Are you an employee that has been underpaid super by your employer? If you think that’s the case, and you’re keen to claw back what’s rightfully yours, there’s a few routes you can take. Perhaps the easiest way, provided you have the proper documentation, is to lodge a super enquiry with the ATO. Most complaints lodged with the ATO will need to relate to underpaid super within the last 5 years and the enquiry process is expected to take 12 months or longer to resolve, so you’ll need to act quickly to start the process or risk missing out.
If you’re an individual and you think you’ve been underpaid or not paid super for the work you’ve done, one of the ways to try to claim unpaid super is to lodge an enquiry with the ATO. While there are other ways to pursue your claim such as going to the Fair Work Ombudsman or through the Courts, going through the ATO may be the easiest way, provided you have the proper documentation.
In order to lodge a claim, first you need to work out whether you were entitled to be paid super. For example, if you didn’t earn $450 or more (before tax) in a calendar month, your employer is not required to pay super. If you’ve determined that you are entitled to be paid super, the next step is to check myGov to ensure that your employer hasn’t paid super to their default fund.
When you’ve confirmed that you’re both entitled to be paid super and that amount of super has not been paid or has been underpaid, you can lodge an enquiry with the ATO containing the following information:
invoices, claim for payments and/or any other payment documentation;
payslip, payment summaries or income statements from the employer;
copies of super fund statements for the years in question, plus a further 6 months;
the employer’s contact details including business address;
the employer’s ABN; and
details outlining the period of unpaid super including when the issue started and ended (ie month and year).
In addition to the information above, the ATO is also likely to seek permission from you to use your name when contacting your employer and in some instances may not be able to proceed with the super enquiry (or there may be delays) if permission is not provided.
If you have an enquiry regarding unpaid or underpaid super that relate to more than 5 years ago, it may be more difficult if not impossible for the ATO to deal with. The ATO notes that unless you have documentary evidence that your employer has not met their super guarantee obligations, it cannot investigate further.
Even in instances where you have the documentary evidence, the ATO notes there is no guarantee that the enquiry can be progressed “due to the timeframe”, however, you will generally receive a letter within 28 days advising whether the investigation will commence, allowing you to explore other alternative options.
For enquiries relating to less than 5 years ago, once you lodge your documents, the ATO will contact you as it moves through each of the 5 stages (query received, investigation progressing, employer debt established, debt collection progressing and query closed). Contact will mainly be in the form of mail or email through the myGov portal.
When the “employer debt established” stage is reached, you will receive an estimate from the ATO based on the information received so far. However, the actual amount paid into your super fund may differ from the estimate provided due to the accrual of interest or in instances where your previous employer provides new information. Remember to be patient if you’re pursuing the enquiry route through the ATO, the entire process is expected to take 12 months or longer