Superannuation Guarantee (Administration) Act 1992
This Act may be cited as the Superannuation Guarantee (Administration) Act 1992. SECTION 2 2 COMMENCEMENT
This Act commences on 1 July 1992. SECTION 3 ACT BINDS CROWN ETC. 3(1) [Crown to be bound]
This Act binds the Crown in right of the Commonwealth, each State, the Australian Capital Territory and the Northern Territory.
3(2) [Crown not liable to prosecution]Nothing in this Act permits the Crown to be prosecuted for an offence.
SECTION 4 4 APPLICATIONThis Act extends to every external Territory referred to in the definition of Australia .
View history note
Hide history note(Repealed by No 2 of 2015)
The Commonwealth, Commonwealth Departments and untaxable Commonwealth authorities are not liable to pay superannuation guarantee charge.
5(2)
However, subject to this Act and to such modifications as are prescribed, this Act applies in all other respects, in respect of any matter or thing in respect of the employment of a Commonwealth employee, as if: (a) the employee were employed by the responsible Department and not by the Commonwealth; and (b) the responsible Department were a company and each other Department, and each authority of the Commonwealth, were a company related to the responsible Department; and (c) the responsible Department were a government body.
5(2A)
In addition, subject to such modifications as are prescribed, this Act applies in relation to an untaxable Commonwealth authority in the same way as it applies in relation to a Commonwealth Department.
5(2B)
The Finance Minister may give such directions in writing as are necessary or convenient to be given for carrying out or giving effect to this section and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or a Commonwealth entity.
5(2C)
Directions under subsection (2B) have effect, and must be complied with, notwithstanding any other law of the Commonwealth.
5(3)
Part 8 has effect as if any superannuation guarantee charge for a quarter in respect of a superannuation guarantee shortfall of the Commonwealth had been paid on: (a) for a quarter beginning on 1 January - 28 May in the next quarter; and (b) for a quarter beginning on 1 April - 28 August in the next quarter; and (c) for a quarter beginning on 1 July - 28 November in the next quarter; and (d) for a quarter beginning on 1 October - 28 February in the next quarter.
[ CCH Note: S 5(3) will be substituted by No 57 of 2025, s 3 and Sch 1 item 22, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 5(3) will read:
]
5(3)
Part 8 has effect as if any superannuation guarantee charge in respect of a superannuation guarantee shortfall of either of the following entities:
(a) a responsible Department;
(b) an untaxable Commonwealth authority;had been paid on the day that the charge would have become payable had that entity been a company.
5(4)
Subsection 14ZX(4), section 14ZZ and Divisions 4 and 5 of Part IVC of the Taxation Administration Act 1953 do not apply to the Commonwealth, Commonwealth Departments or untaxable Commonwealth authorities.
5(5)
In this section:
Commonwealth Department
means:
(a) a Department of State; or
(b) a Department of the Parliament established under the Parliamentary Service Act 1999; or
(c) a branch or part of the Australian Public Service in relation to which a person has, under an Act, the powers of, or exercisable by, the Secretary of a Department of the Australian Public Service.
Commonwealth entity
means a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law.
Finance Department
means the Department administered by the Finance Minister.
Finance Minister
means the Minister administering the Public Governance, Performance and Accountability Act 2013.
modifications
(Repealed by No 46 of 2011)
responsible Department
, in relation to the employment of a Commonwealth employee, means:
(a) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an annual Appropriation Act - the Commonwealth Department in respect of which the money was appropriated; and
(b) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated under an Act other than an annual Appropriation Act:
(i) if the employee performs or performed the duties of that employment in, or in respect of, a Commonwealth Department - that Commonwealth Department; or
(ii) in any other case - the Department of State administered by the Minister who administers the Act under which that money was appropriated, insofar as the Act appropriated that money; and
(c) where the remuneration in respect of that employment is or was paid wholly or principally out of money appropriated by the Constitution - the Finance Department.
untaxable Commonwealth authority
means an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.
SECTION 5A APPLICATION OF ACT TO COMMONWEALTH AUTHORITIES 5A(1) ["Commonwealth authority"]
In this section:
Commonwealth authority
means an authority or body that is established by or under a law of the Commonwealth.
(a) a law, or a provision of a law, passed before the commencement of this section purports to exempt a Commonwealth authority from liability to pay:
(i) taxes under the laws of the Commonwealth; or
(ii) certain taxes under the laws of the Commonwealth; and
(b) apart from this subsection, the exemption would apply to superannuation guarantee charge;
that law or provision is taken not to have exempted, or not to exempt, that authority from liability to pay the charge.
(a) a law, or a provision of a law, passed after the commencement of this section purports to exempt a Commonwealth authority from liability to pay:
(i) taxes under the laws of the Commonwealth; or
(ii) certain taxes under the laws of the Commonwealth; and
(b) apart from this subsection, the exemption would apply to superannuation guarantee charge;
the law or provision is not taken to have exempted, or to exempt, the authority from liability to pay the charge unless the law or provision expressly exempts the authority from liability to pay the charge.
To avoid doubt, but subject to subsection (2), nothing in this Act (other than Part 3A) or in the Superannuation Guarantee Charge Act 1992 affects: (a) the jurisdiction, functions or powers of the Fair Work Commission; or (aa) (Repealed by No 54 of 2009) (b) the operation of the Fair Work Act 2009 , the Fair Work (Registered Organisations) Act 2009 , or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 in any other way.
5B(2)
Subsection (1) does not apply to any express reference in the Fair Work Act 2009 , the Fair Work (Registered Organisations) Act 2009 , or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 to this Act or to the Superannuation Guarantee Charge Act 1992 .
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
[ CCH Note: S 6 will be amended by No 57 of 2025, s 3 and Sch 1 item 23, by inserting the note, effective 1 July 2026. For application and transitional provisions, see note under s 16. The note will read:
]Note:
The meanings of some old kinds of industrial instruments referred to in this Act can be worked out under subsection 12A(1).
In this Act, unless the contrary intention appears:
actuary
means a Fellow or Accredited Member of The Institute of Actuaries of Australia.
administration component
, in relation to an employer and a quarter, means the amount worked out according to section 32.
[ CCH Note: Definition of "administration component" will be repealed by No 57 of 2025, s 3 and Sch 1 item 24(a), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
[ CCH Note: Definition of "administrative uplift amount" will be inserted by No 57 of 2025, s 3 and Sch 1 item 1, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]administrative uplift amount
has the meaning given by subsection 19B(1).
annual national payroll
(Repealed by No 51 of 2002)
approved clearing house
has the meaning given by subsection 79A(3).
[ CCH Note: Definition of "approved clearing house" will be repealed by No 57 of 2025, s 3 and Sch 1 item 24(b), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
approved deposit fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
arrangement
, for the purposes of section 30, means:
(a) an agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) any scheme, plan, proposal, action, course of action or course of conduct.
(a) the ascertainment of an employer's superannuation guarantee shortfall for a quarter and of the superannuation guarantee charge payable on the shortfall; or
(b) the ascertainment of additional superannuation guarantee charge payable under Part 7.
[ CCH Note: Definition of "assessment" will be substituted by No 57 of 2025, s 3 and Sch 1 item 2, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]assessment
means an assessment under subsection 36(1).
[ CCH Note: Definition of "associate" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]associate
has the meaning given by section 318 of the Income Tax Assessment Act 1936.
Australia
, when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
authorised officer
(Repealed by No 2 of 2015)
base year
(Repealed by No 51 of 2002)
[ CCH Note: Definition of "benefit certificate" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]benefit certificate
has the meaning given by section 10.
[ CCH Note: Definition of "business day" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]business day
means a day other than:
(a) a Saturday or a Sunday; or
(b) a day which is a public holiday for the whole of:
(i) any State; or
(ii) the Australian Capital Territory; or
(iii) the Northern Territory.
[ CCH Note: Definition of "choice loading" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]choice loading
has the meaning given by subsection 20A(1).
[ CCH Note: Definition of "choice loading limit" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]choice loading limit
has the meaning given by section 20C.
Commissioner
means the Commissioner of Taxation.
Commonwealth employee
means an employee of the Commonwealth.
Commonwealth industrial award
means:
(a) an industrial award or determination made under a law of the Commonwealth; or
(b) an industrial agreement approved or registered under such a law; or
(c) a notional agreement preserving State awards; or
(d) a preserved State agreement.
complying approved deposit fund
has the meaning given by section 7A.
complying superannuation fund
has the meaning given by section 7.
[ CCH Note: Definition of "complying superannuation fund or scheme" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]complying superannuation fund or scheme
means:
(a) a complying superannuation fund; or
(b) a complying superannuation scheme.
complying superannuation scheme
has the meaning given by section 7.
[ CCH Note: Definition of "concessional contributions" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]concessional contributions
has the same meaning as in the Income Tax Assessment Act 1997.
contribution period
(Repealed by No 51 of 2002)
[ CCH Note: Definition of "conversion notice" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]conversion notice
has the meaning given by section 6B.
CSS
means the scheme known as the Commonwealth Superannuation Scheme.
data processing device
means any article or material from which information is capable of being reproduced with or without the aid of any other article or device.
defined benefit member
, subject to section 6AA, means a member entitled on retirement to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(a) the amount of the member's salary:
(i) at the date of the member's retirement or an earlier date; or
(ii) averaged over a period before retirement;
(b) a specified amount.
defined benefit superannuation scheme
has the meaning given by section 6A.
Deputy Commissioner
means a Deputy Commissioner of Taxation.
[ CCH Note: Definition of "eligible contribution" will be inserted by No 57 of 2025, s 3 and Sch 1 item 3, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]eligible contribution
has the meaning given by sections 18A and 18B.
[ CCH Note: Definition of "employee" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]employee
has a meaning affected by section 12.
[ CCH Note: Definition of "employer" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]employer
has a meaning affected by section 12.
employer shortfall exemption certificate
means a certificate issued under section 19AB.
[ CCH Note: Definition of "employer shortfall exemption certificate" will be amended by No 57 of 2025, s 3 and Sch 1 item 4, by substituting "17C" for "19AB", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
[ CCH Note: Definition of "enterprise agreement" will be inserted by No 57 of 2025, s 3 and Sch 1 item 25, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]enterprise agreement
has a meaning affected by subsection 12A(2).
[ CCH Note: Definition of "excess concessional contributions" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]excess concessional contributions
has the same meaning as in the Income Tax Assessment Act 1997.
[ CCH Note: Definition of "extended usual period" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]extended usual period
, for a QE day and an employer, means the period:
(a) starting on the QE day; and
(b) ending on the 20th business day after the QE day.
general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.
(a) the Commonwealth or a State or Territory; or
(b) a Commonwealth, State or Territory authority.
half-year
(Repealed by No 51 of 2002)
indexation factor
, in relation to a year, has the meaning given by section 9.
[ CCH Note: Definition of "indexation factor" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(a), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
[ CCH Note: Definition of "individual base superannuation guarantee shortfall" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]individual base superannuation guarantee shortfall
has the meaning given by subsection 18C(1).
[ CCH Note: Definition of "individual final superannuation guarantee shortfall" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]individual final superannuation guarantee shortfall
has the meaning given by subsection 18D(1).
[ CCH Note: Definition of "individual notional earnings component" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]individual notional earnings component
has the meaning given by subsection 19A(1).
[ CCH Note: Definition of "individual superannuation guarantee amount" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]individual superannuation guarantee amount
has the meaning given by subsection 17A(2).
individual superannuation guarantee shortfall
, has the meaning given by section 19.
[ CCH Note: Definition of "individual superannuation guarantee shortfall" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(b), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
industrial award
means a Commonwealth industrial award, a State industrial award or a Territory industrial award.
[ CCH Note: Definition of "late period" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]late period
, for a QE day, an employer and an employee, means the period:
(a) starting on the day after the latest day that an eligible contribution made by the employer for the benefit of the employee is able to be applied under subsection 18C(1) for the QE day; and
(b) ending on the day before the day an assessment for the QE day is made for the employer.
liability to the Commonwealth
means a liability to the Commonwealth arising under an Act of which the Commissioner has the general administration.
lodge
means lodge with the Commissioner.
[ CCH Note: Definition of "maximum contributions base" will be inserted by No 57 of 2025, s 3 and Sch 1 item 5, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]maximum contributions base
has the meaning given by subsection 10A(5).
month
(Repealed by No 46 of 2011)
MySuper member
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
nominal interest component
, in relation to an employer and a quarter, has the meaning given by section 31.
[ CCH Note: Definition of "nominal interest component" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(c), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
occupational superannuation arrangement
, in relation to the employment of a person, means an agreement that imposes an obligation on the person's employer to contribute to a superannuation fund for the benefit of the person.
offence against this Act
includes an offence relating to this Act against:
(a) the Crimes Act 1914; or
(b) the Taxation Administration Act 1953.
ordinary time earnings
, in relation to an employee, means:
(a) the total of:
(i) 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:
(A) a payment in lieu of unused sick leave;
(B) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997; and
(C) (Repealed by No 15 of 2007)
(ii) earnings consisting of over-award payments, shift-loading or commission; or
(b) if the total ascertained in accordance with paragraph (a) would be greater than the maximum contribution base for the quarter - the maximum contribution base.
[ CCH Note: Definition of "ordinary time earnings" will be substituted by No 57 of 2025, s 3 and Sch 1 item 6, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]ordinary time earnings
, for a person, means all of the person's earnings as an employee made up of:
(a) earnings in respect of ordinary hours of work; and
(b) earnings consisting of over-award payments, shift-loading or commission;other than a lump sum payment of any of the following kinds made to the person on the termination of the person's employment:
(c) a payment in lieu of unused sick leave;
(d) an unused annual leave payment, or unused long service leave payment, within the meaning of the Income Tax Assessment Act 1997.
part-time employee
means a person who is employed to work not more than 30 hours per week.
[ CCH Note: Definition of "payment day" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]payment day
, for an eligible contribution, has the meaning given by paragraph 33(3)(b).
[ CCH Note: Definition of "payment of qualifying earnings to or for an employee" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]payment of qualifying earnings to or for an employee
has the meaning given by subsection 10A(4).
[ CCH Note: Definition of "penalty assessment" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]penalty assessment
means an assessment under subsection 59D(1).
penalty charge
, in respect of superannuation guarantee charge and a quarter, means:
(a) general interest charge in respect of non-payment of the superannuation guarantee charge; or
(b) additional superannuation guarantee charge that is payable under section 59 and calculated by reference to the superannuation guarantee charge.
[ CCH Note: Definition of "penalty charge" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(d), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
penalty unit
(Repealed by No 9 of 2007)
proceeding under this Act
includes:
(a) a proceeding for an offence against this Act; or
(b) a proceeding under the Taxation Administration Act 1953 relating to this Act.
PSS
means the Public Sector Superannuation Scheme within the meaning of the Superannuation Act 1990.
PSSAP
means the Public Sector Superannuation Accumulation Plan within the meaning of the Superannuation Act 2005.
public sector scheme
means a scheme of superannuation established:
(a) by or under a law of the Commonwealth or of a State or Territory; or
(b) under the authority of:
(i) the Commonwealth or the government of a State or Territory; or
(ii) a municipal corporation, another local governing body or a public authority constituted by or under a law of the Commonwealth or of a State or Territory.
[ CCH Note: Definition of "QE day" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]QE day
has the meaning given by subsection 17A(1).
[ CCH Note: Definition of "qualifying earnings" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]qualifying earnings
has the meaning given by subsection 10A(1).
quarter
means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.
quarterly salary or wages base
, for an employer in respect of an employee, for a quarter has the meaning given by subsection 19(1).
[ CCH Note: Definition of "quarterly salary or wages base" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(e), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
[ CCH Note: Definition of "receipt day" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]receipt day
, for an eligible contribution, has the meaning given by paragraph 33(3)(a).
resident of Australia
has the meaning given by section 8.
[ CCH Note: Definition of "resident regulated superannuation fund" will be inserted by No 57 of 2025, s 3 and Sch 1 item 7, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]resident regulated superannuation fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
RSA
has the same meaning as in the Retirement Savings Accounts Act 1997.
RSA provider
has the same meaning as in the Retirement Savings Accounts Act 1997.
sacrificed contribution
means a contribution to a complying superannuation fund or an RSA made under a salary sacrifice arrangement.
[ CCH Note: Definition of "sacrificed contribution" will be substituted by No 57 of 2025, s 3 and Sch 1 item 8, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]sacrificed contribution
means a contribution to a complying superannuation fund or an RSA made under an arrangement described in paragraph 10A(1)(h) (about salary sacrifice arrangements).
sacrificed ordinary time earnings amount
has the meaning given by subsection 15A(2).
[ CCH Note: Definition of "sacrificed ordinary time earnings amount" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(f), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
sacrificed salary or wages amount
has the meaning given by subsection 15A(2).
[ CCH Note: Definition of "sacrificed salary or wages amount" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(g), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
salary sacrifice arrangement
has the meaning given by subsection 15A(1).
[ CCH Note: Definition of "salary sacrifice arrangement" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(h), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Second Commissioner
means a Second Commissioner of Taxation.
stapled fund
has the meaning given by section 32Q.
(a) an industrial award or determination made under a law of a State; or
(b) an industrial agreement approved or registered under such a law.
superannuation fund
has the same meaning as in the Superannuation Industry (Supervision) Act 1993.
superannuation guarantee charge
means charge imposed by the Superannuation Guarantee Charge Act 1992.
superannuation guarantee shortfall
has the meaning given by section 17.
[ CCH Note: Definition of "superannuation guarantee shortfall" will be amended by No 57 of 2025, s 3 and Sch 1 item 9, by substituting "16B" for "17", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
superannuation guarantee statement
means a superannuation guarantee statement under section 33.
[ CCH Note: Definition of "superannuation guarantee statement" will be repealed by No 57 of 2025, s 3 and Sch 1 item 26(i), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
superannuation provider
(Repealed by No 9 of 2007)
[ CCH Note: Definition of "superannuation provider" will be inserted by No 57 of 2025, s 3 and Sch 1 item 27, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]superannuation provider
means:
(a) the trustee of a complying superannuation fund; or
(b) the trustee of a complying approved deposit fund; or
(c) an RSA provider.
(a) a defined benefit superannuation scheme whether or not embodied in the governing rules of a superannuation fund; or
(b) any other scheme embodied in the governing rules of a superannuation fund.
taxation officer
(Repealed by No 145 of 2010)
Territory industrial award
means:
(a) an industrial award or determination made under a law of a Territory; or
(b) an industrial agreement approved or registered under such a law.
trustee
, in relation to a superannuation scheme, means:
(a) if:
(i) the scheme is embodied in the governing rules of a fund; and
the trustee of the fund; or
(ii) there is a trustee of the fund;
(b) in any other case - the person who manages the scheme.
trustee
, except in relation to a superannuation fund or superannuation scheme, includes:
(a) a person appointed or constituted trustee by:
(i) act of parties; or
(ii) order or declaration of a court; or
(iii) operation of law; and
(b) an executor, administrator or other personal representative of a deceased person; and
(c) a guardian or committee; and
(d) a receiver or receiver and manager; and
(e) a liquidator of a company; and
(f) a person:
(i) having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust; or
(ii) acting in any fiduciary capacity; or
(iii) having the possession, control or management of any real or personal property of a person under any legal or other disability.
unfunded public sector scheme
means a public sector scheme that is a defined benefit superannuation scheme:
(a) in respect of which no fund is established for the purposes of the scheme; or
(b) under which all or some of the amounts that will be required for the payment of benefits are not paid into the fund established for the purposes of the scheme or are not paid until the members become entitled to receive the benefits.
[ CCH Note: Definition of "usual period" will be inserted by No 57 of 2025, s 3 and Sch 1 item 10, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]usual period
, for a QE day and an employer, means the period:
(a) starting on the QE day; and
(b) ending on the seventh business day after the QE day.
[ CCH Note: Definition of "voluntary disclosure statement" will be inserted by No 57 of 2025, s 3 and Sch 1 item 10, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]voluntary disclosure statement
has the meaning given by section 33.
[ CCH Note: Definition of "workplace determination" will be inserted by No 57 of 2025, s 3 and Sch 1 item 27, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]workplace determination
has a meaning affected by subsection 12A(3).
6(2)
For the purposes of this Act, a reference to a contribution made by an employer for the benefit of an employee includes a reference to a contribution made on behalf of the employer.
6(3)
For the purposes of this Act, a reference to salary or wages paid by an employer to an employee includes a reference to a payment made on behalf of the employer.
[ CCH Note: S 6(3) will be repealed by No 57 of 2025, s 3 and Sch 1 item 28, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
SECTION 6AA 6AA INTERPRETATION: DEFINED BENEFIT MEMBER
The regulations may prescribe:
(a) circumstances in which a member of a superannuation fund is not a defined benefit member for the purposes of this Act, or a provision of this Act; and
(b) circumstances in which a member of a superannuation fund who is not otherwise a defined benefit member is to be taken to be a defined benefit member for the purposes of this Act, or a provision of this Act.
Subject to subsection (2), a defined benefit superannuation scheme is a scheme under which: (a) one or more members of the scheme are entitled, on retirement, to be paid a benefit defined, wholly or in part, by reference to either or both of the following:
(i) the amount of the member's annual salary:
(A) at the date of the member's retirement; or
(B) at a date before retirement; or
(C) averaged over a period of employment before retirement;
(b) if the scheme is not a public sector scheme - some or all of the contributions under the scheme (out of which, together with earnings on those contributions, the benefits are to be paid) are not paid into a fund, or accumulated in a fund, in respect of any individual member but are paid into and accumulated in a fund in the form of an aggregate amount.
(ii) a specified amount; and
[ CCH Note: S 6A(1) will be amended by No 57 of 2025, s 3 and Sch 1 item 29, by substituting " defined benefit superannuation scheme " for "defined benefit superannuation scheme", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
6A(2)
A scheme embodied in the governing rules of a superannuation fund (other than a scheme of the kind referred to in subsection (1)) is a defined benefit superannuation scheme if a conversion notice has effect in relation to the fund or scheme.
6A(3)
If the conversion notice is expressed to take effect on a day before the day on which the notice is given, the scheme in question is taken to have been a defined benefit superannuation scheme from the day on which the notice is expressed to take effect.
6A(4)
Subsection (3) has effect regardless of the making of any assessment, or the payment of any superannuation guarantee charge, in respect of a quarter that ended after the conversion notice took effect.
[ CCH Note: S 6A(4) will be amended by No 57 of 2025, s 3 and Sch 1 item 30, by substituting "a QE day" for "a quarter that ended", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
A conversion notice is a written notice by the trustee of a superannuation fund given to the Commissioner stating that the fund, or a particular superannuation scheme embodied in the governing rules of the fund, is to be treated as a defined benefit superannuation scheme for the purposes of this Act.
[ CCH Note: S 6B(1) will be amended by No 57 of 2025, s 3 and Sch 1 item 31, by substituting " conversion notice " for "conversion notice", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
6B(2)
Subject to subsection (4), a conversion notice takes effect in relation to the fund or scheme on the day specified in the notice. Subject to subsection (4), the trustee may, by written notice ( revocation notice ) given to the Commissioner, revoke the conversion notice.
6B(3)
A conversion notice may be expressed to take effect on a day that is not earlier than: (a) if the notice is given before 15 May in a quarter starting on 1 April - 1 January in the previous quarter; or (b) if the notice is given before 15 August in a quarter starting on 1 July - 1 April in the previous quarter; or (c) if the notice is given before 15 November in a quarter starting on 1 October - 1 July in the previous quarter; or (d) if the notice is given before 15 February in a quarter starting on 1 January - 1 October in the previous quarter; or (e) in any other case - the first day of the quarter in which the notice is given.
6B(4)
A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives each employer contributing to the fund or scheme for the benefit of employees written notice of: (a) the trustee's intention to give the notice; and (b) the proposed date of effect of the notice.
[ CCH Note: S 6B(4) will be substituted by No 57 of 2025, s 3 and Sch 1 item 32, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 6B(4) will read:
]
6B(4)
A conversion notice or a revocation notice will not be effective unless, before it is given, the trustee gives written notice of:
(a) the trustee's intention to give the notice; and
(b) the proposed date of effect of the notice;to each employer contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme.
6B(5)
If an employer begins contributing to a superannuation fund or a superannuation scheme for the benefit of employees at a time when a conversion notice has effect in relation to the fund or scheme, the trustee must give the employer written notice of: (a) the giving of the conversion notice; and (b) the date of effect of the notice;
within 30 days of the receipt by the trustee of the employer's first contribution.
[ CCH Note: S 6B(5) will be substituted by No 57 of 2025, s 3 and Sch 1 item 32, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 6B(5) will read:
]
6B(5)
If, while the conversion notice is in effect, an employer begins contributing to the fund or scheme for the benefit of employees as defined benefit members of the fund or scheme, the trustee must give the employer written notice of:
(a) the giving of the conversion notice; and
(b) the date of effect of the notice;within 7 business days of the receipt by the trustee of the employer's first contribution.
6B(6)
A notice under this section may be given by post.
[ CCH Note: S 6B(6) will be repealed by No 57 of 2025, s 3 and Sch 1 item 32, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
A superannuation fund or scheme is a complying superannuation fund or scheme (as the case may be) in relation to a period for the purposes of this Act if it is a complying superannuation fund in relation to that period for the purposes of the Income Tax Assessment Act 1997.
[ CCH Note: S 7 will be amended by No 57 of 2025, s 3 and Sch 1 item 33, by substituting " a complying superannuation fund or complying superannuation scheme " for "a complying superannuation fund or scheme", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
An approved deposit fund is a complying approved deposit fund at a particular time for the purposes of this Act if it is a complying approved deposit fund in relation to the year of income in which that time occurred for the purposes of the Income Tax Assessment Act 1997.
[ CCH Note: S 7A will be amended by No 57 of 2025, s 3 and Sch 1 item 34, by substituting " complying approved deposit fund " for "complying approved deposit fund" (first occurring), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
A person is a resident of Australia for the purposes of this Act at any time when the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936.
[ CCH Note: S 8 will be amended by No 57 of 2025, s 3 and Sch 1 item 35, by substituting " resident of Australia " for "resident of Australia" (first occurring), effective 1 July 2026. For application and transitional provisions, see note under s 16.]
The indexation factor for a year is whichever is the greater of the following: (a) 1; (b) the number calculated (to 3 decimal places) by dividing the AWOTE amount for the December quarter in the preceding year by the AWOTE amount for the December quarter in the year preceding that year.
Note:
The December quarter is a quarter beginning on 1 October.
9(2)
The AWOTE amount for a quarter is the estimate of the full-time adult average weekly ordinary time earnings for persons in Australia for the middle month of the quarter published by the Australian Statistician in relation to the month.
9(3)
If the Australian Statistician publishes an estimate of full-time adult average weekly ordinary time earnings for persons in Australia for a period for which such an estimate was previously published by the Australian Statistician, the publication of the later estimate is to be disregarded for the purposes of this section.
9(4)
If the number calculated for the purposes of paragraph (1)(b) in relation to a year would, if calculated to 4 decimal places, end with a numeral higher than 4, the number is to be taken to be the number calculated to 3 decimal places and increased by 0.001.
[ CCH Note: S 9 will be repealed by No 57 of 2025, s 3 and Sch 1 item 36, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
A benefit certificate is a certificate by an actuary relating to one or more specified defined benefit superannuation schemes and specifying the rate, expressed as a percentage, that is, in the opinion of theactuary, the notional employer contribution rate, in relation to a specified class of employees (being members of the scheme or schemes, as the case may be), of an employer who is a contributor under the scheme or schemes (as the case may be) for the benefit of an employee in that class.
[ CCH Note: S 10(1) will be amended by No 57 of 2025, s 3 and Sch 1 items 37 and 38, by substituting " benefit certificate " for "benefit certificate" and "defined benefit members" for "members", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
10(2)
The notional employer contribution rate, in relation to a class of employees specified in a benefit certificate relating to one or more defined benefit superannuation schemes, is the contribution rate required to meet the expected long-term cost, to an employer who contributes to the scheme or schemes for the benefit of employees in the class, of the minimum benefits accruing in respect of all employees in the class from the date of effect of the benefit certificate onwards.
10(3)
A benefit certificate has effect from the date specified in the certificate until: (a) a superannuation scheme to which it relates is amended in a way that affects, or may affect, the level or method of calculation of the minimum benefits provided under the scheme for the class of employees specified in the certificate; or (b) another benefit certificate is issued in relation to the same class of employees and the same scheme or schemes; or (c) a period of 5 years from the date of issue expires; or (d) in the case of a certificate that relates to a scheme that is a defined benefit superannuation scheme because of the operation of subsection 6A(2) - the conversion notice under section 6B is revoked;
whichever occurs first.
10(4)
A benefit certificate may be expressed to have effect from: (a) a day that is no earlier than:
(i) if the certificate is issued before 15 May in a quarter starting on 1 April, or before a later day in that quarter allowed by the Commissioner - 1 January in the previous quarter; or
(ii) if the certificate is issued before 15 August in a quarter starting on 1 July, or before a later day in that quarter allowed by the Commissioner - 1 April in the previous quarter; or
(iii) if the certificate is issued before 15 November in a quarter starting on 1 October, or before a later day in that quarter allowed by the Commissioner - 1 July in the previous quarter; or
(iv) if the certificate is issued before 15 February in a quarter starting on 1 January, or before a later day in that quarter allowed by the Commissioner - 1 October in the previous quarter; or
(b) a day that is no later than the day on which the certificate is issued.
(v) in any other case - the first day of the quarter in which the certificate is issued; and
10(6)
The regulations may make provision regarding: (a) the issue and form of benefit certificates; and (b) the way in which the expected long-term cost to an employer of benefits accruing to all employees is to be calculated under subsection (2); and (c) the manner in which the contribution rate is to be expressed under subsection (2); and (d) the way in which minimum benefits accruing to all employees are to be calculated under subsection (2).
[
CCH Note:
S 10A will be inserted by No 57 of 2025, s 3 and Sch 1 item 11, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 10A will read:
an amount equal to the total of those reductions. For paragraph (h), reductions are not counted if they are of amounts excluded by subsection (3) from being qualifying earnings.
SECTION 10A INTERPRETATION: EXPRESSIONS RELATING TO QUALIFYING EARNINGS
Meaning of
qualifying earnings
10A(1)
A person's
qualifying earnings
are amounts covered by one or more of the following paragraphs:
(a)
the person's ordinary time earnings;
(b)
all commissions payable to the person;
(c)
all payments for the performance of the person's duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate;
(d)
all payments under a contract referred to in subsection 12(3) that are in respect of the person's labour under the contract;
(e)
all remuneration of the person as a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory;
(f)
all payments to the person for work referred to in subsection 12(8);
(g)
all remuneration of the person in circumstances referred to in subsection 12(9) or (10);
(h)
if under an arrangement the person agreed for:
(i)
a contribution to be made to a complying superannuation fund or an RSA for the benefit of the person by the person's employer; and
(ii)
in return, for the reduction (including to nil) of one or more amounts of a kind described in paragraphs (a) to (g) of this subsection but not in subsection (3) of this section;
Note:
10A(2)
To the extent that an amount is covered by more than one paragraph of subsection (1), the amount is counted only once.
Exclusions
10A(3)
However, a person's qualifying earnings do not include any of the following:
(a) a payment of an amount that represents the reversal of all or part of a sacrificed contribution;
(b) earnings or remuneration of, or payments to, the person to the extent that:
(i) the person is an employee of a kind prescribed by the regulations; or
(ii) the earnings, remuneration or payments are for work done of a kind prescribed by the regulations; or
(iii) the earnings, remuneration or payments are otherwise of a kind prescribed by the regulations.
Meaning of payment of qualifying earnings to or for an employee
10A(4)
A payment of qualifying earnings to or for an employee by an employer means:
(a) a payment of qualifying earnings to the employee by or on behalf of the employer; or
(b) for qualifying earnings described by paragraph (1)(h) - the reductions described in that paragraph made in return for the making of the sacrificed contribution for the benefit of the employee.
Meaning of maximum contributions base
10A(5)
The maximum contributions base , for a payment of qualifying earnings to or for an employee, is the following amount (rounded down to the nearest multiple of $10):
| Concessional contributions cap | × | 100 | ||
| Charge percentage |
where:
charge percentage
has the same meaning as in subsection 17A(2).
concessional contributions cap
is the basic concessional contributions cap (within the meaning of the Income Tax Assessment Act 1997) for the financial year in which the payment is made.
10A(6)
For the purposes of this Act (other than this section), if an employer's payment of qualifying earnings to or for an employee during a financial year results in the employee's total qualifying earnings:
(a) during the financial year; and
(b) in relation to the employer;
exceeding the maximum contributions base, then treat the amount of that payment as if it were equal to:
(c) if that payment caused that total to exceed that base - so much of that payment as does not include the excess; or
(d) if an earlier payment had already caused that total to exceed that base - nil.
In this Act, salary or wages includes: (a) commission; and (b) payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate; and (ba) payments under a contract referred to in subsection 12(3) that are made in respect of the labour of the person working under the contract; and (c) remuneration of a member of the Parliament of the Commonwealth or a State or the Legislative Assembly of a Territory; and (d) payments to a person for work referred to in subsection 12(8); and (e) remuneration of a person referred to in subsection 12(9) or (10).
11(2)
Remuneration under a contract for the employment of a person, for not more than 30 hours per week, in work that is wholly or principally of a domestic or private nature is not to be taken into account as salary or wages for the purposes of this Act.
11(3)
Fringe benefits within the meaning of the Fringe Benefits Tax Assessment Act 1986 are not salary or wages for the purposes of this Act.
[ CCH Note: S 11 will be repealed by No 57 of 2025, s 3 and Sch 1 item 39, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Subject to this section, in this Act, employee and employer have their ordinary meaning. However, for the purposes of this Act, subsections (2) to (11):
(a) expand the meaning of those terms; and
(b) make particular provision to avoid doubt as to the status of certain persons.
A person who is entitled to payment for the performance of duties as a member of the executive body (whether described as the board of directors or otherwise) of a body corporate is, in relation to those duties, an employee of the body corporate.
12(3) [Persons under contract]If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.
12(4) [Members of Parliament]A member of the Parliament of the Commonwealth is an employee of the Commonwealth.
12(5) [Members of State Parliaments]A member of the Parliament of a State is an employee of the State.
12(6) [Members of ACT Legislative Assembly]A member of the Legislative Assembly for the Australian Capital Territory is an employee of the Australian Capital Territory.
12(7) [Members of NT Legislative Assembly]A member of the Legislative Assembly of the Northern Territory is an employee of the Northern Territory.
12(8) [Artists, musicians, sports persons etc]The following are employees for the purposes of this Act:
(a) a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment;
(b) a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment;
(c) a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment. 12(9) [Employees of Commonwealth, State, Territory]
(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or
(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the Territory, as the case requires. However, this rule does not apply to a person in the capacity of the holder of an office as a member of a local government council.
Subject to subsection (10), a person who holds office as a member of a local government council is not an employee of the council.
A person covered by paragraph 12-45(1)(e) in Schedule 1 to the Taxation Administration Act 1953 (about members of local governing bodies subject to PAYG withholding) is an employee of the body mentioned in that paragraph.
A person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work.
SECTION 12A INTERPRETATION: REFERENCES TO INDUSTRIAL INSTRUMENTS 12A(1) [Interpretation]In this Act, the following expressions have the same meanings as in the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009:
(a) AWA ;
(b) collective agreement ;
(c) ITEA ;
(d) notional agreement preserving State awards ;
(e) old IR agreement ;
(f) pre-reform AWA ;
(g) pre-reform certified agreement ;
(h) preserved State agreement ;
(i) Division 2B State instrument ;
(j) State reference transitional award or common rule .
Note:
For an instrument referred to in this subsection, see item 4 of Schedule 2 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
In this Act, enterprise agreement has the same meaning as in the Fair Work Act 2009.
12A(3) ["workplace determination"]In this Act, workplace determination means a workplace determination made under the Fair Work Act 2009 or the Workplace Relations Act 1996.
(Repealed by No 93 of 2004)
(Repealed by No 93 of 2004)
(Repealed by No 93 of 2004)
(Repealed by No 93 of 2004)
The maximum contribution base for a quarter in the 2001-02 year is $27,510.
15(2)
(Repealed by No 51 of 2002)
15(3)
The maximum contribution base for a quarter in any later year is the amount worked out using the formula:
| Maximum contribution base for
a quarter in the immediately preceding year |
× | Indexation factor
for the year |
[ CCH Note: From 1997/98, the maximum contribution base for a quarter/contribution period is:
| 1997/98 | $23,630 | 2012/13 | $45,750 |
| 1998/99 | $24,480 | 2013/14 | $48,040 |
| 1999/2000 | $25,240 | 2014/15 | $49,430 |
| 2000/01 | $26,300 | 2015/16 | $50,810 |
| 2001/02 | $27,510 | 2016/17 | $51,620 |
| 2002/03 | $29,220 | 2017/18 | $52,760 |
| 2003/04 | $30,560 | 2018/19 | $54,030 |
| 2004/05 | $32,180 | 2019/20 | $55,270 |
| 2005/06 | $33,720 | 2020/21 | $57,090 |
| 2006/07 | $35,240 | 2021/22 | $58,920 |
| 2007/08 | $36,470 | 2022/23 | $60,220 |
| 2008/09 | $38,180 | 2023/24 | $62,270 |
| 2009/10 | $40,170 | 2024/25 | $65,070 |
| 2010/11 | $42,220 | 2025/26 | $62,500] |
| 2011/12 | $43,820 |
15(4)
Amounts calculated under subsection (3) must be rounded to the nearest 10 dollar multiple (rounding 5 dollars upwards).
15(5)
Despite subsections (3) and (4), the maximum contribution base for a quarter in the 2017-18 year or any later year is the amount worked out using the following formula, if that amount is less than the amount worked out under those subsections:
| Concessional contributions cap | × | 100 | × | 1 | ||
| Charge percentage | 4 |
where:
charge percentage
is the number specified in subsection 19(2) for the quarter.
concessional contributions cap
is the basic concessional contributions cap, within the meaning of the Income Tax Assessment Act 1997, for the financial year in which the quarter occurs.
15(6)
Amounts calculated under subsection (5) must be rounded down to the nearest 10 dollar multiple.
[ CCH Note: S 15 will be repealed by No 57 of 2025, s 3 and Sch 1 item 40, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Salary sacrifice arrangement
15A(1)
An arrangement under which a contribution is, or is to be, made to a complying superannuation fund or an RSA by an employer for the benefit of an employee is a salary sacrifice arrangement if the employee agreed: (a) for the contribution to be made; and (b) in return, for either or both of the following amounts to be reduced (including to nil):
(i) the ordinary time earnings of the employee;
(ii) the salary or wages of the employee.
Sacrificed amounts
15A(2)
If an amount mentioned in subparagraph (1)(b)(i) or (ii) is reduced under a salary sacrifice arrangement, the amount of that reduction is: (a) if ordinary time earnings for a quarter are reduced - a sacrificed ordinary time earnings amount of the employee for the quarter in respect of the employer; and (b) if salary or wages for a quarter are reduced - a sacrificed salary or wages amount of the employee for the quarter in respect of the employer.
Excluded salary or wages
15A(3)
In working out the amount of a reduction for the purposes of subsection (2), disregard any amounts that, had they been paid to the employee (instead of being reduced), would have been excluded salary or wages.
15A(4)
For the purposes of this section, excluded salary or wages are salary or wages that, under section 27 or 28, are not to be taken into account for the purpose of making a calculation under section 19.
[ CCH Note: S 15A will be repealed by No 57 of 2025, s 3 and Sch 1 item 40, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
[ CCH Note: Div 1 heading will be inserted by No 57 of 2025, s 3 and Sch 1 item 41, effective 1 July 2026. For application and transitional provisions, see note under s 16. The heading will read:
]Division 1 - Application to former employees and for international social security agreements
This Part applies to salary or wages paid to, and contributions for the benefit of, a former employee as if the former employee were an employee of the person who was the former employee's employer.
[ CCH Note: S 15B will be amended by No 57 of 2025, s 3 and Sch 1 item 42, by substituting "payments of qualifying earnings to or for" for "salary or wages paid to, and contributions for the benefit of,", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
This section applies if a scheduled international social security agreement (within the meaning of section 5 of the Social Security (International Agreements) Act 1999) prevents double coverage of the compulsory retirement savings arrangements under the laws of the parties to the agreement.
15C(2)
An entity mentioned in subsection (3) may apply in writing to the Commissioner for a certificate under subsection (4) covering the employment of a particular employee.
15C(3)
For the purposes of subsection (2), the entity must be: (a) if the employee's employer is not a resident of Australia - a related entity (within the meaning of the agreement) of the employer; or (b) otherwise - the employee's employer.
15C(4)
The Commissioner may give the entity that made the application a certificate under this subsection if the Commissioner is satisfied that doing so is in accordance with the agreement mentioned in subsection (1).
15C(5)
The certificate must: (a) state the name of the employer and the employee; and (b) state the time at which, or the circumstances in which, the certificate stops covering the employment; and (c) contain any other information that the Commissioner considers relevant.
15C(6)
The Commissioner may revoke or vary a certificate under subsection (4), if doing so would be in accordance with the administrative arrangements to the agreement mentioned in subsection (1) that are agreed between the parties to the agreement.
15C(7)
A person who is dissatisfied with a decision of the Commissioner under subsection (4) or (6) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
15C(8)
If the entity that made the application is not the employee's employer, this Part (apart from this section) applies to salary or wages relating to employment covered by the certificate that are paid to the employee as if the entity that made the application were the employee's employer.
[ CCH Note: S 15C(8) will be amended by No 57 of 2025, s 3 and Sch 1 item 43, by substituting "qualifying earnings" for "salary or wages", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Superannuation guarantee charge imposed on an employer's superannuation guarantee shortfall for a quarter is payable by the employer.
[ CCH Note: S 16 will be substituted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 16 will read:
Division 2 - Superannuation guarantee charge payable by employers
Subdivision A - Superannuation guarantee charge is payable on superannuation guarantee shortfalls
SECTION 16 SIMPLIFIED OUTLINE OF THIS DIVISION
16
Superannuation guarantee charge is payable on an employer's superannuation guarantee shortfalls.
Such a shortfall can arise in 2 ways.
The first way is if the employer:
(a) pays qualifying earningsto an employee; or (b) reduces an employee's qualifying earnings so that a sacrificed contribution can be made for the employee; without also making sufficient timely eligible superannuation contributions for the benefit of the employee (see Subdivisions B and C).
The amount of charge on a shortfall arising in this way will include notional earnings on the shortfall and an administrative uplift amount (see Subdivision D).
The second way is if the employer fails to comply with the choice of fund requirements when making eligible superannuation contributions for the employee (see Subdivision E).
No 57 of 2025, s 3 and Sch 1 items 181-189 contain the following application and transitional provisions:
new Act
new law
181 Definitions
181
In this Part:
means the Superannuation Guarantee (Administration) Act 1992 as amended by this Schedule.
means an Act as amended by this Schedule other than any of the following:
(a)
the Corporations Act 2001;
(b)
the Fair Work Act 2009;
(c)
the Superannuation Guarantee (Administration) Act 1992.
old Act
, as in force on a particular day before 1 July 2026, means the Superannuation Guarantee (Administration) Act 1992 as in force on that day.
old law
means an Act amended by this Schedule (other than the Superannuation Guarantee (Administration) Act 1992) as that Act was in force immediately before 1 July 2026.
Application of the amendments
(1)
The new Act applies in relation to a QE day that is 1 July 2026 or a later day.
(2)
Without limiting subitem (1), the new Act applies to:
(a) payments of qualifying earnings to or for an employee by an employer on such a QE day that relate to work, labour or performance of duties before, on or after 1 July 2026; and
(b) arrangements for such payments that are made before, on or after 1 July 2026.
Saving of the old Act
(3)
Despite the amendments made by this Schedule of the old Act, the old Act (as in force on the last day of a quarter ending before 1 July 2026) continues to apply on and after 1 July 2026 in relation to that quarter as if the amendments had not been made.
(4)
Without limiting subitem (3), the old Act (as in force on the last day of a quarter ending before 1 July 2026) continues to apply on and after 1 July 2026 in relation to:
(a) a liability to pay superannuation guarantee charge relating to that quarter (whether the liability arose before, on or after 1 July 2026); or
(b) a related liability (whether the related liability arose before, on or after 1 July 2026).
Note:
Paragraph (b) includes, for example, any additional superannuation guarantee charge under section 49 or Part 7 of the old Act relating to a liability to pay superannuation guarantee charge relating to a quarter ending before 1 July 2026.
(5)
Despite subitem (3), section 23A of the old Act (as in force on 31 March 2026) continues to apply (as described in that subitem) only in relation to contributions made before 1 July 2026.
Note:
This means the late payment offset will not be available for the quarter ending on 30 June 2026, or for offsetting contributions made on or after 1 July 2026 for an earlier quarter.
…
184 Transitional - reversal after commencement of pre-commencement sacrificed contributions
184
For the new Act, a reversal of a sacrificed contribution includes a payment made on or after 1 July 2026 that represents the reversal of all or part of a contribution that was:
(a) a sacrificed contribution (within the meaning of the old Act on 30 June 2026); and
(b) made before 1 July 2026. 185 Transitional - excess contributions made before 1 July 2026 can be applied under the new Act
(1)
This item applies to a contribution made on a day (the contribution day ) before 1 July 2026 that would be an eligible contribution made by an employer for the benefit of an employee if the new Act applied in relation to QE days before 1 July 2026.
(2)
For the purposes of the definition of eligible contributions relevant for the QE day in subsection 18C(1) of the new Act, treat so much of the contribution as is neither:
(a) applied under the old Act (as in force on the contribution day) to reduce the charge percentage for the employer for a quarter ending before 1 July 2026; nor
(b) offset under section 23A of the old Act (as in force on the contribution day) against a liability of the employer relating to a quarter ending before 1 July 2026;
as an eligible contribution made by the employer for the benefit of the employee.
(3)
To avoid doubt, the 12-month period mentioned in subparagraph (c)(ii) of that definition can start before 1 July 2026.
186 Transitional - how to apply contributions made between 1 July 2026 and 28 July 2026
(1)
This item applies to an eligible contribution made by an employer for the benefit of an employee if:
(a) the contribution is made on a day (the contribution day ) between 1 July 2026 and 28 July 2026; and
(b) under the old Act (as in force on 30 June 2026), the employer has on the contribution day an individual superannuation guarantee shortfall that is greater than nil for the employee for the quarter ending on 30 June 2026.
First apply the contribution under the old Act
(2)
Without limiting subitem 182(3) of this Schedule, the old Act (as in force on 30 June 2026) continues to apply on and after 1 July 2026 in relation to the contribution in order to reduce the charge percentage for the employer for the employee for that quarter.
Then apply any remainder under the new Act
(3)
Despite subsection 18C(1) of the new Act, only so much of the contribution as is not applied under the old Act in the way described in subitem (2) is able to be applied under that subsection for a QE day that is on or after 1 July 2026.
187 Transitional - ending notice periods under the old Act
187
An employer's notice period that:
(a) was within the meaning of subsection 19A(4) of the old Act (as in force on 30 June 2026); and
(b) was in force on 30 June 2026;
is taken to end at the end of 30 June 2026.
188 Application of amendments - repayments of overpayments relating to a shortfall component188
Section 69 of the new Act applies in relation to a payment by the Commissioner before, on or after 1 July 2026.
Note:
The excess amount paid by the Commissioner can only be recovered once (see subsection 69(7) of the new Act.
189 Transitional - Norfolk Island salary or wages(1)
This item applies if:
(a) some or all of an employer's payment of qualifying earnings to or for an employee on a QE day consists of Norfolk Island salary or wages; and
(b) the QE day is in the financial year ending on 30 June 2027;
whether the payment of qualifying earnings relates to work done before, during or after that financial year.
(2)
For the purposes of subsection 17A(2) of the new Act, treat the amount of the qualifying earnings for the employer, employee and the QE day as if it were reduced by the result of the following:
| Total Norfolk Island salary or wages paid to or for the employee by the employer on the QE day | × | 1 | ||
| 12 |
(3)
In this item:
Norfolk Island salary or wages
means qualifying earnings paid to or for the employee:
(a) while the employee is a resident of Norfolk Island, and for work done in Norfolk Island or outside Australia; or
(b) while the employer is a resident of Norfolk Island, and while the employee is a resident of Australia for work done in Norfolk Island.
Note:
For a similar result for quarters in a financial year starting on or after 1 July 2016 and ending before 1 July 2026, see subitem 2(2) of Schedule 2 to the Tax and Superannuation Laws Amendment (Norfolk Island Reforms) Act 2015 (as amended by this Schedule).
]
[
CCH Note:
S 16A and 16B will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 16A and 16B will read:
Some (but not all) of these amounts may be nil.
SECTION 16A SUPERANNUATION GUARANTEE CHARGE PAYABLE BY EMPLOYERS
16A
Superannuation guarantee charge imposed on an employer's superannuation guarantee shortfall for a QE day is payable by the employer.
SECTION 16B SUPERANNUATION GUARANTEE SHORTFALLS
16B(1)
This section applies if an employer has:
(a)
one or more individual base superannuation guarantee shortfalls for a QE day that are greater than nil; or
(b)
one or more choice loadings for a QE day that are greater than nil.
16B(2)
The employer has a
superannuation guarantee shortfall
for the QE day equal to the sum of the following:
(a)
the total of the employer's individual final superannuation guarantee shortfalls for the QE day;
(b)
the total of the employer's individual notional earnings components for the QE day;
(c)
the employer's administrative uplift amount for the QE day;
(d)
the total of the employer's choice loadings for the QE day.
Note:
]
If an employer has one or more individual superannuation guarantee shortfalls for a quarter, the employer has a superannuation guarantee shortfall for the quarter worked out by adding together: (a) the total of the employer's individual superannuation guarantee shortfalls for the quarter; and (b) the employer's nominal interest component for the quarter; and (c) the employer's administration component for the quarter.
[ CCH Note: S 17 will be substituted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 17 will read:
]Subdivision B - Individual superannuation guarantee amounts arise if qualifying earnings are paid etc.
SECTION 17 SIMPLIFIED OUTLINE OF THIS SUBDIVISION
17
If on a particular day an employer:
(a) pays qualifying earnings to an employee; or (b) reduces an employee's qualifying earnings so that a sacrificed contribution can be made for the employee; then, on that day, the employer has an individual superannuation guarantee amount for the employee equal to a particular percentage of the payment or reduction.
However, the amount will be nil if an exemption certificate covers the employer and the employee for that day.
[
CCH Note:
S 17A to 17D will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 17A to 17D will read:
This includes reducing the employee's earnings so that a sacrificed contribution can be made for the employee (see paragraphs 10A(1)(h) and (4)(b)).
SECTION 17A WHEN AN INDIVIDUAL SUPERANNUATION GUARANTEE AMOUNT ARISES
17A(1)
This Subdivision applies if an employer makes a payment of qualifying earnings to or for an employee on a particular day (the
QE day
).
Note:
17A(2)
On the QE day, the employer has an individual superannuation guarantee amount for the employee equal to:
| Amount of the qualifying earnings | × | Charge percentage | ||
| 100 |
where:
amount of the qualifying earnings
means:
(a) if there is one such payment - the amount of the payment; or
(b) if there are 2 or more such payments - the sum of the amounts of the payments.
Note:
If the payment of qualifying earnings is in the form of a reduction so that a sacrificed contribution can be made, the amount of the payment is the amount of the reduction (see paragraph 10A(1)(h)).
charge percentage
means 12.
SECTION 17B AN EXEMPTION CERTIFICATE CAN REDUCE THIS AMOUNT TO NIL
17B
However, if an employer shortfall exemption certificate is in force for the employee in relation to:
(a) the employer; and
(b) a period that includes the QE day;
treat the employee as having already reached the maximum contributions base before the QE day.
Note 1:
This means:
Note 2:
If the employee has more than one employer and the certificate is issued in relation to only this employer, then the certificate does not affect the other employers' individual superannuation guarantee amounts.
SECTION 17C ISSUING AN EXEMPTION CERTIFICATEIssuing of certificate
17C(1)
The Commissioner may, on application by an employee, issue a certificate (an employer shortfall exemption certificate ) to the applicant for:
(a) a specified employer of the applicant at the time the application is made; and
(b) a specified period ending at the end of a specified financial year;
if the Commissioner is satisfied of the matters in subsection (2).
17C(2)
The matters are that:
(a) if the certificate is not issued, the applicant is likely to have excess concessional contributions for that financial year (whether or not issuing the certificate would prevent that result); and
(b) if the certificate is issued for that period, at least one other employer of the applicant is likely to have an individual superannuation guarantee amount for:
(i) the applicant; and
that is greater than nil; and
(ii) a QE day during that financial year;
(c) it is appropriate in the circumstances to issue the certificate.
17C(3)
When considering a matter in subsection (2), the Commissioner:
(a) for the matter in paragraph (2)(a) or (b) - must have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, to the applicant for that financial year; and
(b) for the matter in paragraph (2)(c) - may have regard to:
(i) the effect that issuing the certificate is likely to have on the applicant's concessional contributions for that financial year; and
(ii) any other matter that the Commissioner considers relevant.
Application for certificate
17C(4)
An application for an employer shortfall exemption certificate:
(a) must be in the approved form; and
(b) must specify the employer, period and financial year to be specified in the certificate; and
(c) must be made at least 30 days before the first day of the period.
Objections and other matters
17C(5)
A person who is dissatisfied with a decision of the Commissioner under subsection (1) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
17C(6)
The Commissioner may not vary or revoke an employer shortfall exemption certificate.
17C(7)
An employer shortfall exemption certificate:
(a) may be issued after the first day of the period specified in the certificate; and
(b) is not a legislative instrument.
SECTION 17D NOTICE ABOUT AN EXEMPTION CERTIFICATE
17D(1)
If the Commissioner makes a decision under subsection 17C(1) about an application, the Commissioner must give written notice of the decision to:
(a) the applicant; and
(b) if the decision is to issue a certificate - the employer to which the certificate relates.
17D(2)
A notice of a decision to issue a certificate must include a copy of the certificate.
17D(3)
The Commissioner is treated as having decided not to issue a certificate to the applicant if the Commissioner does not give notice (under subsection (1)) of the decision during the 60-day period starting on the day the application was made.
]
(Repealed by No 51 of 2002)
[ CCH Note: S 18 to 18D will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 18 to 18D will read:
]Subdivision C - Individual superannuation guarantee shortfalls arise if insufficient timely eligible superannuation contributions are made
SECTION 18 SIMPLIFIED OUTLINE OF THIS SUBDIVISION
18
SECTION 18A MEANING OF ELIGIBLE CONTRIBUTION - MAIN RULESThis Subdivision is relevant if an employer has an individual superannuation guarantee amount for an employee that is greater than nil.
The employer will have an individual base superannuation guarantee shortfall for the employee that will result in superannuation guarantee charge if the employer does not make an equivalent amount of eligible superannuation contributions:
(a) for the benefit of the employee; and (b) within a particular period. The employer can reduce the amount of the charge by making eligible superannuation contributions:
(a) for the benefit of the employee; and (b) up until the day before the Commissioner makes an assessment of the amount of the charge.
18A(1)
An eligible contribution , made by an employer for the benefit of an employee, is:
(a) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee that:
(i) is to a complying superannuation fund; and
(ii) is able to be allocated within the fund for the benefit of the employee; and
(iii) is not made for the benefit of the employee as a defined benefit member of a defined benefit superannuation scheme; and
(iv) is not made at a time when a conversion notice has effect in relation to the fund; or
(b) a contribution (other than a sacrificed contribution) made by the employer for the benefit of the employee:
(i) to an RSA; and
(ii) that is able to be allocated within the RSA for the benefit of the employee; or
(c) if:
(i) the employee has died; and
(ii) the employer would, if the employee had not died, have made a contribution covered by paragraph (a) or (b) for the benefit of the employee; andthat equivalent amount paid by the employer; or
(iii) the employer instead pays an equivalent amount to the employee's legal personal representative;
(d) a contribution notionally made as described in subsection (3) to a defined benefit superannuation scheme for the benefit of the employee as a defined benefit member of the scheme.Note:
For the purposes of subparagraphs (a)(ii) and (b)(ii), regulations under the Superannuation Industry (Supervision) Act 1993 and under the Retirement Savings Accounts Act 1997 deal with the allocation of contributions.
Presumption for contributions to certain superannuation funds
18A(2)
A contribution made by the employer for the benefit of the employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of subparagraph (1)(a)(i) if:
(a) at or before the time the contribution is made, the employer has obtained a written statement provided by or on behalf of the trustee of the fund; and
(b) the statement provides that the fund:
(i) is a resident regulated superannuation fund; and
(ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993.Note 1:
The presumption does not extend to any of the other elements of paragraph (1)(a), such as that the contribution must not be a sacrificed contribution.
Note 2:
The presumption may not always be available (see section 18B).
Notional contributions for defined benefit members of defined benefit superannuation schemes
18A(3)
If, on a QE day for the employer and the employee:
(a) a benefit certificate for a defined benefit superannuation scheme has effect; and
(b) the scheme is operating for the benefit of the employee:
(i) as a defined benefit member of the scheme; and
(ii) in relation to payments of qualifying earnings to or for the employee by the employer; and
(c) the benefit certificate:
(i) covers a class of employees (that includes the employee) as defined benefit members of the scheme; and
(ii) specifies the notional employer contribution rate in relation to that class of employees; and
(d) the employer has a written statement, provided by or on behalf of the trustee of the scheme, that the scheme:
(i) is a resident regulated superannuation fund; and
(ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993; and
(iii) has not been subject to such a direction at any time since the beginning of the day on which the benefit certificate is expressed to take effect;treat the scheme as having received, on the QE day, a notional contribution made by the employer for the benefit of the employee that is equal to:
Amount of the qualifying earnings × Notional employer contribution rate
where:
amount of the qualifying earnings
has the same meaning as in subsection 17A(2) for the one or more payments of qualifying earnings to or for the employee made by the employer on the QE day.Note:
The written statement may not always have effect (see section 18B).
SECTION 18B MEANING OF ELIGIBLE CONTRIBUTION - EXCEPTIONS
18B(1)
However:
(a) the presumption in subsection 18A(2) is unavailable for a contribution to a fund if subsection (2) of this section applies on the day the contribution is made; or
(b) a statement provided as described in paragraph 18A(3)(d) has no effect for a scheme if subsection (2) of this section applies on the QE day.
18B(2)
This subsection applies on a day if, on that day:
(a) one of the following subparagraphs applies:
(i) the employer is the trustee or manager of the fund or scheme;
(ii) the employer is an associate of the trustee or manager of the fund or scheme;
(iii) the trustee or manager of the fund or scheme is an associate of the employer; and
(b) the employer reasonably believes that the fund or scheme:
(i) is not a resident regulated superannuation fund; or
(ii) is operating in contravention of a regulatory provision (within the meaning of section 38A of the Superannuation Industry (Supervision) Act 1993).
18B(3)
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subparagraph (2)(b)(ii) of this section in a corresponding way to the way that section applies for the purposes of Division 2 of Part 5 of that Act.Note:
Section 39 of that Act allows certain contraventions to be ignored.
SECTION 18C EMPLOYER'S INDIVIDUAL BASE SUPERANNUATION GUARANTEE SHORTFALL FOR AN EMPLOYEE AND A QE DAY
Meaning of individual base superannuation guarantee shortfall
18C(1)
An employer's individual base superannuation guarantee shortfall for an employee and a QE day is equal to:Individual superannuation guarantee amount for the employee and the QE day − Eligible contributions relevant for the QE day
where:
eligible contributions relevant for the QE day
means so much of each eligible contribution made by the employer for the benefit of the employee as:
(a) is applied under this subsection for the QE day (the current QE day ), and has not been applied under this subsection or section 18D for an earlier QE day; and
(b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and
(c) is so received during one of these periods (the standard periods ):
(i) the usual period for the current QE day; oror before the end of the latest day in any applicable items of the table in subsection (2) of this section; and
(ii) the 12-month period ending on the day before the current QE day;
(d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.Note:
An eligible contribution in the form of a notional contribution to a defined benefit superannuation scheme will always be covered by subparagraph (c)(i) because it is treated as being received on the current QE day (see subsection 18A(3)).
Allowable longer periods for receiving eligible contributions
18C(2)
In addition to the standard periods, the eligible contribution can be received before the end of the latest day in any applicable item of the following table:
Allowable longer periods for receiving eligible contributions Item If this happens: The eligible contribution is to be received: 1 the eligible contribution is the first eligible contribution made to a particular complying superannuation fund or RSA by the employer for the benefit of the employee:
(a) after the employee commenced (or recommenced) employment with the employer; or
(b) after the employer ceased making one or more eligible contributions for the benefit of the employee to another complying superannuation fund or RSAduring the extended usual period for the current QE day. 2 (a) the current QE day relates to qualifying earnings of a kind determined under subsection (3); and
(b) a later QE day (a standard QE day ) for the employer and the employee relates to qualifying earnings not of a kind determined under subsection (3)before the end of the usual period for the first standard QE day after the current QE day. 3 the employer and the current QE day are covered by a determination under subsection (4) before the later of:
(a) the end of the extended usual period for the current QE day; and
(b) the end of the period of 20 business days starting on the day after the determination is made.4 the usual period for the current QE day ends before the latest day (the latest due day ) that an earlier eligible contribution that:
(a) was made by the employer for the benefit of the employee; and
(b) was applied under subsection (1) for an earlier QE day;
was able to be received for the purposes of subsection (1)before the end of the latest due day. Note:
When the contribution is received is not the only factor for whether it is an eligible contribution relevant for the QE day (see paragraphs (a), (b) and (d) of the definition of that expression in subsection (1)).
Kinds of out-of-cycle qualifying earnings
18C(3)
The Commissioner may, by legislative instrument, determine:
(a) kinds of out-of-cycle qualifying earnings; and
(b) the circumstances that must exist for qualifying earnings to be one of those kinds.
Qualifying earnings in exceptional circumstances
18C(4)
The Commissioner may, by legislative instrument, determine:
(a) one or more kinds of employers that are affected by exceptional circumstances of a kind prescribed by the regulations that affect the ability of the employers to make eligible contributions; and
(b) the period during which any QE days for payments of qualifying earnings by those employers are affected by those exceptional circumstances.The period determined for the purposes of paragraph (b) may start before the day the determination is made.
Note 1:
Examples of exceptional circumstances for this purpose include natural disasters, or widespread outages of information and communications technology services, that affect multiple employers on a large scale.
Note 2:
If the period starts before the day the determination is made, eligible contributions can still be counted if made before the end of the 20 business day period starting on the day after the determination is made (see item 3 of the table in subsection (2)).
SECTION 18D EMPLOYER'S INDIVIDUAL FINAL SUPERANNUATION GUARANTEE SHORTFALL FOR AN EMPLOYEE AND A QE DAY
18D(1)
An employer's individual final superannuation guarantee shortfall for an employee and a QE day is:
(a) if the employer's individual base superannuation guarantee shortfall for the employee and QE day is nil - nil; or
(b) otherwise - equal to the amount in subsection (2).
18D(2)
The amount is:Individual base superannuation guarantee shortfall − Eligible contributions relevant for the late period for the QE day
where:
eligible contributions relevant for the late period for the QE day
means so much of an eligible contribution made by the employer for the benefit of the employee as:
(a) is applied under this section for the QE day, and has not been applied under this section for an earlier QE day; and
(b) is applied under this subsection in the order that it is received by the relevant fund, RSA, representative or scheme; and
(c) is so received during the late period for the QE day; and
(d) does not cause the amount resulting from this subsection for the employee and the QE day to be less than nil.
An employer's individual superannuation guarantee shortfall for an employee for a quarter is the amount worked out using the formula:
| Quarterly salary or wages base, for the employer in respect of the employee, for the quarter | × | Charge percentage for the employer for the quarter | ||
| 100 |
where:
charge percentage
, for an employer for a quarter, means:
(a) the number specified in subsection (2) for the quarter (unless paragraph (b) applies); or
(b) if the number specified in subsection (2) for the quarter is reduced in respect of the employee by either or both sections 22 and 23 - the number as reduced.
quarterly salary or wages base
, for an employer in respect of an employee, for a quarter means the sum of:
(a) the total salary or wages paid by the employer to the employee for the quarter; and
(b) any sacrificed salary or wages amounts of the employee for the quarter in respect of the employer.
19(2)
The charge percentage for a quarter in a year described in an item of the table is the number specified in column 2 of the item.
| Charge percentage (unless reduced under section 22 or 23) | ||
| Item |
Column 1
Year |
Column 2
Charge percentage |
| 1 | Year starting on 1 July 2013 | 9.25 |
| 2 | Year starting on 1 July 2014 | 9.5 |
| 3 | Year starting on 1 July 2015 | 9.5 |
| 4 | Year starting on 1 July 2016 | 9.5 |
| 5 | Year starting on 1 July 2017 | 9.5 |
| 6 | Year starting on 1 July 2018 | 9.5 |
| 7 | Year starting on 1 July 2019 | 9.5 |
| 8 | Year starting on 1 July 2020 | 9.5 |
| 9 | Year starting on 1 July 2021 | 10 |
| 10 | Year starting on 1 July 2022 | 10.5 |
| 11 | Year starting on 1 July 2023 | 11 |
| 12 | Year starting on 1 July 2024 | 11.5 |
| 13 | Year starting on or after 1 July 2025 | 12 |
19(2A)
If an employer makes one or more contributions (the no choice contributions ) to an RSA or a complying superannuation fund other than a defined benefit superannuation scheme, for the benefit of an employee during a quarter and the contributions are not made in compliance with the choice of fund requirements, the employer's individual superannuation guarantee shortfall for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection (1) if the no choice contributions had not been made.
Note 1:
See also subsection (2E) and section 19A.
Note 2:
Part 3A sets out the choice of fund requirements.
19(2B)
If: (a) a reduction of the charge percentage for an employee for a quarter is made under subsection 22(2) in respect of a defined benefit superannuation scheme; and (b) there is at least one relevant day in the quarter where, if contributions (the notional contributions ) had been made to the scheme by the employer for the benefit of the employee on the day, the notional contributions would have been made not in compliance with the choice of fund requirements; and (c) section 20 (which deals with certain cases where defined benefit members cannot choose another fund) does not apply to the employer in respect of the employee in respect of the scheme for the quarter;
the employer's individual superannuation guarantee shortfall for the employee for the quarter is increased by the amount worked out in accordance with the formula:
where:
notional quarterly shortfall
is the amount that would have been worked out under subsection (1) if no reduction were made under subsection 22(2) in respect of the scheme.
number of breach of condition days
is the number of relevant days in the quarter on which, if a contribution had been made to the scheme by the employer for the benefit of the employee, those contributions would have been made not in compliance with the choice of fund requirements.
Note 1:
See also subsection (2E) and section 19A.
Note 2:
Part 3A sets out the choice of fund requirements.
19(2C)
The following days in a quarter are relevant days for the purposes of subsection (2B): (a) if the value of B in the formula in subsection 22(2) for the quarter is 1 - every day in the quarter; or (b) in any other case - every day in the quarter that is in the shorter of the scheme membership period or the certificate period referred to in subsection 22(2).
19(2CA)
For the purposes of paragraph (2B)(b), if the employee is a defined benefit member of a superannuation fund, subsection 32C(2) applies in relation to the employee and the fund as if it did not include paragraph 32C(2)(c) (requirement that fund includes a MySuper product).
19(2D)
A reference in subsections (2A) and (2B) to an employer's individual superannuation guarantee shortfall being increased includes a reference to the shortfall being increased from nil.
19(2E)
The Commissioner may, after taking account, wherever appropriate, of the operation of section 19A, reduce (including to nil) the amount of an increase in an employer's individual superannuation guarantee shortfall for an employee for a quarter under subsection (2A) or (2B).
Note:
The Commissioner must have regard to guidelines in force under subsection 21(1) when deciding whether or not to make a decision under this subsection.
19(2F)
If: (a) subsection (2G) applies to one or more contributions for a quarter that were not able to be made by an employer to a particular fund for the benefit of an employee; and (b) after the period of 28 days after the end of the quarter, the employer made those contributions to any fund for the benefit of the employee;
the Commissioner may reduce (including to nil) so much of the amount of the employer's individual superannuation guarantee shortfall for the employee for the quarter as is due to the lateness of those contributions.
Note:
The Commissioner must have regard to guidelines in force under subsection 21(2) when deciding whether or not to make a decision under this subsection.
19(2G)
This subsection applies to a contribution for a quarter that was not able to be made by an employer to a particular fund for the benefit of an employee if: (a) the employer attempts to make the contribution at a particular time; and (b) at that time, there is no chosen fund for the employee; and (c) at that time, the most recent notification to the employer:
(i) by the Commissioner; and
is that the Commissioner is satisfied that the fund is the stapled fund for the employee; and (d) the fund does not accept the contribution from the employer for the benefit of the employee.
(ii) relating to a request by the employer (or by the employer's agent) for the Commissioner to identify any stapled fund for the employee;
19(3)
For the purposes of the definition of quarterly salary or wages base in subsection (1), disregard an amount in a quarter if: (a) the amount would be covered by paragraph (a) of that definition for the quarter (about amounts paid to the employee); but (b) the amount is taken into account under paragraph (b) of that definition (about sacrificed salary or wages amounts) for any quarter.
Note:
This prevents double counting if a sacrificed salary or wages amount is later paid as salary or wages, instead of being contributed to superannuation.
19(4)
If the quarterly salary or wages base, for an employer in respect of an employee, for a quarter exceeds the maximum contribution base for the quarter, the employer's quarterly salary or wages base to be taken into account for the purposes of the application of subsection (1) in relation to the quarter is the amount equal to the maximum contribution base.
19(5)
(Repealed by No 15 of 2007)
19(6)
(Repealed by No 15 of 2007)
19(7)
(Repealed by No 15 of 2007)
[ CCH Note: S 19 will be substituted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 19 will read:
]Subdivision D - Notional earnings and administrative uplift
SECTION 19 WHEN THIS SUBDIVISION APPLIES
19
This Subdivision applies if an employer has an individual base superannuation guarantee shortfall for an employee and a QE day that is greater than nil.
This section applies if the Commissioner has issued an employer shortfall exemption certificate to a person in relation to: (a) an employer of the person; and (b) a quarter in a financial year.
19AA(2)
Treat the maximum contribution base for the quarter as nil for the purposes of working out the employer's individual superannuation guarantee shortfall under section 19 for the person for the quarter.
Note:
An employer shortfall exemption certificate issued to a person in relation to a particular employer does not affect any other employer's individual superannuation guarantee shortfall for the person.
[ CCH Note: S 19AA will be repealed by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Application for certificate
19AB(1)
A person may apply to the Commissioner for the Commissioner to issue a certificate under this section (an employer shortfall exemption certificate ) to the person in relation to: (a) a specified employer of the person (which must be an employer of the person at the time the application is made); and (b) a specified quarter in a specified financial year.
19AB(2)
The application: (a) must be in the approved form; and (b) must specify the employer, the quarter and the financial year; and (c) must be made on or before the day that is 60 days before the first day of the quarter.
Issuing of certificate
19AB(3)
The Commissioner may issue the employer shortfall exemption certificate if the Commissioner is satisfied that: (a) if the certificate is not issued, the person is likely to have excess concessional contributions (within the meaning of the Income Tax Assessment Act 1997) for the financial year (whether or not issuing the certificate would prevent that result); and (b) if the certificate is issued, at least one other employer of the person is likely to have an individual superannuation guarantee shortfall for the person for the quarter that:
(i) is greater than nil; or
(c) it is appropriate in the circumstances to issue the certificate.
(ii) would be greater than nil but for a reduction under section 22 or 23; and
19AB(4)
For the purposes of paragraph (3)(a), the Commissioner is to have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, in relation to the person and a quarter in the financial year.
19AB(5)
For the purposes of paragraph (3)(b), the Commissioner is to have regard to any other employer shortfall exemption certificate that has been issued, or is proposed to be issued, in relation to the person and the quarter.
19AB(6)
For the purposes of paragraph (3)(c), the Commissioner may have regard to: (a) the effect that issuing the employer shortfall exemption certificate is likely to have on the person's concessional contributions (within the meaning of the Income Tax Assessment Act 1997) for the financial year; and (b) any other matter that the Commissioner considers relevant.
19AB(7)
A person who is dissatisfied with a decision of the Commissioner under subsection (3) may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
19AB(8)
The Commissioner may not vary or revoke an employer shortfall exemption certificate.
19AB(9)
An employer shortfall exemption certificate is not a legislative instrument.
[ CCH Note: S 19AB will be repealed by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
If the Commissioner issues an employer shortfall exemption certificate to a person under section 19AB, the Commissioner must give written notice of the decision to: (a) the person; and (b) the employer to which the certificate relates.
19AC(2)
A notice under subsection (1) must identify the following: (a) the person; (b) the employer; (c) the quarter to which the certificate relates.
19AC(3)
If the Commissioner decides not to issue an employer shortfall exemption certificate to a person under section 19AB, the Commissioner must give written notice of the decision to the person.
19AC(4)
The Commissioner is taken to have refused to issue an employer shortfall exemption certificate to a person if the Commissioner does not give notice of the Commissioner's decision before the end of 60 days after the person made the application for the certificate.
[ CCH Note: S 19AC will be repealed by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Subject to subsections (2) and (3), if the total of the amounts worked out for an employee for a quarter under subsections 19(2A) and (2B) exceeds $500, the total is taken to be $500.
19A(2)
If: (a) the total (the previous amount ) of the amounts worked out for an employee under subsections 19(2A) and (2B) for previous quarters within an employer's notice period for an employee does not exceed $500; and (b) the current quarter is within the same employer's notice period for the employee; and (c) the total of the amounts worked out under subsections 19(2A) and (2B) for the employee for the current quarter and the previous quarters within the employer's notice period for the employee exceeds $500;
then, the total of the amounts worked out under subsections 19(2A) and (2B) for the employee for the current quarter is taken to be the amount by which $500 exceeds the previous amount.
19A(3)
If a quarter (the later quarter ) in an employer's notice period for an employee follows a quarter within that notice period: (a) to which subsection (1) applied; or (b) to which paragraph (2)(c) applied;
in respect of the employee, the total of the amounts worked out for the employee under subsections 19(2A) and (2B) for the later quarter is taken to be nil.
19A(4)
An employer's notice period for an employee: (a) begins on:
(i) in the case of the first employer's notice period for the employee - the later of 1 July 2005 and the day on which the employee is first employed by the employer; or
(b) ends on the day the Commissioner gives the employer written notice that the employer's notice period for the employee has ended.
(ii) in any other case - when the immediately preceding employer's notice period for the employee ends; and
[
CCH Note:
S 19A will be substituted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 19A will read:
Subsection 36(3) may affect the days that paragraph (b) applies to.
SECTION 19A INDIVIDUAL NOTIONAL EARNINGS COMPONENT - SUM OF AN AMOUNT FOR EACH DAY THAT THE INDIVIDUAL FINAL SUPERANNUATION GUARANTEE SHORTFALL IS GREATER THAN NIL
19A(1)
The employer's
individual notional earnings component
for the employee and the QE day is the sum of each amount worked out under subsection (2) for each day that:
(a)
is during the late period for the QE day; and
(b)
is a day on which the employer's individual final superannuation guarantee shortfall for the employee and the QE day is greater than nil.
Note:
19A(2)
For a day referred to in subsection (1) for the QE day, work out:
Notional sum × General interest charge rate
where:
general interest charge rate
has the same meaning as in section 8AAD of the Taxation Administration Act 1953.
notional sum
means the sum of:
(a) the employer's individual base superannuation guarantee shortfall for the employee and the QE day; and
(b) the amount worked out under this subsection for each earlier day referred to in subsection (1) for the QE day.
]
[
CCH Note:
S 19B will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 19B will read:
The administrative uplift amount will be nil if these totals are nil.
SECTION 19B ADMINISTRATIVE UPLIFT FOR A QE DAY
19B(1)
The employer's
administrative uplift amount
for the QE day is equal to 60% of the sum of:
(a)
the total of the employer's individual final superannuation guarantee shortfalls for the QE day; and
(b)
the total of the employer's individual notional earnings components for the QE day.
Note:
19B(2)
However, this amount may be reduced (but not below nil) in accordance with the regulations.
19B(3)
For the purposes of (but without limiting) subsection (2), the regulations may prescribe the following:
(a) a method for reducing an employer's administrative uplift amount for a QE day that relies on one or more of the following:
(i) whether the Commissioner has previously made an assessment for the employer on the Commissioner's own initiative;
(ii) whether the Commissioner has previously made an estimate under subsection 268-10(1) in Schedule 1 to the Taxation Administration Act 1953 for the employer for a liability to pay superannuation guarantee charge;
(iii) whether (and when) the employer lodges a voluntary disclosure statement under section 33 for the QE day;
(b) a method that depends on a person being satisfied of one or more specified matters.
]
This section applies to an employer in respect of an employee in respect of a defined benefit superannuation scheme for a quarter if the employee is a defined benefit member of the scheme and subsection (2), (3) or (3A) is satisfied.
Scheme in surplus
20(2)
This subsection is satisfied if: (a) the employee was a defined benefit member of the fund immediately before 1 July 2005 and has not ceased to be such a member since that time and before the start of the quarter; and (b) an actuary has provided a certificate in accordance with regulations under the Superannuation Industry (Supervision) Act 1993 stating that the employer is not required to make contributions for the quarter and there has been such a certificate covering all times since 1 July 2005; and (c) an actuary has provided a certificate stating that, in the actuary's opinion, at all times from 1 July 2005 until the end of the quarter, there is a high probability that the assets of the scheme are, and will be, equal to or greater than 110% of the greater of the scheme's liabilities in respect of vested benefits and the scheme's accrued actuarial liabilities.
The certificate under paragraph (c) must have been provided no earlier than 15 months before the end of the quarter.
Member has accrued maximum benefit
20(3)
This subsection is satisfied if, after the start of the quarter, the defined benefit that has accrued to the employee will not increase other than: (a) as a result of increases in the employee's salary or remuneration; or (b) by reference to accruals of investment earnings; or (c) by reference to indexation based on, or calculated by reference to, a relevant price index or wages index; or (d) in any other way prescribed for the purposes of this paragraph.
Member's benefit not affected
20(3A)
This subsection is satisfied if the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions: (a) for the quarter; and (b) made by the employer for the benefit of the employee;
to a fund (within the meaning of Part 3A) other than the defined benefit superannuation scheme.
Meaning of scheme's accrued actuarial liabilities and scheme's liabilities in respect of vested benefits .
20(4)
In this section:
scheme's accrued actuarial liabilities
, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the scheme in respect of membership up to that time based on assumptions about future economic conditions and the future of matters affecting membership of the scheme, being assumptions made in accordance with applicable professional actuarial standards (if any).
scheme's liabilities in respect of vested benefits
, at a particular time, means the total value of the benefits payable from the scheme to which the members of the scheme would be entitled if they all voluntarily terminated their service with their employers at that time.
[ CCH Note: S 20 will be substituted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 20 will read:
]Subdivision E - Loading for failing to comply with choice of fund requirements
SECTION 20 WHEN THIS SUBDIVISION APPLIES
20
This Subdivision applies if:
(a) an employer has an individual superannuation guarantee amount for an employee and a QE day; and
(b) the employer makes, for the benefit of the employee, one or more eligible contributions that:
(i) result in the employer's individual base superannuation guarantee shortfall, or individual final superannuation guarantee shortfall, for the employee and the QE day being less than what it would otherwise be; or
(ii) if the amount mentioned in paragraph (a) is nil - would have resulted in a shortfall mentioned in subparagraph (i) being less than what it would have otherwise been had the amount mentioned in paragraph (a) been greater than nil.
[
CCH Note:
S 20A to 20D and Div 3 heading will be inserted by No 57 of 2025, s 3 and Sch 1 item 12, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 20A to 20D and Div 3 heading will read:
Paragraph 32C(2)(c) is a requirement for a fund to include a MySuper product.
SECTION 20A EMPLOYER'S CHOICE LOADING FOR THE QE DAY
20A(1)
The employer's
choice loading
for the employee and the QE day is:
(a)
if subsection (2) or (3) applies to some or all of those eligible contributions - the lower of:
(i)
the amount equal to 25% of the total of the contributions to which that subsection applies; and
(ii)
the choice loading limit for the QE day; or
(b)
otherwise - nil.
Contributions made to an RSA or a fund other than a defined benefit superannuation scheme
20A(2)
This subsection applies if:
(a)
some or all of the contributions mentioned in paragraph 20(b) are not made in compliance with the choice of fund requirements; and
(b)
section 20D (relying on most recent Commissioner notification) does not apply to the contributions.
Contributions notionally made to a defined benefit superannuation scheme
20A(3)
This subsection applies if:
(a)
some or all of the contributions mentioned in paragraph 20(b):
(i)
are notionally made as described in subsection 18A(3) to a defined benefit superannuation scheme; and
(ii)
if paragraph 32C(2)(c) were disregarded - would not have been made in compliance with the choice of fund requirements if they had been actually (rather than notionally) made to the scheme; and
(b)
none of subsections 20B(2), (3) and (4) apply to the employer for the employee, the scheme and the QE day; and
(c)
section 20D (relying on most recent Commissioner notification) does not apply to the contributions.
Note:
20B(1)
This section applies for the purposes of paragraph 20A(3)(b).
Scheme in surplus
20B(2)
This subsection applies if:
(a) the employee was a defined benefit member of the fund immediately before 1 July 2005 and has not ceased to be such a member during the period (the membership period ):
(i) starting on 1 July 2005; and
(ii) ending at the end of the QE day; and
(b) an actuary has provided a certificate in accordance with regulations under the Superannuation Industry (Supervision) Act 1993 stating that the employer is not required to make contributions for a period including the QE day, and there has been such a certificate covering all times since 1 July 2005; and
(c) an actuary has provided a certificate stating that, in the actuary's opinion, at all times during the membership period there is a high probability that the assets of the scheme are, and will be, equal to or greater than 110% of the greater of the scheme's liabilities in respect of vested benefits and the scheme's accrued actuarial liabilities.
The certificate under paragraph (c) must have been provided no earlier than 15 months before the QE day.
Member has accrued maximum benefit
20B(3)
This subsection applies if, on the QE day, the defined benefit that has accrued to the employee will not increase other than:
(a) as a result of increases in the employee's salary or remuneration; or
(b) by reference to accruals of investment earnings; or
(c) by reference to indexation based on, or calculated by reference to, a relevant price index or wages index; or
(d) in any other way prescribed by the regulations.
Member's benefit not affected
20B(4)
This subsection applies if the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions:
(a) for the QE day; and
(b) made by the employer for the benefit of the employee;
to a fund (within the meaning of Part 3A) other than the defined benefit superannuation scheme.
Meaning of scheme's accrued actuarial liabilities and scheme's liabilities in respect of vested benefits
20B(5)
In this section:
scheme's accrued actuarial liabilities
, at a particular time, means the total value, as certified by an actuary, of the future benefit entitlements of members of the scheme in respect of membership up to that time based on assumptions about:
(a) future economic conditions; and
(b) the future of matters affecting membership of the scheme;
being assumptions made in accordance with applicable professional actuarial standards (if any).
scheme's liabilities in respect of vested benefits
, at a particular time, means the total value of the benefits payable from the scheme to which the members of the scheme would be entitled if they all voluntarily terminated their service with their employers at that time.
SECTION 20C LIMIT ON CHOICE LOADING FOR THE QE DAY
20C(1)
The choice loading limit for the QE day (the current QE day ) is $1,200.
20C(2)
However, this amount is reduced (but not below nil) by the amount equal to 25% of the sum of any other eligible contributions:
(a) made by the employer for the benefit of the employee; and
(b) to which subsection 20A(2) or (3) applies for any earlier QE day for the employer and employee during the notice period that includes the current QE day.
20C(3)
In this section:
notice period
means the period:
(a) beginning on the latest of:
(i) the day the employee's employment with the employer starts; and
(ii) the day after the end of the immediately preceding notice period for the employer and the employee; and
(iii) 1 July 2026; and
(b) ending on the day the Commissioner gives the employer written notice that the employer's notice period for the employee has ended.
SECTION 20D RELYING ON MOST RECENT COMMISSIONER NOTIFICATION
20D
This section applies to an eligible contribution for the benefit of the employee that is not made in compliance with the choice of fund requirements if:
(a) the employer attempts to make the contribution at a particular time; and
(b) at that time, there is no chosen fund for the employee; and
(c) at that time, the most recent notification to the employer:
(i) by the Commissioner; and
is that the Commissioner is satisfied that the fund is the stapled fund for the employee; and
(ii) relating to a request by the employer (or by the employer's agent) for the Commissioner to identify any stapled fund for the employee;
(d) the fund does not accept the contribution from the employer for the benefit of the employee; and
(e) the employer made the contribution to another fund for the benefit of the employee.
Division 3 - Arrangements to avoid paying superannuation guarantee charge
]The Commissioner must, by legislative instrument, make guidelines that the Commissioner must have regard to when deciding whether or not to make a decision under subsection 19(2E).
Note:
Subsection 19(2E) allows the Commissioner to reduce (including to nil) the amount of an increase in an individual superannuation guarantee shortfall under subsection 19(2A) or (2B).
[ CCH Note: Superannuation Guarantee (Administration) - Choice of Fund - Written Guidelines for the Reduction of an Increase in an Employer's Individual Superannuation Guarantee Shortfall Determination 2021 (F2021L01453 registered 22/10/2021), effective from 1 November 2021, contains the guidelines for the purposes of s 21(1). The determination replaces and repeals Superannuation Guarantee (Administration) Act 1992 - Written Guidelines for the Reduction of an Increase in an Employer's Individual Superannuation Guarantee Shortfall (F2006L01821) registered on 15 June 2006.]
21(2)
The Commissioner must, by legislative instrument, make guidelines that the Commissioner must have regard to when deciding whether or not to make a decision under subsection 19(2F).
Note:
Subsection 19(2F) allows the Commissioner to reduce (including to nil) the amount of an individual superannuation guarantee shortfall when a fund that has been notified as the stapled fund for an employee is unable to accept contributions.
[ CCH Note: Superannuation Guarantee (Administration) - Stapled Fund - Guidelines for the Reduction of an Employer's Individual Superannuation Guarantee Shortfall for Late Contributions Due to Non-acceptance by Notified Stapled Fund Determination 2021 (F2021L01451 registered 22/10/2021), effective from 1 November 2021, contains the guidelines for the purposes of s 21(2).]
SECTION 22 REDUCTION OF CHARGE PERCENTAGE WHERE CONTRIBUTION MADE TO DEFINED BENEFIT SUPERANNUATION SCHEME 22(1) [Application of section]
This section applies only in relation to defined benefit superannuation schemes.
22(2) [Charge percentage](a) a benefit certificate in relation to one or more complying superannuation schemes has effect for the whole or part of a quarter; and
(b) a scheme in relation to which the certificate has effect is operating for the benefit of a person as an employee of an employer; and
(c) the certificate specifies a figure as the notional employer contribution rate in relation to a class of employees (being a class that includes the employee referred to in paragraph (b)) as members of the scheme or schemes (as the case may be);
the charge percentage for the employer, as specified in subsection 19(2), in respect of an employee in the class for the quarter, is reduced, in addition to any other such reduction made under this section or section 23, by the amount worked out using the formula:
| A × B |
where:
A is the figure referred to in paragraph (c);
B is:
(A) 1; or (B) if, in relation to the quarter, the employment period is greater than the scheme membership period or the certificate period - either the fraction that represents the scheme membership period as a proportion of the employment period or the fraction that represents the certificate period as a proportion of the employment period or, if one fraction is smaller than the other, the smaller fraction.
For the purposes of subsection (2):
the certificate period
means the period, or the aggregate of the periods, in the quarter for which the benefit certificate has effect in relation to the scheme.
the employment period
means the period, or the aggregate of the periods, in the quarter for which the employee is employed by the employer.
the scheme membership period
means the period, or the aggregate of the periods, in the quarter for which the employee is a member of the superannuation scheme.
The charge percentage for an employer for a quarter cannot be reduced below 0.
For the purposes of a calculation under this section in relation to an employer and an employee:
(a) a period of leave of absence without pay granted by the employer to the employee is not to be taken into account as a period for which the employee is employed by the employer; and
(b) a benefit certificate is taken not to have effect in relation to the employee in respect of such a period.
This section applies only in relation to RSAs and to superannuation funds other than defined benefit superannuation schemes.
23(2) Reduction of charge percentage where contributions are made by employer.
If, in a quarter, an employer makes a contribution (other than a sacrificed contribution) for the benefit of an employee to a complying superannuation fund or an RSA, then the charge percentage for the employer (as specified in subsection 19(2)) for the employee for the quarter is reduced by the number worked out using the formula:
| Contribution | × | 100 | ||
| Ordinary time earnings base |
where:
contribution
is the number of dollars in the amount of the contribution.
ordinary time earnings
(Repealed by No 95 of 2019)
ordinary time earnings base
is the number of dollars in the sum of:
(a) the ordinary time earnings of the employee for the quarter in respect of the employer; and
(b) any sacrificed ordinary time earnings amounts, of the employee for the quarter in respect of the employer.
A reduction under subsection (2) in respect of a contribution is in addition to: (a) any other reduction under that subsection in respect of any other contribution; and (b) any reduction under section 22.
23(4)
(Repealed by No 93 of 2004)
23(4A)
(Repealed by No 93 of 2004)
23(4B)
(Repealed by No 93 of 2004)
23(4C)
(Repealed by No 93 of 2004)
23(4D)
(Repealed by No 93 of 2004)
23(4E)
(Repealed by No 93 of 2004)
23(4F)
(Repealed by No 93 of 2004)
23(5)
(Repealed by No 93 of 2004)
23(6) Some contributions made after a quarter ends may be taken into account in the quarter.
A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as having been made in a quarter if it is in fact made within the period of 28 days after the end of the quarter.
A contribution (the actual contribution ) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as having been made in a quarter if: (a) the employer attempted to make a contribution to any complying superannuation fund for the benefit of the employee at a particular time within the period of 28 days after the end of the quarter; and (b) at that time, the making of the attempted contribution was prevented by the operation of section 60F of the Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments); and (c) the actual contribution is in fact made within the period of 56 days after the end of the quarter.
23(6B)
(Repealed by No 51 of 2002)
23(7) Certain contributions made before a quarter may be taken into account in the quarter.
A contribution to a complying superannuation fund or an RSA made by an employer for the benefit of an employee may be taken into account under this section as if it had been made during a particular quarter if the contribution is made not more than 12 months before the beginning of the quarter.
Sacrificed ordinary time earnings amounts taken into account in a quarter not to be taken into account for any other quarter
23(7A)
For the purposes of the definition of ordinary time earnings base in subsection (2), disregard an amount in a quarter if: (a) the amount would be covered by paragraph (a) of that definition for the quarter (about ordinary time earnings of the employee); but (b) the amount is taken into account under paragraph (b) of that definition (about sacrificed ordinary time earnings amounts) for any quarter.
Note:
This prevents double counting if a sacrificed ordinary time earnings amount is later paid as ordinary time earnings, instead of being contributed to superannuation.
23(8) Contributions taken into account for a quarter not to be taken into account for any other quarter.
A contribution to a superannuation fund or an RSA made by an employer for the benefit of an employee that is taken into account under this section in relation to a quarter is not to be taken into account under this section in relation to any other quarter.
A contribution: (a) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee after the end of a quarter; and (b) in relation to which the employer's individual superannuation guarantee shortfall for the employee for the quarter is reduced under subsection 19(2F);
is not to be taken into account under this section in relation to any other quarter.
23(8A) Contribution made when conversion notice has effect not to be taken into account under this section.
A contribution to a superannuation fund or superannuation scheme made by an employer for the benefit of an employee at a time when a conversion notice has effect in relation to the fund or scheme is not at any time to be taken into account under this section.
(Repealed by No 93 of 2004)
23(9A) Contributions to estate of deceased employee.
If:
(a) an employee has died; and (b) the employer would, if the employee had not died, have made a contribution to a complying superannuation fund or RSA for the benefit of the employee; and (c) the employer pays to the legal personal representative of the employee an amount equal to the amount of the contribution that would have been paid;the amount paid is taken for the purposes of this section to have been a contribution made by the employer to a complying superannuation fund or RSA for the benefit of the employee.
The charge percentage for an employer for a quarter cannot be reduced below 0.
If an employee's notional earnings base includes an amount of the employee's salary or wages that, because of section 27 or 28, is not taken into account for the purpose of making a calculation under section 19, the employee's notional earnings base for the purposes of this section is taken to be reduced by that amount.
Reduction of ordinary time earnings base if amount excluded from employee's salary or wages
23(12)
If: (a) because of section 27 or 28, an amount of an employee's salary or wages is not taken into account for the purpose of making a calculation under section 19; and (b) a portion of that amount (which could be all of it) is included in the employee's ordinary time earnings base for the quarter in respect of the employer;
for the purposes of this section, the employee's ordinary time earnings base for the quarter in respect of the employer is taken to be reduced by an amount equal to that portion.
23(13)
Subject to subsection (15), if: (a) an employer makes a deposit under the Small Superannuation Accounts Act 1995 in respect of an employee before 1 July 2006; and (b) the deposit form that accompanied the deposit, in so far as the form relates to the deposit, did not contain a declaration that is false or misleading;
this section has effect as if the deposit were a contribution made by the employer for the benefit of the employee to a complying superannuation fund.
23(14)
Subsection (13) has effect despite section 9 of the Small Superannuation Accounts Act 1995 .
23(15)
If: (a) an employer makes a deposit under the Small Superannuation Accounts Act 1995 in respect of an employee; and (b) the employer receives a payment under Part 8 of that Act by way of a refund of the deposit;
this section has effect as if the deposit had never been made.
23(16)
In subsections (13) and (15):
deposit
has the same meaning as in the Small Superannuation Accounts Act 1995 .
deposit form
has the same meaning as in the Small Superannuation Accounts Act 1995 .
SECTION 23A OFFSETTING LATE PAYMENTS AGAINST CHARGE 23A(1)
A contribution (other than a sacrificed contribution) to a complying superannuation fund or an RSA made by an employer for the benefit of an employee is offset under subsection (3) if:
(a) the contribution is made:
(i) after the end of the period of 28days after the end of a quarter; and
(ii) before the employer's original assessment for that quarter is made; and
(b) the employer elects, in the approved form, that the contribution be offset.
23A(2)
The election must be made:
(a) in a statement having effect under section 35 as the employer's assessment for the quarter; or
(b) within 4 years after the employer's original assessment for the quarter is made.
The election cannot be revoked.
23A(3)
The contribution is offset, at the time the employer's original assessment for the quarter is made, against the employer's liability to pay superannuation guarantee charge to the extent that the liability relates to:
(a) that part of the employer's nominal interest component for the quarter that relates to the employee; or
(b) the employer's individual superannuation guarantee shortfall for the employee for the quarter.
23A(4)
The contribution is offset against that part of the employer's nominal interest component for the quarter that relates to the employee before any remainder is offset against the employer's individual superannuation guarantee shortfall for the employee for the quarter.
23A(4A)
If the election happens after the employer's assessment for the quarter is made, then, for the offset to take effect, the assessment must be amended accordingly under section 37.
23A(5)
A contribution to a superannuation fund or an RSA made by an employer for the benefit of an employee that is taken into account under this section in relation to a quarter is not to be taken into account:
(a) under this section in relation to any other quarter; or
(b) under section 22 or 23.
For the purposes of a provision covered by subsection (2):
(a) treat an employer that, at a particular time, pays an amount to an approved clearing house for the benefit of an employee as having made a contribution of the same amount to a complying superannuation fund or an RSA for the benefit of the employee at that time, if the approved clearing house accepts the payment; and
(b) disregard any contribution that the approved clearing house makes to a complying superannuation fund or an RSA as a result of the payment.
23B(2)
The provisions are as follows:
(a) section 15A (which deals with salary sacrifice arrangements);
(b) section 23 (which deals with reduction of charge percentage);
(c) section 23A (which deals with offsetting late payments against an employer's liability to pay superannuation guarantee charge).
Subject to subsection (4), a benefit certificate that has effect in relation to a superannuation scheme (being a scheme to which an employer has contributed for the benefit of an employee) for the whole or a part of a quarter is, for the purposes of section 22, conclusively presumed, in relation to the employer, to be a certificate that has effect in relation to a complying superannuation scheme for the whole, or that part, as the case may be, of the quarter if:
(a) within 30 days of the starting day in relation to that certificate, the employer obtains a written statement, provided by or on behalf of the trustee of the scheme, that the scheme:
(i) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and
(ii) is not subject to a direction under section 63 of the Superannuation Industry (Supervision) Act 1993; and
(iii) has not been subject to such a direction at any time since the beginning of the day on which the benefit certificate is expressed to take effect; or
(b) in an earlier quarter, the employer has obtained a statement of the kind referred to in paragraph (a).
Subject to subsection (4), a benefit certificate that has effect in relation to a superannuation scheme (being a scheme to which an employer has contributed for the benefit of an employee) for the whole or a part of a quarter is, if the employer obtains a statement of the kind referred to in paragraph (1)(a):
(a) within the quarter; but
(b) later than 30 days after the starting day in relation to that certificate;
for the purposes of section 22, conclusively presumed, in relation to the employer, to be a certificate that has effect in relation to a complying superannuation scheme for the period commencing on the day on which the employer obtains the statement and ending on the last day of the quarter.
(Omitted by No 82 of 1993)
24(4) [No presumption if employer has grounds to believe that scheme in breach of conditions]
A presumption relating to a benefit certificate under subsection (1) or (2) is not, in relation to an employer and a superannuation scheme, effective in respect of any period for which the scheme is not a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section 38A of that Act if, in that period:
(a) the employer:
(i) is the trustee or manager of the scheme; or
(ii) has an association, within the meaning of section 318 of the Income Tax Assessment Act 1936, with the trustee or the manager of the scheme; and
(b) the employer has reasonable grounds for believing that the scheme is not a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section 38A of that Act.
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subsection (4) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 5 of that Act.
In this section:
(a) in relation to a benefit certificate that has effect in relation to a superannuation scheme for the whole of a quarter - the first day of the quarter; or
(b) in relation to a benefit certificate that has effect in relation to a superannuation scheme for a part of a quarter - the first day in the quarter for which the benefit certificate has effect.
Subject to subsection (2), a contribution by an employer for the benefit of an employee to a superannuation fund is conclusively presumed to be a contribution to a complying superannuation fund for the purposes of section 23 if, at or before the time the contribution is made, the employer has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:
(a) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and
(b) is not subject to a direction under section 63 of that Act.
Subsection (1) does not apply to a contribution to a superannuation fund if, at the time the contribution is made:
(a) the employer:
(i) is the trustee or the manager of the fund; or
(ii) has an association, within the meaning of section 318 of the Income Tax Assessment Act 1936, with the trustee or the manager of the fund; and
(b) the employer has reasonable grounds for believing that the fund is not a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section 38A of that Act.
Section
(Repealed by No 169 of 1995)
Any period in respect of which the only salary or wages paid by an employer to an employee are excluded salary or wages is not, for the purposes of section 22 or 23, to be taken into account as a period for which the employee is employed by the employer.
26(2)
For the purposes of subsection (1), excluded salary or wages are salary or wages that, under section 27 or 28, are not to be taken into account for the purpose of making a calculation under section 19.
SECTION 27 27 SALARY OR WAGES: GENERAL EXCLUSIONS
The following salary or wages are not to be taken into account for the purpose of making a calculation under section 19:
(a) (Repealed by No 22 of 2012) (b) salary or wages paid to an employee who is not a resident of Australia for work done outside Australia (except to the extent that the salary or wages relate to employment covered by a certificate under section 15C); (c) salary or wages paid by an employer who is not a resident of Australia to an employee who is a resident of Australia for work done outside Australia; (ca) salary or wages paid by an employer to an employee who is not a resident of Australia for work done in the Joint Petroleum Development Area (within the meaning of the Petroleum (Timor Sea Treaty) Act 2003); (d) salary or wages paid to an employee who is a prescribed employee for the purposes of this paragraph; (e) salary or wages prescribed for the purposes of this paragraph.
[ CCH Note: No 57 of 2025, s 3 and Sch 1 item 150 provides for the omission of "1 July 2027" and substitution of "1 July 2026" in the application and transitional provision related to the amendment of s 27 by 53 of 2015, s 3 and Sch 2 item 1, effective 1 July 2026.]
[ CCH Note: S 27(2) was repealed by No 10 of 2022, s 3 and Sch 1 item 1. This amendment has been editorially changed to omit "(1)" from section 27, in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003. S 27(2) formerly read:
]
27(2)
If:
(a) an employer pays an employee salary or wages in a calendar month; and
(b) the portion of those salary or wages that is not covered by subsection (1) is less than $450;that portion of those salary or wages is not to be taken into account for the purpose of making a calculation, in relation to the employer and the employee, under section 19.
Salary or wages paid to a part-time employee who is under 18 are not to be taken into account for the purpose of making a calculation under section 19.
If an employee receives income that is exempt from income tax under item 1.4 of the table in section 51-5 of the Income Tax Assessment Act 1997, that income is not to be taken into account for the purposes of this Act.
If: (a) an employer makes an arrangement; and (b) as a result of the arrangement the employer's superannuation guarantee shortfall for a quarter is reduced; and (c) in the Commissioner's opinion the arrangement was made solely or principally for the purpose of avoiding payment of superannuation guarantee charge otherwise than in accordance with this Act;
the employer is liable to pay for the quarter an amount of superannuation guarantee charge equal to the amount that, in the Commissioner's opinion, the employer would have been liable to pay if the arrangement had not been made.
[ CCH Note: S 30 will be amended by No 57 of 2025, s 3 and Sch 1 items 44 and 45, by substituting "a QE day" for "a quarter" in para (b) and "the QE day" for "the quarter", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
The nominal interest component in relation to an employer for a quarter is the amount that would accrue by way of interest on the total of the employer's individual superannuation guarantee shortfalls for the quarter if interest were calculated at the rate applicable under the regulations for the purposes of this subsection from the beginning of the quarter in question until the date on which superannuation guarantee charge in relation to the total would be payable under this Act.
[ CCH Note: S 31 will be repealed by No 57 of 2025, s 3 and Sch 1 item 46, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
An employer's administration component for a quarter is the amount worked out using the formula:
| Base amount + [N × Per capita amount] |
where:
base amount is the amount (if any) prescribed in the regulations.
N is the number of employees in respect of whom the employer has an individual superannuation guarantee shortfall for the quarter.
Per capita amount is $20 or such other amount as is from time to time prescribed.
32(2)
If: (a) under section 74, the employer qualifies for an amnesty in relation to part of the employer's superannuation guarantee shortfall for the quarter; and (b) that shortfall includes one or more individual superannuation guarantee shortfalls for employees ( newly included employees ) for the quarter that would not have been so included if the information in the disclosure that gave rise to the amnesty were not taken into account; and (c) any assessment of the employer's superannuation guarantee shortfall for the quarter that was made before the employer qualified for the amnesty did not take into account an individual superannuation guarantee shortfall for newly included employees for the quarter;
in working out under subsection (1) the employer's administration component for the quarter, the employer is taken not to have an individual superannuation guarantee shortfall for any of the newly included employees for the quarter.
32(3)
Despite subsection (1), an employer's administration component for a quarter is nil if: (a) under section 74, the employer qualifies for an amnesty in relation to the whole of the employer's superannuation guarantee shortfall for the quarter; and (b) an assessment of the employer's superannuation guarantee shortfall for the quarter has not been made (or taken to have been made) under Part 4 before the employer qualified for the amnesty.
[ CCH Note: S 32 will be repealed by No 57 of 2025, s 3 and Sch 1 item 46, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
This Part sets out the circumstances in which contributions are made in compliance with the choice of fund requirements. This is important because an employer's individual superannuation guarantee shortfall for an employee for a quarter may be increased where contributions do not comply.
[ CCH Note: S 32A will be amended by No 57 of 2025, s 3 and Sch 1 item 47, by substituting "superannuation guarantee shortfall for a QE day" for "individual superannuation guarantee shortfall for an employee for a quarter", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
The structure of this Part is as follows:
| Structure of Part | |
| Division | Topic |
| Division 1 | Overview of Part |
| . | |
| Division 2 | Which contributions satisfy the choice of fund requirements? |
| . | |
| Division 3 | Eligible choice funds |
| . | |
| Division 4 | Choosing a fund |
| . | |
| Division 6 | Standard choice forms |
| . | |
| Division 7 | Stapled funds |
| . | |
| Division 8 | Miscellaneous |
Contributions to certain funds
32C(1)
A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if the contribution is made to a fund that, at the time that the contribution is made, is: (a) a chosen fund for the employee (see Division 4); or (b) if the employee is not a Commonwealth employee who is a member of the CSS or the PSS - an unfunded public sector scheme.
Contributions to stapled funds
32C(1A)
A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made: (a) there is no chosen fund for the employee; and (b) the most recent notification to the employer:
(i) by the Commissioner; and
(ii) relating to a request by the employer (or by the employer's agent) for the Commissioner to identify any stapled fund for the employee;
is that the Commissioner is satisfied that the fund is the stapled fund for the employee.
32C(1B)
Subsection (1A) does not apply if, at the time the contribution is made: (a) the employer is required under section 32N to give the employee a standard choice form; and (b) the employer has not done this by the time specified in the subsection concerned.
However, this subsection ceases to apply from the time that the employer gives the standard choice form to the employee.
Contributions to certain eligible choice funds
32C(2)
A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if, at the time the contribution is made: (a) there is no chosen fund for the employee; and (aa) the most recent notification to the employer:
(i) by the Commissioner; and
is that the Commissioner is satisfied that there is no stapled fund for the employee; and (b) the fund is an eligible choice fund for the employer; and (ba) the fund:
(ii) relating to a request by the employer (or by the employer's agent) for the Commissioner to identify any stapled fund for the employee;
(i) is specified under section 32P in the standard choice form provided as the fund to which the employer will contribute for the benefit of the employee if the employee does not make a choice or will be so specified within the time specified in section 32N for the provision of a standard choice form to the employee; or
(ii) if the employer has not contributed, and cannot contribute, to a fund (the first employer fund ) that was so specified or that was purportedly so specified - will be so specified within 28 days of the employer becoming aware that the employer cannot contribute to the first employer fund; and
(c) a class of beneficial interest in the fund is a MySuper product within the meaning of the Superannuation Industry (Supervision) Act 1993; and (d) the fund complies with the requirements (if any) set out in the regulations in relation to the provision of a benefit in respect of MySuper members of the fund that is payable only in the event of the death of the member; and (e) the fund complies with the requirements (if any) set out in the regulations in relation to offering a benefit in respect of members of the fund (other than MySuper members) that is payable only in the event of the death of the member.
(iii) (Repealed by No 46 of 2021)
32C(2A)
Subsection (2) does not apply if, at the time the contribution is made: (a) the employer is required under section 32N to give the employee a standard choice form; and (b) the employer has not done this by the time specified in the subsection concerned.
However, this subsection ceases to apply from the time that the employer gives the standard choice form to the employee.
32C(2AA)
Paragraph (2)(ba) does not apply if the employee is, within the meaning of the Migration Act 1958, the holder of a temporary visa.
Contributions to certain successor funds
32C(2AB)
A contribution to a fund (the new fund ) by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if: (a) the employee's interest in the new fund was transferred to the new fund from another fund (the original fund ) without the employee's consent; and (b) at the time of the most recent contribution before the transfer to the original fund by the employer for the benefit of the employee, the original fund was a fund:
(i) to which subparagraph (2)(ba)(i) applies; or
(ii) to which subparagraph (2)(ba)(ii) applies, or would have applied if the transfer had not occurred; or
(c) the new fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer.
(iii) to which subsection (1A) applies; and
Contributions through an approved clearing house
32C(2B)
A contribution to a fund by an employer for the benefit of an employee is made in compliance with the choice of fund requirements if: (a) section 79A (which is about a contribution through an approved clearing house) applies to the contribution; and (b) the employee or the Commissioner gives the employer notice to the effect that the employee wants a fund to be a chosen fund for the employee in accordance with Division 4 of Part 3A (Choosing a fund); and
Note:
Under section 32G (Limit on funds that may be chosen), the fund chosen by the employee must be an eligible choice fund and must be a fund to which the employer can make contributions.
(c) the employer passes onto the approved clearing house mentioned in section 79A the information included in the notice, and any other prescribed information:
(i) within 21 days after the employer is given the notice; and
(d) the approved clearing house accepts the information.
(ii) before or at the time the contribution is made; and
[ CCH Note: S 32C(2B) will be repealed by No 57 of 2025, s 3 and Sch 1 item 48, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Contributions to the CSS
32C(3)
A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the CSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection.
Contributions to the PSS
32C(4)
A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made to the PSS. However, this subsection does not apply if the law of the Commonwealth under which the contribution is made has been prescribed in relation to that time under regulations made for the purpose of this subsection.
32C(4A)
(Repealed by No 21 of 2015)
Contributions under the Superannuation (Productivity Benefit) Act 1988
32C(5)
A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under the Superannuation (Productivity Benefit) Act 1988. However, this subsection does not apply if that Act has been prescribed in relation to that time under regulations made for the purpose of this subsection.
Contributions under certain agreements and workplace determinations
32C(6)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with: (a) a pre-reform certified agreement; or (b) an AWA; or (c) a pre-reform AWA; or (d) a collective agreement; or (e) an old IR agreement; or (f) an ITEA; or (g) if subsection (6AAA) applies - a workplace determination made before 1 January 2021; or (h) if subsection (6AAA) applies - an enterprise agreement made before 1 January 2021; or (i) an award mentioned in paragraph 2(2)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; or (j) a State reference transitional award or common rule.
Note:
A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.
32C(6AAA)
For the purposes of paragraph (6)(g) or (h), this subsection applies if, at the time the contribution (or part of the contribution) is made, the most recent notification to the employer: (a) by the Commissioner; and (b) relating to a request by the employer (or by the employer's agent) for the Commissioner to identify any stapled fund for the employee;
is that the Commissioner is satisfied that there is no stapled fund for the employee.
Contributions previously covered by paragraphs (6)(g) and (h)
32C(6AA)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if: (a) at the time the contribution is made, there is no chosen fund for the employee; and (b) the fund is a fund to which the employer has previously made contributions, in compliance with the choice of fund requirements under paragraph (6)(g) or (h), for the benefit of the employee.
Contributions under notional agreements preserving State awards
32C(6A)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made: (a) under, or in accordance with, a notional agreement preserving State awards; and (b) in respect of salary or wages paid before 1 July 2006.
Note:
A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.
Contributions under preserved State agreements
32C(6B)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a preserved State agreement.
Note:
A number of the expressions used in this subsection are defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 or the Fair Work Act 2009.
Contributions under Division 2B State instruments
32C(7)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a Division 2B State instrument.
Note:
The expression Division 2B State instrument is defined in section 12A by reference to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Contributions under State awards
32C(8)
A contribution to a fund by an employer for the benefit of an employee is also made in compliance with the choice of fund requirements if the contribution, or a part of the contribution, is made under, or in accordance with, a State industrial award.
Contributions under prescribed legislation
32C(9)
A contribution to a fund by an employer for the benefit of an employee at a particular time is also made in compliance with the choice of fund requirements if the contribution is made under a law of the Commonwealth, of a State or of a Territory and the law is prescribed in relation to that time under regulations made for the purpose of this subsection.
Contributions made after employees cease employment
32C(10)
If: (a) an employee ceases to be employed by an employer; and (b) after the employment ceases, the employer makes a contribution to a fund for the benefit of the employee and in respect of the employment;
then, for the purposes of this section, the contribution is taken to have been made immediately before the employment ceases.
Note:
This section is used in determining if an individual superannuation guarantee shortfall is increased under subsection 19(2A) or (2B). Where subsection 19(2B) is relevant, the contributions referred to in this section are the notional contributions referred to in paragraph 19(2B)(b).
[ CCH Note: S 32C(10) will be amended by No 57 of 2025, s 3 and Sch 1 item 49, by repealing the note, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Despite section 32C, a contribution to a fund by an employer for the benefit of an employee is taken not to comply with the choice of fund requirements if the employer imposes a direct cost or charge on the employee as a consequence of having to contribute to that fund.
A fund is an eligible choice fund for an employer at a particular time if: (a) it is a complying superannuation fund at that time; or (b) it is a complying superannuation scheme at that time; or (c) it is an RSA; or (ca) if the time is a time before 1 July 2006 - it is the account that is continued in existence under section 8 of the Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account; or (d) at that time, a benefit certificate in relation to the fund is conclusively presumed under section 24, in relation to the employer, to be a certificate in relation to a complying superannuation scheme; or (e) contributions made by the employer to the fund at that time are conclusively presumed under section 25 to be contributions to a complying superannuation fund.
[ CCH Note: S 32D will be amended by No 57 of 2025, s 3 and Sch 1 items 50 and 51, by substituting para (d) and "subsection 18A(2) of this Act" for "section 25" in para (e), effective 1 July 2026. For application and transitional provisions, see note under s 16. Para (d) will read:
]
(d) at that time, paragraphs 18A(3)(a) and (d) of this Act (about defined benefit superannuation schemes) are satisfied for the fund and the employer; or
In this Part:
(a) a superannuation fund; and
(b) a superannuation scheme; and
(c) an RSA;
and, until immediately before 1 July 2006, includes the account that is continued in existence under section 8 of the Small Superannuation Accounts Act 1995 as the Superannuation Holding Accounts Special Account.
For the purposes of this Part, the holder of an RSA is taken to be a member.
If an employee wants a fund to be a chosen fund for the employee, the employee must:
(a) give the employer written notice to that effect; or
(b) give the Commissioner a notice to that effect in the approved form.
Note:
A fund can only be a chosen fund if the employer is able to make contributions to the fund for the benefit of the employee (see subsection 32G(2)).
32F(1A)
If:
(a) an employer has offered an employee a choice of fund before 1 July 2005; and
(b) the employee has chosen a fund in accordance with the choice of funds that is offered; and
(c) the limitations on that choice are consistent with section 32G or, if the choice was made before the commencement of that section, would have been consistent with section 32G if the section had been in force at the time the choice was made;
then, for the purposes of this Part, any fund chosen by the employee is taken to be the chosen fund for the employee with effect from:
(d) 1 July 2005; or
(e) a date that is 2 months after the fund is so chosen (unless the employer determines an earlier time after 1 July 2005 but within that 2 months);
whichever last occurs.
32F(2)
The fund becomes a chosen fund for the employee 2 months after the employee or the Commissioner gives the notice to the employer, or at such earlier time after the notice is given as the employer determines.
32F(3)
A fund (the selected fund ) cannot become a chosen fund for an employee under this section if:
(a) immediately before the employee gave the notice to the employer or the Commissioner, the employee was a defined benefit member of a defined benefit superannuation scheme; and
(b) even if the selected fund were to become a chosen fund for the employee, the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme as the employee would be entitled if the selected fund were not a chosen fund for the employee.
An employer may refuse to accept the fund chosen by an employee under section 32F and notified under paragraph 32F(1)(a) if the employee does not provide, together with the notice:
(a) a written statement setting out:
(i) contact details for the fund; and
(ii) any other prescribed information; and
(b) written evidence that the fund will accept contributions made by the employer for the benefit of the employee.
32FA(2)
An employer may refuse to accept the fund chosen by an employee under section 32F if the employee has chosen another fund within the previous 12 months.
The fund chosen by the employee must be an eligible choice fund for the employer at the time that the choice is made.
32G(2) [Contributions must be possible]The fund chosen by the employee must be a fund to which the employer can make contributions for the benefit of the employee at the time that the choice is made.
A fund (the old fund ) ceases to be a chosen fund for an employee if:
(a) there is another fund that is a chosen fund for the employee; and
(b) neither the employee nor the Commissioner has given the employer a written notice stating that the old fund continues to be a chosen fund for the employee.
32H(1A)
The employee may give the employer a written notice, or give the Commissioner a notice in the approved form, stating that the old fund continues to be a chosen fund for the employee.
32H(2)
A fund also ceases to be a chosen fund if the employee requests the employer, under subsection 32N(3), to give him or her a standard choice form and the employer does not do this by the time specified in that subsection.
32H(3)
A fund also ceases to be a chosen fund if it is impossible for the employer to contribute on behalf of the employee to the chosen fund. This may occur immediately after the fund becomes a chosen fund for the employee.
Example:
The chosen fund is closed to new members or ceases to accept further contributions.
32H(4)
A fund also ceases to be a chosen fund if the fund ceases to be an eligible choice fund for the employer. This may occur immediately after the fund becomes a chosen fund for the employee.
For the purposes of this Act, if:
(a) an employee's interest in a superannuation fund (the original fund ) is transferred to another superannuation fund without the consent of the member; and
(b) the other fund is a successor fund (within the meaning of the Income Tax Assessment Act 1997) in relation to the transfer; and
(c) immediately before the transfer takes effect, the original fund was a chosen fund for the employee; and
(d) at the time the transfer takes effect, the other fund:
(i) is an eligible choice fund; and
(ii) is a fund to which the employer can make contributions for the benefit of the employee;
from the time the transfer takes effect, the other fund is taken to be a chosen fund for the employee, and the original fund is taken no longer to be a chosen fund for the employee.
An employer must give a standard choice form before 29 July 2005 to each employee employed by the employer on 1 July 2005.
Note:
An employer does not have to provide a standard choice form to an existing employee except in the specific circumstances outlined in this section. See also the further exceptions in section 32NA.
An employer must give a standard choice form to an employee within 28 days of the employee first commencing employment with the employer.
32N(3) [Employee request for form]An employer must also give a standard choice form to an employee within 28 days of the employee giving the employer a written request to do so. However, a request is taken never to have been made if the employee has been given a standard choice form within the previous 12 months.
32N(4) [Cessation of available fund]An employer must also give a standard choice form to an employee within 28 days of the employer becoming aware that there ceased to be any chosen fund for the employee because of:
(a) subsection 32H(3) (employer unable to contribute to fund); or
(b) subsection 32H(4) (fund ceasing to be eligible choice fund). 32N(5) [Employer changes fund]
An employer must also give a standard choice form to an employee if:
(a) the employer is making contributions, in accordance with subsection 32C(2), to a fund for the benefit of the employee; and
(b) the employer changes the fund to which the employer makes contributions, in accordance with that subsection, for the benefit of the employee.
The standard choice form must be given within 28 days after the change.
32N(5A) [Employer cannot contribute to fund]An employer must also give a standard choice form (the updated standard choice form ) to an employee if:
(a) the employer has specified a fund (the employer fund ) in a standard choice form as the fund to which the employer will contribute under subsection 32C(2) in the event of the employee failing to make a choice of fund; and
(b) the employer discovers, after giving an employee the standard choice form, that the employer cannot contribute to the employer fund for the benefit of the employee.
The updated standard choice form must be given within 28 days after the employer first becomes aware that the employer cannot contribute to the employer fund for the benefit of the employee.
An employer may also give a standard choice form at any time.
An employer is not required under section 32N to give an employee a standard choice form if the employee has chosen a fund under section 32F by the time specified in subsection 32N(1), (2), (3) or (4).
32NA(1A)
(Repealed by No 46 of 2021)
32NA(2)
An employer is not required under section 32N to give an employee a standard choice form if: (a) the employer is making contributions of a kind mentioned in subsections 32C(3) to (9) for the benefit of the employee; and (b) the contributions are made in compliance with the choice of fund requirements.
32NA(3)
Subject to subsections 32N(3) and (4), an employer is not required under section 32N to give an employee a standard choice form if: (a) the employee has chosen a fund before 1 July 2005; and (b) the fund so chosen is to be taken, in accordance with subsection 32F(1A), to be the chosen fund for that employee.
32NA(4)
An employer is not required under section 32N to give an employee a standard choice form if the employee: (a) is a member of an unfunded public sector scheme; and (b) is not a Commonwealth employee who is a member of the CSS or the PSS.
32NA(5)
An employer is not required under section 32N to give an employee a standard choice form if the employee ceases to be an employee before the end of the period for giving a standard choice form to the employee.
32NA(6)
An employer is not required under section 32N to give an employee a standard choice form if: (a) it is a condition of the employment of that employee that the employee choose a fund from funds that include all funds that are eligible choice funds for the employer at the time the choice is made; and (b) the employer does not have an arrangement to pay contributions to a fund for the benefit of an employee in the event that the employee failed or refused to choose a fund.
32NA(7)
An employer is not required under section 32N to give an employee a standard choice form during a quarter if: (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and (b) subsection 20(2) is satisfied in relation to that scheme and that quarter.
[ CCH Note: S 32NA(7) will be substituted by No 57 of 2025, s 3 and Sch 1 item 52,effective 1 July 2026. For application and transitional provisions, see note under s 16. S 32NA(7) will read:
]
32NA(7)
An employer is not required under section 32N to give an employee a standard choice form for a QE day if:
(a) the employee is a defined benefit member of a defined benefit superannuation scheme; and
(b) subsection 20B(2) applies to the employer for the employee, the scheme and the QE day.
32NA(8)
An employer is not required under section 32N to give an employee a standard choice form during a quarter if: (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and (b) subsection 20(3) is satisfied in relation to the defined benefit that has accrued to that member.
[ CCH Note: S 32NA(8) will be substituted by No 57 of 2025, s 3 and Sch 1 item 52, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 32NA(8) will read:
]
32NA(8)
An employer is not required under section 32N to give an employee a standard choice form for a QE day if:
(a) the employee is a defined benefit member of a defined benefit superannuation scheme; and
(b) subsection 20B(3) applies to the employer for the employee, the scheme and the QE day in relation to the defined benefit that has accrued to the employee under the scheme.
32NA(9)
An employer is not required under section 32N to give an employee a standard choice form if: (a) the employee is a defined benefit member of a defined benefit superannuation scheme; and (b) the employee would be entitled, on the employee's retirement, resignation or retrenchment, to the same amount of benefit from the defined benefit superannuation scheme, whether or not the employee had contributions made by the employer for his or her benefit to a fund other than the defined benefit superannuation scheme.
32NA(10)
An employer is not required under section 32N to give an employee a standard choice form if: (a) the employee is covered by a notional agreement preserving State awards or a preserved State agreement; and (b) before the commencement of Schedule 1 to the Workplace Relations Amendment (Work Choices) Act 2005, the employer was required, under a State law, to give the employee a notification that the employee can choose a superannuation fund; and (c) the employer has given the notification mentioned in paragraph (b) to the employee.
32NA(11)
An employer is not required under section 32N to give an employee a standard choice form if the employee is, within the meaning of the Migration Act 1958, the holder of a temporary visa.
For the purposes of this Part, a standard choice form is a form that is in writing and that contains the following information:
(a) a statement that the employee may choose any eligible choice fund for the employer as a chosen fund for the employee;
(c) the name of the fund that the employer will contribute to if the employee does not make a choice;
(e) other information that is required, under the regulations, to be included in the form;
(g) if the employee is a member of a defined benefits scheme - information in relation to that scheme that is required, under the regulations, to be included.
[ CCH Note: S 32P(1), as enacted, does not contain paras (b), (d) and (f).]
The regulations may require additional information in relation to funds to be made available to employees and may prescribe where and when such information is to be made available.
[ CCH Note: The next section is s 32W.]
A fund is the stapled fund , for an employee at a particular time, if the requirements prescribed by the regulations for the purposes of this section are met in relation to the fund at that time.
Requesting Commissioner to identify any stapled fund
32R(1)
An employer, or the employer's agent, may request the Commissioner to identify any stapled fund for an employee of the employer. Such a request must be: (a) in the approved form; and (b) made in accordance with any requirements prescribed by the regulations for the purposes of this paragraph.
32R(1A)
Such a request may be made before, at or after the time the employee is given a standard choice form under Division 6.
Considering and responding to requests
32R(2)
Upon being given such a request by an employer (or by the employer's agent), the Commissioner must: (a) consider the request; and (b) notify in writing the employer (and the employer's agent if the agent made the request):
(i) whether the Commissioner is satisfied that there is a stapled fund for the employee; and
(ii) if the Commissioner is satisfied that there is a stapled fund for the employee - about the details necessary for the employer to make contributions to that fund for the benefit of the employee;
as soon as practicable and in accordance with any requirements prescribed by the regulations for the purposes of this subsection.
Changes to earlier notifications
32R(3)
The Commissioner may, in any circumstances prescribed by the regulations for the purposes of this subsection, change an earlier notification given in relation to the employee. The Commissioner must give written notice of the change as soon as practicable to: (a) the employer; and (b) if the earlier notification arose from a request by the employer's agent - the employer's agent.
A taxation officer (within the meaning of the Income Tax Assessment Act 1997) may disclose another person's tax file number (within the meaning of that Act) if:
(a) the other person provided the number to the Commissioner in a notice given to the Commissioner under paragraph 32F(1)(b); and
(b) the disclosure is to the other person's employer.
This Part applies separately to each employer of an employee. For example, a fund that is a chosen fund of an employee as a result of a standard choice form being given by an employer is only a chosen fund in relation to the operation of these provisions to that employer.
(Repealed by No 46 of 2021)
A requirement in a Commonwealth industrial award or a Territory industrial award that an employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund: (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).
This section applies to an employer that is a corporation to which paragraph 51(xx) of the Constitution applies.
32ZAA(2)
A requirement in a law of a State or Territory that the employer make contributions to a superannuation fund on behalf of an employee is not enforceable to the extent that the employer instead makes the contributions on behalf of the employee to another superannuation fund: (a) in compliance with this Part in a case where the other fund is a chosen fund for the employee; or (b) in compliance with subsection 32C(1A) (about contributions to stapled funds); or (c) in compliance with subsection 32C(2AB) in a case where subparagraph 32C(2AB)(b)(iii) applies (about contributions to a successor fund of a stapled fund).
This section applies if: (a) an employer cannot make contributions to a superannuation fund on behalf of an employee because of section 60F of the Superannuation Industry (Supervision) Act 1993 (consequences of 2 consecutive fail assessments); and (b) the superannuation fund is any of the following:
(i) PSSAP;
(ii) ADF Super (within the meaning of the Australian Defence Force Superannuation Act 2015);
(iii) if the regulations made for the purposes of this subparagraph specify another superannuation fund - that superannuation fund.
32ZAB(2)
The following provisions do not have effect in relation to the superannuation fund: (a) if the superannuation fund is PSSAP - section 16 of the Superannuation Act 2005; (b) if the superannuation fund is ADF Super (within the meaning of the Australian Defence Force Superannuation Act 2015) - section 15 of that Act; (c) if the superannuation fund is another superannuation fund - a provision that:
(i) is specified in regulations made for the purposes of this subparagraph; and
(ii) is analogous to the provisions mentioned in paragraphs (a) and (b).
An employer is not liable to compensate any person for loss or damage arising from anything done by the employer in complying with this Part.
[ CCH Note: Pt 4 heading will be substituted by No 57 of 2025, s 3 and Sch 1 item 13, effective 1 July 2026. For application and transitional provisions, see note under s 16. The heading will read:
]PART 4 - VOLUNTARY DISCLOSURE STATEMENTS AND ASSESSMENTS
An employer who has a superannuation guarantee shortfall for a quarter must lodge a superannuation guarantee statement for the quarter on or before:
(a) for a quarter beginning on 1 January - 28 May in the next quarter; and
(b) for a quarter beginning on 1 April - 28 August in the next quarter; and
(c) for a quarter beginning on 1 July - 28 November in the next quarter; and
(d) for a quarter beginning on 1 October - 28 February in the next quarter.
33(1A)
However, the Commissioner may allow an employer to lodge a superannuation guarantee statement on a later day.
33(2)
The statement must be in the approved form.
33(3)
(Repealed by No 2 of 2015)
33(4)
Subsection (1) does not apply to the employer if the employer has previously given the Commissioner a statement for the quarter under section 34.
[
CCH Note:
S 33 will be substituted by No 57 of 2025, s 3 and Sch 1 item 14, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 33 will read:
A statement is voluntary. Lodging a statement in the approved form can reduce the employer's administrative uplift amount of the employer's superannuation guarantee shortfall for the QE day (see subsection 19B(3)).
SECTION 33 VOLUNTARY DISCLOSURE STATEMENTS
33(1)
An employer who has a superannuation guarantee shortfall for a QE day may lodge a statement about that shortfall.
33(2)
The statement is a
voluntary disclosure statement
if it:
(a)
is lodged before the day an assessment is made for the employer for the QE day; and
(b)
is in the approved form.
Note:
33(3)
Without limiting subsection (2), the voluntary disclosure statement may include either or both of the following:
(a) the day (the receipt day ) an eligible contribution made by the employer for the benefit of an employee was received by the relevant fund, RSA, representative or scheme;
(b) the day (the payment day ) the contribution was paid, or debited, from an account (however described) belonging to:
(i) the employer; or
(ii) a person who is making the contribution on behalf of the employer.
33(4)
In this section:
account
includes an account held with an ADI (within the meaning of the Banking Act 1959).
]
The Commissioner, by written notice, may require a person who was at any time during a quarter an employer and who has not lodged a superannuation guarantee statement for that quarter to give the Commissioner, within a specified period of not less than 14 days, a written statement for the quarter stating whether the person has a superannuation guarantee shortfall for the quarter and if so, setting out the matters set out in the approved form referred to in subsection 33(2).
[ CCH Note: S 34 will be repealed by No 57 of 2025, s 3 and Sch 1 item 14, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
If:
then:
(a)
an employer lodges a superannuation guarantee statement for a quarter; and
(b)
a superannuation guarantee statement has not previously been lodged, and an assessment has not previously been made, for the quarter in relation to the employer;
(c)
the statement has effect as an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall; and
(d)
the assessment is taken to have been made on the later of the day on which the statement was lodged and the following day:
(i)
for a quarter beginning on 1 January - 28 May in the next quarter; and
(ii)
for a quarter beginning on 1 April - 28 August in the next quarter; and
(iii)
for a quarter beginning on 1 July - 28 November in the next quarter; and
(iv)
for a quarter beginning on 1 October - 28 February in the next quarter; and
(e)
the sum of:
(i)
the total of the employer's individual superannuation guarantee shortfalls; and
(ii)
the employer's nominal interest component; and
specified in the statement is to be taken to be the amount of superannuation guarantee charge payable by the employer for the quarter; and
(iii)
the employer's administration component;
(f)
the statement has effect as if it were a notice of assessment signed by the Commissioner and given to the employer on the day on which the assessment is taken to have been made.
In subsection (1), superannuation guarantee statement includes a statement under section 34 that indicates that an employer has a superannuation guarantee shortfall for a quarter.
[ CCH Note: S 35 will be repealed by No 57 of 2025, s 3 and Sch 1 item 14, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
If:
(a) an employer has not lodged a superannuation guarantee statement for a quarter; and
(b) the Commissioner is of the opinion that the employer is liable to pay superannuation guarantee charge for the quarter;
the Commissioner may make an assessment of the employer's superannuation guarantee shortfall for the quarter and of the superannuation guarantee charge payable on the shortfall.
36(2)
For the purposes of making an assessment under subsection (1), the superannuation guarantee shortfall is taken to be the amount that in the Commissioner's opinion might reasonably be expected to be the shortfall.
36(3)
Superannuation guarantee charge in relation to an assessment made under subsection (1) is payable on the day on which the assessment is made.
[
CCH Note:
S 36 will be substituted by No 57 of 2025, s 3 and Sch 1 item 15, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 36 will read:
the employer's individual notional earnings component (if any) for the employee and the QE day is worked out as if the receipt day for the contribution were the seventh business day after the payment day. This subsection can change the day the contribution is applied for working out the employer's individual final superannuation guarantee shortfall on a particular day as part of calculating the individual notional earnings component in section 19A. Any such change does not apply for the purposes of paragraph 16B(2)(a) or any other provision of this Act.
SECTION 36 ASSESSMENTS OF SUPERANNUATION GUARANTEE CHARGE
Making assessments
36(1)
The Commissioner may at any time make an assessment of the amount of:
(a)
an employer's superannuation guarantee shortfall for a specified QE day; and
(b)
the superannuation guarantee charge payable on the shortfall.
36(2)
The Commissioner may make such an assessment:
(a)
based on information in a voluntary disclosure statement lodged by the employer for the QE day; or
(b)
on the Commissioner's own initiative.
When a deeming rule applies for working out any individual notional earnings component in an assessment
36(3)
For an assessment based on information in a voluntary disclosure statement lodged by the employer for the QE day that:
(a)
includes a payment day for an eligible contribution that:
(i)
is covered by paragraph 18A(1)(a), (b) or (c); and
(ii)
was applied under subsection 18D(2) for the employer, an employee and the QE day; but
(b)
does not include a receipt day for the contribution;
Note:
When charge relating to an assessment is payable
36(4)
Superannuation guarantee charge in relation to such an assessment is payable on the day that the assessment is made.
]
[ CCH Note: The sections listed in the first column provide that s 37 does not prevent the amendment of an assessment made before the commencement of such sections for the purpose of giving effect to the respective Acts or parts of Acts listed in the last column.
| Section | Commencement
Date |
Act |
| S 4 of No
51 of 2002 |
29 June 2002 | No 51 of 2002] |
The Commissioner may, subject to this section, at any time amend any assessment by making any alterations or additions that the Commissioner thinks necessary, whether or not superannuation guarantee charge has been paid in relation to the assessment.
37(2) [Amendment for avoidance of charge]Subject to this section, if there has been an avoidance of superannuation guarantee charge, the Commissioner may:
(a) if the Commissioner is of the opinion that the avoidance of the charge is due to fraud or evasion - at any time; or
(b) in any other case - within 4 years from the day on which the assessment is made;
amend the assessment by making any alterations or additions that the Commissioner thinks necessary to correct the assessment.
37(3) [Amendment to reduce liability]An amendment effecting a reduction in an employer's liability under an assessment is not effective unless it is made within 4 years from the day on which the assessment was made.
37(4) [Further amendment of assessment]If an assessment has, under this section, been amended in any particular, the Commissioner may, within 4 years from the day on which superannuation guarantee charge became payable under the amended assessment, make, in or in relation to the particular, any further amendment in the assessment that, in the Commissioner's opinion, is necessary to effect such reduction in the employer's liability under the assessment as is just.
37(5) [Amendment on application of employer](a) an employer applies for an amendment of the employer's assessment within 4 years from the day that superannuation guarantee charge became payable under the assessment; and
(b) within that period, the employer lodges all information the Commissioner needs to decide the application;
the Commissioner may amend the assessment when considering the application, even if that period has elapsed.
37(6) [Amendment to give effect to decision on review or appeal]Nothing in this section prevents the amendment of an assessment to give effect to:
(a) the decision on any review or appeal; or
(b) its amendment by reduction of any particular following the employer's objection or pending any review or appeal. 37(7) [When amended assessment payable]
Superannuation guarantee charge under an amended assessment is taken to have become payable on the day on which charge under the original assessment became payable.
SECTION 38 REFUND OF OVERPAID AMOUNTS 38(1) [Where liability reduced]If, because an assessment is amended, a person's liability to superannuation guarantee charge is reduced:
(a) the amount by which the charge is reduced is taken, for the purposes of section 49, never to have been payable; and
(b) the Commissioner must:
(i) refund any overpaid amount; or
38(2) ["overpaid amount"]
(ii) apply any overpaid amount against the person's liability (if any) to the Commonwealth and refund any part of the amount that is not so applied.
In subsection (1):
overpaid amount
includes any overpaid amount of additional superannuation guarantee charge under section 49 or Part 7 of this Act or administrative penalty under Part 4-25 in Schedule 1 to the Taxation Administration Act 1953.
[ CCH Note: S 38(2) will be substituted by No 57 of 2025, s 3 and Sch 1 item 53, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 38(2) will read:
]
38(2)
In this section:overpaid amount
includes each of the following:
(a) any overpaid amount of superannuation guarantee charge in the form of general interest charge that became payable under section 49;
(b) if the reduction in the liability results in an amended penalty assessment of an administrative penalty - any overpayment of the administrative penalty;
(c) any overpayment of administrative penalty under Part 4-25 in Schedule 1 to the Taxation Administration Act 1953 relating to the reduction in the liability.
Except as otherwise expressly provided by this Act, an amended assessment is taken to be an assessment for all the purposes of this Act. SECTION 40 40 NOTICE OF ASSESSMENT OR AMENDMENT
As soon as practicable after an assessment is made under section 36 or is amended under section 37, the Commissioner must give written notice of the assessment or amendment (as the case may be) to the person liable to pay the superannuation guarantee charge. SECTION 41 41 VALIDITY OF ASSESSMENT
The validity of an assessment is not affected because any provision of this Act has not been complied with. SECTION 42 42 OBJECTIONS AGAINST ASSESSMENT
An employer who is dissatisfied with an assessment may object in the manner set out in Part IVC of the Taxation Administration Act 1953. PART 5 - ADMINISTRATION SECTION 43 43 GENERAL ADMINISTRATION OF ACT
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
After the end of each year, the Commissioner must give the Treasurer a report on the working of this Act during the year for presentation to the Parliament. 45 (Repealed) SECTION 45 SECRECY
(Repealed by No 145 of 2010)
(Repealed by No 145 of 2010)
Superannuation guarantee charge for a quarter is payable: (a) if, on or before the lodgment day for the quarter, the employer lodges a superannuation guarantee statement or a statement under section 34 indicating a superannuation guarantee shortfall for that quarter - on the lodgment day; or (b) if, after the lodgment day, the employer lodges a superannuation guarantee statement or a statement under section 34 indicating a superannuation guarantee shortfall for that quarter - on the day on which the statement is lodged.
Note 1:
If a default assessment is made for a quarter then the superannuation guarantee charge is payable on the day on which the assessment is made: see section 36.
Note 2:
For provisions about collection and recovery of superannuation guarantee charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
46(2)
In this section:
lodgment day
for a quarter means:
(a) for a quarter beginning on 1 January - 28 May in the next quarter; and
(b) for a quarter beginning on 1 April - 28 August in the next quarter; and
(c) for a quarter beginning on 1 July - 28 November in the next quarter; and
(d) for a quarter beginning on 1 October - 28 February in the next quarter.
[ CCH Note: S 46 will be repealed by No 57 of 2025, s 3 and Sch 1 item 54, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Additional superannuation guarantee charge under Part 7 becomes payable on the day specified for the purpose in the notice of assessment of the additional charge.
Note:
For provisions about collection and recovery of additional superannuation guarantee charge, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
[ CCH Note: S 47 will be repealed by No 57 of 2025, s 3 and Sch 1 item 54, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
(Repealed by No 179 of 1999)
If any of the superannuation guarantee charge which an employer is liable to pay remains unpaid after the time by which it is due to be paid, the employer is liable to pay the general interest charge on the unpaid amount (the original unpaid amount ).
Note 1:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
Note 2:
Subsections (2) and (3A) deal with reducing the original unpaid amount.
[ CCH Note: S 49(1) will be amended by No 57 of 2025, s 3 and Sch 1 items 55 and 56, by substituting "Note" for "Note 1" in note 1 and repealing note 2, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
49(2)
However, the original unpaid amount must be reduced by those amounts in respect of: (a) the employer's administration component for the quarter; and (b) the employer's nominal interest component for the quarter.
[ CCH Note: S 49(2) will be repealed by No 57 of 2025, s 3 and Sch 1 item 57, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
49(3)
The employer is liable to pay the general interest charge for each day in the period that: (a) started at the beginning of the day by which the superannuation guarantee charge was due to be paid; and (b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the superannuation guarantee charge;
(ii) general interest charge on any of the superannuation guarantee charge.
49(3A)
To avoid doubt, for the purposes of this section and subsection 8AAC(3) of the Taxation Administration Act 1953, an election under section 23A in relation to the superannuation guarantee has effect from the time the employer's original assessment for the quarter is made.
[ CCH Note: S 49(3A) will be repealed by No 57 of 2025, s 3 and Sch 1 item 57, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
49(4)
The amount of the general interest charge is taken to be additional superannuation guarantee charge payable under this section.
[ CCH Note: S 49(4) will be amended by No 57 of 2025, s 3 and Sch 1 item 58, by omitting " additional ", effective 1 July 2026. For application and transitional provisions, see note under s 16.]
49(5)
In this section:
superannuation guarantee charge
includes additional superannuation guarantee charge under Part 7.
[ CCH Note: S 49(5) will be repealed by No 57 of 2025, s 3 and Sch 1 item 59, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
The Commissioner must apply payments of superannuation guarantee charge, or related penalty charge, for a quarter that are made by or on behalf an employer, so that the employer's liability to pay the nominal interest component for the quarter is discharged before all other amounts.
[ CCH Note: S 50 will be repealed by No 57 of 2025, s 3 and Sch 1 item 60, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
(Repealed by No 179 of 1999) 52 (Repealed) SECTION 52 LIQUIDATION
(Repealed by No 132 of 2007)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
The person who is, from time to time, the public officer of a company for the purposes of section 252 of the Income Tax Assessment Act 1936 is the public officer of the company for the purposes of this Act, and the public officer's address for service under that Act is the public officer's address for service under this Act.
57(2) [Service of notices and documents]Service of a notice or other document at the public officer's address for service, or on the public officer, is sufficient service on the company for the purposes of this Act, but, if at any time there is no public officer of the company, service on a person acting or appearing to act in the business of the company is sufficient.
Note:
See section 57A for alternative ways to give a notice to, or serve another document on, a company (through its officers, attorneys or agents).
The public officer is answerable for doing all acts required to be done by the company under this Act, and in case of default is liable to the same penalties.
57(4) [Acts by public officer deemed acts by company]Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the company.
57(5) [Situation where no public officer]If, at any time, there is no public officer of the company, this Act applies in relation to the company as if there were no requirement to appoint a public officer of the company.
57(6) [Company and public officer jointly liable]A proceeding under this Act brought against the public officer is taken to have been brought against the company, and the company is liable jointly with the public officer for any penalty imposed on the public officer.
57(7)(Repealed by No 180 of 2012)
SECTION 57A 57A NOTIFYING AND SERVING COMPANIES
For the purposes of this Act, if the Commissioner thinks fit, a notice or process may be given to, or served on, a company by giving the notice to, or serving the process on:
(a) a director, the secretary or another officer of the company; or
(b) an attorney or agent of the company.
Note:
See subsection 57(2) for alternative ways to serve a notice or another document on a company (through its public officer or someone else acting or appearing to act for the company).
The person who is, from time to time, the public officer of a trust estate for the purposes of section 252A of the Income Tax Assessment Act 1936 is the public officer of the trust estate for the purposes of this Act, and the public officer's address for service under that Act is the public officer's address for service under this Act.
58(2) [Service of notices and documents]Service of a notice or other document at the public officer's address for service, or on the public officer, is sufficient service on the trustee of the trust estate for the purposes of this Act, but, if at any time there is no public officer of the trust estate, service on a person acting or appearing to act in the business of the trust estate is sufficient.
58(3) [Obligation and liability of public officer]The public officer is answerable for doing all acts required to be done by the trustee of the trust estate under this Act, and in case of default is liable to the same penalties.
58(4) [Acts by public officer deemed acts by trustee]Everything done by the public officer that the public officer is required to do in that capacity is taken to have been done by the trustee of the trust estate.
58(5) [Situation where no public officer]If, at any time, there is no public officer of the trust estate, this Act applies in relation to the trustee of the trust estate as if there were no requirement to appoint a public officer of the trust estate.
58(6) [Trustee and public officer jointly liable]A proceeding under this Act brought against the public officer is taken to have been brought against the trustee of the trust estate, and the trustee is liable jointly with the public officer for any penalty imposed on the public officer.
58(7) [Liability of agent or attorney]Despite subsections (1) to (6) (inclusive) and without affecting any of the public officer's obligations and liabilities, a notice, process or proceeding that under this Act may be given to, served on or brought against the trustee or public officer of the trust estate may, if the Commissioner thinks fit, be given to, served on or brought against any agent or attorney of the trustee, and the agent or attorney has the same liability in relation to the notice, process or proceeding as the trustee or public officer would have had if it had been given to, served on or brought against the trustee or public officer.
PART 7 - ADDITIONAL SUPERANNUATION GUARANTEE CHARGE[ CCH Note: Pt 7 will be substituted by No 57 of 2025, s 3 and Sch 1 item 16, effective 1 July 2026. For application and transitional provisions, see note under s 16. Pt 7 will read:
]PART 7 - PENALTY FOR LATE OR NON-PAYMENT OF SUPERANNUATION GUARANTEE CHARGE
SECTION 59 SIMPLIFIED OUTLINE OF THIS PART
59
SECTION 59A NOTICE TO PAY UNPAID SUPERANNUATION GUARANTEE CHARGEThe Commissioner must issue an employer a notice to pay an amount of superannuation guarantee charge if the charge remains unpaid 28 days after the charge became payable.
The employer may become liable to an administrative penalty if the employer does not comply with the notice.
59A(1)
This section applies if superannuation guarantee charge payable by an employer is unpaid on the day (the current notice trigger day ) that is the day after the end of the 28-day period that started on the day (the imposition day ) the charge became payable.Note:
The superannuation guarantee charge could be:
(a) charge assessed and payable under section 36; or (b) charge in the form of general interest charge payable under section 49.
59A(2)
The Commissioner must, as soon as practicable after the current notice trigger day, give the employer a written notice (the current notice ) requiring the employer to pay a specified amount of superannuation guarantee charge if:
(a) at least some of the specified amount is the amount referred to in subsection (1); and
(b) the remainder (if any) of the specified amount is charge payable by the employer that is unpaid on the current notice trigger day; and
(c) the specified amount exceeds $30 or any higher amount prescribed by the regulations; and
(d) the employer has not been given an earlier notice under this subsection during the 50-day period ending on the day before the current notice trigger day; and
(e) no part of the specified amount has been included in any earlier notice under this subsection.Note 1:
As well as including the amount referred to in subsection (1), the amount specified in the current notice could also include:
(a) any (other) unpaid general interest charge that has accrued under section 49 since the employer was given the last notice under this subsection; and (b) any (other) unpaid charge that has been assessed under section 36 since the start of the 50-day period mentioned in paragraph (d). Note 2:
The employer remains liable to pay the amounts making up the specified amount. The notice does not create a separate liability to pay the specified amount. However, a failure to comply with the notice may result in an administrative penalty under section 59C.
59A(3)
The Commissioner must ensure that the current notice includes words to the effect that an administrative penalty will arise if the employer fails to pay the specified amount during the period (the current notice payment period ):
(a) starting on the day specified in the notice (which must be on or after the current notice trigger day); and
(b) ending on the 28th day after the day specified in the notice.
SECTION 59B CONSEQUENCES IF A LIABILITY TO PAY ALL OR PART OF THE SPECIFIED AMOUNT IS REDUCED OR CEASES TO EXIST
59B(1)
If:
(a) the current notice payment period has not expired; and
(b) a liability under this Act to pay any of the amounts making up the specified amount is reduced (but not to nil);treat the specified amount in the current notice as if it were reduced by the amount of the reduction referred to in paragraph (b).
59B(2)
If:
(a) the current notice payment period has not expired; and
(b) each liability under this Act to pay an amount making up the specified amount either:
(i) is reduced to nil; or
(ii) ceases to exist;treat the current notice as if it were revoked.
SECTION 59C PENALTY FOR FAILING TO PAY UNPAID SUPERANNUATION GUARANTEE CHARGE SPECIFIED IN THE NOTICE
59C(1)
The employer is liable to pay a penalty if the employer fails to pay the amount specified in the current notice during the current notice payment period.
59C(2)
The amount of the penalty is equal to a percentage of so much of the specified amount as remains unpaid at the end of the current notice payment period. The percentage is as follows:
Percentage used to work out the amount of the penalty Item If: the percentage is: 1 a determination is made under subsection 18C(4) covering the employer for any part of the period:
(a) starting on the imposition day (see subsection 59A(1)); and
(b) ending on the last day of the current notice payment period0%. 2 (a) item 1 does not apply; and
(b) the employer has become liable under subsection (1) for a penalty that is greater than nil for an earlier notice during the 24-month period ending on the day after the end of the current notice payment period50%. 3 neither item 1 nor 2 applies 25%. Note:
Determinations under subsection 18C(4) cover employers affected by exceptional circumstances. The determination may cover an employer for a period starting before the determination is made.
SECTION 59D ASSESSMENT AND NOTIFICATION OF LIABILITY TO PAY THE PENALTY
59D(1)
The Commissioner must make an assessment (a penalty assessment ) of the amount of an administrative penalty payable under section 59C by the employer.
59D(2)
The Commissioner must give written notice to the employer of the penalty assessment, unless the penalty assessment is nil.
59D(3)
The penalty becomes due for payment on the day specified in the notice, which must be at least 14 days after the day the notice is given to the employer.Note 1:
For provisions about collection and recovery of the penalty, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
Note 2:
General interest charge does not accrue on any late payment of the penalty.
59D(4)
If the employer is dissatisfied with the penalty assessment, the employer may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
SECTION 59E AMENDING PENALTY ASSESSMENTS
59E(1)
The Commissioner must not remit all or a part of the penalty set out in a penalty assessment.
59E(2)
However, the Commissioner must amend a penalty assessment if:
(a) a liability under this Act to pay an amount relevant to the penalty assessment is reduced (including to nil) or ceases to exist; or
(b) the amount of the penalty set out in the penalty assessment is reduced to nil because of a determination made under subsection 18C(4).Note:
A determination under subsection 18C(4) may cover an employer for a period starting before the determination is made.
59E(3)
The amount of penalty payable under the amended penalty assessment is to be worked out in a manner consistent with subsection 59C(2).
If an employer other than a government body refuses or fails to provide, when and as required under this Act, a superannuation guarantee statement or information relevant to assessing the employer's liability to pay superannuation guarantee charge for a quarter, the employer is liable to pay, by way of penalty, additional superannuation guarantee charge equal to double the amount of superannuation guarantee charge payable by the employer for the quarter.
59(2)
An employer liable to pay superannuation guarantee charge for a quarter must: (a) keep a record in relation to the quarter containing details of the basis of calculation of the following amounts:
(i) (Repealed by No 51 of 2002)
(ii) the individual superannuation guarantee shortfalls of the employer for the quarter;
(iii) the employer's nominal interest component for the quarter;
that were specified in a superannuation guarantee statement under section 33 or a statement under section 34; or (b) produce to the Commissioner, when and as required by the Commissioner under this Act, a document containing details of the basis of calculation of the amounts referred to in paragraph (2)(a) that were specified in a superannuation guarantee statement under section 33 or a statement under section 34.
(iv) the employer's administration component for the quarter;
59(3)
If the amount of additional superannuation guarantee charge that would, but for this subsection, be payable under subsection (1) or (2) is less than $20, the additional superannuation guarantee charge payable is $20.
SECTION 60 AMNESTY FROM LIABILITY TO PAY ADDITIONAL SUPERANNUATION GUARANTEE CHARGE 60(1)
If: (a) under section 74, an employer qualifies for an amnesty in relation to part of the employer's superannuation guarantee shortfall for a quarter; and (b) any assessment made under section 62, before the employer qualified for the amnesty, of the additional superannuation guarantee charge payable by the employer for the quarter did not take into account the extent of the increase in the shortfall as a result of the disclosure of information that gave rise to the amnesty;
in working out under section 59 the employer's liability to pay additional superannuation guarantee charge, the amount of the superannuation guarantee charge payable by the employer for the quarter is reduced by the extent to which the employer qualifies for the amnesty for the quarter.
60(2)
Despite section 59, an employer's liability to pay additional superannuation guarantee charge under this Part for a quarter is nil if: (a) under section 74, the employer qualifies for an amnesty in relation to the whole of the employer's superannuation guarantee shortfall for the quarter; and (b) the Commissioner has not, before the employer qualified for the amnesty, made an assessment under section 62 of the additional superannuation guarantee charge payable by an employer under this Part for the quarter.
(Repealed by No 91 of 2000)
The Commissioner must make an assessment of the additional superannuation guarantee charge payable by an employer under this Part and must, as soon as practicable after the assessment is made, give written notice of the assessment to the employer.
62(2)
(Repealed by No 81 of 2016)
62(3)
The Commissioner may remit all or part of the additional superannuation guarantee charge payable by an employer under this Part, but, for the purposes of applying subsection 33(1) of the Acts Interpretation Act 1901 to the power of remission conferred by this subsection, nothing in this Act is taken to prevent the exercise of the power at a time before an assessment is made of the additional superannuation guarantee charge.
62(4)
If:
(a) an employer is liable under section 59 to additional superannuation guarantee charge for a quarter that started on or before 1 January 2018; and
(b) there is particular information that is relevant to the amount of the employer's superannuation guarantee shortfall for the quarter; and
(c) since the start of the amnesty period, either:
(i) the employer has not disclosed that information to the Commissioner; or
(ii) the employer has disclosed that information to the Commissioner, but only after the Commissioner informed the employer that the Commissioner was examining, or intended to examine, the employer's compliance with an obligation to pay the superannuation guarantee charge for the quarter; and
(d) by taking that information into account, the employer's superannuation guarantee shortfall for the quarter exceeds what it would be if that information were not taken into account;
to the extent that the additional superannuation guarantee charge relates to that excess, the Commissioner's power under subsection (3) of this section to remit the additional superannuation guarantee charge is limited to remitting no more than half of the charge.
62(5)
However, subsection (4) does not apply if the Commissioner is satisfied that there were exceptional circumstances that prevented the employer from:
(a) disclosing that information to the Commissioner; or
(b) disclosing that information to the Commissioner before the Commissioner informed the employer as mentioned in subparagraph (4)(c)(ii);
as the case requires.
SECTION 62A 62A OFFSETS TO BE DISREGARDED
In working out the amount of superannuation guarantee charge payable by an employer for a quarter for the purposes of this Part, disregard the amount of any offset under section 23A (about offsetting late payments against charge).
(Repealed by No 51 of 2002)
This Part applies to a charge payment in respect of one or more employees (the benefiting employee or benefiting employees ) that is made by or on behalf of an employer.
63A(1A)
This Part applies to a former employee as if the former employee were an employee of the person who was the former employee's employer.
63A(2)
In this section:
charge payment
means a payment of superannuation guarantee charge, or related penalty charge, for a quarter.
[ CCH Note: Definition of "charge payment" will be substituted by No 57 of 2025, s 3 and Sch 1 item 17, effective 1 July 2026. For application and transitional provisions, see note under s 16. The definition will read:
]charge payment
means a payment of superannuation guarantee charge that:
(a) was assessed in relation to a QE day; or
(b) was in the form of general interest charge payable under section 49 in relation to non-payment of superannuation guarantee charge assessed in relation to a QE day.
Estimates under the Taxation Administration Act 1953
63A(3)
For the purposes of this Part, an amount paid to the Commonwealth is treated as being a payment of superannuation guarantee charge: (a) in respect of an employee or employees; and (b) made by or on behalf of an employer;
to the extent that, as a result of the amount being paid to the Commonwealth, a liability of the employer to pay superannuation guarantee charge in respect of that employee or those employees is discharged under subsection 268-20(3), or section 269-40, in Schedule 1 to the Taxation Administration Act 1953.
Note:
Under Division 268 in that Schedule, the Commissioner may make an estimate of the unpaid and overdue amount of an employer's superannuation guarantee charge for a quarter.
[ CCH Note: S 63A(3) will be amended by No 57 of 2025, s 3 and Sch 1 item 18, by substituting "a QE day" for "a quarter" in the note, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
63A(4)
However, subsection (3) does not apply to the amount until the Commissioner knows which employee or employees the liability to pay the superannuation guarantee charge was in respect of.
If a payment to which this Part applies is made, the Commissioner is required to pay (or otherwise deal with) an amount, which is called the shortfall component, for the benefit of a benefiting employee under sections 65 to 67.
63B(2) [If only one benefiting employee]If there is only one benefiting employee, the shortfall component for the payment is worked out under section 64A.
63B(3) [If more than one benefiting employee]If there is more than one benefiting employee, there will be separate shortfall components for each of the employees for the payment, worked out under section 64B.
(Repealed by No 51 of 2002)
This section applies if there is only one benefiting employee.
64A(2)
The shortfall component for the payment is the lesser of the following amounts: (a) the amount of the payment; (b) the amount of the employee entitlement, calculated at the time when the payment is made (see subsection (3)).
64A(3)
The employee entitlement , calculated at a particular time, is the sum of the following amounts: (a) the individual superannuation guarantee shortfall for the employee for the quarter; (b) any general interest charge, in respect of non-payment of superannuation guarantee charge payable on that shortfall, that has been paid by, or is payable at, the particular time; (c) any nominal interest component for the quarter that has been paid by, or is payable at, the particular time;
reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the same quarter, employer and employee.
[ CCH Note: S 64A(3) will be substituted by No 57 of 2025, s 3 and Sch 1 item 19, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 64A(3) will read:
]
64A(3)
The employee entitlement , calculated at a particular time in relation to the assessment, is the sum of the following amounts:
(a) the employer's individual final superannuation guarantee shortfall for the employee and the QE day specified in the assessment;
(b) the employer's individual notional earnings component for the employee and the QE day;
(c) the employer's choice loading for the employee and the QE day;
(d) so much of any general interest charge as:
(i) relates to non-payment of superannuation guarantee charge payable in relation to the amounts in paragraphs (a), (b) and (c); and
(ii) has been paid by, or is payable at, the particular time;reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employee.
Note:
The employee's entitlement does not include so much of any general interest charge as relates to the employer's administrative uplift amount for the QE day (see subparagraph (d)(i)).
This section applies if there is more than one benefiting employee. In this situation, separate shortfall components are worked out for each of the benefiting employees.
64B(2)
The shortfall component for a payment, in respect of a particular employee, is the employee's proportion of the lesser of the following amounts: (a) the amount of the payment; (b) the amount of the total employee entitlement, calculated at the time when the payment is made.
64B(3)
Subject to subsection (3A), an employee's proportion of an amount is the following proportion:
| Employer's individual superannuation guarantee
shortfall for the employee for the quarter Total of the employer's individual superannuation guarantee shortfalls for the quarter |
[ CCH Note: S 64B(3) will be substituted by No 57 of 2025, s 3 and Sch 1 item 20, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 64B(3) will read:
64B(3)
Subject to subsection (3A), an employee's proportion of an amount is the following proportion:
Total of the employer's individual final superannuation guarantee shortfall, individual notional earnings component and choice loading for the employee and the QE day specified in the assessment Total of the employer's individual final superannuation guarantee shortfalls, individual notional earnings components and choice loadings for all employees and the QE day specified in the assessment]
64B(3A)
The Commissioner may vary an employee's proportion of an amount if the amount of the charge payment has been affected by: (a) the application of the monetary limit imposed by subsection 556(1A) of the Corporations Act 2001 in respect of the employee; or (b) the application of the monetary limit imposed by paragraph 109(1)(e) of the Bankruptcy Act 1966 in respect of the employee.
64B(4)
The total employee entitlement , calculated at a particular time, is the sum of the following amounts: (a) the employer's individual superannuation guarantee shortfalls for the quarter; (b) any general interest charge, in respect of non-payment of superannuation guarantee charge payable on those shortfalls, that has been paid by, or is payable at, the particular time; (c) any nominal interest component for the quarter that has been paid by, or is payable at, the particular time;
reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the same quarter, employer and employees.
[ CCH Note: S 64B(4) will be substituted by No 57 of 2025, s 3 and Sch 1 item 21, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 64B(4) will read:
]
64B(4)
The total employee entitlement , calculated at a particular time in relation to the assessment, is the sum of the following amounts:
(a) the total of the employer's individual final superannuation guarantee shortfalls for all employees and the QE day specified in the assessment;
(b) the total of the employer's individual notional earnings components for all employees and the QE day;
(c) the total of the employer's choice loadings for all employees and the QE day;
(d) so much of any general interest charge as:
(i) relates to non-payment of superannuation guarantee charge payable in relation to the totals in paragraphs (a), (b) and (c); and
(ii) has been paid by, or is payable at, the particular time;reduced (but not below zero) by the amounts of any previous payments to which this Part applies that relate to the QE day, employer and employees.
Note:
The employee's entitlement does not include so much of any general interest charge as relates to the employer's administrative uplift amount for the QE day (see subparagraph (d)(i)).
Except in a case covered by section 65AA, 65A, 66, 66A or 67, the Commissioner is required to deal with the amount of the shortfall component in one of the following ways:
(a) in any case - pay the amount of the component, for the benefit of the employee, to:
(i) an RSA; or
(ii) an account with a complying superannuation fund; or
that is held in the name of the employee and that is determined by the Commissioner to belong to the employee;
(iii) an account with a complying approved deposit fund;
(b) if the employee has nominated an RSA, a complying superannuation fund or a complying approved deposit fund in accordance with the regulations:
(i) pay the amount of the component to the RSA or fund for the benefit of the employee; or
(ii) make arrangements in accordance with the regulations to enable the amount of the component to be paid to the RSA or fund for the benefit of the employee;
(c) if the employee has not made a nomination under paragraph (b) - credit the amount of the component to an account kept under the Small Superannuation Accounts Act 1995 in the name of the employee.
65(2)
A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to a superannuation fund is conclusively presumed to be a payment to a complying superannuation fund for the purposes of subsection (1) if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:
(a) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and
(b) is not subject to a direction under section 63 of that Act.
65(3)
A payment of the amount of a shortfall component made or arranged by the Commissioner for the benefit of an employee to an approved deposit fund is conclusively presumed to be a payment to a complying approved deposit fund for the purposes of subsection (1) if subsection (4) applies.
65(4)
This subsection applies if, at the time the payment is made, the Commissioner has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund is operated in accordance with the Superannuation Industry (Supervision) Act 1993 and regulations under that Act.
65(5)
If an amount is to be credited under paragraph (1)(c), an amount equal to the credited amount is to be credited to the Superannuation Holding Accounts Special Account.
65(6)
A payment under paragraph (1)(a) to a particular account is taken to be a payment to the complying superannuation fund or the complying approved deposit fund with which the account is held, for the purposes of this section and any other laws of the Commonwealth that refer to payments under this section.
SECTION 65AA SHORTFALL COMPONENT AND FORMER TEMPORARY RESIDENT 65AA(1)
This section applies if the employee is a former temporary resident (within the meaning of the Superannuation (Unclaimed Money and Lost Members) Act 1999).
65AA(2)
The Commissioner must treat the amount of the shortfall component as if it had been paid to the Commissioner by a superannuation provider in respect of the employee under section 20F of that Act.
Except in a case covered by section 65AA, the Commissioner must pay the amount of the shortfall component directly to the employee (whether or not he or she is still an employee) if:
(a) the employee is 65 years or more; and
(b) the employee has requested the Commissioner in the approved form to pay the amount to him or her.
Except in a case covered by section 65AA, if:
(a) the employee has retired because of permanent incapacity or permanent invalidity; and
(b) the former employee has lodged with the Commissioner:
(i) written notice of the retirement; and
(ii) a copy of a certificate signed by 2 registered medical practitioners certifying that the former employee is unlikely to be able to work again in a capacity for which he or she is reasonably qualified by education, training or experience;
the Commissioner must pay the amount of the shortfall component to the former employee.
Except in a case covered by section 65AA, the Commissioner must pay the amount of the shortfall component to the employee (whether or not he or she is still an employee) if:
(a) a terminal medical condition (within the meaning of the Income Tax Assessment Act 1997) exists in relation to the employee; and
(b) the employee has requested the Commissioner in the approved form to pay the amount to him or her.
Except in a case covered by section 65AA, if the employee has died, the Commissioner must pay the amount of the shortfall component to the legal personal representative of the employee.
(Repealed by No 53 of 1995) SECTION 69 69 REPAYMENT OF OVERPAYMENTS IN RELATION TO A SHORTFALL COMPONENT
If an amount paid by the Commissioner under a provision of this Part (other than paragraph 65(1)(c)) exceeds the amount properly payable by the Commissioner under that provision, the party to whom the payment has been made is liable to repay to the Commonwealth the amount of the excess.
[
CCH Note:
S 69 will be substituted by No 57 of 2025, s 3 and Sch 1 item 61, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 69 will read:
The kinds of persons covered by paragraph (a) include a benefitting employee, a superannuation provider, or the trustee of a benefitting employee who has died or who is under any legal or other disability. To find out who can be the benefitting employee's
trustee
for paragraph (c), see section 6.
SECTION 69 REPAYMENT OF OVERPAYMENTS RELATING TO A SHORTFALL COMPONENT
69(1)
This section applies if the Commissioner pays an amount under a provision of this Part (other than paragraph 65(1)(c)) exceeding the amount properly payable under that provision.
69(2)
The Commissioner may recover all or part of the excess from a person (the
debtor
) described in subsection (3) as a debt due by the debtor to the Commonwealth if the conditions specified in subsection (4) are met.
69(3)
The persons from whom the Commissioner may recover are as follows:
(a)
the person to whom the payment was made;
(b)
if:
(i)
the person to whom the payment was made is a superannuation provider of a fund or RSA; and
the superannuation provider for the fund or RSA that currently holds the payment or any of those attributable amounts;
(ii)
there are one or more later transfers of the payment, or of amounts wholly or partly attributable to the payment, to one or more other funds or RSAs;
(c)
the benefitting employee for the payment (or the employee's trustee) if:
(i)
it is not possible to recover all or part of the excess from a person covered by paragraph (a) or (b); and
(ii)
the benefitting employee (or the employee's trustee) has received one or more benefits from a fund or RSA that are wholly or partly attributable to the payment.
Note 1:
Note 2:
69(4)
The conditions for recovery are that:
(a) the Commissioner gave the debtor a written notice of the proposed recovery that includes the amount to be recovered and an explanation of the operation of this section; and
(b) at least 28 days have passed since the notice was given; and
(c) the amount recovered is not more than the amount specified in the notice.
69(5)
Despite subsections (2) and (3):
(a) none of the excess can be recovered from a superannuation provider if none of the provider's funds or RSAs currently hold the payment or any amount wholly or partly attributable to the payment; and
(b) the total amount recovered from a benefitting employee (or the employee's trustee) because of paragraph (3)(c) must not exceed the total of the benefits received as described in that paragraph.
Note:
The limit in paragraph (b) does not apply if the benefitting employee (or the employee's trustee) is the person covered by paragraph (3)(a).
69(6)
The Commissioner may revoke a notice described in paragraph (4)(a).
69(7)
The total of the amounts recovered from different debtors in relation to the same excess must not be more than the excess.
69(8)
A notice described in paragraph (4)(a) is not a legislative instrument.
]
(a) an amount credited by the Commissioner under paragraph 65(1)(c) of this Act to an account kept under the Small Superannuation Accounts Act 1995 exceeds the amount that should have been credited to the account; and
(b) the balance of the account is attributable, inwhole or in part, to the credit. 69A(2) [Account to be debited]
The account is to be debited by the amount of the excess.
69A(3) [Special Account amount]An amount equal to the excess is to be debited from the Superannuation Holding Accounts Special Account.
The amount of any excess payment referred to in section 69 may be recovered by the Commonwealth as a debt due to the Commonwealth.
[ CCH Note: S 70 will be repealed by No 57 of 2025, s 3 and Sch 1 item 62, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
Amounts that the Commissioner is required to pay under this Part are payable out of the Consolidated Revenue Fund, which is appropriated accordingly. PART 9 - MISCELLANEOUS SECTION 72 TREATMENT OF PARTNERSHIPS 72(1) [Partnership a legal person]
Subject to this section, this Act applies as if a partnership were a legal person.
72(2) [Obligation on partnership]An obligation that, apart from this subsection, would be imposed by this Act on a partnership is instead imposed on each partner, but may be discharged by any of the partners.
72(3) [Liability to pay money]If, apart from this subsection, a liability to pay money would be imposed on a partnership by this Act, the liability is instead imposed on the partners jointly and severally.
72(4) [Offence committed]If, because of subsection (1), a partnership would be taken to have committed an offence, the offence is instead taken to have been committed by each of the partners.
72(5) [Defence]In a prosecution for an offence taken to have been committed by a person because of subsection (4), it is a defence that the person:
(a) did not aid, abet, counsel or procure the act or omission constituting the offence; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence. 72(6) [Reference to Pt III of Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.
SECTION 73 TREATMENT OF UNINCORPORATED ASSOCIATIONS 73(1) ["association"]In this section, association means an unincorporated association or body of persons (other than a partnership).
73(2) [Association a legal person]Subject to this section, this Act applies as if an association were a legal person.
73(3) [Obligation on association]An obligation that, apart from this subsection, would be imposed on an association is instead imposed on the officers of the association.
73(4) [Liability to pay money]If, apart from this subsection, a liability to pay money would be imposed on an association by this Act, the liability is instead imposed on the members of the association jointly and severally.
73(5) [Offence committed]If, because of subsection (2), an association would be taken to have committed an offence, the offence is instead taken to have been committed by each of the officers of the association.
73(6) [Defence]In a prosecution for an offence taken to have been committed by a person by virtue of subsection (5), it is a defence that the person:
(a) did not aid, abet, counsel or procure the act or omission constituting the offence; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission constituting the offence. 73(7) [Reference to Pt III of Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953, in so far as that Part relates to this Act.
SECTION 74 AMNESTY IN RELATION TO HISTORIC AMOUNTS OF SUPERANNUATION GUARANTEE SHORTFALLQualifying for the amnesty
74(1)
An employer qualifies for an amnesty for the employer's superannuation guarantee shortfall for a quarter if:
(a) during the period (the amnesty period ) provided by subsection (3), the employer discloses to the Commissioner, in the approved form, information that:
(i) relates to the amount of the employer's superannuation guarantee shortfall for the quarter; and
(ii) was not disclosed to the Commissioner before the amnesty period; and
(b) the amnesty period started after the end of the period of 28 days after the end of the quarter; and
(c) the Commissioner has not, at any time before the disclosure, informed the employer that the Commissioner is examining, or intends to examine, the employer's compliance with an obligation to pay the superannuation guarantee charge for the quarter.
74(2)
However, if the employer would have a superannuation guarantee shortfall for the quarter even if the information in the disclosure were not taken into account, the employer qualifies for an amnesty for the shortfall only to the extent of the increase in the shortfall as a result of taking the information into account.
74(3)
The amnesty period is the period that:
(a) started on 24 May 2018; and
(b) ends 6 months after the day the Treasury Laws Amendment (Recovering Unpaid Superannuation) Act 2020 receives the Royal Assent.
Ceasing to qualify for the amnesty
74(4)
The employer ceases to qualify, and is taken never to have qualified, for the amnesty for the employer's superannuation guarantee shortfall for the quarter if the Commissioner notifies the employer under subsection (5).
74(5)
The Commissioner may notify the employer in writing that the employer has ceased to qualify, and is taken never to have qualified, for that amnesty if:
(a) the employer:
(i) has not, on or before the day on which superannuation guarantee charge on the employer's superannuation guarantee shortfall for the quarter became payable, paid that superannuation guarantee charge; and
(ii) has not, at any time, entered into an arrangement with the Commissioner that includes the payment of that superannuation guarantee charge; or
(b) the employer has entered into such an arrangement, but has failed to comply with it.
74(6)
For the purposes of subparagraph (5)(a)(i), a payment under this Act of an amount equal to the amount of the superannuation guarantee charge mentioned in that subparagraph is taken to be a payment of that charge whether or not the Commissioner applies the payment to satisfy the employer's liability to pay that charge.
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 9 of 2007)
(Repealed by No 9 of 2007)
An employer must keep records that record and explain all transactions and other acts engaged in by the employer, or required to be engaged in by the employer, under this Act.
Note:
There is an administrative penalty if you do not keep or retain records as required by this section: see section 288-25 in Schedule 1 to the Taxation Administration Act 1953.
79(2)
The records must include any documents relevant to ascertaining the individual superannuation guarantee shortfalls of the employer for a quarter.
[ CCH Note: S 79(2) will be substituted by No 57 of 2025, s 3 and Sch 1 item 63, effective 1 July 2026. For application and transitional provisions, see note under s 16. S 79(2) will read:
]
79(2)
The records must include any documents relevant to working out:
(a) whether the employer has a superannuation guarantee shortfall for a QE day; and
(b) the amount of such a shortfall.
79(3)
The records must be kept: (a) in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and (b) so that the employer's liability under this Act can be readily ascertained.
79(4)
An employer who has possession of any records kept or obtained under or for the purposes of this Act must retain them until the end of 5 years after those records were prepared or obtained, or the completion of the transactions or acts to which those records relate, whichever is later.
79(5)
Nothing in this section requires an employer to retain records if: (a) the Commissioner has notified the employer that the retention of the records is not required; or (b) the employer is a company that has gone into liquidation and been finally dissolved.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (5), see subsection 13.3(3) of the Criminal Code.
79(6)
An employer who contravenes this section commits an offence punishable on conviction by a fine not exceeding 30 penalty units.
Note:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
79(6A)
Subsection (6) does not apply to the extent that the person has a reasonable excuse.
Note:
A defendant bears an evidential burden in relation to the matters in subsection (6A), see subsection 13.3(3) of the Criminal Code.
79(7)
An offence under this section is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
SECTION 79A APPROVED CLEARING HOUSE 79A(1)
This section applies if: (a) an employer pays an amount to an approved clearinghouse for the benefit of an employee; and (b) as a result, the approved clearing house makes a contribution to an RSA, a superannuation fund or a superannuation scheme for the benefit of the employee.
79A(2)
To avoid doubt, the approved clearing house makes the contribution to the RSA, superannuation fund or superannuation scheme on behalf of the employer, as the employer's agent.
79A(3)
Approved clearing house means a body specified in the regulations for the purposes of this subsection.
[ CCH Note: S 79A will be repealed by No 57 of 2025, s 3 and Sch 1 item 64, effective 1 July 2026. For application and transitional provisions, see note under s 16.]
The Governor-General may make regulations prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.