The Joint Bodies support the policy intent of the draft guidance, which outlines how the Commissioner may grant additional time for employers to meet Payday Super obligations when exceptional circumstances, such as natural disasters or widespread technology outages, disrupt superannuation contribution processes. However, we have raised concerns that the framework may create significant uncertainty and compliance risks for employers and intermediaries during periods of disruption.

The submission argues that employers will often be required to make time-sensitive compliance decisions with limited information, while relying on self-assessment and awaiting ATO determinations. 

Across the draft PS LA, three systemic weaknesses emerge: 

• Information asymmetry: employers lack access to timely and reliable information  required to assess eligibility (e.g. outages, scope, class definitions). 
• Timing misalignment: ATO decision-making and communication does not align with  tight payroll and SG compliance timeframes. 
• Insufficient practical guidance: employers are expected to make high-risk decisions  without clear evidentiary standards, safe harbours, or examples.  

Without refinement, these issues create a real risk of inadvertent non-compliance and  inappropriate exposure to super guarantee charge (SGC), despite good-faith behaviour by employers.

To improve the framework, the Joint Bodies recommend clearer communication processes, direct notifications to affected employers, practical guidance on employer obligations during disruption events, greater clarity around the treatment of intermediary and clearing house failures, and additional worked examples covering real-world scenarios. They also call for clearer guidance on the interaction between exceptional circumstances determinations, Superannuation Guarantee Charge liabilities and voluntary disclosure requirements.