If you’re an individual and you think you’ve been underpaid or not paid super for the work you’ve done, one of the ways to try to claim unpaid super is to lodge an enquiry with the ATO. While there are other ways to pursue your claim such as going to the Fair Work Ombudsman or through the Courts, going through the ATO may be the easiest way, provided you have the proper documentation.
In order to lodge a claim, you’ll first need to confirm that you’re both entitled to be paid super and the amount of super has not been paid or has been underpaid. Once that’s confirmed, you can lodge an enquiry with the ATO containing the following information:
invoices, claim for payments and/or any other payment documentation;
payslip, payment summaries or income statements from the employer;
copies of super fund statements for the years in question, plus a further 6 months;
the employer’s contact details including business address;
the employer’s ABN; and
details outlining the period of unpaid super including when the issue started and ended (ie month and year).
In addition to the information above, the ATO is also likely to seek permission from you to use your name when contacting your employer and in some instances may not be able to proceed with the super enquiry (or there may be delays) if permission is not provided.
If you have an enquiry regarding unpaid or underpaid super that relate to more than 5 years ago, it may be more difficult if not impossible for the ATO to deal with. The ATO notes that unless you have documentary evidence that your employer has not met their super guarantee obligations, it cannot investigate further.
For enquiries relating to less than 5 years ago, once you lodge your documents, the ATO will contact you as it moves through each of the 5 stages (query received, investigation progressing, employer debt established, debt collection progressing and query closed). Contact will mainly be in the form of mail or email through the myGov portal.
When the “employer debt established” stage is reached, you will receive an estimate from the ATO based on the information received so far. However, the actual amount paid into your super fund may differ from the estimate provided due to the accrual of interest or in instances where your previous employer provides new information. Remember to be patient if you’re pursuing the enquiry route through the ATO, the entire process is expected to take 12 months or longer.