Superannuation

Based on the contribution of Craig Dowling and Neill Campbell for The Law Handbook 2016, published by Fitzroy Legal Service, originally amended by ClareMcKenzie for the NT Law Handbook, as amended by Bradley Allen Love Lawyers, Canberra, by Gabrielle Sullivan, May Oboodi and Robert Allen and current to March 2018.

Superannuation is often thought of as one of the key benefits enjoyed by Australian employees. However, the source of the employee’s right to superannuation is neither in the Fair Work Act nor in a modern award or enterprise agreement. Instead, superannuation as a national employment right is enshrined in a series of Commonwealth Acts applying to almost all employees in Australia.

The Superannuation Guarantee Scheme was enacted by the Commonwealth Government in 1992 under the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth). The scheme is intended to complement existing Award superannuation entitlements that remain in force. Employers must meet the minimum levels of contribution to a superannuation fund as set out in the superannuation guarantee legislation.

Employers must contribute a minimum percentage of each employee's base earnings (the minimum percentage is currently 9.5%). However, enterprise agreements and individual employment contracts can provide for a higher amount to be paid.

Nevertheless, there are some exemptions from the scheme, including:

• employees who earn less than $450 per month;
• persons who are paid to do work of a domestic nature for not more than 30 hours per week;
• employees under 18 years of age working 30 hours or less per week; and
• employees over 70 years of age.

The Commissioner of Taxation enforces payments under Superannuation Guarantee legislation. Employees do not have a right to commence proceedings for the recovery of unpaid superannuation under Superannuation Guarantee legislation. Instead, they can make complaints to Australian Taxation Office (ATO) about unpaid superannuation, which the ATO should investigate.

Whatever the source of the superannuation obligation, once it is paid by an employer as superannuation into the employee's nominated fund, the employer's contributions are not available to the employee until they reach the age of 55, with limited exceptions.