9.5% of “what” needs to go to super?

7 min read
7 min read

Those of us working in the superannuation industry know—”super is complex”—and sometimes this causes us to simplify our language by using phrases such as the “compulsory superannuation system” or an “employer’s obligation to pay 9.5%”. But does this language confuse our audience when it fails to really explain how the superannuation guarantee (SG) laws work? The Full Federal Court recently had the opportunity to unpack the SG laws in its decision of Bluescope Steel (AIS) Pty Ltd -v- Australian Workers’ Union [2019] FCAFC 84.

The case was an appeal from the decision of a single judge of the Federal Court who basically held that Bluescope had contravened the Fair Work Act 2009 (Cth) by, in broad terms, failing to make the correct contributions for its employees whose terms and conditions of work were governed by various industrial instruments (such as awards and enterprise agreements that applied in different time periods). Those industrial instruments required Bluescope to pay some of its employees annualised or aggregate salaries. Workers under this pay system were required to work up to 43.5 hours each week based on the standard 38 hours, at one rate of pay, plus 5.5 additional hours, at a higher rate of pay and a component for having to work when rostered on a public holiday. The final pay structure resulted in an employee receiving the same amount of money each week regardless of whether he/she worked the additional hours or on a public holiday. Superannuation contributions had been calculated only on the base hours and the union considered this resulted in an underpayment of super contributions because it did not reflect the amount the employees were actually being paid for turning up at work and doing their job.

A threshold question for the Court involved a close analysis of the superannuation paragraphs in the 2006 relevant award where there was an acknowledgement that superannuation is governed exhaustively by federal legislation, as varied from time to time. But did this acknowledgement of the complexity of superannuation law invoke any requirement to make contributions? In answering this question, the Chief Justice of the Federal Court said:

“…there is no statutory obligation placed on employers to make superannuation contributions on behalf of employees. Rather, the legislation operates as a tax encouraging employers to pay superannuation contributions to avoid a significantly more expensive imposition of a (non-deductible) superannuation guarantee charge, if deductible contributions are not made. In practical parlance it may be said that employers are required to make contributions for superannuation. That is not the legal form or substance.” [paragraph 13]

It is worth noting that there are many instances where an industrial instrument, an employment contract or the governing rules of a fund require an employer to make specified contributions. This can only be determined by careful analysis of the words used. In discussing this point, the Chief Justice commented in the Bluescope case:

“There is every reason for those representing employees to include in an enterprise agreement an obligation to pay superannuation at the minimum level that will avoid a charge or tax. That reason is the direct enforceability of the obligation. True it is that if an employer fails to pay the minimum contribution it is then faced with both the imposition of a tax and the possible enforcement of the obligations under the enterprise agreement.” [paragraph 19]

But back to the annualised pay structure at Bluescope which, when unpacked, essentially came down to a simple question. That is, whether payment for the additional hours and public holidays included in the annualised salary were “ordinary time earnings” under the SG legislation. To answer this the court had to carefully analyse the phrases “ordinary time earnings” and “ordinary hours of work” as used in section 6 of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act).

Section 6 of the SGA Act provides that, unless the contrary intention appears, ordinary times earnings, in relation to an employee, means:

  1. “the total of:
    1. earnings in respect of ordinary hours of work other than earnings consisting of a lump sum payment of any of the following kinds made to the employee on the termination of his or her employment:
      1. a payment in lieu of unused sick leave;
      2. an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and
    2. earnings consisting of over-award payments, shift-loading or commission; or
  2. if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter – the maximum contribution base.” (emphasis added)

The words “ordinary hours of work” are not defined in the SGA Act and whether it means standard hours paid at ordinary rates or regular, customary, normal or usual hours worked was essentially the “field of debate” in the appeal in Bluescope. The court noted that the notion of ‘standard’ or ‘ordinary’ hours has had a long history in industrial relations in Australia. A standard working week was once 48 hours but has been 38 hours for some time and remains the case under the Fair Work Act. “The notion of “ordinary hours of work” remains a working integer of the modern award system: s 147 Fair Work Act.” [paragraph 39].

The Federal Court traversed the historical context of the concept of ordinary hours and then noted the statutory purpose of the superannuation legislation was to secure for workers a minimum level of superannuation via a mechanism administered by both employers and the Australian Tax Office. The Chief Justice held that the simplicity and efficiency of this system is threatened if the necessary enquiry for each employee is factual rather than a reference to standard hours at ordinary rates in the relevant industrial instrument. [paragraph 43] “The text, context, purpose and enactment history do not direct one to a meaning constituted solely by hours (factually) usually worked. They tend to a meaning that provides for an objective standard that aids simplicity and lack of complexity.” [paragraph 56]

In coming to the opinion noted above the Court did acknowledge the decision in Quest Personnel Temping Pty Ltd -v- Commissioner of Taxation [2002] FCA 85 where the Federal Court dismissed a challenge to a decision of the Administrative Appeals Tribunal which had supported the Commissioner’s assessment that the SG shortfall would be calculated based on the normal, regular, customary or usual hours worked by the relevant employee. In Bluescope, the Chief Justice held that the decision in Quest was not contrary to his view. This was because in the Quest case the standard offer of employment referred to a minimum five standard shifts each fortnight, as notified. The pay for all hours actually worked was at a standard rate with no loading. Where this is the analysis, ‘ordinary hours’ is what usually or ordinarily happened. [paragraph 74 – 76]

In Bluescope, the various industrial instruments did clearly distinguish between ordinary hours at a standard rate and additional or overtime hours at a higher rate. In these circumstances, Bluescope had paid the correct amount when it paid SG by reference to the earnings in respect of the 38 hours per week in the calculation of the annualised salary. The appeal was allowed on the basis that earnings, in respect of ordinary hours of work, is not directed to additional hours at a higher rate, whether the employee is required, or not, to work those additional hours. [paragraph 117]

Picture of By Clayton Utz

By Clayton Utz

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Carmen Beverley-Smith

Executive Director - Superannuation, Life & Private Health Insurance, APRA

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Carmen joined APRA in March 2023 and holds the role of Executive Director, Life and Private Health Insurance and Superannuation.  

She has had an esteemed career in financial services, spanning over 25 years. She has held diverse leadership roles at Westpac and Commonwealth Bank of Australia, including across risk, transformation and change, product and portfolio development, and sales and service. 

Prior to joining APRA, she held the role of General Manager, Risk Transformation Delivery Integration at Westpac. This involved leading the group-wide implementation of a suite of solutions to uplift risk management capability and develop data, analytics and reporting. 

Carmen leads with a values-driven approach and a particular interest in developing and mentoring talent. 

She holds a Bachelor of Commerce and Accounting, is a certified Chartered Accountant and a Graduate of the Australian Institute of Company Directors. 

Amy C. Edmondson

Novartis Professor of Leadership and Management, Harvard Business School

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Amy C. Edmondson is the Novartis Professor of Leadership and Management at the Harvard Business School, a chair established to support the study of human interactions that lead to the creation of successful enterprises that contribute to the betterment of society.

Edmondson has been recognized by the biannual Thinkers50 global ranking of management thinkers since 2011, and most recently was ranked #1 in 2021 and 2023; she also received that organization’s Breakthrough Idea Award in 2019, and Talent Award in 2017.  She studies teaming, psychological safety, and organisational learning, and her articles have been published in numerous academic and management outlets, including Administrative Science Quarterly, Academy of Management Journal, Harvard Business Review and California Management Review. Her 2019 book, The Fearless Organization: Creating Psychological Safety in the Workplace for Learning, Innovation and Growth (Wiley), has been translated into 15 languages. Her prior books – Teaming: How organizations learn, innovate and compete in the knowledge economy (Jossey-Bass, 2012), Teaming to Innovate (Jossey-Bass, 2013) and Extreme Teaming (Emerald, 2017) – explore teamwork in dynamic organisational environments. In Building the future: Big teaming for audacious innovation (Berrett-Koehler, 2016), she examines the challenges and opportunities of teaming across industries to build smart cities. 

Edmondson’s latest book, Right Kind of Wrong (Atria), builds on her prior work on psychological safety and teaming to provide a framework for thinking about, discussing, and practicing the science of failing well. First published in the US and the UK in September, 2023, the book is due to be translated into 24 additional languages, and was selected for the Financial Times and Schroders Best Business Book of the Year award.

Before her academic career, she was Director of Research at Pecos River Learning Centers, where she worked on transformational change in large companies. In the early 1980s, she worked as Chief Engineer for architect/inventor Buckminster Fuller, and her book A Fuller Explanation: The Synergetic Geometry of R. Buckminster Fuller (Birkauser Boston, 1987) clarifies Fuller’s mathematical contributions for a non-technical audience. Edmondson received her PhD in organisational behavior, AM in psychology, and AB in engineering and design from Harvard University.

 

Daniel Mulino MP

Assistant Treasurer and Minister for Financial Services

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Born in Brindisi, Italy, Daniel was a young child when he moved with his family to Australia. He grew up in Canberra and completed his first degrees – arts and law – at the ANU. He then completed a Master of Economics (University of Sydney) and a PhD in economics from Yale.

He lectured at Monash University, was an economic adviser in the Gillard government and was a Victorian MP from 2014 to 2018. As Parliamentary Secretary to the Treasurer of Victoria, Daniel helped deliver major infrastructure projects and developed innovative financing structures for community projects.

In 2018 he was preselected for the new federal seat of Fraser and became its first MP at the 2019 election, re-elected in 2022 and 2025. From 2022 to 2025, Daniel was chair of the House of Representatives’ Standing Economics Committee in which he chaired inquiries; economic dynamism, competition and business formation and insurers’ responses to 2022 major floods claims.

In 2025, he became the Assistant Treasurer and Minister for Financial Services.

In August 2022, Daniel published ‘Safety Net: The Future of Welfare in Australia’, which aims to explore the ways in which an insurance approach can improve the effectiveness of government service delivery.