Superannuation guarantee: existing employee elections after 30 June 2007

Will an employer who has received an election from an employee prior to 30 June 2007 under subsection 19(4) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) (repealed as of 1 July 2007), and who, pursuant to that election does not make any contributions for a quarter commencing after 30 June 2007 for the benefit of the employee, have an individual superannuation guarantee shortfall for the employee for a quarter?

No, the employer has a right to protection from the superannuation guarantee charge once an employee makes an election under subsection 19(4) of the SGAA for the quarter in which the election is made and all later quarters. This right is preserved notwithstanding that the law conferring this right is repealed, and provides protection to the employer for the duration of the employment contract.

In 2005 an employee reached their pension reasonable benefit limit (RBL). As a result the employee made an election under subsection 19(4) of the SGAA that the employer should not be liable to the superannuation guarantee charge in respect of that employee from that quarter and for all later quarters. The employer, pursuant to that election, did not make any contributions for the benefit of the employee for a quarter commencing after 30 June 2007. The employee is still engaged by the employer after 1 July 2007 under the same employment contract.

From 1 July 2007 super simplification changes have removed RBLs. Consequently, subsections 19(4) to 19(7) of the SGAA, which deal with employee elections to forgo superannuation contributions because the pension RBL has been reached, were also repealed from 1 July 2007 by item 350 of Schedule 1 to the Superannuation Legislation (Amendment) Simplification Act 2007 (SLASA).

Prior to 1 July 2007, if an employee had benefits in complying superannuation funds in excess of their pension RBL, the employee could make an election under section 19(4) of the SGAA (repealed as of 1 July 2007). The effect of the election was that the employer no longer had an obligation to provide superannuation guarantee support for the employee for the quarter in which the election was made and for all later quarters. Although, the employer could still choose to make superannuation guarantee contributions on behalf of the employee.

From 1 July 2007, item 350 of Schedule 1 to the SLASA repeals subsections 19(4) to 19(7) of the SGAA. Existing rights are not affected by repeal unless a contrary intention is shown. This is clear from paragraph 8(c) of the Acts Interpretation Act 1901 which states: Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: ... (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; ...

The Explanatory Memorandum for the Superannuation Legislation Amendment (Simplification) Bill 2007 does not support a contrary intention. At paragraph 2.7 it states: Currently, employees with accumulated superannuation entitlements in excess of the pension RBL may elect not to receive superannuation contributions from their employers. As RBLs are abolished, from 1 July 2007, these elections will no longer be able to be made. As these elections were irrevocable, existing elections will remain in force.

In Statutory Interpretation in Australia , 6th edition, Pearce and Geddes explain the effect of paragraph 8(c) of the Acts Interpretation Act 1901 . At page 21 they say: The section refers to a right that has accrued; hence it is necessary to establish that the right that is claimed to be preserved is a real one and not one that is still in abstracto: Abbott v Minister for Lands [1895] AC 425. As was pointed out in that case, the repeal of any Act must affect 'rights' in the general sense as the law will henceforward be different from what it was. If the Interpretation Act section were to preserve these "rights" the effect of the repeal would be rendered nugatory. Channell J in Starey v Graham [1899] 1 QB 406 at 411 put it that a right acquired "means some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got".

In this case, it is clear that the employer, having received a notice given under subsection 19(4) of the SGAA, acquired a real right, one that others did not acquire. The right ensured that the employer was not liable for the superannuation guarantee charge if it did not make superannuation contributions on behalf of the particular employee for the quarter in which the election was made and for all later quarters. Therefore, the repeal of subsections 19(4) to 19(7) of the SGAA from 1 July 2007 does not affect the existing protection the employer has if it does not make superannuation contributions on behalf of the employee after 1 July 2007.

This protection will last until the employment contract under which the employee conferred the right ceases.

While the employer is protected if it does not provide superannuation guarantee support for the employee, the employer may choose to make superannuation contributions on behalf of the employee and claim a deduction for this amount. The employer and employee may also choose to renegotiate their employment contract having regard to the repeal of subsections 19(4) to 19(7) of the SGAA.