Edited version of administratively binding advice

Authorisation Number: 1012599622389

Advice

Subject: ABA - Status of the Worker

Question

Are the Workers, engaged by the Principal under their Contractor Terms and Conditions agreement, employees or independent contractors for the purposes of section 12 of the Superannuation Guarantee (Administration) Act 1992 (SGAA)?

Answer

Based on the provided information the worker is not considered to be an employee. Accordingly, the principal does not have an obligation under the SGAA to make SG payments on behalf of the Worker.

The scheme commences on:

After 1 July 2013

Relevant facts and circumstances

Your advice is based on the facts stated in the description of the scheme that is set out below. If your circumstances are significantly different from these facts, this advice has no effect and you cannot rely on it.

• The Commissioner received a request for advice from the principal with respect to SG and workers to be engaged under a contract.

• The information from the questionnaire is summarised below:

• The worker provides services to third party clients.

• Workers have their own ABN and pay their own tax.

• The relationship is to be established by word of mouth or advertisement

• There is a written agreement between the Worker and the Principal.

• The Worker cannot negotiate their own pay rate or terms and conditions. They must charge the Principal rates as provided by the contract which has to be accepted by the principal after police checks etc. completed.

• The principal has the right to dismiss the Worker.

• No training is provided to the Worker by the Principal.

• the Worker may pick and choose which hours/days they work at their own discretion. The Principal will contact the Worker and offer them a job, the Worker can either accept the job or not.

• If the job is accepted, the name, address, contact numbers of the client, type of job, specified day and time of the job is then messaged through to the Worker via SMS. The Worker is then required to make initial contact with the client to confirm job details and to give a more specified quote for the particular job in accordance with the Principal's set fees. The Worker may work any day.

• The Worker is not entitled to paid breaks.

• The specific jobs the Worker has to perform are arranged and allocated by the client. The Principal only finds them jobs and connects them with the clients.

• The Worker is supervised by the client. The Principal asks the client to provide a prioritised task list for the Worker so they can satisfy client needs in allocated time. If more time is needed to complete job, the Worker will discuss this with client and together come up with their own solution.

• The Worker can refuse tasks. At the initial application stage, a Worker is asked which tasks they will perform so that clients can be matched to Workers.

• A Worker would not have to seek permission from the Principal to take time off but has to provide two weeks' notice to the Principal so they can find fill-in Workers if required. This is stated in the terms and conditions.

• The Worker can provide services for another individual or business, but are unable to take on the principal's clients for a period of 12 months.

• The Worker can work individually or as a team of two, i.e. husband and wife. The principal does not put teams together. The Worker can decide this prior to signing contract with the Principal.

• Business cards are provided to Workers but they are not required to use them.

• The Worker has their own receipts with their own ABN number which they provide to clients after every job is completed.

• The Principal does not advertise its business on the Worker tools or equipment

• The Worker is allowed to promote their own business at any time, although as stated in their contract, they cannot take on the Principal's clients for a period of twelve months.

• The Worker pays the placement fee by direct deposit into the Principal's account every Friday.

• Fees are set by the principal. This may increase in future if the principal increases the fees for clients and this will increase rate of pay to the Worker. Both contractor and client will be notified if this price increase ever does occur.

• The Worker is paid directly by client. If client does not pay, the Worker does not get paid.

• Terms of payment are between client and Worker only. The Principal receives only the placement fee from the Worker.

• The Principal does not check the Worker's work, but will at intervals contact the client to make sure they are happy with service provided.

• No reimbursements such as travel allowance etc. are paid to the Worker.

• No income tax, superannuation or other fees are deduction from the Worker.

• As per their contract the Worker must complete all the work personally as the client depends on the Principal to provide the connection between themselves and the client.

• If a Worker is sick or on holidays and the client wants a replacement, the principal will provide another Worker.

• The responsibility for the insurances are as follows:

• Workers compensation neither Worker or the principal

• Public liability insurance Principal

• The Worker is not required to guarantee their work for a period of time.

• The Worker provides all products and equipment.

• The principal does not supply the Worker with any assets, equipment or tools.

• The principal does not reimburse the Worker for any tools or equipment.

• The client and Worker discuss and decide on materials to use for each specific job.

• The Worker is not required to wear protective work gear.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1992 section 12.

Reasons for decision

Summary

The engagement of Worker by the Principal does not satisfy the common law definition of an employee or the extended definition of an employee under subsection 12(3) of the SGAA.

Accordingly, the Principal does not have an obligation under the SGAA to make superannuation guarantee payments on behalf of the Worker.

Detailed reasoning

The SGAA states that an employer must provide the prescribed minimum level of superannuation support for their employees (unless the employees are exempt employees) or they must pay the superannuation guarantee charge (SGC).

While the term employee, which is defined in section 12 of the SGAA, includes common law employees, it also extends to include Worker who are engaged under a contract wholly or principally for their labour. The employment relationship is often referred to as a 'contract of service'. This relationship is to be distinguished from a contract for service which is typically a contractor and principal type of relationship and will not attract any SGC liability.

Therefore, it is necessary to consider not only whether there is a common law relationship of employer/employee between the parties, but also, if the common law test is not met or is inconclusive, whether the extended definition of 'employee' in subsection 12(3) of the SGAA applies.

The task of defining the characteristics of the contract of service - the employment relationship - has been the subject of much judicial consideration. As a result, some general tests have been developed by the courts to assist in the determination of the nature of the relationship. However, defining the contractual relationship between the employer and employee can be a difficult task and will depend on the facts of each case.

In an ongoing relationship, it is not always clear when the precise moment the legal criteria of a contract is fulfilled, therefore it becomes necessary to determine the true nature of the whole relationship between the principal and the Worker as to whether there was a common law employer/employee relationship, or whether the Worker meets the extended definition of employee under subsection 12(3) of the SGAA.

Common law employee

The courts have developed a method for applying the ordinary, or 'common law' meaning of an 'employee'. Their approach is to look at a wide range of factors, which indicate whether a person is an employee. For example, if the employer provides the place of work, this might indicate an employment relationship, while the absence of holiday pay might suggest the opposite. The courts' decisions tend to be taken on balance, after considering the relevant factors.

The common law meaning of the term 'employee' was stated by the High Court in Stevens v. Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16. It is clear from that case that there is no single objective test which will give the answer:

…it is the totality of the relationship between the parties which must be considered...the question is one of degree for which there is no exclusive measure.

While various factors have been identified by the courts as indicators of the true nature of the relationship, those features are only ever a guide to answering that question. It is necessary in each case to examine all the terms of the contract and to determine whether, on balance, the person is working in the service of another (as an employee) or is working on his or her own behalf (as an independent contractor).

A clause in a contract that purports to characterise the relationship between the parties as that of principal and independent contractor and not that of employer and employee must be considered with all the other terms of the contract. Such a clause cannot receive effect according to its terms if it contradicts the effect of the agreement as a whole. That is, the parties cannot deem the relationship between themselves to be something that it is not. The parties to an agreement cannot alter the true substance of the relationship by simply giving it a different label. Subsequent conduct of the parties may demonstrate the relationship has a character contrary to the terms of the contract.

1. Terms of engagement

The fundamental task is to determine the nature of the contract between the parties. The terms and conditions of the contract whether express or implied, in the light of the circumstances surrounding the making of the contract, whether verbal or written, will always be of considerable importance to the proper characterisation of the relationship between the parties.

Some conditions of engagement are closely associated with employment and may, therefore, be persuasive indicators. For example:

• provision of benefits such as annual, sick, and long service leave;

• provision of other benefits prescribed under an award for employees;

• payer prescribed times and location for the performance of work;

• remuneration in the form of a salary or wage;

• the Worker uses assets and materials provided by the payer or is reimbursed, or paid a compensatory allowance, for expenses incurred in respect of use of own assets and materials; and

• payer discretion (within the constraints of industrial relations laws) in respect of task allocation and termination of engagement.

However, this list is not exhaustive and it must be emphasised that there is not a standard set of conditions applicable to an employee and another (different) set applicable to an independent contractor.

It might be argued that the parties' intention in forming a contract is not subjective, but an objective one; that is, the task is not to discover the intention of the parties involved but to decide what each could reasonably conclude from the actions of the other. In the observation made by Isaacs J in Curtis v.The Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17:

Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance.

Therefore, simply defining someone as a contractor does not necessarily lead to the conclusion that the individual is providing services as part of an operation of their own independent business.

Superannuation Guarantee Ruling SGR 2005/2: Superannuation Guarantee - work arranged by intermediaries (SGR 2005/2) considers the notion of tripartite arrangements (i.e. where the principal arranges for a Worker to complete tasks for a third party client of the principal) and how the definitions of an 'employer' and 'employee' apply to these arrangements.

In accordance with paragraphs 34-39 of SGR 2005/2, it must be ascertained whether a written or verbal contract governing the employment relationship exists, and if so, who the parties to the contract are. In the absence of a contract, no employment relationship can exist.

Application of the test to the facts provided

In regard to the terms of engagement test, the Commissioner considers that on balance, the facts and evidence support the notion that the relationship between the Principal and the Worker is that of principal/independent contractor.

2. Control - lawful authority to command

A prominent factor in determining the nature of the relationship between the parties is the degree of control which the employer has over the employee, as it goes to the root of the classical view of the master-servant relationship. The degree of control varies with the type of job, as the increasing usage of skilled labour has seen a consequential reduction in supervisory functions. The issue of control does not always rely on whether the employer exercises it, although this is clearly relevant, but rather whether they have the right to exercise it.

The degree of control will vary according to the type of work, but the general rule is that the greater the obligation on a person to obey the orders of another as to the manner of the performance of work, the more conclusive it will be that the Worker is the employee of the principal/payer.

Traditionally, a common law employee is told what work needs to be done, how it is to be done, and where it is to be done. However the mere fact that a contract may specify in detail how the contracted services are to be performed does not necessarily imply an employment relationship and a high degree of direction and control is not uncommon in contracts for services.

It is not necessary for the employer to exercise day to day control over the Worker. What is important is that the employer has the legal right of control. In Zuijs v.Wirth Brothers Pty Ltd (1955) 93 CLR 561 the High Court articulated the significance of control in an employment relationship in the following way:

What matters is lawful authority to command so far as there is scope for it. And there must always be some room for it, if only in incidental or collateral matters.

There may be circumstances where the employer may reduce the level of supervision but still retains the right to control the employee, even if that right is not exercised. Dixon J stated in Humberstone v. Northern Timber Mills (1949) 79 CLR 389:

The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in performance of his work resided in the employer so that he was subject to the latter's orders and directions.

However, as cited by Wilson and Dawson JJ in Stevens, it is important to note the qualifying principle enunciated by Dixon J in Queensland Stations Pty. Ltd. v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 to the broader tenet articulated in Humberstone and Zuijs. In this case, Dixon J considered that the reservation of a right to direct the performance of a certain task cannot transform what is an inherently independent contract into a contract of service.

Once it has been established that a contractual relationship exists between the principal and the Worker (see paragraphs 34-39 of SGR 2005/2), it must be discerned the extent of control exercised by the principal over the Worker pursuant to the arrangement. In applying the control test to a tripartite arrangement, paragraph 65 of SGR 2005/2, in accordance with the decision of the High Court in Zuijs and the view of Full Court of the Supreme Court of South Australia in Mason & Cox Pty Ltd v. McCann (1999) 74 SASR 438, considers that the ultimate or legal control over the Worker is of paramount relevance, as opposed to the day-to-day control of the Worker.

Application of the test to the facts provided

The Principal has indicated in the questionnaire response that the Worker was:

• not provided with any training;

• permitted to determine their own hours of work;

• not entitled to paid breaks;

• have to provide their own personal insurance;

• not subject to the scheduling or direction of tasks by the Principal;

• can work individually or as a team of two. The principal does not put teams together. The Worker can decide this prior to signing contract;

• not supervised by the Principal;

• can refuse jobs; and

• can refuse tasks if they were outside the tasks which they agreed to when they registered.

These responses would appear to indicate that in practice, the Worker were subject to minimal control from the Principal in undertaking their work and are indicative of a principal and contractor relationship.

However, in the Contractor Agreement the Worker also agrees that they will:

• not charge in excess of the rates and fees set by the Principal;

• give two weeks' notice if intending to take a leave of absence so that the Principal can find a replacement Worker for the client;

• give the Principal two weeks' notice if they choose to have their name removed from their register;

• not accept any work form a client of the Principal that excludes the placement fee without prior written approval from the Principal;

• immediately report all referrals from clients to the Principal.

Overall, the Commissioner is unable to ascertain a clear result in the control test thus the outcome of this test is inconclusive.

3. Integration - does the Worker operate on their own account or in the business of the payer?

Another significant factor in establishing the nature of a contractual relationship at common law is to determine whether the Worker's services are an integral part of the employer's business (under a contract of service as an employee) or providing services as an individual carrying on his or her own business (under a contract for services as an independent contractor). This is otherwise known as the 'business' or 'integration' test.

Whether the Worker operates on their own account or as part of a business of the payer is sometimes viewed as a consideration of whether the Worker would be viewed by a third party as carrying on their own enterprise as an independent contractor or operator and whether they could be expected to generate goodwill in their own right.

In Montreal v. Montreal Locomotive Works [1947] 1 DLR 161, Lord Wright said:

...it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior.

Similarly, in Stevenson, Jordan and Harrison Ltd v. MacDonald and Evans [1952] 1 TLR 101 Denning LJ said:

...under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.

The Full Bench of the High Court in Hollis v. Vabu (2001) 207 CLR 21

endorsed the proposition stated by Windeyer J in Marshall v. Whittaker's Building Supply Co (1963) 109 CLR 210 that the distinction between an employee and independent contractor is:

…rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own.

The skills involved in carrying out the work are also a useful guide in determining whether a person is carrying on their own business or not. The provision of professional skill or skilled labour may imply that the contractor is able to make an independent career by selling that skill. In the case of a contractor with an independent career, it may be implied that the contractor is able to conduct their own business using those skills.

This was highlighted in Hollis v Vabu at paragraph 48, where the court said in relation to bicycle couriers hired by Vabu:

The couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free-lancer or to generate any 'goodwill' as a bicycle courier…

Activities or requirements of the Worker which may indicate his/her integration into the business include:

• wearing a company uniform;

• the provision of protective equipment by the principal for the Worker;

• an ongoing relationship between the principal and the Worker; and

• the Worker is effectively restricted to providing services for the one principal.

Application of the tests to the facts provided

In the questionnaire response the Principal states that the Worker are able to contract with other businesses during the period in which they are engaged by the Principal; that they do not supply or require the Worker to wear a uniform; and the Worker do not advertise or promote the Principal or their own business on their equipment or tools during the period of engagement.

These factors suggest that the Worker do not identify with or hold themselves out as a part of the Principal's business.

Whether the Worker operates on their own account or as part of a business of the Principal is sometimes viewed as a consideration of whether the Worker would be viewed by a third party as carrying on their own enterprise as an independent contractor or operator and whether they could be expected to generate goodwill in their own right.

Overall, the Commissioner is satisfied that the integration test in isolation is more in favour of the notion that the relationship between the Principal and the Worker was one of principal and independent contractors.

4. 'Results' contracts

Under a results based contract, payment is often made for a negotiated contract price, as opposed to an hourly rate. The meaning of the phrase 'producing a result' means the performance of a service by one party for another where the first mentioned party is free to employ their own means (that is, third party labour, plant and equipment) to achieve the contractually specified outcome. Satisfactory completion of the specified services is the result for which the parties have bargained. That is, a payment becomes payable when, and only when, the contractual conditions have been fulfilled.

Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is one for services. The production of a given result is considered to be a mark of independent contractor status. In World Book (Australia) Pty Ltd v. FC of T (1992) ATC 4327, Sheller JA said:

Undertaking the production of a given result has been considered to be a mark, if not the mark, of an independent contractor….

'Results' contracts describe traditional principal/independent contractor arrangements where a specific identifiable task is performed. The consideration is often a fixed sum on completion of the particular job as opposed to an amount paid by reference to the hours worked.

In a contract for services (whether written, oral or implied), the contract specifies the services to be performed in return for an agreed payment. Satisfactory completion of the specified services is the result for which the parties have bargained. Conversely, under a contract of service, payment is not necessarily dependant on, or referable to, the completion of the specified services.

While the notion of 'payment for result' is expected with a contract for services, it is not necessarily inconsistent with a contract of service. The High Court in Hollis v Vabu considered that the payment to the bicycle couriers per delivery, rather than per time period engaged was a natural means to remunerate employees whose sole purpose is to perform deliveries.

Similarly, the calculation of remuneration in accordance with an hourly rate is not necessarily inconsistent with a contract for services, as per the view of Bromberg J in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 at paragraphs 277 and 282. The focus must be on whether the remuneration was paid on the completion of a specific result or results, irrespective of the manner in which the amount is calculated.

Application of the test to the facts provided

The Worker is paid directly by the client on completion of their allocated time having completed tasks as agreed to in the prioritised list. The Principal has stated that the Worker does not get paid if the client does not pay them. The rate for the work to be done is set by the Principal.

This arrangement indicates that an outcome is to be achieved before payment is made.

Furthermore, there are defined tasks and instructions from the end user which specify the order in which the tasks are to be completed, if time does not permit completion of all tasks. The Worker is not paid unless the client pays the Worker directly.

On balance the Commissioner considers that with regard to the results test the Worker is paid to achieve a result and as such the relationship between the Principal and the Worker is one of principal/contractor.

5. Delegation - whether the work can be delegated or subcontracted

The power to delegate or subcontract the work is a significant factor in deciding whether a worker is an employee or an independent contractor.

A power to delegate involves the assignment of tasks by the worker directly for others to complete. Where this occurs, the party delegating the work assumes responsibility for the remuneration of the Worker actually undertaking the work.

It is important to distinguish delegation from the substitution of one worker with another for the purposes of completing the original Worker's tasks. In a substitution arrangement, the sourcing of a replacement Worker is arranged by the principal, with the replacement worker's remuneration paid by the principal. The distinction between substitution and delegation arrangements was made clear by Brombrg J in On Call (see paragraphs 103 to 109).

Paragraph 49 of SGR 2005/1 reiterates the notion that under a contract for services, the emphasis is on the completion of an identifiable task or result. Paragraph 49 of SGR 2005/1 goes on to specify that in these situations, unless the contract requires the worker to perform the work personally, it follows that as the focus of the contract is the completion of a certain result, not for the labour of a specific person, the Worker is free to engage others to perform the work.

Application of the test to the facts provided

The Principal has advised that the Worker do not have the power to delegate tasks to others and cannot organise for their work/tasks to be completed by another employee of the Principal or another employee of the Worker. Only the Principal can organise another Worker to complete any task required.

The Commissioner is satisfied that the delegation test indicates that the relationship between the Principal and the Worker was one of employee/employer.

6. Risk

A worker who bears little or no risk of the costs arising out of injury or defect in carrying out their work is more likely to be classified as an employee. On the other hand, an independent contractor generally bears the commercial risk and responsibility for any poor workmanship or injury sustained in the performance of work. An independent contractor often carries his or her own insurance and indemnity policies.

Another consideration of risk is the liability for the cost of rectifying faulty work. That is, the key underlying consideration is whether the individual is exposed to commercial risk in terms of a liability to cover the cost of rectifying defective work. This is consistent with the focus on the chance of profit and the risk of loss as a traditional indicator that a worker is an independent contractor conducting his or her own business.

Application of the test to the facts provided

The Contractor Agreement specifies that the Worker is responsible for the quality of their work and will undertake to correct any substandard work at their own expense.

The Contractor Agreement specifies that the Principal agrees to provide Public and Products Liability insurance for the Worker, the Worker however still has some liability.

The Client agreement specifies that the Client is responsible for providing Worker compensation for the Worker.

The Worker is paid directly by the client on completion of their allocated time having completed tasks as agreed to in the prioritised list.

The above indicates that the majority of the financial risk inherent in the performance of the work resides with the Worker. The risk borne by the Principal would appear to be minimal. This is strongly indicative of the existence of a contract for services.

Accordingly, with respect to the risk test, the Commissioner considers the facts and evidence are indicative of a principal and contractor.

7. Capital

A worker who has been integrated as an employee into the business is more likely to be provided with the tools and equipment required for his work by the employer. Furthermore, the employer is often also responsible for the business expenses incurred by the worker, since the worker has been integrated into the employer's business.

Independent contractors carrying on their own business often provide and pay for their own assets, tools, equipment, maintenance costs and other expenses. Usually, they will have factored these costs in their overall fee or will seek separate payment for such expenses from the principal.

In Stevens v. Brodribb at 36-37, the High Court observed that working on one's own account (as an independent contractor) often involves:

The provision of him by his own place of work or of his equipment, the creation of him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion…

Application of the test to the facts provided

The Contractor Agreement specifies that the Worker provide all their equipment and tools.

The Worker is not provided with any assets, equipment or tools by the Principal nor is the Worker is reimbursed by the Principal for their assets, equipment or tools.

Accordingly, with respect to the capital test, the Commissioner considers the facts and evidence are highly indicative of a principal and contractor relationship.

Conclusion - Common law - subsection 12(1) of the SGAA

All of the tests apart from the control test which is inconclusive and the delegation test (which is indicative of employment) indicate that the Worker would not be an employee of the Principal.

On consideration of the case the Commissioner is satisfied that the facts and evidence indicate that the relationship is one of principal/contractor.

However even though the common law tests indicate that the relationship is one of principal/contractor the Worker may still be classified as an employee under the extended definition in subsection 12(3) of the SGAA.

Extended definition of employee under subsection 12(3) of the SGAA

The extended definition of employees under subsection 12(3) of the SGAA states:

If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.

Subsection 12(3) of the SGAA requires the individual to be working wholly or principally for the labour of the person to meet the extended definition. The SGR 2005/1 provides further guidance on this issue and states at paragraph 11 that:

Where the terms of the contract indicate that:

• the individual is remunerated (either wholly or principally) for their personal labour and skills;

• the individual must perform the contractual work personally (there is no right of delegation); and

• the individual is not paid to achieve a result,

the contract is considered to be wholly or principally for the labour of the individual engaged and he or she will be an employee under that subsection.

Each of the three conditions must be met to consider a contract to be wholly or principally for the labour of the individual.

Is the worker remunerated wholly or principally for labour?

In assessing whether a person has been remunerated wholly or principally for labour and skills the ATO view is that, in the context of subsection 12(3) of the SGAA the word 'principally' assumes its commonly understood meaning that is, chiefly or mainly.

Whilst the Worker is required to provide some tools, equipment, and materials for some jobs that are necessary to perform the work, the Commissioner considers that only a small portion of the Worker's remuneration would relate to these costs. Payments made to the Worker are therefore considered to be principally for the Worker's labour and skills.

Is the worker required to perform the work personally?

The second requirement of subsection 12(3) of the SGAA is that it requires the labour of the individual personally. That is, the worker does not have the right to delegate or subcontract the work to another party. Even if the worker has no intention to delegate or subcontract the work and actually performs the work personally, the contract itself is still not for the labour of the person if there is a possibility of delegating the work to another person.

In this case, as previously discussed, the Worker is not able to delegate their work to others.

Is the worker paid to achieve a result?

The third and last requirement of subsection 12(3) of the SGAA is that the payments received by the worker must not be in relation to the production of a given result, but instead should be for their labour.

As previously discussed, the Worker is paid to complete a set list of tasks within a set period of time. This fact in conjunction with other relevant facts, support a view that the Worker is working for a result.

Conclusion - subsection 12(3) of the SGAA

As stated above, each of the three conditions mentioned in paragraph 11 of SGR 2005/1 must be met before subsection 12(3) of the SGAA can be satisfied. In this case the conditions for the results test are not satisfied. The Worker does not, therefore, meet the extended definition of employee provided in subsection 12(3) of the SGAA.

Conclusion - overall

Upon consideration of the relationship as a whole, the Commissioner is satisfied that the Worker contracted to the Principal is not an employee of the Principal for the purposes of the SGAA under common law or the extended definition under subsection 12(3) of the SGAA.

Accordingly, the principal has no obligation under the SGAA to provide superannuation contributions on behalf of the Worker.

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