Edited version of your written advice

Authorisation Number: 1051202050234

Date of advice: 24 March 2017

Ruling

Subject: Status of the Worker

Question 1

Is the Worker considered a common law employee of the Principal as defined by subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA) for the period?

Advice

Yes. Please refer to 'why we have made this decision'.

Question 2

Is the Worker an employee of the Principal by virtue of subsection 12(3) of the SGAA?

Advice

Yes. Please refer to 'why we have made this decision'.

This advice applies for the following period:

We considered these to be relevant facts

You lodged a private ruling application on behalf of the Principal, requesting advice as to their superannuation guarantee ('SG') obligations in respect to the Worker.

You provided the following further information by email:

● A copy of an Agreement signed by the Worker;

● Copies of invoices for payments to the Worker;

● A copy of an spreadsheet for sales across a six month period..

Based on the information provided, we considered the following to be relevant facts:

● The Principal is a Health Care Provider which provides multidisciplinary services to the residents of aged-care facilities (i.e. nursing homes).

● The Agreement is titled as a “Contractor Agreement” and states that the Worker has been engaged as a “contractor”.

● The Agreement states that the Worker has been engaged by the Principal as an “Administrative Officer” who is required to perform duties as a “Support and Sales Team Member”.

● The Agreement states the duties to be performed by the Worker including approvals, data-capturing, invoicing, tracking and dispatching orders, and scheduling support.

● The Agreement provides that the Worker is engaged as a “Dispenser” for these roles.

● You have advised that the Worker has been engaged by the Principal as a 'salesperson'.

● The Agreement states that the Worker is not entitled to annual or sick leave.

● The Agreement states that remuneration will be calculated on a 'commission' basis.

● You have advised us that the Worker works for one day per week, but does not work at the Principal's premises and instead works from home.

● The Agreement states that the Principal provides, at no cost to the Worker, all necessary property and equipment to perform the services. However, the Worker may with prior approval use their own equipment, at no cost to the Principal.

● You have advised us that the Worker uses the equipment of the Principal, and that this includes a phone and 'instruments'.

● You have advised us that the Worker does not use sub-contractors; however the Agreement is silent on the question of whether the Worker is required to perform the work personally.

● The invoices provided show that the Worker has invoiced using their trading name and that they have an ABN. Payment for the balance of the invoice is payable to a bank account in the name of the Worker.

● The invoices provided were invoiced on a monthly basis, with the unit price being the total sales for that period and the quantity being the commission percentage. The Worker does not charge GST for sales on the invoice.

● The 'unit price' is derived from the sales spreadsheet which shows order number and invoice number per sale to each resident. GST is charged on sales. Monthly sales are totalled in the spreadsheet and the total is the 'unit price' as per the invoices.

We formed our view on the facts by relying on this information

The private ruling application form and the further information provided.

Assumptions

No assumptions have been made.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1992 Subsection 12(1)

Superannuation Guarantee (Administration) Act 1992 Subsection 12(3)

Reasons for decision

Why we have made this decision

Summary

1. The facts and evidence suggest that the Worker is an employee for the purposes of the SGAA under both the common law definition and the expanded definition as set out in subsection 12(3) of the SGAA. Therefore the Principal does have an obligation to pay SG contributions on behalf of the Worker.

Detailed reasoning

2. The SGAA states that an employer must provide the required minimum level of superannuation support for its employees (unless the employees are exempt employees) or pay the Superannuation Guarantee Charge (SGC).

3. While the term 'employee' which is defined in section 12 of the SGAA, includes common law employees, it also extends to include workers who are engaged under a contract wholly or principally for their labour. This employment relationship is often referred to as a 'contract of service'. This relationship is distinguished in Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? (SGR 2005/1) from a 'contract for service' which is typically a contractor and principal type of relationship and does not attract an SGC liability.

4. 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 expanded definition of 'employee' in subsection 12(3) of the SGAA applies. If a worker is not an employee under subsections 12(1) or 12(3) of the SGAA, their status is described as an independent contractor and there is no SG obligation.

5. 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 difficult and will depend on the facts of each case.

6. Accordingly it is necessary to determine the true nature of the whole relationship between the principal and the workers, as to whether there was a common law employer and employee relationship, or whether the workers meet the expanded definition of employee under subsection 12(3) of the SGAA.

Question 1

Is the Worker a common law employee of the Principal as defined by subsection 12(1) of the SGAA for the period?

Common law employee

7. The relationship between an employer and employee is a contractual one. It is often referred to as a contract of service. Such a relationship is typically contrasted with the independent contractor relationship that is referred to as a contract for services. An independent contractor typically contracts to produce the contracted result in return for an agreed payment, whereas an employee contracts to provide their labour (typically to enable the employer to achieve a result).

8. The Courts have considered the common law contractual relationship between parties in a variety of legislative contexts. As a result, a substantial and well-established body of case law has developed on the issue. Consideration should be given to the various indicators identified in judicial decisions. No list of factors is to be regarded as exhaustive and the weight to be given to particular facts will vary according to the circumstances. The totality of the relationship between the parties must be considered to determine whether, on balance, the worker is an employee or independent contractor.

9. In deciding whether an individual is a common law employee, there are a number of common law factors to consider. The common law factors we have considered are discussed below.

1. Terms of engagement

10. The fundamental task with respect to the terms of engagement test is to determine the nature of the contract between the parties. We will consider whether the contract is written or verbal and whether the terms and conditions are express or implied. These factors are important in characterising the relationship between the parties.

11. 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.

12. 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. In Hollis v. Vabu Pty Ltd (2001) 207 CLR 21 (Hollis v. Vabu Pty Ltd) it was noted that although no payments of annual leave or sick leave were given, and no superannuation deductions were made by Vabu in respect of the bicycle couriers, the relationship between the parties was found not merely from these contractual terms. The system which was operated under and the work practices imposed by Vabu went to establishing 'the totality of the relationship' between the parties and it is this which is to be considered.

Application of the common law to your case

13. The Principal is a Health Care Provider which provides multidisciplinary services to the residents of aged-care facilities (i.e. nursing homes).

14. The Principal has engaged the Worker as a “contractor” under an Agreement that it titled as a “Contractor Agreement”.

15. You have advised that the Worker has been engaged by the Principal as a 'salesperson'.

16. The Agreement states that the Worker is not entitled to annual or sick leave.

17. The Worker has an ABN and has invoiced under their trading name.

18. Paragraph 16 of SGR 2005/1 provides that 'a person who holds an ABN may still be an employee for the purposes of the SGAA'.

19. Paragraph 28 of SGR 2005/1 provides that:

Contractual arrangements often contain a clause that purports to characterise the relationship between the parties as that of principal and independent contractor and not that of employer and employee. 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 is not.

20. However, in Australian Mutual Provident Society v. Chaplin and Anor (1978) 18 ALR 385 at 389-390 it was noted that 'such a clause may be used to overcome any ambiguity as to the true nature of the relationship'.

21. Overall, we are satisfied that the terms of engagement test in isolation is more in favour of the notion that the relationship between the Principal and Worker is one of principal and independent contractor.

22. However, to determine the true nature of the relationship, it is necessary to consider other common law tests.

2. Control

23. The extent to which the employer has the right to control the manner in which the work is performed is the classic test for determining the nature of a working relationship. A common law employee is told not only what work is to be done, but how and where it is to be done. With the increasing usage of skilled labour and consequential reduction in supervisory functions, the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it.

24. Paragraph 35 of SGR 2005/1 states:

35. 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. In fact, a high degree of direction and control is not uncommon in contracts for services. The payer has a right to specify how the contracted services are to be performed, but such control must be expressed in the terms of the contract; otherwise the contractor is free to exercise their discretion (subject to any terms implied by law). This is because the contractor is working for themselves.

25. Paragraphs 36 and 37 of SGR 2005/1 provide that while control is important, it is not the sole indicator of whether or not a relationship is one of employment. The approach of the Courts has been to regard it as one of a number of indicia which must be considered in determination of that question.

26. Even though the modern approach to defining the contractual relationship is to have regard to the totality of the relationship between the parties, control is still an important factor to be considered. This was recognised by Wilson and Dawson JJ in Stevens v. Brodribb (1986) 160 CLR 16 at 36 (Stevens v. Brodribb), where they state:

In many, if not most cases, it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee.

Application of the common law to your case

27. The Agreement states that the Worker has been engaged by the Principal as an “Administrative Officer” who is required to perform duties as a “Support and Sales Team Member”.

28. The Agreement states the duties to be performed by the Worker including approvals, data-capturing, invoicing, tracking and dispatching orders, and scheduling support.

29. The Agreement provides that the Worker is engaged as a “Dispenser” for these roles.

30. You have advised that the Worker has been engaged by the Principal as a 'salesperson'.

31. You have advised us that the Worker works for one day per week, but does not work at the Principal's premises and instead works from home.

32. Based on the information provided, the Worker has limited discretion to provide services in the way the Worker considers to be most appropriate and efficient. The Worker has been engaged by the Principal effectively as a 'salesperson'; however they are required to perform the responsibilities of approvals, data capturing and ordering spectacles in their role as a “Dispenser”.

33. Their overall duties as a 'team member' indicates a degree of control more akin to an employer-employee relationship.

34. The Agreement which includes the Worker outlines the roles and responsibilities of the Worker as part of a chain of events, for the ultimate result of providing eye care services (including sales) to the clients. Any discretion that the Worker has in providing services is restricted by their role in this process. This indicates a level of control more akin to an employer-employee relationship.

35. The fact that the Worker works for one day a week, does not work at the Principal's premises and instead works from home, is generally indicative of a principal and independent contractor relationship.

36. The termination rights for both parties provided by the Agreement are consistent with the fact that the term of the Agreement is for an 'indefinite period' and do not indicate that the Principal maintains a level of control over the Worker. However, the Principal's termination rights demonstrate a level of control more indicative of an employer-employee relationship.

37. The Agreement provides for a 'restraint of trade' with respect to services performed by the Worker to clients of the Principal during the course of the Agreement, and for one year after the termination of the Agreement. This is generally indicative of an employer-employee relationship.

38. Based on the information provided, we consider that the control test in isolation is more in favour of the notion that the relationship between the Principal and Worker is one of employer and employee.

3. Integration

39. 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 known as the 'integration' test.

40. If the worker's services are an integral and essential part of the employer's business that engages them, they are considered by the courts to be a common law employee. If the worker is providing services as an individual carrying on their own business, they are an independent contractor.

41. It is necessary to keep in mind the distinction between a worker operating their own business and a worker operating in the business of the payer. The worker needs to be running their own business or enterprise and have independence in the conduct of their operations.

42. 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.

43. 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.

44. The professional 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 skills 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.

45. This was highlighted in Hollis v. Vabu Pty Ltd 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…

46. Consideration may also be given to whether the worker could be expected to generate goodwill in their own right. If the benefits from the creation of goodwill flow to the worker then this would indicate that they are an independent contractor. Alternatively, if goodwill flows to the principal, this suggests an employer/employee relationship.

47. It is therefore necessary to consider whether the worker is providing services as part of the principal's business (under a contract of service as an employee) or providing services as part of their own business (under a contract for services as an independent contractor).

Application of the common law to your case

48. The Agreement states that the Worker has been engaged by the Principal as an “Administrative Officer” who is required to perform duties as a “Support and Sales Team Member”.

49. The Agreement states the duties to be performed by the Worker including approvals, data-capturing, invoicing, tracking and dispatching orders, and scheduling support.

50. The Agreement provides that the Worker is engaged as a “Dispenser” for these roles.

51. You have advised that the Worker has been engaged by the Principal as a 'salesperson'.

52. You have advised us that the Worker works for one day per week, but does not work at the Principal's premises and instead works from home.

53. The invoices provided show that the Worker has invoiced using their trading name and that they have an ABN.

54. The title of the Worker's role with the Principal as an “Administrative Officer” and/or a “Support and Sales Team Member” is a strong indicator that the Worker is integrated into the business of the Principal.

55. However, the fact that the Worker does not perform services at the Principal's premises is generally indicative that the Worker is not integrated into the business of the Principal.

56. You have advised that the Worker has been engaged essentially as a 'salesperson' and their role is referred to as a “dispenser” in the Agreement.

57. As per the control test, the roles and responsibilities of the Worker form part of a chain of events, for the ultimate result of providing eye care services (including sales) to the clients. This indicates that the Worker is not operating in a business of their own, rather they from part of a team operating in the business of the Principal.

58. The fact that the Worker has issued invoices to the Principal using their trading name and stating their ABN is a clear indicator that the Worker intends to operate in a business of their own as an independent contractor, however this factor must be considered in the context of the true substance of the relationship.

59. Overall, we are satisfied that the integration test in isolation is strongly in more in favour of the notion that the relationship between the Principal and Worker is one of employer and employee.

4. 'Results' test

60. 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. The essence of the contract has to be to achieve a result and not to do work.

61. 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.

62. Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is one for services. In World Book (Australia) Pty Ltd v. FC of T 92 ATC 4327 (World Book (Australia) Pty Ltd v. FC of T) 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.

63. While the notion of 'payment for a result' is expected in a contract for services, it is not necessarily inconsistent with a contract of service. For example, the Full Court of the Supreme Court of South Australia in the decision of Commissioner of State Taxation v. Roy Morgan Research Centre Pty Ltd (2004) SASC 288 (Commissioner of State Taxation v. Roy Morgan Research Centre Pty Ltd), found that interviewers who were only paid on the completion of each assignment not on an hourly basis, were employees and not independent contractors. It was found that the workers were paid for their time spent and labour, and not to produce a result.

64. Having regard to the true essence of the contract, the manner in which payment is structured will not of itself exclude genuine result based contracts. For example, there are results based contracts where the contract price is based on an estimate of the time and labour cost that is necessary to complete the task, or may even be calculated on that basis, subject to reasonable completion times. Generally, where a worker submits quotes or issues invoices for each job to the principal, this would be consistent with operating their own business. Nonetheless, the issuing of invoices is not necessarily determinative of the nature of the relationship.

65. Accordingly, the contractual relationship as a whole must still be considered to determine the true character of the relationship between the parties.

Application of the common law to your case

66. The Agreement states that remuneration will be calculated on a 'commission' basis.

67. The invoices provided were invoiced on a monthly basis, with the unit price being the total sales for that period and the quantity being the commission percentage. The Worker does not charge GST for sales on the invoice.

68. The 'unit price' is derived from the sales spreadsheet which shows order number and invoice number per sale to each resident. GST is charged on sales. Monthly sales are totalled in the spreadsheet and the total is the 'unit price' as per the invoices.

69. The Agreement states that the Principal provides, at no cost to the Worker, all necessary property and equipment to perform the services. However, the Worker may with approval use their own equipment, at no cost to the Principal.

70. Generally, where a Worker submits quotes or issues invoices for each job to the Principal, this would be consistent with operating their own business. Nonetheless, the issuing of invoices is not necessarily determinative of the nature of the relationship.

71. In this case, the invoices are not referrable to any measure of time per sale and nor are they directly referrable to any piece-work rate per sale, although the 'unit price' on the invoice is derived from total sales as calculated in the sales spreadsheet. The issuing of invoices is therefore not determinative in this instance.

72. Paragraph 43 of SGR 2005/1 states the following with respect to the meaning of the phrase 'the production of a given result':

43. The phrase 'the production of a given result' means the performance of a service by one party for another where the first-mentioned party is free to employ their own means (such as 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.

73. You have advised us that the Worker does not use sub-contractors, however the Agreement is silent on the question of whether the Worker is required to perform the work personally. The Agreement states that the Worker may with prior approval use their own equipment, at no cost to the Principal.

74. These factors indicate that while there is scope for the worker to employ their own means (such as third party labour, plant and equipment) to perform the roles and responsibilities outlined in the Agreement, there is no evidence that this has occurred. This factor will not be determinative on the question of whether the Agreement is for 'the production of a given result'.

75. As per the control and integration tests, the roles and responsibilities of the Worker form part of a chain of events, for the ultimate result of providing eye care services (including sales) to the clients. This indicates that rather than the Worker producing a separate result on their own, the 'result' is only achievable through their engagement in this process.

76. The fact that the Worker is being renumerated on a 'commission' basis is not indicative that the Worker is engaged as an independent contractor. In the case of FC of T v Barrett and Ors, it was held by the High Court that 'land salesmen' who were renumerated 'by commission only' were employees and not independent contractors.

77. Overall, we are satisfied that the results test in isolation is more in favour of the notion that the relationship between the Principal and the Worker is one of employer and employee.

5. Delegation

78. The power to delegate or subcontract (in the sense of the capacity to engage others to do the work) is a significant factor in deciding whether a worker is an employee or independent contractor. If a person is contractually required to personally perform the work, this is an indication that the person is an employee.

79. If the contract does not expressly require the worker to personally perform the services, an independent contractor has the capacity to delegate or subcontract all (or some) of the work to others. Where the worker delegates, they are responsible for remunerating that worker.

80. In the case of Neale (DFC of T) v. Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 425; 6 AITR 201 at 202, the High Court interpreted the words 'a contract which is wholly or substantially for the labour of the person to whom the payments are made' to decide that if a contract leaves a person completely free, if he or she chooses, to engage others to perform the work on his or her behalf means that the payments are not payments under a contract for labour.

81. That is so even if the contractor actually does perform the work personally and had no intention of doing otherwise.

If the contract leaves the contractor free to do the work himself or employ other persons to carry it out the contractual remuneration when paid is not a payment made wholly or at all for the labour of the person to whom the payments are made. It is a payment made under a contract whereby the contractor has undertaken to produce a result...

82. When an employee asks a colleague to take an additional shift or responsibility, the employee is not responsible for paying that replacement worker; rather the employee has merely substituted or shared the workload.

83. However, a clause in the contract may permit the worker to delegate the task to another worker subject to approval of the principal, as the principal may not want an unknown worker to be working on their site or who may not be suitably qualified.

84. In the case of Bowerman v. Sinclair Halvorsen Pty Ltd [1999] NSWIRComm 21, Bishop J said:

The fact that any substitute driver had to be approved by the company does not give the respondent [the principal] control over that delegation… the company surely had the right to be confident that any substitute driver was competent to do the job and maintain the "integrity" of the company as Mr Coomb put it.

85. Therefore, under a contract for services, the emphasis is on the performance of the agreed services (achievement of the 'result'). A person who has a right to delegate work (whether or not that right is exercised in practice) does not work under a contract wholly or principally for their labour. Unless the contract expressly requires the service provider to personally perform the contracted services, the contractor is free to arrange for his or her employees to perform all or some of the work or may subcontract all or some of the work to another service provider.

Application of the common law to your case

86. You have advised us that the Worker does not use sub-contractors; however the Agreement is silent on the question of whether the Worker is required to perform the work personally.

87. Based on the information provided, there is no evidence that the Worker would be able to delegate the roles and responsibilities outlined in the Agreement in the future, or the process by which that delegation would occur (i.e. with or without consent).

88. The fact that the Agreement is silent on the question of whether the Worker is required to perform the work personally indicates that this possibility has not yet been raised or contemplated by either party to the Agreement.

89. In these circumstances we are satisfied that the delegation test in isolation is neutral on the question of whether the relationship between the Principal and Worker is one of principal and independent contractor, or of employer and employee and has not been taken into consideration in our decision.

6. Risk

90. Generally speaking, employers are vicariously liable for negligence and injury caused by their employees. However a principal will not be liable for negligence or injury caused by an independent contractor.

91. The higher the degree to which a worker is exposed to the risk of commercial loss (and the chance of commercial profit), the more they are likely to be regarded as being independent. Typically, a worker who derives piece rate payments and sustains large outgoings would be so exposed. The higher the proportion of the gross income of the worker which is required to be expended in deriving that income, and the more substantial the assets which the worker brings to the tasks, the more likely that the contract is for service, or a contract with an independent contractor.

92. As stated by McKenna J in Ready Mixed Concrete (South East) Limited v. Minister Pensions and National Insurance [1968] 2 QB 497 at 526:

…the owner of assets, the chance of profit and risk of loss in the business of carriage are his and not the company's.

93. 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 their own business.

94. Carrying their own insurance and indemnity policies is an indicator that a worker is engaged as an independent contractor.

Application of the common law to your case

95. The Agreement is silent on the question of who bears the commercial risk for services provided by the Worker, such as the risk of liability for the cost of rectifying faulty work.

96. The Agreement is also silent on the question of who is responsible for carrying insurance and indemnity policies. As per paragraph 51 of SGR 2005/1, an independent contractor will often carry their own insurance and indemnity policies.

97. Based on the information provided, we consider that the risk test in isolation is neutral on the question of whether the relationship between the Principal and Worker is one of principal and independent contractor, or of employer and employee.

98. To determine the true nature of the relationship, it is necessary to consider other common law tests.

7. Capital - Provision of tools and equipment and payment of business expenses

99. 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.

100. 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.

101. 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 common law to your case

102. The Agreement states that the Principal provides, at no cost to the Worker, all necessary property and equipment to perform the services. However, the Worker may with approval use their own equipment, at no cost to the Principal.

103. You have advised us that the Worker uses the equipment of the Principal, and that this includes a phone and 'instruments'.

104. Paragraph 56 of SGR 2005/1 states the following with respect to the provision of tools and equipment:

56. There are situations where, having regard to the custom and practice of the work, or the practical circumstances and nature of the work, very little or no tools of trade or plant and equipment are necessary to perform the work. This fact by itself will not lead to the conclusion that the individual engaged is an employee. The weight or emphasis given to this indicator (as with all the other indicators) depends on the particular circumstances and the context and nature of the contractual work. All the other facts must be considered to determine the nature of the contractual relationship.

105. The emphasis placed on the fact that “all necessary equipment, stock and administrative support to ensure the proper performance of the duties” is provided by the Principal is therefore considered in the context of the services provided.

106. Overall, we are satisfied that the capital test in isolation is more in favour of the notion that the relationship between the Principal and the Worker is one of employer and employee.

Our conclusion regarding the common law definition of employee

107. With respect to the relationship between the Principal and the Worker, the facts and evidence provided point to the conclusion that the Worker is a common law employee of the Principal.

108. As the facts and evidence indicate that the Worker is your employee under common law, we are not required to consider the extended definition in subsection 12(3) of the SGAA. However, in order to leave no doubt as to the Commissioner's view of this matter, the extended definition has been considered and is discussed below.

Question 2

Was the Worker an employee of the Principal by virtue of subsection 12(3) of the SGAA?

Expanded definition of employee for SGAA purposes

109. The expanded definition of employee within 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.

110. SGR 2005/1 explains when an individual is considered to be an 'employee' under section 12 of SGAA.

111. Paragraph 78 of SGR 2005/1 states that where the terms of the contract, in light of the subsequent conduct of the parties, 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 to delegate); and

● the individual is not paid to achieve a result

the contract is considered to be wholly and principally for the labour of the individual engaged, and he or she will be an employee under subsection 12(3) of the SGAA.

Wholly or principally for labour

112. In this context, the word “principally” assumes its commonly understood meaning, that is chiefly or mainly, and labour includes mental and artistic effort as well as physical toil.

113. A contract may be partly for labour and partly for something else, such as the supply of goods, materials or hire of plant or machinery. Subsection 12(3) of the SGAA only applies if the contract is wholly or principally for labour.

114. In this case, the Worker is remunerated for labour and skills associated with the provision of optometry related services as an “Administrative Officer” and/or a “Support and Sales Team Member”.

115. Based on the information provided, we consider that the Worker was paid primarily for their own labour and skills.

The individual must perform the duties themselves

116. As per the common law test for 'delegation', based on the information provided, the facts are neutral on the question of whether the Worker is required to perform their roles and responsibilities personally.

Not paid to achieve a result

117. As per the 'results test' at common law, based on the information provided, we consider that the Worker was not paid to achieve a result.

Our conclusion regarding the expanded definition of employee

118. Accordingly, the facts and evidence indicate that the Worker also meets the extended definition of employee as set out under subsection 12(3) of the SGAA.

Conclusion - overall

119. Upon considering of all the available facts and evidence, the Commissioner is satisfied that with respect to work performed for the Principal, the Worker meets the definition of an employee for the purposes of the SGAA under both the common law definition and the expanded definition provided under subsection 12(3) of the SGAA.

120. Accordingly, the Principal does have an obligation to pay superannuation contributions for the benefit of the Worker under the SGAA.

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