The Australian Securities and Investments Commission (ASIC) today announced a class order to provide relief from the requirement to lodge a notice stating that a Product Disclosure Statement (PDS) or Supplementary PDS is ‘in-use’ under the Corporations Act 2001 (the Act). The class order [CO 04/1030] only applies to certain standard employer-sponsored superannuation products.

The in-use notice is an important tool for making ASIC aware of who is issuing financial products and which financial products are available in the market. Under the current law, a PDS or Supplementary PDS requires an in-use notice to be lodged with ASIC within five days of it first being given to a client.

ASIC considers that the following characteristics of standard employer-sponsored superannuation products, available under certain master trust arrangements, make compliance with the in-use notice requirement disproportionately burdensome:

• even though separate superannuation products are made available to the employees of different employers, the superannuation products are essentially the same, with only very minor differences reflecting the limited choices that an employer can make in respect of its own employees; and
• the role of the PDS in relation to such products is not to help a retail client decide whether to acquire the financial product but instead to inform employees of the features of the superannuation product their employer has arranged for them to acquire by virtue of their employment.

ASIC has therefore given relief to permit the lodgement of a single in-use notice in relation to the common part used by each PDS or Supplementary PDS for these products. Issuers using this new procedure will also be required to provide ASIC with a list of those superannuation products that have used that common part. This list is also to be updated on a monthly basis.

Mr John Price, ASIC’s Director of Legal and Technical Operations, Financial Services Regulation, said ‘The relief allows in-use information to be provided to ASIC in a manner that reduces the administrative burden for the trustees of superannuation funds with large numbers of essentially identical products that would otherwise require the lodgement of a separate in-use notice for each product’.

ASIC has also today provided guidance to industry in relation to the practical operation of the new procedures (see the attachment to this information release).

‘While this relief recognises the unique features of standard employer-sponsored superannuation, it does not reduce the information that ASIC would otherwise receive’, Mr Price added.

A copy of the class order is available from the ASIC website at www.asic.gov.au/co or by calling ASIC’s Infoline on 1300 300 630.

End of release

Download a copy of Class Order [CO 04/1030]

Attachment to IR 04-54: Guide to notice procedures under ASIC Class Order [CO 04/1030]

This guide should be read in conjunction with the terms of ASIC Class Order [CO 04/1030]

ASIC Class Order [CO 04/1030]

Notification to ASIC under the existing procedures for section 1015D of the Corporations Act 2001 (the Act) remains open to responsible persons not wishing to utilise the class order.

However, ASIC Class Order (CO 04/1030) now provides an alternative to lodging multiple in-use notices under subsection 1015D(2) of the Act for certain standard-employer sponsored superannuation funds.

Instead of lodging a notice (form FS53 - the PDS In-use Notice) with ASIC in relation to every Product Disclosure Statements (PDS) or Supplementary PDS that is in use, class order [CO 04/1030] allows the lodgement of one primary notice in circumstances where a number of PDSs share the same common part.

Where this alternative is utilised, this notice must be lodged by the person who is required to prepare the PDS or Supplementary PDS, or on whose behalf it is required to be prepared (see subsection 1013A(3)).

Class order [CO 04/1030] modifies the Act by inserting a new section 1015DA. Responsible persons for PDSs or Supplementary PDSs wishing to utilise the alternative notice procedure must comply with the terms of the new provision and the class order.

The primary notice

If responsible persons for PDSs or Supplementary PDSs choose to rely on the class order, a primary notice in relation to the common part must be lodged with ASIC as soon as practicable, and in any event within five business days, after a copy of that common part is first given to someone as part of a PDS.

ASIC expects those responsible persons wishing to utilise the class order to prepare the primary notice in relation to the common part using the current in-use notice (form FS53) with the following amendments:

• It should be clearly marked on the first page of the form that class order [CO 04/1030] is being relied on.
• Questions 1.1 to 1.8, 1.16 to 1.18 and 1.22 to 1.23 should be completed in form FS53.
• For questions 1.9, 1.10, 1.11.1, 1.13, 1.14, 1.15, 1.19, 1.20 and 1.21 it is sufficient to refer to the details provided in an attachment (described below).
• Questions 1.11.2 and 1.12 do not need to be completed.
• Question 1.13 should indicate the date on which the common part was first given.
• The FS53 must be accompanied by an attachment listing the following in tabular format:

1. date of each PDS or Supplementary PDS using the common part;
2. date of when each PDS or Supplementary PDS using the common part was first given;
3. details of the contact person in respect of each PDS or Supplementary PDS using the common part;
4. URL details for each PDS or Supplementary PDS using the common part (if the PDS or Supplementary PDS is available on the internet);
5. date of any previous PDSs or Supplementary PDSs; and
6. if the primary notice relates to a Supplementary PDS:
7.    
   • the date of the PDS it supplements;
   • the reference number of that PDS;
   • a summary of changes causing the supplementary PDS to be issued.

The secondary notice

If responsible persons for PDSs or Supplementary PDSs choose to rely on the class order, for the life of the common part (ie the period over which the common part does not change), those responsible persons must lodge a secondary notice within five business days of the end of each month that the common part is used.

The secondary notice must:

• meet ASIC’s normal requirements for lodgement of documents;
• show the responsible person’s name and ACN, ARBN or ABN details and AFS licence number;
• be signed and dated;
• show the reference number and date of the primary notice;
• provide a tabular list of those PDSs or supplementary PDSs that:
• 1. use the same common part;
• 2. have been given in a recommendation, issue or sale situation during the life of the common part ; and
• 3. at the end of the month to which the notice relates, are available to be given in a recommendation, issue or sale situation.

Lodgement details

For the primary notice – The notice should be lodgedas soon as practicable, and in any event within five business days after the common part is first given to someone in a recommendation, sale or issue situation as part of a PDS or Supplementary PDS.

For the secondary notice – The notice should be lodgedas soon as practicable, and in any event within five business days of the end of each month after the common part is first given to someone in a recommendation, sale or issue situation as part of a PDS or Supplementary PDS.

Send to:

Australian Securities & Investments Commission
PO Box 4000
Gippsland Mail Centre
VIC 3841