Edited version of private ruling

Authorisation Number: 1011786347554

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Ruling

Subject: Employee or Independent contractor

Question

Is X an employee of the company or an independent contractor?

Answer

Independent contractor

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

We considered these to be the relevant facts:

The company applied for a private ruling to determine whether services provided by X for the company was considered to be performed as an employee or an independent contractor.

In your application, the company advised the following:

· The company engaged X as a contractor on a verbal agreement to perform certain duties.

· The company negotiated with X to obtain services at an hourly rate and paid X upon submission of invoices.

· Later on, X contacted the company informing that X no longer wished to provide the services to the company.

In the subsequent faxes, the company also mentioned further details of the verbal arrangement as follows:

· X was not entitled to annual, sick, long service leave and any benefits under an award for employees;

· X was entitled to reimbursement of certain expenses in order to perform the work for the company;

· X could choose when to perform the services as long as work was completed in time.

The company:

· was not aware whether X had public liability and workers compensation insurance;

· became aware of X's sole trader business via word of mouth.

The company has provided other specific details regarding X's engagement and circumstances.

Summary

Based on the information you have provided, on balance, we consider that X is an independent contractor, rather than an employee, in the income years in question.

Detailed reasoning

Employee Vs Independent contractor

The distinction between employment and contract is the difference between a contract of service indicating an employee/employer relationship and a contract for service indicating a contractor/principal relationship.

The relationship between an employer and an employee is a contractual one. It is often referred to as a contract of service (or, in the past, as a master/servant relationship).

The relationship between the independent contractor and the principal is referred to as a contract for services. An independent contractor typically contracts to achieve a result whereas an employee contracts to provide his or her labour (typically to enable the employer to achieve a result).

An independent contractor works in his or her own business (or on his or her own account); an employee works in the service of the employer, that is, in the employer's business.

However, it is necessary to examine all the terms of the contract and to determine whether, on balance, the person is acting as an employee of another or is acting on his or her own behalf.

Whether the true nature of an arrangement between a payer and payee is that of employer/employee or principal/independent contractor is a determination which must be made by reference to the various indicators developed by the Courts. These indicators have been collated in Taxation Ruling TR 2005/16.

TR 2005/16 paragraph 7 provides:

'Whether a person is an employee of another is a question of fact to be determined by examining the terms and circumstances of the contract between them having regard to the key indicators expressed in the relevant case law. Defining the contractual relationship is often a process of examining a number of factors and evaluating those factors within the context of the relationship between the parties. No one indicator of itself is determinative of that relationship. The totality of the relationship between the parties must be considered.'

The ruling has provided the following key indicators that should be considered when determining whether an individual is an employee or independent contractor at common law:

Conditions of Engagement

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.

All the facts of each case must be examined to determine whether it is an employment or contractor relationship. Most conditions, when viewed individually, will be equivocal as indicators of the true character of the contract.

In this case, X did not have a contract with the company.

The company did not prescribe the times to perform the work as X had the discretion to choose the time which suited X as long as the work was completed.

X was not entitled to any annual, sick and long service leave or super guarantee payments.

X was paid upon presentation of tax invoices.

Upon consideration of the available facts and evidence, the provided Conditions of Engagement supports the notion that an independent contracting relationship exist with respect to the terms of engagement test.

Control

The basic test for determining whether the relationship of master and servant exists is the exercise of control over the manner in which work is performed. With increasing usage of skilled labour and consequential reduction in supervisory functions, the focus of the control test has changed from the actual exercise of control to the right of control. Moreover, while control is important, it is not the sole indicator of whether or not a relationship is one of employment.

In the case, Zuijs v. Wirth Brothers Pty Ltd (1955) 93 CLR 561 the High Court said:

'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.'

In the case, Humberstone v Northern Timber Mills (1949) 79 CLR 389, Dixon J stated:

'The essence of a contract of service is the supply of the work and skill of a man.'

In the present case, there was no direct control exercised by the company on X. The activities carried out by X were not supervised and the work was completed in X's own time within time constraints imposed.

X was not told how to do the work and implemented X's own method to perform the work.

From this and other particular information supplied, there was no control exercised over X to perform the work.

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 the issue of whether the worker operates on their own account or as part of the business of the payer. This is sometimes viewed as a consideration of whether the workers would be viewed by a third party as carrying on their own enterprises as independent contractors or operators and whether they could be expected to generate goodwill in their own right.

In Hollis v Vabu, the majority of the High Court quoted the following statement made by Windeyer J in Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210;

'…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.'

In Montreal v. Montreal Locomotive Works (1927) 1 DLR 161 at 169 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 at 111 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.

In this case, X trades as a sole trader who provided services to others and did not work as an integral part of the company's business.

The company came to know of X's services through word of mouth and engaged X's services as a contractor. The company also assisted X to expand X's business by introducing X's sole trader business to another client.

These points would suggest that an independent third party is unlikely to view X as being an employee of the company or being integrated into the business, concern or enterprise of the company.

This is indicative of X not being an employee of the company.

Results test

Under a results based contracts, payment is often made for a negotiated contract price as opposed to an hourly rate. The production of a specified outcome or result is not limited to the performance of one individual. The worker 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.

TR 2005/16 paragraph 37 provides:

"In contracts to produce a result, payment is often made for a negotiated contract price, as opposed to an hourly rate. For example, in Stevens v. Brodribb, payment was determined by reference to the volume of timber delivered, and in Queensland Stations where it was a fixed sum per head of cattle delivered."

TR 2005/16 paragraph 38 further provides:

"Having regard to the true essence of the contract, the manner in which the 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."

In this case, X has to satisfactorily complete the required duties. X and the company negotiated rates for the services payable on presentation of invoices by X.

Further, X was paid upon submission of tax invoices.

These points are clearly indicative of this arrangement not constituting an employment relationship.

Delegation

If a person is contractually required to personally perform the work, this is an indication that the person is an employee. However, "delegation" exercised by an employee (e.g. a manager or supervisor) is fundamentally different from the delegation exercised by a contractor where the contractor is responsible for the cost and the emphasis is on achieving a result.

In this case, X was a sole trader and had a right to employ or engage other labour to perform some or all of the works in the company. Also X was free to provide services to other clientele.

All these facts point to an independent contractor relationship.

Risk and rectification of work performed

Whether the worker is contractually obliged to be liable for the cost - in terms of time or money - for the rectification of faulty or defective work is a relevant consideration in determining if that worker should be regarded as an employee or independent contractor. Commonly an independent contractor or entity would solely bare the risk and responsibility of liability for their work if it is not up to an agreed standard and would be required to either rectify this defective work in their own time or at their own expense. This means that an independent contractor will often carry their own insurance and indemnity policies.

An employee on the other hand would bare no such responsibility and the liability for any defective work of the employee, either to a third party or otherwise, would fall on the employer in terms of the burden of cost or time for rectification.

In your case, the company did not inquire and was not aware whether X had public liability and workers compensation insurance. Therefore, any liabilities of defective work deemed to be in the hands of the company.

Accordingly, with respect to the risk test, x is considered to be an employee.

Provision of tools and equipment and payment of business expenses

Another consideration of relevance is whether the worker provides their own tools and equipment and pays their own business expenses. It has been held in a variety of cases that the provision of assets, equipment and tools by an individual and the incurring of expenses and other overheads is an indicator that the individual is an independent contractor.

There are situations where, having regard to the custom and practise 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 alone will not lead to the conclusion that the individual engaged is as an employee. The weight or emphasis given to this - or any other indicator - depends on the particular circumstances, the context and the nature of the contractual work.

Unlike an independent contractor, an employee is often reimbursed or receives an allowance for expenses incurred in the course of employment - including for the use of their own assets such as a car.

The company provided details with regard to the provision of tools and equipment to X.

With respect to the provision of tools and equipment test, X is considered to be an employee.

Other

Other indicators suggesting an employer-employee relationship include:

· the right to suspend or dismiss the person engaged;

· the right to the exclusive services of the person engaged;

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

· provision of other benefits prescribed under an award for employees; or

· a requirement that a worker wear a company uniform.

In this case, X was required to wear a uniform only on certain occasions. All contractors, including X were asked to wear uniform on occasions for easy identification of company representatives by the clients.

The company did not have the right to X's exclusive services.

X was not entitled to annual, sick and long service leave or other benefits prescribed under an award for employees.

These points are indicative of this arrangement not constituting an employment relationship.

Conclusion

With consideration of all the facts presented in this case and with reference to the indicators provided in Taxation Ruling TR 2005/16, it is clear that X was engaged by the company as an independent contractor and not as an employee of the company.