Pleading with the the Thieves

In a recent presentation to the Australian Institute of Superannuation Trustees the Chairperson of the Superannuation Complaints Tribunal presented a case study in which a Member complained about final salary Defined Benefit that left him worse off, and the Trustee of this Government Regulated Superannuation Fund claiming the benefit had been calculated according to the Rules of the Fund.

Now this raises the question as to why the Chairperson of the Tribunal was presenting such a case study in the first place.

Following the enactment of the  Superannuation Industry (Supervision) Legislation Amendment Act 1995 No.144, 1995  the Tribunal no longer has the statutory power to deal with complaints that involve a Trustee exceeding its power or misusing its power as is the case in a Breach of Trust where a benefit has not been determined strictly in accordance with the Trust Deed and Governing Rules of the Fund.

The Tribunal Chairperson is duty bound by Section 64 of the Superannuation (Resolution of Complaints) Act 1993 to give particulars of the suspected contravention of “any law or governing rule” to the Prudential Regulator – APRA to further investigated and to take the appropriate enforcement action.

The appropriate person to present such a case study to the Australian Institute of Superannuation Trustees would be the Chairman of APRA and not the Chairperson of the Superannuation Complaints Tribunal!

The Chairperson then states that superannuation funds should be either compromising, settling the complaint, or making an offer to the member, rather than claiming there was nothing they could do {This refers to the Superannuation Salary Fraud where the Employer runs “two sets of books” and provides the bogus lower amount to the Trustee as “superannuation” salary. The Trustee then claims there is nothing the Trustee can do}.

So here we have the Chairperson of the Tribunal pleading with fraudulent Trustees not to steal so much of their Members money!

No mention is make of the Trustee unlawfully “acting under the dictation” of the HR Department of the Employer-Sponsor in contravention of Section 58 of the Superannuation Industry (Supervision) Act 1993 or in contravention of Regulation 4.03 of the Superannuation Industry (Supervision) Regulations 1994.

What the Tribunal Chairperson  should have told this den of thieves is that if Members are alleging that the Employer is under-reporting their “salary” to the Trustee, then the Trustee should seek and order from the Supreme Court in the state in which the Trust was established to force the Employer-Sponsor to provide the same salary information that is reported to the Australian Tax Office, plus any additional information such as amounts included in a “Exclusions List” contained within the Governing Rules of the Fund in question. These are the amounts that the Trustee can lawfully deduct when determining the Member’s “final average salary“. This will protect the Trustee from an action for Breach of Trust.

{For example for a Trust established in the State of Victoria Section 54 of the Supreme Court (General Civil Procedure) Rules 2005}.

Furthermore the Tribunal Chairperson should have advised that if the Tribunal receives Complaints alleging the Complainant has been the victim of a Superannuation Salary Fraud, the Chairperson will be giving particulars to the Prudential Regulator – APRA in accordance with the Chairperson’s Statutory Duty under Section 64 of the Superannuation (Resolution of Complaints) Act 1993.

But what happened to the victim of the case study presented by the Chairperson of the Tribunal to the Australian Institute of Trustees where the victim alleged his or her Trustee had committed a Breach of Trust and failed to pay a final salary Defined Benefit in accordance with the Trust Deed and Rules of the Government Regulated Superannuation Fund in question?

The Tribunal has no jurisdiction to deal with alleged Breaches of Trust, however APRA does have jurisdiction with the assistance of ASIC if there has been a failure of the Trustee to properly disclose Fund Documents. So did the Tribunal Chairperson “give particulars” of the alleged contravention of the alleged Breach of Trust and underpayment of a benefit to either APRA or ASIC of both?

The answer is no as can be seen from the response to a request for copies of the Referral under Section 64 document obtained under the Freedom of Information Act 1982

So do you believe that your Super is Safe if the Chairperson of the Superannuation Complaints Tribunal has to plead with the people who are stealing your money to steal less of it?

Do you believe that your Super is Safe when any complaint of an alleged Breach of Trust and an underpayment of a benefit is thrown into the wastepaper bin?

If you would find out if a fraudulent Trustee has been stealing your money, then become a Member of Australian Guardians today.

Email ausguardian@gmail.com or leave contact details below.

Membership is free.

Australian Guardians – Protecting your money when no one else will®

 

 

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