QLD Employment Law - Employer not Paying Superannuation?

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Thomas Trask

24 July 2014
I found out my employer has not been putting my compulsory superannuation in to my super fund, but he has been putting the amount he is supposed to pay on my pay slip.

Is this fraud and can I have him charged? As the super guarantee dept of the ATO are useless, I feel my employer would fix it up sooner if he sees he could go to jail.

Sarah J

Well-Known Member
16 July 2014
Melbourne, Victoria
Hi Thomas,

Unpaid employer superannuation contributions, or incorrectly paid employer superannuation contributions, are treated as a taxation issue. In other words, your employer is getting benefits that they would not otherwise be entitled to.

You can do the following:

- Follow the ATO process for unpaid super and once you are sure that your employer has failed to contribute any superannuation to your chosen fund, you can lodge an enquiry with the ATO. At this stage, the ATO will send both you and your employer a notice (and some forms to fill) and begin an investigation into the matter.
- Concurrently, you can contact the Fair Work Ombudsman and lodge an enquiry or complaint about the unpaid superannuation.

If it is found that your employer has in fact been neglecting their statutory obligations, then they must fill in a super guarantee charge with the ATO — this consists of the superannuation shortfall + 10% interest on the amount per annum + administration fee of $20.00 per employee per annum. They will need to lodge a superannuation guarantee charge statement and this will be assessed by the ATO like any other taxation assessment: what happens if employers do not meet super obligations.
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LawConnect (LawTap) Verified
27 May 2014
Hi Thomas,

Going through exactly the same thing atm on behalf of a relative. I read the Act covering the superannuation guarantee and it appears I can't raise a court case using that act and that any action needs to be done by the ATO. :(

The good thing is that the ATO does take this type of matter seriously and do act on your information. The bad thing is that they do not provide much feedback to you and they are slow. One area I haven't looked at in the case I'm involved with is whether or not any criminality has taken place (ie financial benefit area) and I'm interested in knowing whether any criminal action is able to be instigated when the employer doesn't pay superannuation.

It is hard to not be emotional in cases like this but rest assured that the ATO will act, albeit slowly. One thing I found out is that the ATO will look at all employee records to see there are any other issues and this is part of the reason they can be slow.

Be patient and allow a few months.