Unpaid Super: How to Claim Back What is Rightfully Yours

The Superannuation Guarantee Scheme was introduced in 1992 with a mandatory 3 percent contribution rate which required employers to make a contribution to a superfund on the employee’s behalf. However, some employers may underpay or even fail to pay super contributions to an employee’s fund. There are a number of reasons your employer may not be paying adequate contributions to your fund, they may believe they are not responsible for the payments or they may be simply avoiding their obligations.  

Generally, if you are paid $450.00 or more before tax in a calendar month, your employer is required to pay super on top of your wages. The minimum an employer must pay is called the Super Guarantee (SG). The SG:-

• is currently 9.5% of an employee’s ordinary time earnings;
• must be paid at least four times a year by the quarterly due dates;
• super must be paid and reported electronically in standard format;
• super must be paid into a complying super fund; and
• if an employer does not pay the SG on time, they are required to pay the super guarantee charge (SGC).

If you think your employer has underpaid or failed to make super contributions, there are steps you can take steps to recover unpaid super from your employer.

Ensure you are entitled to be paid super

There are a number of ways you can check whether you are entitled to be paid super by your employer. You can:-

• Talk to your employer and ask how much they’ve paid and which fund they have paid it into (you should also be able to check this on your payslips);
• If you have a myGov account, you can use the ATO online service to view any super contributions that have been paid into your nominated super fund; or
• You can check your member statement from your super fund.

If you’re not sure, you can use the Australian Taxation Office (AT0) online tool to determine whether you are entitled to paid super (https://www.ato.gov.au/calculators-and-tools/am-i-entitled-to-super/).

Reporting your employer and the investigation process

If your own enquiries confirm that your employer has not made adequate contributions or has failed to pay your super, you can let the ATO know your employer hasn’t met their super guarantee obligation by using the online reporting tool (https://www.ato.gov.au/calculators-and-tools/report-unpaid-super-contributions-from-my-employer/). You will also need to provide the ATO with your personal details (including your tax file number), the period of your enquiry and your employer’s details (including their ABN). 

Once your enquiry is lodged, the ATO will commence an investigation into your employer and will keep you updated about the progress of the case by letter or email.

Making them pay

If the ATO investigates your employer and then ultimately finds your employer has not paid your super, the ATO will send an assessment letter to your employer which states how much they owe to you and when payment was due.

If your employer is a company and is placed into external administration or liquidation, there are some cases where the ATO can pursue a director personally for any unpaid super guarantee contributions by issuing a Director Penalty Notice. The ATO will then need to advise you when an administrator or liquidator was appointed and it will be the responsibility of the liquidator to advise if there are sufficient funds to meet your employer’s unpaid SG.

Be wary of the time limits

Generally, the ATO will not pursue unpaid super enquiries where the complaint is for a period that ended five (5) years ago (e.g. you make a claim for unpaid super for the 2010/11 financial year).

If your enquiry is outside of the five year period, the ATO will require original payment summaries or income statements received from your employer for the years in question and any copies of super fund statements for the enquiry period, plus a further six (6) months.

To further support your claim, the ATO may also ask you to provide payslips issued by your employer.

If you are outside of the time limit and you provide these documents, there is no guarantee your enquiry can be progressed due to the timeframe of the enquiry.

If you think your employer has not paid your super, contact the team at Connolly Suthers who can assist you in making a claim.