Commonwealth Superannuation

During the 1960s, and until the 1990s, many current and former employees of the Commonwealth, and Commonwealth statutory authorities, were wrongly told that they weren’t eligible to join one of the Commonwealth superannuation schemes. Snedden Hall & Gallop has helped many clients obtain compensation for periods of lost membership of Commonwealth superannuation. We remain the only law firm in Australia to successfully litigate claims of this type against the Commonwealth. Further information on this important case – Cornwell v Commonwealth – can be found here.

Were you misled about your eligibility to join a Commonwealth superannuation scheme?

Time limits may apply to your potential claim. It is important to seek our specialist advice as soon as possible about any possible entitlements.

Was I eligible for government superannuation?

Many Commonwealth temporary, industrial or blue-collar employees were informed that they weren’t eligible to join the lucrative government superannuation schemes. Affected workers also include those employed by statutory authorities. These include the ABC, ACTEA/ACTEW (now Icon Water), CSIRO and TAA (now AAL Aviation Limited). Snedden Hall & Gallop has developed extensive knowledge about the eligibility of these employees under the Superannuation Act 1922, the Superannuation Act 1976 (CSS) and the Superannuation Act 1990 (PSS). We can advise current and former government employees about their eligibility and explain the associated complex legislative provisions and rules.

What is misleading conduct?

Snedden Hall & Gallop has discovered that many current and former government employees wanted to join the Commonwealth superannuation scheme but were advised that they were not eligible. Many supervisors within the workplace had inadequate or incorrect knowledge about eligibility. However, instead of making further enquiries, they simply advised employees that they weren’t eligible. In many cases, workers were denied many years of membership of Commonwealth superannuation. Therefore, their payout upon retirement will be significantly lower.

Have I been affected by incorrect advice?

It appears that giving incorrect information and failing to properly advise government employees of their entitlements was spread across many workplaces throughout Australia. This includes Canberra. The Commonwealth government created various statutory bodies, and many employees of those statutory bodies appear to have been misled or not provided with adequate information. All such employees have a potential right to claim compensation.

Former TAA employees

In August and September 2015, the first claims brought against AAL Aviation by former TAA employees seeking compensation for denied access to Commonwealth superannuation were heard by the Federal Court. The decision on this case was handed down on 17 February 2016. While the judgment was not in favour of the applicants due to factual findings about each case, the judge found that:

…employees had been denied an opportunity to make provision for their retirement which was available to them under Commonwealth legislation. The conduct was deliberate and calculated. It was done to save money. It was done to the future prejudice of employees…One thing that is clear from the history I have recounted is that TAA embarked on a deliberate course of conduct, over a period of some years at least from 1973 to 1980, designed to obstruct, frustrate and prevent entry into superannuation schemes established under Commonwealth statutes for the benefit of employees.

A full copy of the decision is at Brewer v AAL Aviation Limited [2016] FCA 93 [PDF, 487.86 KB].

Were you an employee of TAA and received advice from TAA that resulted in you not joining Commonwealth superannuation? If so, we invite you to contact a member of our Superannuation Team to discuss your circumstances.

What is the legal process?

We can proceed with claims in court where necessary, but also explore alternative dispute resolution. It’s important to note that many cases are affected by the limitation law. This restricts the time period in which a claim can be lodged in the court. If that time limit expires it’s unlikely that there will be a settlement. We can advise you as to whether your claim is within time. If it is, we can help you to prepare your claim.

What will this cost?

We can assess your matter and advise of your prospects without a financial commitment from you. If the matter proceeds, we will provide you with a detailed cost agreement. This agreement shows you how you will be charged. We’ll also advise you about expenses for any court filing fee or any actuarial calculations, if those steps are required.

We’ll also fully advise you of any risks you face in bringing proceedings. This inlcudes the likelihood of any adverse costs orders in the event any action is unsuccessful.

Limitation in superannuation claims

Legal claims of this type are usually referred to as actions for damages due to a ‘negligent misstatement’.

One of the elements of a successful claim for negligent misstatement (or any claim in negligence) is that the claim can’t be complete until damage occurs. In Commonwealth v Cornwell, the High Court held that the limitation period applying to Mr Cornwell’s claim commenced when he retired and accessed his Commonwealth superannuation. The court held that at that time, the value of Mr Cornwell’s lost superannuation could be ascertained, and therefore the level of damage he suffered was known.

However, the application of the Cornwell ruling is not always straightforward. Even where a client was given wrong or misleading advice about superannuation, the courts may disallow their claim because they’re now outside the six-year limitation period set out in the relevant limitation law. A claim for damages for lost superannuation can therefore succeed or fail purely on the basis of when the limitation period is deemed to have begun.

In February 2015, the ACT Court of Appeal heard a separate specific legal question asking when the limitation period relating to a Commonwealth superannuation claim (Barry Innes v Commonwealth of Australia) had commenced. The Court of Appeal held that Mr Innes first suffered actual loss and damage at the time when, under the legislation which created the Commonwealth Superannuation Scheme (CSS), he would have first been entitled to any statutory benefit. Pursuant to the ruling in this case, that could occur when an employee leaves government employment.

Determining the start date for a limitation period in a superannuation matter can be very complicated and technical. From a layperson’s perspective, the application of the limitation law can often appear arbitrary and even unfair. For these reasons, if you were ever told that you were not entitled to join Commonwealth superannuation, it is essential that you contact Snedden Hall & Gallop for advice immediately.

This is particularly urgent if you have ever:

  • accessed your Commonwealth superannuation, including any part access, or received a refund of your member contributions
  • rolled your Commonwealth superannuation into another fund
  • left Commonwealth or ACT government employment to retire or work in the private sector (even if you later returned to the government sector).

Please do not delay in contacting Snedden Hall & Gallop for an obligation-free assessment of your circumstances.

Act of grace payments

Even if you think you might be out of time to bring a claim as you left government employment more than six years ago, please still contact us. You might be eligible for an ‘act of grace’ payment from the Department of Finance. The act of grace mechanism allows the Commonwealth to make discretionary payments where people have suffered a loss due to actions of the Commonwealth, but have no other avenue  for a remedy available.

We’ve have been able to assist clients to apply for, and be awarded, act of grace payments. We’d be happy to assist you with your act of grace application and would charge a fixed fee.

Meet your Commonwealth Superannuation team

Free online assessment survey

So that it’s easier for you to contact us to start the process of assessing your eligibility for a claim, we’ve created two online surveys:

  • a general form for all former Australian government employees
  • a specific form for former TAA employees.

Superannuation Enquiry Form General

Superannuation Enquiry Form TAA

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Thanks for your help in presenting my case to the representatives and reaching an agreement. Just to confirm that we received the payment from the Department of Finance. You made it very easy for us.

JB (Commonwealth Superannuation)

24 November 2015

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