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MineWorkerWA(Initiate)Initiate
12 July 2024

I am currently working for an employer whom sub contracts me to a Mining Company:

- 14 days on 7 days off

- 12.5hr Days = 175 hours work per roster/fortnight

- Timesheets are Monday-Sunday, so I get the following hours per timesheet

- 1st Week: 75 hours

- 2nd Week: 87.5 hours

- 3rd Week: 12.5 hours

- Flat rate contract casualemployee


The roster is set and continuous there is no option of doing less hours per day.

They only pay Super on 7.6 hours monday to frirday, not the 12.5 hrs every day including saturday and sunday. Is this correct?


No-one's roster here is 7.6 hours monday to friday, it is always 12.5 hours a day, and we do not get weekends off, no matter if you are on a 2 weeks on, 2 weeks off roster, or a 2 weeks on, 1 week off roster like I am.


Always 12.5hrs per day at a flat rate, no time and a half or double time. Though they may say this is taken into consideration when calculating the flat rate, but surely that should not affect the amount of Super they should be paying?


I queried my company's payroll officer on this, linking them to this question answered by the ATO a few years ago; https://community.ato.gov.au/s/question/a0J9s0000001J7L/p00049789


I recieved this email.

Super is paid on ordinary time earnings (OTE),

As you are on a compound rate (not an agreement or award rate) ordinary time is 7.6 hours Monday โ€“ Friday (38 hours total).

I have reviewed your last few pays and this has been correctly calculated.

Please let me know If I can assist further.

Kind regards


I saw in CaroATO's response to the linked question that the Superannuation Act clearly defines what ordinary time earnings are, but I cannot find the Superannuation Act definition on Austlii. Are you able to link to that? The exact act is very difficult to figure out. https://www.austlii.edu.au/cgi-bin/viewtoc/au/legis/cth/consol_act/toc-S.html


๏ปฟ They also said that the Superannuation Act also overrides the Fair Work Act, is that also in the Superannuation Act, where can I find that?

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Most helpful reply

PayrollDeanne(Taxicorn)Taxicorn
12 July 2024

Hiya @MineWorkerWA ๐Ÿ‘‹


You won't find it anywhere because it's not true ๐Ÿ˜‰


Let me give you the full answer:

  • Ordinary hours of work are defined in the Awards, underpinned by the Fair Work Act 2009. Typically, 38 hours per week
  • The industrial instruments (Awards, Agreements, contracts, policies) may vary the period over which you need to work those 38 hours
  • The Superannuation Guarantee (Administration) Act 1992 defines that super guarantee must be paid by employers on, at least, the payments in respect of those ordinary hours of work
  • You have to be able to distinguish between ordinary hours (such as shift work with penalty rates for working your ordinary hours at inconvenient times) and overtime that is outside of the ordinary hours
  • Your payroll team has responded to your query by stating that your ordinary time is 7.6 hours, therefore everything else is overtime.
  • Overtime is not OTE (ordinary time earnings) upon which super guarantee is calculated

Rather than try to read and interpret the SGAA 1992, there's a very useful ATO SGR 2009/2 that makes it much easier to understand.


I think the issue here is about understanding for which type of hours you are paid: these three weeks sum to 175 hours plus one week off. That is 175 hrs per 4 weeks. That's an average of 43.75 hours per week less 38 hours per week ordinary time with 5.75 hours overtime.


SG is paid on ordinary hours of work. Seek assistance from the Fair Work Ombudsman if you have questions about what you should be paid by your employer.


Deanne

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Most helpful reply

PayrollDeanne(Taxicorn)Taxicorn
12 July 2024

Hiya @MineWorkerWA ๐Ÿ‘‹


You won't find it anywhere because it's not true ๐Ÿ˜‰


Let me give you the full answer:

  • Ordinary hours of work are defined in the Awards, underpinned by the Fair Work Act 2009. Typically, 38 hours per week
  • The industrial instruments (Awards, Agreements, contracts, policies) may vary the period over which you need to work those 38 hours
  • The Superannuation Guarantee (Administration) Act 1992 defines that super guarantee must be paid by employers on, at least, the payments in respect of those ordinary hours of work
  • You have to be able to distinguish between ordinary hours (such as shift work with penalty rates for working your ordinary hours at inconvenient times) and overtime that is outside of the ordinary hours
  • Your payroll team has responded to your query by stating that your ordinary time is 7.6 hours, therefore everything else is overtime.
  • Overtime is not OTE (ordinary time earnings) upon which super guarantee is calculated

Rather than try to read and interpret the SGAA 1992, there's a very useful ATO SGR 2009/2 that makes it much easier to understand.


I think the issue here is about understanding for which type of hours you are paid: these three weeks sum to 175 hours plus one week off. That is 175 hrs per 4 weeks. That's an average of 43.75 hours per week less 38 hours per week ordinary time with 5.75 hours overtime.


SG is paid on ordinary hours of work. Seek assistance from the Fair Work Ombudsman if you have questions about what you should be paid by your employer.


Deanne

MineWorkerWA(Initiate)Initiate
13 July 2024

No, if it were four weeks, it would be more than 175 hours. I work for two weeks with one week off, and we do not get penalty rates beyond the 7.6 hours, nor penalty rates for the weekends.


The ordinary hours we work are 12.5 hours a day, every day including weekends. With no ability to deny 'overtime'.

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