Protecting Worker's Entitlements and Strengthening Director Obligations
Draft legislation released today will help to protect workers' superannuation entitlements, said Assistant Treasurer, David Bradbury.
Under the director penalty regime, which has been in operation since 1993, company directors are personally liable for amounts withheld by their company that have not been remitted to the Australian Taxation Office (ATO). The Tax Laws Amendment (2012 Measures No. 2) Bill 2012: Companies' non-compliance with PAYG withholding and superannuation guarantee obligations will extend the regime to cover Superannuation Guarantee amounts.
As well as strengthening directors' obligations to arrange for their companies to meet Pay As You Go (PAYG) withholding and superannuation obligations, the measure will also help counter phoenix behaviour.
"The Gillard Government is committed to protecting workers' entitlements," said Mr Bradbury.
"This legislation makes it clear that directors have an obligation to ensure that provision is made for the ongoing payment of workers' superannuation.
"It also ensures that fraudulent directors who use phoenix companies to try and avoid their debts will be held personally liable for their PAYG withholding and superannuation obligations."
The Government held further consultation with industry after withdrawing an earlier version of the legislation in November. Following this consultation, the Government has made amendments to the draft Bill, including to ensure that new directors have time to familiarise themselves with corporate accounts before being held personally liable for corporate debts and requiring the ATO to serve director penalty notices on directors in all cases before commencing action.
The draft legislation also includes a new defence for directors liable to penalties for superannuation debts where, broadly, they reasonably thought the worker was a contractor and not an employee," he said.
"The measure strikes the appropriate balance between protecting workers' entitlements while not discouraging people from becoming company directors."
The Government looks forward to receiving submissions from the public about this important reform. Submissions close on 2 May 2012 to allow for the introduction and passage of the legislation in the Winter 2012 sittings of Parliament.The draft legislation, explanatory memorandum, and a summary of the policy changes can be found on the Treasury website.
18 April 2012