Can you receive super while on workers compensation?

Under the superannuation guarantee, your employer has to pay your superannuation contributions of 10% of your earnings when:

  • you are paid $450.00 or more before tax in a month; and
  • you are over 18 years of age, or;
  • you are under 18 years of age and you work over 30 hours per week.

The superannuation guarantee applies to all types of employees including full time employees, part time employees and casuals.

Your super has to be paid at least every 3 months by your employer into your nominated super account.

But what happens when you are injured at work and you receive weekly payments of workers compensation? Does your employer still pay your super?

If you are an injured worker in NSW, the short answer is ‘no’. This is because of the operation of the ATO Superannuation Guarantee Ruling SGR 2009/2.

The Superannuation Guarantee Ruling says that if you are paid workers compensation payments and you haven’t returned to work, then the payment being made to you is not ‘salary or wages’. This is because the payment being made to you is not a reward for your services to your employer. It is a payment being made to you because you can’t work due to injury or illness.

As the ATO doesn’t define your workers compensation payment as ‘salary or wages’, there is no requirement for your employer to pay your super if you are not working and you are receiving workers compensation payments.

If you have returned to work and you are performing suitable duties, then your employer should be paying your super guarantee for the hours that you are at work. However, you aren’t entitled to receive the super guarantee for any top up payments being made to you by the workers compensation insurer.

If you are employed under a modern award, then you could be entitled to receive your super guarantee while you’re on workers compensation benefits. This is because modern awards can include a requirement for your employer to pay your super guarantee while you receive workers compensation payments. There are usually some requirements that you need to meet before this can happen, such as:

  • You need to be receiving workers compensation payments or receiving regular payments from your employer in accordance with the statutory requirements; and
  • You remain employed by your employer.

However, in this situation your employer only has to pay your super for a maximum of 52 weeks.

If you have been injured at work and you are receiving workers compensation payments, then you need to check to see if you’re employed under a modern award. If so, then you could be entitled to continue receiving your super guarantee even though you’re not working.

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