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

I move opposition amendment (1) on sheet 1001:

(1) Page 4 (after line 16), 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.

Underpayment of superannuation is an enormous problem. And the problem that is not being dealt with by the government is that there are basically very limited mechanisms for individuals who find themselves being underpaid. The amendment that we propose would change the law to include a right to superannuation within the National Employment Standards, and that would give every employee the right to pursue their unpaid superannuation in their own right.

The problem is this: currently unpaid or underpaid employer superannuation contributions are a debt that is owed to the Australian Taxation Office rather than to the individual worker. Unless there is a specific clause in their award or their agreement—and I observe that the government does everything in its power to make it difficult for such agreements to be formed—workers can't chase this money, because the money's not technically owed to them; it's technically owed to the ATO.

By placing superannuation within the National Employment Standards in the Fair Work Act, all employees would be empowered to recoup unpaid super from employers through the Fair Work Commission or through the Federal Court. Individuals would be empowered to chase their own unpaid super, instead of waiting for the ATO to do it for them. Again, the Senate Economics Legislation Committee has previously heard evidence about the administrative problems—the delays and difficulties encountered by people who try to get the ATO to act on their behalf in relation to these matters.

What's before the chamber now is a significantly more practical proposal than the government's pathetic response to this issue. What did the government decide to do? Their only response to this issue has been to allow an amnesty in place for employers, who can actually claim amnesty as far back as 1992. You can have been not paying super since 1992 and get a tick from the government. The amnesty is coming to an end, but it is indicative of the pathetic and inadequate attempts by the government to grapple with these problems. They come into this chamber and cry crocodile tears about various aspects of superannuation and various problems for individuals. If they had the courage of their convictions, they would support this simple amendment, because it is an amendment that would give individuals the power to chase the money that is owed to them.