The ATO has issued a fact sheet explaining its compliance approach to employers who fail to meet their superannuation guarantee (SG) obligations. This may include non-payment, under payment or late payment of SG contributions. 

Employer SG obligations

The SG legislation requires employers to make SG contributions by quarterly due dates. The minimum required amount is currently 9.5% of an employee's "ordinary time earnings". SG contributions must be made irrespective of whether an employee:
  • is full-time, part-time or casual;
  • is a company director;
  • is a family member working in the employer's business, provided they are eligible for SG;
  • receives a super pension or annuity while still working, including a transition to retirement income stream (TRIS); or
  • is a temporary resident.
Employers who pay an eligible employee $450 or more (before tax) in a calendar month are required to make SG contributions for that employee.

Some contractors are still "employees"

For SG purposes, certain contractors paid mainly for their labour are still treated as "employees" even if the contractor quotes an Australian business number (ABN). The ATO says employers must make super contributions for these individuals if they are paid:
  • under a verbal or written contract that is wholly or principally for their labour;
  • for their personal labour and skills (which may include physical labour, mental effort or artistic effort) and not for a result; and
  • to perform the contract work personally (ie, they must not delegate).
ATO compliance approach

The ATO says it uses sophisticated data analytics to identify employers at high risk of non-compliance. It takes a differentiated approach to compliance and penalties for SG non-compliance depending on the employer's compliance history and individual circumstances. The ATO warns that it will take firm compliance action against employers who are able but unwilling to meet their SG obligations (such as employers who fail to reply promptly to ATO correspondence or fail to take active steps towards resolving an SG discrepancy). The ATO will also target compliance action towards employers who:
  • repeatedly fail to pay the correct amount of SG;
  • attempt to obstruct the ATO in determining an SG liability;
  • repeatedly fail to keep appointments;
  • repeatedly fail to supply information without an acceptable reason;
  • deliberately supply information that is irrelevant, inadequate or misleading; or
  • engage in any culpable behaviour to delay the provision of information.

In addition to the super guarantee charge (SGC), a penalty of up to 200% applies if an employer lodges their SGC statement late or fails to provide information when requested. While the Commissioner has a discretion to remit this penalty, any decision to remit will take into account the employer's compliance history and the extent to which the employer has attempted to comply. There is no discretion to remit the SGC itself. An administrative penalty of up to 75% may also apply if an employer makes a false or misleading statement.