Employer Hasn’t Paid Your Super? The Two-Track Recovery Path

You checked your super fund and the contributions stopped months ago. Or your employer is paying late, or paying less than the minimum, or paying into the wrong fund. Unpaid superannuation is one of the most-investigated employer breaches in Australia and the recovery path runs in parallel through the Australian Taxation Office (ATO) and Fair Work — a Letter of Demand opens both.

The legal context — Superannuation Guarantee plus the Fair Work Act

The Superannuation Guarantee (Administration) Act 1992 requires employers to pay a minimum percentage (currently 12%) of an employee’s ordinary time earnings into a complying super fund within 7 business days of each payday (Payday Super, from 1 July 2026; quarterly due dates applied before then). Failure triggers the Superannuation Guarantee Charge (SGC) — the unpaid super plus interest plus an administration component, all payable to the ATO and not tax-deductible. Since 1 January 2020, unpaid super is also a workplace entitlement enforceable directly under section 323 of the Fair Work Act 2009, giving employees the option of pursuing recovery through Fair Work without waiting for the ATO.

Common employer defences and why they fail

• “You’re a contractor.” Section 12(3) of the SG Act extends super obligations to many “contractors” who work principally for their labour — misclassification doesn’t avoid the obligation.
• “We paid your super into our chosen fund.” Since the 2021 stapled super reforms, employers must pay into your existing stapled fund unless you have actively chosen another.
• “We’re behind on this quarter — we’ll catch up.” Late payment triggers the full SGC penalties from the day after the due date.
• “You earned under the threshold.” The earnings threshold ($450/month) was abolished from 1 July 2022 — super applies on every dollar of OTE.

The Letter of Demand approach

The Letter of Demand sets out the periods of unpaid or under-paid super, the ordinary time earnings basis, the calculation, the relevant fund, and a 14-day deadline. It cites both the SG Act and section 323 of the Fair Work Act and flags the parallel ATO unpaid super complaint and Fair Work recovery proceedings. The dual-track threat is what makes this letter particularly effective.

What Claim Done delivers (flat fee)

Answer the wizard about the periods, your OTE, your fund, and the amounts paid versus owed. Claim Done generates a Letter of Demand citing the SG Act and the Fair Work Act, with a clean calculation, as a PDF.

What to expect — and the ATO/Fair Work escalation

Many employers pay quickly because they understand that an ATO unpaid super complaint triggers an audit they very much don’t want. If yours doesn’t pay, lodge a Report Unpaid Super complaint with the ATO and (in parallel) a Fair Work Ombudsman complaint or direct small-claims proceeding in the Federal Circuit and Family Court. Your Letter of Demand becomes the foundation document for both.