VIC Can Employee Initiate Court Action for Underpayment of Superannuation?

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Rod

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27 May 2014
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Hi guys,

When an ex-employer is found to have underpaid superannuation, is it possible to initiate court action for recovery of the underpayment or does the employee have to go through the ATO?
 

Lance

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31 October 2015
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Hi Rod,

Of course you can initiate court action to recover your underpayment, but generally you should have approached your employer in the first instance and then lodge a complaint with the ATO as they govern superannuation law.

The ATO also have the power to order your employer to make retrospective payments to you. If your employer refuses to pay after the ATO have ordered them to do so then that could be used as evidence for your court action.

I hope that helps.
 

Rod

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Partly helps. Is it possible to skip the ATO altogether? I am not sure an ex-employee has standing as the Superannuation Guarantee (Administration) Act 1992 assigns the administration of the Act to the ATO.

Preferred course of action at the moment is to issue a final demand to ex-employer and give 14 days to pay. If that fails go to Federal or Magistrates Court.

Last time I involved the ATO they entered into a payment plan with an ex-employer and 2 years later money is still coming in dribs and drabs despite ex-employer having the capacity to pay all money in one lump sum.
 

Lance

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31 October 2015
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I may have misinterpreted what you have said, but if you have taken the issue to the ATO and you aren't satisfied with the outcome you are well within your rights to pursue an action through the courts. If it were me I would sit down with a lawyer specialising in Superannuation law.