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Re: Superannuation for shift workers

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This is probably in the wrong area and for that, I apologise.  i have tried online, via telephone and now here to find an answer to my query but to no avail.  I will plough on regardless in the hope that someone might be able to enlighten me.  TIA.

 

I am a shift worker, in health and shiftwork is an absolute requirement of my position.  I mean that in as much as I could not say to my employer that I only want to work 9-5 Monday to Friday; that option is NOT available to me.

 

My fortnightly income relies heavily upon the reality that I am a shiftworker and I believed (maybe incorrectly) that my superannuation calculations were based on my income (as a shiftworker) and not on some arbitrary calculated 'base'rate' that my employer had decided upon.  i thought and still believe that my superannuation should be calculated upon real time earnings.  My real time earnings always included shift work penalties because they were a requirement of my employment.

 

When I take annual leave from work, my shift penalties are included..as in, if I take two weeks annual leave, the weekend shifts that I work in that period and the late shifts I work are recognised in my pay.  (This wasn't always the case..and I fought for recognition under our EB agreement and this was subsequently recognised.)

 

I am perpelxed; half of the documents that I read from my emplyer clearly state that the 'base earnings' are my regular earnings. The pay office stated..your superannuation payments are based on your regular earnings and the same as you get when you are on holiday.  Fine, but I recieve penalty payments when on leave beacause they are my 'ordinary time' payments?

 

Just to put this into a dollars and sense mode, the difference each month between their calculations and my real terms, is around $1300.  This is a significant amount of money and subsequently, a significant difference in terms of superannuation payments.

 

As a further aside, when speaking to my pay office about this seeming anomaly I was informed that 'some people have their shift penalties recognised and others don't' (in terms of their superannuation).

 

I am very confused about this real time earnings formula and how it equates to an individual who has no choice but to work shift work.  i do not, never have, never will, I imagine, be in a position where I can dictate my working hours, in this position.

 

Please, advise?.

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Hi @kismet 

 

The superannuation guarantee legislation operates on the concept of 'ordinary time earnings', which is usually pretty straightforward for your run-of-the-mill 9-5 salaried employee, but it can be a bit complicated for casual employees and shift workers.

 

The ATO explains the meaning of 'ordinary time earnings' in Superannuation Guarantee Ruling SGR 2009/2. This is the ATO's key public ruling on the concept, so you definitely want to get your head around it, but essentially, 'ordinary time earnings' is made up of:

  • earnings in respect of 'ordinary hours of work' and
  • earnings consisting of over-award payments, shift-loading or commission

 

'Ordinary hours of work' can include work at any time of the day or night and any day of the week, but 'overtime' is excluded and this means that any 'over-award payments' or 'shift-loading' relating to 'overtime' are also excluded.

 

In terms of 'shift-loading', this is "an amount paid to a worker in addition to his or her basic hourly rate for having to work outside the usual span of time for day workers". I don't know if this equates to what you've referred to as 'shift work penalties' or not, but if it is then it should be included in your superannuation calculation.

 

You probably want to start by looking over the award or agreement or contract that applies to you  and whether it includes any rules in terms of 'ordinary hours of work'. For example the Health Professionals and Support Services Award 2010 includes the following clause:

 


23. Ordinary hours of work

 

23.1 The ordinary hours of work for a full-time employee will be an average of 38 hours per week in a fortnight or four week period.

 

23.2 Not more than 10 ordinary hours of work (exclusive of meal breaks) are to be worked in any one day.


Therefore, if you were employed under this award, then regardless of your shifts and which hours of the day or days of the week you worked or how much you were paid for those hours, your 'ordinary hours or work' would be 38 hours per week and this is what your superannuation is based on.

 

There are a lot of edited private rulings on the ATO's legal database on the concept of 'ordinary time earnings' so you might want to play around on there for a while to see what you can find (you can target a search in the database by refining the seach by category and choosing 'Edited private advice' from the drop-down menu).

 

Hope this helps.

JF

 

This is my personal view; I’m an ATO employee who chooses to help out here in my own time.

 

 

 

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cents, not sense...ugh!

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Hi @kismet 

 

The superannuation guarantee legislation operates on the concept of 'ordinary time earnings', which is usually pretty straightforward for your run-of-the-mill 9-5 salaried employee, but it can be a bit complicated for casual employees and shift workers.

 

The ATO explains the meaning of 'ordinary time earnings' in Superannuation Guarantee Ruling SGR 2009/2. This is the ATO's key public ruling on the concept, so you definitely want to get your head around it, but essentially, 'ordinary time earnings' is made up of:

  • earnings in respect of 'ordinary hours of work' and
  • earnings consisting of over-award payments, shift-loading or commission

 

'Ordinary hours of work' can include work at any time of the day or night and any day of the week, but 'overtime' is excluded and this means that any 'over-award payments' or 'shift-loading' relating to 'overtime' are also excluded.

 

In terms of 'shift-loading', this is "an amount paid to a worker in addition to his or her basic hourly rate for having to work outside the usual span of time for day workers". I don't know if this equates to what you've referred to as 'shift work penalties' or not, but if it is then it should be included in your superannuation calculation.

 

You probably want to start by looking over the award or agreement or contract that applies to you  and whether it includes any rules in terms of 'ordinary hours of work'. For example the Health Professionals and Support Services Award 2010 includes the following clause:

 


23. Ordinary hours of work

 

23.1 The ordinary hours of work for a full-time employee will be an average of 38 hours per week in a fortnight or four week period.

 

23.2 Not more than 10 ordinary hours of work (exclusive of meal breaks) are to be worked in any one day.


Therefore, if you were employed under this award, then regardless of your shifts and which hours of the day or days of the week you worked or how much you were paid for those hours, your 'ordinary hours or work' would be 38 hours per week and this is what your superannuation is based on.

 

There are a lot of edited private rulings on the ATO's legal database on the concept of 'ordinary time earnings' so you might want to play around on there for a while to see what you can find (you can target a search in the database by refining the seach by category and choosing 'Edited private advice' from the drop-down menu).

 

Hope this helps.

JF

 

This is my personal view; I’m an ATO employee who chooses to help out here in my own time.

 

 

 

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Thank you, @JamesF ,

 

Your response has clarified a lot of what I already believed to be the case and this paragraph;

 

   In terms of 'shift-loading', this is "an amount paid to a worker in addition to his or her basic hourly rate for having to work outside the usual span of time for day workers". I don't know if this equates to what you've referred to as 'shift work penalties' or not, but if it is then it should be included in your superannuation calculation.

 

..I find of particular interest because the shift penalty is loading and not an overtime payment.  I have read at length the documents and findings that you have cited in your response and believe that the information and findings in those documents indicate that the organisation I work for has a case to answer in terms of how they calculate their employer super contributions and their interpretation of ordinary time earnings.

 

My next question (if you don't mind) involves about how an individual can request a review of my employer's practices and methods of their superannuation payments because if these are being calculated incorrectly there is a substantial shortfall in their payments which has a significant cumulative impact over the long term as well.  I tried to initiate a review on the ATO's website but since i have worked for this organisation for many years it became rather confusing and complex in terms of uploading payslips i.e do I have to upload each and every payslip?

 

I really appreciate you taking the time to respond to my question with such a thorough and informative response and it has confirmed what I believed but I am at a loss as to how to proceed further.

 

Many thanks, 

Kismet

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Hi @kismet 

 

In terms of:

 

do I have to upload each and every payslip?

Pretty much - sooner or later. The process is very evidential and mathematical and while I was doing this kind of work on the ATO side it wasn't uncommon to work through thousands of pages of evidence in some cases - comparing this payslip to that fund statement and adding up amounts quarter by quarter and employee by employee to determine the shortfalls. Doing it any other way would just become a he-said-she-said exercise and end up going around in circles.

 

I'll be totally honest with you - from what I've seen from working on unpaid super cases, being an "employee notifier" (as you'll become known if you go through this process) seems to be very challenging and frustrating because the process is often a very slow grind for several years.

 

I'd also recommend talking to the Fair Work Ombudsman because they also have some good resources to help you negotiate with your employer and might be able to help educate your employer and correct any misunderstandings about your entitlements going forward.

 

JF

 

This is my personal view; I’m an ATO employee who chooses to help out here in my own time.

 

 

 

 

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Thank you again, @JamesF 

 

It sounds quite daunting and as for being known as the 'employee notifier' the obvious potential for some level of career suicide on a personal level with this large organisation is quite terrifying!

 

This situation covers a large amount of employees at my classification in my own workplace and multiply that statewide ...phew!

 

I appreciate your patience in taking time to respond to my questions and if I may ask you a couple more brief questions;

 

1. It appears that the  Fair Work Ombudsman does not cover State Public Sector Employees in my location.  Will they still offer advice about how to progress and/or mediate in the process?

 

2. My Union has suggested that they can request an audit of my employer from the ATO (since I am not the only one who thinks there seems to be an anomally in this area).  If so, how would I proceed with that?

 

Thank you again and in advance for the above queries if you have any further advice.

 

Have a great weekend!

Kismet.

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Hi @kismet 

 


1. It appears that the  Fair Work Ombudsman does not cover State Public Sector Employees in my location.  Will they still offer advice about how to progress and/or mediate in the process?


I'd expect they have a lot of broad experience so would be in the best position to point you in the right direction, but I don't really know.

 


2. My Union has suggested that they can request an audit of my employer from the ATO (since I am not the only one who thinks there seems to be an anomally in this area).  If so, how would I proceed with that?


I don't personally have any experience with unions so I'm not sure, but I suspect they'd be a good source of advice in terms of your specific industry at the very least.

 

Good luck.

 

JF

 

This is my personal view; I’m an ATO employee who chooses to help out here in my own time.

 

 

 

JF