‘Serious consequences’ for employers who dodge super payments

By Lucy Dean

January 25 2018
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Employers failing to pay superannuation could be hit with court-ordered penalties and even 12-month prison stints under draft legislation released this week.

On Wednesday, Minister for Revenue and Financial Services Kelly O’Dwyer said the draft legislation aims to protect workers’ super entitlements, while modernising the way the super guarantee is enforced.

Marking the release of the draft laws, she said, “It is not acceptable for people not to be paid their superannuation entitlements.”

Continuing, she explained that the laws will extend Single Touch Payroll to employers from 1 July 2019. Single Touch Payroll is a system that allows employers to report payments like salaries and wages, pay as you go (PAYG) tax and super directly to the Australian Taxation Office (ATO) from their payroll system as they pay their employees.

Ms O’Dwyer said the ability for all employers to use Single Touch Payroll will boost reporting of super payments and obligations, while allowing the ATO to access real time compliance information.

From 1 July this year, super funds will also begin event-based reporting to the ATO.

“Combined, these measures provide the ATO with more timely information to support earlier detection and proactive prevention of non-payment of superannuation that is rightfully owed to employees,” Ms O’Dwyer said.

“The government’s commitment to a Director Identification Number will help identify those directors who are robbing their employees of their superannuation.”

Warning that there will be “serious consequences for employers who break the law”, the minister said the ATO will possess a “suite of enforcement and collection tools” to carry out the law and monitor compliance.

Together with strengthened systems for director penalty notices, “in cases where employers defy directions to pay their superannuation guarantee liabilities, the ATO will be able for the first time to apply for court-ordered penalties, including up to 12 months imprisonment”.

“To embed ongoing compliance, the ATO will also have the ability to require employers to undertake training,” Ms O’Dwyer said.

She said the legislation will also close a loophole that allowed “unscrupulous employers to short-change” workers who salary sacrifice.

However, Industry Super Australia said the laws “needed to go further”.

Responding to the draft legislation, Industry Super public affairs director Matt Linden said that while the bill was welcomed, it also needed some improvements.

He explained, “The extension of single touch payroll technology to all businesses regardless of size from 2019, and enhanced tax office enforcement powers are very welcome.

“Single Touch Payroll will make it much easier to monitor and identify employers who skip their superannuation obligations, rather than the current regime of self-reporting.”

However, by not aligning the compulsory superannuation payment schedule with regular wage cycles, “these laws fall seriously short of protecting worker interests”, Mr Linden warned.

“A four-month delay from when a super entitlement appears on a payslip to when an employer has to pay it to an employees’ fund is at odds with our digital world,” he added.

“It is also time to reconsider the $450 per month super guarantee threshold.

“In the gig economy with increased casual work, the meagre threshold at which employees become eligible for super has reached its use-by-date.”

According to Industry Super analysis of ATO numbers, 32 per cent of workers were underpaid their super by $2,025 on average in 2013-14.

The Australian Institute of Superannuation Trustees agreed with Industry Super, calling for the payment of super to be aligned with pay slip reporting schedules. They also agreed that removing the $450 monthly income threshold for superannuation payments was needed to “tackle the problem of unpaid and lost super”.

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