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Edited version of administratively binding advice
Authorisation Number: 1012438510024
Advice
Subject: Administrative Binding Advice - Superannuation Guarantee
Question
Is an amount of portable long service leave, paid by a long service leave fund (the LSL Fund) , to an employee of the employer excluded from the calculation of ordinary time earnings by the employer under the Superannuation Guarantee (Administration) Act 1992 (SGAA)?
Answer:
Yes, an amount of portable long service leave, paid by the LSL Fund, to an employee of the employer is excluded from the calculation of ordinary time earnings under the SGAA by the employer.
Relevant facts
This advice is based on the facts stated in the description of the scheme that is set out below. If your circumstances are significantly different from these facts, this advice has no effect and you cannot rely on it. The fact sheet has more information about relying on Tax Office advice.
· The employer pays a levy of the employee's wage into the LSL Fund.
· When an employee is eligible for an entitlement, they apply to the LSL Fund for payment of the entitlement.
· The LSL Fund does not pay superannuation guarantee.
Assumptions
No assumptions made.
Relevant legislative provisions
Superannuation Guarantee (Administration) Act 1992 Section 11
Superannuation Guarantee (Administration) Act 1992 Section 12
Explanation
Payment not salary and wages
The employer does not have an obligation under the SGAA for an employee being paid portable long service leave by the LSL Fund as the payment does not meet the definition of salary and wages, and therefore would not be considered ordinary time earnings.
The Macquarie Dictionary explains the ordinary meaning of salary and wages as:-
Definition of salary - a fixed periodical payment, usually monthly, paid to a person for regular work or services, especially work other than that of a manual, mechanical, or menial kind.
Definition of wages -
1. that which is paid for work or services, as by the day or week; hire; pay.
Section 11 of the SGAA provides an expanded definition of salary and wages for superannuation guarantee purposes by including the following payments:-
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).
By comparing the requirements above it appears the LSL Fund payment does not meet any of the definitions above of salary and wages. Therefore, it cannot be said that the payment is a reward for the services of the employee to the employer.
As explained in paragraph 7 of the Superannuation Guarantee Ruling (SGR) 2009/2:-
An amount can only be part of an employee's OTE if it is 'salary or wages' of the employee. But an employee's salary or wages may include amounts that are not OTE.
Payment from the LSL Fund would be excluded from salary or wages for SGAA purposes. Therefore the payment is not ordinary time earnings.
Claimant not an employee of the LSL Fund and payment not made on behalf of the employer
An obligation under the SGAA will only arise where an employer/employee relationship exists. Section 12 of the SGAA defines the term employee for the purposes of the SGAA. The definition includes those individuals who are common law employees and extends to those individuals who are or may not be common law employees, (for example, contractors employed under a contract wholly or principally for their labour).
The role of the LSL Fund is to provide a particular service for the employees working within certain industries, which is the collection and disbursement of long service leave entitlements.
An employee receiving the portable long service leave payment would not perform any work or provide services or labour to the LSL Fund and the LSL Fund is not making this payment on behalf of the employer.
Despite the fact that the employee will return to work for the employer after the period of leave there is no direct connection between the payment of the portable long service leave and the employee's ordinary time earnings with the employer.
Portable long service leave is accrued and earned over a period of time without reference to a specific employer; with the exception that each employer must be a contributing employer under the long service leave scheme.
Therefore, this payment would be excluded from the calculation of ordinary time earnings under the SGAA.