PayDay Super could have serious implications for company directors around personal liabilities and insolvency protections. Understand the risks and know what can help.
What are safe harbour provisions?
Insolvent trading safe harbour provisions (Corporations Act 2001) are designed to give financially distressed but viable businesses a fighting chance at recovering rather than going into voluntary administration or liquidation.
Since their introduction in 2017, safe harbour provisions have helped several Australian businesses avoid formal external administration and even negotiate successful turnarounds.
This is because, under safe harbour rules, company directors can continue trading while pursuing a restructuring plan, so long as obligations around tax and employee entitlements (among others) are met.
In other words, company directors are shielded from personal liability while they attempt to turn the ship around.
How will PayDay Super impact safe harbour arrangements?
Not directly. However, a key requirement of the safe harbour provisions is that employee entitlements are paid on time and in full. And this includes super.
Under PayDay Super, the ATO will have near real-time visibility of missed payments, which can expose organisations failing to meet their employee entitlement obligations.
Organisations that have relied on the quarterly super payment buffer to ease cashflow pressures are especially at risk. Failing to adapt to the new cadence of same day super payments can jeopardise safe harbour arrangements and open up company directors to personally liability.
What should directors do?
Review current SGC position: Identify any late or missed payments and lodge voluntary disclosures accordingly.
Make timely lodgements a priority: Even if you anticipate delays with super payment, lodge SGC statements by their due date. Be aware of the process and upcoming lodgement dates. While timely lodgements won't waive late payment penalties or personal liabilities, it shows the ATO you are doing your best to comply.
Model super obligations and cashflow: With cash leaving the bank earlier and more frequently, knowing whether your current revenue can sustain the increased frequency of super outgoings becomes critical. Working with a cashflow expert, financial controller, or CFO can help you get on top of your cashflow, meet your employee entitlement obligations, and continue to be protected under insolvency safe harbour provisions.
We hope you found this information valuable. If you have questions about safe harbour provisions or working with a cashflow advisor or CFO, please don’t hesitate to reach out to us here.
This article is intended to provide general information only and is not to be regarded as legal or financial advice. The content is based on current facts, circumstances and assumptions, and its accuracy may be affected by changes in laws, regulations or market conditions. Accordingly, neither Azure Group Pty Ltd, nor any member or employee of Azure Group or associated entities, undertakes responsibility arising in any way whatsoever to any persons in respect of this alert or any error or omissions herein, arising through negligence or otherwise howsoever caused. Readers are advised to consult with qualified professionals for advice specific to their situation before taking any action.
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