The NES entitlement aligns with the super guarantee which means that if an employer complies with the super guarantee then they will also meet their obligations under the NES.

Under the super guarantee employers must pay super contributions of at least 11.5% of an employee’s ordinary time earnings if an employee is:

• Over 18 years, or
• Under 18 years and works over 30 hours a week.

The guarantee applies to all types of employees including full-time, part-time and casual employees. This includes employees who may be temporary residents of Australia. Employers may also elect to pay a higher rate for super guarantee under an award or agreement.

When an employee is eligible for super, it must be paid into the employee’s nominated account at least every 3 months.

If a dispute arises in relation to unpaid or underpayment of super, employees can take court action under the Fair Work Act 2009 or they may make a complaint to the Australian Taxation Office to recover their unpaid entitlements. But first, an employee should:

• Check if an award or registered agreement applies to their employment;
• Check if the award or agreement has extra terms about super; and
• Check with their employer and your nominated super fund if there has been an unintentional mistake that caused the underpayment or non-payment.

Employers are advised to take their obligations to pay staff their lawful entitlements very seriously or be prepared for long sleepless nights and worse by getting stern letters from law firms like ours.

We assist a wide range of people who are not paid their correct superannuation. This year changes to the law came into effect that allow employees to effectively sue their employer for unpaid superannuation instead of relying on the ATO to chase their money.

If an employer is found to have not paid superannuation they are liable to significant fines for committing wage theft. Fines are now nearly $3 million for companies and in some circumstances up to 10 years in prison for individuals.

Courts can also find an employee or even external advisors like accountants and human resource services to be an accessory to the contravention and impose very large fines on them too.

If you think your super entitlements have not been fulfilled please get in touch with us – your first phone call will always be free.