Edited version of your written advice

Authorisation Number: 1012969336432

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Date of advice: 15 February 2016

Advice

Subject: Status of the Worker

Question 1

Is the Worker considered your common law employee as defined in subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA) for the quarters ended 30 September 20XX to 30 June 20YY inclusively?

Advice

No. Refer to 'why we have made this decision'

Question 2

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

Advice

No. Refer to 'why we have made this decision'.

This advice applies for the following period:

• 1 July 20XX to 30 June 20YY

Relevant facts and circumstances

The Principal requested advice regarding whether or not the Worker is an employee of the Principal for the purposes of the SGAA during the period.

The Principal provided a representative contract

The Worker was engaged through the Principal

The Worker had their own Australian Business Number (ABN) and was registered for the Goods and Services Tax (GST)

The Worker was paid on the basis of providing installation jobs.

The Principal provided a standard rate and the Worker could renegotiate this rate and used this option.

The Worker met their own expenses in relation to all insurances; provision of his/her transport and tools and all other expenses related to their work.

The Worker could provide services to other individuals or businesses.

The Worker had the right to delegate and used this option.

The Worker was not entitled to annual, sick or long service leave.

Reasons for decision

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 SGC.

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.

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.

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.

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

Was the Worker, considered a common law employee of the Principal as defined in subsection 12(1) of the SGAA?

Summary

The facts and evidence lead to the conclusion that the Worker was not your employee for the purposes of the SGAA under the common law definition as defined under subsection 12(1) of the SGAA and therefore under this subsection you did not have an obligation to pay superannuation contributions on behalf of the Worker.

Detailed reasoning

Common law employee

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).

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.

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.

Relevant legislative provisions

Superannuation Guarantee Administration Act 1992 subsection 12(1)

Superannuation Guarantee Administration Act 1992 subsection 12(3)

Question 1

Was the Worker your common law employee as defined in subsection 12(1) of the SGAA for the quarters ended 30 September 20XX to 30 June 20YY inclusively?

Summary

The facts and evidence lead to the conclusion that the Worker was not your employee for the purposes of the SGAA under the common law definition as defined under subsection 12(1) of the SGAA and therefore under this subsection you did not have an obligation to pay superannuation contributions on behalf of the Worker.

Detailed reasoning

Ordinary meaning of employee under subsection 12(1) of the SGAA

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).

Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? Explains, when an individual is considered to be an 'employee' under section 12 of the SGAA. The question of whether someone is an employee is one of fact, and is determined by examining the terms and circumstances of the contract, in conjunction with the key indicators expressed in common law. The totality of the relationship must be considered to determine whether, on balance, the worker is an employee. No one indicator is in itself determinative of the relationship. These indicators are discussed below.

Terms and circumstances of the formation of the contract

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

When considering the intentions of the parties in forming the contract, the task is to decide what each party could reasonably conclude from the actions of the other. 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.

Control

The extent to which the engaging entity 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 lays not so much in its actual exercise, but in the right of the employer to exercise it.

Does the worker operate on his or her own account or in the business of the payer?

If the worker's services are an integral and essential part of the business that engages them (under a contract of service), 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 (under a contract for services), they are an independent contractor. 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.

'Results' contracts

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.

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. Payment is often made for a negotiated contract price, as opposed to an hourly rate.

Whether the work can be delegated or subcontracted

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.

Risk

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

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.

Provision of tools and equipment and payment of business expenses

A worker/payee who has been integrated as an employee into the business is more likely to be provided with the tools and equipment required to complete their 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.

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 they will seek separate payment for such expenses from the principal.

In your case

The Principal first engaged the Worker as an individual sole trader in 20ZZ. As evidenced in the invoice sent to the ATO the Worker had an ABN and as per the supplied representative contract the Worker prepares the invoices and are provided to the Principal and the payments are made to the Worker's account.

The Worker's ABN status and GST registration all publicly available information, were active at the time a contract was made with the Worker.

Although there is no written contract between the parties provided, the provision of and evidence shown in the invoices from the payments made to the Worker's account, the ability to delegate, the ability to negotiate the rates for payments as well as other tests addressed below, qualify the engagement and the working arrangement outlined in the representative contract supplied by the Principal, as an agreement between a principal and a worker.

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

The Principal engages contractors for installation services. The Principal has recommended instalment guidelines for various products however does not require or check that these guides have been followed. In the Worker's case the Principal only requires that the installations are completed to required industry standards.

The Worker can indicate their availability to and their capacity to perform the work on any agreed day, and can accept installations in line with their capacity. The Principal does not mandate that the Worker attend work on any particular days or how long they should work on any particular day.

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

A job sheet is provided to the Worker, with jobs on the sheet scheduled to be completed at some point during the day. If the jobs are booked the contractor can communicate directly with the client to change the time if the booking does not suit. The Worker is free to turn down a job and is free to decide where to go and what order to do the jobs.

The Worker has an ABN and is registered for GST and provides invoices to the Principal. The Worker is not required to wear a uniform and their utility does not display the company's logo, nor do they have the company's business cards. The Worker has no entitlement to annual leave sick leave, long service leave or superannuation. Overall, we are satisfied that the integration test in isolation is more in favour of the notion that the relationship between you and the Worker was one of principal and independent contractor.

The Worker is paid for a result on a piece meal basis, on installation. The Worker can and does negotiate rates that are more than the standard price list, if the costs of consumables increase or the job is a unique to a particular situation.

The Worker is not remunerated for time or the method of execution of the work. It is instead by reference to the result. For example the Worker has a fixed price or negotiated rate for installation of certain products, and the Worker will be paid for the installation of the product, not the time it takes to install the product. Overall, we are satisfied that the results test in isolation is more in favour of the notion that the relationship between you and the Worker is one of principal and independent contractor.

The Worker can choose to delegate any installation jobs at their own discretion without the necessity to obtain approval from the Principal. Where the Worker chooses to delegate to another party, the Worker is responsible for the workmanship of this party. Where any job or part of any job is delegated, the Worker invoices the Principal for the agreed rates and is then solely responsible for remunerating the other party.

The Principal understands that the Worker in the past has in fact delegated many installation jobs.

Overall, we are satisfied that the delegation test in isolation is more in favour of the notion that the relationship between you and the Worker was one of principal and independent contractor.

The Worker is responsible for the rectification of any defects or errors in the work. If a customer queries the workmanship or the quality of the installation job, the Principal would request that the Worker investigate and rectify the problem in their work, in their own time and at their cost.

The Worker is responsible for their own insurances and the Principal undertakes periodic checks to insure that these are held. Ultimately it is the Worker's responsibility to ensure that these are maintained Overall, we are satisfied that the risks test in isolation is more in favour of the notion that the relationship between you and the Worker is one of principal and independent contractor.

The Principal states that the Worker is required to have their own vehicle, in order for them to travel to each job location. The Worker must also supply the screws, glues silicon etc. to assist with installation as well as their own tools Overall, we are satisfied that the capital test is more in favour of the notion that the relationship between you and the Worker was one of principal and independent contractor.

Our conclusion regarding the common law definition of employee

In summary and under subsection 12(1) of the SGAA, when looking at the relationship as a whole, the facts and evidence provided indicate that the Worker was a contractor.

The facts and evidence provided indicate that the Worker was not integrated into the Principal's business as they worked away from the Principal's business and was paid for a specific result. The Worker provided their own vehicle tools and insurances and was able to delegate their work.

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

Employee under subsection 12(3) of the SGAA

The expanded definition of employee within subsection 12(3) of the SGAA, which 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.

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

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

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.

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.

In this case, based on the facts and evidence provided, the Worker provided their skills not through their labour but was instead remunerated for producing a result. The facts and evidence confirm this is as well as the fact that the Worker has to pay for and rectify any mistakes in their work.

The individual must perform the duties themselves

As previously discussed, the facts and evidence indicate that the Worker does have the right to delegate work to others.

Not paid to achieve a result

As noted above, the Worker invoices the Principal for each job undertaken and this in conjunction with other relevant facts and evidence indicate that the Worker is paid for a result

Our conclusion regarding the expanded definition of employee

Accordingly, the facts and evidence indicate that the Worker does not meet the extended definition of employee as set out under subsection 12(3) of the SGAA.

Conclusion

Upon considering all the available facts and evidence we are satisfied the Worker was not your employee for the purposes of the SGAA under either the common law or the expanded definition provided under subsection 12(3) of the SGAA. Accordingly you did not have an obligation to pay superannuation contributions for the benefit of the Worker under the SGAA.

We followed these ATO view documents:

Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee?