If your employer hasn’t paid your superannuation, or you suspect you have been underpaid, it is important to understand your rights and the steps you can take to recover any outstanding contributions.
In Australia, employers are legally required to make superannuation contributions for eligible employees, and failing to do so can have significant consequences. This article explains your employer’s superannuation obligations, how to identify unpaid superannuation, and what options are available if your employer has failed to pay the super you are owed.
What is superannuation?
Superannuation is a specified amount of money that an employer contributes into your nominated superannuation account. Superannuation contributions form part of the National Employment Standards (NES). The Fair Work Act 2009 (Cth) (FW Act) provides statutory protection for national system employees to be paid super and outlines an employer’s obligation to make these contributions to the employee’s nominated superannuation account. Under the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGAA), an employer must contribute at least 12% of an employee’s qualifying earnings (subject to a maximum contribution base), or it will be liable to pay the superannuation guarantee charge.
Who is entitled to superannuation?
You are generally entitled to superannuation if you are an employee, or if you are engaged under a contract that is for your labour, meaning that some independent contractors are entitled to superannuation contributions despite not being employed as an “employee”. However, the right to recover unpaid superannuation under the FW Act is only available to national system employees. Contractors and state system employees cannot use the FW Act, but may have other avenues available, including reporting the unpaid superannuation to the Australian Taxation Office (ATO).
When does my employer need to pay superannuation?
From 1 July 2026, under the reforms known as “payday super”, employers are required to make superannuation contributions that are received by your nominated superannuation fund within seven business days of each day on which you are paid. There are limited exceptions, including a longer period for an employer’s first contribution for a new employee.
Prior to 1 July 2026, superannuation contributions were required to be made quarterly. The change to payday super allows employees to identify any discrepancies, underpayments or failed payments sooner, which can help reduce the impact on your retirement savings if a problem is caught early. It is worth regularly checking your superannuation fund’s transaction history against your payslips.
What do I do if I haven’t been paid my superannuation?
If your employer has underpaid, or failed to pay your superannuation entirely, you are entitled to pursue your employer to retrieve the funds that should have been provided to your nominated superannuation account.
Your employer’s superannuation contributions must be received by your fund within seven business days. If this does not occur, your employer will be liable to pay the superannuation guarantee charge to the ATO. The charge includes the amount owing (known as the “shortfall”), as well as notional earnings (interest) and an administrative uplift. The ATO then pays the amount it recovers into your superannuation fund.
Under the FW Act, a failure to make superannuation contributions is a breach of the NES, and your employer could be subject to penalties as well as be ordered to pay your missing superannuation. Since 1 January 2024, national system employees have been able to commence proceedings to recover unpaid superannuation. Proceedings to recover unpaid super must generally be commenced within six years. There are rules governing how these proceedings interact with any recovery action taken by the ATO, so it is important to obtain advice before commencing.
If your role is covered by an enterprise agreement or a modern award, you may be entitled to further benefits. For example, some modern awards, such as the Clerks—Private Sector Award 2020, require employers to continue making superannuation contributions while an employee is absent on paid leave or receiving workers’ compensation, and some enterprise agreements provide for a higher superannuation contribution rate. If this applies to you, and your employer has failed to meet the terms of the award or enterprise agreement, this may give rise to a separate breach of the FW Act for failing to comply with the award or enterprise agreement.
If your employer has failed to pay your superannuation, there are various avenues you can take to ensure you are paid your superannuation. These include reporting the unpaid superannuation to the ATO, making a complaint to the Fair Work Ombudsman, or commencing court proceedings. In some circumstances, company directors can also be held personally liable for the unpaid superannuation guarantee charge. If your employer becomes insolvent, you should be aware that unpaid superannuation is not covered by the Fair Entitlements Guarantee scheme, so acting early is important.
If you believe your employer has failed to pay your superannuation, contact one of our employment lawyers to discuss the next steps to ensure you are paid the superannuation you are owed.
