My employer failed to pay adequate super: what should I do?

Some employers neglect their duty to contribute to their employees’ super funds.

It’s up to you to check your super fund for the sake of your future security. If you find that your employer has failed to make adequate contributions, you can resolve the matter in several ways. We discuss your alternatives and talk you through the relevant steps.

Your employer can underpay or even fail to pay your superannuation contributions for one of several reasons: they may be deliberately avoiding their obligations, or they may believe they’re not responsible for the payments.

For example, some employers try to treat employees like subcontractors, taking the view that they’re not obliged to pay entitlements such as superannuation contributions. However, if the company you work for controls your work hours, determines your duties, provides the tools for your work or meets other control measures, this indicates an employer­–employee relationship. In these cases, employer­s are usually responsible for meeting Superannuation Guarantee obligations.

Ensure that your super contributions are paid

Prevention is always better than retrospective resolution, so it’s worth checking that your employer is meeting their superannuation obligations. Many people assume that their employers are doing the right thing, but this isn’t always the case. In fact, a recent report shows that up to 20% of employers fail to meet their Superannuation Guarantee obligations.

Even if you won’t need your superannuation for many years, there are other important reasons to check that your employer is making contributions. For one thing, any unpaid super can compromise the income-insurance cover your fund may include: your employer’s failure to pay any superannuation contributions — which includes making late payments — can leave you without total and permanent disability (TPD) insurance, death cover, income protection and terminal-illness cover for that period of time.

To ensure that your employer is making regular super contributions, read your pay slips and check with your super fund (perhaps by reading your member statements).

What to do if your employer hasn’t paid your super contributions

If you believe that your employer has underpaid some of your super contributions or simply left them unpaid, you can resolve the matter in several ways:

1. Speak to your employer. Your first step is to raise your concerns with your employer with a view to reaching an amicable resolution. Make sure you keep records of any relevant conversations or correspondence in case you decide to take the issue further.
2. Lodge a complaint with the Australian Taxation Office (ATO). The ATO governs superannuation law and can order your employer to make retrospective payments for you. If the ATO takes this action, and your employer still refuses to pay, these documents can be helpful evidence to support any future legal proceedings.
3. Seek advice from superannuation lawyers. If you suffer a financial loss due to your employer’s failure to pay super, we can help you. For example, as previously mentioned, unpaid super contributions can compromise your insurance coverage. Your employer’s failure to make these payments, including those that are late, can leave you uninsured for that period of time. We can investigate the situation, identify your employer’s obligations and pursue any lost contributions.

What to do if your former employer is defunct

If the company that has failed to make the correct superannuation contributions no longer exists, it’s still worth lodging a complaint with the ATO or pursuing legal advice. Depending on the situation, you or your lawyers could make an argument for payment of the super contributions or other financial losses.