ACT Superannuation - Shift Allowance Not Counted as Super Salary?

[query1]

I am a shift-worker, and currently getting a shift loading 15% for dayshifts and 30% for nightshifts.
Recently, I noticed that the shift loading part is not counted as SUPER salary by our employer: i.e., current superannuation contribution (both employer's and my own contributions) is calculated only based on a base-salary without shift loading (from 2008 to present).

From ATO website, it clearly indicates that shift loading should be counted as OTE (ordinary time earning).
Checklist: salary or wages and ordinary time earnings | Australian Taxation Office

I called ATO for more information, and their suggestion is to contact "Fair Work Australia".

My questions:

1. Is it OK for an employer to do so? What's consequence for an employer NOT to comply with ATO's rules?
2. If the employer is dodgy on this, what is the best way to resolve this? Getting a lawyer involved? Or getting help from UNION?
3. Since it has been 7 years (started from 2008), is it possible to get "back pay", or get some compensation for lost interest?

Any suggestion and comment are welcome.

 

[Sophea]

Hi query1,

I would first approach your employer about this and state what you know the law to be - that he should have been paying you super based on the shift loading for last 7 years but hasn't been and that you will give him 28 days to back pay you for that into your nominated super account, failing which you will lodge an investigation request into unpaid super with the ATO. He could face large penalties and fines for failing to pay super.

Fairwork Australia recommends that before contacting the ATO you should know the award or registered agreement covering your employment and check what these say about superannuation payments and have all your payslips in order to prove that you haven't been paid enough super.

 

[query1]

Hi Sophea,

Thank you very much for the suggestions - really appreciated.
We want to make sure we are absolutely right before taking this to employer (some of our members are very cautious).
If super salary is only defined by base-salary in Agreement (EA), can the employer use this to justify their current treatment – i.e., shift-loading is not counted as OTE? The following link from ATO indicates "shift-loading" is in OTE
Link:
Using ordinary time earnings to calculate the super guarantee | Australian Taxation Office

I will be back with more questions after looking into EA and discussing with colleagues.

Cheers!

Hi query1,

I would first approach your employer about this and state what you know the law to be - that he should have been paying you super based on the shift loading for last 7 years but hasn't been and that you will give him 28 days to back pay you for that into your nominated super account, failing which you will lodge an investigation request into unpaid super with the ATO. He could face large penalties and fines for failing to pay super.

Fairwork Australia recommends that before contacting the ATO you should know the award or registered agreement covering your employment and check what these say about superannuation payments and have all your payslips in order to prove that you haven't been paid enough super.