Following the recent passage of the payday super legislation, it is crucial that employers are also aware that non-payment and underpayment of superannuation guarantee contributions is included in the new wage theft laws which criminalised wage theft, effective from 1 January 2025.
This means that superannuation entitlements, for the vast majority of national system employees, will have an additional layer of protection afforded to them by the new criminal offence. Accordingly, non-payment or underpayment of superannuation guarantee contributions is now covered in both the Fair Work jurisdiction and by report to the Australian Taxation Office for investigation.
Under the new wage theft laws, an employer commits an offence if:
- they are required to pay an amount to an employee – a required amount;
- the amount is not a required amount that is covered by an exception; and
- the employer engages in conduct which results in a failure to pay the required amount to the employee in full and on time.
This means that non-payment and underpayment of superannuation guarantee contributions is likely to fall under the ambit of the new wage theft provisions of the Fair Work Act 2009 (Cth), and creates a serious risk for employers.
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