Unpaid super
Unpaid super
If you think that your employer is not paying your superannuation (super), we have processes in place to help you investigate this.
The following step-by-step process will assist you by walking you through the various steps involved.
What do I do if I think my employer is not paying my super?
If you're concerned about unpaid super guarantee (SG) contributions, follow the steps below.
Step 1
Talk to your employer. You should ask them how often they are currently paying your super, was a choice of fund offered to you, 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 either:
- 18 years old or over and paid at least $450 (before tax) in salary or wages in a month,
- under 18 years old, work more than 30 hours per week and are paid at least $450 in salary or 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 and being paid primarily for labour (for example, a graphic designer). Labour includes mental and artistic effort as well as physical work.
|
Step 2
Check your last Member statement from your super fund or contact them to confirm whether your employer has paid your super contributions for the period you are investigating.
Step 3
If you have completed steps 1 and 2 and still believe your employer is not paying enough, or any, super, or is not paying the super to your chosen fund, you can lodge an enquiry about unpaid super by:
Other ways to obtain unpaid super
If you lodge an enquiry with us, we will take action on the information you provide.
Below are some other ways you can try to obtain unpaid super from your employer.
|
If you are employed under the federal workplace relations system (that is, if you are or were employed in the ACT or any state or territory other than Western Australia, or you are employed by a company in Western Australia or under a federal award or agreement), you can seek an order from an eligible court under the Fair Work Act 2009.
Alternatively, the Fair Work Ombudsman may be able to help you if you have not received all of your workplace conditions and entitlements. The Fair Work 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.
Some investigations result in the Fair Work Ombudsman receiving payments from employers for outstanding wages and entitlements. You can search the Fair Work Ombudsman's unpaid wages database to find out if your former employer paid the Commonwealth the money that was owed to you.
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 your super fund.
|
What information do I provide if I lodge an enquiry about unpaid super?
When you lodge an enquiry about unpaid super online or by phone, we will ask for:
- your contact details and whether you give permission for us to use your name when contacting your employer
- your employer's contact details (including business address)
- your employer's ABN (you should be able to locate your employer's ABN from your last payment summary or from the employer's business letterhead
- the nature of your current employment arrangement, including when you started employment with your employer
- details of the period of the unpaid super (when the issue started and ended, including the month and year).
You will also need to provide information on whether you:
- were paid at least $450 pay (before tax) in a month - the online calculator tool will require your total salary or wages per quarter
- checked with your employer and super fund if any super had been paid - the online calculator tool will require the amount paid to your super fund each quarter (we may also need your super fund name and your membership number)
- were offered choice of super fund (your employer should have offered you a choice of fund Standard choice form (NAT 13080) to complete - if so, we will need the date the form was provided)
- checked if your super had been paid to your chosen fund
- checked if your choice of super fund request was actioned by your employer.
Protecting your privacy when you phone us
|
If you phone us, we need to know that we are talking to the correct person before discussing your personal tax affairs. We will ask for details that only you, or your authorised representative, would know. It would also be helpful if you have your tax file number ready when you phone us.
To establish proof of identity, you will need three of the following items:
- an address
- bank account details
- date of birth
- details from an ATO-generated notice
- the amount of your last refund or payment, or your account balance.
|
Will I need to provide written documentation if my enquiry relates to a period more than five years ago?
Yes. The law requires employers to keep records for at least five years. If your enquiry relates to a period more than five years ago, your employer is not required to have kept records for that period.
In these situations, the only way we can determine whether your employer has failed to make sufficient SG contributions for you is if you can provide irrefutable written evidence to support your entitlement.
Irrefutable written evidence may include payment summaries, pay slips and statements from your super fund.
You won't need to provide this evidence at the time you lodge your enquiry, but we will contact you and ask you to supply it if we start an investigation.
If you don't have sufficient written evidence, we won't be able to take any further action about periods more than five years ago.
What process does the ATO follow to investigate unpaid super enquiries?
We are able to provide employees with advice on the progress of their unpaid super and choice of fund enquiries, provided the information:
- does not relate to the financial affairs of the employer
- relates directly to the Commissioner's response to an employee's complaint about the employer's failure to comply with their SG obligations.
The table below provides an overview of the steps we take during the investigation of an unpaid super enquiry.
Once you do lodge a query, we will keep you updated about the progress of your case by letter. We will contact you each time we reach one of the steps set out in the table below.
|
The letters will be sent to the postal address attached to your tax file number, so if you change address it is important you notify us.
|
Select a step below to view a detailed description of what work is undertaken by us at each point of our investigation and what information you will receive during the course of your enquiry. Within each step are answers to the questions you may have at that stage of the investigation process.
Case study: Best outcome situation
Joe Brown has worked for Make Believe Pty Ltd for the past two years. Joe checks his statement from his super fund, Total Super, and discovers Make Believe Pty Ltd has not been paying him enough super.
Having achieved no result after contact with his employer, Joe decides to lodge an enquiry with the ATO, so that his unpaid super can be investigated.
Shortly after lodging his enquiry, Joe receives a letter from us acknowledging receipt of his enquiry and an overview of the steps we will take during the course of the investigation.
Later, Joe receives another letter from us advising we have started the investigation of his employer, Make Believe Pty Ltd.
A period of time passes and Joe receives another letter from us. This letter advises that we have established that there is an outstanding SG amount payable by Make Believe Pty Ltd to Joe.
Another period of time passes and Joe receives another letter from us. This letter advises we have has transferred a sum of money received from Make Believe Pty Ltd into Joe's account with Total Super.
Finally, Joe receives a letter from us advising that his enquiry has been closed.
Summary - Joe's enquiry is completed within 12 months.
Step 1 - Query received
What are we doing?
|
When we receive your enquiry, we will make sure that we have all the information required to proceed with an investigation.
We may contact you if we have to clarify or gather more information.
|
How long will this take?
|
You should receive a letter acknowledging your enquiry shortly after providing us with all the required information.
|
What information will you be told?
|
We will provide you with an overview of information about the enquiry process. This will include when you will next hear from us and the steps in the process. We will also advise what else you can do and where you can obtain more information about the process.
|
Questions you may have at this stage of the process
|
What are SG entitlements?
SG entitlements refer to SG and choice of super fund.
The SG is a minimum level of super that an employer must pay to eligible employees by law.
Choice of fund gives many employees the right to choose which super fund will receive their employer SG contributions.
Can I lodge an enquiry about unpaid super if the period in question was over five years ago?
The SG legislation requires an employer to keep records for at least five years. If the period to which your enquiry relates falls outside of this timeframe, we can only determine if your employer has not made sufficient SG contributions where you have irrefutable written documentation to support your entitlement. If you do not have documentary evidence that your employer has not met their SG obligations, we cannot take any further action in relation to periods beyond five years ago.
|
When will you hear from us?
|
We will send you a letter:
|
Next step
|
Investigation started.
|
Step 2 - Investigation started
What are we doing?
|
Based on information provided to date, we believe you are eligible for SG entitlements and we will start investigating your situation.
We will contact your employer to determine whether or not they have met their super obligations. We may contact your employer by phone, send them a letter or visit their premises to obtain the information we require for our investigation.
|
How long will this take?
|
The timeframe will vary depending on the number of enquiries we receive.
|
What information will you be told?
|
We will provide you with an overview of our investigation process. This will include some of the reasons why it can take so long and when you will next hear from us.
|
Further information that may be of value
|
To find out your employer's super obligations, refer to the Guide to superannuation for employers.
|
When will you hear from us?
|
We will send you a letter:
- if we are experiencing delays with the investigation of your employer
- when our investigation of your employer is closed.
You will also receive a letter:
|
Next step
|
Investigation progressing
or
Employer debt established.
|
Step 3 - Investigation progressing
What are we doing?
|
We are still following up your employer to obtain the information we need to determine if they have met their super guarantee obligations.
If we do not receive the required information from your employer by the due date, we will try to work out whether they have met their super guarantee obligations based on the information we do have.
|
How long will this take?
|
While we aim to complete all investigations as quickly as possible, delays may occur if:
- your employer is slow to respond to our request for information
- your employer does not provide enough information
- we have a large number of investigations in progress.
|
What information will you be told?
|
We will advise you if we are experiencing delays with our investigation of your employer.
|
Questions you may have at this stage of the process
|
Why do you wait so long to receive the information required from the employer?
We give your employer set timeframes to provide us with the information we have requested. There may be circumstances unique to your employer where we need to allow them a longer period.
Once our deadlines have passed, we will make a decision based on the information we have available to us.
In some situations, we may not have enough information to enable us to make a decision, and we may need to pursue legal action to obtain the information we need. This can be a very long process.
Be assured that we will continue to advise you of the progress of our investigation.
|
When will you hear from us?
|
We will send you a letter when our investigation of your employer is closed.
You will also receive a letter if:
|
Next step.
|
Employer debt established.
|
Step 4 - Employer debt established
What are we doing?
|
Based on the information received from your employer, we have established that they have not met their super guarantee obligations.
We will send:
- your employer an assessment that tells them how much they owe and when payment was due
- you a letter telling you that we have completed our investigation and the outcome.
|
How long will this take?
|
We aim to complete our investigations as quickly as possible. Some investigations may take longer, particularly if we need to go to court to obtain the information we require from your employer.
|
Questions you may have about this letter
|
How much super will I get?
You can phone us and we will arrange to advise you of the amount owed to you by your employer for the period of your complaint. This amount is only an estimate, because it is based on the information provided to date.
The actual amount that is paid into your super fund may differ from the estimate we provided, because the estimated amount:
- accrues interest on a daily basis, or
- could decrease if the employer provides new information to us that proves they owe a lesser amount.
|
When will you hear from us?
|
We will send you a letter:
|
Next step
|
Debt collection progressing.
|
Step 5 - Debt collection progressing
What are we doing?
|
When we establish that your employer has not met their super obligations, we issue them with an assessment. The assessment tells the employer how much they owe and when their debt was due.
We will then pursue the outstanding debt from your employer. The debt collection process involves contacting your employer by phone or in writing to come to an agreement on how the debt will be collected. Your employer may be asked to pay the outstanding amount in full or they may negotiate payment over time in a series of instalments.
We may commence legal action in those cases where we are unsuccessful in collecting the amount owed.
|
How long will this take?
|
We aim to collect the debt owed by your employer as soon as possible. The debt owed by your employer during this period accrues interest on a daily basis.
The timeframe, however, depends on your employer's ability to pay their debt. Delays may occur if:
- your employer has not responded to our request for payment
- your employer does not adhere to an agreed payment plan
- we need to initiate legal action against your employer
- your employer has disputed the debt that we have estimated they owe. This means that we may need to re-calculate the debt, based on the new information provided by your employer. The amount payable to you may change.
|
What information will you be told?
|
If your employer has not paid their debt, we will send you a letter advising you:
- we are still pursuing collection of your employer's debt, or
- we have commenced legal action against your employer.
If your employer makes payments promptly, you will receive a letter from us providing details of how much was transferred into your super fund.
|
When will you hear from us?
|
We will send you a letter:
|
Next step
|
Query closed.
|
Step 6 - Query closed
What are we doing?
|
Your query will be closed after we have concluded our investigation and taken the steps available to us to retrieve any outstanding super guarantee amount.
|
What information will you be told?
|
You will receive a letter advising that your query has been closed and an explanation of the reason why.
There are a number of reasons why your query can be closed, such as:
|
Not eligible for super
Below are examples of why you are not eligible for super.
- Your employer was not required to provide SG contributions.
This letter will list reasons why you are not entitled to receive SG contributions.
- Your employer was not required to offer you choice of super fund.
This letter will list reasons why your employer was not required to offer you choice of super fund.
- We have been unable to confirm a relationship between the employer and you.
This letter will advise we have not received the required information from you to establish an employment relationship.
Your employer has done the right thing
Below are examples of why your employer has done the right thing.
- Your employer has paid the money to us.
This letter will advise we have confirmed that a payment was made to us.
- Your employer has paid the money to us through the superannuation holding accounts special account.
This letter will advise we have confirmed that a payment was made to us through the superannuation holding accounts special account.
- Your employer has paid the money to your super fund.
This letter will advise that contributions have been made to the super fund.
- The period of your enquiry is for the current quarter.
This letter will advise that your enquiry relates to the current quarter and your employer still has time to meet their obligations.
- The period of your enquiry dates back more than five years.
This letter will advise that legislation requires an employer to keep records for at least five years. As you do not have the documents to support your entitlement to super contributions, we cannot take any further action.
Your employer is bankrupt
This letter will advise when your employer had a trustee appointed under the Bankruptcy Act 1966. It will advise that it is the responsibility of the appointed trustee to advise if there are sufficient funds to meet your employer's super guarantee obligation. We will provide the contact details of the bankruptcy trustee's name and address.
Your employer's company is in liquidation
This letter will say when a liquidator was appointed. It will advise that it is the responsibility of the liquidator to advise if there are sufficient funds to meet your employer's super guarantee obligation. We will provide the contact details of the liquidator's name and address.
Your employer's company is under administration
This letter will say when an administrator was appointed. It will advise that it is the responsibility of the administrator to advise if there are sufficient funds to meet your employer's super guarantee obligation. We will provide the contact details of the administrator's name and address.
Your employer's company is deregistered
This letter will provide confirmation when this company was deregistered. It may advise that there is no business or company for us to take action against, so we are not able to take further action in relation to your enquiry.
The Australian Securities & Investment Commission (ASIC) maintains a database of all registered companies. You can search ASIC's register via their website.
We have determined the debt is not recoverable
This letter will advise we have taken the action we can in relation to your enquiry and unfortunately you will not receive any super from your employer.
It will list reasons why this occurred, such as:
- as a result of legal action, we have received a court decision telling us that payments owed by your employer can no longer be pursued
- the cost of us pursuing the unpaid super is higher than the amount owed to you
- your employer provided us with information to prove they do not owe you any super guarantee.
Questions you may have about this step in the process
Why has the ATO closed my query when I haven't received payment in my super fund?
We will do everything possible to obtain payment from your employer.
However, there may be circumstances where you will not receive a payment. This can happen if:
- as a result of legal action, we have received a court decision telling us that payments owed by your employer can no longer be pursued
- the cost of us pursuing the unpaid super is higher than the amount owed to you
- your employer provided us with information to prove they do not owe you any super guarantee
- your employer provides us with new information that proves the amount previously calculated was incorrect. This can happen, for example, if your employer
- can show that you are not entitled to receive super
- can show they have fulfilled their obligations
- lodges a request for an amended assessment or an objection.
Be aware that we can reinstate an employer's debt in some circumstances, even if it has been reduced to zero. Any payments recovered would be forwarded to your super fund.
See other ways to obtain unpaid super.
When will you hear from us?
Your case has been finalised and you will not receive any further correspondence from us on your query.
Last Modified: Friday, 14 September 2012
|