Arts Law Information Sheet

Superannuation and contract for services

This information sheet provides a summary of, and guide to, the superannuation guarantee charge, including the different aspects of superannuation and the responsibilities of employers, employees and self employed workers.

In this information sheet:

  1. What is the superannuation guarantee charge (SGC)?
  2. Choice of superannuation fund – employee eligibility
  3. Employer compliance with the law
  4. Other important SGC concepts
  5. Distinction between employees and people who are self employed
  6. People for whom employers do not have to make superannuation contributions
  7. Meaning of salary, wages and ordinary time earnings
  8. Further information

What is the superannuation guarantee charge (SGC)? 

The SGC is a quarterly levy or charge imposed by the federal government which is payable by employers if they fail to provide the prescribed level of superannuation support for their employees. The operative provisions of the SGC are contained in the Superannuation Guarantee (Administration) Act 1992 (Cth) (the Act).

Superannuation contributions 

From 1 July 2014, the employer’s superannuation contribution rate increased from 9.25% to a minimum contribution of 9.5% of the employee’s earning base (generally ordinary time earnings) and the rate will remain at 9.5% until 30 June 2021, and will increase to 12% by 1 July 2025.

If insufficient contributions are made, the SGC (plus interest, administration fees and penalties) applies in respect of the "shortfall".

It is important to check the superannuation conditions of any relevant collective employment agreements as they may provide for employer’s superannuation contributions at rates above the minimum contribution. For example the performers’ collective agreements negotiated by the Media, Entertainment & Arts Alliance (MEAA) provide for employer’s superannuation contributions of 10% of the total fee.

Employee contributions 

Contributions made directly by employees to their own personal superannuation funds do not count in determining whether or not the employer has contributed the SGC.

Is there an upper age limit for employer contributions 

From 1 July 2013, there is no upper age limit for making super guarantee contributions for an employee. This means you may need to make super guarantee payments for eligible employees, however old they are.

Award funds 

Where an employer is making superannuation contributions on behalf of employees who are employed under awards, they should already be contributing to the Award Fund (eg. JEST for entertainers). Where the award contributions equal or exceed the SGC requirement there will generally be no further contributions required.

Choice of superannuation fund – employee eligibility 

The Choice of superannuation fund law confers on certain employees the right to choose the superannuation fund that will receive their employer’s SGC, except in the following circumstances:

  1. Superannuation is paid under a state award or industrial agreement.
  2. Superannuation is paid under a certified agreement or an Australian Workplace Agreement, which specifies the fund or funds into which payments must be made.
  3. Employees are public servants and individuals who work for government agencies excluded from choice by law or special regulations.
  4. Employees are members of a ‘defined benefit fund’ that meets certain conditions.

If any of the above circumstances apply, the applicable State laws, the relevant agreement, employer or fund manager must be consulted as some awards, enterprise agreements and other registered agreements may provide for extra terms about superannuation. Further information to help determine eligibility may be obtained from the FairWork Ombudsman (information on Tax & superannuation including wages and conditions of employment for work covered by federal awards and agreements in Australia) and the Australian Securities and Investments Commission (ASIC) (information on the: Choice of superannuation).

Employer compliance with the law 

The Superannuation Legislation Amendment (Choice of Superannuation Funds) Act 2004 (Cth) sets out the ‘SuperChoice obligations’. The three obligations of an employer are to:

  1. identify if your new employees are eligible to make a choice of fund;
  2. provide a Standard Choice Form to eligible new employees within 28 days of their starting date; and
  3. act on your employee's choice of superannuation fund.

The Australian Taxation Office (ATO) publishes the Standard Choice Form. An employee may request a Standard Choice Form in writing but an employer is not obliged to comply with such a request within 28 days if a form has already been provided in the previous 12 months. Employees can make any number of requests to choose a new superannuation fund but an employer is only obliged to act on one choice every 12 months. An employer is also obliged to provide a Standard Choice Form to an employee if they are unable to contribute to the employees existing fund where it has become non-complying (see below).

An employer must keep appropriate records to show compliance with their SuperChoice obligations.

Employer funds 

If an employee does not exercise their right to choose a superannuation fund, their SGC must be paid into a fund nominated by their employer. This employer fund must be a complying fund (discussed below). The employer fund may be changed but all employees must then be provided with a Standard Choice Form within 28 days of the change. More information can be obtained from the ATO website

What is a complying fund? 

A complying fund is one which operates in accordance with the law. It must also offer a minimum amount of life insurance for members. Most banks and insurance companies have developed relatively low cost funds specifically to meet the SGC requirements, as have a number of industry and trade union organisations. You can check whether a fund is a complying fund by phoning the trustee or authorised representative of the superannuation fund to ensure that it is complying. You can also search the Super Fund Lookup database which includes funds regulated by the Australian Taxation Office (ATO) and the Australian Prudential Regulation Authority (APRA). Employers can utilise Super Fund Lookup database to determine whether employer contributions qualify as superannuation guarantee payments.

Some super funds are regulated by the Australian Prudential Regulation Authority (APRA), and also have reporting and administrative obligations to the ATO and their members. APRA supervises regulated superannuation funds, other than Self-Managed Superannuation funds (which are supervised by the Australian Taxation Office), Approved Deposit Funds and Pooled Superannuation Trusts, all of which are regulated under the Superannuation Industry (Supervision) Act 1993 (Cth).

The ATO publishes information on Self-Managed Superannuation funds, which can accept mandated employer contributions, such as payment of the SGC from an employer.

Other important SGC concepts 

To understand the requirements for compliance with the SGC it is necessary to understand the definitions of employer, employee, ordinary time earnings and salary or wages under the laws governing superannuation.

Distinction between employees and people who are self employed 

The definition of employer is very broad: in practical terms there are no employers who are exempt from the obligation to contribute. An employer is somebody who employs persons under an employment contract (oral or written) on a full-time, part-time or casual basis. A person may be an employer if they have some control over their employees; are responsible for the payment of wages or salary; or have the power to dismiss or hire employees. This may include someone who makes payments under a contract that is wholly or principally for labour. A contract is wholly or principally for labour if the value of the labour component of the contract is more than 50% of the value of the whole of the contract.

Employee has a corresponding meaning. An employee is an individual who receives payment in the form of salary or wages in return for labour or service (as defined by the common law) but also includes someone who is paid for work under a contract which is wholly or principally (that is, more than 50%) for labour. Labour includes mental and artistic effort.

Agency arrangements may be covered, depending on whether an employer/employee relationship exists, whether the contract is wholly or principally for labour, and who the contracting parties are.

The following people could all be considered employees for the purposes of the superannuation legislation depending on their relationship with the person to whom they provide their services:

  1. people who receive payment for performing, presenting, participating or providing services in connection with any music, play, dance, entertainment, sport, display or promotional activity, or any similar activity involving the exercise of intellectual, artistic, musical or other creative talents.
  2. people who receive payment to perform or provide services in connection with the making of any film, tape or disk or of any television or radio broadcast.

People that do work under contract but who are not employees are generally considered self-employed and called independent contractors.

To determine whether a person is "self employed" or is an "employee" for SGC purposes there are two key questions:

  1. Under whose "control" is the person working? Who has the right to control how, when, where and who is to perform the work? Does the worker have discretion to accept or reject work?
  2. Is the person "integrated" with the business of the employer? Does the provider of the labour or service do so as a truly independent contractor carrying on their own business (as a contract for services: not an employee) or individually as an integral part of another business organisation (as a contract of service: an employee)? Is the worker presented to the public as part of the business of the hiring organisation? For whose benefit is the work performed?

For example, if the person you have contracted with is free to hire other people to perform the work, even if the person ends up performing the work themselves, or if the person is being paid for the result rather than their labour then they are likely to be an independent contractor rather than an employee.

The Australian Taxation Office provides a guide to ‘Working out if you have to pay super’, as well as an Employee/contractor decision tool to work out if you must make super contributions for your workers.

People for whom employers do not have to make superannuation contributions 

There is a limited range of employees for whom employers do not have to contribute to a regulated fund, the most common of which are employees who:

  1. earn less than $450 gross per month;
  2. are under the age of 18 and work for not more than 30 hours in a week;
  3. perform work of a domestic or private nature for not more than 30 hours a week for a non-business employer; or
  4. who are not resident in Australia and whose work is done outside Australia.

Do self employed people have to contribute? 

Generally (although there are qualifications) self employed people are not required to contribute on their own behalf, but will of course be liable for contributions on behalf of any employees they have. Directors of companies will usually be regarded as employees of the company, and the company will be liable to make contributions.

Meaning of salary, wages and ordinary time earnings 

Under the SGC salary or wages have their ordinary meanings, and include payment to a person for work or services by the day, week or month; allowances (but excluding expense reimbursements and allowances and other payments which are fringe benefits); bonuses, commissions and ex gratia payments; overtime and penalty rates; annual leave, long service leave, sick leave and leave loading. Ordinary time earnings means earnings for ordinary hours of work and could include overtime, shift loading or commission.

Further information 

The Australian Government website publishes information on how super works, choosing a super fund or how to find lost super.

The Australian Taxation Office (ATO) provides a guide to ‘Working out if you have to pay super’, as well as an Employee/contractor decision tool to work out if you must make super contributions for your workers.

The Australian Securities and Investments Commission (ASIC) information on the: Choice of superannuation. The ASIC also provides information on superannuation at the MoneySmart website.

The Australian Prudential Regulation Authority (APRA) information on: Superannuation.

Need more help?

If you have questions about any of the topics discussed above please contact Arts Law.

Disclaimer

The information in this information sheet is general. It does not constitute, and should be not relied on as, legal advice. The Arts Law Centre of Australia (Arts Law) recommends seeking advice from a qualified lawyer on the legal issues affecting you before acting on any legal matter.

While Arts Law tries to ensure that the content of this information sheet is accurate, adequate or complete, it does not represent or warrant its accuracy, adequacy or completeness. Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages arising from or in relation to the use of this information sheet.

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The Arts Law Centre of Australia has been assisted by the Commonwealth Government through the Australia Council, its arts funding and advisory body.

Australian Government - Australia Council for the Arts