A friend of mine has been in contact recently explaining that her superannuation contributions for the past year had not yet been paid by her past employer. After ringing her employer she was informed that the company she had previously worked for had been put into receivership. However we later found out that the business she worked for was still operational just under a new company structure.
After we rang the ATO they explained that there was nothing that they could do to follow up this breach and that my friend need to contact the receivers to make a claim on any remaining assets of the previous company.
Without wanting to comment on the ethics of this situation I thought it would be useful for readers to know what they should do as early as possible if their employer has not been paying superannuation entitlements.
The ATO sets out the following points on their website:
If you're concerned about unpaid super guarantee contributions you should:
Talk to your employer. You should ask them how often they are currently paying your super, into which fund they are paying it, and how much they are paying. It's a good idea to ask these sorts of questions when you start work with an employer.
You should also make sure you are eligible to receive super. Usually an employer has to pay super contributions for you if you are over 18 and you are paid at least $450 in salary and wages (before tax) in a month. It doesn't matter if you work casual, part time or full time hours. You can also be eligible if you are a contractor working primarily for labour (eg. graphic designer).
Check your last Member Statement from your super fund, or contact them to confirm if your employer has paid your super.
If you have completed steps 1 & 2 and still believe your employer is not paying enough or any super, and/or is not paying the super to your chosen fund, you can lodge an enquiry about unpaid super by phoning the Tax Office on 13 10 20.
Before phoning the Tax Office on 13 10 20 you will need to prepare information to help us record your enquiry. Please refer to:
What information do I provide when I lodge an enquiry about unpaid super?
What process does the Tax Office follow to investigate unpaid super enquiries?
Other ways to obtain unpaid super
If you lodge an enquiry with the Tax Office, we will take action on the information you provide.
Below are some other ways you can try to obtain unpaid superannuation from your employer. You can try to recover the superannuation that should have been paid to you directly from your employer.
If you areemployed under the federal workplace relations system (that is, if you are/were employed in the ACT, Northern Territory or Victoria, or you are employed by a company in another state or under a federal award or agreement), you can seek an order from an eligible court under the Workplace Relations Act 1996.
Alternatively, the Workplace Ombudsman may be able to help you if you have not received all of your workplace conditions and entitlements. The Workplace Ombudsman may get you to complete a Wages and Conditions claim form and pursue your entitlements on your behalf, including going to court, if necessary.
If you are employed under one of the state industrial relations systems (in NSW, Queensland, South Australia, Western Australia or Tasmania), each state has its own laws that enable the courts to order your employer to pay the amount of the shortfall to you or your superannuation fund.
I hope that you do not need to follow this process but in the current climate it might be worth looking into any unpaid super entitlement before it becomes too late.