Unpaid super from your employer
If you think your employer is not paying your superannuation (super), The ATO have a step-by-step process to help you investigate.
You should confirm that you are entitled for super guarantee before taking any further steps.
Usually an employer has to pay super contributions for you if you're either:
- 18 years old or over and paid at least $450 (before tax) in salary or wages in a calendar month
- Under 18 years old, work more than 30 hours per week and are paid at least $450 in salary or wages (before tax) in a calendar month.
It doesn’t matter if you work casual, part-time or full-time hours.
You can also be eligible for super if you're a contractor working and being paid primarily for labour (for example, a graphic designer). Labour includes mental and artistic effort as well as physical work.
Use the Estimate my super tool if you are unsure how much super guarantee your employer should be paying.
Talk to your employer. Ask how often they're paying your super, which fund they're paying it to and how much they're paying. Also ask if you're eligible to choose your super fund.
It’s a good idea to ask these questions when you start work with an employer.
Check your last member statement from your super fund or contact them to confirm whether your employer paid your super contributions for the period you're investigating.
Link to the ATO to:
- Check how much money has been paid into your super accounts in the last two financial years
- See details of all your super accounts, including any you have lost track of or forgotten about.
Lodge an enquiry. If you have completed steps 3 and 4 and still believe your employer is not paying enough, or any, super, or is not paying the super to your chosen fund, you can report your employer via the ATO online tool.
The ATO will investigate your employer and will keep you updated about the progress.
Note: if your enquiry relates to a period more than five years ago, the ATO will ask you to provide sufficient written documentation to support your entitlement.
Other ways to obtain your unpaid super
If you lodge an enquiry with the ATO, they will take action on the information you provide.
There are some other ways you can try to obtain unpaid super from your employer, including:
- If you're employed under the national workplace relations system (if you are or were employed in the ACT or any state or territory other than Western Australia, or you are employed by a company in Western Australia or under a federal award or agreement), you can seek an order from an eligible court under the Fair Work Act 2009.
- The Fair Work Ombudsman may be able to help you if you have not 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.
Information you need to provide if you lodge an enquiry about unpaid super?
When you lodge an enquiry about your unpaid super online, they will ask for:
- Permission to use your name when contacting your employer (in some instances the ATO 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 ABN (you should be able to obtain this from your last payslip, payment summary 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 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.
Providing written documentation if your enquiry relates to a period ending over five years ago
Generally, the ATO will not pursue unpaid super enquiries where the complaint is for a period that ended over 5 years ago. This is due to difficulty establishing whether there is an outstanding entitlement for super, as employers are only required to keep employment records for 5 years.
If you were hired under a contractual arrangement and reported personal services/business income, the ATO will not pursue any unpaid super enquiry because the period is over 5 years ago.
If you reported your income as salary and wages, the ATO can't pursue your enquiry unless the following can be provided as a minimum:
- Original payment summaries received from the employer for the years in question.
- Copies of super fund statements for the years in question, plus a further 6 months.
Even with this information, there is no guarantee your enquiry can be progressed due to the timeframe of the enquiry.
If you still decide to proceed with your enquiry, you will receive a letter within 28 days advising whether the investigation will commence.
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