Q: What steps can I take to ensure my employer contributes all that I am owed to my super fund? I have been asking my employer for the last 3 to 4 months about putting my super contributions into my super fund, as they have not done so since I started working there about 1.5 years ago. I only realised that there were no payments being made when I received my yearly statement from my super fund. I have been asking ever since to no avail. I am about to relocate overseas. Any help you have would be greatly appreciated, as I’m in quite a tough spot here. We also have some temporary residents working at the same company who have no clue about super entitlements.
A: I suggest you report this situation to the ATO on the special ATO Superannuation customer service line by phoning 13 10 20. Explain the urgency of your situation to the ATO, and also to the super fund where you have your super account. Your employer may have a contractual arrangement with your super fund, which means the super fund can also chase these payments on your behalf.
The ATO has stepped up its compliance program in chasing slack employers who fail to pay SG contributions on behalf of employees, although the ATO has been criticized about not being more pro-active, both recently and in the past (see SuperGuide article Unpaid super: Should the ATO chase more slack employers?).
Most recently, the ATO has focused on employers in consumer service industries, such as the car retailing industry and bakeries, to check for non-compliance with SG obligations. Previously, the industries that the ATO has targeted for non-compliance of SG obligations include the following:
- building and industrial cleaning industry
- child care services
- hospitality (pubs, bars and taverns)
- road freight/transport
- automotive repair businesses
- real estate services
- electrical services industries.
Background: Your employer must pay your quarterly Superannuation Guarantee (SG) entitlements by a certain date (see table below), and most employers do the right thing. For the benefit of other readers, later in the article, we outline how an employee can check whether an employer has paid his or her Superannuation Guarantee (SG) entitlements.
SG payment deadlines for employers
|Payment period||SG deadline for each 3-month period|
|1 July – 30 September||28 October|
|1 October – 31 December||28 January|
|1 January – 31 March||28 April|
|1 April – 30 June||28 July|
Note for temporary residents: An Australian employee who is considered to be a temporary resident, can claim their super benefits when leaving the country by applying for a Departing Australia Superannuation Payment (DASP) when leaving Australia (for more information see SuperGuide article Accessing super early: Temporary resident of Australia). In the situation where a temporary resident is involved, presumably the ATO will arrange payment of the SG owing to the temporary resident by remitting the amount overseas in accordance with the DASP application. Note that tax will be deducted from the DASP. For those readers who are temporary residents, you may also find helpful our article Superannuation Guarantee: Do we have to pay SG for overseas workers?
What happens to your employer if he or she fails to pay your SG entitlements?
The first step is someone has to identify that your employer hasn’t paid your entitlements. The failure to pay can be dealt with directly, with the employer, if you believe it is an honest oversight, but more likely, the ATO will need to get involved because the employer has broken the law. By reporting your employer to the ATO, the ATO can impose the Superannuation Guarantee charge for failure to pay the SG. The Superannuation Guarantee Charge involves paying the SG owed, plus an interest premium, plus an administration fee.
The ATO has a five-step process when investigating complaints about non-payment of SG. The five steps are explained on the ATO website: click on this link for the relevant information.
It is prudent to do some investigation yourself before reporting your employer to the ATO, just in case there is another explanation.
How to check that your employer has paid your SG entitlements – in 4 steps
- Check that the due payment date has passed for your employer’s quarterly SG contribution (see table earlier). Your employer may pay your SG entitlements more frequently – monthly or even fortnightly.
- Ask your employer, or your employer’s payroll officer, if, and when, the SG contribution was made. Your employer may disclose SG payments on your pay slip (although unbelievably they are not required to), how much super was paid into your super fund, and when it was paid.
- Check with your super fund via the telephone, or via the internet (if you have online access to your super account details), that the SG contribution was received by the fund.
- Check how much your employer has contributed for the past 2 financial years, by using the ATO portal, myGov (click here to register for MyGov), but note that more recent non-payments by your employer may not yet appear on myGov, which is why steps 1 to 3 remain important. (For information on how myGov works, see SuperGuide article Coping with myGov: Why the government wants you to go online).
What information do I need to give to the ATO?
If you wish to report your employer to the ATO, before you phone the ATO on 13 10 20, try to collect the following information:
- Your tax file number
- Your employer’s Australian Business Number (ABN). You can find this number on the company’s stationery or on receipts etc
- Your employer’s name, address and contact details.
You can learn more about the ATO investigation process (which we also refer to earlier) by clicking on this link.
What if my employer has gone broke?
If your employer has not paid your super entitlements into your super fund, and your employer has gone out of business, chasing your SG entitlements can become more difficult. I explain this scenario in Super for Beginners, part 19: My employer has gone broke. What happens to my SG entitlements?