What to do if your employer is not paying your super

Most employees rely on their employer to pay superannuation contributions correctly and on time. Unfortunately, this does not always happen.

If your employer has failed to pay your super, underpaid your contributions, or made payments late, there are steps you can take to protect your retirement savings and any insurance cover linked to your super fund.

This article explains why unpaid super happens, how to check whether you're receiving the correct contributions, and what you can do if your employer has not met their obligations.

Why might an employer fail to pay super? 

In some cases, it may be an administrative error or a misunderstanding of their obligations. In others, an employer may deliberately avoid paying entitlements owed to workers because of a downturn in business or undisclosed cash flow issues.

One common issue is when a worker is incorrectly treated as an independent contractor rather than an employee. Even where someone is described as a contractor, they may still be entitled to superannuation depending on the nature of the arrangement.

If your employer controls how and when you work, provides the tools needed to perform your job, or otherwise directs your day-to-day duties, they may still have an obligation to pay super, and other entitlements, on your behalf.

How to check whether your super is being paid

Many people assume their employer is paying the correct amount of super, but it is worth checking regularly.

Reviewing your payslips and checking your super account can help you identify problems early. The sooner you become aware of missing contributions, the easier it may be to resolve the issue.

Unpaid or late super can affect more than just your retirement savings. Many super funds include insurance cover for total and permanent disability (TPD), income protection, and death benefits. In some circumstances, missed contributions may affect your eligibility for these benefits.

A good habit is to regularly review your super fund statements or log in to your online account to confirm contributions are being received.

What steps can I take to claim my unpaid super? 

If you believe your employer has not paid all of the superannuation contributions you are entitled to, there are several steps you can take.

Steps to report unpaid super

1. Speak to your employer. Your first step is to raise your concerns with your employer with a view to reaching an amicable resolution. Make sure you keep records of any relevant conversations or correspondence in case you decide to take the issue further.
   
2. Lodge a complaint with the Australian Taxation Office (ATO). The ATO governs superannuation law and can order your employer to make retrospective payments for you. If the ATO takes this action, and your employer still refuses to pay, these documents can be helpful evidence to support any future legal proceedings.
   
3. Seek advice from superannuation lawyers. If you suffer a financial loss due to your employer’s failure to pay super, we can help you. For example, as previously mentioned, unpaid super contributions can compromise your insurance coverage. Your employer’s failure to make these payments, including those that are late, can leave you uninsured for that period of time. We can investigate the situation, identify your employer’s obligations and pursue any lost contributions.

What to do if your former employer is defunct

If the company that has failed to make the correct superannuation contributions no longer exists, it’s still worth lodging a complaint with the ATO or pursuing legal advice.

Depending on the situation, you or your superannuation lawyers could make an argument for payment of the super contributions, or other financial losses, as penalties for not paying super can still apply after a business no longer exists.