ASIC today released the findings from its review of superannuation trustees’ communications with their members following the first annual performance test for MySuper products.

The test measures the performance of MySuper products against prescribed benchmarks according to a trustee’s own strategic asset allocation.

Report 729 Review of trustee communications about the MySuper performance test (REP 729) focuses on ASIC’s review of performance test communications by the 12 trustees of the 13 products that failed the test in 2021 (details below).

The review found that trustees whose products failed generally complied with the legal obligations to notify their members of the failed test and to disclose the failed test on their website. However, the communication strategies of some trustees may have risked confusing or misleading members about their product’s performance.

ASIC’s REP 729 identifies communication strategies of concern including, for example:

 

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  • publishing the MySuper product’s failure of the test on a webpage less likely to be visited by persons interested in the product;
  • highlighting other performance measures that were more favourable, such as recent positive past performance figures; or
  • criticising aspects of the test to suggest it was not relevant to the particular product.

ASIC Commissioner Danielle Press said, ‘The performance test supports transparency of product performance for members so they can make more informed investment decisions. Trustees should act in their members’ best financial interests by being transparent about the performance of their product. They should communicate their performance test results to members in a balanced, clear and factual way.

‘Communication strategies that don’t prominently disclose the test result or obscure the importance of a failed result in some way are not acceptable,’ Ms Press said.

Since the performance test results were first released by APRA in August 2021, a number of funds with products that failed the test have now merged or are in the process of merging with another fund.

Commissioner Press said, ‘For the 2022 performance test, we expect trustee communications to reflect our expectations for prominence, balance and clarity set out in REP 729, including where products fail for a second time. Where we see a need to, ASIC will take appropriate action to protect consumers.’

Background

The performance test was introduced by the Treasury Laws Amendment (Your Future, Your Super) Act 2021 with the purpose of holding trustees to account for underperformance through greater transparency and increased consequences. The Australian Prudential Regulation Authority (APRA) conducted the first performance test in August 2021.

The test involves an assessment of:

  • investment performance by applying an objective benchmark for each product that reflects the strategic asset allocation the trustee has set for the product. This provides a measure of whether the investment decisions of the trustee have produced performance outcomes that are higher or lower than would have been achieved by investing passively in each asset class; and
  • administration fees, by assessing the fee charged in the last financial year relative to the median fee charged for the category of product.

Prior to the performance test, in August 2021, ASIC wrote to trustees whose products were at a high risk of failing the test to set expectations and remind them of their legal obligations should their product fail. This included warnings about not engaging in misleading or deceptive conduct.

For REP 729, ASIC reviewed the performance-related disclosures and communications of a sample of 30 trustees, including all trustees whose products failed the test, and looked for potentially misleading or deceptive representations.