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Is a part-time office holder entitled to superannuation?

Part-time fees do not include a superannuation component.  Any superannuation obligation, including superannuation guarantee requirements that must be met, is therefore paid on top of the Tribunal's determined fee.

Any enquiries about superannuation liabilities should be directed to the Superannuation Branch in the Department of Finance (superbranch [at] finance.gov.au) or the Australian Tax Office. Enquiries on the superannuation arrangements for the Federal Judiciary can be directed to JudicialSchemes [at] finance.gov.au.

How is the Employer Superannuation Contribution calculated for an office holder who is a member of a defined benefit scheme?

For a member of a defined benefit scheme, the value of the Employer Superannuation Contribution for the purpose of calculating the cash component of total remuneration (TR) is a notional amount calculated as 15.4% of the office holder’s superannuation salary.

Note that the value may be less than 15.4% for Principal Executive Offices (PEOs) in some circumstances – see the PEO determination for more information.

The Employer Superannuation Contribution for TR purposes needs to be recalculated immediately upon any change in TR for the office. This will result in a change to the office holder’s cash salary.

However, the office holder’s superannuation contributions salary remains subject to the rules of the scheme, i.e. is updated on the office holder’s birthday.

Note that actual employer payments made by a Department or agency to the superannuation scheme in respect of an office holder’s superannuation (based on advice from the Superannuation Branch of the Department of Finance) vary according to demographics and scheme membership in the particular Department or agency.  Because of this the Tribunal has determined that a standard notional contribution rate (15.4%) should apply to all office holders who are members of defined benefit funds (and that it should apply immediately on adjustment, rather than from the office holder’s birthday). Any enquiries about superannuation liabilities should be directed to the Superannuation Branch in the Department of Finance ( superbranch [at] finance.gov.au ) or the Australian Tax Office.  Enquiries on the superannuation arrangements for the Federal Judiciary can be directed to JudicialSchemes [at] finance.gov.au .

How is the Employer Superannuation Contribution calculated for an office holder who is a member of an accumulation scheme such as the PSSAP?

For members of accumulation schemes the Employer Superannuation Contribution is the amount of compulsory superannuation contribution that must be paid to the relevant fund. Additional salary sacrifice contributions are not included in the definition of the Employer Superannuation Contribution.

PSSAP members - who are holders of part-time offices

The superannuation salary for holders of part-time offices who are members of the PSSAP is the office holder’s fortnightly contribution salary (FCS). Note that holders of full-time office who are working part-time are subject to the same rules as other holders of full-time offices.

PSSAP members - other than holders of part-time offices

The PSSAP requires the Employer Superannuation Contribution to be calculated at the rate of 15.4% of salary for superannuation purposes.

The Tribunal’s determinations provide that the salary for superannuation purposes for a PSSAP member will be the person’s Ordinary Time Earnings (OTE).

Members of other schemes

The Employer Superannuation Contribution will be the compulsory (i.e. minimum) amount required to meet the employer’s obligations under the Superannuation Guarantee (Administration) Act 1992 (Super Guarantee Act), i.e. 9.5% of OTE.

OTE is essentially the earnings that can be attributed to ‘ordinary hours of work’ so that the minimum Employer Superannuation Contribution can be calculated. Under the Superannuation Guarantee (Administration) Act 1992 (the Super Guarantee Act) remuneration as an office holder is considered ‘salary or wages’ for this purpose.

ATO Superannuation Guarantee Ruling 2009/02 provides information about payments that are excluded from the definition of salary and wages (such as fringe benefits)

For an office holder remunerated on a total remuneration basis, the salary for superannuation purposes on which the Employer Superannuation Contribution is calculated is the taxable amount being received by the office holder.

However, OTE does not require a superannuation contribution to be made on all earnings related to the ordinary hours of work – there is an upper earnings limit for each quarter in the financial year. Earnings above this limit are not considered to form part of OTE.  The limit is the ATO’s ‘maximum contribution base’ which is varied each financial year.  Employers are not required to provide superannuation support for earnings above the maximum contribution base.

Read more about OTE and the maximum contribution base on the ATO website

The Employer Superannuation Contribution for PSSAP members is therefore 15.4% of OTE or 15.4% of the maximum contribution base (whichever is lower). The Employer Superannuation Contribution for members of other schemes is therefore 9.5% of OTE or 9.5% of the maximum contribution base (whichever is lower).

Where the office holder is also salary sacrificing to the PSSAP or another fund the usual salary sacrifice requirements apply.

If an office isn’t listed in any determination, what remuneration is payable for that office?

For a part-time office in the Tribunal’s jurisdiction, the daily fees for ‘offices not specified’ set out in the Part-time Office determination may be used, subject to any discretion available in the establishing legislation for the office.

As the Tribunal does not have determinative powers in relation to setting remuneration for individual Principal Executive (PEO) offices, remuneration for individual PEOs is not included in the PEO determination. The Tribunal writes to the relevant employing body setting the remuneration parameters for each PEO.

In any other case, you should contact the Tribunal’s Secretariat for advice.

If the responsibilities of an office change, should the Tribunal be advised?

Where there are significant changes to the role or responsibilities of an office that warrant reconsideration of remuneration, a submission should be made to the Tribunal as soon as possible. Comprehensive submission guidelines are available on the Tribunal’s website.

You may also contact the Tribunal’s Secretariat for advice on your particular submission. Where time permits, the Secretariat can also provide feedback on draft submissions.

Is an office holder’s TA reduced when the agency books and pays for an office holder’s accommodation?

The Official Travel determination provides for the payment of an allowance to the office holder to cover reasonable expenses associated with official travel, i.e. accommodation, meals and incidentals, and it is a matter for the office holder as to how that allowance is to be used.  An office holder’s TA must be paid in full.

However, in the event that the cost of accommodation is met by an entity other than the office holder, only the meals and incidentals component of TA is payable. An example of this might include where an office holder attended a conference and the cost of accommodation was met by the Commonwealth as part of the conference package.

In applying the provisions of the Official Travel determination, office holders and agencies should have regard to the set of general principles included in that determination.

How is cash salary calculated for a PEO?

Total remuneration (TR) is defined in the PEO determination. It represents the total value of all cash and non-cash benefits available to the office holder (excluding performance pay, relocation allowances, travelling allowances and compensation for early loss of office). An office holder’s cash salary is the component of TR that remains when all other payments and benefits, including the Employer Superannuation Contribution, are honoured. Cash salary should not be confused with the superannuation salary determined by the employing body for office holders who are members of defined benefit schemes.

To determine cash salary:

TR

minus

The Employer's  Superannuation Contribution*

minus

Other benefits e.g. motor vehicle and parking, fringe benefits tax and any salary sacrifice payments, such as additional superannuation contributions.

equals

Cash salary

* The Employer's Superannuation Contribution is defined in the Tribunal's PEO Determination.

Essentially it is:

  • for members of PSSAP - 15.4% of ordinary time earnings (OTE);
  • for members of other accumulation schemes - the compulsory employer superannuation contribution that must be made to the fund; and
  • for members of a Commonwealth defined benefit schemes (e.g. CSS/PSS) - a notional value calculated as 15.4% of the Superannuation Salary (i.e. normally 15.4% of 73% of TR.Notes re Superannuation Salary:
  1. The employing body is responsible for determining superannuation salary for office holders who are members of defined benefit schemes. The PEO determination provides that the maximum superannuation salary that may be determined by an employing body is 73% of TR. An exception can occur where the Tribunal has given express written consent to an alternative ‘grandfathered’ arrangement for an individual office holder who has a (pre-existing) higher salary for superannuation purposes under the defined benefit scheme rules (see FAQ “What happens if an office holder has an existing superannuation salary that is higher than the superannuation salary that applies to the office?”).
  2. For PEOs who are defined benefit members the value of the Employer Superannuation Contribution may be less than 15.4% of superannuation salary if there is actuarial evidence that the cost to the agency (including the cost of the productivity component) is lower that 15.4%

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