The superannuation component of a taxpayer's salary was nearly twice the amount the employer was statutorily required to contribute: the taxpayer was, according to the Court, effectively 'salary sacrificing' to make additional superannuation contributions. Consequently, the Court held that if the taxpayer had worked his full 6 months' notice period (as originally requested), then he would have received 6 months' base salary and 6 months' superannuation component. Therefore when the employer paid the taxpayer in lieu of notice, it had to pay the superannuation contribution as well as the salary.
Employers must make quarterly contributions to employees' superannuation funds equal to 9% of each employees' wage.3
The question in Willis was whether the employer was liable to pay the 9% contribution in respect of a termination payment made to an employee in lieu of the contractual period for notice.
On 13 April 2005, the taxpayer was summarily dismissed by his employer and his employment was terminated. Under the employment contract, the employer was required to give the taxpayer either 6 months' termination notice or payment in lieu of all or part of that period.
Initially, the employer asked the taxpayer to continue his employment throughout the 6 month notice period. But soon afterwards the employer decided to pay the taxpayer in lieu of notice. The employer then:
The taxpayer sued the employer and claimed that:
The District Court of New South Wales rejected the taxpayer's claims and found in the employer's favour.
The taxpayer appealed to the New South Wales Court of Appeal.
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The Court of Appeal rejected the taxpayer's claim with regard to the redundancy issue.
The Court heard the following submissions on the superannuation issue:
The employer's submission did not directly respond to the legal issue — namely what types of payments to an individual require a corresponding super guarantee payment to the individual's super fund.
The Court held in the taxpayer's favour.
The Court noted that the taxpayer had accepted a remuneration package which consisted of a base salary of $208,980 and a superannuation component of $18,808.20. The superannuation component constituted 9% of the base salary. However, employers in the relevant income year were only required to pay superannuation contributions on wages up to $134,880. The superannuation component was therefore nearly twice the amount the employer was statutorily required to contribute under the Act. As such, the taxpayer had effectively 'salary sacrificed' by accepting a higher superannuation contribution and a lower base salary.
Importantly, in the Court's view, had the taxpayer worked out the full 6 months' notice period, as originally requested, he would have received 6 months' base salary and 6 months' superannuation component.
In response to the employer's submissions, the Court stated that:
The Court concluded that the taxpayer was entitled to an order that the employer pay $9,404.10 (9% of 6 months' base salary), together with interest, to the taxpayer's super fund.
After the reasons for judgment had been written but before it was handed down, the employer informed the Court that it would, within 48 hours, pay $9,404.10 to the taxpayer's superannuation account (together with interest up to the date of payment).
The Court noted that this amounted to the employer conceding that the taxpayer had always been entitled to the superannuation contribution.
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Julian Smith is a partner in the Maddocks Commercial team.
Julian advises extensively in the following areas:
Julian advises clients ranging from public companies servicing the wholesale financial services market to high net worth individuals and their advisers.
Julian has been with Maddocks since undertaking articles in 2001.
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