Missing contributions

Each year employers have to be chased for hundreds of millions of dollars in super.

Each year employers have to be chased for hundreds of millions of dollars in super.

More than 19,000 people complained to the Australian Taxation Office in the past 12 months that their super was being paid late or not at all by their employer.

The ATO can't yet say how much money is involved, but the previous year nearly 18,000 complaints resulted in $329 million finally finding its way to its rightful owner.

That's an average of about $18,200 a person - a big chunk out of anyone's super when you consider it will be missing for at least a few months and the potential impact of such a gap compounded over many years.

Since 2005, the ATO has chased up some $1.7 billion in compulsory super (including interest for late payment). No wonder the Tax Office says in its recently released annual compliance program that, among other things, it will again be "focusing on businesses meeting their superannuation obligations".

It's the fourth year in a row that its targets have included unpaid super.

The ATO will be scrutinising, in particular, cafes and restaurants, real estate agencies and home-building businesses: areas where people tend to work as casuals or subcontractors.

The chief executive of the Australian Institute of Superannuation Trustees, Fiona Reynolds, says she welcomes putting employers under the microscope.

"We should never forget that superannuation is actually deferred wages, which means it's the employees' money, not the employers'," Reynolds says. "And 9 per cent of anyone's wage is a significant amount of money."

While only a small percentage of employers don't meet their obligations, it's serious for the workers involved, with potentially far-reaching consequences for their retirement, Reynolds says.

However, she's concerned the regulator isn't resourced well enough to follow up all the complaints it receives. "Complaints aren't handled quickly enough," she says.

Asked how long it takes to resolve a complaint, the ATO says that in the 2011 financial year the average time taken, including debt collection, was 97 days. That's an improvement on the average of 196 days the previous year.

Reynolds says another issue is that it's not always clear to people to whom they should complain. "Moreover, as the complaint is about their employer, this can put the employee in a difficult position," she says.

The ATO says employees should speak to their employer first, asking how often super contributions are being made and into which fund. They should then check the latest statement from their fund and contact the fund to confirm more recent payments have been arriving. If they still believe their employer isn't paying enough, or any, super, they can file an inquiry at ato.gov.au/unpaidsuper or phone the ATO on 13 10 20.

DEBT COLLECTION

Reynolds says a number of industry funds use the Industry Funds Credit Control debt collection agency to chase up employers who aren't paying.

"If you work in an industry where employer compliance is a known problem, it's worth checking if your fund provides this service before signing up," she says.

The chief executive of the Association of Superannuation Funds of Australia, Pauline Vamos, says compliance by employers is 96 per cent, which is unusually high by international standards. "But that doesn't mean we shouldn't aspire to 100 per cent."

One of the aspects of the Stronger Super program that the ASFA supports is the requirement for employers to report on payslips how much super is being paid and into which fund, she says.

This legislation was passed in June and the new rules will apply from July 1 next year.

"These sorts of details will give employees a much better idea of whether or not their employer is falling behind in contributions," Vamos says.

Many super funds now offer 24/7 access to your account via the web, so people can also check this way that contributions are showing up, she says.

In addition, regulations requiring employers - large and small - to adopt electronic payment systems for superannuation are set to come into effect in 2014 and 2015.

According to Reynolds, both of these measures "should make it easier for employers to meet their obligations".

Reynolds says non-payment of super can be the "canary in the coalmine" - an indication that a business is in financial strife. "There is anecdotal evidence to suggest that some employers defer worker superannuation payouts as a way to deal with cash-flow problems," she says.

In addition to withholding or delaying super payments until the 11th hour - in some cases, for up to a year - there are problems with so-called phoenix companies, particularly in the building industry, where businesses are actually set up to collapse before they pay their debts and super obligations, she says.

In response, there are now proposals for company directors to be held liable for unpaid superannuation.

Currently, employers who fail to make contributions face a superannuation guarantee "charge", which is made up of the contributions shortfall, 10 per cent interest and an ATO administration fee. Further infractions can result in the charge being doubled.

Salary sacrifice

The rules are clear when it comes to compulsory super: employers must make payments at least quarterly and the money must reach the fund within 28 days of the end of each quarter.

But what about salary sacrifice money you voluntarily contribute to super from your pre-tax income?

What stops an employer from dallying, holding on to the money to smooth their cash flow or to earn a bit of interest?

"Where contributions are voluntary, if it's coming out of your salary, it should be immediately paid to the super fund," the chief executive of the ASFA, Pauline Vamos, says. "There are no rules around that, but it's important employers understand it."

So who do you turn to if you can't resolve a salary-sacrifice issue?

It is far from simple.

The ATO says that with salary-sacrificed money beyond the super guarantee, employees "may have rights to enforce payment of foregone salary or wages under industrial law".

Key points

Non-payment of super totals millions of dollars a year.

Almost 20,000 complaints were made last year.

The Australian Taxation Office handles most complaints.

Voluntary salary sacrifice falls outside the ATO net.

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