Penalties your employer may face for not paying super

If your employer has not been paying you super, what can you do? And, what penalties will apply to your employer for doing the wrong thing? We take a look.

Most employees in Australia are entitled to be paid superannuation under the Super Guarantee rules. Generally, if you are older than 18 and being paid more than $450 a week, the Australian Taxation Office (ATO) states that you are likely to be eligible for your employer to contribute funds into your super account, at least four times a year.

How can I check if I am being paid the right amount of super?

Here is a list of questions and answers that might help you to work out if you are getting paid the right amount of super:

1. Should you be getting super?

The ATO has a tool that you can use to check if you are entitled to be paid super.

2. How much super should I be getting paid?

The ATO has a tool that can help you to estimate how much super you are entitled to receive.

3. How much am I being paid?

How much your employer is contributing on your behalf to your super fund should be outlined on your payslip. The Fair Work Ombudsman states that how much super you are entitled to could depend on the type of job you have and if it is covered by an award or registered agreement.

The ATO suggests you can talk to your employer, and ask them how often they are paying your super, how much they are paying and into which fund. But to confirm if your employer is actually contributing this amount to your super account, you will have to check your superannuation fund transaction history:

• via myGov: you can set up a myGov account if you don’t have one already and check your super via the ATO portal.
• via your super fund: To do this, you’ll need to know which fund your employer is paying your super into and your super fund account number. If you have not contacted your super fund before, you may be required to prove your identity, which could involve telling them your birth date, Tax File Number and other particulars. Funds typically have an online portal through which you can access your account.

4. Does my transaction history match up to what I should be getting paid?

By checking your super account’s transaction history, you will be able to see what amounts have been paid at what times. If you compare your transaction history to the results of the ATO estimation tool, this could help you to work out if you have been shortchanged.

Explore: 7 things to check on your superannuation statement

What do I do if I think my employer has not paid my super correctly?

If you have checked your super transaction history, spoken with your employer and think they have not been contributing to your superannuation fund correctly, there are a number of options you could take, according to the Fair Work Ombudsman and the ATO. You can:

• lodge an enquiry with the ATO
• go to the Fair Work Ombudsman and ask for help. You may be asked to complete a wages and conditions claim form, and the Ombudsman may help pursue what you are entitled to (such as through court).
• investigate state or territory measures that may apply based on how you are employed. The ATO says if you’re employed under one of the state industrial relations systems (in NSW, Queensland, South Australia, Western Australia or Tasmania) your employer may be ordered to pay the shortfall amount to your super fund under the law.

What penalties can apply to an employer for not paying super correctly?

The ATO states that if the employer doesn’t pay the minimum amount by the required date, they could be charged a fee, called the Super Guarantee Charge (SGC). If they do not pay this charge after being directed to do so, the ATO states a failure to comply “is a criminal offence and can result in penalties or imprisonment”.

If an employer does not comply with the ATO’s directions, they could face harsher penalties. For example, the ATO can choose to penalise the directors of the company or enforce a ‘garnishee notice’, where the ATO will take action on your behalf to ensure the funds are paid by the employer.

If your employer has not been paying you super correctly, you may be considering seeking professional legal advice. Moneysmart has information about free legal advice that’s available in Australia.

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