• 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 SG obligations.

    Once you lodge a query, 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.

    In some cases your employer is encouraged to comply by paying any outstanding super and sufficient interest directly into your nominated fund.

    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.

    Step 1

    Query received

    Step 2

    Investigation progressing

    Step 3

    Employer debt established

    Step 4

    Debt collection progressing

    Step 5

    Query closed

    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 the ATO, 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 an 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.

    Following the 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.

    Finally, Joe receives a letter from us advising his enquiry has been closed.

    Summary – Joe’s enquiry is completed within 12 months.

    End of example

    Steps to your enquiry

    Step 1 – 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?

    You should receive a letter acknowledging your enquiry shortly after providing 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 refer to SG and choice of super fund.

    The SG is a minimum level of super an employer must pay to eligible employees by law.

    Choice of fund gives many employees the right to choose which super fund receives their employer SG contributions.

     

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

    SG legislation requires an employer to keep records for five years. If the period your enquiry relates to falls outside this timeframe, we can only determine if your employer has not made sufficient SG contributions where you have sufficient written documentation to support your entitlement.

    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?

    We will send you a letter if:

     

    Step 2 – Investigation progressing

    What are we doing?

    We follow up with your employer to obtain the information we need to determine if they met their SG obligations.

    If we don't receive the required information from your employer by the due date, we will try to work out whether they met their SG obligations based on the information we do 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 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 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.

    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:

     

    Step 3 – Employer debt established

    What are we doing?

    Based on information received from your employer, we established they have not met their SG 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 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?

    Phone us and we will advise you of the amount you are owed by your employer for the period of your complaint. This amount 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:

     

    Step 4 – Debt collection progressing

    What are we doing?

    When we establish your employer has not met their super obligations, 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 you:

    • 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:

     

    Step 5 – 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. Information about action taken against a director can't be disclosed due to privacy laws. However, you will be advised in writing of any allocation of super made to your super fund.

    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.
    • 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 meet their obligations.
    • The period of your enquiry dates back over five years – your letter will advise employers are required to keep records for at least five years. As you don't have documents to support your entitlement to super contributions, we can't take further action.

    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 SG obligation. We will provide 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 SG obligation. 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 SG obligation. We will provide the contact details for the administrator.

    Director penalty notices

    In some cases directors may be personally liable for unpaid super guarantee 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
    • the cost of us pursuing the unpaid super is higher than the amount owed to you
    • your employer provided information proving they don't owe you any SG.
      Last modified: 27 Jun 2017QC 19274