[68.8] COMPLAINTS AND DISPUTE RESOLUTION
[68.8.1] Inquiries and Advice
In the first instance, anyone with a concern about a superannuation issue should consider contacting their employer. Many concerns can be resolved quickly this way, especially administrative errors and misunderstandings. The administration of superannuation can be complex, mistakes do occur, and decisions are not always communicated as well as they might. The majority of concerns about superannuation are resolved fairly quickly.
If the concern is not resolved by contacting the employer, consider contacting the superannuation fund by telephone or email. The superannuation fund will have an area that handles inquiries and complaints.
It is important not to delay. There are time limits that may apply in some situations. Advices about superannuation matters often mention appeal rights and refer to time limits, but occasionally do not. If you have a concern, you should make an inquiry as soon as possible.
Other ways to get help or advice quickly are to contact the Financial Services Ombudsman or the Superannuation Complaints Tribunal by telephone or email. If they cannot help directly, they can usually point towards other places that might provide some help.
There is always the possibility of getting the run-around and being bounced between different agencies. To avoid that, collect all the paperwork about the matter, and get your story straight - be prepared. Make sure that you get a response to your inquiry, and the name of the person who gave the response. You may not get what you would prefer, but you should be told what was done in your case, and the reason for what was done.
[68.8.2] Disputes
If the problem is not resolved informally by contacting the employer or the superannuation fund, it may be necessary to enter a dispute resolution process.
[68.8.2.1] Uncertainty about Superannuation Guarantee contributions
Non-payment, late payment and incorrect payment of SG contributions can be a problem, mainly in small businesses, where employees are sometimes not paid their full entitlements. This often occurs where the employee is not in a unionised work-force, where the employer is unaware of, or disregards, its responsibilities to its employees, or where the employer's business is failing or has failed.
An employee who believes that Superannuation Guarantee contributions have not been paid correctly can ask their employer about it, and check with their superannuation fund about whether it is receiving payments. If there is a problem, contact the Australian Taxation Office (ATO) by telephone to check what is happening or to raise any concerns. Fair Work Australia may also be able to assist in claiming unpaid employment entitlements.
[68.8.2.2] Dispute with a superannuation fund
Section 101 of the Superannuation Industry Supervision Act 1993 (Cth) requires the trustees of most superannuation funds to establish an internal dispute resolution mechanism to deal properly with enquiries and complaints by members. This can be a formal internal review of something that a superannuation fund has done or not done.
Anyone who wants to complain about something on a formal basis can write to the trustee asking for reconsideration under s 101 of the Act, and explain in detail why they believe the decision complained about is wrong.
Before doing that, it may be useful to ask the trustee to provide:
· a copy of the trust deed;
· a copy of any relevant insurance policy;
· an up-to-date statement of benefits;
· reasons for its decision; and
· copies of any documents used in making its decision.
It may be necessary to get specialist advice, including legal advice, before making a formal complaint under s 101.
[68.8.2.3] Superannuation Complaints Tribunal
If the problem is not resolved by internal review by the fund trustee, you can discuss your options with the Superannuation Complaints Tribunal (SCT) or the Financial Ombudsman Service ([68.8.2.4]).
If the complaint is not resolved satisfactorily within 90 days, the complaint can be escalated to the Superannuation Complaints Tribunal. This tribunal was set up under the Superannuation (Resolution of Complaints) Act 1993 (Cth). It is cost-free and intended to be quick and informal. It receives between over 2,000 complaints each year, as well as a large number of telephone inquiries.
The tribunal is not a merits review tribunal like the AAT. It does not stand in the shoes of the trustee that made the decision. The tribunal hears the claims of both the complainant and the trustee, but the great majority of complaints are not handled by a formal review and decision.
In 2009-2010, of the 2,355 complaints received by the tribunal, only 78 were formally reviewed and decided. Of these, the trustee's decision was affirmed in 54 cases and set aside in 22 cases. Many complaints have to be rejected because the complainant did not first seek internal review. Many are beyond the jurisdiction of the tribunal. Another large group are withdrawn by the tribunal, mainly because the tribunal loses contact with the complainant or because the complaint is more than 12 months old or is insubstantial.
A few cases go from the tribunal to the Federal Court of Australia by way of judicial review, which is a judicial review of administrative action, not merits review. Few of these cases involve superannuation itself. They typically involve a challenge to the tribunal's decision on factual issues about disability benefits or death benefits. Since the 1999 decision by the High Court in Attorney-General v Breckler (1999) 197 HCA 28, however, it seems that trustees are less likely to dispute a tribunal decision.
[68.8.2.4] Financial Ombudsman Service
As an alternative to the SCT, you can make a complaint to the Financial Ombudsman Service (FOS). It provides a quick and informal mechanism aimed at resolving disputes. It is cost-free.