House of Representatives

Explanatory Memorandum

(Circulated by authority of the Treasurer, the Hon Peter Costello MP)

Chapter 2 Disclosure of information relating to superannuation guarantee complaints

Outline of chapter

2.1 Schedule 2 to this Bill amends the Superannuation Guarantee (Administration) Act 1992 to allow the Commissioner of Taxation (Commissioner) to provide more information to employees on the progress of their superannuation guarantee (SG) complaints.

Context of amendments

2.2 Secrecy provisions contained in section 45 of the Superannuation Guarantee (Administration) Act 1992 prohibit the disclosure of information about, or provision of details on, the progress of any action in relation to or against another person. This prevents the Commissioner from providing much information to employees on the progress of their SG complaints.

Summary of new law

2.3 The Commissioner may provide information to an employee in response to the employee's SG complaint.

Comparison of key features of new law and current law

Detailed explanation of new law

Employee complaint

2.4 An employee or former employee may make a complaint to the Commissioner where they think that their employer has not complied with its obligations under the Superannuation Guarantee (Administration) Act 1992 . The complaint must specify the obligations in question. [Schedule 2, item 1, subsection 45A(1)]

2.5 The reference to obligations includes the obligations of an employer to make a minimum level of superannuation contributions to a complying superannuation fund or retirement savings account (RSA) for the benefit of its employees in order to avoid the imposition of the SG charge. An employer may also have choice of superannuation fund obligations in respect of its eligible employees.

2.6 A person is able to make a complaint even where there is dispute or uncertainty at the time of the complaint about whether the person is actually an employee. A person is also able to make a complaint even where there is dispute or uncertainty at the time of the complaint about whether the person is actually a former employee. [Schedule 2, item 1, subsection 45A(2)]

Information which may be provided by the Commissioner

2.7 The Commissioner may provide certain specified information to the employee where a complaint has been made. The Commissioner may also make a record associated with disclosing this information. [Schedule 2, item 1, subsection 45A(3)]

2.8 The Commissioner may provide information about:

•

the steps taken to investigate the complaint;

•

the actions taken in relation to the complaint, under the Superannuation Guarantee (Administration) Act 1992 or the Taxation Administration Act 1953 (TAA 1953); and/or

•

the steps taken to recover any SG charge from the employer.

[Schedule 2, item 1, subsection 45A(4)]

Steps and actions that relate to the Commissioner's response to the complaint

2.9 Steps and actions covered by subsection 45A(4) would include whether:

•

the Commissioner has contacted the employer and if so, the result of the contact;

•

the Commissioner is waiting on information from the employer and if so, when the information is expected;

•

the trustee of a complying superannuation fund or RSA provider has been contacted by the Commissioner and if so, when the Commissioner expects a response;

•

the employer has made a contribution on behalf of the employee and if so, to which fund or RSA the contribution has been made;

•

the Commissioner considers there is an individual SG shortfall for the employee and if so, the shortfall amount;

•

the Commissioner has assessed an SG shortfall in respect of that employee for the period relating to the complaint, and if so, the date of the assessment;

•

the employer has objected to the Commissioner's assessment of the SG shortfall; and/or

•

the Commissioner has recovered or is seeking to recover a relevant amount of SG charge owing in relation to the employee.

The general financial affairs of the employer

2.10 Subsection 45A(4) does not extend to providing information about the general financial affairs of the employer. [Schedule 2, item 1, subsection 45A(5)]

2.11 Matters about the general financial affairs of the employer include:

•

other SG shortfall amounts in respect of the employer which are not subject to the employee's complaint;

•

the employer's other taxation affairs; and/or

•

the employer's overall financial position.

Treatment of provisions which restrict information which may be provided by the Commissioner

2.12 Providing information under subsection 45A(3) does not breach provisions in a taxation law that prohibit the Commissioner or an officer from making a record of, or disclosing information. [Schedule 2, item 1, subsection 45A(6)]

2.13 Section 995-1 of the Income Tax Assessment Act 1997 states that taxation law means an Act of which the Commissioner has the general administration or regulations under such an Act.

2.14 The secrecy provisions contained in section 45 of the Superannuation Guarantee (Administration) Act 1992 do not prohibit the Commissioner or an officer from making a record of, or disclosing information under section 45A.

2.15 Also, the secrecy provisions in section 3C of the TAA 1953 do not prohibit the Commissioner or an officer from making a record of, or disclosing information under section 45A of the Superannuation Guarantee (Administration) Act 1992 .

Application and transitional provisions

2.16 Records may be made or information may be provided under section 45A of the Superannuation Guarantee (Administration) Act 1992 on or after 1 July 2007. [Schedule 2, item 2, section 1 ]

2.17 The information disclosed under section 45A may have been obtained prior to 1 July 2007. [Schedule 2, item 2, section 2 ]