In NSW, employers are generally not required to pay superannuation on workers’ compensation weekly payments. There are three exceptions: your modern award requires it, your enterprise agreement requires it, or you are working on suitable duties and being paid wages by your employer for the hours worked.
This guide sets out the position in NSW under current law, including the 12% superannuation guarantee rate that took effect on 1 July 2025, and the three exceptions where super must still be paid while you are on a workers’ compensation claim.
What NSW Law Says About Super and Workers' Compensation
Every Australian employee is entitled to superannuation contributions on top of their wages. Under the Superannuation Guarantee (Administration) Act 1992, your employer must pay a percentage of your ordinary time earnings into a complying super fund. From 1 July 2025, the superannuation guarantee rate is 12%, the final step in the legislated staged increase. This rate applies to the wages your employer actually pays you for work performed.
Workers’ compensation in NSW is a statutory insurance scheme administered through Icare under the Workers Compensation Act 1987. If you have been injured at work or have a work-related illness, you can claim weekly payments that replace part of your pre-injury income, plus reasonable medical expenses and rehabilitation costs. The scheme covers a wide range of workplace injuries and illnesses, and these regular payments are designed to support you while you cannot work, or while you are working reduced hours on suitable duties.
The reason super is not generally paid on workers’ compensation weekly payments comes down to one technical point. The Australian Taxation Office’s Superannuation Guarantee Ruling SGR 2009/2 treats workers’ compensation payments as something other than salary or wages, and not ordinary time earnings, where the worker is not actually performing work.
Because the super guarantee is calculated on ordinary time earnings, and workers’ compensation top-up payments are not ordinary time earnings, there is no statutory requirement for your employer to pay superannuation on those payments. The Fair Work Ombudsman takes the same position.
This is the default rule in NSW for workers receiving workers’ compensation payments, and it catches many injured workers by surprise. Most other forms of paid leave, including annual leave, personal leave, and long service leave, do attract super contributions. Workers’ compensation is the exception. To understand how this fits into your wider entitlements and eligibility to claim, you can learn more about our workers’ compensation services.
When Super is Payable While You Are on Workers' Comp: The Three Exceptions
There are three situations where super contributions continue to flow while you are on a workers’ compensation claim. Each one comes from a different source: your award, your agreement, or the work you are actually performing on suitable duties.
Exception 1: Your Modern Award Requires Super to be Paid
Some modern awards include additional provisions that require an employer to continue paying super contributions for a defined period while a worker is on workers’ compensation.
Do not assume the applicable modern award in your industry contains such a clause. The fastest way to confirm is to look up your specific award through the Fair Work Ombudsman website. If the clause exists, your employer must continue paying super contributions in line with the award.
Exception 2: Your Enterprise Agreement Requires It
An enterprise agreement (sometimes called an EBA, EA, or one of several registered agreements) can override the default position. Many enterprise agreements include clauses that preserve the employer’s obligation to keep paying super while a worker is on workers’ compensation.
If you are covered by an enterprise agreement, ask your HR or payroll team for a copy, or search the Fair Work Commission’s enterprise agreement database. Read the sections dealing with workers’ compensation, leave, and statutory requirements carefully. The obligation to pay superannuation, if it applies, will be set out there.
Exception 3: You Are on Suitable Duties and Being Paid for Hours Worked
If you have returned to work on a partial capacity and are performing suitable duties, your employer pays you wages for the hours you actually work. Those wages are ordinary time earnings, and your employer must continue paying super on them at the 12% rate.
The catch is the top-up payments. Where the workers’ compensation insurer adds a top-up payment to bring your weekly income closer to your pre-injury figure, super is not payable on the top-up component. Super only attaches to the wages your employer pays you for the hours worked.
An example of this could be: Sarah earned $75,000 in ordinary-time earnings before her injury. On suitable duties, she works 20 of her usual 40 hours, and her employer pays her $37,500 in wages. The insurer tops her up with workers’ compensation top-up payments. When calculating payment of super, her employer pays 12% on the $37,500 in wages, which is roughly $4,500 per year. Super is not payable on the top-up payments. The principle is straightforward: pay super whilst the worker is performing actual duties, with the duty to continue paying applying to those hours only.
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How Much Super Could You Be Missing?
If you are completely off work on weekly payments and none of the three exceptions apply, the dollar impact adds up quickly. Consider a worker on $75,000 a year in ordinary time earnings. At the 12% superannuation guarantee rate that took effect on 1 July 2025, full-time super contributions would be $9,000 a year.
Twelve months on workers’ compensation in NSW, with no exception applying, means roughly $9,000 in missed superannuation payments. Over the maximum five-year weekly payments period under section 39 of the Workers Compensation Act 1987, that figure rises to roughly $45,000 in lost super entitlements.
The numbers are illustrative. If any exception applies, the picture changes. If you have been paid workers’ compensation payments and suspect that super contributions should also have been made, our team can review your claim.
How Long Do NSW Workers' Compensation Payments Last?
In NSW, weekly workers’ compensation payments are capped at 260 weeks, or five years, under section 39 of the Workers Compensation Act 1987. Once you pass the 260-week mark, weekly payments stop, unless one of two exceptions applies.
The first exception is related to your level of whole-person impairment. If your injury or work-related illness is assessed as greater than 20% whole person impairment, you can continue to receive weekly payments past the 260-week point, subject to your capacity to work. You can read more about this in our guide to understanding whole-person impairment.
The second exception is the “exempt workers” category. Police officers, paramedics, firefighters, coal miners, and bushfire fighters are exempt workers under the legislation and are not subject to the 260-week cap on weekly payments. If you fall into one of those occupations, your entitlements are governed by separate rules.
What to Do if You Suspect Your Super Has Not Been Paid
If you think your employer should have been paying super during your workers’ compensation period and they have not, take these three steps:
- Check your modern award or enterprise agreement. Use the Fair Work Ombudsman website to find the applicable modern award or registered agreements covering your role, then read the clauses on workers’ compensation and superannuation contributions.
- Raise the issue with your employer in writing. Ask your employer or HR/payroll team to confirm whether your award or agreement requires super to be paid during the workers’ compensation period, and to show the calculations for any super that should have been paid.
- Escalate if needed. If your employer cannot or will not resolve the issue, lodge an “Unpaid super from my employer” enquiry with the ATO, contact the Fair Work Ombudsman, or speak to a workers’ compensation lawyer about your entitlement to superannuation and any other unpaid compensation payment.
Key Takeaways
- In NSW, employers are not generally required to pay superannuation on workers compensation weekly payments.
- Those payments are not classed as "salary or wages" or "ordinary time earnings" under the Superannuation Guarantee Ruling SGR 2009/2.
- The superannuation guarantee rate is 12% of ordinary time earnings from 1 July 2025 — the final legislated step in the SG schedule.
- Three exceptions where super is payable while on workers compensation: (1) the applicable modern award requires it; (2) an enterprise agreement or other registered agreement requires it; (3) the worker is on suitable duties — super is payable on wages for hours actually worked, but not on top up payments from the insurer.
- NSW weekly payments are capped at 260 weeks (5 years) under section 39 of the Workers Compensation Act 1987, unless whole person impairment is greater than 20% or the worker is an "exempt worker" (police, paramedics, firefighters, coal miners, bushfire fighters).
- Three steps if you suspect unpaid super: check your award/agreement via Fair Work Ombudsman, raise it in writing with your employer, escalate via the ATO "Unpaid super" enquiry or a workers compensation lawyer.
Speak With a Workers' Compensation Lawyer Today
Workers’ compensation entitlements, including super, can be complex. Our personal injury team is led by Emma Mead, Managing Principal and Accredited Specialist in Personal Injury Law. If you are unsure whether super should have been paid on your workers’ compensation period, our team can review your situation – contact us today.
