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  • Other ways to claim your unpaid super

    If you lodge an enquiry with us, we will take action based on the information you provide.

    There are some other ways you can try to claim unpaid super from your employer, including:

    • If you're employed under the national workplace relations system, you can seek an order from an eligible court under the Fair Work Act 2009. This includes people who are or were employed in any state or territory other than Western Australia, or by a company in Western Australia or under a federal award or agreement.
    • The Fair Work Ombudsman may be able to help you if you haven't received all of your workplace conditions and entitlements. They may get you to complete a wages and conditions claim form and pursue your entitlements on your behalf, including going to court.
    • Some investigations result in the Fair Work Ombudsman receiving payments from employers for outstanding wages and entitlements. Search the Fair Work Ombudsman's unpaid wages database to find out if your employer paid the Australian Government money owed to you.
    • If you're employed under one of the state industrial relations systems (in NSW, Queensland, South Australia, Western Australia or Tasmania), each state has laws that enable the courts to order your employer to pay the shortfall amount to your super fund.

    See also:

    Information you need for your enquiry

    When you lodge an enquiry about your unpaid super, we will ask for:

    • permission to use your name when contacting your employer (in some instances we may not be able to proceed with your enquiry or there may be delays if permission is not provided)
    • your employer’s contact details including business address
    • your employer’s Australian business number (you should be able to obtain this from your last payslip, payment summary, or income statement or from the employer’s business letterhead stationery)
    • your contact details
    • 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 (before tax) in a calendar month – the online calculator tool will require your total salary or wages per quarter
    • are under 18 years old, worked more than 30 hours per week and were paid at least $450 (before tax) in a calendar month
    • checked with your employer and super fund if any super was paid, where you believe your employer has not paid super into your nominated fund access ATO online services by logging into myGovExternal Link to ensure the money was not paid into your employer’s default fund within 60 days of your nomination
    • if you're being paid as a contractor, but believe you're an employee for super purposes, you need to provide a copy of the invoices you issued to your employer for the period of your enquiry.

    See also:

    Find out about:

    Documentation if your enquiry is from over five years ago

    Generally, we will not pursue unpaid super enquiries where the complaint is for a period that ended over five years ago. This is due to the difficulty in establishing whether there is an outstanding entitlement for super, as employers are only required to keep employment records for five years.

    If you were hired under a contractual arrangement and reported personal services/business income, we can't pursue any unpaid super enquiries if the period falls outside the five year timeframe.

    If you reported your income as salary and wages, we can't pursue your enquiry unless you can support your entitlement by providing written documentation of the following as a minimum:

    • original payment summaries or income statements received from the employer for the years in question.
    • copies of super fund statements for the years in question, plus a further six months.

    We may also ask you to provide pay slips issued by the employer demonstrating whether contributions were being made to a particular fund.

    Even with this information, there is no guarantee your enquiry can be progressed due to the timeframe of the enquiry.

    If you decide to proceed with your enquiry, you will receive a letter within 28 days advising whether the investigation will commence.

    Our process when investigating your enquiry

    We can provide you with advice on the progress of your unpaid super and choice of fund enquiries, provided the information:

    • doesn't relate to the financial affairs of your employer
    • relates directly to the Commissioner of Taxation's response to your complaint about your employer's failure to comply with their Superannuation Guarantee (SG) obligations.

    Once you lodge your enquiry, we'll keep you updated about the progress of your case by letter or email. We'll contact you each time we reach one of the steps set out below. If you're registered with myGov, progress letters will be sent to your myGov account. If not, we'll send letters to the postal address attached to your tax file number (TFN). Notify us if you change address or mobile number and ensure your myGov account is up-to-date.

    We may need to contact you to obtain information or discuss details of your enquiry. This will generally be by phone or SMS. Be prepared and respond promptly to our messages. It's important we speak to you to save time in the investigation process.

    The steps below give a detailed description of the work we do at each step of our investigation and the information you will receive:

    Example: Best outcome for Joe

    Joe has worked for Make Believe Pty Ltd for the past two years. Joe checks his statement from his super fund, Total Super. He discovers Make Believe Pty Ltd has not been paying him enough super.

    Having achieved no result after contact with his employer, Joe lodges an enquiry with us so 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.

    After our investigation Joe receives another letter from us. This letter advises we have established there is an outstanding SG amount payable by Make Believe Pty Ltd to Joe.

    After our debt collection process Joe receives another letter from us. This letter advises we have transferred a sum of money from Make Believe Pty Ltd into Joe’s account with Total Super.

    After we've completed our processes, Joe will receive a letter from us advising his enquiry has been closed.

    Joe’s enquiry is completed within 12 months.

    End of example

    Steps to your enquiry

    Step 1: Query received

    Query received

    What are we doing?

    When we receive your enquiry, we make sure we have all the information required to proceed with an investigation.

    We may contact you to clarify or gather more information.

    How long will this take?

    We will send you a letter acknowledging your enquiry shortly after we receive all the required information.

    What information will you be told?

    We'll provide you with an overview of information about the enquiry process. This includes when you'll hear from us next and the steps in the process. We'll also advise what else you can do and where you can obtain more information.

    Questions you may have at this stage of the process

    What are SG entitlements?

    SG entitlements include:

    • Employer SG contributions – the minimum level of super an employer is required to pay into an employee's super fund if they're eligible.
    • Choice of fund – allows most employees to choose which super fund their employer SG contributions go into.

    Can I lodge an enquiry about unpaid super if the period in question was over five years ago?

    If you don't 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?

    At this stage, we will send you a letter if we have found:

     

    Step 2: Investigation progressing

    Investigation progressing

    What are we doing?

    We follow up with your employer to obtain the information we need to determine if they have paid the minimum amount of super.

    If we don't receive the required information from your employer by the due date, we will try to work out whether they paid the minimum amount of super based on the information we have.

    How long will this take?

    We aim to complete investigations as quickly as possible, but 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'll 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 we wait so long to receive the information required from the employer?

    We give your employer set timeframes to provide us with the information we 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 make a decision, and may need to pursue legal action to obtain the information we need. This can be a very long process.

    In these circumstances, we'll 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:

     

    Step 3: Employer debt established

    Employer debt established

    What are we doing?

    We are able to establish, based on the information available to us at the time, your employer has not paid the minimum amount of super.

    We will send:

    • your employer an assessment that tells them how much they owe and when payment was due
    • you a letter telling you we have completed our investigation and the SG amount owing to you. 
     

    How long will this take?

    We aim to complete investigations as quickly as possible. Some 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?

    The amount you're owed by your employer for the period of your enquiry is only an estimate based on the information provided to date.

    The actual amount paid into your super fund may differ from the estimate we provide, because the estimated amount:

    • accrues interest on a daily basis
    • could decrease if the employer provides new information that proves they owe a lesser amount.
     

    When will you hear from us?

    We will send you a letter:

    • when we transfer payments we have received from your employer into your super fund
    • if we are still trying to collect your employer’s debt
    • if we need to take legal action against your employer
    • if your employer is bankrupt, in liquidation or under administration
    • when the investigation has been closed.
     

    Step 4: Debt collection progressing

    Debt collection progressing

    What are we doing?

    When we establish your employer has not paid the minimum amount of super, we issue them an assessment. The assessment tells your employer how much they owe and when their debt was due.

    We will pursue the outstanding debt from your employer. This involves contacting them 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 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. During this period, the debt accrues interest daily.

    The timeframe 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 we have estimated they owe. We may need to re-calculate the debt, based on 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 that:

    • we are still pursuing collection of your employer’s debt
    • 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:

    • when payments received from your employer have been deposited into your super fund
    • if we cannot determine an active superfund that accepts payments from us
    • if your employer is bankrupt, in liquidation or under administration
    • when your investigation has been closed.
     

    Step 5: Query closed

    Query closed

    What are we doing?

    We will close the investigation after taking available steps to retrieve any outstanding SG amount.

    What information will you be told?

    You will receive a letter advising that our investigation has been closed and an explanation of the reason why.

    There are a number of reasons why the investigation can be closed, such as:

    In some cases where an employer is under administration or in liquidation, we can pursue directors personally for any unpaid super guarantee contributions. You'll be advised in writing of any allocation of super made to your super fund.

    Find out about:

    See also:

    Information we will give you

    Not eligible for super

    Examples of why you're not eligible for super:

    • Your employer was not required to provide SG contributions – your letter will list why you're not entitled to SG contributions.
    • Your employer was not required to offer you choice of super fund – your letter will list why your employer was not required to offer you choice of super fund.
    • We are unable to confirm a relationship between you and the employer – your letter will advise we did not receive the required information from you to establish an employment relationship.

    Your employer has done the right thing

    Examples of why your employer has done the right thing:

    • Your employer paid the money to us – your letter will confirm a payment was made to us.
    • Your employer paid the money to us through the superannuation holding accounts (SHA) special account – your letter will confirm a payment was made to us through the SHA special account (ATO-held super).
    • Your employer paid the money to your super fund – your letter will advise contributions were made to your super fund.
    • Your enquiry is for the current quarter – your letter will advise your enquiry relates to the current quarter and your employer still has time to make super contributions to your fund to avoid the SG charge.
    • The period of your enquiry dates back over five years – and we're unable to obtain the documents we need to investigate your claim. We'll advise you if we are unable to progress your claim.

    Note: Employers are required to keep records for no more than five years.

    See also:

    Your employer is bankrupt

    Your letter will advise when your employer had a trustee appointed under the Bankruptcy Act 1966. It is the appointed trustee's responsibility to advise if there are sufficient funds to meet your employer’s unpaid SG. We will provide you with the contact details for the trustee.

    Your employer’s company is in liquidation

    Your letter will say when a liquidator was appointed. It is the liquidator's responsibility to advise if there are sufficient funds to meet your employer’s unpaid SG. We will provide contact details for the liquidator.

    Your employer’s company is under administration

    Your letter will say when an administrator was appointed. It is the administrator's responsibility to advise if there are sufficient funds to meet your employer’s unpaid SG. We will provide the contact details for the administrator.

    Director penalty notices

    In some cases directors may be personally liable for unpaid SG contributions where insolvency proceedings have begun. This applies to quarterly due dates from 30 June 2012 onwards.

    Information about action taken against an individual director can't be disclosed due to privacy laws. You will be advised in writing of any allocation of super made to your super fund.

    See also:

    Your employer’s company is deregistered

    Your letter will confirm when the company was deregistered. It may advise there is no business or company for us to take action against, so we're unable 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 registers on their website.

    Next step:

    We have determined the debt is not recoverable

    Your letter will advise we have taken the action we can in relation to your enquiry and, unfortunately, you won't receive any super from your employer.

    It will list why this occurred, such as:

    • as a result of legal action, a court decision prevents payments owed by your employer from being pursued
    • your employer provided information proving they don't owe you any SG.

    Further information about the process

    Why an investigation may be closed if you haven't received payment to your super fund

    We do everything possible to obtain payment from your employer.

    However, there may be circumstances where you won't receive payment. This can happen if:

    • as a result of legal action, a court decision prevents payments owed by your employer from being pursued
    • your employer provided information proving they don't owe you any SG
    • your employer provides information proving the amount previously calculated was incorrect. This can happen, for example, if your employer:            
      • shows you're not entitled to receive super
      • shows they contributed the minimum amount
      • lodges a request for an amended assessment or an objection.
       

    We can reinstate an employer’s debt in some circumstances, even if it was reduced to zero. Any payments recovered are forwarded to your super fund.

    See also:

    How to provide additional information in relation to your enquiry

    If your employer recently changed address or contact details, contact us on 13 10 20 to provide us with their new details or for additional information that may assist us in collecting your unpaid super.

    If you would like to extend the period of your enquiry you need to lodge a new enquiry by using the report your employer online tool.

      Last modified: 21 Oct 2019QC 19274