I believe that my employer has been underpaying my superannuation. What are my rights?

A superannuation guarantee was introduced in 1992 at 3 per cent in lieu of a wage increase as a means of increasing retirement savings. Today employers are required to contribute at least 9.5 per cent payable at least every 3 months. An employee may elect to salary sacrifice, whereby an additional concessional contribution amount is paid from your pre-tax salary to your nominated superannuation account.

An employer has an obligation to pay super contributions if you are:

• 18 years old or over and are paid at least $450 (before tax) in salary or wages in a calendar month
• Under 18 years old, work more than 30 hours per week and are paid at least $450 (before tax) in salary or wages in a calendar month

You may also be eligible for superannuation if you are a contractor working and being paid primarily for labour, including mental and artistic effort as well as physical work.

An underpayment can occur in a few different ways;

• By not paying superannuation if you are entitled to it
• By paying less than the minimum superannuation guarantee contributions
• By using employee elections of salary sacrifice to reduce their contributions when meeting the minimum superannuation guarantee

Parliament has recently introduced legislation which is currently before the senate to ensure that your salary sacrifice contributions cannot be used to reduce an employer’s minimum superannuation guarantee contribution.

If you believe that your employer has been underpaying your superannuation then you can report your employer to the ATO via an online tool. The ATO can investigate and recover unpaid superannuation along with interest and penalties. The ATO will not collect any insurance benefits attached to your superannuation policy.

You may be protected as a tax whistleblower from identification and detrimental conduct including being dismissed, harassed, intimidated, harmed or injured by your employer. If you believe that you have experienced detrimental treatment as a result of reporting a superannuation underpayment then you should legal advice.

If you are covered by an award, enterprise bargaining agreement, or contract then you may be able to sue your employer to recover the unpaid amounts. You should also seek legal advice in attempting to commence proceedings for the repayment of the underpaid superannuation.