3.4.4 Superannuation

WIRC s168

AC s93CE

A worker is entitled to superannuation contributions ('super') on weekly payments if the date of injury is on or after 5 April 2010.

Super contributions are calculated as a percentage of the worker's gross weekly payments.

See: Super Guarantee Percentage

Super is payable on gross weekly payments for periods:

post an aggregate total of 52 weeks paid/payable
under retirement age
on which the employer is not paying super under a public sector superannuation scheme, law or industrial award at a rate which equals or exceeds the super guarantee rate.

and where the worker has:

provided details of their complying super fund to the Agent and
provided their TFN to their super fund.

Note:

If a decision to cease weekly payments is later reversed, the decision also applies to super on those weekly payments.
If a worker’s weekly payments are reduced due to a Centrelink repayment, the super is based on the worker’s gross weekly payment amount before any Centrelink deduction.
If the worker is receipt of CWE Current Weekly Earnings, super is calculated only on the weekly payment amount. The worker’s employer may have a separate obligation to pay superannuation contributions on the current weekly earnings.
See: Superannuation Guarantee (Administration) Act 1992 (Cth)
If the employer continues to pay super post 52 weeks, they need to advise the Agent when contributions will cease so the Agent can commence payments.

Superannuation contributions are not payable on weekly payments for weekly periods:

for which the employer is paying super or
for which a worker is receiving weekly payments only because of an incapacity arising from surgery after the second entitlement period or
included in a worker's common law pecuniary loss A loss of earning capacity amount or
after retirement age or
prior to the Agent receiving a worker's super fund details where the details were not provided by the worker to the Agent within 3 months of the worker being notified of a super entitlement via the SUP5 letter.

WIRC s170

AC s93EA

WIRC s165

AC s93CD

WIRC s164

AC s93CA

Choice of complying fund

A worker can nominate a fund by filling in the Choice of superannuation fund form.

The fund chosen by the worker must be a complying superannuation fund This means that the fund has elected to be regulated, has complied with the Superannuation Industry (Supervision) Act (Cth) 1993 and has not received a notice of non-compliance. and be prepared to accept the payments. To verify whether a fund is complying, see www.superfundlookup.gov.au. If a worker chooses a non-complying fund the Agent needs to advise them they need to choose another fund before payments can be made.

Change of fund

A worker may change the fund they have nominated only once every 12 months or if their fund becomes non-complying.

3.4.4.1 Superannuation process

Action	Timing of action
The Agent sends letters: SUP5 to the worker to advise that the worker may have an entitlement to super and request worker fund details. SUP2 to the employer requesting the employer to advise if they have an ongoing obligation to make super contributions.	Within 28 days of becoming aware that the worker has an entitlement to superannuation contributions the Agent must advise the worker of their entitlement. Prior to the 52 week mark.
Worker returns completed Superannuation Fund Choice form to the Agent.
Agent confirms that worker has provided valid fund details, and that the worker has provided their TFN to the super fund. Where appropriate, Agent liaises with WorkSafe to register the complying fund.	Within two weeks of receiving super fund details.
Agent sends letters: SUP11 to worker and SUP12 to employer confirming the fund details and the date the entitlement will commence OR SUP13 to the worker if the worker has not returned their fund details within 3 months OR SUP6 to worker to confirm employer is paying	Within one month of receiving worker's fund details. Within four months of sending SUP5 letter Within one month of employer confirmation.
Agent commences payments. If the worker does not provide the required information within three months of receiving the notice of superannuation entitlement (SUP5) contributions are payable from the date they provide the required information to the Agent.	The legislation requires that super be paid within: 30 days of being notified by the worker's employer that they seek reimbursement of weekly payments (regardless of whether the amount is reimbursed to the employer or not) 120 days of the weekly payment being paid. WorkSafe's policy is that super payments should be made to workers within 28 days of receiving relevant details enabling payment.
Agent generates superannuation payments when weekly payments are raised in ACCtion. Payments are sent to the superannuation fund either by electronic funds transfer (EFT) or cheque (depending on the fund’s choice) on a weekly basis. See: Electronic funds transfer application form - superannuation Workers are sent a quarterly report for the following periods showing the contributions made on their behalf within that period.

Action

Timing of action

The Agent sends letters:

SUP5 to the worker to advise that the worker may have an entitlement to super and request worker fund details.
SUP2 to the employer requesting the employer to advise if they have an ongoing obligation to make super contributions.

Within 28 days of becoming aware that the worker has an entitlement to superannuation contributions the Agent must advise the worker of their entitlement.

Prior to the 52 week mark.

Worker returns completed Superannuation Fund Choice form to the Agent.

Agent confirms that worker has provided valid fund details, and that the worker has provided their TFN to the super fund. Where appropriate, Agent liaises with WorkSafe to register the complying fund.

Within two weeks of receiving super fund details.

Agent sends letters:

SUP11 to worker and SUP12 to employer confirming the fund details and the date the entitlement will commence

SUP13 to the worker if the worker has not returned their fund details within 3 months

SUP6 to worker to confirm employer is paying

Within one month of receiving worker's fund details.

Within four months of sending SUP5 letter

Within one month of employer confirmation.

Agent commences payments.

If the worker does not provide the required information within three months of receiving the notice of superannuation entitlement (SUP5) contributions are payable from the date they provide the required information to the Agent.

The legislation requires that super be paid within:

30 days of being notified by the worker's employer that they seek reimbursement of weekly payments (regardless of whether the amount is reimbursed to the employer or not)
120 days of the weekly payment being paid.

WorkSafe's policy is that super payments should be made to workers within 28 days of receiving relevant details enabling payment.

Agent generates superannuation payments when weekly payments are raised in ACCtion. Payments are sent to the superannuation fund either by electronic funds transfer (EFT) or cheque (depending on the fund’s choice) on a weekly basis.

See: Electronic funds transfer application form - superannuation

Workers are sent a quarterly report for the following periods showing the contributions made on their behalf within that period.

Note:

super letters are not required to be sent to employers where the worker is a direct payee
a modified process applies to Department of Education (DET) Victoria Police (VP) as well as Fire Rescue Victoria (FRV/old MFB) as these organisations have formal agreements in place to continue to pay super for workers on workers’ compensation beyond 52 weeks in the majority of cases

Reasonable follow up when requesting worker’s fund details

minimum Agent requirement: is one successful contact (phone conversation, or detailed email for DNC), plus at least one other attempt if unsuccessful initially.
customer service: WorkSafe encourages that Agents make all reasonable attempts to follow up within the three month period from requesting the fund details (e.g. additional phone calls, SMS reminder). Agents can manually reset tasks as reminders, ensuring that contact attempts are recorded in Novus.

Super entitlement on periods for which employer reimbursement of compensation has been denied on the grounds of it being outside of the required 3 month period (pursuant to s179(6) WIRC Act, s114D AC Act)

where all the information which is required to determine the super amount payable is present, the super must be paid. This information includes certificates of capacity and CWE, where relevant
where, at the time of denying the weeklies reimbursement on s114D grounds, the Agent does not have access to all of the information required to determine if there is a super amount payable and what the amount payable is, and it is not otherwise clear that the worker is working full time, the Agent should:
- request any extra required information (such as CWE) from the employer as part of the s114D process - i.e. together with the communication to the employer informing them of the denial of the reimbursement request, the Agent should also request the CWE/other information from the worker
- if the information is received from the worker or employer, pay the worker the super on the weeklies amount denied
- if the information is not received, then no super payments are payable for that period

Other requirements

Self-insurers are required to make contributions to workers at least quarterly.

The legislation does not require a worker to be provided with written notice if their superannuation contributions are altered because of an alteration to their weekly payments. However, if a worker's weekly payments are ceasing they should also be advised that their super payments will also cease.

AC s134eb

WIRC s184

AC s134AB

WIRC Part7 Div2

Disputes

A dispute about entitlement to superannuation contributions or calculation of superannuation contributions are subject to the normal dispute resolution process.

A Conciliation Officer cannot make directions on superannuation contributions as part of a conciliation, however an Arbitrator can make a determination about superannuation contributions as part of arbitration.

See: s301S WIRC Act Workplace Injury Rehabilitation & Compensation Act 2013.

A dispute about management of, access to or release of super from the super funds is outside the workers compensation jurisdiction and can be raised with the Superannuation Complaints Tribunal.

See: Superannuation Complaints Tribunal

Interest

Under the legislation, interest is payable on weeklies (and on associated super) where weekly payments are reinstated/increased due to a court order.

WIRC s194(3)

Interest is calculated at the prescribed rate and paid to the worker’s nominated superannuation fund.

Interest is not payable if a worker has failed to take a disputed superannuation contribution matter to court within one year of the conciliation outcome for the period beginning one year after that date and ending the date court proceedings are issued.

See: Interest on late weekly payments

AC s114EA

WIRC s194

Payments returned by superannuation fund

If superannuation payments are returned to the Agent: because the superannuation fund cannot identify the worker, the Agent can confirm the details with the worker.

If the superannuation payments are returned because the superannuation fund is no longer complying or the worker is no longer an active member of that fund, the Agent needs to:

contact the worker to advise them that payments cannot be made to that fund
send the worker the Choice of Superannuation Fund form and ask that they nominate another superannuation fund
cancel any further payments that have been made to the non-complying fund
re-issue the payments to the new fund nominated by the worker.

Recovery of contributions

Super funds generally refund super payments made as a result of administrative errors. The Agent should contact the super fund to do so where the overpayment amount exceeds $500. Agents are not able to withhold overpaid super amounts from subsequent super payments to the worker.

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