Edited version of private advice

Authorisation Number: 1051628354564

Date of advice: 3 April 2020

Ruling

Subject: Employee verse contractor

Question 1

Are the workers considered your common law employees under subsection 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA)?

Answer

Yes. Refer to 'why we have made this decision'

Question 2

Are the workers your employees under subsection 12(3) of the SGAA by virtue of working under a contract that was wholly or principally for their labour?

Answer

Yes. Refer to 'why we have made this decision'

Relevant facts and circumstances

We considered these to be the relevant facts

·   The company is a not for profit organisation.

·   The company's objective is to increase the efficiency and effectiveness of medical services and care.

·   The company has a board of individuals that meet and offer their expertise on various committees and advisory groups.

·   The company hires individuals with the necessary expertise/experience to work on a project within a timeframe.

·   Individuals sign an agreement to attend all relevant meetings.

·   Individuals are paid an hourly rate for their attendance. If they do not attend meetings they do not get paid.

·   Individuals can resign at any time.

·   The company has two ongoing committees.

·   Committee members meet every 1-3 months and meetings go for 2-3 hours. The purpose of the committee and its members is to provide influential advice and recommendations from the community perspective to the company to help improve how the business runs.

·   The committees are a requirement.

·   The members have a written contract detailing the terms and conditions.

·   The contract details roles, responsibilities payments and entitlements.

·   The contract states intellectual property developed during the course of the contract is to remain property of the company.

·   It also states members will attend all meetings, and if they do not attend multiple occasions their appointment may be terminated.

·   There is a conflict of interest form and procedure.

·   The Chair is appointed for a period of 12 months at a time.

·   Other members are appointed a for a two year period.

·   Remuneration is either an hourly rate or daily rate and remains the same for weekdays or weekends. Different members have different rates.

·   Statement by a supplier forms are completed for members without an Australian business number (ABN).

·   The company does not issue PAYG summaries to the members.

·   Members are subject to performance reviews annually.

·   The executive committee are not part of this request.

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

The facts and evidence suggest that the workers are your employees for the purposes of the SGAA under both the common law test and the extended definition as set out in subsection 12(3) of the SGAA. You therefore have an obligation to pay superannuation contributions on behalf of the workers.

Detailed reasoning

The SGAA requires 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).

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? 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 extended 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 extended definition of employee under subsection 12(3) of the SGAA.

Question 1

Are the workers your common law employees under subsection 12(1) of the SGAA?

Common law employee

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.

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, it must be determined 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.

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.

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.

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.

Consideration may also be given to whether the worker could be expected to generate goodwill in their own right,

'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.

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.

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 the principal, as the principal may not want an unknown worker to be working on their site or who may not be suitably qualified.

Therefore, under a contract for services, the emphasis is on the performance of the agreed services (achievement of the 'result'). 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.

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 company is a not for profit organisation whose purpose is to increase the efficiency and effectiveness of medical services provided to patients, and improving the coordination of care. The company has two ongoing committees that meet 1-3 monthly where members provide influential advice and recommendations during the meeting.

The members issue invoices to the company to be paid and if they don't have an ABN (i.e. the community members) they complete a statement by supplier form.

Generally, where a 'worker' submits 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.

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'. An individual may have an ABN and run a business but be an employee of another entity in a different role.

A worker also doesn't have to be offered permanent work to be an employee.

Both committees are there to provide input to the company. Individual members have their set role in meetings to help improve the operation of the business, and are not there to achieve a specific result. They get paid for all hours they attend.

Each member is contractually required to personally perform the 'work', this is an indication that the person is an employee. They are unable to delegate and if they don't attend a meeting, they don't get paid.

Committee members are not running their own business; they are providing input to the company via a community and professional perspective and the community members not using clinical skills. They are an integral and essential part of the company.

The clinical committee members may have ABNs and be using clinical experience in their role in the committee but they are still considered employees in this role, even if they are in business outside of the committee. They are not working within their own businesses in their role in the committee, they are there to improve the company's business. They are paid for all work done, not to achieve a result and are unable to delegate.

Our conclusion regarding the common law definition of employee

With respect to the relationship between you and the workers, the facts and evidence provided points to the conclusion that the workers are common law employees of the principal.

Question 2

Are the workers your employees under subsection 12(3) of the SGAA?

Extended definition of employee for SGAA purposes

The extended 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.

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.

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

The individual must perform the duties themselves

As discussed earlier, we consider that the facts and evidence indicate that the workers do not 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 not paid for a result.

Our conclusion regarding the extended definition of employee

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

Conclusion - overall

After considering all available facts and evidence relating to the working relationship between you and the workers, the Commissioner concludes that the worker meets the definition of employees, for the purposes of the SGAA under both the common law test and extended definition as set out in subsection 12(3) of the SGAA. Therefore you do have an obligation to provide superannuation support to workers in accordance with the SGAA.