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Edited version of your written advice
Authorisation Number: 1051284084325
Date of advice: 26 September 2017
Subject: Superannuation Guarantee
Question 1
Are the workers appointed to advisory committees under a state law considered employees of the Principal under subsection 12(9) of the Superannuation Guarantee Administration Act 1992 (SGAA)?
Advice
Yes, refer to ‘Reasons for Decision’.
This advice applies for the following period:
Year ended 30 June 2017
We considered these to be relevant facts
● The Principal has several Committees and expert panels groups comprising of external experts.
● These groups are appointed in accordance with a state law.
● The groups do not have any executive or decision-making powers.
● They provide independent, objective advice to the Principal on issues within the scope of their Terms of Reference.
● The panel members have been invoicing the Principal, some with GST charged.
Relevant legislative provisions
Superannuation Guarantee Administration Act 1992 subsection 12(1)
Superannuation Guarantee Administration Act 1992 subsection 12(9)
Reasons for decision
Subsection 12(1) of the SGAA interprets employee and employer as having its ordinary meaning for the purposes of the Act. However, subsections (2) to (11) expand the meaning of those terms and make provisions for certain persons to avoid doubt as to their status.
In particular subsection 12(9) states that:
A person who:
(a) holds, or performs the duties of, an appointment, office or position under the Constitution or under a law of the Commonwealth, of a State or of a Territory; or
(b) is otherwise in the service of the Commonwealth, of a State or of a Territory (including service as a member of the Defence Force or as a member of a police force);
is an employee of the Commonwealth, the State or the Territory, as the case requires. However, this rule does not apply to a person in the capacity of the holder of an office as a member of a local government council.
The Principal has a number of Committees and Expert Panels which comprise of external experts all of which are appointed in accordance with a state law.
The workers were provided with the Appointment and Remuneration Guidelines and a letter of appointment setting out their terms of employment which is required to be signed and dated by the person being offered employment.
The agreed terms of engagement as set out in the letter of appointment are different for each Advisory Panel. The role of the Panel is to provide expert peer review advice to the Principal to assist it in making decisions. It does not have decision making power under the law.
The Panel members are appointed for an initial term of two years. However, this term can be terminated at any time in accordance with the conditions in individual letters of appointment or contract. Panel members may be eligible for extension or reappointment by the CEO after a review of their performance.
Subsection 12(9) of the SGAA specifically states that a person who is appointed to an office or position under a law of the state is an employee of the state. Therefore, any persons who are appointed by the Principal under a state law are considered employees in accordance with subsection 12(9) of the SGAA.
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