The Superannuation Guarantee legislation was amended to increase the superannuation guarantee charge to 12% by 1 July 2019. From 1 July 2013 it was increased from 9% to 9.25% and from 1 July 2014 it will increase to 9.5% and so forth.
Can employers absorb this charge by reducing the remuneration of employees so that it can be offset?
The legislation has nothing to say about this issue.
Accordingly the answer will lie in the contractual position and of course any modern award or enterprise agreement which may apply. In the first place, an employer cannot lawfully reduce the remuneration so that the minimum wage or salary rate falls below the minimum provided for by an award or enterprise agreement. That much is simple.
The question in the context of the contract will depend upon the interpretation of the contract. For example if the employee’s remuneration is a fixed annual package and is inclusive of superannuation, then it is submitted that the contract will permit the employer to adjust the superannuation component upwards and other remuneration downwards so that the superannuation increase is absorbed.
However where the employee’s salary or wage is specified, it is likely that the employer will not be permitted to make a similar adjustment without the employee’s informed consent. Of course there may well be other terms of the contract will permit the adjustment, and it may even be an implied in some circumstances depending upon policies and so forth which might find themselves applicable by implication.
If the employer does not have the right to make such an adjustment, a unilateral attempt to do so will constitute a breach of contract and perhaps the repudiation of the contract, giving the employee the right to elect to accept the repudiation or hold the employee to the contract. Any attempt by the employer to legislate a change upon an employee may well also constitute adverse action for exercising a workplace right, and any attempt to persuade the employee to accept the change a case of the employer attempting to coerce the employee into not exercising a workplace right, either of which is a breach of the general protections provisions of the Fair Work Act..