If your employer hasn't paid your full super entitlement
As an employee, or a contractor paid mainly for your labour, you're entitled to mandatory super guarantee (SG) contributions from your employer.
If you suspect your employer hasn't paid in full, on time and to the correct fund, you should check with them and your nominated super fund.
If you're not sure which fund your super may have been paid into, you can identify any super funds in your name using ATO online services.
If you confirm your employer hasn't met their obligations, we can help you recover your entitlements.
Separately to your efforts, we carry out some risk-based monitoring of employers' super obligations based on reporting by super funds and employers. Or we may investigate an employer's super guarantee compliance across their workforce in response to a report by another employee.
If we determine that your employer (or former employer) has not complied with their SG obligations for you, or we reasonably suspect this to be the case, we may disclose details of this to you.
Employers who don't pay super contributions in full, on time and to the correct fund must pay the super guarantee charge to us. We then pay SG shortfalls and interest into your super account. In this case, your super entitlement is based on your gross salary and wages including any allowances and overtime payments.
Unpaid super – what you can do
If you think your employer isn’t paying your super contributions, follow these steps:
Step 1: Are you entitled to super?
Use our Am I entitled to super? tool to confirm you're entitled to super before taking any further steps.
After answering some questions about the working arrangement between you and your employer, you'll receive advice on whether you're entitled to super from the employer.
If the outcome is that you are entitled to super, go to step 2.
Step 2: Has the correct super payment been made into the right fund?
Check how much has been paid into your super account by:
- looking up your super on ATO online services to view the super contributions that have been paid into your nominated super fund and reported to us
- asking your employer
- how much they've paid
- was it paid on time
- which fund they've paid it into
- checking your member statement from your super fund.
If you've left a job and are no longer in touch with your previous employer, check whether your super entitlement has been paid into a different fund than the one you expected. You can identify any super funds in your name using ATO online services.
If you're satisfied that your super entitlements have not been paid or under paid, go to step 3.
If you think your super entitlements have not been paid into the right fund, check whether you're eligible to choose the fund and, if so, whether the payments have been paid into the fund you nominated on a superannuation standard choice form.
Step 3: Calculate your super entitlements
If you know how much super hasn't been paid and the period it relates to, go to step 4.
If you're unsure, use the Estimate my super calculator to work out your entitlement. If you believe you haven't been paid the correct super, go to step 4.
Step 4: Report unpaid super
If possible, try to discuss your unpaid super concern with your employer before reporting them. For example, if they've made a simple mistake in calculating your entitlement or paying it into the right fund, an open discussion might be the most effective way to sort things out and get your super back on track.
If you've confirmed your super hasn't been paid correctly and completed all the checks in the above steps, you can report your employer using our online tool.
If you do decide to report your employer to us, we'll keep you updated on the investigation, including any recovery actions we might be taking.
Documentation if your unpaid super is from over 5 years ago
We may not be able to take action where the unpaid super is for a period that ended over 5 years ago, as employers are only required to keep employment records for 5 years.
However, if you reported your income as salary and wages, we may be able follow up an unpaid super enquiry for a period that ended over 5 years ago if you can provide the following as a minimum:
- payslips and any other payment documentation, including payment summaries for the relevant period
- super fund statements for the relevant years, plus a further 6 months.
Even with this information, there's no guarantee your unpaid super enquiry can be progressed.
Advising you of the outcome of our investigation
If you've chosen to report your employer, we'll keep you updated throughout the investigation. If we establish there is an SGC debt, we'll inform you of the recovery actions we're taking.
Other ways to claim your unpaid super
As well as reporting your employer to us, there are other ways you can try to claim unpaid super from your employer:
- The Fair Work OmbudsmanExternal Link (FWO) may be able to help you if you haven't received all your workplace conditions and entitlements. They may get you to complete a wages and conditions claim form and pursue your entitlements on your behalf, including going to court. The ATO can only investigate shortfalls in contributions that are required under the SG rate. Any entitlement you have above the SG rate (such as may be provided under an industrial award) is a matter for the FWO.
- Some investigations result in the FWO receiving payments from employers for outstanding wages and entitlements. Search the FWO's unpaid wages database to find out if your employer paid the Australian Government money owed to you.
- If you're employed under the national workplace relations system, you can seek an order from an eligible court under the Fair Work Act 2009. This includes people who are or were employed in any state or territory other than Western Australia, or by a company in Western Australia or under a federal award or agreement.
- If you're employed under one of the state industrial relations systems (in NSW, Queensland, South Australia, Western Australia or Tasmania), each state has laws that enable the courts to order your employer to pay the shortfall amount to your super fund.
Unpaid super for independent contractors
If you’re an independent contractor paid mainly for your labour, you’re considered an employee for SG purposes and entitled to employer super contributions under the same rules as other employees.
If you’re entitled to super contributions and your employer doesn’t pay the amount because they incorrectly classified you, we will generally take compliance action against your employer.
However, we may decide not to get involved nor allocate resources to take compliance action, when:
- both parties have in the past had a mutual understanding that the worker is not an employee for super purposes
- you presented yourself as an independent contractor who is not paid mainly for your labour – for example, if you’ve been claiming substantial business deductions or the entrepreneur’s tax offset.
If you consider yourself to be an employee for super purposes, you should first review your personal tax returns to see if you’ve claimed business income and deductions.
Note that penalties for false or misleading statements may apply if you deliberately misrepresented the information supplied in your tax returns.
If your employer deliberately misclassified you as an independent contractor, and you have been presenting yourself as an employee for super purposes, we will take compliance action against your employer for unpaid super contributions.