The entitlement to superannuation, and recovery of superannuation is a very complex area of law.
Superannuation under a contract of employment
Many written contracts of employment contain terms as to superannuation and confer an entitlement, under the contract, to be paid superannuation. This entitlement is independent of the entitlement under Superannuation Guarantee.
Where there is a contractual entitlement, unpaid superannuation can be recovered in a claim for breach of contract in the same way as a claim for unpaid wages.
Superannuation under award or enterprise agreement
Some employees are covered by an award or enterprise agreement that imposes an obligation on the employer to pay superannuation. This entitlement is independent of the entitlement under Superannuation Guarantee.
Where there is a award or agreement entitlement, unpaid superannuation can be recovered in a claim for of the industrial instrument in the same way as a claim for unpaid wages.
Superannuation under Commonwealth law
Most people are aware of the guarantee under Commonwealth law in relation to superannuation. Superannuation Guarantee Legislation effectively requires employers to pay an additional 9.5% of income of employees earning more than $450 per month to a superannuation fund chosen by the employee.
The Commonwealth law only empowers the Australian Tax Office (the ATO) to bring proceedings to recover underpayments of superannuation.
This means that if you have no entitlement to superannuation under your contract of employment, award, or enterprise agreement (as discussed above), you cannot bring a claim against your employer but instead must rely on the ATO to pursue it on your behalf.
The ATO can be notified by calling 131 020. The ATO will investigate and recover your unpaid superannuation, along with interest and penalties.
The ATO will only collect unpaid super, and not any insurance benefits attached to the policy. If your employer has failed to make superannuation contributions on your behalf, and you injured yourself or became ill or sick and therefore were not covered, you may be able to claim for your loss in this regard.
Segelov Taylor Lawyers can advise in relation to unpaid superannuation and any claim you may have.