investor daily logo

Super fund faces legal action over alleged unpaid entitlements

By Rhea Nath
3 minute read

The dedicated super fund for emergency services and Victorian government employees is under fire for unpaid entitlements to transport employees, which could exceed more than $40 million.

The Rail, Tram and Bus Union (RTBU), represented by Gordon Legal, has announced a class action against $36 billion fund ESSSuper over alleged unpaid super entitlements.

The class action argues ESSSuper breached its obligation by failing to include shift penalty allowances when determining the super to be paid to some transport superannuation fund members.

It alleges these unpaid entitlements could exceed more than $40 million.

“Time is of the essence; we are seeing workers who are delaying their retirement after fighting for years to ensure they receive the fair superannuation entitlements that they deserve,” said James Naughton, partner at Gordon Legal.

He stated that ESSSuper, which is responsible for managing the superannuation of more than 127,000 members, “failed to act” and “left these workers with no other option”.

“This is the last straw,” Naughton said.

The super fund has been miscalculating superannuation payments by as much as $300,000 in some cases, the class action alleged.

“These variances can have a drastic impact on the ability of the transport workers to retire and have the quality of retirement they deserve,” Naughton observed.

The class action covers people who are still working as well as those who are retired and eligible to join.

Two of the three lead plaintiffs in the proceeding, Elwyn Gonsalvez and Sebastiano Ferraro, are retired and former members of the Transport Fund, while lead plaintiff Basil Seventis is a current member.

According to Gonsalvez, his experience with ESS has resulted in the exclusion of more than $90,000 from his super fund after they failed to include his allowances under the defined benefit scheme.

“I worked for over 45 years and to now be forced into legal action so I can retire is devastating,” Gonsalvez said.

RTBU branch secretary, Vik Sharma, added the union will continue to strive for ensuring members receive their hard-earned entitlements.

“Superannuation is the most important aspect of financial planning for retirement in Australia and it is a basic expectation of workers that superannuation is paid correctly,” he said.

In a statement to InvestorDaily, ESSSuper chief executive, Robbie Campo, confirmed the fund had made contact with the RTBU's representatives to discuss their claim.

"We are hopeful this matter can be resolved through discussions with the union and engagement with Metro Trains- the employer of most of these members," she said.

Last year, SuperRatings analysis indicated ESSSuper beat out mega funds like Australian Retirement Trust and Aware Super to deliver the top Balanced option performance for the year ended June 2023.

The fund delivered a 13.3 per cent return in the 12 months to June 2023, followed by Vision Super (11 per cent) and Brighter Super (10.6 per cent).