New Super Form & Laws Changes for Annual Shutdowns
Information for Employers & Employees
Employees use the Super Choice Form to choose the superannuation fund into which their employer will pay their superannuation contributions. Employers must provide a standard choice form to employees at the commencement of employment.
The Super Choice Form is required by law, and employers are legally required to make superannuation contributions on behalf of their employees. Employees can complete the form to ensure that their superannuation contributions are paid into a fund that meets their needs and preferences.
For any new employees starting from 1st November 2021, employers will be required to contact the Australian Taxation Office (ATO ) if the employee has not chosen a superannuation fund to confirm and check whether the employee has a “stapled fund”.
A “stapled fund” is an existing superannuation account linked, or in other words “stapled”, to an individual employee so that it follows them as they change jobs. If the employee has a stapled fund, the employer will need to contribute to that fund, not the employer’s default superannuation fund.
These provisions were introduced to reduce instances of employees having multiple superannuation fund accounts and help to reduce the compliance fees associated with setting up new fund accounts each time an employee moves between jobs.
Information for Employers
If an employee doesn’t return this form:
If your employee starts work on or after 1st November 2021, most employers must request the employee’s stapled super fund details before making a super contribution.
If an employee doesn’t provide you with the correct details or the fund can’t accept your contributions, you will need to request their stapled super fund details from the ATO. Note: you cannot request stapled super fund details from the ATO until you have lodged at least one pay event via Single Touch Payroll, for that employee.
If the ATO advises that the employee does not have a stapled super fund, you can make the payment to your nominated default super fund.
For more information, visit ATO – Request stapled super fund details for employees.
Information for Employees
If you choose not to complete this form:
If you are a new employee and choose not to complete this form, your employer will check with the ATO if you have an existing super fund. If you do, your super can be paid into this fund, called your “stapled super fund.”
If you have multiple funds, the ATO will choose one of them as your stapled fund – it may not be the fund you would prefer.
If the ATO is unable to identify a stapled fund, your employer will be advised to pay your super into their default super fund listed in Section C.
If you started your current employment before 1st November 2021, your employer will pay your super into their default super fund listed in Section C.
For more information about stapled super funds, visit ATO – Super.
Significant Changes Coming to Modern Awards Starting May 1st, 2023
Annual Shutdown Provisions
Following previous reviews in February 2019 and August 2022 of “annual shutdown” provisions in modern awards, the Fair Work Commission (FWC) will further amend the annual shutdown provisions found in 78 modern awards by replacing them with a “new” annual shutdown clause.
What is Changing?
The new shutdown clauses in modern awards will come into effect from 1st May 2023.
The most significant change for many employers will be removing the ability for an employer to direct an employee to take a period of “leave without pay” if that employee does not have enough annual leave accrued to cover the shutdown period.
Some modern awards currently have this provision, although most do not.
In the August 2022 decision, the FWC discussed their view that current annual shutdown clauses in several modern awards were unlawful because “the Commission has no power to include a provision in an award by which an employer may require an employee to take leave without pay”.
The new model clause in awards will mean that:
- In the event an employee does not have enough annual leave to cover a shutdown period, employers will no longer be able to direct their employees to take leave without pay during this period.
- Employers are required to give employees 28 days written notice of a temporary shutdown period.
- An employer may direct an employee to take paid annual leave during this shutdown period, but the direction must be reasonable and in writing.
- Employers and employees may agree, in writing, for the employee to take “leave without pay” during the shutdown period.
- An employee may take annual leave in advance if the employee does not have sufficient annual leave accrued to cover the shutdown period.
What Should Employers Do?
Plan far enough in advance to allow for the provision of the written notification of a temporary shutdown period.
To ensure compliance with the new regulations, employers should assess their internal policies and processes that address shutdown times.
Final determinations for each modern award are now published and can be found separately in the link FWC – New shutdown provisions.
This is a timely reminder for employers to make sure they understand and abide by the award that applies to their company and employees.
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