any such directions can be
given or altered.
(iii)
The Trustee shall continually monitor each of the investment
strategies established under paragraph (ii) above and the
assets held within each strategy in order to ensure that each of
those investment strategies is appropriate at all times in
respect of Members or Beneficiaries or classes of Members or
Beneficiaries to whom each of those strategies is available.
(iv)
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(v)
The Trustee, where clause lOA does not apply, shall determine
a Fund Earning Rate in respect of the investment strategy after
allowing for such costs and expenses attributable to that
investment strategy and shall allocate from time to time to
each Account the Fund Earning Rate for that investment
strategy applicable to the Member or beneficiary in proportion
to the amount standing to the credit of the Member's or
beneficiary's Account at the time of allocation.
(vi)
Upon admission of a person to Membership of the Fund or at
any time whilst a person remains a Member or beneficiary of
the Fund, that person may, subject to paragraph (viA), where
the Trustee has determined to offer investment choice in
accordance with paragraph (i) above, select one or, where the
Trustee has determined to permit Members to select multiple
strategies, more than one of the investment strategies
formulated by the Trustee under paragraph (ii) above and
direct the Trustee to invest part or the whole of the m onies
held in respect of that person under the Fund in accordance
with the investment strategy or strategies selected by that
person under this paragraph PROVIDED THAT any such
directions by the Member or beneficiary shall only be given in
the circumstances permitted by, and in accordance with, the
Relevant Law and without limiting any of the foregoing the
Trustee shall ensure that the Member or beneficiary is
provided with such information as shall be required by the
Relevant Law in order to enable the Member or beneficiary to
make an informed decision.
(viA)
The Trustee shall have the power to require a person, as a
condition of admission to Membership of the Fund or at any
time following as a condition of remaining a Member or
beneficiary of the Fund, to make an investment choice where
the Trustee has determined to offer investment choice in
accordance with paragraph (i) above, select one or, where the
Trustee has determined to permit Members to select multiple
strategies, more than one of the investment strategies
formulated by the Trustee under paragraph (ii) above and
direct the Trustee to invest the whole of the monies held in
respect of that person under the Fund in accordance with the
investment strategy or strategies selected by that p erson m1der
this paragraph PROVIDED THAT any such directions by the
Member or beneficiary shall only be given in the
circumstances permitted by, and in accordance with, the
Relevant Law and without limiting any of the foregoing the
Trustee shall ensure that the Member or beneficiary is
provided with such information as shall be required by the
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51
Relevant Law in order to enable the Member or beneficiary to
make an informed decision.
(vii)
A Member or beneficiary who wishes to select one or more
investment strategies pursuant to paragraph (vi) above shall
complete a request or any other documentation provided by
the Trustee for this purpose which must clearly set out details
of the investment strategy or strategies selected by the
Member or beneficiary. The Trustee shall not be bound to act
on the request or other documentation unless that request or
other documentation is completed in accordance with any
instructions issued by or on behalf of the Trustee and does not
breach any of the requirements of the Relevant Law.
(viii)
Except to the extent permitted by the Relevant Law, a Member
or beneficiary or any other person shall not direct the Trustee
to make a particular investment in respect of a Member or
beneficiary of the Fund. Where a Member or beneficiary
wishes to select particular investments, (whether those
investments comprise one or more assets), a request to the
Trustee shall be made for an additional investment strategy or
strategies for those particular investments ("asset specific
investment strategy") to be formulated by the Trustee and for
that strategy or those strategies to be made available to that
Member or beneficiary in accordance with paragraph (ii)
above. The Trustee may in its absolute discretion approve or
reject any requests made under this paragraph. If the Trustee
approves a request made under this paragraph, the Member or
beneficiary who made the request shall be informed
accordingly by the Trustee and the provisions of paragraphs
(ii), (iii), (iv), (v), (vi) and (vii) above shall, with any necessary
modifications thereof, apply to any request approved by the
Trustee under this paragraph.
(ix)
The Trustee shall advise Members and Beneficiaries of the
investment strategy or strategies which will be adopted by the
Trustee in respect of those Members or Beneficiaries or classes
of Members or Beneficiaries who decline, or otherwise are
unable to select an investment strategy under paragraph (vi)
or (viii) above.
(x)
Where an Employer contributes to the Fund in respect of a
Member or beneficiary or classes of Members or Beneficiaries,
that Employer may, to the extent and in the circumstances
permitted under the Relevant Law, give directions to the
Trustee regarding the investment strategy or strategies that
may be pursued in relation to the Member or beneficiary or
classes of Members or Beneficiaries in respect of whom that
Employer contributes.
AzrI AZTI 3012908I 282817I AUMI 1206133964.1
52
(xi)
(f)
Notwithstanding any of the foregoing the Trustee may adopt
an investment strategy or strategies specifically tailored to
existing Fund investments in respect of which a direction had
been given by the Member or beneficiary or classes of
Members or Beneficiaries and accepted by the Trustee prior to
the lodgement by the Trustee of an election under section 19(4)
of the Superannuation Industry (Supervision) Act 1993.
Securities Lending Arrangements
The Trustee may enter into any securities lending agreement or facility
with the Custodian for the lending of securities of the Fund held by
the Custodian, whether in Australia or overseas to approved
borrowers for the purposes of achieving an investment return for the
Fund.
14.
TRUSTEE'S POWERS OF MANAGEMENT
(a)
Trustee to Manage each Division
Subject to the provisions of this Deed, the Trustee must manage each
Division for the benefit of the Participating Employers and Members
with full and complete powers of management.
(b)
Additional Powers
In addition to the powers which it might have by law and which are
otherwise granted to it by this Deed, the Trustee shall have the
following powers:
(i)
to settle, compromise or submit to arbitration any claims,
matters or things relating to this Deed or to the rights of
Members, former Members or Beneficiaries;
(ii)
to commence, carry on or defend proceedings relating to the
Fund or to the rights of Members, former Members or
Beneficiaries and to commence, carry on or defend legal
proceedings in order to recover damages against any person
arising out of any loss suffered by any Member or former
Member or beneficiary as a result of any negligence, default,
omission, breach of duty or breach of the terms of this Deed
and the Trustee m ay abandon, settle, compromise or release
any such legal proceedings as it may consider desirable;
(iii)
to borrow money and to secure the repayment of it in any
manner and upon any terms (including with or without
security) which the Trustee may deem advisable PROVIDED
THAT such borrowing shall not breach the Relevant Law;
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53
(iv)
to insure or reinsure any risks, contingencies or liabilities of
the Fund with any Insurer, mortgage insurance company,
reinsurance company or superannuation fund;
(v)
to underwrite or sub-underwrite any risks, contingencies or
liabilities under any superannuation arrangement conducted
by any Employer where there is an agreement for a transfer of
Employees to the Fund;
(vi)
to purchase an Annuity from an Insurer in order to provide all
or apart of the Pension payable in respect of a Member and
any such Annuity shall be in the name of the Trustee or, if the
Trustee shall so determine, in the name of the former Member;
(vii)
to retain the services of and to appoint professional or other
advisers in relation to the management, investment,
administration or conduct of the Fund, to act on the advice of
any person so retained and to pay the fee or remuneration for
any professional or other advisers so appointed;
(viii)
to pay and advance out of the Fund all costs, expenses and
outgoings (including Taxation) of and incidental to the
management and administration of the Fund and to pay and
advance out of the Fund the professional fees (if any) in
respect of the provision of its services as Trustee of the Fund;
(ix)
to indemnify or undertake to indemnify any person, company,
government or institution in respect of any claims, matters or
things relating to the Fund or to the rights of Members, former
Members or Beneficiaries in respect of the Fund PROVIDED
that an indemnity shall only be provided to the extent it is not
limited by or would be inoperative under the Relevant Law;
(x)
to provide a full or partial release to any person, company,
government or institution in respect of any matters which
have arisen or may arise as a result of an association,
involvement or Membership of the Fund by that person;
(xi)
to appoint a person who shall be responsible for the chairing
of meetings of the Trustee and any other obligations which the
Trustee vests in the person and, if required, to pay a fee or
remuneration to such person in respect of such position;
(xii)
to insure and keep insured as it sees fit any liability of the
Trustee or any Directors or officers of the Trustee or the
liability of the Fund to indemnify or reimburse the Trustee or
its Directors or officers pursuant to Clause 16;
AZfI AZT130129081282817I AUMI 1206133964.1
54
(xiii)
to maintain reserves in respect of the Fund or a division of the
Fund including the General Reserve Account and the
Operational Risk Reserve Account;
(xiiiA) to determine such provisions for reserves in determining a
Fund Earnings Rate or Unit Value as the Trustee shall consider
reasonable for any purposes and, where appropriate, having
regard to the Prudential Standards;
(xiv)
to enter into such agreements or enforce any agreement that
benefits Members of a Division;
(xv)
to enter into any agreement or provide any notice or make any
election or undertake any other action w hether revocable or
irrevocable which would or may have the effect of committing
the Trustee to conduct the Fund at all times as a Complying
Superannuation Fund;
(xvi)
to arrange insurance cover or to provide benefits in accordance
with the terms and conditions prescribed by the Trustee in the
Insurance Memorandum on the life of the Members or on the
Total and Permanent Disability of the Members;
(xvii)
to determine, where the Trustee considers it to be appropriate,
to submit any dispute to conciliation by the Superannuation
Complaints Tribunal and agree to be bound by terms of
settlement proposed in a conciliation where those terms are
acceptable to the Trustee;
(xviii) to seek modifications of or exemptions from the application of
the Relevant Law to the Fund PROVIDED THAT the Trustee
shall be relieved from complying with any provision of the
Relevant Law in respect of w hich an exemption or a
modification has been granted;
(xix)
to set the Fund Earning Rate policy and if the Trustee
considers it appropriate, set a unit pricing policy, including
policies as to how to deal with market volatility, disruption,
illiquid investment options, errors and w hether or not
compensation should be made where errors occur in the Fund
Earning Rate or the Unit Value;
(xx)
generally to do all acts and things as the Trustee may consider
necessary or expedient for the administration, maintenance
and preservation of the Fund and in the performance of its
obligations under this Deed;
(xxi)
at its discretion to delay processing, paying, transferring or
switching a Ben efit for such period w hile there is an
AZT/ AZT/3012908/282817/ AUM/1206133964.1
55
occurrence or the existence of any circumstance or event w hich
the Trustee considers would make it not practicable or could
be materially prejudicial to the interests of Members generally
to make that payment;
(xxii)
(c)
at its discretion the Trustee may, where there is an occurrence
or the existence of any circumstance or event w hich the
Trustee considers would make it impracticable to continue to
apply normal valuation processes or could be materially
prejudicial to the interests of Members generally to not take
such action, suspend the Unit Value w here applicable and th e
calculation of or increase the frequ ency of calculation of, or
substitute one calculation for another calculation of the Fund
Earning Rate (or Unit Value where applicable) or the value at
which an interest in the Fund is issu ed or switched for another
interest in the Fund or is paid or transferred out of the Fund.
Exercise of Trustee Powers
All the powers and discretions conferred upon the Trustee or any
Director by this Deed or by law may be exercised notwithstanding that
the Trustee or any Director may have a direct, indir ect or personal
interest (whether as a shareholder, director, member or partner of any
company, organisation or partnership) in the manner or result of
exercising such power or discretion or may benefit directly or
indirectly as a result of the exercise of any such power or discretion
and notwithstanding that the Trustee for the time being is the sole
Trustee of the Fund.
(d)
Trustee Discretion
The Trustee in the exercise of the trusts, authorities, powers and
discretions conferred on it by this Deed shall have an absolute and
uncontrolled discretion as to their exercise in relation to the manner,
mode and timing of exercise, the exercise of which shall be final and
binding PROVIDED THAT the Trustee shall not discriminate against
any person in such a manner as to infringe any law of the
Commonwealth or a State or Territory in respect of discrimination
PROVIDED FURTHER THAT the exercise of the trusts, authorities,
powers and discretions conferred on the Trustee by this Deed shall be
subject to the Relevant Law.
(e)
Trustee Delegation
The Trustee may delegate to any person any of the powers, duties and
discretions conferred on the Trustee under this Deed upon such terms
and conditions as the Trustee shall determine and the Trustee may
vary, limit or revoke any such delegation PROVIDED THAT any such
AZTI AZT130129081282817I AUMI1206133964.1
56
delegation shall only be undertaken in accordance with the Relevant
Law.
(f)
Trustee Direction
Except in those circumstances which are acceptable within the
Relevant Law the Trustee shall not be subject to direction by any
person in the exercise of any of its powers.
(g)
Reserves
The Trustee may establish and maintain an account referred to as the
General Reserve Account and may deal with the account in the
following manner:
(i)
(ii)
14A.
Amounts credited to the General Reserve Account:
A.
such amounts as the Deed and the Rules may require
to be credited; or
B.
such amounts as the Trustee m ay from time to time
consider equitable and desirable to be credited.
Amounts debited to the General Reserve Account:
A.
such amounts as the Deed and the Rules may require
to be debited; or
B.
such amounts as the Trustee may from time to time
consider equitable and desirable to debited.
OPERATIONAL RISK RESERVE ACCOUNT
The Trustee may establish and maintain an account referred to as the
Operational Risk Reserve Account and may deal with the account in the
following manner:
(a)
(b)
Amounts credited to the Operational Risk Reserve Account:
(i)
such amounts as the Deed and the Rules may require to be
credited; or
(ii)
such amounts as the Trustee may from time to time consider
appropriate having regard to the Prudential Standards and the
Trustee's Operational Risk Financial Requirement Strategy.
Amounts to be debited to the Operational Risk Reserve Account:
(i)
such amounts as the Deed and the Rules may require to be
debited; or
AZTI AZr130129081282817I AUMI1206133964.1
57
(ii)
14B.
such amounts as the Trustee may from time to time consider or
determine to be an amount referable to an Operational Risk of
the Fund or otherwise payable in accordance with the Trustee's
Operational Risk Financial Requirement Strategy.
MOVEMENT OF ACCRUED DEFAULT AMOUNTS
(a) As required by the Prudential Standards the Trustee will:
15.
(i)
determine the balance, if any, in each Member's Benefit Account
that is an Accrued Default Amount.
(ii)
prepare and regularly review a transition plan for all Accrued
Default Amounts and no later than 1 July 2017, attribute each of
those amounts to a MySuper product for the relevant Member or
take such other action in respect of the Accrued Default Amount
as required under the Prudential Standards.
LIMITATION OF LIABILITY
(a)
Liability of Trustees, Directors and officers
Neither the Trustee nor any of its Directors or officers shall be liable
for anything done or omitted to be done in relation to or in connection
with any act or omission concerning the Fund except if that person:
(b)
(i)
fails to act honestly; or
(ii)
intentionally or recklessly fails to exercise the degree of care
and diligence that the person is required to exercise; or
(iii)
incurs a monetary penalty under the Relevant Law.
Loss, Default, bona fide acts, mistake
Without limiting the generality of the exemption from liability under
sub-clause 15(a), the Trustee shall not incur any liability for:
(i)
any loss suffered by the Fund or suffered by any Member or
any person having at any time an interest in the Fund;
(ii)
any act or default of any former Trustee or any Director or
officer of a former Trustee, of any Member or of any agent
employed in good faith by the Trustee;
(iii)
any acts done or omitted to be done which any person
reasonably believed to be in conformity with any decision of
the Trustee;
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(iv)
(c)
any mistake or determination or erroneous decision that
potentially exposes the Trustee to any claim, action, suit or
demand at the instance of any Member or of any person
having an interest in the Fund at any time.
Limitation of exemption from liability
This Clause shall only operate to exempt a person from liability to the
extent that the provision of such an exemption is not limited by or
would be inoperative under the Relevant Law.
16.
INDEMNITY OF TRUSTEE
(a)
Indemnity and Lien
The Trustee and where applicable its Directors and officers shall be
indemnified out of the Fund against all liabilities incurred by it or
them in the exercise or purported exercise or attempted exercise of the
trusts, powers, authorities and discretions vested in it or them under
this Deed or at law except if that person:
(i)
fails to act honestly; or
(ii)
intentionally or recklessly fails to exercise the degree of care
and diligence that the person is required to exercise; or
(iii)
incurs a monetary penalty under the Relevant Law,
and the Trustee shall have a lien on and may use the moneys
representing the assets of the Fund for the purposes of this indemnity.
(b)
Payments in Good Faith
This indemnity shall extend to any payments made in good faith to
any person whom the Trustee bona fide believes to be entitled thereto
although it may be subsequently found that the person was not in fact
so entitled.
(c)
Opinion or Advice
This indemnity shall extend to the Circumstances w here the Trustee
acts upon the opinion or advice of or statement of barristers or
solicitors w h o are instructed by the Trustee or any bankers,
accountants, brokers, investment advisers or other persons believed by
the Trustee in good faith and upon reasonable grounds to be expert in
relation to the matters upon w hich they are consulted.
(d)
Failure to Carry Out Agreement
This indemnity shall extend to the circumstances of the failure of any
person or corporation to carry out any agreement made with the
AZTI AZT130129081282817 I AUMI 1206133964.1
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Trustee and to the circumstances of any act or omission on the part of
such person or corporation.
(e)
Agents and Servants of Trustee
This indemnity shall extend to the circumstances where an agent or
servant employed in good faith by the Trustee becomes insolvent or
commits an act of bankruptcy or any fraudulent or negligent act.
(f)
Limitation of Indemnity
The indemnity provided under this Clause in respect of the Trustee or
any Directors, officers, agents or servants of the Trustee shall not apply
to the extent that the provision of such an indemnity would be limited
by or inoperative under the Relevant Law.
(g)
Limitation on Indemnity
The Trustee shall not be entitled to indemnify itself:
(i)
(ii)
17.
out of assets of the Fund for any amount expended by the
Trustee out of its own assets managed and maintained by the
Trustee itself to cover the Operational Risk of the Fund;
out of any assets of the Fund that do not form part of the
Operational Risk Reserve Account for any amount that relates
to Operational Risk without first exhausting the Operational
Risk Reserve Account.
REMUNERATION OF TRUSTEE
(a)
Costs and Disbursements
The Trustee shall be entitled to charge each Division professional fees
and to recover costs and disbursements incurred in respect of the
provision of its services as Trustee of the Fund as the Trustee
determines. The fees, costs and disbursements will be debited to the
Income Account of each Division or directly to the Accumulation
Account or Pension Account of a Member of a Division as determined
by the Trustee fourteen (14) days after the last business day of the
month and which fees, costs and disbursements may reduce the
Member's Withdrawal Benefit.
(b)
Fees Determined Annually
The fees charged (if any) by the Trustee shall be determined at the
commencement of each Fund Year.
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(c)
Reimbursement
The Trustee shall be entitled to be reimbursed from each Division for
and in respect of the following expenses:
(i)
all costs, charges and expenses incurred or to be incurred in
connection with the acquisition, registration, custody, disposal
of or other dealings with investments of the Fund (including
commissions, brokerage, bank charges, financial institutions
and stamp duties and bank accounts debits tax but excluding
any incidental expenses which are not out-of-pocket expenses
or disbursements incurred by deduction or otherwise) by or
on behalf of the Trustee;
(ii)
such fees and expenses of the Auditor as the Trustee shall
consider reasonable;
(iii)
any Taxation and any levy paid or payable by the Trustee in
connection with the Fund on any account whatsoever;
(iv)
all professional fees and expenses of any barrister, solicitor,
accountant, Actuary, fund manager, Administration Manager,
Investment Manager, agent, consultant, expert or investigator
from time to time employed by the Trustee in the discharge of
its duties under this Deed;
(v)
all costs, charges and expenses incurred or to be incurred in
relation to the preparation and distribution of any periodic or
other report or document in relation to the Fund or the making
available of any books or documents of the Fund;
(vi)
all and any administrative costs in respect of postage,
telephone and like disbursements charged or to be charged in
relation to the Fund;
(vii)
all and any costs incurred in relation to an investigation of the
Fund, the resolution of disputes or the preparation of
information and submissions and the attendance of the
Trustee before the Tribunal;
(viii)
all and any expenses in connection with the maintenance of
accounting records and the preparation of any accounting,
taxation or other returns or advices; and
(ix)
any commission or brokerage payable in respect of an
application for Membership or agreement to procure
applications for Membership of a Division.
AZT I AZTI3012908I282817I AUMI 1206133964.1
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PART6
18.
APPOINTMENT OF ACTUARY, AUDITOR AND MANAGERS
(a)
Actuary and Auditor
The Trustee shall if necessary appoint a person or firm to the following
offices on such conditions as it shall determine:
(b)
(i)
an Actuary who is a Fellow of the Institute of Actuaries of
Australia or a firm or company of Actuaries of which at least
one member or director (as the case requires) is such a Fellow;
(ii)
an Auditor who is both appropriately qualified and is
independent according to any criteria specified by the
Relevant Law.
Administration Manager
The Trustee may appoint in writing on such terms as it thinks fit,
including the granting of any indemnity reasonably required, one or
more companies, persons or organisations to act as the Administration
Manager of the Fund to carry out some or all of the administration of
the Fund which appointment shall be made on such terms and
conditions as the Trustee considers appropriate.
(c)
(d)
Investment Manager
(i)
The Trustee shall have power to appoint in writing one or
more persons or companies to act as Investment Manager for
the Fund for such period and on such terms and conditions as
the Trustee shall determine PROVIDED THAT the person or
company is qualified to act and the terms and conditions of
appointment are in accordance with and comprise all the
requirements of the Relevant Law;
(ii)
The Trustee may delegate to each Investment Manager such
powers, discretions and authorities relating to the purchase,
sale, management, investment, administration, valuation,
retention and transposition of that part of the Fund entrusted
to such Investment Manager as the Trustee shall determine
and may reallocate the assets of the Fund being invested by
that Investment Manager.
Custodian
(i)
The Trustee shall have power to appoint one or more
companies to act as a Custodian for the Fund and the Fund's
bank account for such period and on such terms and
conditions as the Trustee shall determine and may delegate
AZfI AZTI 3012908I282817I AUMI 1206133964.1
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and confer upon such Custodian such powers, discretions and
authorities relating to the holding of legal title, the custody of
title deeds and documents of any nature whatsoever or
relating to the custody of any part of the assets of the Fund, or
the appointment of Sub-Custodians as the Trustee shall
determine provided that the company appointed to act as
Custodian shall not be prohibited from so acting at any time
under the Relevant Law;
(e)
(ii)
The Trustee shall not be liable or responsible for any act,
omission, error judgment, negligence or breach of trust by any
Custodian except to the extent the liability is caused by the
Trustee's failure to act honestly, or its intentional or reckless
failure to exercise the degree of care and diligence that it is
required to exercise;
(iii)
The Trustee shall have power to pay out of the Fund to any
such Custodian such remuneration for their services as the
Trustee considers appropriate;
(iv)
The Trustee may remove from office any Custodian appointed
pursuant to this Clause.
Consultants and Officers
In addition, the Trustee from time to time may appoint and
remunerate such other consultants and officers as it considers
desirable for the proper management and administration of the Fund.
(f)
Removal
The Trustee may remove from office any person or company
appointed to any position under this Clause and shall remove any
such person or company where so required by the Relevant Law.
19.
ACTUARIAL INVESTIGATIONS
In the event that an Actuary has been appointed, the Trustee may ask the
Actuary for information or advice from time to time in accordance with the
provisions of this Deed but the Trustee shall be under no obligation to be
bound by or to act upon the advice so provided except in circumstances
required by the Relevant Law.
PART7
20.
CONTRIBUTIONS TO FUND
(a)
Member's Contributions
Unless the Trustee otherwise d etermines or the law does not allow, the
contributions payable by a Member may, with the Member's consent,
AZT/ AZT/3012908/282817/ AUM/ 1206133964.1
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be deducted by the Participating Employer from each wage or salary
payment and shall be paid by the Participating Employer to the Fund
as directed by the Trustee in accordance with the Relevant Law
PROVIDED THAT if no such deduction is made the Member shall pay
contributions to the Fund in such manner and at such times as shall be
agreed upon between the Trustee and that Member.
(b)
Employer's Contributions
Contributions payable by any Participating Employer shall be paid to
the Trustee in such manner and at such times as outlined in the Rules
of a Division or as shall be agreed between the Trustee and that
particular Participating Employer.
(c)
Additional Contributions
Contributions of any kind permitted by the Relevant Law may be
made to the Fund.
(d)
Refund of Payments
If any moneys paid to the Fund will or will be likely to jeopardise the
status of the Fund as a Complying Superannuation Fund or are in
breach of a Relevant Law or are found by the Trustee to have been
paid by mistake, then, subject to the Relevant Law, the Trustee must
refund those moneys to the Person who paid them to the Fund, less
any:
(i)
charge which an Insurer may have made in respect of any
extra cover which it has provided in relation to those moneys;
and
(ii)
reasonable administration charges,
and reduce the Benefits held for the Member in the Fund to those
which would have been held if such moneys had not been received.
For the purposes of this clause, the Trustee shall not be liable to pay
any interest, or account for any earnings or compensate the Person
who paid those moneys in any way and a person shall not be deemed
to have become a Participating Employer or a Member merely by
reason of the receipt by the Trustee of those moneys.
(e)
Interest on Contributions
The Trustee may require a Participating Employer to pay interest at a
rate determined by the Trustee and any collection costs on any of its
contributions which are in arrears or may require a Participating
Employer or Member, as appropriate, to pay interest on any Member's
contributions which are in arrears.
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(f)
Contributions in Cash or Assets
Any contributions made by a Member, Participating Employer or
other person shall be made to the Trustee within the Fund Year in
respect of which it is paid or within such period as the Relevant Law
may allow either in cash or by transfer of an asset or assets
PROVIDED THAT the assets transferred must be authorised
investments as set out in sub-clause 13(b) of this Deed PROVIDED
FURTHER that any transfer of an asset under this Clause shall be
made upon the terms and conditions specified under the Relevant
Law, and shall not be made if the Trustee or an agent or delegate of
the Trustee is prohibited by the Relevant Law from acquiring the asset.
(g)
No Obligation to Contribute
In the absence of any agreement to the contrary neither a Member nor
a Participating Employer shall be under any obligation to make a
contribution to the Fund in respect of any Fund Year and a Member
may remain a Member of the Fund notwithstanding a contribution is
not made in respect of that Member in respect of any Fund Year.
(h)
Limitation on Accepting Contributions
The Trustee must not accept contributions to the Fund by or in respect
of a Member that are not permitted by the Relevant Law.
(i)
Level of Contributions
The Trustee shall not accept any contribution or any Shortfall
Component:
(j)
(i)
if the acceptance of the contribution or Shortfall Component
would prevent the Fund from qualifying as a Complying
Superannuation Fund; or
(ii)
if the Commissioner directs the Trustee not to accept any
contributions by a Participating Employer or any Shortfall
Component in accordance with the Relevant Law.
Contribution Splitting
Contributions may be split as follows:
(i)
a Member may apply to the Trustee to roll over, transfer or
allot an amount of benefits, for the benefit of the Member 1s
Spouse, up to the maximum amount that are splittable
contributions.
(ii)
the Trustee may accept the application where it is satisfied that
it complies with the Superannuation Industry (Supervision)
AZT/ AZT/3012908/282817/ AUM/1206133964.1
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Regulations, and other conditions the Trustee may impose,
and deal with the amount as directed by the Member,
including crediting the amount to the account of the Member's
Spouse or transferring or rolling over the amount to another
Complying Superannuation Fund.
21.
TRANSFERS TO APPROVED BENEFIT ARRANGEMENTS
(a)
Transfers to Approved Benefit Arrangements
Any Member may, with the consent of the Trustee terminate his or her
membership of the Fund and transfer or apply the amount standing to
his or her accounts to an Approved Benefit Arrangement nominated
by the Member which mal<es provision for payment and preservation
of benefits in accordance with the Relevant Law.
(b)
(c)
Effect and Method of Transfer Out
(i)
The receipt of the transferred amount by the proper officer of
the Approved Benefit Arrangement shall be a complete
discharge to the Trustee of all liabilities in respect of the
transferred amount and the Trustee shall have no
responsibility to see to the application of the transferred
amount.
(ii)
Upon the completion of a payment or transfer in respect of a
Member or beneficiary under this Clause all the rights and
interest of that Member or beneficiary under this Deed (and all
the rights and interest of any person otherwise entitled to
claim in respect of the Member or beneficiary or on the
occurrence of any event or circumstances affecting the
Member or beneficiary) in respect of the transferred amount
shall be entirely extinguished.
Roll Over
Where a Member or former Member wishes to effect a Roll Over
Payment in respect of all or any of the entitlement of the Member in
the Fund, the Member shall:
(i)
make a request to the Trustee in writing nominating the
Approved Benefit Arrangement to which the Roll Over
Payment is to be made and the amount to be applied as the
Roll Over Payment or the percentage of the Member 's
Accumulation Account or Pension Account to be applied as
the Roll Over Payment; and
(ii)
complete and execute a notification of the Roll Over Payment
or such other documentation as shall be required by the Tax
Act to enable the Roll Over Payment to be effected to the
AZT/ AZT/3012908/282817/ AUM/1206133964.1
66
Approved Benefit Arrangement in accordance with the
Relevant Law.
(d)
Eligible Rollover Funds
The Trustee may in accordance with the Relevant Law and, where
required by the Relevant Law the Trustee shall, transfer a Member's
Benefit to an Eligible Rollover Fund and shall provide any information
to the trustee of the Eligible Rollover Fund at such time and in such
manner as required by the Relevant Law.
(e)
Preserved Payment Transfers
Where a Member or former Member has Preserved Payment Benefits
in the Fund which form part of the amount transferred or rolled-over
to an Approved Benefit Arrangement, the Trustee shall ensure that the
governing rules of the Approved Benefit Arrangement provided that if
the Member wishes to leave the Approved Benefit Arrangement the
amount of the Preserved Payment Benefit must be preserved and
vested in accordance with the Relevant Law.
PARTS
22.
TRANSFERS FROM APPROVED BENEFIT ARRANGEMENTS
(a)
Takeover or Transfer of Benefits
Where a Member is or was a member of or is or was the beneficiary
under any other Approved Benefit Arrangement the Trustee may by
resolution take over or acquire by transfer from the trustee of the other
Approved Benefit Arrangement the whole or any part of the assets of
such Approved Benefit Arrangement or the interest of any person who
is a participant or former participant of that Approved Benefit
Arrangement with the intent of preserving the rights, entitlements and
interests of the member of such Approved Benefit Arrangement at the
time of transfer.
(b)
Rights and Entitlements of Member in Transferred Benefits
The Trustee shall hold any such amounts transferred in accordance
with paragraph (a) above as part of the Fund and reflect such
equivalent rights, entitlements and interests in the particular
Member's Accumulation Account or Pension Account as existed in the
other Approved Benefit Arrangement and, if the Trustee so
determines, the Member shall be deemed to have become a Member of
the Fund on the date the Member became a member of the Approved
Benefit Arrangement from which the Benefit was transferred.
AZTI AZT130129081282817 I AUMI 1206133964.1
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PART9
23.
COMMITTEES OF THE TRUSTEE
(a)
Appointment
For the purposes of advising the Trustee and for the better
management of the Fund, the Trustee may appoint one or more
committees which shall be known by such name as the Trustee shall
determine.
(b)
Equal Representation
The Trustee shall nominate and appoint members of a committee on
the basis that the committee is constituted by equal numbers of
member representatives and employer representatives.
(c)
Continuation of Membership of Committee
Committee members shall hold office at the discretion of the Trustee
and the Trustee shall have the right to appoint or remove all or any of
the members of the committee and a vacancy in a committee will be
filled within 60 days of it arising.
(d)
Committee Regulation
Each committee formed may, subject to the Relevant Law, regulate its
meetings as it thinks fit and may determine the quorum necessary for
the transaction of business PROVIDED THAT a quorum shall always
be an equal number of Member and Employer representatives.
(e)
Committee Resolution
A resolution signed by all members of a committee shall have the
same effect and validity as a resolution of a committee passed at a
duly convened meeting.
PARTlO
24.
NATURE OF MEMBER'S INTERESTS
(a)
The interest in the Fund of a Member and those entitled to a Benefit on
the death of the Member is personal to that person and the Trustee
shall not recognise any assignment, claim or charge in respect of that
interest unless that assignment, claim or charge is permitted expressly
or by necessary implication by the Relevant Law.
(b)
A Member only has an interest in the Fund whilst the Member is alive.
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68
(c)
On the death of a Member the entitlement to the Member's Account
shall be determined in accordance with the provisions applying on the
death of a Member.
PARTll
25.
TRANSFER IN SPECIE
(a)
Transfer of Policy
Where a Member or a beneficiary is entitled to be paid a Benefit or the
Trustee in its discretion determines to pay a Benefit to a Member, a
beneficiary or the Dependants of the Member and the same includes
any interest in a Policy of any kind on the life of the Member or
beneficiary the Trustee may in its absolute discretion and in lieu of
surrendering such Policy assign the same to such Member or
beneficiary or to the Dependants or to such one or more of them to the
exclusion of the other or others as the Trustee in its discretion may
determine and the value of such Policy as at the date of assignment
shall be debited as a payment to the Member or beneficiary in the
assessment of any entitlement as reflected by the Member' s or
beneficiary's Accumulation Account or Pension Account and neither
the Trustee nor an Employer shall be liable to pay any further
premiums which may become due and payable under the Policy as
from the date of such assignment.
(b)
Transfer of Investments
The Trustee may with the consent of a Member or a beneficiary to
whom a Benefit is payable transfer investments of the Fund of
equivalent value to such Member or beneficiary in lieu of paying the
whole or part of the amount otherwise payable pursuant to the
provisions of this Deed PROVIDED HOWEVER that the Trustee is
satisfied that such transfer is permitted by the Relevant Law.
(c)
No Beneficial Interest
With the exception of the provisions of this Clause and sub-clause
13(e), no Member or beneficiary shall have or acquire any beneficial or
other interest in a specific asset of the Fund or the assets of the Fund as
a whole whilst such asset or assets remain subject to the provisions of
this Deed.
Az:fI Az:fl3012908l282817I AUMI 1206133964.1
69
PART12
26.
PAYMENT OF BENEFITS ON DEATH
(a)
Order of Payment of Benefits
When the Trustee is required by this Deed to pay a Ben efit upon the
death of a Member, the Trustee shall pay the Benefit in accordance
with the following clauses:
(i)
if the Member has m ade a Binding Nomination that is valid at
the time of death, the Trustee shall pay the Benefit in
accordance with clause 26(ba);
(ii)
if:
(A)
the Member has not made a Binding N omination that
is valid at the time of death; or
(B)
clause 26(ba) otherwise does not apply to the whole of
the Benefit,
the Trustee shall pay the Benefit not dealt with under clause
26(ba) in accordance with clause 26(aa); and
(iii)
if:
(A)
the Member has not made a Binding Nomination that
is valid at the time of death or clause 26(ba) otherwise
does not apply to the whole of the Benefit; and
(B)
the Member had no Dependants upon death or clause
26(aa) otherwise does not apply,
the Trustee will pay the Benefit not dealt with under clauses
26(ba) and 26(aa) in accordance with clause 26(b).
(aa) Payments to Dependants or Legal Personal Representatives
Upon the death of a Member or beneficiary who had Dependants, the
Trustee may pay or apply the Benefit to or for the ben efit of one or
more of the Member's or beneficiary's Dependants (including any
Nominated Dependants) and Legal Personal Representative in such
proportions, form, manner and at such times as the Trustee shall from
time to time in its discretion determine PROVIDED THAT the
payment of the Benefit shall comply with the Relevant Law.
(b)
Payments to Other Persons
Upon the death of a Member or beneficiary who had no Dependants,
the Trustee shall pay the Benefit to the Legal Personal Representative
AZTI AZTI3012908/282817I AUMI1206133964.1
70
of the Member or beneficiary, or if there is no Legal Personal
Representative may pay or apply the Benefit for the benefit of such
Relatives of the Member or beneficiary or other persons as shall
appear to the Trustee to be entitled to share in the estate of the
Member or beneficiary in such proportions, form, manner and at such
times as the Trustee shall from time to time in its discretion determine
PROVIDED THAT if there are n o such Relatives or other persons the
Trustee shall pay it to such person or persons as it determines or
subject to compliance with the Relevant Law forfeit the Benefit and
deal with it in accordance with Clause 24 as if it was a Benefit
Entitlement PROVIDED FURTHER THAT the payment of the Benefit
to such Relatives or other persons shall in all cases comply with the
Relevant Law.
(ba) Binding Nomination
(i)
A Member may request the Trustee by notice in a form
prescribed by the Trustee that if upon the death of the Member
a Benefit becomes payable in respect of that Member then all
or a specified part of that Benefit is to be paid to the
Nominated Beneficiary. The Trustee shall comply with the
requirements of the Relevant Law for the acceptance and
continuing operation and validity of Binding Nominations;
(ii)
the Trustee must pay the Member's death benefit in
accordance with a Binding Nomination provided the Binding
Nomination is not invalid and the Trustee is permitted to do
so under the Relevant Law;
(iii)
a Member may:
(A)
revoke Binding Nomination at any time; and
(B)
where the Trustee so permits, may give a new or
replacement Binding Nomination at any time;
(iv)
If a Member notifies the Trustee in writing of a variation to
any previous nomination of a Nominated Beneficiary or any
request in relation to a Nominated Beneficiary, then that
variation shall not take effect unless and until it is received
and accepted by the Trustee and the Trustee is satisfied that it
meets the requirements of Relevant Law for a binding death
nomination, and in that event it shall terminate any prior
nomination or requ est given by the Member;
(v)
A Binding Nomination is invalid if:
(A)
any of the persons nominated in the Binding
Nomination is not a Dependant or the Legal Personal
Representative of the Member or, before the death of
AZf/ AZT/3012908/282817/ AUM/ 1206133964.1
71
the Member, has died or has ceased to be a
Dependant;
(c)
(B)
the proportions specified in the Binding Nomination
do not amount to 100% of that part of the Member 1s
death benefit that is the subject of the Binding
Nomination;
(C)
the Binding Nomination is incomplete or is otherwise
not completed in accordance with the requirements of
the Trustee;
(D)
the Binding Nomination ceases to have effect under, or
does not satisfy the requirements of, the Relevant Law.
Discharge of Trustee
The receipt by a Dependant, the Legal Personal Representative,
Relative or other person of a Benefit paid under this Clause shall be a
complete discharge to the Trustee in respect of any amount paid to
that person and the Trustee shall not be bound to see to the application
thereof.
27.
PAYMENT OF BENEFITS
(a)
Address for Benefits
Benefits are payable at the principal office for the time being of the
Trustee or otherwise as may be determined by the Trustee and advised
to the Member or beneficiary. The Trustee may forward the Benefits to
the postal address or bank account of the Member or beneficiary last
notified to the Trustee or to such other place as the Trustee shall
determine.
(b)
Notification of Address
Every beneficiary, or person to whom a Benefit is payable on behalf of
or for the benefit of a beneficiary, shall (except where no further
Benefit is payable from the Fund) notify the Trustee in writing at the
time the Benefit becomes payable and immediately after the
beneficiary changes address at any time of:
(i)
the place of residence of the beneficiary and the full postal
address of that residence; and
(ii)
the bank account (if any) to which the beneficiary requests that
the Benefit be paid.
AZTI AZT130129081282817I AUMI1206133964.1
72
(c)
Receipt for Benefits
Any person to whom a Benefit is payable shall, if requested, furnish
the Trustee with a receipt and release in a form from time to time
required by the Trustee.
(d)
(Repealed 16 December 2003)
(e)
(Repealed 16 December 2003)
(f)
No Personal Claim
No Member or person claiming through a Member or on behalf of a
Member or as the Dependant of a Member shall be entitled to require
payment of that Member's interest in the Fund except as may be
provided in this Deed.
(g)
Payment to Others on Behalf of Beneficiaries
When any beneficiary is under the age of 18 years or is under any legal
disability or when in the opinion of the Trustee it would be in the best
interests of the beneficiary, the Trustee may pay all or part of any
Benefit in such one or more of the following ways as the Trustee shall
determine:
(i)
to or towards the maintenance, education, advancement,
support or benefit of the beneficiary in such manner and on
such terms and conditions as the Trustee shall determine; or
(ii)
to any other person who appears to the Trustee to be a trustee
for the beneficiary or Spouse, child, parent or guardian or a
person having custody of the beneficiary for application on
behalf of the beneficiary,
and the receipt of the person to whom the Benefit is paid shall be a
complete discharge of the Trustee for the payment m respect of the
beneficiary and the Trustee shall not be bound or concerned to see to
the application of the Benefit so paid.
(h)
Preservation Conditions
Notwithstanding any other provision of this Deed which may be
construed to the contrary:
(i)
no Member or Dependant of a Member shall be entitled to
receive any Benefit which is a Preserved Payment Benefit prior
to the Member retiring from Gainful Employment at or after
reaching the age of 55 years or such other prescribed age
otherwise than in the event of Total and Permanent
Disablement or death of the Member, or where the Member
AZT/ AZT/3012908/282817/ AUM/1206133964.1
73
has a Terminal medical condition or in other circumstances
permitted by the Relevant Law;
(i)
(ii)
any Pension or Annuity that a Member or the Dependants of a
Member have a right to receive from the Fund must
commence to be paid, and any other Benefits that a Member or
the Dependants of a Member have a right to receive from the
Fund are to be paid, not later than the 65th birthday of the
Member or at such other time as is permitted or required by
the Relevant Law;
(iii)
any Preserved Payment Benefits held by the Trustee which are
unable to be paid out to the Member may, at the discretion of
the Trustee, be dealt with in accordance with Clause 21, or be
retained in the Fund subject to Clause 35.
Unclaimed Benefits
The Trustee shall give to the Commissioner a statement of Unclaimed
Benefits and shall pay any Unclaimed Benefits to the Commissioner at
such time and in such manner as required by the Relevant Law.
(j)
Death of Former Member Prior to Benefit Payment
Where a Member or Former Member has become entitled to payment
of a Benefit as a Lump Sum and before payment has been made by the
Trustee, the Member or Former Member dies, the Trustee may pay
that Benefit in accordance with the provisions of Clause 26.
(k)
Limitation on Benefits
Notwithstanding any other provision of this Deed, the Trustee shall
not pay out any Benefits to Members, Dependants or Beneficiaries
where such payment would cause the Fund to breach the Relevant
Law.
(1)
Where a Family Law Spouse Amount is required to be dealt with in
accordance with the Family Law Act 1975 and Relevant Law, the
Member's Account will be debited with the amount and the amount
credited to the account of the Family Law Spouse or transferred in
accordance with the directions of the Family Law Spouse to an
Approved Benefit Arrangement.
(m) Amounts unpayable
If any part of the Benefit cannot be paid in accordance with the
provisions as to payment in this document and is not required to be
paid in accordance with subclause 27(n), then it may be applied to the
general purposes of the Fund.
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(n)
Unclaimed Money
Where a Member has reached the eligibility age for a Pension and the
Trustee is unable to pay the Benefit and the circumstances preventing
payment are such that the Relevant Law's provisions as to unclaimed
money require payment then the Trustee shall pay the Benefits in
accordance with the unclaimed moneys legislation.
(o)
Application to General Purposes of the Fund
Subject to clause 27(n), if when any Benefit becomes payable to a
Member or Dependants or Legal Personal Representative and the
Member or Dependants or Legal Personal Representative refuse to
accept the Benefit or part thereof or the Trustee is not for a period of
three years immediately thereafter (after reasonable enquiry) aware of
the location of the Member the amount of the Benefit shall be forfeited
and applied for the general purposes of the Fund.
PART13
28.
PAYMENT OF TAXATION AND LEVIES
(a)
Tax on Benefits
The Trustee or, with the agreement of the Trustee, an Insurer or other
appropriate organisation, shall deduct from any Benefit payable to any
Member or beneficiary pursuant to this Deed any Taxation required to
be deducted (or such Taxation as the Trustee shall consider is required
to be deducted) from it.
(b)
Tax on contributions and Shortfall Components
The Trustee or, with the agreement of the Trustee, an Insurer or other
appropriate organisation, may deduct any Taxation payable in relation
to a contribution or Shortfall Component prior to the contribution or
Shortfall Component being credited to the Accumulation Account of
the Member. Where such Taxation has been deducted from a
contribution or Shortfall Component a reference to the crediting of the
contribution or Shortfall Component to an Accumulation Account
shall mean the crediting of the net contribution or Shortfall
Component after the deduction of such Taxation.
(c)
Tax on Income
The Trustee may make provision for and shall deduct any Taxation
payable in relation to the taxable income of the Fund not otherwise
deducted under this Clause from the Income Account or from
Accumulation Accounts or Pension Accounts of Members.
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(d)
Surcharge
The Trustee may make provision and shall deduct any surcharge or
other amount of whatever description levied on a Division of the Fund
in respect of a Member, pursuant to the Superannuation Contributions
Tax Imposition Act 1997 and legislation (including provisional or
advance payments required under that legislation).
The Trustee shall adjust the Benefit of the said Member to reflect the
cost to the Fund of the cost of the payment.
(e)
Payment to Relevant Authority
The Trustee shall pay all Taxation which is not being transferred with
the agreement of the Trustee to an Insurer or otherwise transferred as
provided under the Tax Act, and any levy which is due and payable
by the Fund, to the relevant authorities within the required time for
payment.
PART14
29.
INSURANCE BENEFITS
(a)
Trustee may enter into Policies
The Trustee may enter into one or more Policies for amounts and on
terms and conditions agreed between the Trustee and the Insurer.
(b)
Terms of Policy
The amount and nature of a Member's insurance cover under a Policy
will be determined by the Trustee and is subject to the terms of that
Policy.
(c)
Insured Benefits
The Trustee is not required to make any payment that is greater than
any amount received from the Insurer.
(d)
Commencement of Insurance
Any insurance cover in respect of a person will not commence until:
(e)
(i)
the person is admitted as a Member; and
(ii)
if required, the Member and the Employer have
provided all information required by the relevant
Insurer.
Cessation of Insurance Cover
Any insurance cover shall cease:
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(f)
(i)
in accordance with the term s of the Policy;
(ii)
on written notice to the Trustee from the Member;
(iii)
on the Trustee determining that it is not reasonably
practicable to obtain or renew a Policy on terms
acceptable to the Trustee;
(iv)
the insurer terminates a Policy for any reason; or
(v)
the amount standing to the credit of a Member's
Account is insufficient to pay the premium or other
costs attributable to the relevant Member 1s insurance
cover.
Scope of Insurance Cover
(i)
Any insurance cover shall be subject to the terms of
the applicable Policy.
(ii)
The Trustee has no duty:
(iii)
(A)
to enter into or maintain any Policy;
(B)
to not vary the terms of any Policy; or
(C)
to increase insurance cover.
The amount of any insurance cover shall be adjusted
w here appropriate w here there is an error in the age,
sex or other details of the Member the subject of the
insurance cover.
PART15
30.
OTHER SUPERANNUATION OBLIGATIONS
Subject to Clau se 31, where at any time an obligation is imposed upon a
Participating Employer to make contributions to a superannuation fund
providing retirem ent, death or disablement benefits in respect of Members
of the Fund then the Participating Employer may, w ith the consent of the
Trustee, reduce its contributions to the Fund by the amount of the
contribution being made to the other fund in respect of those Members
(w ho are members of the other fund) and the Participating Employer may
consult an actuary in respect of the amount of the reduction in contributions
to be made to the Fund.
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PART16
31.
VARIATION OF TRUST DEED
The provisions of this Deed including this Clause may be added to,
amended, altered, modified, rescinded or varied (the "Variation") from time
to time by the Trustee either prospectively or retrospectively on the
following basis:
(a)
Deed
The Variation shall be by Deed executed by the Trustee and a copy of
such Deed shall be forwarded to the Commissioner and each
Participating Employer if required by the Relevant Law.
(b)
Notice
On any Variation being effected, the Trustee shall if so required by the
Relevant Law advise the Members and Beneficiaries in writing of the
nature and purpose of the Variation and the effect on their
entitlements or rights in accordance with and in the manner and time
required under the Relevant Law.
(c)
Limitation on Variation
No Variation shall have the effect of:
(i)
reducing or adversely affecting the rights or claims of a
Member to accrued entitlements under the Fund which have
arisen prior to the Variation being effected; or
(ii)
reducing the amount of an entitlement other than an
entitlement referred to in paragraph (i) above that is or may
become payable in relation to a period before the date of the
Variation; or
(iii)
detrimentally affecting the right of an Employer to maintain or
terminate its rate of contribution,
unless:
A.
the reduction is required to enable the Fund to comply with
the Relevant Law; or
B.
the Member or Employer so affected consents in writing to the
reduction; or
C.
the Commissioner consents in writing to the reduction,
PROVIDED THAT each Variation shall comply with the Relevant
Law.
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(d)
Further limitation on Variation
No Variation to this Deed shall:
(i)
have the effect of providing that the sole or primary purpose
of the Fund is other than the provision of old-age pensions
within the meaning of the Relevant Law, unless the Trustee of
the Fund is a Constitutional Corporation or the Relevant Law
otherwise permits; or
(ii)
permit a person or body other than a Constitutional
Corporation to be appointed as Trustee, unless the Deed
provides that the sole or primary purpose of the Fund is the
provision of old-age pensions within the meaning of the
Relevant Law or the Relevant Law otherwise permits.
PART17
32.
WINDING UP OF FUND
(a)
Election to Terminate
The Trustee may elect to wind up the Fund at a certain date (the
"Termination Date") in the following circumstances:
(b)
(i)
if there are no further Members remaining in the Fund;
(ii)
if the Trustee determines for any reason that the Fund should
be wound up; or
(iii)
if it is required by the Commissioner.
Procedure on Winding Up of Fund
Where the Fund is to be wound up the Trustee shall:
(c)
(i)
give written notice to each Participating Employer and
Member that the Fund is to terminate on the Termination
Date;
(ii)
arrange to pay or transfer Benefits to Members, former
Members and Beneficiaries in accordance w ith sub-clause (c)
below, after deducting from the assets of the Fund all the costs
and expenses of administering and winding up the Fund.
Exhaustion of Fund
The Trustee shall pay the following Benefits in the following order to
the extent that the assets of the Fund permit:
(i)
Benefits to which Members, former Members or their
Dependants who have not been paid a Benefit immediately
AZfI AZT130129081282817I AUMI 1206133964.1
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prior to the Termination Date are entitled at the Termination
Date;
(ii)
the provision of additional Benefits to Members, former
Members and their Dependants as the Trustee in its absolute
discretion considers appropriate.
PART18
33.
PAYMENT OF NON-PRESERVED AMOUNTS
Notwithstanding any other provisions of this Deed which m ay be construed
to the contrary and subject to the Relevant Law :
(a)
Member Election
a Member may elect at any time to withdraw the whole or any part of
the Non- Preserved Amount of that Member by giving notice to the
Trustee in such form and manner as may be determined by the Trustee
from time to time;
(b)
Minimum Payment
the minimum Non-Preserved Amount which may be withdrawn by a
Member pursuant to paragraph (a) shall be determined by the Trustee
and notified to Members of the Fund.
34.
INCREASES TO BENEFITS
In circumstances where a Member ceases to be a Member of a Division of
the Fund, the Trustee may determine to pay some part of the Equalisation
Account which the Trustee considers represents the interest of that Member
in that Account to the Member's Accumulation Account for purposes of the
p aym ent of a Benefit.
35.
RETENTION OF BENEFIT IN FUND
Where a Member or beneficiary does not require Benefits to be immediately
paid, the Trustee may in its absolute discretion retain all or any part of any
Benefit payable under this Division in the Fund until:
(a)
Request
the Member or beneficiary entitled requests that it be paid to that
Member or beneficiary;
(b)
Death
the Member dies in which event it will be paid in accordance with
Clause 26;
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(c)
Payment otherwise required
payment of the Benefit is required in accordance with the provisions of
this Deed or the Relevant Law; or
(d)
Discretion
the Trustee elects for whatever reason to pay the Benefit to the former
Member or beneficiary,
whichever shall first occur and the amount then payable shall be the
Benefit standing to the credit of that Member's or beneficiary's
Accumulation Account as at the date of payment PROVIDED
HOWEVER that all Benefits must be paid at such time and in such
manner as shall be required by the Relevant Law.
PART19
36.
MARKETING AND PROMOTING FUND
(a)
Activity
For the purposes of this Clause, an "Activity" shall mean any act
directly or indirectly related to or incidental to the marketing,
promoting, advertising or educating of any person or the creation of
awareness for any person;
(b)
Promotion to Increase Membership
The Trustee may, subject to the Relevant Law, engage in any Activity
which the Trustee determines will promote:
(i)
the concept of industry based superannuation generally;
(ii)
the Fund specifically
in order to limit the reduction in the level of Membership, to increase
the level of Membership or for any other purpose which the Trustee
believes is in the best interests of the Members.
(c)
Defence of Fund Contribution Base
The Trustee may, subject to the Relevant Law, engage in any activity
which the Trustee determines will protect the contributions base or
Membership base of the Fund and which the Trustee believes is in the
best interests of Members.
(d)
Exercise of Powers of Marketing and Promotion
The Trustee may only exercise the powers under this Clause w here the
Trustee has determined that:
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81
(e)
(i)
the Activity is in the best interests of the present and future
Membership of the Fund;
(ii)
the expense of the Activity is reasonable having regard to the
likely benefits to the present and future Membership; and
(iii)
the expense is reasonable having regard to the total value of
the assets of the Fund.
Engagement of Adviser
The Trustee may engage the services of any suitably qualified persons
to advise on, be involved in or to implement any Activity and may
remunerate those persons m respect of any advice, involvement or
implementation in accordance with the powers set out in this Deed.
PART20
37.
MYSUPER PRODUCT
(a)
MySuper Product Requirements
The Trustee may issue an interest that is a MySuper product and that
MySuper product is subject to the following:
(i)
A single diversified investment strategy is adopted in relation
to the assets of the Fund, to the extent that the assets are
attributed to the class of MySuper product;
(ii)
All MySuper product Members are entitled to access the same
options, benefits and facilities;
(iii)
Amounts are attributed to MySuper product Members in
relation to their interest in the MySuper product in a way that
does not stream gains or losses that relate to any assets of the
Fund to only some of those MySuper product Members,
except:
A.
If a lifetime cycle investment strategy is adopted as the
single diversified investment strategy for the MySuper
product, gains or losses from different asset classes of the
Fund may be streamed to different subclasses of the
MySuper product Members:
(a)
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the MySuper product Members; or
82
(b)
on the basis of the age of the MySuper product
Members and other factors prescribed by the
Relevant Law; or
(c)
on the basis of the age of the MySuper product
Members and other factors in circumstances
prescribed by the Relevant Law;
(iv)
The same process is to be adopted in attributing amounts to
MySuper product Members in relation to their interest in the
MySuper product, except to the extent that a different process
is necessary to allow for fee subsidisation by an Employer;
(v)
Where the Trustee allows fee subsidisation by Employers,
that subsidisation will not favour one MySuper product
Member who is an Employee of a subsidising Employer over
another MySuper product Member who is also an Employee
of that subsiding Employer;
(vi)
No limits are imposed on the source or kinds of contributions
made by or on behalf of the MySuper product Members
(including any roll-overs or transfers in respect of the
MySuper product Members) unless it is a limitation of a
prescribed kind or is a limitation imposed by or under the
general law or another law of the Commonwealth;
(vii)
The beneficial interest in a MySuper product cannot be
replaced with a beneficial interest of another class in the Fund
without the Member's consent obtained in accordance with
Relevant Law or the Member has died and the replacement
interest is issued in accordance with Relevant Law .
(viii)
The beneficial interest in a MySuper product (the old interest)
cannot be replaced with a beneficial interest (the new interest)
in another superannuation fund or other superannuation
entity unless:
(ix)
A.
the replacement is permitted, or is required, under
a law of the Commonwealth; or
B.
the person who holds the old interest consents in
writing to the replacement with the new interest no
more than 30 days before it occurs.
To the extent that assets of the Fund are attributed to
beneficial interests in the MySuper product, a p ension is not
AZTI AZT1 30129081282817I AUMI 1206133964.1
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payable out of those assets by the Trustee of the Fund to a
MySuper product Member upon such member satisfying a
condition of release of benefits as prescribed by the Relevant
Law, unless the payment relates to a benefit payable under a
policy of insurance where such member has ceased work due
to ill-health (whether physical or mental).
(b)
Fees
The Trustee may only charge the kinds of fees prescribed by section
29V of the Superannuation Industry (Supervision) Act in relation to a
MySuper product.
(c)
MySuper membership records
The Trustee will record in each Division which Members are MySuper
product Members and where a Member has a MySuper product and
entitlements under this Deed that are not MySuper product, then the
Trustee will record those interests in a way that enables the MySuper
product to be identified as an interest separate from the Member's
other entitlements under this Deed.
38.
TRANSFER OF INTERESTS TO COMPLY WITH MYSUPER
The Trustee has the power to transfer to a MySuper product any amount or
interest that Relevant Law requires be treated as a MySuper interest.
39.
ADDITIONAL RULES
(a)
Where contributions and/or account balances in respect of a Member
are required to be paid into or kept invested in a MySuper product, the
Trustee may, subject to any restriction in Superannuation Law on the
Member holding an interest in one class of interest being precluded
from holding a beneficial interest of another class because of that fact,
make rules requiring:
(i)
all contributions in respect of that Member to be paid into and
kept invested in a MySuper product;
(ii)
all account balances in resp ect of that Member to be paid into and
kept invested in a MySuper product.
(b)
The Trustee h as the power to transfer out of a MySuper product to
another interest any amount of a MySuper product that Relevant Law
allows to be transferred out of a MySuper interest.
(c)
Members may be transferred from one Division to another Division of
this Fund.
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DIVISION 1- RULES OF TWU SUPERANNUATION FUND
-EMPLOYER SPONSORED DIVISION
1.
MEMBERSHIP AND APPLICATION OF DIVISION
(a)
(b)
Membership Criteria
(i)
The provisions of this Division shall apply to Members who
are Employees and have been nominated in writing by a
Participating Employer for Membership of this Division for
Benefits under Clause 6(d)(i) of this Deed.
(ii)
The provisions of this Division shall apply to Members who
are eligible as a MySuper product Member who are not
eligible for membership under paragraph (i) of this provision.
Application of this Part
The Membership classilication, contributions payable by or in respect
of, and the Benefits payable in respect of Members under this Division
shall be exclusively determined in accordance with the provisions of
this Division PROVIDED THAT the Member shall not be precluded
from becoming a Member of another Division.
2.
MEMBERSHIP CLASSIFICATION
(a) There shall be the following categories of Membership under this
Division:
(i)
Employee Members being those eligible under sub-rule 1(a)(i)
who are not Dormant Members;
(ii)
Other MySuper product Members being those eligible under
sub-rule l(a)(ii) who are not Dormant Members; and
(iii)
Dormant Members.
(b) There shall be the following sub-categories of Membership of
categories (i), (ii) and (iii) above:
(c)
(a)
Provisional Membership; and
(b)
Full Membership.
An eligible Employee nominated by an Employer or an eligible
MySuper product Member will be admitted to Full Membership of this
Division of the Fund by the Trustee on the date on which the eligible
Employee or an eligible MySuper product Member is entered into the
administration system as being a Member of the Fund.
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(d) An Employee or Other MySuper product Member will be admitted to
Provisional Membership of this Division of the Fund by the Trustee
while the Trustee has received a Mandated Employer Contribution or
other contribution but has not received sufficient details in respect of
the Employee or Other MySuper product Member to enter the person
on the administration system.
(e) Where a person has been admitted to this Division as a Provisional
Member, the person will be admitted to Full Membership of this
Division of the Fund by the Trustee once the Trustee has received a
Mandated Employer Contribution or other contribution and has
received sufficient details in respect of the Employee or Other
MySuper product Member to enter the person on the administration
system as having Full Membership.
(f)
The Trustee shall classify a Member into the appropriate category of
Membership at the time of admission of the person to Membership of
this Division of the Fund, and may reclassify a Member to other
categories of Membership as appropriate.
(g) Where a Member admitted to this Division ceases to be an Employee
of an Employer or ceases to be an active Member of this Division as
determined by the Trustee, that Member shall be classified as a
Dormant Member of this Division and the provisions of this Division
with any necessary modifications thereof shall continue to apply to
that Dormant Member.
3.
Deleted
4.
CONTRIBUTIONS
(a)
Anyone may contribute
Anyone may make a contribution to this Division in respect of a
Member that the Trustee is lawfully able to accept.
(b)
Deleted
(c)
Participating Employer Contributions
Each Participating Employer shall pay to the Trustee the Mandated
Employer Contributions payable in respect of the Employees of that
Employer in accordance with sub-rule 4(d) of this Division, and shall
pay such Non Mandated Employer Contributions as it shall from time
to time agree with the Trustee to pay in respect of each Member by
such date as the Trustee and Employer agree.
(d)
Payment Obligations
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(e)
(i)
Contributions required to be made under an Industrial
Instrument shall be paid monthly in arrears at the end of each
month in which the Member is employed, unless otherwise
provided by the terms of the Industrial Instrument (in which
case they shall be paid in accordance with the terms of the
Industrial Instrument).
(ii)
Mandated Employer Contributions other than those made
under sub-rule 4(d)(i) shall where the Participating Employer
agrees to paying monthly be paid at the end of each month in
which the Member is employed and otherwise shall be paid at
the end of each quarter in which the Member is employed.
Payment Directions
directions as to the amount of contributions to be allocated to each
Member employed by it.
(f)
Interest
In the event that an Employer has not paid contributions due and
payable to the Trustee within 28 days of the date upon which the
payment is due in accordance with sub-rule 4( d) of this Division, the
Employer liable to pay the contribution shall also be liable to pay to
the Trustee penalty interest at the same rate charged by the
Commonwealth Bank to their clients in respect of overdrafts of less
than $100,000 and the Employer shall also be responsible for the
payment to the Trustee of any costs reasonably incurred by or on
behalf of the Trustee in collecting those contributions together with
interest. However, nothing in this Deed shall impose an obligation on
the Trustee to take any action to recover unpaid contributions, interest
or costs from an Employer where in the opinion of the Trustee it
would be uneconomical to do so.
5.
ACCOUNTS
The Trustee shall establish such accounts in respect of this Division as are
required in accordance with Clause 10 of this Deed.
6.
RETIREMENT BENEFIT WHERE THE MEMBER IS AGED LESS THAN
65YEARS
If a Member:
(a) who is aged less than 65 years and has reached their Preservation Age,
retires from Gainful Employment and the Trustee is reasonably
satisfied that the Member intends never to become Gainfully
Employed, either on a Full-Time or a Part-Time basis; or
AZTI AZT130129081282817I AUMI1206133964.1
88
(b) who has reached age 60, but not age 65, and an arrangement under
which the member is Gainfully Employed, has come to an end;
then the Member is entitled to be paid the amount standing to the credit of
his/her Accumulation Account.
7.
CASHING OF BENEFITS
A Member 1s Benefits may be cashed out on attaining age 65 and must be
cashed out as soon as practicable after the Member dies.
7A
ELIGIBLE TEMPORARY RESIDENT VISA
If a member is the holder of an Eligible Temporary Resident Visa and all
other requirements of the SIS Act have been satisfied then the Member must
be paid the amount standing to the credit of his/her Accumulation
Account.
8.
TOTAL AND PERMANENT DISABLEMENT BENEFIT
If a Member becomes Totally and Permanently Disabled then the Trustee
will pay a Benefit to the Member equal to the aggregate of:
(a) the amount standing to the credit of his/her Accumulation Account;
and
(b) any Insured Benefit of the Member received by the Trustee in respect
of the Member upon the Member's Total and Permanent Disablement.
9.
TOTAL AND TEMPORARY DISABLEMENT BENEFIT
If a Member becomes Totally and Temporarily Disabled and the Member is
entitled to an Insured Benefit on becoming Totally and Temporarily
Disabled then the Trustee w ill pay a Benefit to the Member equal to any
Insured Benefit received by the Trustee in respect of the Member's Total
and Temporary Disablement.
10.
HARDSHIP BENEFITS
If a Member, in the opinion of the Trustee, qualifies:
(a) as suffering from Severe Financial Hardship; or
(b) on Compassionate Grounds;
and the Member requests a payment of his or her Benefits, then such
Member m ay be paid a Benefit from the Member's Accumulation Account
in accordance with the Relevant Law.
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89
11.
12.
PAYMENT OF BENEFITS IN OTHER CIRCUMSTANCES
(a)
If a Member in the opinion of the Trustee qualifies as having a
Terminal medical condition and the Member requests a payment of his
or her Benefits, then such Member may be paid a Benefit from the
Member's Accumulation Account in accordance with the Relevant
Law.
(b)
Notwithstanding the other provisions dealing with the payments of
Benefits contained within these rules, if a Member is permitted to
receive a Benefit under the Relevant Law, the Trustee, at the request of
the Member and in its absolute discretion, may pay to the Member all
or part of the Benefit of that Member equal to the amount standing to
the credit of the Accumulation Account of the Member.
RECEIVING BENEFIT AS A PENSION
If a Member is eligible for payment of a Benefit in accordance with rules 6,
7, 7A, 8, 9, 10 or 11 and the Member elects to receive the Benefit as a
Pension, the Trustee may transfer the Member's Benefit into Division 3.
13.
PAYMENTONDEATH
On the death of a Member whilst still a Member the Trustee shall pay the
full amount standing to the credit of the Member's Accumulation Account
as at the date upon which payment is made in accordance with the
provisions of Clause 26 of the Deed.
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DIVISION 2- RULES OF THE TWU SUPERANNUATION FUND
-PERSONAL DIVISION
1.
(a)
Membership Criteria
The provisions of this Division will apply to Eligible Persons who are
not employed by an Employer and are not a MySuper product
Member who has agreed with the Tru stee to enter into an arrangement
to make contributions to the Fund.
(b)
Application of this Division
The Membership classification, the contributions payable by or in
respect ot and the Benefits payable in respect of Members under this
Division shall be exclusively determined in accordance with the
provisions of this Division PROVIDED THAT a Member under this
Division who is an Employee or a MySuper product Member shall not
be precluded from becoming a Member of Division 1.
2.
There shall be one class of Membership under this Division and Members
shall be designated as ordinary Members PROVIDED HOWEVER that the
Trustee shall have the power to create such other Membership classes with
such rights and entitlements as the Trustee shall determine.
3.
CONTRIBUTIONS
(a)
Anyone may contribute
Anyone may make a contribution to this Division in respect of a
Member that the Trustee is lawfully able to accept.
4.
ACCOUNTS
5.
65YEARS
If a Member:
(a)
who is aged less than 65 years and has reached their Preservation Age,
AZf/ AZT/3012908/282817/ AUM/1206133%4.1
91
(b)
who has reached age 60, but not age 65, and an arrangement under
6.
CASHING OF BENEFITS
A Member's Benefits may be cashed out on attaining age 65 and must be
7.
(a) the amount standing to the credit of his/ her Accumulation Account;
and
(b) any Insured Benefit of the Member received by the Trustee in respect
7A
Account.
8.
Disabled then the Trustee will pay a Benefit to the Member equal to any
9.
HARDSHIP BENEFITS
(a) as suffering from Severe Financial Hardship; or
(b) on Compassionate Grounds;
Member may be paid a Benefit from the Member's Accumulation Account
AZT/ AZT/3012908/282817 / AUM/1206133964.1
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10.
11.
PAYMENT OF BENEFITS IN OTHER CIRCUMSTANCES
(a)
Law.
(b)
6, 7, 7A, 8, 9 or 10 and the Member elects to receive the Benefit as a Pension,
the Trustee may transfer the Member's Benefit into Division 3.
12.
PAYMENTONDEATH
provisions of Clause 26 of this Deed.
AZT/ AZT/3012908/282817/ AUM/ 1206133964.1
93
DIVISION 3- RULES OF THE TWU SUPERANNUATION FUND
- PENSION DIVISION
1.
(a)
Membership Criteria
The provisions of this Division shall apply to persons eligible under
the Relevant Law to be paid a Pension and who make an application
for Membership pursuant to Part 3 of this Deed or Members who have
elected to receive a pension benefit and have been transferred from
Division 1 or Division 2.
(b)
Application of this Division
The Membership classification, the contributions payable by and in
respect of, and the Benefits payable in respect of Members under this
Division should be exclusively determined in accordance with the
provisions of this Division.
2.
There should be one class of Membership under this Division and Members
shall be designated as Ordinary Members PROVIDED HOWEVER the
Trustee shall have the power to create such other Membership classes with
such rights and entitlements as the Trustee shall determine.
3.
CONTRIBUTIONS
A Member may only make such contributions or rollovers to this Division
as are permitted by the Relevant Law.
4.
PENSION PAYMENT AND PENSION ACCOUNT
(a)
Application to Convert to Pension
At such time as a Benefit or part of a Benefit becomes payable to a
Member or beneficiary under the terms of this Deed in accordance
with the Relevant Law the Trustee may at the request of the Member
or beneficiary but otherwise in its absolute discretion determine to pay
a Pension or Pensions from the Fund to the Member or beneficiary (as
the case might be) on the conditions set out in Rule 5:
(i)
in lieu of the whole or a portion of any lump sum Benefit
which is otherwise payable to the Member or beneficiary; or
(ii)
in respect of any amounts credited to the Pension Account of a
Member or beneficiary under sub-rule 4(c)(i)B.
AZT/ AZT/3012908/ 282817/ AUM/1206133964.1
94
(b)
Establishment of Pension Account
Where a Member or a beneficiary has made an application under subrule 4(a) above and the Trustee determines to pay all or any part of the
Benefit to the Member or the beneficiary as a Pension, the Trustee
must establish one or more Pension Accounts in respect of the Member
or the beneficiary to which Accounts the Trustee shall transfer
amounts determined in accordance with this Deed which the Trustee
believes are necessary in order to provide the Benefits as a Pension.
(c)
Operation of Pension Account
(i)
(ii)
The following amounts shall be credited to the Pension
Account of a Pensioner:
A.
any amount transferred under sub-rule 4(b) above;
B.
any amount paid into the Fund in respect of a
Pensioner as a transfer or a Roll Over Payment which
the Trustee considers it appropriate to credit;
C.
the proceeds of any Policy effected by the Trustee in
respect of the Pensioner and paid to the Trustee which
the Trustee considers it appropriate to credit;
D.
such earnings of the Fund ascertained in accordance
with sub-clause lO(d) and sub-clause 13(e)(v) of this
Deed as the Trustee shall determine to be equitable;
E
the number of Units issued and any increase in the
Unit Value as described in Clause lOA;
F.
any credit arising out of any adjustments made in
accordance with sub-clause IO(g) of this Deed;
G.
any Shortfall Component paid in respect of the
Pensioner;
H.
any amount of Financial Assistance determined by the
Trustee to be appropriate to credit.
The following amounts are to be debited to the Pension
Account of a Pensioner:
A.
any amount transferred out of the Fund in respect
of a Pensioner as a h·ansfer of a Roll Over Payment
which the Trustee considers it appropriate to debit;
B.
any payments made to or in respect of the
Pensioner or a Reversionary Beneficiary pursuant to
the provisions of this Deed;
C.
the costs of any Policy effected by the Trustee in
respect of the Pensioner which are not debited to an
AZTI AZT130129081282817I AUMI 1206133964.1
95
Accumulation Account in accordance with subclause lO(c) of this Deed;
(d)
D.
such proportion of any amount payable by way of
Taxation in respect of the earnings of the Fund
credited to the Pension Account of a Pensioner or
arising as a result of a Roll Over Payment as the
Trustee shall determine;
E.
such of the costs, charges and expenses incurred in
accordance with Clause 17 of this Deed as the
Trustee shall determine to be equitable;
F.
such of the amount paid in respect of the Trustee
indemnity set out in Clause 16 of this Deed as the
Trustee shall determine to be equitable;
G.
a proportion of any loss sustained on the disposal of
any investments of the Fund as the Trustee shall
determine to be equitable;
H.
such negative earnings of the Fund ascertained in
accordance with sub-clause lO(d) and paragraph
13(e)(v) of this Deed as the Trustee shall determine
to be equitable;
I
the number of Units redeemed and any decrease in
the Unit Value as described in Clause lOA;
J.
any amount transferred to the Accumulation
Account of a beneficiary;
K.
any amount of levy determined by the Trustee to be
appropriate to debit;
L.
such other amounts as the Trustee shall from time
to time determine.
Segregation of Pension Assets
In relation to each Pension payable to a Member or a beneficiary, the
Trustee may:
(i)
segregate or set apart the assets which represent the Pension
Account of the Member or beneficiary for the sole purpose of
enabling the discharge of the whole or part of the current or
non current liabilities in relation to the payment of Pensions as
those liabilities fall due for payment; and
(ii)
constitute the segregated assets as segregated current and non
current pension assets within the meaning of Section 273A and
Section 273B of the Tax Act and obtain such certificates in
relation to the adequacy of the assets segregated and set apart
to meet the current and non current pension liabilities as the
AZTI AZT130129081282817I AUMI 1206133964.1
96
Trustee considers necessary for the purposes of the Tax Act or
as the Relevant Law shall require.
(e)
Payment to Reversionary Beneficiary
(i)
On the death of a Member, the Trustee may continue to pay a
Benefit in accordance with the rules of this Division in the
form of a pension to a Reversionary Beneficiary. A
Reversionary Beneficiary is a person in relation to whom the
following conditions are satisfied:
A
The person is the Spouse or Child of the Member
specified to be the Member's reversionary pensioner in
the Member's application form given to the Trustee
prior to the commencement of a pension; and
B
the person specified to be the Member's reversionary
pensioner in the Member's application form is the
Spouse or Child of the Member at the date of
specification in the Member's application form given
to the Trustee.
(ii)
The Spouse or Child of the Member specified to be the
Member's reversionary pensioner may be varied on the
written request of the Member in the approved form at any
time but not more than once a year.
(iii)
A Reversionary Beneficiary is deemed to be a Member on the
death of the Member specifying them to be their Reversionary
Beneficiary.
(iv)
Where the Reversionary Beneficiary is a Child of the Deceased
Member, the Trustee may only continue to pay a Benefit in the
form of a pension to a Child in accordance with the Relevant
Law if:
(v)
A
The Child is aged under 18 years; or
B
The Child is aged 18 or over and
I)
is financially dependant on the Member and is
aged under 25; or
II)
has a Permanent Disability.
Any remaining part of the Benefit to be paid to a Child of the
deceased Member as a Reversionary Beneficiary must be
cashed out as a lump sum on the day the Child attains age 25,
unless the Child has a Permanent Disability.
AZTI AZT130129081282817I A UMI 1206133964.1
97
5.
PENSION PAYMENT CONDITIONS
(a)
Method of Payment and Security
Where a Pension is payable from the Fund, the following conditions
shall apply to the p ayment of the Pension:
(b)
(i)
the Pension shall be p aid from the amount standing to the
credit of the Pension Account of the Pensioner;
(ii)
the Pension shall be p aid at least annually;
(iii)
the amount of the Pen sion in any year shall be such amount as
is nominated by the Pensioner and notified to the Trustee in
writing from time to time PROVIDED THAT the amount shall
not be greater than or lesser than the amounts calculated as the
maximum (if applicable) and minimum limits specified by the
Relevant Law for the payment of a Pension;
(iv)
the Pension shall hot be transferred to any person other than a
Reversionary Beneficiary on the death of the Pensioner or the
Reversionary Beneficiary PROVIDED THAT the Trustee may
determine to transfer the Pension upon such other terms as
shall be acceptable under the Relevant Law;
(v)
the capital value of the Pension and the income from the
Pension cannot be used by a person as security for a
borrowing.
(vi)
from such date as the Trustee determines, being n ot earlier
than 1 July 2007, the Trustee shall have the power to vary the
terms of the Pension to comply with the Relevant Law
applying to an Account Based Pension.
Pension Account Limitation
Where a Pension is p ayable to or in respect of a Member or a
beneficiary or where the Trustee purchases an Annuity on behalf of a
Member or a beneficiary, the total instalments of such Pension or the
total purchase price of such Annuity shall, subject to sub-clause 27(1<)
of this Deed, not exceed the amount standing to the credit of a
Member or Pensioner in the relevant Accumulation Account or
Pension Account of the Member or Pensioner at the relevant time.
(c)
Reversionary Beneficiary
After the death of a Pensioner who was at the time of death still in
receipt of a Pension under this Deed, the Trustee shall pay to the
Reversionary Beneficiary a Pension or a lump sum Benefit which
A ZT I AZT130129081 282817I AUMI1206133964.1
98
amount shall not exceed an amount calculated in accordance with the
Relevant Law.
(d)
Death of Pensioner
In the event of the death of a Pensioner whilst there is still an amount
standing to the credit of the Pension Account of the Pensioner and
w here no Reversionary Beneficiary has been nominated the balance of
such Pension Account shall be dealt with in accordance with the
provisions of Clause 26 of this Deed PROVIDED HOWEVER that in
the event that such an application is not in accordance with the
Relevant Law the balance of such Pension Account shall be dealt with
in accordance w ith sub-clause 24(c) and (d) of this Deed as though it
were a forfeited Benefit or otherwise as permitted by the Relevant
Law.
6.
COMMUTATION OF PENSION
(a)
Conditions of Commutation
On the written application of a Pensioner or Reversionary Beneficiary,
the Trustee may commute to a lump sum Benefit the whole or any part
of a Pension payable from the Fund to such Pensioner or Reversionary
Beneficiary as applicable PROVIDED THAT:
(b)
(i)
the commutation of the Pension is permitted by the Relevant
Law;
(ii)
the amount of the commuted Benefit including the value of
any remaining Pension payable shall be subject to the
provisions of sub-clause 27(k);
(iii)
w here any am ount remains in the Fund after the entitlement
of all Pensioners and Reversionary Beneficiaries have been
p aid out then the amount so remaining shall be dealt with in
accordance with sub-clauses 24(c) and (d) of this Deed as
though it were a forfeited Benefit; .and
(iv)
the commutation would not be to the disadvantage of the
Fund, the Employers, the remaining Members, Pensioners or
Reversionary Beneficiaries.
Payment of Lump Sum Benefit
The Trustee shall p ay the amount of the lump sum Benefit in respect of
the Pension being commuted to the Pensioner or the Reversionary
Beneficiary w ho applied for the commutation but subject to any other
applicable provisions of this Deed.
AZT/ AZT/3012908/282817/ AUM/ 1206133964.1
99
(c)
Adjustment of Pension following the Commutation
Following the commutation of a part of a Pension, the Trustee shall
reduce the total amount of the instalments of any Pension payable to
the Pensioner by such amount as it considers appropriate.
AZT/ AZT/3012908/282817/ AUM/1206133964.1
100
DIVISION 4- RULES OF TWU SUPERANNUATION FUND- TRANSUPER
DIVISION
1.
(a)
(b)
Membership criteria
(i)
A person is eligible to become a Member of this Division if the
person is an Employee who has been nominated in writing by
a Participating Employer for Membership of this Division for
Benefits under Clause 6(d)(i) of this Deed.
(ii)
A person is eligible to become a Member of this Division if the
Member is eligible as a MySuper product Member but not
eligible for membership under sub-rules l(a)(i) or l(a)(iii) of
this provision and has not been admitted to membership by
the Trustee under Division 1.
(iii)
A Successor Fund Member is eligible to become a Member of
this Division on receipt by the Trustee of an amount
transferred to the Fund in respect of the Successor Fund
Member from another superannuation fund.
Application of this Part
The Membership classification, contributions payable by or in respect
of, and the Benefits payable in respect of Members under this Division
shall be exclusively determined in accordance with the provisions of
this Division PROVIDED THAT the Member shall not be precluded
from becoming a Member of another Division.
2.
(a) There shall be the following categories of Membership under this
Division:
(i)
Employee Members being those eligible under sub-rule l(a)(i);
(ii)
Other MySuper product Members being those eligible under
sub-rule l(a)(ii); and
(iii)
Successor Fund Members being those eligible under sub-rule
l(a)(iii).
(b) There shall be the following sub-categories of Membership of the
above categories:
(iv)
Provisional Membership; and
(v)
Full Membership.
AZfI AZTI 3012908I282817I AUMI1206133964.1
101
(c)
An eligible Employee nominated by an Employer (other than a
Successor Fund Member) or an eligible MySuper product Member will
be admitted to Full Membership of this Division of the Fund by the
Trustee on the date on which the eligible Employee or an eligible
MySuper product Member is entered into the administration system as
being a Member of the Fund.
(d) An Employee (other than a Successor Fund Member) or Other
MySuper product Member will be admitted to Provisional
Membership of this Division of the Fund by the Trustee while the
Trustee has received a Mandated Employer Contribution or other
contribution but has not received sufficient details in respect of the
Employee or Other MySuper product Member to enter the person on
the administration system.
(e) Where a person has been admitted to this Division as a Provisional
Member, the person will be admitted to Full Membership of this
Division of the Fund by the Trustee once the Trustee has received a
Mandated Employer Contribution or other contribution and has
received sufficient details in respect of the Employee or Other
MySuper product Member to enter the person on the administration
system as having Full Membership.
(f)
A Successor Fund Member on joining the Fund shall be given the
category of membership that most closely matches the member's
membership in the superannuation fund from which the Member has
transferred.
(g) The Trustee shall classify a Member into the appropriate category of
Membership at the time of admission of the person to Membership of
this Division of the Fund, and may reclassify a Member to other
categories of Membership as appropriate.
3.
CONTRIBUTIONS
(a)
Member Contributions
A Member may, with the agreement of the Trustee, contribute to the
Division such amount as the Member shall determine subject to the
provisions of Clause 20.
(b)
Spouse Contributions
(i)
A Spouse of a Member admitted to the Fund pursuant to
paragraph 6(d)(ii) of this Deed shall not be obliged to make
contributions to the Division for or on behalf of the Member
but may do so if an agreement with the Trustee is made
pursuant to this Deed.
AZrI AZTI3012908I 282817I AUMI 1206133964.1
102
(ii)
A Member may pay contributions into a Division for or on
behalf of his or her Spouse who is also a Member of the Fund
(pursuant to paragraph 6( d)(ii) of this Deed).
(c)
Participating Employer Contributions
Each Participating Employer shall pay to the Trustee the Mandated
Employer Contributions payable in respect of the Employees of that
Employer in accordance with sub-rule 3(d) of this Division, and shall
pay such Non Mandated Employer Contributions as it shall from time
to time agree with the Trustee to pay in respect of each Member by
such date as the Trustee and Employer agree.
(d)
(e)
Payment Obligations
(i)
Contributions required to be made under an Industrial
Instrument shall be paid monthly in arrears at the end of each
month in which the Member is employed, unless otherwise
provided by the terms of the Industrial Instrument (in which
case they shall be paid in accordance with the terms of the
Industrial Instrument).
(ii)
Mandated Employer Contributions other than those made
under sub-rule 3(d)(i) shall where the Participating Employer
agrees to paying monthly be paid at the end of each month in
which the Member is employed and otherwise shall be paid at
the end of each quarter in which the Member is employed.
Payment Directions
directions as to the amount of contributions to be allocated to each
Member employed by it.
(f)
Interest
In the event that an Employer has not paid contributions due and
payable to the Trustee within 28 days of the date upon which the
payment is due in accordance with sub-rule 3(d) of this Division, the
Employer liable to pay the contribution shall also be liable to pay to
the Trustee penalty interest at the same rate charged by the
Commonwealth Bank to their clients in respect of overdrafts of less
than $100,000 and the Employer shall also be responsible for the
payment to the Trustee of any costs reasonably incurred by or on
behalf of the Trustee in collecting those contributions together with
interest. However, nothing in this Deed shall impose an obligation on
the Trustee to take any action to recover unpaid contributions, interest
or costs from an Employer where in the opinion of the Trustee it
would be uneconomical to do so.
AZrI AZr130129081282817I AUMI1206133%4.1
103
4.
ACCOUNTS
5.
65YEARS
If a Member:
(a) who is aged less than 65 years and has reached their Preservation Age,
(b) who has reached age 60, but not age 65, and an arrangement under
6.
CASHING OF BENEFITS
A Member's Benefits may be cashed out on attaining age 65 and must be
7.
Account.
8.
9.
(a)
the amount standing to the credit of his/her Accumulation Account;
and
(b)
any Insured Benefit of the Member received by the Trustee in respect
Disabled then the Trustee will pay a Benefit to the Member equal to any
Az:f/ AZT/3012908/282817/ AUM/ 1206133964.1
104
10.
HARDSHIP BENEFITS
(a)
in the opinion of the Trustee, as suffering from Severe Financial
Hardship; or
(b)
on Compassionate Grounds;
Member may be paid a Benefit from the Member's Accumulation Account
11.
12.
PAYMENT OF BENEFITS IN OTHER CffiCUMSTANCES
(a)
Law.
(b)
6, 7, 8, 9, 10 and 11 and the Member elects to receive the Benefit as a
Pension, the Trustee may transfer the Member's Benefit into Division 3.
13.
PAYMENTONDEATH
provisions of Clause 26 of the Deed.
14.
SPECIAL ARRANGEMENTS
An Employee (who is intended to become a Member), an Employer, Other
MySuper product Member or a Member may at any time agree in writing,
with the consent of the Trustee, that the benefits and contributions
applicable to the Member should vary in one or more respects from those
which would otherwise apply. In such event, the Member's benefits and
contributions shall be determined in accordance with the terms of the
agreement until the agreement is varied by a further agreement.
AZr/ AZT/3012908/282817/ AUM/1206133964.1

Trust Deed

Transcription

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