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_PotoCa(I'm new)I'm new
5 Feb 2021

Hi, my question is about employer contributions that are based on obligations stated in an enterprise agreement.

For example, an agreement states the compulsory employer superannuation contributions will be made "as required by the applicable legislation and fund requirements on the basis of fortnightly contribution salary". That agreement applies to employees of the Australian Government, so applicable legislation could include the Superannuation Act 2005. The relevant fund requirement for the default fund might state the employer will contribute at a rate of 15.4% of superannuation salary.

I understand the ATO can investigate underpayment of superannuation, but might not intervene where the employer has met the minimum SG rate of 9.5%.

Can you please confirm that the ATO can investigate instances where an employer fails to meet a greater compulsory contribution percentage rate, as illustrated in the example given here?

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Glenn4802(Devotee)Devotee
5 Feb 2021

The super guarantee legislation, administered by the ATO, only relates to contributions of 9.5% of qualifying amounts. So it is unlikely that the ATO would follow up in cases where the 9.5% amount has been correctly paid on time but higher amounts were not. If this is the case, you could raise the issue with Fairwork.

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Glenn4802(Devotee)Devotee
5 Feb 2021

The super guarantee legislation, administered by the ATO, only relates to contributions of 9.5% of qualifying amounts. So it is unlikely that the ATO would follow up in cases where the 9.5% amount has been correctly paid on time but higher amounts were not. If this is the case, you could raise the issue with Fairwork.

SebReiter(Devotee)Devotee
8 Feb 2021

Hi PotoCa

Glenn4802 is right. The ATO has administration of the Super Guarantee, has no role, no legislative authority for any obligations employers have to pay more than the minimum SG amount.

Where an employer hasn't paid the 9.5% correctly the ATO can act.

Where an amount above 9.5% hasn't been paid you'd need to talk to Fair Work to say that your employer hasn't complied with their obligations under the enterprise agreement.

If the full amount hasn't been paid as required under the agreement I'm not sure what the best course of action is. ie whether to just talk to Fair Work, or whether to talk to both the ATO and to Fair Work. When the ATO recovers unpaid SG from an employer the employer also has to pay a notional interest amount to make up for the lost earnings in the fund. I don't know if the same applies to amounts recovered via Fair Work.

Hm. Possibly the ATO and Fair Work can refer employers to each other for follow up action in relation to unpaid super. I don't know. Neither the ATO's nor Fair Work's websites say that this happens. Would make things easier for employees though if this were the case.

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ATO's role in upholding compulsory employer contributions that better the 9.5% SG | ATO Community