Edited version of your written advice

Authorisation Number: 1012725263054

Advice

Subject: Superannuation guarantee obligations

Question

Are the individuals (the workers) who provide in-home respite domestic support services excluded from being employees under subsection 12(11) of the Superannuation Guarantee Administration Act 1992 (SGAA)?

Advice

Yes. Please see 'Reasons for decision' below.

This advice applies for the following period:

From 28 August 2014

Relevant facts and circumstances

This 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 from the applicant, on behalf a member of the family who suffers from a disability, for binding advice in respect of superannuation guarantee obligations for workers who provide in-home respite services. The following information was provided with the application:

• Workers are engaged to provide in-home respite services to a member of your family who suffers from a disability and lives within the family home.

• For income tax purposes, some workers are treated as employees and tax is deducted from payments to them while others have provided their ABN and are paid on their invoices.

• None of the workers work more than 30 hours per week.

• The only service provided by the workers is in-home respite care.

• The common tasks that the workers provide are:

• Assisting the disabled person in the improvement of their communication skills

• Provide community access by facilitating and assisting with the planning of any special events, taking the person out to the park or shopping and any other relevant excursions that present themselves

• Teaching of life skills and providing a guiding path

• Domestic duties such as, making meals, household chores including cleaning, washing and tidying and cooking.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1992 subsection 12(11).

Reasons for decision

Summary

The workers who provide in-home respite domestic support services are excluded from being employees under subsection 12(11) of the SGAA as they work less than 30 hours per week.

As the workers are excluded from being employees under subsection 12(11) of the SGAA, there is no obligation to pay superannuation guarantee (SG) contributions for the workers.

Please note that there may be an obligation to pay SG contributions for the workers who provide in-home respite domestic support services if they work more than 30 hours per week and are paid $450 or more in a month.

Detailed reasoning

Under the SGAA, employers are required to make superannuation contributions into a complying superannuation fund for the benefit of their eligible employees in accordance with minimum prescribed levels.

The SGAA defines 'employee' in section 12 of the Act.

Subsection 12(11) of the SGAA relates to work of a domestic or private nature and states:

12(11) [Work of domestic or private nature] A person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not regarded as an employee in relation to that work.

Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? (SGR 2005/1) explains when an individual is considered to be an 'employee' under section 12 of the SGAA.

Paragraph 12 of SGR 2005/2 relates to individuals who are paid to work of a domestic or private nature and states:

12. Subsection 12(11) of the SGAA provides that a person who is paid to do work wholly or principally of a domestic or private nature for not more than 30 hours per week is not an employee in relation to that work. A person who is paid to do work of this nature for more than 30 hours per week may or may not be an employee depending on whether they fall within the other provisions of section 12.

Application of the law to your circumstances

In this case workers are engaged to provide in-home respite care and other disability services for a person who suffers from a disability. The care and services are of a domestic or private nature.

The majority of these workers are engaged as employees whilst one worker has provided an ABN and is paid on their invoices.

All of the workers work less than thirty hours per week, and you advised that the workers generally work between four to twelve hours per week.

Subsection 12(11) of the SGAA specifically excludes individuals who are paid to do work that is wholly or principally of a domestic or private nature from being an employee if the individual is engaged for not more than 30 hours per week.

In this case, regardless of whether the workers are engaged as employees or have provided their ABN and submit invoices for payment, as the workers are engaged to do work of a domestic or private nature for not more than 30 hours per week, they are not regarded to be your employees under section 12 of the SGAA.

Conclusion

As the workers are engaged to provide in-home respite services for not more than 30 hours per week, they are not regarded to be employees under subsection 12(11) of the SGAA.

Therefore, you do not have an obligation to make SG contributions on behalf of the workers, regardless of how they are engaged or paid.

• If any workers work more than 30 hours per week and earn more than $450 per month, you may have an obligation to make SG contributions on their behalf.

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