Remove hurdles to employees suing recalcitrant employers over SG

Mike Taylor

Managing Editor and Publisher

12 May 2023

Industry funds want amendments to legislation to enable employees to sue employers who fall short of their superannuation guarantee obligations irrespective of action initiated by the Australian Tax Office (ATO).

Industry Super Australia (ISA) is strongly backing superannuation being enshrined in the National Employment Standards (NES) and has told a Senate committee that employees should be entitled to sue employers irrespective of legal action initiated by the ATO or the Fair Work Ombudsman.

ISA said it was concerned that there was a risk of employer harm because proposed legislative changes might block them from initiating their own legal action if employers wre protected from multiple actions of the same unpaid super.

“It is not uncommon for the Commissioner of Taxation to formally commence proceedings for non-payment of superannuation relating to one or more employees and for those proceedings to not be actively pursued for years,” the ISA submission said.

“This can often be the case in insolvency matters. It would be grossly unfair if an employee or group of employees were unable to pursue a claim against an employer merely because another claim against the employer has not been formerly discontinued by the Commissioner of Taxation.”

“It is also unclear if an action by or on behalf of an individual employee is barred if the Commissioner of Taxation is pursuing a claim against the employee’s employer which relates to the non-payment of superannuation contributions to one or more other individual employees.”

“This should be clarified,” ISA said.