Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

I don't think that seems like a very good-faith approach to unscrambling a problem. We've got billions of dollars in superannuation not being paid to ordinary workers. We've put a constructive proposal on the table. I think making a discussion with the opposition about that proposal hostage to some procedural demand that you have today is petty and rather unfortunate. I've asked you to consider it or to reconsider your position. You've refused to do so, and there's probably no point in discussing it much further.

I will now move to the amendment. As I said, I appreciate that the crossbench engaged constructively with us. We think this is a constructive idea that, unlike the bill that is presently before this chamber, would actually do something about unpaid superannuation, which in some cases amounts to deliberate theft from hardworking people. For clarity, the amendment that we've circulated would include the right to superannuation within the National Employment Standards, and that would give all employees to the power to pursue their unpaid superannuation. Currently, unpaid or underpaid employer contributions are a debt that's owed by the employer to the tax office rather than the worker. Unless there is a clause in the award or the agreement that covers that worker, the worker can't chase that money as an individual because the debt technically isn't owed to them. This bill seeks to fix that, because it doesn't really work. If a worker is not paid their super, what happens then is that they submit a claim to the ATO. Workers who lodge claims with the ATO may not see action for months or years or ever at all, with very little information given to those people as to why. Actually, the ATO is restricted in the information it can provide to workers, so it doesn't share details of any payment plan that might have been arrived at with an employer, nor does it allow anyone to contest the employer's claim if they say that they do not have capacity to repay in a reasonable time.

This isn't a small problem. The amount of unpaid super, as I alluded to earlier, is staggering. A report from Industry Super Australia has found that 2.94 million workers, a big group of workers, lose $5.95 billion each year in unpaid super. It's outrageous, and blue-collar workers are the ones who are most likely to be ripped off. Machinery operators and drivers, labourers, technicians and trade workers make up more than one million workers whose super is underpaid. Just under one in three community and personal service workers have their super stolen, amounting to more than $468 million. These are some of the most poorly paid workers in our system, doing hard and important work in the community services sector. It is outrageous.

This does represent a fix. Placing super within the National Employment Standards and the Fair Work Act means all employees will be empowered to recoup unpaid super from employers through the Fair Work Commission or through the Federal Court. It would allow them to seek unpaid superannuation in the same way workers can seek unpaid wages. Workers and their unions should have the right to pursue unpaid superannuation as an industrial entitlement. They should have the ability to inspect records of payment. If the government were serious about unpaid super, it would actually support this amendment today and it would ensure that superannuation provisions in the National Employment Standards to allow workers to enforce their rights at work are put into place. I seek leave to move amendments (1) and (2) on sheet 8872 revised together.

Leave granted.

I move amendments (1) and (2) on sheet 8872 revised:

(1) Clause 2 , page 2 (at the end of the table), add:

[commencement]

(2) Page 9 (after line 28) , at the end of the Bill, add:

Schedule 2—Superannuation contributions in National Employment Standards

Fair Work Act 2009

1 After paragraph 61(2 )( h)

Insert:

(ha) superannuation contributions (Division 10A);

2 After Division 10 of Part 2-2 of Chapter 2

Insert:

Division 10A—Superannuation contributions

116A Superannuation contributions

Obligation in relation to contributions

(1) An employer must make contributions to a superannuation fund for the benefit of an employee so as to avoid liability to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.

Amount of contributions

(2) The amount of the contributions relating to the employee is to be worked out:

(a) in accordance with the Superannuation Guarantee (Administration) Act 1992 ; or

(b) if a modern award or enterprise agreement applies to the employee and provides for an amount higher than the amount applicable under paragraph (a)—in accordance with the modern award or enterprise agreement (as the case requires).

Superannuation fund

(3) The superannuation fund to which the contributions relating to the employee are made must be:

(a) if a superannuation fund is a chosen fund (within the meaning of the Superannuation Guarantee (Administration) Act 1992 ) for the employee—that superannuation fund; or

(b) if there is no chosen fund (within the meaning of that Act) for the employee and a modern award or enterprise agreement applies to the employee—the superannuation fund specified in the modern award or enterprise agreement (as the case requires); or

(c) otherwise—a superannuation fund for which the choice of fund requirements in section 32C of that Act are satisfied in relation to the contributions to the fund.

Salary sacrifice arrangements

(4) A contribution made by an employer to a superannuation fund for the benefit of an employee under a salary sacrifice arrangement (within the meaning of the Superannuation Guarantee (Administration) Act 1992 ) with the employee does not satisfy the employer's obligation to make contributions under subsection (1).

Superannuation Guarantee (Administration) Act 1992

3 After subsection 37(1)

Insert:

(1A) Without limiting subsection (1), the Commissioner may amend an assessment if a court or tribunal has ordered the payment of superannuation contributions in relation to an employee and the order has been complied with.

[superannuation contributions in National Employment Standards]

The CHAIR: The question is that the amendments, as moved as Senator McAllister, be agreed to.