Fair Work Act 2009 (Cth) and Superannuation
Superannuation is now a National Employment Standards enshrined in the Fair Work Act 2009 (Cth) (‘FW Act’).
This is due to the Fair Work Legislation Amendment (Protecting Worker Entitlement) Act 2023 which amended Schedule 3 of the FW Act from 1 January 2024.
The changes inserted new Division 10A in Part 2-2 of the FW Act to provide a new entitlement to superannuation contributions in the NES.
These provisions introduced a requirement for employers to make contributions to a superannuation fund for the benefit of the employee to avoid liability to pay the superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the employee.
What does this mean?
The National Employment Standards covers all national system employers and employees, and represents minimum entitlements, regardless of what an employee is paid.
Superannuation as a National Employment Standards entitlement aligns with superannuation guarantee laws, meaning an employer who complies with this superannuation guarantee is also meeting their National Employment Standards obligations.
Employers should be aware the obligation to make superannuation contributions on behalf of eligible employees in now enshrined in an additional piece of legislation.
An employer who contravenes the requirement to make superannuation contributions may be subject to civil penalty, as is the current position for all contraventions of the National Employment Standards. It would also be open to a court to make other orders, including for compensation if these provisions are contravened.
A new type of court action?
Prior to the National Employment Standards expanding to include superannuation from 1 January, an employee has been able to seek the payment of unpaid superannuation through the Australian Taxation Office (‘ATO’).
An employee who is not receiving superannuation contributions from their employer, per the superannuation guarantee, are now able to take court action for unpaid superannuation in accordance with the FW Act (unless the ATO has already commenced proceedings).
How can Business Chamber Queensland help?
Business Chamber Queensland members with HR services as part of their membership are invited to contact the Workplace Advisory Services team:
P: 1300 731 988
Businesses who do not have a HR membership may also seek assistance however a competitive consultancy fee will apply for any advice and assistance provided.
For membership enquiries, please contact our membership team on 1300 731 988.