Employees pursuing their unpaid superannuation are optimistic as changes to the National Employment Standards (NES) come into effect, offering a potentially faster route to reclaiming owed funds. This alteration, effective since January 1, empowers employees to take direct legal action to retrieve their unpaid superannuation.
Under the Fair Work Act, the recovery of underpaid or unpaid superannuation can be enforced by a fair work inspector, through the small claims court, or by referring matters to the Australian Taxation Office (ATO).
Cheree Corbin, one of the many Australian employees attempting to reclaim lost superannuation, faces more than $12,000 owed by a now-liquidated company. Unaware of the unpaid super until a colleague raised the issue, Corbin reported the non-payments to the ATO and initiated a payment plan with the employer. However, communications ceased in January 2023, and she has received only one of the proposed repayments. With an additional $3,000 in lost wages, Corbin remains skeptical about recovering any of the money.
The recent NES change allows employees like Corbin to take legal action independently, potentially expediting the recovery process. However, skeptics argue that without robust enforcement measures, the policy is merely symbolic. The ATO, having acquired powers to issue directions to pay in 2019, has not utilized them, as reported by Guardian Australia in September.
Super Members Council’s executive general manager of advocacy, Georgia Brumby, emphasized that unpaid super amounts to an estimated $5 billion annually, calling it a “scourge.” Enshrining super as a workplace right in the NES, according to Brumby, provides legal standing to workers and their representatives for court actions, reducing reliance on the ATO alone.
The proposed legislation, currently under public submissions, aims to mandate employers to pay superannuation on payday instead of quarterly, potentially in effect from July 1, 2026. Advocates believe these changes, coupled with criminalizing deliberate underpayments, will curb unpaid super, ensuring timely and full payments for Australian workers. The Department of Employment and Workplace Relations stated that including superannuation in the NES will create a fairer system, complementing the ATO’s powers and offering robust protection against unpaid super for employees.