Workers ‘blindsided’ by unpaid super

Ben and Jess Holmes used to run an NDIS support business, portraying themselves as generous and trustworthy.

Trouble is, they weren’t paying their staff their superannuation - a debt that quickly spiralled into an eye-watering sum.

The debt was first uncovered by staff at Semloh Support Services in 2024, four years after the business first launched.

Emma was employed by the Holmes as a manager at Semloh.

"I guess I'm someone that never really had checked my super in the past," she told A Current Affair.

"I saw it on my payslip and just assumed that it was getting paid (but) a support worker actually came forward with some concerns that her super wasn't getting paid," she said.

At the time, the Holmes' were on a holiday in Bali, so Emma emailed them asking to clarifying if there was a problem and what she should be telling staff.

Correspondence from the Holmeses at the time, and sighted by A Current Affair, confirmed there was an "issue … totalling just over $300,000".

They went on to say it was "an ongoing backend problem" and that "ongoing payments are being processed correctly … missing contributions will soon be deposited into your super accounts".

But staff alleged that didn't happen.

"I resigned effective immediately, with nothing to go to, because I just couldn't be a part of that anymore," Emma said.

"I was really disappointed and I think we were all blindsided."

It prompted Kelly, a senior support worker, to check her super account.

She too discovered payments as far back as 2022 were missing - and it was hard to calculate how much she was owed.

"In the end I went to the ATO and that's when I found out I was owed $10,000 in super," Kelly told A Current Affair.

She said she questioned Ben and Jess Holmes about the funds, but they blamed the Australian Taxation Office.

"(They told me) 'It's all the ATO's fault. They've got the money. We don't know what's happening'," Kelly recounted.

Dave was a coordinator of support workers.

Like Kelly and Emma, he has Semloh payslips claiming superannuation contributions were being made into his account - yet $12,000 in his payments were missing.

"I'm looking at retirement in eight years' time or whatever it is - and I've got no hope if I don't get that money plus the interest," Dave said.

The missing money was puzzling for staff, because Ben and Jess had been generous bosses, sparing no expense running Semloh: company breakfasts, Easter and Christmas parties where Ben dressed up - ironically as the Grinch.

They even sponsored community events and charities and held a lavish staff gala at the racecourse that reportedly cost $25,000 - Ben on the microphone, Jess giving away prizes.

"I can still recall being in their office one day discussing the upcoming Christmas party and they asked me whether we should have fireworks and my response was, 'No, what would your accountant think?'" Emma recalled.

"If he wasn't spending a dollar, it wasn't good enough," Dave added.

Staff say there were also hints of financial troubles - allegations of payroll issues and payment requests for overdue invoices.

"I was with a client who loved the car wash, that was our Wednesday morning routine," Kelly recalled.

"And the owner came out and told me to f--- off out of the line because I hadn't paid the bill, and I said, 'I'm only a worker.' And he said, 'I don't care.'"

Earlier this year, Ben and Jess Holmes sold Semloh Support Services, reportedly for around $1.65 million.

The couple told staff the unpaid super would be finalised through the ATO, saying: "This process has taken time, but it's been a top priority, and I'm really pleased to say we're almost at the finish line."

Read more

Why is this council hellbent on shutting down a popular local house of horrors?

Staff hoped proceeds from the sale of the business would cover the super they're owed - but that hasn't been the case.

"I got a payment, on the 15th of September, for $80 and that was for the first quarter of September 2023. (I'm) still owed over $8000," Kelly said.

"And I mean, this really helps, but I did receive a one cent payment from the ATO. So, you know, only a few more of those to go," Emma added.

Other former employees told A Current Affair:

"I'm still chasing over half of my unpaid super. It has now been two years!"

"I feel let down by the way staff were treated and by the explanations we were given…..while they appeared to enjoy a lifestyle of new cars and overseas holidays."

"It really unraveled for me when they'd be on an overseas holiday or away at the coast." Emma recalled.

"A lot of phone calls would come through to me - other businesses chasing money - and when I would relay the message to Ben and Jess (they'd say), 'Oh no that's not our fault, we've paid that. It's them, they've got it wrong.'"

The Holmes family now live on the Gold Coast - Ben works for the Broncos, Jess in the beauty industry.

They're renting a five-bedroom mansion on a canal - complete with a pool and jetty, advertised $3000 a week.

They also recently returned from an extended family holiday in the US.

When A Current Affair approached the couple in person, they wouldn't comment on the allegations.

But days later in writing, they acknowledged they have "outstanding historical superannuation liabilities" that "arose during a period of financial pressure and cash flow difficulties", claiming more than $200,000 has already been paid to the ATO.

They added, as director, Jessica Holmes intends to "fully discharge all her legal obligations" and the family's current living expenses on the Gold Coast are funded by their present employment.

The new owners of Semloh are not liable for the superannuation debt and no allegations of mismanagement have been levelled at them.

As for Dave, Kelly and Emma, they're not holding their breath waiting for their money.

The trio believes this is a reminder for others to check their super accounts.

"I would have shaken their hands and wished them all the luck in the world if they had done the right thing because it's a huge gamble running a business," Dave said.

"These people at the end of the day have wraughted 80-odd staff and walked away and living in luxury and couldn't care less - that's not on," he added.

A Current Affair put a long list of questions to the ATO, which told us it couldn't comment due to privacy. Generally though, the ATO told us it has a range of powers to recover unpaid super.

Its statement addressing general question from A Current Affair is below.

1. Distribution of recovered funds: When an employer pays outstanding superannuation guarantee liabilities to the ATO, how long does it ordinarily take for those funds to reach employees’ superannuation accounts? Are payments distributed progressively or only once the full debt is recovered?

·         The ATO does not generally need to wait until an employer's entire superannuation guarantee debt has been recovered before amounts can be distributed for the benefit of affected employees.

·         Where amounts of superannuation guarantee charge are recovered, amounts attributable to employees can be distributed to their superannuation funds. Where a payment relates to a liability affecting multiple employees, amounts collected are allocated between affected employees in accordance with the applicable rules.

·         Employees are advised when recovered amounts are paid to their super fund.

2. Debt recovery and personal liability: What enforcement powers can the ATO exercise when substantial superannuation liabilities remain unpaid for several years, particularly where employers operate through multiple companies, ABNs or trusts? Under what circumstances can directors or trustees become personally liable?

·         The ATO has a range of powers to recover unpaid superannuation guarantee charge, including issuing garnishee notices, director penalty notices, directions to pay and legal recovery action, including wind up or bankruptcy proceedings where appropriate.

·         Where a company fails to meet certain tax and superannuation obligations by the due date, its directors can become personally liable for corresponding director penalties.

·         Where a business operates through a trust, the trustee is generally responsible for debts incurred on behalf of the trust. Where there are multiple companies, trusts or related entities, the ATO considers which entity or individual is legally liable for the debt and what recovery options are available against them.

3. Reduced settlements: Can the ATO negotiate or accept less than the full amount of an outstanding superannuation guarantee debt? Under what circumstances can liabilities be reduced, waived, compromised or written off, and what criteria must be satisfied?

·         A superannuation guarantee charge debt cannot be compromised simply because an employer is unable to pay it in full.

·         In limited circumstances, the ATO may settle a genuine dispute about a superannuation guarantee charge liability. This may occur where there is uncertainty about the liability or litigation risk, or where settlement is expected to achieve a better recovery outcome for affected employees than continuing the dispute.

·         Where an employer accepts the debt but is unable to pay it in full by the due date, the ATO may agree to a payment plan where appropriate. A payment plan provides additional time to pay but does not change the original amount owed.

4. Protection of employees: Could any such arrangement result in employees receiving less superannuation than they are legally entitled to? If so, are affected employees notified, and can the ATO consider an employer’s debt finalised even when employees have not received their full entitlements?

·         Please see above response to question 3 of ‘General questions about ATO powers and employee protections.’

5. Transparency: How can employees establish whether their employer has paid outstanding superannuation to the ATO, how much has been recovered on their behalf and whether further payments are expected?

·         Employees can check if their employer has paid their superannuation by checking with their superannuation fund. Employees can also view super contributions reported to the ATO by employers in ATO online services, which can be accessed via the ATO app.

·         As noted above, tax secrecy and privacy laws limit what the ATO can disclose to employees about the actions we are taking to recover any super they are owed. If we are able to collect unpaid super on behalf of employees, the ATO can and does advise employees when these amounts have been paid to their super funds.

6. Future business operations: Can an outstanding superannuation guarantee debt affect an individual’s ability to establish or operate other businesses, or expose those businesses to recovery action?

·         Directors of multiple companies who allow amounts of GST, PAYG withholding and employee super to go unpaid, and do not engage with us, can expect us to look at their debts more holistically.

·         Registering for an Australian Business Number, provides an overview of the obligations required to register for an ABN.

·         For information about how bankruptcy may affect an individual’s ability to manage a company, please refer to ASIC.

·         For information about personal bankruptcy and insolvency, please refer to AFSA.

7. If a business is sold for millions of dollars while substantial employee superannuation liabilities remain outstanding, what mechanisms exist to ensure the proceeds of that sale are available to satisfy those liabilities before funds are distributed to the former owners?

·         The ATO has a range of powers to recover unpaid tax and superannuation guarantee debts. Depending on the circumstances, these can include garnishee notices directed to third parties who owe or hold money for a tax debtor, director penalty notices, directions to pay unpaid superannuation guarantee charge, legal recovery proceedings, and ultimately wind up or bankruptcy action where appropriate.

·         Whether proceeds from the sale of a business are available to satisfy a tax debt depends on the particular circumstances, including the identity of the debtor, who is legally entitled to the sale proceeds and when the proceeds become payable. The ATO considers available recovery options based on the circumstances of each case

·         Information on the steps businesses should take when changing business structure, pausing or closing a business or selling a business can be found here: Changing, selling or closing your business | Australian Taxation Office.