Thursday, 13 February 2020
Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019; Second Reading
The IPA supports this initiative as it incentivises employers to come forward and do the right thing by their employees by paying any unpaid superannuation in full.
He goes on to say:
It should be noted that employers will not be entirely off the hook – to use the amnesty they must pay all that is owing to their employees, including the high rate of nominal interest. However, the amnesty will make it easier to secure outstanding employee entitlements, by setting aside the penalties for late payment.
Employers that do not take advantage of the one-off amnesty will face significantly higher penalties if they are subsequently caught (a minimum 50 per cent on top of the SG Charge they owe). In addition, throughout the amnesty period the ATO will still continue its usual enforcement activity against employers.
This one-off amnesty should be supported to allow employers to wipe the slate clean and pay their workers what they're owed, as all Australians workers should be paid their entitlements in full.
The Government is further strengthening the ATO tools available in future to enforce compliance so the timing of this amnesty is appropriate.
That is a very powerful endorsement from the Institute of Public Accountants, Mr Andrew Conway, in regards to the initiative we are debating here this afternoon.
Let's be clear: 14,000 businesses coming forward with historical errors is a good thing for employees. That is thousands and thousands of superannuation accounts that will be topped up, not just with the original amount owed but also a generous interest component that exceeds the average superannuation earnings.
I'd like to briefly discuss the language that those on the other side and in the union movement are now using in this particular public policy area. The terms 'wage theft' and 'super theft' are highly emotive. They get good headlines, they build outrage but they don't reflect the reality of the experiences of employers across Australia. The reality is that in the vast majority of cases genuine mistakes happen—often due to misinterpretation of rules by employees themselves, not just errors by employers.
In other cases, as the CEO of the Institute of Public Accountants, Mr Andrew Conway, pointed out:
We acknowledge that small businesses can sometimes experience cash flow issues, making them vulnerable when it comes to meeting their SG obligations by the required due date.
Just as not everyone in the union movement is there to steal union funds to spend on themselves, most employers are in business to create jobs and improve the lives of their employees as well as their own. The vast majority are genuine, hardworking people and they often have a vested interest—not only a moral vested interest and not only an ethical and cultural vested interest but a financial vested interest—in making sure their business and the business that employs their employees is as profitable and as successful as it can be. That's why so many small- and family-business owners across the country have invested their own homes, their own assets, in the success of their own businesses.
When business is tough, small-business owners often go without wages and spend sleepless nights worrying about how they will make payroll and keep their doors open. While managing their cash flow using their superannuation guarantee isn't right and will be almost impossible with Single Touch Payroll, small and family businesses aren't doing it to pocket the money themselves; they are just trying to stay afloat. Calling these hardworking job-creating Australians wage thieves is unfair and fails to recognise their sacrifices to support job creation and to grow our Australian economy. The self-righteousness of those on the other side of this Senate chamber and on the other side of the House of Representatives chamber, who wish to close the door on small businesses for honest mistakes, is astounding. It is job destroying.
I'd encourage those who do not support the amnesty to speak with the employees of businesses that have made genuine mistakes and ask them these simple questions: do you want your employer to be shut down for making a mistake? Would you prefer your employer to pay what they owe with interest but without penalty, or would you prefer your employer to be hit with larger penalties that will risk the ongoing viability of their business, and therefore your job, and destroy the ability of their business to grow and prosper? I'm sure the answer from most reasonable quiet Australians will be that they want businesses to flourish and provide job opportunities, and that an initiative like this should be supported. I commend the bill to the Senate.
It is a delight to follow my good friend Senator Smith, who perfectly encapsulated many of my thoughts on this issue without having the benefit of reading my speech beforehand. I must say, Senator Smith, you're an easy act to follow. Having covered the ground so extensively, it's going to be hard for me to leave out any relevant points.
Firstly, I want to provide some overall context to this legislation, the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019, because I think it's important that we see it in the context of a whole range of superannuation reforms which are being undertaken by the current government. Those include reforms which deal with compliance through the Single Touch Payroll system and through real-time reporting of deposits made to superannuation funds, and with the enforcement aspect, including an increase in penalties against those employers who do the wrong thing—not inadvertently but deliberately. Another reform is resourcing. Just on that point: an extra $133.7 million was given to the ATO between 2018 and 2019. That resulted in $805 million of unpaid super being delivered to its rightful owners. From my perspective, that ratio of six to one in terms of enforcement dollars being spent against the actual outcome is a positive outcome and a good efficient expenditure of government resources.
Lastly, the last limb deals with efficiency. That means dealing with excessive fees in superannuation funds, dealing with the phenomenon of unnecessary insurance being provided through superannuation funds, through the levying of duties and also reuniting people with the lost super. There are a number of reforms taking place, and this is one of them.
I'd like at the outset to deal with the philosophy of an amnesty. We live in a society which has the rule of law, so it's a good question to ask: in what circumstances is it appropriate that an amnesty should be granted to those who are doing the wrong thing? On reflecting on this, in the context of this legislation from my perspective, I think there are three guiding principles. Firstly, any amnesty should be rare and the explanatory statement for this legislation makes it quite clear that this is a one-off amnesty; and, secondly, it only covers a limited period of time. There's only a limited amnesty period in which employers who have not deducted superannuation, paid superannuation, for their employees to make payments—that is, from 24 May 2018 to six months after royal assent is given to this legislation. So, tick: this amnesty meets that requirement in terms of it being rare.
The second element I believe should apply to all amnesties when they come for consideration before the Senate is whether or not the amnesty will assist the victim or hurt the victim. In this case, the evidence is clear that 7,000 employers thus far have taken advantage of the amnesty to pay unpaid superannuation into the accounts of their employees. So, in that respect, this amnesty is actually assisting the people who are the victims—the employees who did not receive their superannuation payments. Treasury estimates are to the effect that an additional 7,000 employers are likely to come forward and make payments, correct those errors—and, in many cases, as Senator Smith said, they're inadvertent errors. So this amnesty will assist those who have suffered a detriment through the superannuation not being paid.
Lastly, the third principle, I think, which has to apply and which I believe this bill meets is that the amnesty should be reasonable and it should be proportionate. If you look at the whole of the bill, that requirement is met and it's met in a number of ways. Firstly, it only applies to employers trying to do the right thing. They have to self-report; it's self-disclosure. Once the ATO starts investigating an employer, it's too late for the employer to come forward. Secondly, it acts to keep the employee whole, and Senator Smith referred to the interest rate that applies to the contribution of superannuation if there's late payment. So it keeps the employee whole, and I think that's important. Thirdly, the payment must be made by the relevant time. It is one thing to self-disclose, self-report, but it's another thing to actually meet your commitment and make the payment on time. If you don't make the payment on time then the amnesty won't apply.
The fourth observation is: as an employer who has not paid your superannuation contributions, does not take advantage of the amnesty period and does not make the payment, you do not comply. If the ATO then identifies you as someone who's in breach, the ability of the ATO to remit the penalties which apply to you is circumscribed. At the very least, except in extraordinary circumstances, if an employer has not complied, not taken advantage of the amnesty period, not met obligations when given this rare opportunity to do so and been found to have done the wrong thing, the ability of the ATO to remit the penalties is circumscribed. And the penalties will constitute at least 100 per cent of the unpaid amount plus general interest, plus there's no tax deductibility for those payments.
From my perspective, we have a situation here where, firstly, you have an amnesty being applied in rare circumstances—it's a one-off—and it only applies to a limited amnesty period. Secondly, the amnesty will actually assist the victims—that is, the beneficiaries of the superannuation funds. Because we've had 7,000 employers take advantage of the amnesty, and another 7,000 employers are estimated to be willing to take advantage of the amnesty, we're assisting the beneficiaries of those funds to get their superannuation amounts. And, thirdly, when you consider the bill as a whole it's reasonable and it's proportionate. On that basis, I'm very happy to support this legislation.
I rise to speak on the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019. Centre Alliance supports this bill. Underpayment or nonpayment of superannuation is an enormous issue that is often realised far too late to be remedied. According to Industry Super Australia, nearly three million Australians suffered from superannuation nonpayment or underpayment in 2015-16, totalling an incredible $5.9 billion in unpaid super. The bill balances the interests of employers and employees through a carrot and stick approach. For those employers who may be delinquent in their payment of employee superannuation entitlements, they are offered an amnesty. Once the amnesty is over the penalties are doubled.
This bill creates a practical inducement for employers to comply with their legal obligations. It's important, because the effect of unpaid super is far-reaching. The impact on the broader Australian community is there when a person's financial future is seriously compromised and they have to rely on social security in their retirement. It also allows unscrupulous businesses to use unpaid super payments to finance their operations with employee entitlements; they're basically using it to gain a competitive advantage over other businesses that are actually doing the right thing.
Superannuation is a legal right and it is unfair and un-Australian that employees are too often denied their super payments by their employers. This is why Centre Alliance has been engaging with both sides of the chamber in relation to the potential to include the payment of superannuation within the National Employment Standards. Currently, the situation is only the ATO can pursue nonpayments of super. Labor has moved an amendment that will empower individuals to pursue the nonpayment of their super through the courts or the Fair Work Commission where the ATO fails to do so. Now, that's an important issue. It establishes fairness and should lessen any opportunity for employers to become delinquent in the payment of an employee's superannuation entitlement.
Now, while we've been talking to Labor about this—and Centre Alliance agree with this principle—we've also been talking to the government, who have some concerns about the implementation details of that. In the best goodwill of the Senate, the government has now agreed, and has given an undertaking to Centre Alliance, that it will examine, in good faith, whether to incorporate the payment of superannuation contributions into the National Employment Standards and to arrive at any proposed policy changes within six months. That's an undertaking that Centre Alliance has decided to accept. It allows us to work towards getting this issue resolved in a manner that will involve, no doubt, consultation and careful thought. We expect the government will honour that undertaking. There will be other super bills, and I can assure Labor that if we don't get to that point then at the next super bill, or the next bill where it's relevant, Centre Alliance will support it again. I have advised Labor of this—once again, just to be open—and they understand we won't be supporting their amendment on the basis of the undertaking provided by the government. With that I'll leave it there and commend the bill to the house.
I rise to make a very brief contribution on the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019 and to acknowledge the contributions of those that came before me. The point I want to quickly make, following on the point made by my colleague Senator Dean Smith, is that this is about recognising the fact that money earned by employees is their money. Whether it's wages or super, it is their money. Reuniting them with that money in circumstances where businesses have not complied with the law is an important step forward. The government has been working on this over a period of time. With the advent of the Single Touch Payroll and real-time reporting to the ATO by super funds, there is nowhere to hide for employers who don't do the right thing by their employees. It is the employee's money. However, those measures are forward looking and they don't address historical issues. So this bill is a one-off opportunity for businesses to come forward, do the right thing, wipe the slate clean, get the money and reunite it with the people who earned it.
But, as Senator Smith pointed out, when those opposite talk about wage theft and super theft, they have a tendency to—I cite the example of Senator Sheldon's contribution. He listed a long list of companies who have been found to have underpaid workers in their wages. That is absolutely true, and those companies need to do the right thing. But who is always left off that list when those opposite read out the list of businesses? Who's always left off? Do they ever raise the fact that the Labor aligned law firm Maurice Blackburn short-changed over 400 staff by $1 million? They always leave that one out. Do they recognise the fact that the ABC admitted that it underpaid 2½ thousand staff $22 million over six years? That's a larger amount than many of the businesses that are read out by those opposite. Maybe this should tell us that we have a systemic problem here. This is not wage theft; this is businesses operating in a significantly complex environment where they are trying to do the right thing and, because of the complexity of the systems involved, they sometimes fail.
As Senator Smith pointed out—and this is a really key issue—often the businesses and the companies and the entities we talk about in this place are the larger ones, like the ABC, Maurice Blackburn, Woolworths. What about the small businesses, who employ the majority of people in this country and who have to operate under the same rules—and so they should—and who have to operate in the same legal environment with the same legal obligations towards their staff but with also that same level of complexity? This is an excellent bill, and I commend it to the house.
Labor certainly has some issues with the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019. Noncompliance with the superannuation guarantee is a form of wage theft. When an employer forgoes paying superannuation to their employee, they are taking what was legally owed to the employee. This legislation implements an amnesty for employers who voluntarily disclose they are not compliant with superannuation guarantee requirements—in other words, the employers have not met their legal requirements to pay their workers what they are owed. It's not that workers haven't received a bonus or a windfall; it's their legally owed entitlement. Workers who have superannuation entitlements stolen by their employers are left facing an insecure retirement without their superannuation payments. In the 26 years the amnesty covers, many workers have retired or are nearing retirement with a superannuation balance that leaves them struggling on the meagre age pension.
These workers should have been able to draw upon their superannuation as they entered retirement, with the ability to improve their standard of living relative to relying solely on the age pension. Fifteen million Australians hold superannuation accounts. Most of these funds are performing pretty well, with 16 per cent per annum average return over the last 10 years. There are around $2.8 trillion in assets, and that's more than 140 per cent of gross domestic product. Under the current settings, that will grow to $9.5 trillion by 2035, expanding the pool of funds available for investment in local infrastructure and providing a stream of earnings from foreign investments.
The success and popularity of super don't mean the system doesn't have issues that need to be dealt with. Unpaid superannuation totalling almost $6 billion per annum is one of those issues. It is a massive problem. Industry Superannuation Australia estimates that 2.4 million workers are losing in the vicinity of $5.6 billion in payments each year. The Australian tax office takes a slightly different view. It says the amount is roughly half that. Whichever view of this you take, what is certain is that somewhere between $3 billion a year and $5.6 billion a year owed to workers' superannuation accounts is being lost. That's equal to those workers losing $2,000 per year which should be going into retirement savings. Superannuation is part of a worker's pay and conditions. Every worker deserves and is entitled to receive their superannuation as a matter of law.
I'd like to touch on the particular issue of superannuation in relation to First Nations people. While the Australian superannuation system was designed with the intention of benefiting all Australians, the unique needs of First Nations people are often overlooked by superannuation policymakers and the industry. Last week, First Nations advocate and academic Terry Mason wrote a thought-provoking piece, on the IndigenousX platform, regarding many of the issues around our superannuation system. It's timely during this week when we are focusing on closing the gap. Mr Mason said:
… the continuing failure of the Close the Gap initiative has brought into closer focus the inequity in a fixed statutory age for retirement and access to superannuation for First Nations Peoples.
In other words, should First Nations peoples 'be able to gain voluntary early access to retirement, pension and superannuation' as our shorter life expectancies mean we have less opportunity to enjoy superannuation after retirement? He added:
Most of us will be lucky to live long enough to reach retirement age. Particularly so with the government's move to raise the age of retirement in the future.
First Nations people, on average, are employed in lower-earning-capacity positions, and this work is often casual or part time. The average retirement income is 27 per cent less than that of non-Indigenous Australians, and First Nations women face even worse superannuation outcomes. Discriminatory policies, such as CDP, add to this disparity in retirement incomes. CDP participants are not covered by the Fair Work Act, they don't have federal OHS protections or workers compensation, and they can't take annual leave, sick leave or carers leave. This also means that they may work for a for-profit business but not receive superannuation.
The Australian Council of Trade Unions has five priorities in the Our voice, our future report concerning First Nations peoples. One of them deals with retirement savings. It calls, amongst other things, for 'a reduction in the statutory retirement age and superannuation access age for Aboriginal and Torres Strait Islander workers which reflects the life expectancy gap' and 'a review of the tax-free threshold status in conjunction with a reduction in the statutory age for accessing superannuation'. Government needs to remove the impediments to voluntary early access to superannuation funds. First Nations people deserve to be able to enjoy quality time in their elder years in a financially stable position, and these elder years may be younger than for the rest of the population due to no fault of theirs.
I'd also like to touch on some strong work and advocacy being done by the First Nations Foundation with respect to superannuation issues. The foundation is committed to increasing financial literacy and skills in First Nations communities, and this includes supporting people to take control of and understand their super. They work across four key areas, which they define as: find it, grow it, protect it and plan it. When it comes to 'find it', they're certainly achieving some pretty amazing results. The First Nations Foundation, which is basically a tiny charity, has so far managed to find $24 million in Indigenous superannuation in 21 Indigenous communities across six states. That's $24 million of Indigenous superannuation that they've found. That's money that was previously sitting with the ATO. Combining with a specialist team of people from the then Department of Human Services, the Australian Taxation Office and 14 superannuation fund volunteers, the First Nations Foundation led 45 people to seven communities last year. They visited Darwin, Kununurra, Broome, Gapuwiyak in north-east Arnhem Land, Galiwin'ku, Milingimbi and Ramingining. They brought in financial counsellors and engaged with community members at events they call the Big Super Day Out. It's well worth getting across that one, Minister.
To give you an idea of the work that happens at these events, they saw one man with no ID who learned he had money in four different superannuation accounts worth $17,000. As he was over the preservation age, he was able to walk out the door knowing that money would be in his bank account the very next day. Then there was the man whose permanent injury meant he could no longer work. A search for his superannuation revealed he'd had insurance linked to it and was possibly entitled to a claim of about $600,000, which would cover the modifications his home needed and his ongoing expenses. Extrapolate that to the wider First Nations workforce and you could see $1 billion brought back to the homes of First Nations people.
There is an enormous amount of work to do in the areas of financial literacy management and policy in terms of First Nations peoples. Developing a fairer superannuation system, with the flexibility to respond to the needs of particular sectors while ensuring everyone receives what they're entitled to, is something we should be turning our attention to.
Labor created the superannuation scheme. We've worked since 1992 not only to defend the system but to build on it. It's been a core conviction of Labor over that time that our system of retirement savings needs to provide comfort for as many retirees as possible, while also being financially sustainable. Our superannuation system has been an extraordinary success in so many ways. It has funded a comfortable retirement for millions of Australians. It has reduced the burden on Australian taxpayers of funding retirement incomes through the age pension system. It has created a pool of assets, around $2.8 trillion now, that has provided a massive boost to business and infrastructure investment. By 2035, this investment is expected to grow to $9.5 trillion—that's trillion with a 't'.
Despite the success and the popularity of Australia's superannuation system, those opposite have never really supported it. They opposed it when it was introduced, they've opposed every measure to strengthen the system and they've tried to chip away at it at every opportunity. A case in point was their delay to the increase of the super guarantee. When Paul Keating introduced compulsory superannuation, the ultimate target for the super guarantee was 15 per cent. This is what experts agree is needed to fund the retirement needs of an ageing population. Labor legislated a timetable of increases until the guarantee reached 12 per cent in 2021. While the Liberals went to the 2013 election promising to delay the timetable by two years, they instead froze the guarantee at 9.5 per cent until 2021.
One of the latest moves in the Liberals' war on super was their legislation to limit union representation on industry superannuation fund boards—that was purely an ideological move. There was absolutely no evidence that it was needed, especially when industry superannuation funds have been consistently outperforming private funds. If the government are serious about protecting fund holders then perhaps they will do something about fee gouging as this is one of the major issues affecting superannuation balances. The bill we're now debating does not provide an effective or evidence based way to protect fund members. In fact, from the evidence received to two Senate inquiries, the inquiry into this bill and the inquiry into the Treasury Laws Amendment (2018 Superannuation Measures No.1) Bill 2018, we know that the government's proposed amnesty does not have widespread support from stakeholders and could actually be counterproductive.
While we have strong reservations about the government's proposed amnesty, we have no argument with the government that unpaid super is an issue that needs addressing. It's a problem that costs fund members almost $6 billion a year. While the term unpaid super makes this offence sound quite benign, we're essentially talking about theft. It's no less serious than wage theft. The basic difference is that it's the theft of deferred earnings rather than current earnings. In fact, it could be argued that the offence is even more serious because superannuation accumulates and, as such, has greater value when it's paid out.
The interesting thing about this amnesty is: it's not for one year or the last one or two years; it's for 26 years. It's interesting to note that the first bill in which the amnesty was proposed was expected to recover around $230 million in superannuation. That's a one-off recovery of about four per cent of only one year's stolen superannuation. It's a very small amount in the overall scheme of things. While those opposite might say, 'Well, at least it's another $230 million those workers wouldn't have had,' we need to ask ourselves the question: at what cost?
Recent research by the International Monetary Fund found that amnesties can be counterproductive for future compliance. The reason for this outlined in research cited by the Australian Institute of Superannuation Trustees in their submission to this bill is that future amnesties get anticipated and honest taxpayers end up resenting the special treatment given to those who break the law. This is why we need to approach the idea of an amnesty with great caution to be sure that any short-term gains aren't offset by negative future consequences.
Not only is the amnesty potentially counterproductive; it is also unfair—it's unfair to those employers who do the right thing and meet their superannuation guarantee obligations on time. The whole purpose of the penalties and interest charges levied on overdue superannuation guarantee payments is to ensure that there is a strong business incentive to pay on time and to send a strong message that failure to pay on time is taken seriously. If an employee steals from their employer, it's theft. It's the same for employers where they steal from their employees: it's theft, pure and simple. I've heard the arguments that it's complicated and it's hard to do, but I've never yet heard of a senior manager or CEO not having their superannuation paid. Let's think about that: it happens to the workers; it doesn't happen to those at the top.
An amnesty undermines the message that paying on time is important. The proposed amnesty would waive both the administration component of the superannuation guarantee charge and the penalties, which could be up to 200 per cent of the superannuation guarantee charge. On top of this, the superannuation guarantee charge in contributions offset against the superannuation guarantee charge will become tax deductible for employers. So not only do the offenders get some charges and penalties waived for doing the wrong thing but they also get a tax break. Really? By waiving the penalties and charges, the businesses that take advantage of the amnesty after failing to pay on time are getting an unfair competitive advantage over the businesses that do the right thing in the first place. As the Australian Institute of Superannuation Trustees said in their submission to the Senate inquiry on this bill:
… an amnesty sends a message to employers breaking the law that they will be protected from the consequences of the law …
The issue is that it says to good employers, 'There's no reward for you doing the right thing.' In fact, by allowing this amnesty to occur, poor employers who have held the cash back and used it for other purposes are being rewarded. It creates a situation where you are rewarding bad employers and punishing good ones.
The proposed amnesty has been put forward as a measure that could bring forward employers who have made an error. But, as United Voice pointed out in their submission to the inquiry, genuine errors are not the major problem when it comes to noncompliance with superannuation guarantee obligations. As UV's national secretary, Jo-Anne Schofield, told the inquiry:
… it's our experience that, where there is an error due to misclassification or oversight, it is quickly rectified, with cooperation from the union. But, in our experience, superannuation theft is deliberate and it is systemic in some sectors.
Everything that is wrong with the proposed amnesty was actually summed up succinctly by the ACTU, which told the inquiry:
… it introduces a double standard on workers and their entitlements. Fundamentally, if workers were to steal from their employers, they'd face jail, lose their jobs and face significant penalties to their livelihoods. Workers face fines and penalties for exercising the right to strike under our systems. But, under this proposal, employers who refuse to comply with the law get a free kick from their legal compliance and their obligations, and they get a tax deduction to boot.
I would like to know where this amnesty idea was initiated. It has not been recommended by any parliamentary or government report, and it is not supported by employee representatives or the superannuation industry. It was not even recommended by the government's own Superannuation Guarantee Cross-Agency Working Group. In fact, the only stakeholders that seem to support it are employer representatives—in particular, the Australian Chamber of Commerce and Industry and the Council of Small Business of Australia. In evidence to the inquiry on the first amnesty bill, COSBOA said they had very brief conversations with a couple of ministers at the time but had not raised the issue publicly, although, 'There may have been a tweet or something.' While both ACCI and COSBOA justified the amnesty by saying superannuation guarantee payments could be missed for reasons such as health issues or national disasters, these were not accepted by the Treasury as valid excuses. Treasury officials told the inquiry that Single Touch Payroll, and technology more generally, had made it much easier for employers to comply with their obligations.
The way this proposal has come about reveals a very worrying approach to policy development by this government. It appears that a policy initiative gets thrown up based on a couple of brief conversations with employer groups, is not recommended by any report or inquiry, and is put forward without any consultation with other stakeholders, such as employee groups or the superannuation industry. As I've said before, Mr Morrison likes to talk a lot about the Canberra bubble, but he leads a government which governs by thought bubble. What we get as a result is ill-conceived, ill-thought-through bubble policy. There are far more effective ways to improve superannuation guarantee compliance than this proposed amnesty. Single Touch Payroll is certainly going to play a big role in the near future. Other suggestions have been put to the inquiry, such as strategic audits by the ATO and allowing individuals and unions to inspect wage and superannuation records.
When it comes to noncompliance with superannuation guarantee obligations, or any other form of wage theft, one of the best things the government could do to combat the problem is to stop their war on workers. Legislative proposals, such as the government's so-called 'ensuring integrity' bill are nothing but an assault on unions, the organisations at the front line of fighting wage theft. Those opposite would be amazed how much progress they could make on wage theft, at no extra cost to the taxpayers, if they simply stopped their ideological attacks on unions and let them get on with their jobs.
The truth is this government is not the slightest bit interested and it's not the slightest bit serious about standing up for workers, cracking down on wage theft or defending the superannuation system. They never even really supported it in the first place. We on this side believe there's a better way to recover unpaid superannuation guarantee obligations, which is why Labor have moved an amendment to this bill. The amendment is fairly straightforward. It inserts the right to superannuation into the National Employment Standards. This will give employees the power to pursue unpaid superannuation because, currently, unpaid superannuation is a debt to the tax office, which means workers cannot pursue these debts unless there's a clause in their award or their agreement that empowers them to do so. The government really should support our amendment. It's the only way they can have a bill before this place that will facilitate real, effective action to recover unpaid super. And if common sense is to prevail, then I look forward to receiving the government's support for our amendment.
For too long, and as a number of my colleagues on this side of the chamber have articulated, the coalition has had a very long history of walking away from working Australians. The bill that's before the Senate, the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019, is little more than their most recent step on that walk. This bill should be amended or it should be opposed. This bill, as it stands in its current form, is a terrible joke waiting to be played out on unsuspecting workers, who are relying on us to ensure that employers can't continue to steal their wages and their superannuation.
The recovering unpaid superannuation bill will offer employers a 12-month amnesty in which to come forward and own up to theft of super from their own workers. Put another way, this bill will give the bosses an opportunity to get away with breaking the law and facing absolutely no consequences. This is an offence against the very foundations of our society. If you break the law, you should face the consequences. We don't offer amnesties to workers, we don't offer them to any other Australians, but somehow it's okay if you are an employer. Our community functions because we have confidence in the rule of law, and yet here we have an extraordinary piece of legislation that will allow a certain section of our community to break the law, to steal superannuation and to get off scot-free. Not that I can say that I'm surprised. Every step of the way, the coalition has opposed, in principle if not in practice, the reforms that have delivered Australians a superannuation system that is the envy of the world, but here we are.
Super theft is an enormous problem. It's as heinous an offence as wage theft and directly impacts the savings of millions of Australians right across our nation. Unfortunately, for those nearly three million Australians whose super is stolen annually, unpaid super is a double whammy. Not only is it direct theft from a worker's pay packet, it also denies workers the compounding interest opportunity that they would have received if the super had been paid into their account and not stolen from them.
When you add this into other contexts—wage stagnation, cuts to penalty rates, voluntary savings and home ownership—you start to paint a picture for a number of workers, including those that I formerly represented at the SDA and in the retail sector. It's a picture that looks quite grim for many people, and we maybe start to understand why our economy isn't growing nearly as fast or as high as we would like. Time and time again, the coalition are hell-bent on ensuring that those who aren't earning a lot of money—in fact, most people in our nation—don't have the dignity of receiving what is legally their own entitlement. But, instead of penalising employers who break the law, this bill would mean that employers will not face penalties for super theft if they pay it back during the amnesty. And, as my colleague Senator Bilyk mentioned earlier, they would also receive tax deductibility. When employees steal from a business, they face the full force of the law. So why do employers who steal from their employees get special breaks from this government?
This proposed amnesty may not even work. During the inquiry into the bill during the last parliament, Industry Super Australia estimated that the annual superannuation guarantee gap is around $5.9 billion. The Australian Taxation Office estimates an annual gap of around $2.8 billion. Treasury confirmed that they expected $230 million to come to light during this amnesty; when one compares this figure to the annual estimated amounts of stolen superannuation, one has to wonder why. And what happens after the 12-month amnesty? What reforms are this government offering to finally end the scourge of wage theft and superannuation theft? There is no reform in this bill. Are we going to come back here in 12 months time with another amnesty, another bandaid? This is third-term government with no agenda. But there is no plan to tackle wage theft. There is no plan to stop employers from underpaying superannuation.
Those of us in this place are fortunate enough to get our super paid every time we get our pay packet. But millions of Australians out in the real world have to wait every quarter—and they then have to hope that their employer has done the right thing in passing on their superannuation and that they don't have to chase up the ATO. If this government were serious about ending wage and super theft, they would offer a suite of reforms that would deter employers from stealing workers entitlements. They would not allow them to get away with breaking the law.
In my first speech in this place, I called for increased penalties for wage theft and measures to make it easier where employers do not pay superannuation or where super has been underpaid. Labor's amendments to this bill create a pathway that will make it easier for workers to pursue employers for unpaid and underpaid superannuation. Currently, unpaid superannuation is a debt to the ATO, not to the worker whose super has been stolen. This means workers have to wait for the ATO to pursue the stolen funds. And there have been countless examples in Senate inquiries where we know it can take months to recoup stolen or underpaid superannuation. In 2017, there was a Senate inquiry that looked at the non-payment of super. In particular, the National Foundation for Australian Women noted that women are over-represented among lower-paid, part-time and casual employees and they were the group most impacted when it came to the underpayment and nonpayment of superannuation.
Labor's amendment, as has been flagged, would add another schedule to this bill. It would amend the Fair Work Act. It would enshrine the superannuation guarantee levy in the National Employment Standards. This would make superannuation a right for each and every worker. It would better allow workers to pursue underpaid super, providing them with the opportunity to pursue employers for super theft through the Fair Work Commission or the Federal Court, an opportunity that is currently denied to them.
If there is a choice between supporting Australian workers or kicking a worker, sadly, you can always expect those opposite to kick them. But, unlike this seven-year Liberal-National government, the Labor Party will not walk away from the rights of workers to be paid a fair day's wage for a fair day's work. The Labor Party is committed to ensuring that Australians who spend their lives working hard can enjoy a comfortable and fulfilling retirement. We are committed to tackling wage theft and superannuation theft head on. We've done that over many, many years. Labor always has been and always will be committed to ensuring that workers get what they rightly and lawfully are entitled to.
This afternoon, as we debate the Treasury Laws Amendment (Recovering Unpaid Superannuation) Bill 2019, I am reminded of a great many interactions with constituents, with friends and with people in the community, all of whom have been affected by this terrible issue. It not only leaves them financially worse off but leaves them with a very bitter taste in their mouth in terms of their relationship with their employers and can be extremely personally distressing.
I was talking to a friend of mine just last week who rang me to say that she'd been working as a personal trainer and her boss had told her that she was a contractor. Now, we know in these laws that contracting may or may not put you in the category of needing to have your superannuation paid. It was very clear that she was deemed an employee for the purposes of superannuation and, despite numerous attempts to have her superannuation paid, it had not, to date, been paid.
I find this bill quite concerning in terms of whether it's really going to be effective for the people that I know that have been impacted by this issue. We know it sets out to give businesses that are unlawfully underpaying their employees' superannuation a free pass through its 12-month superannuation guarantee amnesty. But it does not provide the ability to recover the lost superannuation that has been stolen from one in three Australians. It could, indeed, exacerbate some of the kinds of problems that we've seen in the existing system—and the problems are rife. Just this morning I met with the superannuation peak body. They were telling me about how the ATO has been historically underfunded in terms of gathering up and being responsible for lost superannuation.
The thing about the government's motivation here is it makes the ATO responsible for pursuing unpaid superannuation at the same time as it is pursuing people with tax debts. There's a big difference between bringing in money that suits the government's bottom line and recovering tax debts, and the ATO has been pretty motivated by governments to do that over time. But, if you look at the record of unpaid superannuation and the resources the government has given to it historically, it in no way matches the effort that's gone into catching tax dodgers.
Treasury estimated the amnesty period would result in $230 million worth of superannuation paid back to employees, as opposed to the $5.6 billion of super the ATO estimates that 2.4 million workers are losing every year. That's $2,000 every year that should be going towards their retirement savings. The predicted amount does not even come close to making up for the superannuation lost within the last year alone. How can it be expected that this pittance would make up for the last 25 years that the government wants this amnesty to cover? It's patently ridiculous that that is the case.
Frankly, superannuation theft is just as bad as wage theft. The dodgy examples of it that I have seen are extraordinary, right down to people essentially given false payslips—payslips that show superannuation has been paid into their superannuation account when a business hasn't even lodged the paperwork or gone into the portals of superannuation companies when an employee has provided them that information. It's not that they are making the most of the three- or four-month period they've got to pay that; it's frankly that they have been out and out lying to their employees in some cases about whether that entitlement was paid at all.
I'd like to encourage individual people, when you start work, to download the apps that go with your superannuation account and make sure your superannuation is going into your account. And if your employer is not paying it straight away, find out what's going on. As a peak body representative for super told me this morning, hopefully these problems will get better with a one-touch payroll system. But it also means that these shouldn't be complicated things to resolve, and businesses that aren't doing it are, frankly, ripping off their employees.
We don't want to see bosses get away with stealing superannuation entitlements from their employees; but, frankly, that is what the government is proposing. Normally when an employer does not meet their superannuation guarantee entitlements they are liable for penalties and charges. Some of these penalties are up to 200 per cent of the amount owed but, under the amnesty proposal, this will not be enacted. So what we need, frankly, are stronger measures and a firmer hand if we want to protect Australians' livelihoods in their retirement. I find it somewhat ironic that this bill is called 'recovering unpaid superannuation' when what it will leave is a legacy of unpaid superannuation over more than two decades. We need to ensure a right to superannuation within the national employment standards. It's terrific to see amendments on the table in relation to that.
Employees should have the right to seek out and recoup their unpaid super. We don't want to waste time on what is largely an ineffective amnesty, an amnesty for companies that, frankly, have done the wrong thing. The government has put itself in quite a bind—advertising an amnesty, collecting information from businesses and promising them that amnesty. The businesses that have put their hands up to be a part of that amnesty should be paying the superannuation that is owed to their employees, but that's not what the government has promised them.
I know that workers across the country whose employer has either underpaid their superannuation or not paid it at all won't be calling for this government to let their employer off the hook. When you talk to people about their experiences with unpaid superannuation, it's really distressing. The government is papering over terrible workplace relations practices and papering over wage theft by legitimising employers' nonpayment of superannuation through this amnesty. Workers at the Commonwealth Bank, Bunnings or any of George Calombaris's restaurants are not asking for amnesty. They're asking for their super. We don't want to send to dodgy employers—most businesses, absolutely, do the right thing; they have wonderful, loyal employees and they treat their employees properly in terms of paying their superannuation in a timely way. Statistically, the number of people who are being paid their superannuation payroll to payroll is increasing. That's because it is much easier, technically, to do now. That means that the excuses for people not paying superannuation become dodgier and dodgier.
What we have here is a government that has fundamentally failed to address the issue of rampant unpaid and underpaid superannuation in our nation. Instead, we've seen government senators in this place so ideologically opposed to the very notion of superannuation and to ensuring hardworking Australians live with dignity in their retirement. Those senators have got just the bill they were after here. It is a bill that give the bosses a free ride—a free pass—and does nothing for employees who are still owed their superannuation. This is happening at a time when our country is in the grip of flat wages growth and we continue to have rampant underpayment of wages and superannuation.
Instead of having an amnesty, why not put some thought into a strategy to tackle this issue? The government has really put the cart before the horse with this bill. There is a wage and superannuation theft inquiry going on in this parliament now, so it seems ridiculous to me that it would do something that panders to employers in relation to this issue. Should this bill go through in its current form, we will be giving businesses who have committed super theft for the past 25 years an out, with absolutely no consequences bar paying employees the money they have rightfully earned. This inspires not a culture of honesty but, instead, a system of comfort—comfort in the knowledge that, no matter how poorly a business decides to treat its workers, it has in government a party that is able to turn around and absolve them of any meaningful consequences from these actions. Why would they not think that, given that, not only will these employers face a fraction of the final debt they owe, there isn't even a plan to increase penalties for those that commit superannuation theft? Why you would let them of the hook in this regard?
How about businesses out there that have been operating with openness and honesty—businesses that have abided by Australian law and paid the required amount of super to their employees, doing the right thing while competing with other businesses not doing the right thing? You know, it's practices like this that undermine local manufacturing and people who want to offer quality goods and services that are Australian made or Australian produced, because they're undercut by businesses that are unlawfully cutting their costs. How is it fair that, while they've had to compete with an unfair disadvantage, the businesses ripping off workers will be rewarded and, frankly, coddled for these actions. We have a government that has decided that it will give shonky operators and bosses a free ride—employers that have demonstrated a lack of integrity when it comes to paying their workers what they are owed.
Importantly, in our nation it is unions that go in to bat for workers so very often, fighting tooth and nail just to recover the superannuation that their members are entitled to. But what we see here is that, instead of going after employers, this government's gone after unions with its Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill. It's double standards and an absolute ideological obsession on their part. We've got dodgy companies not facing the consequences for their actions, but the negligible charge that they have been asked to pay will become tax deductible for the employers. How is that fair? (Time expired)
No matter what moderate, reasonable language this is couched in, no matter how it's dressed up, an amnesty for superannuation theft is a terrible idea. It will reward bad employer behaviour. It will disincentivise employers who've got good governance and a good compliance record, and in fact put many of them at a competitive disadvantage. It will cover barely a fraction of the superannuation stolen and will, I believe, send a very clear message to employers and to workers about whose side the coalition government is really on. The coalition government aren't on the side of ordinary working Australians. They're not on the side of businesses—small, medium and large—who do the right thing, who work with their employees and with unions and demonstrate good compliance and good governance structures. This is a government that is on the side of the charlatans and the shonks: the criminals in the construction industry and the people who find noncompliance and underpayment is their business model. Their friends in the press are out there defending people who steal money from ordinary working people who are in a vulnerable position. Those are the characters who that side of politics back up every single time when it counts. It's always couched in the minister's reasonable language and moderate propositions, but that's because it's an act of deception, trying to encourage ordinary Australians to think that these people are on their side when in fact what they are really about is enabling corporate crime, enabling underpayments and encouraging bad employer behaviour. Their ultimate objective is to wreck the superannuation system itself. The Liberals have never understood superannuation.
I'll take the interjection. For a person who's worked in the sector, you've never understood the value of the superannuation system. No matter how much the minister protests, the government's core objective is undermining universality, undermining the scale of the system and wrecking the value that it's created for ordinary workers and their families and the Australian economy.
Senator Hume interjecting—
You can shake your head, but you are a chief enabler of wrecking one of the great achievements in the Australian economy. It's a Labor achievement. I know you lot hate it. I know you lot hate the ordinary, decent trade union officials and members who established the system. It is a Labor achievement. It is a union achievement. It's an achievement that's been delivered in cooperation and great partnership with a generation of employers and employer representatives. It's delivered good things for the Australian economy and ordinary working people. At every little step of the way, at every opportunity to undermine it and to pander to some of the most extremist elements that have attached themselves to your once-great political party, you've done anything to wreck the system. What we actually need is a fair dinkum commitment to superannuation, a fair dinkum commitment to dealing with the inequities that present themselves, and we need a government that's actually on the side of decent Australians—that's actually on the side of good employers, not on the side of ratbags and crooks and shonks.
Industry Super Australia estimates that $5.9 billion worth of superannuation is stolen every year. The tax office estimates about half that: $2.8 billion of superannuation is stolen every year. This amnesty, which goes back an extraordinary 26 years, will only recover, the estimates say, $230 million.
Well, it's actually not very much over 26 years. It's a very poor return for what's going to send a very clear message supporting noncompliance, supporting crook behaviour, undermining decent superannuation funds and undermining compliance right across Australia's industry. I can't imagine a situation where anybody would think that if, as an ordinary Australian, they didn't pay their tax, if they didn't pay the debts that were due, this government would run out with a 26-year amnesty. It's an extraordinary immoral and improper proposition perpetrated by a government that doesn't know what it's doing, that's lost its purpose, that doesn't have a plan for the economy and that couldn't fight its way out of a wet paper bag.
The system of universal superannuation is regarded as one of the most successful schemes in the modern world. It's a great social democratic achievement. The Laurie Carmichaels, the Bill Keltys, the Tom McDonalds and, dare I say it, the Doug Camerons delivered industry superannuation for ordinary Australians. After more than 25 years, we're seeing the transformative effect it's having not just on the lives of working Australians but on the broader national economy. We now have an entire generation that stands to retire with the benefit of decades of compulsory superannuation, delivering dignity that was unimaginable to their parents, helping to ease the burden on the age pension and mitigating, to some extent, the great inequalities that exist in our society in terms of people's wealth. The idea that average workers might be able to retire with a few hundred thousand dollars in their superannuation account, I know, causes great offence to members opposite, but it's a profound achievement, and we should be celebrating it.
Thirty years ago, millions of Australians were retiring with little or no savings, no super and only the age pension to support them. Rewind 30 years and Australia didn't have its own source of domestic capital. As a result of our superannuation system, we no longer have the begging bowl out for foreign capital, captive to foreign bondholders, with a huge current account deficit, which is exactly where the coalition would have had us if they'd their say all the way along. Those characters opposite opposed superannuation every step of the way. Now that the system is in place, they seek to undermine it. There wasn't a moment during the 1980s when the once great political party that these characters hang around with ever supported progress in the superannuation system or ever stood up for ordinary Australian workers. They were always on the side of poorer outcomes, they were always opposed to universal superannuation and they never once struck a blow for ordinary working people. With a pool of savings that now is expected to reach around $6 trillion by 2030, our superannuation system is a key driver of growth—to the extent that's possible in the economy that the senators and the government opposite have delivered us—it's got enormous potential in terms of jobs and productivity and is increasingly improving Australia's current account by investing overseas and repatriating dividends and capital gains.
It was Labor that built the system. We just can't forget that the system was built by, and for, working people in cooperation with business and with business organisations in a way that would do the country a great amount of credit if we could return to that level of cooperation and that level of common purpose. It was unions, not the coalition, that insisted that superannuation must be portable and must be accumulating. It was union members who demanded access to the system that was previously the preserve of a privileged few, and they often went on strike to do so—sometimes at a national and an industry level in concert, in cooperation, in a way that the characters opposite have tried to stop Australian workers doing every single time. It was Australian workers and the ACTU and the great trade unions of the time who agreed to forgo productivity based wage increases to achieve the system.
The creation of industry super funds was a true innovation. They are the envy of modern governments all over the world. Their return to members has been remarkable—at least by the industry funds—and their influence has made them a critical part of the Australian economy. They continue to have lower fees and better returns than their retail counterparts.
Universal superannuation shows us what happens when Australians cooperate and develop cooperative models based on consensus, rather than ratbag ideological division. That's why the show opposite don't understand the system. That's why they are so opposed to the system. Some of them even harbour doubts about the future existence of the universal system at all. Poor old Senator Bragg's first speech to the parliament included this package of wisdom:
Compulsory superannuation is almost 30 years old. Super is now almost twice the size of the economy and the capitalisation of the securities exchange. We have the fourth-largest private pension pool in the world with only 25 million people.
Imagine that. He then goes on to say:
It remains a strange but huge experiment.
That's an odd thing to say. He went on to say:
I do not believe this system is working for Australians. Certainly the case has not been made for ever bigger super. I would change direction. Super should be made voluntary for Australians earning under $50,000 a year. Taxpayers could simply tick a box to get a refund when filing an annual tax return. I commissioned modelling from Rice Warner actuaries, which estimates a saving to government of $1.8 billion in the first year alone.
What an extraordinary proposition! This is the crank ideology that is driving some of the big thinkers in the Liberal Party today about the future of a system that is universal, that has enormous capacity for social and economic justice for ordinary Australian people and is also of enormous benefit to the Australian economy.
Senator Bragg's proposal would rob 13 million Australians of a decent retirement, and it's attracting some support. He's not the only person on the other side who harbours unusual doubts about the remarkable success of our superannuation system. There is a growing rump of backbenchers who are spreading disunity on the critical increase to our superannuation system—the legislated increase to 12 per cent. We know where that leads. The Leader of the Government in the Senate has often been at the centre of little rumps in the backbench, and we know where that leads in terms of coalition policymaking. The member for Goldstein, the hapless Mr Wilson, told Sky News that there are 'legitimate questions about whether we should continue to increase the superannuation guarantee verses the alternative of giving people the choice to opt for wage increases so they can do things like pay down debt today'. The hypocrisy and the arrogance of a bloke who will never have to struggle for his own retirement! He will never have to make the choices that ordinary Australians find themselves having to make. Getting onto the side of businesses who don't comply and getting onto the side of cutting costs and the low-wage, low-skill option—that's where he is. The truth is many of these characters have adopted the lazy assumptions, the ordinary thinking and the shallow approach to politics—what's in the interest of the Liberal Party and businesses that don't comply with the law. That's where the backbench—the morbid, moribund, moronic backbench—of the modern Liberal Party are heading on this issue. It's an embarrassment. It's an embarrassment that the once great political party that used to stand up for decent businesses is now hanging out with people who don't comply and who have hopeless governance standards. This bill sends a message to the crooks and shonks in the construction industry, who are your friends— (Time expired)
Why would this government introduce a bill that gives dodgy employers who may have stolen super for the last 26 years an amnesty? Maybe it's because members of this government don't support superannuation at all. We know that during his first speech Senator Bragg said super should be voluntary. He was a little gun-shy the other night in his speech on the second reading, but that is what he said in his first speech. Someone who wasn't as gun-shy was Senator Rennick, the LNP senator from my home state of Queensland. In his second reading debate speech he said:
Of all the rorts that exist in this country, nothing compares to superannuation … At the end of the day, super isn't working … At the very least, superannuation should be voluntary, not compulsory. This is a view that I'll be putting to my colleagues …
He concluded that he had conducted internal polling showing there was support for his push among coalition senators and MPs. The move threatens to open up another front of backbench discontent, with a handful of Senator Rennick's colleagues supporting abandoning legislation on the increase of compulsory superannuation from 9.5 to 12 per cent.
'At the end of the day, super isn't working.' That's what Senator Rennick said. They don't support superannuation. That's why they're bringing in a bill to give people who've underpaid super a 26-year amnesty. Right now we know that nearly one in three Australians are missing out on the superannuation they—
Government senators interjecting—
You know, just because you keep saying the word 'worker' over and over again, it doesn't mean you actually support them. You can get out there and you can put your shiny new high-vis on, but I can tell you that doesn't mean anything. Right now nearly one in three Australians are missing out on the superannuation that they are entitled to. Superannuation is part of every Australian worker's pay and conditions, and every worker deserves to receive the superannuation that they are entitled to at the time that they are entitled to receive it, not 26 years later.
Unpaid superannuation is a massive problem in this country. Industry Super Australia has previously estimated that 2.4 million workers are losing $5.6 billion each year. A report by Industry Super Australia reveals the people most likely to have their super stolen are under 35, working in blue-collar jobs and earning less than $30,000 per year. You know what that sounds like to me? A worker. These are the people that you are not supporting through this legislation. These workers are—