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Edited version of your written advice
Authorisation Number: 1012741852680
Advice
Subject: Superannuation guarantee obligations
Question
Is the worker who provides live-in home support and works for more than 30 hours per week excluded from being an employee under subsection 12(11) of the Superannuation Guarantee Administration Act 1992 (SGAA)?
Advice
No. Please see 'Reasons for decision' below.
This advice applies for the following period:
After 1 July 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.
• a request was received for a client with a disability in respect of superannuation guarantee obligations for a worker who co-resides with the client and provides support services. The following information was provided with the application:
• The worker is engaged through a live-in arrangement within the personal home to provide support to you.
• The worker assists with:
- personal care
- health and hygiene maintenance
- daily household chores, meal preparations and grocery shopping
- travel to and from appointments
- general supervision.
• An external provider facilitates placement of the worker and your guardian obtains the necessary support services for you on your behalf.
• The worker is not employed by the external provider but is engaged by agreement with your guardian.
• The worker is remunerated on a fixed rate per fortnight through the external provider's payroll system on your behalf. This payment represents payment for the support provided and reimbursement for the cost of supporting you.
• Under the current working arrangements the worker works more than 30 hours of work per week.
Relevant legislative provisions
Superannuation Guarantee (Administration) Act 1992 subsection 12(11)
Reasons for decision
Summary
Workers who perform work of a domestic or private nature for more than 30 hours per week, do not fulfil the exception provided for under subsection 12(11) of the SGAA.
Therefore in this case the worker is considered to be an employee under section 12 of the SGAA and there is an obligation to make SG contributions on the worker's behalf.
Note that workers who perform work of a private or domestic nature are excluded from being employees under subsection 12(11) of the SGAA only where they work less than 30 hours per week.
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 you reside in your own home you have a worker that provides you with support through a live-in arrangement.
The worker is engaged through an agreement with your guardian. They are paid a fixed rate per fortnight through the external provider's payroll system on your behalf. This payment represents payment for the support provided and reimbursements for the cost of supporting you.
You advise that under the current work arrangements more than 30 hours of work are performed by the worker every 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, you have advised that the worker performs work of a domestic or private nature for more than 30 hours per week.
Where a worker has been engaged to perform work of a domestic or private nature and works for more than 30 hours per week the worker is considered to be an employee under section 12 of the SGAA.
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