Super Alert – 31 July 2020

Welcome to this week’s issue of the KHQ Super Alert. The main news items relate to updates from ASIC, including the new regulatory guide RG 271 which sets out changed internal dispute resolution standards for trustees. 

KHQ Lawyers - Super Alert

ASIC – Internal dispute resolution regulatory guide

On 30 July 2020, ASIC issued RG 271: Internal Dispute Resolution (RG 271). The accompanying legislative instrument which ‘clarifies the enforceable IDR standards and requirements’, ASIC Corporations, Credit and Superannuation (Internal Dispute Resolution) Instrument 2020/98, was also registered on the Federal Register of Legislation. According to ASIC, RG 271 updates existing standards and:

  • ‘introduces reduced timeframes for responding to complaints, including superannuation complaints’ (see below);
  • ‘sets out what information firms must include in written IDR responses to allow consumers to decide whether to escalate their complaint’;
  • ‘sets new timeframe requirements for customer advocate reviews of appeals against IDR decisions’; and
  • ‘gives guidance about how firms can deal with representatives who are not acting in consumers’ best interests’.

Table 2 in RG 271 states as follows in relation to response timeframes for superannuation complaints:

Complaint type Maximum timeframes for IDR response More information
Superannuation trustee complaints, except for complaints about death benefit distributions No later than 45 calendar days after receiving the complaint RG 271.79
Complaints about superannuation death benefit distributions No later than 90 calendar days after the expiry of the 28 calendar day period for objecting to a proposed death benefit distribution referred to in s1056(2)(a) of the Corporations Act RG 271.80 –
RG 271.85

Trustees will need to comply with RG 271 on and from 5 October 2021. Until that date, RG 165: Licensing – Internal and External Dispute Resolution continues to apply.

Click here and here for details.

Legislation – Electronic transactions

On 29 July 2020, the Electronic Transactions Regulations 2020 (Cth) were registered on the Federal Register of Legislation. These regulations repeal the previous version with some minor amendments.

The regulations specify that the Electronic Transactions Act 1999 (Cth) (ETA) only applies to certain parts of Commonwealth legislation. The regulations have been updated to state that the ETA applies to:

  • insurance elections made under sections 68AAA, 68AAB and 68AAC of the SIS Act; and
  • all of the RSA Act except sections 92, 93 and 100 (these provisions relate to giving information and producing books to APRA, and APRA would like to retain its powers to obtain these materials in hard copy).

Click here for details.

ASIC – Relief applications

On 27 July 2020, ASIC announced that the ASIC Regulatory Portal will now be ‘the primary way to submit applications for relief’ to ASIC. A set of frequently asked questions in relation to the portal is available on ASIC’s website.

Click here and here for details.

ASIC – RG 97 changes

On 24 July 2020, ASIC made minor amendments to RG 97 to align with the transitional changes made to the primary legislative instrument in relation to fees and costs disclosure (see our Super Alert of 24 July 2020 for further information).

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Federal Court case – meaning of ‘employee’ for SG purposes

On 16 July 2020, the Full Court of the Federal Court of Australia handed down its decision in Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118. One of the main issues on appeal was whether Mr Moffet, a dentist, was an ‘employee’ for the purposes of section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth). This required a consideration as to whether he was working under a contract that was ‘wholly or principally for…labour’.

Mr Moffet’s dental practice was purchased by Dental Corporation in 2007, however Mr Moffet was engaged to work in the practice pursuant to a services agreement. The services agreement contained an obligation on Mr Moffet to provide personal services as a dentist and practice manager, and a promise that the practice would generate a minimum cash flow (which was secured against his monthly payments). The primary judge had found that Mr Moffet was an employee for the purposes of the SG Act and the Full Court agreed. It considered that section 12(3) ‘requires…that: (a) there should be a ‘contract’; (b) which is wholly or principally ‘for’ the labour of a person; and (c) that the person must ‘work’ under that contract’. It determined that the services agreement was substantially for Mr Moffet’s labour.

Click here for details.

KHQ Lawyers - Sanela Osmanovic

Sanela Osmanovic Senior Associate

Sanela is a Senior Associate in the superannuation and financial services team, and has a broad range of experience working with a range of superannuation fund trustees, superannuation administrators,... Read More

KHQ Lawyers - Natalie Cambrell

Natalie Cambrell Principal Solicitor

Natalie Cambrell leads our superannuation and financial services team.  With more than 20 years’ experience, she has an enviable reputation for her in-depth knowledge in these highly regulated and... Read More