Justin Byrne, led by Jennifer Batrouney AM KC and instructed by MinterEllison, successfully appeared for the Department taxpayer in the recently decided Department of Education v Commissioner of Taxation [2026] FCA 898.

In a decision handed down by Button J, the Court held that the 17.5% annual “salary loading allowance” paid to teachers was neither part of their “notional earnings base” (for periods before 1 July 2008) nor their “ordinary time earnings” (from 1 July 2008).

The consequence: the Commissioner’s amended superannuation guarantee charge assessments — spanning 2004 to 2022 — were excessive.

The reasoning repays reading. A single, once-a-year lump sum, calculated on four weeks’ salary, is not transformed into “earnings in respect of ordinary hours of work” merely because it lacks the features of annual leave loading. Absence of a link to lost overtime is not decisive; and the express statutory exclusion of certain termination payments does not mean everything else is swept in.

The full judgment can be found here.