The determination

The role of the Tribunal is not to make a decision as if the Tribunal is the fund trustee or decision-maker. What the Tribunal does is make a determination about whether the operation of the decision complained about is or was unfair or unreasonable in the circumstances.

The Tribunal will focus on the consequence or outcome of the decision in its practical operation in relation to you. If the Tribunal thinks that the operation of the decision in relation to you was fair and reasonable in the circumstances, the Tribunal must affirm the decision, and the decision will stand.

Note:  In death benefit reviews, the operation of the decision in relation to other persons with an interest in the death benefit who have been joined as a party must also be considered.

If the Tribunal thinks that the decision does not operate fairly or reasonably in the circumstances, it is only then that the Tribunal can exercise its powers for the purpose of removing, as far as possible, the unfairness or unreasonableness, or both, that the Tribunal has found to exist.

The Tribunal might remove the unfairness or unreasonableness by setting aside the decision and substituting a new decision. Also, the Tribunal might vary the decision or remit (send back) the decision to the fund for reconsideration in accordance with the Tribunal's directions.

It is important to note that even when the Tribunal makes its determination it is bound by the same laws and rules as the fund. This means that if the Tribunal sets aside a decision and substitutes a new decision, or varies a decision, any substituted or varied decision must be a decision that the fund trustee itself could have made.

Implementation of determinations

The superannuation provider must implement the decision of the Tribunal. If they fail to do so, the Australian Securities and Investments Commission can use its extensive powers, to enforce the Tribunal's decision. These may include court action for a performance injunction requiring the superannuation provider to implement the decision of the Tribunal.

In addition, it is a breach of the superannuation industry rules for a superannuation trustee to fail to implement a decision of the Tribunal.

How long do I have to wait for a determination?

It is not possible to estimate the time it will take to issue a particular determination as many factors (e.g. the complexity of the circumstances surrounding the complaint) affect how long it takes for the determination to be drafted, written and signed off by the Tribunal members. However, the Tribunal aims to issue determinations within 8 weeks of the date of the hearing.