Progressive PSA
2 Super Guarantee wins for Casuals




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Two cases fought by unions have helped prevent employers from robbing casual employees of their entitlement to Superannuation Guarantee payments.

In the fisrt case a full bench of the Federal Court (28/11/01) has clarified the meaning of 'ordinary times earnings' which is the usual basis for calculating Superannuation Guarantee payments.

It overturned a prior ruling in favour of the employer. The prior ruling held that as earnings by casual employees for time worked:
1) outside the span of ordinary working hours; and
2) in excess of the number of ordinary hours specified in the award;
were to be regarded as payments for overtime and therefore they were not 'ordinary time earnings' within meaning of the Award. 

This meant that the employer did not need to make Superannuation Guarantee payments for work outside of the normal span of hours even where the employee had not exceeded the ordinary number of hours in a day. For example, if a casual employee worked for six hours every night over four nights but most of those hours were outside normal hours (in the award) then they might only be paid Superannuation Guarantee for the few hours that fit within normal hours.

However the Full Bench held that payments to casual employees for 'overtime' worked outside the span of hours specified in an award is to be taken into account in assessing an employer's contribution under the Superannuation Guarantee Scheme and that this is different to payments for hours worked in excess of the ordinary number of hours for any one day (which are not subject to Super Guarantee payments).

In the second case the Court has ruled that Super Guarantee must be based on actual hours worked rather than what is set out in the original employment contract.

Quest Personnel Temping, a company providing temporary administrative employees to the Victoria Police lost an appeal against this ruling. Quest argued that the ordinary hours of work for its employees were the hours for which they were formally contracted, rather than the significantly greater number of hours which they actually worked, and which had to be worked to meet the requirements of the business contract.

The Tribunal found that "It would tend to defeat that underlying purpose or object (of the SGC Act) if an employer could, by engaging employees on the basis that they would work for a low specified minimum, could avoid the obligation to pay superannuation contributions (or the charge in lieu of those contributions) in respect of much greater hours habitually worked by the employees."

For more stories on casuals and temps see our casuals web page.

Did you know that although the Super Guarantee Act does not require Super Guarantee payments to: 

  • employees under the age of 18 who work part time, 
  • those who earn less than $450 per month, and 
  • women on paid maternity leave, 
Full members of First State Super in the above categories must be paid 'compulsory employer contributions' (you are a 'full member' of FSS if your Super Guarantee payments are made to FSS, ie you are not an active SASS or SSS members using FSS for top up contributions).

Although First State Super is an inferior scheme to the closed SASS & SSS schemes it is NOT based on the absolute minimum requirements of the Super Guarantee Act. For example, women on paid maternity leave are not entitled to Super Guarantee payments. However, FSS members on paid maternity leave ARE entitled to 'compulsory employer contributions' which are equal to the rate of Super Guarantee. The employer is currently considering changes to the FSS Act to make this crystal clear.

The PSA and other public sector unions are also seeking changes to ensure that 'compulsory employer contributions' on weekly workers compensation benefits are paid. Although it appears the employer supports these changes, almost two years have elapsed. Unlike the Fire Brigades union which has mobilised its members to win better super, the current PSA leadership has failed to start a member based campaign to speed up these reforms.

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Progressive PSA brings together rank and file trade union activists in the Public Service Association of New South Wales and the CPSU (SPSF Branch). 

We work for 

  • improved and more equitable pay 
  • greater job security
  • a democratic and strong union