The arrival of COVID-19 has not assisted the major problem of employers not paying superannuation to their workers. According to the Association of Superannuation Funds of Australia, around 650,000 Australians are affected each year by superannuation guarantee (SG) non-compliance, where their employer has not paid the mandatory SG contribution.

This is unlikely to change with the impact of coronavirus meaning that there is less cashflow; meaning less money for staff wages and the relevant superannuation.

While non-payment of employees’ superannuation serves as a warning sign for cash-flow strain, there are also other issues to consider.

Non-payment of superannuation is part of the ATO’s Director Penalty Notice regime, so there is potential for directors to be personally liable for a company’s unpaid super. After a period of three months, the unpaid super is payable to the ATO as a Superannuation Guarantee Charge (SGC) and the ATO can issue a Director Penalty Notice for the SGC.

Notably, there are defences available to avoid the liability that is associated with receiving a Director Penalty Notice, directors need to be very wary of all the consequences to avoid opening themselves up to a breach of duty.

Another issue to consider, he says, is if a company becomes insolvent and there is no money in the company when it goes under, then the Fair Entitlements Guarantee (FEG) won’t cover the employees’ super entitlements.

“It appears the ATO is not actively chasing debts from Australian businesses at this time because of the COVID-19 crisis,” Devine says. “However, after the crisis passes, and the ATO does start to chase employers, there will be a big personal risk to directors if super has not been paid.”

He adds, superannuation is often a sleeping giant of a liability, as businesses are not generally chased for the cash, as employees don’t usually check to see if it has been paid.  “But when the current super is not paid it will become a debt that the ATO will likely eventually chase under the Superannuation Guarantee Charge regime,” Devine says.

ATO Offers Super Guarantee Amnesty

Meanwhile, there currently exists a one-off amnesty to encourage employers to self-correct any historical non-compliance around non-payment of the Superannuation Guarantee for the period between July 1, 1992, and March 31, 2018. Under the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019, the amnesty period – where employers can make a voluntary disclosure about any SG shortfall to the ATO – covers the period from May 24, 2018, to September 7, 2020. (The Bill was originally introduced in May 2018 but only received Royal Assent on March 6, 2020.)

Employers have until 7 September 2020 to self-report to the ATO and back pay any superannuation guarantee shortfall.

Employers who have already disclosed any SG shortfalls to the ATO between May 24, 2018, and March 6, 2020, don’t need to apply or lodge again. But employers who come forward from March 6, 2020, need to apply for the amnesty by September 7, 2020.

The initiative allows employers to self-correct past SG non-compliance without penalty. The ATO has said despite COVID-19, this amnesty period will not be extended. After the amnesty is finished, a 100 percent minimum penalty will apply for those employers who fail to come forward.

On March 30, 2020, the Australian Tax Office said if employers are having issues paying super because of COVID-19, then they could enter into a deferred payment plan to avoid losing deductions for the payment of underpaid SG.

Devine says as there will be no extension to the amnesty, businesses need to act now to review their superannuation commitments to see where any potential shortfalls may lie.

“Talk with your professional adviser or accountant to conduct a review of any undisclosed super payments that you could seek amnesty from the ATO during the amnesty period,” he says. “These payments include to your former as well as current employees and any relevant contractors.

“If you are affected by COVID-19, your adviser will be able to discuss options that the ATO has outlined to assist you, such as deferred payment plans that will allow you to avoid losing the deduction for any underpaid SG payments for the amnesty period.”

Need Help?

If you require further assistance with respect to the above or would like to know more, you are welcome to contact our team of experienced lawyers by clicking here to submit an online enquiry form or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange conference or appointment.