Ex employer unwilling to pay super

Limegreen on 13/08/2019 - 17:25

Long story short.

I quit my job with my ex - employer about March 2019. Whilst i was working for them i noticed that they haven't been paying super for the 3 years i was with them, I told him upfront that he needs to pay my super. He did a few contributions but is still owing 4k when i resigned.

Fast forward to now, he still hasn't paid the 4k owing, I have keen asking and chasing him up to pay the super but still nothing has come through. They use Xero for their accounting software but it appears to me that he throws me a line all the time taking a photo of a "pending approval" transaction to put into my super but nothing ever comes through.

I have already reported him to the ATO in March 2019 but still haven't heard anything, calls to the ATO they said to continue to wait.

I called ASIC and they couldn't do anything.
What happens if this business gets liquidated ? What will happen with my super?
If i know that the business is trading as insolvent and reported them will my super ever get paid out ?

I am not the only ex employee from this business that hasn't been paid super.

Any advice would be greatly appreciated. TIA

Education & Work

Comments

  • funnysht on 13/08/2019 - 17:32
    +3

    if ASIC can't help you, the people here can't.

    or you can try Australian Financial Complaints Authority (AFCA) …

    • HighAndDry on 13/08/2019 - 17:39
      +3

      More than ASIC, if even the ATO can't help OP, noone really can.

      • funnysht on 13/08/2019 - 17:41
        +10

        ASIC can't help anyone, even themselves.

        • HighAndDry on 13/08/2019 - 17:45
          +3

          They just lost a case against Westpac didn't they, even after all the Royal Commission brouhaha. It's truly astounding how badly they've managed to appear.

        • xuqi on 13/08/2019 - 18:02
          +1

          Amen to that…

  • Seraphin7 on 13/08/2019 - 17:35
    +1

    You've dealt with the ATO and ASIC being the only avenues that are really going to get you anywhere. I'd be riding them on the matter.

  • Montyjpm on 13/08/2019 - 17:37
    +2

    It is worth hitting up Fair Work Commission and see how they can help.

    • Hardlyworkin on 13/08/2019 - 19:05
      +1

      They can't, it's superannuation not an unfair dismissal.

  • HighAndDry on 13/08/2019 - 17:44
    +1

    https://www.ato.gov.au/tax-professionals/your-practice/insol…

    http://classic.austlii.edu.au/au/legis/cth/consol_act/ca2001…

    Unpaid super entitlements are ranked at (e) in the Act above - so ahead of most unsecured creditors.

  • pformag on 13/08/2019 - 17:46
    +2

    If it gets liquidated you won't get anything. on secured creditors have any chance, and even then it's normally 1c in the dollar.

    • Smulder on 13/08/2019 - 21:05

      That's not necessarily true. Recent changes to the legislation make it much more difficult for employers to avoid paying super by putting the company into liquidation. The directors can be issued with a direcot's penalty notice and be made personally liable for the super obligation.

      • Typical16-bitEnjoyer on 13/08/2019 - 21:24

        Correct, not necessarily true but still highly unlikely to get anything. This is a very complex area of law and unfortunately a lot of these small cases, the cost to run with it outweighs what the lost superannuation equals.

  • qwerty on 13/08/2019 - 18:30
    -1

    fair work

    • 87percent on 13/08/2019 - 18:34

      Fair Work is useless. Friend went through them to try and get back paid, they can't force the business to pay, it's a mediation service

      • Hardlyworkin on 13/08/2019 - 19:08
        +1

        It's superannuation so they can't do anything about it. ATO can, though their process is to give the business the opportunity to fix up on their own accord. If they don't then the ATO does take action including winding up companies who owe money.

  • bhw2282 on 13/08/2019 - 18:41
    +4

    "Pending approval" on Xero means that the authoriser hasn't approved the payment (i.e. the business owner hasn't completed the process on Xero). Only once it says "approved" will Xero actually debit their bank account and submit the funds to your super. Of course if they have no money in their bank account, the payment won't go through.

    Xero tutorial: https://central.xero.com/s/article/Process-superannuation-pa…

  • Hardlyworkin on 13/08/2019 - 19:10
    +2

    Keep on the ATO, it's not quick though they are your best shot. Your best legal avenue anyway….

  • whooah1979 on 13/08/2019 - 19:38
    +1

    Walk in there and out again with a few laptop/iPad under your arms.

  • AdosHouse on 13/08/2019 - 20:59
    +3

    ATO is the only ones that deal with Super.

    My old work didn't pay super for a few years. When I found out I lodged a form with the ATO, and while it took a few months, I got it back.

  • p1 ama on 13/08/2019 - 21:17
    +4

    Whilst i was working for them i noticed that they haven't been paying super for the 3 years i was with them

    Why did you continue to work for them for 3 years despite them not paying your super?

  • Typical16-bitEnjoyer on 13/08/2019 - 21:22

    still haven't heard anything, calls to the ATO they said to continue to wait.

    This scenario is considered "low priority". Reason? It's not like you'll be accessing that money anytime soon if they employer does pay up, or if the ATO pressures them too or if the ATO recovers it. If the company is insolvent then there's likely nothing to pick off the bones anyways.

    I called ASIC and they couldn't do anything.

    This is ATO jurisdiction. Not ASIC.

    What happens if this business gets liquidated ? What will happen with my super?

    You're ranked higher than a lot of other creditors if that was to actually occur https://www.ato.gov.au/tax-professionals/your-practice/insol…

    If after liquidation there's no money than you're out of luck.

    Proving the directors traded whilst insolvent is not a simple task.

    My general advice? Is the amount over $2,000? Hit them with a letter of demand. Easy to find templates online.

  • battler on 13/08/2019 - 22:34

    bikies

  • minniethemoocher on 13/08/2019 - 22:57
    +1

    Get the other ex employees to call the ATO about their missing super. Also current employees can report the employer also if their super isn't being paid.

  • AFOS on 13/08/2019 - 23:05
    +1

    I have been in exactly the same situation.

    Your ONLY avenue is court.

    Taxation office is useless. They may be helpful when it comes to companies that are more/less compliant. If somebody purposely is abusing the system they can't (and won't) do much. If you rely on them it may take years before you get your super (if any).

    Usually such guys do not pay super and/or PAYG withheld from wages. If they start feeling heat they will move trading name to a new company and liquidate the old one. Just google "phoenix companies" and you will get plenty of stories like yours.

    • AdosHouse on 13/08/2019 - 23:29
      +2

      ATO are not useless, they got mine back with no problem.

      The ATO has years of practice getting money from people.

      • AFOS on 14/08/2019 - 09:31
        +1

        There is no need to tell it to me as I got my super paid in full. Unlike my colleagues who relied on ATO:)

  • brad1-8tsi on 14/08/2019 - 07:38

    You've probably looked at these already but if not…

    https://www.ato.gov.au/calculators-and-tools/report-unpaid-s…

    https://www.ato.gov.au/Individuals/Super/Growing-your-super/…

    https://www.fairwork.gov.au/pay/tax-and-superannuation

    https://www.ratecity.com.au/superannuation/articles/what-to-…

    I'd also be looking at how accurate your pay was and if you got your correct entitlements.

    If you aren't in a union I'd suggest you join one for the future (they rarely backdate help).

    And I'm sorry but how on earth do you go for 3 years without checking your super contributions? There's a bit of self-responsibility involved in this too.

  • justwaitingforamate on 14/08/2019 - 09:33
    +1

    I had the same issue a few years back. I had not been paid super that was actually deducted from my contract wages by a dodgy employer. I brought it up with them and they brought up some BS about being in a different account and that the accountant thought that it was the best way. I then called the ATO for advice = If within 4 yrs you can make a complant and they will be forced to pay outstanding super + 10% for missed interest and usually audit the employer too. I said I would get back to them, I ten called my employer who was then extremely obliging and super was paid very quickly and kept making sure I wasnt going to make a complaint as it would probably put therm out of business . Long story short I was happy with that at the time as didnt want to create more headaches for myself as I was still working there. In hindsight I wish I made a complaint and therefore stopping it happening to others as given the employers comments I assume I was no the only contractor it happened to.

    So in summery call the ATO as yes they definitely can help you in this situation

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