Edited version of your written advice

Authorisation Number: 1013036104590

Date of advice: 8 July 2016

Advice

Subject: Superannuation guarantee

Question 1

Are the workers, when engaged by the principal, considered to be a common law employees as defined in subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA)?

Advice

No. Refer to 'Reasons for decision'

Question 2

Are the workers employees of the principal by virtue of subsection 12(3) of the SGAA?

Advice

No. Refer to 'Reasons for decision'

The arrangement commenced:

After 1 July 2014

Summary

The facts and evidence lead to the conclusion that the workers were not your employees 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 do not have an obligation to pay superannuation contributions on behalf of the workers.

Relevant facts and circumstances

The advice is based on the facts stated in the description of the scheme that is set out below. If the circumstances are significantly different from these facts, this advice has no effect and you cannot rely on it.

The fact sheet has more information about relying on ATO advice.

You applied for a private ruling to determine whether the service provided by the workers, is considered to be performed as employee or contractor and obligations in respect of superannuation guarantee in respect of the workers.

The workers use specific establishments including the principal's establishment to provide a service in relation to the performance of specific tasks.

The workers provide these services for specific tasks at an agreed rate, depending on time of experience. The workers are engaged to perform the work at your establishment.

The workers can and do delegate the specific tasks to others.

The workers are engaged through word of mouth, emails/Facebook and through the relevant community.

Relevant legislative provisions

Superannuation Guarantee Administration Act 1992 Subsection 12(1)

Superannuation Guarantee Administration Act 1992 Subsection 12(3)

Reasons for decision

Summary

The workers, when engaged by the principal, are not considered to be a common law employees as defined in subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA) for the period 1 July 2014 to 30 June 2017 inclusively?

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.

1. Terms of engagement

The fundamental task with respect to the terms of engagement test is to determine the nature of the contract between the parties. For this test, we must 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.

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.

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 the case:

In the Questionnaire the principal advised that they engaged the workers by word of mouth, email/Facebook and through the relevant community.

There is no written agreement, everything is verbal. The workers are paid a general average and then it is reviewed on a case-by-case basis.

The actions taken for terminating the workers depends on the scenario and they are not dismissed immediately. Mentoring is available for underperformance. There are other factors determining this, such as closely monitoring the performance, perhaps a reduction in pay, as the pay and specific task rate is performance based.

Paid breaks, allowances, sick leave etc. are not applicable to the workers.

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 workers was one of principal and independent contractors.

2. Control

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.

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. A high degree of direction and control is common in contracts for services because the payer has the right to specify in the contract how the services are to be performed. Similarly, the right to supervise how the work is to be performed does not constitute a contract of service where the essence is one of independent contractor.

Paragraphs 36 and 37 of Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? provides 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.

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 the case:

The following information is relevant to your working relationship with the workers and the extent to which you had the right to control the manner in which the work is performed.

You provided details in the Questionnaire about the degree of control exercised over the workers.

The workers are not provided with training as everyone is fully certified in their skills. Development advice is provided through feedback from other workers performing the same tasks

There are no scheduled jobs or tasks. The workers have administration tasks. They have to be available 30 min before and after the tasks are completed and for time to do their paperwork. They also need to get there earlier to do other tasks such as sorting through the equipment used in these tasks before and after the tasks are completed.

The workers that work for the principal also work for themselves and others. There is no supervision of the workers except informally. The refusal of particular tasks is not applicable to the workers.

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

3. Integration

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.

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.

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.

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.

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 a 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.

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.

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…

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 you, this suggests an employer/employee relationship.

It is therefore necessary to consider whether the worker is providing services as part of your 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 the case:

The workers can work for other people and themselves. The workers have control as to how they instruct the recipients of their services.

There are no one-to-one meetings i.e. there are no organised meetings just informal catch-ups.

The workers are not provided with training as everyone is fully certified in their skills. Development for the other workers is provided through feedback on them from the other workers.

There are no uniforms. Although back-up of equipment is available the workers usually provide their own equipment.

Hours of work are somewhat fluid. The workers can express their preference for certain days/hours.

The workers are able to delegate work to others. It is the worker's responsibility to coordinate delegation with other workers. Whilst no formal contracts are in place, this is an agreed procedure that is followed. The principal doesn't know who actually invoices the principal for the work. The principal may find out later down the track but this is not known to the principal when the invoices are received.

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

4. 'Results' test

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.

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.

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.

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) (Roy Morgan case), 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.

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 you, this would be consistent with operating their own business. Nonetheless, the issuing of invoices is not necessarily determinative of the nature of the relationship.

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 the case

The workers are not paid per hour. The workers are paid an agreed set rate per each task and the rate is based on years of experience.

The workers have the ability to negotiate their pay and conditions on a case-by case basis and this can also depend on performance and the number of recipients.

The workers can arrange a substitute to deliver the tasks. The principal doesn't know who actually invoices the principal for the work. The principal may find out later down the track, however this is not known to the principal when the invoices are received.

Although back-up of equipment is available the workers usually provide their own equipment.

There is no reimbursement of equipment etc. The workers are only paid for the providing the tasks.

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

5. Delegation

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.

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.

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. 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...

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.

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

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 [you] 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.

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.

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. 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.

Application of the common law to your case

The workers have no set hours and are able to delegate work to others. It is the worker's responsibility to coordinate required replacements with the other workers. Whilst no formal contracts are in place, this is an agreed procedure that is followed.

Overall 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 contractors.

6. Risk

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.

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.

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.

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.

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 the case

The workers provide their own ABN and invoices and have their own insurance. The workers are expected to hold their own insurance and as such take full responsibility for any injuries or risks associated with their work. All public liability claims would be directed to the Worker.

Information provided by the principal shows that the principal's insurance extends to cover sub/contractors for public liability.

The workers usually provide their own equipment. There is no reimbursement of equipment etc.

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

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

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.

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 you.

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

There are no uniforms. The workers use the principal's establishment but also the establishments of others, however the workers provide all their own equipment. Although back-up of equipment is available the worker usually provides their equipment.

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

Our conclusion regarding the common law definition of employee

In considering the relationship between you and your workers under 7 common law factors we have found that the factors in all of the tests were more in favour of the notion that the relationship between you and the worker was one of principal and independent contractors. Consequently we consider on that the results under section 12(1) of the SGAA are that the relationship is one of principal and independent contractors.

As the facts and evidence indicate that the worker was not your employee under common law, we are required to consider the expanded definition of employee under subsection 12(1) of the SGAA.

Question 2

Was the worker an employee of you by virtue of subsection 12(3) of the SGAA?

Summary

The worker was not an employee of you by virtue of subsection 12(3) of the SGAA.

Detailed reasoning

Expanded definition of employee for SGAA purposes

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 assessing whether a person has been remunerated wholly or principally for labour and skills the ATO view is that, in the context of subsection 12(3) of the SGAA the word 'principally' assumes its commonly understood meaning that is, chiefly or mainly.

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.

Based on the available facts and evidence, we consider that the workers were paid primarily for their own labour and skills.

There is no evidence that their remuneration was intended to cover any more than this as they were not required to supply any materials and had no significant ongoing expenses.

The individual must perform the duties themselves

As discussed earlier, we consider that the facts and evidence indicate that the workers did have the right to delegate work to others.

Not paid to achieve a result

As discussed earlier, we consider that the facts and evidence indicate that the workers are paid for a result.

Our conclusion regarding the expanded definition of employee

Accordingly, as the workers do not satisfy all three components of the expanded definition under subsection 12(3) of the SGAA, they do not meet the expanded definition of employee as set out under subsection 12(3) of the SGAA.

Conclusion - overall

Upon considering all the available facts and evidence, the Commissioner considers that with respect to work performed for you, the workers do not meet the definition of an employee for the purposes of the SGAA under either common law or the expanded definition provided under subsection 12(3) of the SGAA. Accordingly you do not have an obligation to pay superannuation contributions for the benefit of the workers under the SGAA.