Deputy Commissioner of Taxation v Australian Communication Exchange Ltd [2001] FCA 1664

FEDERAL COURT OF AUSTRALIA

Deputy Commissioner of Taxation v Australian Communication Exchange Ltd [2001] FCA 1664 SUPERANNUATION – Determination of amount of "superannuation guarantee shortfall" in respect of casual employees – Construction of industrial award – Meaning of "ordinary time earnings" – Whether this term includes any part of the remuneration received by casual employees for working more than eight hours in any one day or outside the ordinary spread of working hours prescribed by the award – Conclusion that the term includes remuneration at the prescribed ordinary hourly rate and excludes only the loading applied by reason of the work being in excess of eight hours or outside the prescribed spread of hours. Superannuation Guarantee Charge Act 1992 ss 3, 5 Superannuation Guarantee (Administration) Act 1992 ss 14(2), 16, 17, 19, 23 Clerical Employees Award (State) (Qld) cll 3.5, 4.1, 4.2, 4.7 DEPUTY COMMISSIONER OF TAXATION v AUSTRALIAN COMMUNICATION EXCHANGE LTD Q 108 of 2001 WILCOX, HILL & CARR JJ SYDNEY (HEARD IN BRISBANE) 28 NOVEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 108 of 2001

BETWEEN: DEPUTY COMMISSIONER OF TAXATION

Appellant

AND: AUSTRALIAN COMMUNICATION EXCHANGE LTD

(ACN 003 044 899)

Respondent

JUDGE: WILCOX, HILL & CARR JJ

DATE OF ORDER: 28 NOVEMBER 2001

WHERE MADE: SYDNEY (HEARD IN BRISBANE)

THE COURT ORDERS THAT:

1. The appeal be allowed. 2. The orders made by Dowsett J on 2 May 2001 be set aside and, in lieu thereof, it be ordered that the decision of the appellant, Deputy Commissioner of Taxation, to disallow the objections of the respondent, Australian Communication Exchange Ltd, dated 20 February 2000 be varied to allow so much of the objections as will result in an assessment being made in accordance with the reasons of the Court. 3. Questions of costs, both in relation to the proceeding heard by Dowsett J and in relation to the appeal to this Court, be reserved. 4. Any party that seeks an order for costs must provide written submissions in connection therewith within 14 days. Any submissions in response are to be provided within a further 14 days. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.