Income tax: the 'Ausgrid Early Retirement Scheme 2016'

This Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.

The relevant provisions dealt with in this Ruling are: • section 83-170 of the Income Tax Assessment Act 1997 (ITAA 1997), and • section 83-180 of the ITAA 1997. All legislative references are to the ITAA 1997 unless otherwise indicated.

The class of entities to whom this scheme applies is those employees of Ausgrid (or whatever successor entity those employees are subsequently transferred to pursuant to the privatisation of Ausgrid, hereafter referred to as Ausgrid) shown at paragraph 14, subject to paragraph 16, of this Ruling who receive a payment under the scheme described in paragraphs 7 to 29A of this Ruling.

The Commissioner makes this Ruling based on the precise scheme identified in this Ruling. The class of entities defined in the Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described under the heading Scheme.

If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then: • The Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled, and • the Ruling may be withdrawn or modified.

This Ruling applies from 23 March 2016 to 31 December 2017. The Ruling continues to apply after 31 December 2017 to all entities within the specified class who entered into the specified scheme during the term of the Ruling. However, the Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10).

The following description of the scheme is based on information provided by the applicant.

The scheme will be titled 'Ausgrid Early Retirement Scheme 2016', hereafter referred to as the Scheme.

Ausgrid is a New South Wales state-owned corporation, responsible for the safe and reliable supply of electricity to households and businesses across Sydney, the Central Coast and Hunter Region.

Ausgrid is currently undergoing major organisational reform as a result of the ongoing Government reform program and the Australian Energy Regulator (AER) price determination effective from 1 July 2015. The AER determination has resulted in: • a reduction in Ausgrid's revenue by 33% over the next five years • a reduction in Ausgrid's operating expenditure of 26% over the next five years commencing in the 2015-16 income year, and • a reduction in Ausgrid's capital expenditure by 15% over the next five years commencing in the 2015-16 income year.

As a result, Ausgrid has approximately 1,100 unfunded positions in the 2015-16 income year.

Ausgrid has determined that a range of functions in the organisation, across varying work force categories, need to be efficiently and effectively operated with streamlined practices requiring fewer employees.

The purpose of the Scheme is to reduce Ausgrid's work force in line with its funding cuts by providing an incentive to employees who meet the eligibility criteria to retire early.

The class of employees to whom the Scheme applies is all Ausgrid's permanent full-time and part-time employees who occupy a position that is to be backfilled by a 'reform-affected employee'.

A 'reform-affected employee' is an employee who occupies or has occupied a position that is determined to be no longer required by Ausgrid, or whose position can be backfilled by a 'reform-affected employee' (as defined in this paragraph).

The following employees are specifically excluded from participating in the Scheme: • casual employees • employees on short-term fixed contracts of up to two years • employees who have participated in either the Graduates', Apprentices', Trainee Engineering Officers', or Cadets' Development Programs since 1 January 2013, and • the Chief Executive Officer (CEO) and senior contract positions reporting directly to the CEO.

The Scheme will operate on staggered timeframe basis as follows: • Eligible employees will be invited to express an interest in participating in the Scheme. • Eligible employees who express interest will be provided with an indicative payout figure. • Eligible employees who submit expression of interest will be notified of the outcome. • All eligible employees who accept the offer to retire under the Scheme will terminate their employment within the duration of the Scheme. However, the actual date of termination will be negotiated with each individual employee based on operational requirements but will be no later than 31 December 2017.

All eligible employees within the class covered by an EBA will receive a voluntary separation payment (VSP). Apart from the VSP and accrued entitlements, no further payments will be made. The calculation of the VSP made under the Scheme is based upon an employee's agreed termination date and their completed years of service as follows: • four weeks' notice of termination or a maximum of four weeks' pay in lieu (plus one further week if the employee is over 45 and has completed two years of continuous service with Ausgrid), plus • severance pay at the rate of three weeks per year of continuous service, and • if the acceptance is received within two weeks of the formal offer being made, the employee will be entitled to receive an additional incentive payment as follows: - less than one year's service - two weeks' pay - between one year and less than two years' service - four weeks' pay - between two years and less than three years' service - six weeks' pay, or - three years' service and over - eight weeks' pay • the calculation of a VSP for employees on an individual employment agreement/contract will be the amount as set out in that agreement/contract.

Part-time employees would receive a pro-rated VSP based on the above.

In addition, all employees terminated under the Scheme will receive their statutory entitlements, however they will not form part of the payment made under the Scheme. These may include accrued untaken award benefits at the date of termination as follows: • annual leave • long service leave (if five years' service completed) • preserved sick leave • supplementary superannuation benefits (if 20 years' service completed).

Ausgrid reserves the right to refrain from allowing one employee, or up to 40% of employees in 'safety-critical work force categories' and 'technical skilled work force categories', whichever of the two numbers is higher, from each of its organisation units to depart under the Scheme.

'Safety-critical work force categories' are those work force categories with field-based staff, and those work force categories involved in setting and/or monitoring safety compliance requirements. 'Technical skilled work force categories' are those work force categories with field-based staff, and those work force categories involved in maintaining a reliable electricity supply to customers, and that reliability could diminish if a large number of technical skilled staff were allowed to leave.

The payment made under the Scheme is in excess of any superannuation benefits to which eligible employees may be entitled.

Any employee who terminates their employment other than under the proposed Scheme, will not be entitled to receive the Scheme payment.

The retirement of employees who receive a payment under the Scheme will occur before they turn 65 years of age.

Payments made to eligible employees who are 65 years or older will not be eligible for the tax-free base limits under the Scheme.

Payments made under the Scheme will be at arm's length.

There is no agreement in place between any eligible employee and Ausgrid, or between Ausgrid and another person to employ the eligible employee after retirement under the Scheme.

Participation in the Scheme is entirely voluntary.

Under NSW Government proposals to partially privatise Ausgrid, a tender process is currently being conducted under which a private sector bidder will acquire an interest in the current Ausgrid business of just over 50%, under an acquisition structure still to be finalised.

The Ausgrid Early Retirement Scheme 2016 is an early retirement scheme for the purposes of section 83-180.

Accordingly, so much of the payment received by an eligible employee that exceeds the amount that could reasonably be expected to be received by the employee in consequence of voluntary termination of their employment at the time of the retirement will be an early retirement scheme payment.

In addition, so much of the early retirement scheme payment as falls within the threshold calculated in accordance with section 83-170 is not assessable income and is not exempt income.

A scheme will be an early retirement scheme if it satisfies the requirements of subsections 83-180(3) or (4).

Subsection 83-180(3) states that: A scheme is an early retirement scheme if: (a) all the employer's employees who comprise such a class of employees as the Commissioner approves may participate in the scheme; and (b) the employer's purpose in implementing the scheme is to rationalise or re-organise the employer's operations by making any change to the employer's operations, or the nature of the work force, that the Commissioner approves; and (c) before the scheme is implemented, the Commissioner, by written instrument, approves the scheme as an early retirement scheme for the purposes of this section. These three conditions are now considered.

In order to satisfy the first condition, the scheme must be offered to all employees in a class approved by the Commissioner under paragraph 83-180(3)(a).

The class of employees to whom early retirement will be offered under the Scheme is set out in paragraph 14, subject to paragraph 16, of this Ruling.

The Commissioner considers that this is an appropriate class of persons for the Scheme to be offered to. In approving this class of employees the Commissioner has considered the nature of the rationalisation or re-organisation of the operations of the employer. It is therefore considered that these employees meet the requirements of an approved class of employees for the purposes of paragraph 83-180(3)(a).

The proposed scheme must be implemented by the employer with a view to rationalising or re-organising the operations of the employer as described in paragraph 83-180(3)(b).

Paragraphs 10 to 13 of this Ruling describe the nature of the rationalisation or re-organisation of the employer's operations. In approving the Scheme, the Commissioner has had regard to the changes in the operations and nature of the work force of the employer. It is considered that the Scheme is to be implemented by the employer with a view to rationalising or re-organising the operations of the employer for the purposes of paragraph 83-180(3)(b).

Accordingly, the second condition for approval has been met.

The Scheme is proposed to operate for a period from 23 March 2016 to 31 December 2017. The approval to be provided by the class ruling will have been granted prior to implementation therefore, for the purposes of paragraph 83-180(3)(c), this condition is satisfied.

The Scheme will be in operation for approximately 21 months. This is considered appropriate due to the circumstances of the re-organisation.

As all the conditions for approval under subsection 83-180(3) have been met, consideration of subsection 83-180(4) is not required.

Under subsection 83-180(1), so much of the payment received by an employee because the employee retires under an early retirement scheme as exceeds the amount that could reasonably be expected to be received by the employee in consequence of the voluntary termination of their employment at the time of termination is an early retirement scheme payment.

It should be noted that, in order for a payment to qualify as an early retirement scheme payment, it must also satisfy the following requirements (as set out in subsections 83-180(2), 83-180(5) and 83-180(6)): • the retirement occurred before the employee turned age 65 or such earlier date on which the employee's employment would have terminated under the terms of employment because of the employee attaining a certain age or completing a particular period of service (as the case may be) • if the employee and the employer are not dealing with each other at arm's length (for example because they are related in some way), the payment does not exceed the amount that could reasonably be expected to be made if the retirement was at arm's length • at the time of retirement there was no arrangement between the employee and the employer, or between the employer and another person, to employ the employee after the retirement • the payment must not be made in lieu of superannuation benefits, and • it is not a payment mentioned in section 82-135 (apart from paragraph 82-135(e)).

The term 'arrangement' is defined in subsection 995-1(1) as meaning 'any arrangement, agreement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable (or intended to be enforceable) by legal proceedings'.

In accordance with section 83-170, an early retirement scheme payment that falls within the specified limit is referred to as the 'tax-free' amount and will not be assessable income and will not be exempt income.

For the 2015-16 income year, the tax-free amount is limited to $9,780 (base amount) plus $4,891 (service amount) for each whole year of completed employment service to which the early retirement scheme payment relates. It should be noted that six months, eight months or even eleven months do not count as a whole year for the purposes of this calculation.

For the 2016-17 income year, the base amount is $9,936 and the service amount is $4,969.

The total of the amount received on the termination of employment calculated in accordance with paragraph 18 of this Ruling may qualify as an early retirement scheme payment.

The total payment calculated in accordance with paragraph 18 of this Ruling will be measured against the limit in accordance with the formula mentioned in paragraph 48 and paragraph 49 of this Ruling to determine the tax-free amount of the early retirement scheme payment.

The tax-free amount will: • not be an employment termination payment (ETP), and • not be able to be rolled-over into a superannuation fund.

Any payment in excess of this limit will be an ETP and will be split into tax-free and taxable components. The tax-free component of an ETP includes the pre-July 83 segment of the payment. The tax-free component is not assessable income and is not exempt income.

The taxable component of the ETP will be taxed at various rates depending on the person's age. It should be noted that the 'whole of income cap' does not apply to any part of the early retirement scheme payment.

The following is a detailed contents list for this Ruling: Paragraph What this Ruling is about 1 Relevant provision(s) 2 Class of entities 3 Qualifications 4 Date of effect 6 Scheme 7 Ruling 30 Appendix 1 - Explanation 33 All employees within a class approved by the Commissioner may participate in the scheme 35 The employer's purpose in implementing the scheme is to rationalise or re-organise the employer's operations in a way approved by the Commissioner 38 The scheme must be approved by the Commissioner prior to its implementation 41 Other relevant information 44 Appendix 2 - Detailed contents list 55