By Libby Pallot (Principal), Abbey Burns (Senior Associate) and Caitlin Walsh (Senior Associate) of Russell Kennedy Lawyers.
Superannuation contributions are calculated on an employee’s ‘ordinary time earnings’ (OTE). The ATO has recently confirmed that OTE may include annual leave loading.
Generally, OTE is what you pay your employees for their ordinary hours of work. Payments for overtime are not included in OTE, as they are not payments for the employee’s ordinary hours of work.
Many employees are entitled to an annual leave loading payment when they take annual leave. This entitlement may come from an award, enterprise agreement, employment agreement or workplace policy.
Historically, this payment was introduced to compensate employees for the lost opportunity to earn penalty rates and allowances, including overtime. For this reason, many employers have understandably proceeded on the basis that annual leave loading is a payment to compensate an employee when they are not able to work overtime, and therefore does not attract superannuation. However, this is not always the case, particularly where annual leave loading has become a standard entitlement, whether an employee usually works overtime or not.
The ATO’s position
The Australian Tax Office recognised this confusion amongst employers, and recently published a statement reminding employers of the ATO’s position on the issue. The statement sets out the ATO’s view, that annual leave loading is OTE for the purposes of calculating superannuation entitlements, unless an award, enterprise agreement, policy or employment agreement explicitly provides that the loading is paid in compensation for the loss of the ability to work overtime.
Moving forward, where an employer does not include leave loading in OTE calculations, the ATO will expect them to have sufficient written evidence to support their position.
What next for employers?
Employers should take this opportunity to promptly review their practices, and ensure they are compliant.
This article was originally published on the Russell Kennedy Lawyers website and has been reproduced with permission.