[HELP] Legal Advice for 1.5 Years Unpaid Super

mafmouf on 02/09/2014 - 18:57

Hi all,

Today I followed my employer up with an email asking about what's happening with my superannuation since I have never seen a statement from the apparent super holder.

In short, my employer just admitted over the phone that my super has not been paid to me since I started working for the company. I have been there for just over 1.5 years, equating to a fair amount of money (to me at least haha). My company is tiny and hasn't been doing well at all since 5 months into me starting due to the industry downfall.

The given reason for it being unpaid involved some excuse involving taxes and lack of work coming in, which is probably true.

Anyways, my employer suggested tomorrow morning I could choose 1 of 2 things:
1. I can continue work as per normal and expect the super to come in slowly (don't really understand what this meant); or
2. I can resign and get the whole super paid out (didn't quite understand this one either haha).

I feel either of these options is a lose lose for me (and the company). The phone line was not great either and I am horrible with anything like this.

In any case, I feel I need real legal advice for real options. I'm pretty broke atm with my upcoming wedding. And if anything happened to me, what would my beneficiaries get? I don't want to go around and sue the world or whatever, because everyone loses (except the lawyers ;)) but I really want things sorted, especially when I aim to take a lot of annual leave for my wedding.

Thanks for any help, OzB community.

Financial

Comments

  • holdenmg on 02/09/2014 - 19:11

    http://www.fairwork.gov.au/pay/tax-and-superannuation
    (What happens if superannuation hasn't been paid?)

    • mafmouf on 02/09/2014 - 19:26

      Thank you very much. I knew it would be somewhere on the government site, but didn't find it last time I looked.

  • Smulder on 02/09/2014 - 19:37

    I would assume that if your employer fires you for insisting that they pay you the superannuation you are legally entitled to that you could claim unfair dismissal.

  • MITM on 02/09/2014 - 21:13
    +7

    Your super is untouchable for a few decades, so concentrate on your wedding and also your leave (holiday pay).
    Then when you get back, go to fair trading for help with your super. Meantime make plans to job shift - sounds like the company can't afford you, or anything else. Trust me, the grass is greener on the other side of the fence.

    • Geewhizz on 03/09/2014 - 06:10

      I could only upvote your comment once unfortunately! Would love to be able to give you a few more +s.

      Fantastic advice OP - weddings are stressful enough as it is, without dealing with possible fallout from this at the same time.

  • grasstown on 02/09/2014 - 22:01

    Did you get pay slips and the money deposited in your account or cash ?

  • fruit on 02/09/2014 - 22:06

    Call the ATO?

  • Baysew on 02/09/2014 - 23:02

    The employer needs to pay the Super on time, otherwise it won't be a deductable expense ATO

    I agree with MITM. Next thing will be your salary coming in late or short.

    Contact the ATO - they will take ages to ACT anyway. So it will appear to your employer that you are taking option 1.

  • mafmouf on 03/09/2014 - 09:35

    I appreciate the help everyone. Tbh the wedding hasn't been stressful much at all lol (and yes I'm contributing). I think everyone's advice has been more than helpful. I had a discussion not long ago this morning with the boss. Shall update later.

  • save my dollarydoos on 04/09/2014 - 18:56
    +4

    I work for a superannuation company and assist a lot of people with enquiries like the one OP has posted

    The legal minimum obligation of an employer is to pay quarterly, that is to say you work Jan, Feb, March - the contribution should be in your account by the 28th of April. You work April, May, June - Money should be in your account by July 28 - and so on

    My advice to you (and anyone else with a super fund - would be to register your account for online access) I've helped several people with horror stories not keeping a closer eye on their super only to discover it hasn't been paid at all, or scattered across multiple accounts only to have these nominal amounts whittled down to naught by several sets of fees, insurance premiums.

    Anyone around the traps with more than one super fund would do well to make the arrangements to consolidate their super rather than later.

    Heres a list of a few hints.

    1) Whenever an employer opens a super account for you, theres a legal obligation to give that account a default level of insurance cover which may not be suitable for your situation and the premiums for which get deducted from your account balance….

    2) Consolidate your super in one account sooner rather than later (Its so much easier these days - check out the online facility offered by here

    https://my.gov.au/LoginServices/main/login?execution=e1s1

    3) If you have super out there but not sure where exactly - call the superseeker line 13 28 65. They should point you in the direction of the funds that hold money in your name there. Also use the link above.

    4) Just because your payslip shows money going into your super. Doesn't make it so (as demonstrated by OP - utilise online facilities of your super fund so you can keep a closer eye on it rather than relying on statements every 6 - 12 months.

    5) Some super funds offer financial advice at no additional cost via telephone appointments. Use these to determine your investment choices, contribution strategies and insurance needs.

    6) Unless written into your employment contract, you get a choice of fund. Don't let employers urge you to join their choice of fund cause its easier for them admin wise. Employers will be gradually required to use a super stream compliant clearing house which have ability to pay into multiple different funds at once so no real excuses for them.

    7) Don't roll/close accounts that current employers have been paying into until you are certain you have received all outstanding contributions your employer.

    If they land in the fund after your account has been closed, you will likely end up having another account opened up for you causing further stress

    8) If you must have an employer open a super account for you - make sure they have your details correct. Full legal name with the correct spelling, Date of Birth, Tax File Number. If any of these details are incorrect, you won't be able to roll in/out other super funds that DO have your details correct. Getting names and date of births are annoying to fix up, usually requiring mailed forms and copies of identification and whatnot.

    9) If you are injured or ill and miss a substantial period of work (or have done in the past), check with your super fund. Depending on the funds default cover - you may have been covered by income protection

    10) Make sure your super has your tax file number. If it does your employer contributions and salary sacrificing get taxed at 15%. If it doesn't its more like 47.5%

    I think thats about it for now, Im not a financial advisor myself, simply a call centre consultant whose been exposed to many issues like the OP's and can provide general advice on the lot.

    If anyone has any general questions about super at all - feel free to shoot me a PM and I will be happy to assist where I can. And sorry for the crappy grammar and spelling I'm kind rushed (not that it would have been much better if i wasn't lol)

    • holdenmg on 07/09/2014 - 08:16
      +2

      Most helpful.

      Also:
      https://www.ato.gov.au/calculators-and-tools/superseeker/

    • Baysew on 08/09/2014 - 10:21

      Themojorising - So what is your actual advice to the OP on his specific problems ?

      • save my dollarydoos on 09/09/2014 - 00:33

        Apologise I omitted some of my original post after a few edits.

        I can't/won't advise him of what he should do. He has to decide what he needs to do himself after considering the implications of each path.

        The ATO has already been mentioned a number of times, they are the enforcing authority of SG payments - theres a chance they will catch onto him sooner or later depending on the information he provides to the ATO

        He has the option of

        a) contacting the ATO the ATO may fine him and enforce the payments over time anyway. Makes things harder for the employer and while the report is treated

        link here https://www.ato.gov.au/Individuals/Super/In-detail/Employer-…

        b) taking the super payments slowly - the employer has done the right thing, admitted the thing to you and is keen on making it up to you. Something to consider here missed out investment earnings on the money that should have been in your account earlier.

        c) resigning and taking the cash in lump sum - affects your employment status for starters,

        Now if this comes out later on down the track some things to consider your employer contributions and investments get taxed at 15%.

        How much of this payout will be taxed? Will it be at the right rate? or is being done under the table - and if thats the case does that get you in trouble with the ATO should it come out down the track?

        Whatever you do - just make sure you look after yourself both financially and legally

        Personally I'd opt for No 2 the moneys going into the place its supposed to, gets taxed the way its supposed to and no one gets into trouble and you still have a job with an employer who knows you owe him. Maybe work out what you missed investment earnings wise and see if he'd be willing to throw in a little extra to make that up.

  • johndowy on 08/09/2014 - 14:05

    Is this a full time position?
    How did you not realise that your employer was not paying super for 1.5 years?
    Have you checked your contract with them?

    If those are the only two options I'd choose option one. Keep working if you need the job and just slowly get them to back pay you all the super that they owe you. Going through any legal options will be difficult. Best to try to work it out without having to go through those options is best. As you probably know you can't touch your super either way.

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