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A. What to consider as an employer

Superannuation Guarantee and Awards

Section: 1.1

The compulsory nature of superannuation has been a feature of the Australian employment landscape for more than 25 years. Prior to this, superannuation was provided by only long-established companies and government departments that considered it an important employee benefit in attracting, retaining and rewarding valuable staff.

Award superannuation was introduced in 1986 as part of a National Wage Case in an attempt to broaden superannuation savings to the wider working population. It is now a feature of the majority of Federal Awards and a large number of State Awards.

Award superannuation challenged the notion that superannuation was a benefit only for the privileged few. The superannuation guarantee, which was applied from 1 July 1992, built on this foundation, spread superannuation to most working Australians - even to those not covered by Awards. While there are no employers exempt from paying the superannuation guarantee (SG) as it applies to most of their full-time, part-time and casual employees, there are a number of employees an employer is not required to provide superannuation for, e.g., very high or very low income earners or some casual employees.

While all employers have an obligation under the SG legislation to pay these superannuation contributions, this does not override any other obligation required by Federal or State Awards, industrial agreements or employer contracts.

If an employer makes superannuation contributions under an Award and the Award fund is a complying fund, these contributions count towards meeting their SG obligations. But as the SG is now at 9.5% of each employee's earnings base, employers should ensure that no gap exists between the Award requirements and that for superannuation guarantee purposes, because penalties may apply.

Under the SG the employer must also choose between making these payments to a complying superannuation fund, MySuper product or Retirement Savings Account chosen by the employee under their choice of super fund rights. If they don't they might find themselves paying the Superannuation Guarantee Charge (including prescribed late payment penalties to the Australian Taxation Office).

Where employers followed these obligations they are able to claim a tax deduction up to the limits allowed by the ATO. Should contribution payments not be paid by the due date and as a result, the SG Charge becomes payable then no tax deduction will be allowed.

The ATO has issued a number of specific rulings and determinations as guidance in determining an employer's obligations, who qualifies as an employee for superannuation purposes, including the status of contractors.

Awards usually specify when contributions are due, while the government also requires SG contributions to be paid quarterly.

What are the difference between award and superannuation guarantee requirements?

This table summarise the different requirements of Awards and the superannuation guarantee. This table is of general nature only and does not purport to cover every circumstances.

Question Award Superannuation Guarantee
Which superannuation fund do I contribute to? The fund or MySuper product is normally specified in the Award but you may be allowed to pick another fund or product. Any complying fund
What qualifying period exists? It depends on the Award. Some Awards may include a qualifying period, e.g., employees may have to work three months before they are entitled to superannuation. Qualifying period is not determined by length of service but by wages paid. An entitlement is calculated from commencement of employment. An employee qualifies if $450 or more is paid in a calendar month.
Are part-time and casual employees excluded? Awards may exclude part-time and casual employees. No specific exclusions, but wage level qualifications must be met before superannuation guarantee is due.
How are junior employees treated? Generally no different to other employees, but some exemptions as a result of age may apply. A junior may be exempt if under 18 years of age and working not more than 30 hours per week.
How frequently are contributions paid? Varies, but monthly is common. At least quarterly
Can employees choose not to receive superannuation? In some cases an employee can choose not to participate. Employers remain bound by relevant Award provisions. Depends upon age, if employee is beyond normal retirement age and hours worked each month.

Employees exempt from SG

The following employees are exempt from SG:

  • Employees opting out of receiving super if they are covered by an SG employer shortfall exemption certification in relation to the employee for the quarter
  • Employee who are non-residents for work executed outside of Australia
  • Part-time employees under 18 years of age (working 30 hours, or less, each week).
  • Employees paid for work of a domestic/private nature for not more than 30 hours each week, e.g. part-time nanny or housekeeper.
  • Employees employed under the Community Development Employment Program.
  • Employees who are members of the army, naval or air force reserve
Temporary COVID-19 relief measures: SG not payable on additional pay due to JobKeeper

Background on JobKeeper payment for employers

Under the Jobkeeper payment, business or not-for-profits that are impacted by the Coronavirus will be able to access a subsidy provided by the Government to continue paying their employees. Affected employers will be able to claim payment of $1,500 per fortnight per eligible employee from 30 September until 27 September 2020. On 21 July 2020, the Government announced the extension of the Jobkeeper payment for a further six months until 28 March 2021 for those business who continue to struggle.

Further changes were announced on 7 August 2020 to adjust the reference date for determining employee eligibility and make it easier for organisations to qualify for the JobKeeper payment extension.

The payment rate of $1,500 per fortnight for eligible employees and business participants will be reduced to $1,500 per fortnight from 28 September 2020 and to $1,000 per fortnight from 4 January 2021. From 28 September 2020, lower payment rates will apply for employees and business participants that worked fewer than 20 hours per week in the relevant reference period.

From 28 September 2020, businesses and not-for-profits will be required to reassess their eligibility with reference to their actual GST turnover in the September quarter 2020 to be eligible for the Jobkeeper payment from 28 September 2020 to 3 January 2021.

And further to this, from 4 January 2021, businesses and not for profits will need to further reassess their turnover to be eligible for the Jobkeeper payment. They will need to demonstrate that they have met the relevant decline in turnover test with reference to their actual GST turnover in the December quarter 2020 to be eligible for the Jobkeeper Payment from 4 January 2021 to 28 march 2021.

Super guarantee

Compulsory super guarantee is not payable on amounts of Jobkeeper received by the employee that exceed their usual fortnightly wage or salary. So, if an employee is receiving more than their usual salary because of the JobKeeper payment, an employer is only obliged to pay on the employee's usual salary amount. Any additional super contributions by the employer would be voluntary.

This technical resource is intended for the use of financial advisers only. It is current as at the date of publication but may be subject to change. This publication has been prepared without taking into account a potential investor's objectives, financial situation, needs or objectives. Before making a recommendation based on this material, you should consider its appropriateness based on the client's objectives, financial situation and needs. Rainmaker Group is not a registered tax agent under the Tax Agent Services Act 2009. Your client should refer to a registered tax agent before relying on information published herein that may impact their tax obligations, liabilities or entitlements.

Last modified: Monday, October 26, 2020