Superannuation Law & Lawyers

Superannuation disputes, TPD claims, and fund administration.

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Superannuation is a way of saving for your retirement. Both you and your employer can make contributions that accumulate over time and this money is then invested in shares, government bonds, property, or other appropriate investments.

Superannuation is a retirement (including pensions) program in Australia. It has a compulsory element whereby employers are required by law to pay an additional amount based on a proportion of an employee's salaries and wages (currently 9%) into a complying superannuation fund.

An individual's superannuation fund can be accessed when the employee meets one of the conditions of release contained in Schedule 1 of the Superannuation Industry (Supervision) Regulations 1994.

If you would like legal help regarding superannuation law, please complete your free legal enquiry form on the right, or click here.

Total and Permanent Disability Compensation Claims

If you become Totally and Permanently Disabled, you can claim your superannuation early. Most superannuation funds also have a TPD insurance component. Therefore in addition to receiving your super early, you may be entitled to a lump sum payout through the TPD insurance component.

For more information click here: Total and Permanent Disability Compensation Claims

Superannuation - Compulsory employer contributions

Most people are entitled to compulsory super contributions from their employer. These super guarantee contributions must be at least 9% of your ordinary earnings, up to the 'maximum contribution base'. You may also be entitled to choose the fund your super is paid into.

Other contributions and co-contributions

You can boost your super by making your own contributions and may be eligible for government co-contributions. You might also want to consider a salary sacrifice arrangement to grow your super.

The amount of tax on your contributions depends on whether they are concessional (sometimes referred to as 'before tax') or non-concessional (sometimes referred to as 'after tax') contributions, and whether you exceed the contribution caps.

Keeping track of your super

If you've ever changed your name, address or job, you may have more than one super account or even have some lost super. Combining your super into one account will save you fees and makes it easier to keep track of your super.

Accessing your super benefits

You can access your super when you reach 'preservation age' and retire, or turn 65 (even if you haven't retired). There are very limited circumstances where you can access your super savings early.

The tax treatment of super and death benefits depends on a number of factors, such as when and how the benefits are paid. They may have both taxable and tax-free components.

If you're a temporary resident working in Australia, you can apply for your super when you leave.

If you have a legal issue regarding your superannuation, please complete your free legal enquiry form on the right, or click here.

Self managed super funds

You can set up your own private super fund and manage it yourself, but only under strict rules regulated by the Australian Taxation Office (ATO). They are sometimes called a 'self-managed super fund' (SMSF).

An SMSF can have one to four members. Each member is a trustee.

Running your own Super fund is complex so think carefully before setting up a Superannuation Fund. If you set up a self-managed super fund you must:

Carry out the role of trustee, which imposes important legal duties on you
Use the money only to provide retirement benefits
Set and follow an investment strategy that ensures the fund is likely to meet your retirement needs
Keep comprehensive records and arrange an annual audit by a qualified auditor
Smart tip
Don't forget to take out separate life insurance cover if you have a self-managed super fund.

If you're running a self-managed super fund, you will typically need:

A large amount of money in the fund to make set-up and yearly running costs worthwhile - usually at least $250,000
To allow for ongoing expenses such as professional accounting, tax, audit and legal advice
Plenty of time to manage the fund
Financial experience and skills so you are more likely to make sound investment decisions
Separate life insurance, including income protection and total and permanent disability cover.

You can pay an adviser a fee to do the administration for your self-managed super fund. However, you cannot pass on the responsibility of being a trustee.

If you would like legal help in regards to self managed super funds, please complete your free legal enquiry form on the right, or click here.

The main laws that apply to superannuation are the:

Superannuation Industry (Supervision) Act and Regulations (regulates most private superannuation funds);
Superannuation Guarantee (Administration) Act and Regulations (tells employers the minimum contribution they must pay);
Superannuation Act (covers Commonwealth government superannuation funds)

If you would like legal help regarding superannuation law, please complete your free legal enquiry form on the right, or click here.

Operation Employer contributions

Employers must make superannuation contributions to the employees' at 9% to a designated superannuation fund at least every three months. The superannuation contributions are invested over the period of the employees' working life and the sum of compulsory and voluntary contributions, plus earnings, less taxes and fees is paid to the person when they choose to retire. The sum most people receive is predominantly made up of compulsory employer contributions.

Special rules apply in relation to employers providing defined benefit arrangements. There are less common traditional employer funds where benefits are determined by a formula usually based on final average salary and length of service. Essentially, instead of minimum contributions, employers need to provide a minimum level of benefit.

Superannuation Guarantee law applies to all working Australians, except those earning less than $450 per month, or aged under 18 or over 70. Individuals can choose to make extra voluntary contributions to their superannuation and receive tax benefits for doing so.

Access to superannuation

As superannuation is money invested for one's retirement, strict government rules prevent early access to preserved benefits except in very limited and restricted circumstances, including severe financial hardship or on compassionate grounds, such as for medical treatment not available through Medicare.

Generally, superannuation benefits fall into three (3) categories:

Preserved benefits;
Restricted non-preserved benefits; and
Unrestricted non-preserved benefits.

Preserved benefits are benefits that must be retained in a superannuation fund until the employee's 'preservation age'. Currently, all workers must wait until they are 55 before they may access these funds. All contributions made after 1 July 1999 fall into this category.

Restricted non-preserved benefits although not preserved, cannot be accessed until an employee meets a condition of release, such as terminating their employment in an employer superannuation scheme.

Unrestricted non-preserved benefits do not require the fulfilment of a condition of release, and may be accessed upon the request of the worker. For example, where a worker has previously satisfied a condition of release and decided not to access the money in their superannuation fund.

Types of superannuation funds

There are seven main types of superannuation funds:

Industry Funds are multiemployer funds run by employer associations and/or unions. Unlike Retail/Wholesale funds they are run solely for the benefit of members as there are no shareholders.
Wholesale Master Trusts are multiemployer funds run by financial institutions for groups of employees. These are also classified as Retail funds by APRA.
Retail Master Trusts/Wrap platforms are funds run by financial institutions for individuals.
Employer Stand-alone Funds are funds established by employers for their employees. Each fund has its own trust structure that is not necessarily not shared by other employers.
Self Managed Superannuation Funds (SMSFs or Do-It-Yourself Funds) are funds established for a small number of individuals (fewer than 5) and regulated by the Australian Taxation Office. Generally the Trustees of the fund are the fund members (where there is a Corporate Trustee, the members are the directors of that company).
Small APRA Funds (SAFs) are funds established for a small number of individuals (fewer than 5) but unlike SMSFs the Trustee is an Approved Trustee, not the member/s, and the funds are regulated by APRA. This structure is often used for members who want control of their superannuation investments but are unable or unwilling to meet the requirements of Trusteeship of an SMSF.
Public Sector Employees Funds are funds established by governments for their employees.

Retail and Wholesale Master Trusts are the largest sector of the Australian Superannuation Market.

If you would like legal help regarding superannuation law, please complete your free legal enquiry form on the right, or click here.

Superannuation - Some further Information

What is super?

Superannuation is a way to save for your retirement. The money comes from contributions made into your super fund by your employer and, ideally, topped up by your own money. Sometimes the government will add to it through co-contributions too.

Your employer must pay 9% of your salary into a super fund. This is called the Super Guarantee and it's the law.

Over the course of your working life, these contributions from your employer add up, or 'accumulate'. Your super money is also invested by your super fund so it grows over time. When you retire, you will have money to live off – a nest egg.

Super is a lifetime investment that has many benefits.

Save for your retirement
Start saving for your retirement early. The longer you have to save, the more chance your savings have to grow. Use our retirement planner to find out if your super savings are on track.

Enjoy tax advantages

For most people, super will be taxed at a lower rate than a similar investment outside super.

Receive bonus contributions from the government

If you put your own after-tax money into super, you could receive a government co-contribution, depending on how much money you earn.

How to choose a super fund

Most people can choose which super fund they'd like their super contributions paid into. If you want to choose your super fund, tell your employer by filling in a Standard choice form from the Australian Taxation Office (ATO) or from your employer.

In some cases your employer will decide which fund your super is paid into. If you don't (or can't) choose your super fund, your employer will put the money into a 'default' super fund, a fund nominated under an industrial award or by your employer.

Making super contributions

For most people, your employer must pay an amount equal to 9% of your salary into your super fund account.

It's important that you get paid what's rightfully yours. The 9% employer contributions are based on your 'ordinary time earnings'. For example, if your ordinary time earnings are $50,000 then you should be paid an additional $4,500 into super.

Ordinary time earnings are what employees earn for their ordinary hours of work including over-award payments, bonuses, commissions, allowances and certain paid leave. See the ATO's information on using ordinary time earnings to calculate the super guarantee.

You can make extra contributions by:

Putting some of your savings into your super account
Asking your employer to deduct extra money from your pay (before tax is taken out) and pay this into your super account – this is called contributing extra to super
Transferring super from another fund into your main super account on a regular basis
For self-employed people, your super contributions may be tax deductible.

What happens to your super money

Money in your super fund account is invested by your super fund. Most super funds offer a variety of investment options.

For example, if you choose a market-linked investment, the value of your super will move up and down with market movements. Or you might select a stable option with lower expected returns but fewer ups and downs.

You can choose how you'd like your money invested, if you want to. You can also transfer your money to a different investment option within the fund, or transfer to another super fund at any time.

Maximise super when you retire

If you retire and have reached your preservation age (i.e. 55 to 60), you can withdraw your super. There are three ways you can get your super:

As a lump sum
As a retirement income stream (e.g. a monthly payment)
A combination of both

If you choose to take your super as a retirement income stream, the money that you're not accessing continues to work for you and earn interest.