Edited version of administratively binding advice

Authorisation Number: 1052160750132

Date of advice: 29 September 2023

Advice

Subject: Status of the worker

Question1

Are X (the Workers) considered employees of Y?

Answer

No. They are not considered employees under the common law.

Question2

Does Y have a superannuation guarantee charge liability for payments made to the Workers?

Answer

Yes.

This advice applies for the following periods:

1 July 2020 to 30 June 2024

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

1.     The Z Program (the Program) is administered by Y. The program commenced in the 2000s.

2.     The Program links the Workers with people in Y's relevant facilities.

Induction handbook

3.     The Induction Handbook is provided to every Worker who participates in the Z program. It sets out the Worker's role and responsibility, the protocol to be observed whilst in the relevant facilities and the administration of the program including fees and reimbursements. Relevantly, the induction handbook provides:

a. How appointments are made.

b. Resignations: if a Worker wishes to resign they can do so at any time, though it is encouraged that a suitable replacement be nominated prior to ceasing participation in the Program.

c. Obligations: the Workers will be subject to Y's Code of Conduct whilst conducting the program business within a relevant facility.

d. Details of the role and function.

e. Frequency of tasks: the Workers are required to work in the facility a minimum of X times per year to carry out the functions listed above. The Workers may also be requested at interval times to assist with other related business.

f. Duration of tasks: The duration of the task is facilitated over a several-day period with an additional day either side allowing for travel from residential location to relevant facility location and the return travel from relevant facility location to residential location. Other task duration will differ depending on the circumstances.

g. Protocol to be observed: The handbook sets out the protocol that the Workers will follow when attending a relevant facility.

h. Safety and security: The handbook provides that the Workers are subject to the same safety and security requirements as everyone else who enters the facility.

i. Inquiries and complaints: The handbook sets out the following protocol the Workers are to follow when receiving and responding to inquiries and complaints:

•         When dealing with inquires and complaints Workers should:

­   Clarify details of the inquiry or complaint.

­   Ascertain what action previously has been taken or information provided in response to the inquiry or complaint.

­   Deal with an inquiry or compliant by bringing it to the attention of the appropriate senior staff of Y

­   Record details of inquiries or complaints.

j. Privacy and confidentiality:

­   Any information gained by a Worker during the course of their duties should be treated with respect and confidentiality to protect the privacy and safety of others and for the running of the operations of Y.

­   Any matter raised with a Worker is confidential. A Worker does not have to disclose the content of any inquiry or complaint discussed with them to anyone else other than if they wish to do so to resolve an issue.

­   ...

­   However, a Worker should be aware that if any information is disclosed to them that would affect the safety or well-being of people in the facility, or the security of the facility then the Worker has a "duty of care" to disclose that information to the appropriate authority.

k. The fees: the Workers will be paid a fee of $XXX per task in the relevant facility along with travel allowance for the period spent away from their residential address.

l. Motor vehicle allowance: the Workers who use their own motor vehicle for transport to and from their residence to their relevant facility are entitled to be paid a motor vehicle allowance. The rate and conditions of the allowance are the same as that paid to Y's employees and is in accordance with their standard 'Terms and Conditions'. An accurate record of dates and distances travelled must be kept for claims. The vehicle needs to be comprehensively insured. The allowance is: Employee: $0.XX per km.

All costs associated with accommodation and travel transport whilst travelling for the Program's business is covered by the Program.

4.     The final page of the Induction Handbook is an acknowledgement of receipt for the Workers. Here, a Worker signs their name in an acknowledgment that they have received a copy of it and will make themselves aware of their obligations under the Code. They also agree to discuss with their manager/ senior officer if they are unclear at any time of the requirements of the Code or consider that they may be at risk of breaching the Code.

Additional information on the Program

5.     Y has confirmed that the Workers are paid $XXX per day they are on a task rather than $XXX per task.

6.     Accommodation is booked and paid directly to accommodation providers through the allocated Program budget; accommodation payments are not made to the Workers.

7.     Y confirmed that the Workers do not have any responsibilities as part of the Program that they are not remunerated for.

8.     Y confirmed that the Workers do not submit timesheets or provide a tax invoice in order to receive payment for their tasks. "Tasks are scheduled in advance and payment is made following completion on the day of the task by using Y's System to process the travel, accommodation, travel allowance and consultant fee ($XXX per day of task). Should a Worker be unable to attend a scheduled task "the monies are returned to Y".

9.     If a Worker attend a meeting that is related to the Program's business outside of a task in the relevant facility they are also paid the flat rate of $XXX.

10.  The Worker no longer signs the last page of the handbook but instead sign a Program code of conduct, which refers to 'the Code of Conduct', notwithstanding that 'the Code of Conduct' is only binding on Y's employees.

11.  Under 'the Code of Conduct', the Workers agree to comply with the following obligations:

•         discharge their responsibilities with due care and diligence;

•         act openly, honestly and in good faith in the interest of the Program;

•         not use their position to benefit themselves or any other person, or to cause detriment to the Program or any person;

•         maintain confidentiality of information;

•         disclose any personal, professional, financial or commercial interest where a conflict of interest arises;

•         disclose any self-harm information that may cause harm to a person or other people;

•         not take prohibited items to the facility and

•         attend all meetings scheduled as part of the Program, or advise the Manager if unable to attend.

12.  The Code of Conduct also states:

The Workers must recognise their responsibility for maintaining a reputation of integrity and propriety in all respects and agree to adhere to this Code of Conduct and the Y's Code of Conduct

GENERAL PRINCIPLES

The Workers shall observe the highest possible standards of ethical conduct so as to support the continuance of the Program and observe the highest standards of behaviour and accountability.

The Workers will avoid any action, or inaction, which could in any way impair Y's capacity to carry out its functions, or compromise it's standing. The Workers must foster a reputation for integrity, fairness, honesty and independence.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1992, subsection 12(1)

Superannuation Guarantee (Administration) Act 1992, subsection 12(3)

Reasons for decision

Question 1

Are X (the Workers) considered employees of Y?

Summary

The Workers are not considered employees under the common law.

Detailed reasoning

Intention to create a legal relationship

13.  The employment relationship with which the common law is concerned must be a legal relationship.[1] The relationship between an employee and an employer is a contractual one, often referred to as a contract of service.

14.  The mutual intention to create legal relations is an essential requirement in the formation of a contract.[2] To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain, and, unless recorded as a deed, there must generally be real consideration for the agreement.[3]

15.  The search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties.[4] Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.[5]

16.  The majority judgement of the High Court in Ermogenous cautioned against the use of "presumptions" in the context of intention to create legal relations.[6] In the history of this case, references were made to "the usual non-contractual status of a priest or minister" and factors which "generally militate against" a finding of intention to create legal relations, which in practice can make it difficult to find that there was a contract of employment in this case, "distorting the proper application of basic principles of the law of contract".[7]

17.  The majority found that the Industrial Magistrate had not made an error in this case and had examined all of the objective circumstances which bore on whether the parties intended to make a contract, as distinct from an arrangement binding only in honour.[8]

18.  Whilst there is no legal definition of 'volunteer' for tax purposes, a volunteer does not work under a contractual obligation for remuneration and would not be an employee or independent contractor. Volunteers can be paid in cash and/or be given non-cash benefits. These payments can be given various descriptions, including 'honorariums' or 'gratuities'. An 'honorarium' is either an honorary reward for voluntary services, or a fee for professional services voluntarily performed. A 'gratuity' is not defined in the Income Tax Assessment Acts and thus takes its ordinary meaning.

Application

19.  We cannot presume that the Workers are not employees of the Y but instead must look at the documents underlying their relationship.

20.  In this case, the Workers are provided with a copy of the Handbook and sign the Code of Conduct. These two documents set out the obligations and expectations between the Workers and Y.

21.  The Handbook prescribes the role of a Worker and their responsibilities in Y which includes how a Worker will be appointed, how they resign and their obligations when attending a relevant facility. The language used in the Handbook goes beyond a volunteer relationship as there are expectations placed on the Workers in terms of the frequency and duration of visits to relevant facilities.

22.  Further, the Handbook provides that the Workers will be paid $XXX per visit, however this term was varied by conduct and the Workers are paid $XXX per day. The language of the Handbook makes it clear that the Workers "will be paid" and "all costs associated with accommodation and travel transport whilst travelling for Program business is covered by the Program". Further, the rate and conditions of the travel allowance provided to the Worker is the same as that paid to Y's Employees. The nature of the language used around the program fees, indicates that there is an obligation on the Y to remunerate the Workers in accordance with the terms prescribed in the Handbook. This in turn, creates an expectation of payment on behalf of the Workers. We consider that the Workers would be able to rely on the Handbook if a pay dispute arose with Y.

23.  Lastly, the Workers are required to comply with the Code of Conduct which sets obligations on the Workers, including to perform their role with due diligence and skill and to attend all meetings scheduled as part of the Program or advise if they are unable to attend. The fact that the Workers sign this Code of Conduct in recognition of their obligations, indicates an intention to create a legal relationship between the parties.

24.  The Handbook and Code of Conduct set out the relationship between the Workers and Y. The language that is used in these documents, indicates an intention to create a legal relationship. The Workers agree to perform their role in exchange for remuneration from Y. There is an expectation that the Workers will be paid for each day they work as a worker for Y. These expectations and obligations set a Worker's role apart from a typical volunteer relationship where there is no expectation of payment. We find that the Workers are not volunteers of Y.

Employee or contractor

25.  The term 'employee' is not defined in the Superannuation Guarantee (Administration) Act 1992 (SGAA). As such, the term 'employee' has its ordinary meaning.

26.  The leading case outlining the principles governing the ordinary meaning of 'employee' is Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contacting Pty Ltd[9] (Personnel Contracting). The majority of the High Court in Personnel Contracting confirmed that whether a worker is an employee of a putative employer is a question of fact to be determined by reference to an objective assessment of the totality of the relationship between the parties, having regard only to the legal rights and obligations which constitute that relationship.[10]

27.  At its core, the distinction between an employee and an independent contractor is that:

a.    an employee serves in the business of an employer, performing their work as a representative of that business

b.    an independent contractor provides services to a principal's business, but the contractor does so in furthering their own business enterprise; they carry out the work as principal of their own business, not a representative of another.[11]

28.  The various employment indicia established by the Court aid in answering this question. Common law indicia include the extent of integration of the worker into the business, the level of control exerted by the putative employer, whether the worker is able to delegate, whether the remuneration is for a specified result, whether the worker uses their own tools and equipment, whether either party generates goodwill and the level of risk borne by each party. Importantly though, the indicia are not to be applied as if they are a mechanical checklist.[12]

29.  Where the worker and the engaging entity have comprehensively committed the terms of their relationship to a written contract and the validity of that contract has not been challenged as a sham nor have the terms of the contract otherwise been varied, waived, discharged or the subject of an estoppel or any equitable, legal or statutory right or remedy, it is the legal rights and obligations in the contract alone that are relevant in determining whether the worker is an employee of an engaging entity.[13] However, evidence of how a contract was actually performed may be considered for other purposes consistent with general contract law principles, including to demonstrate that a subsequent agreement has been made varying, waiving, or discharging one or more of the terms of the original contract.[14]

Control

30.  An employer is usually able to control how, where and/or when its employee performs their work. The importance of control in this context lies not in its actual exercise, but rather in the contractual right of the employer to exercise such control.[15]

31.  Where the main operating activity of the business is the supply of labour or a service of some kind, often a critical element of the business is the need to retain control over that labour or the workers providing the service. This was emphasised by Kiefel CJ, Keane and Edelman JJ in Personnel Contracting:

"... the existence of a right of control by the putative employer over the activities of the putative employee serves to sensitise one to the subservient and dependent nature of the work of the employee, so as to assist in an assessment of whether a relationship is properly to be regarded as a contract of service rather than a contract for services."[16]

32.  A term in a contract that purports to confer a right to control must be interpreted in the context of the broader contract and the services being provided. A contract may afford an employer a different kind of control, such as control over how long a casual worker can work, or the clause may allow 'reasonable direction' as distinguished from a true right to control a worker.[17]

Application

33.  Under the Code of Conduct the Workers agree to discharge all of their responsibilities with due care and diligence.

34.  The Handbook states that the Workers are required to be in the relevant facility a minimum of X times per year,[18] however information provided by Y indicates that this term was varied and this is not a true requirement on the Workers.[19] Y advised that there are many variables as to why a worker may not be able to attend for a minimum of X times per year.

35.  Y has also advised that a schedule of tasks is drafted each calendar year, which is provided to stakeholders, including the Workers, for feedback and review.[20] However, these dates may change due to circumstances outside their control including bad weather, operational matters from XX.[21]

36.  No clause within the Handbook truly affords Y control over how the Workers discharge their responsibilities. However, Y does determine where the Workers are performing their work.

37.  Given the lack of control Y purports to have over the Workers' role in terms of how the work is to be performed and when it is to be performed, we consider that this leans towards a finding that the Workers are independent contractors rather than employees of Y.

'Results' contracts

38.  Where the substance of a contract is to achieve a specified result, there is a strong (but not conclusive) indication that the contract is one for services.[22] The reference to a 'result' in this context is the performance of a service by one party for another where the first-mentioned party is free to employ their own means to achieve the contractually specified outcome. Satisfactory completion of the specified services is the 'result' for which the parties have bargained.

39.  The way in which a worker is remunerated for their services, and the process through which the parties determine this remuneration, can help to identify whether a worker is being engaged to serve in an engaging entity's business or has merely contracted with that business to produce a specified result.

40.  Consideration for a specified result is often a fixed sum paid on completion of the particular job[23] as opposed to an amount paid by reference to hours worked, activities performed or a commission.

41.  In contracts to produce a result, payment is often a negotiated price for the specified outcome. For example, in Stevens, payment was determined by reference to the volume of timber delivered[24] and in Queensland Stations Pty Ltd v Federal Commissioner of Taxation[25] it was a fixed sum per head of cattle delivered. A payment is more likely to be for a result if it bears little to no reference to the time spent working to produce the outcome

Application

42.  The Workers are paid a flat rate of $XXX per day while working with the Program. In addition, their travel and accommodation are covered by the Program. Workers can use their own motor vehicle for transport to and from their residence to their assigned facility and are entitled to be paid a motor vehicle allowance. The Workers will be required to keep an accurate record of dates and distances travelled for claims and the vehicle must be comprehensively insured.

43.  We consider that as the Workers are paid a flat rate per day plus for attendance at any meetings that leans towards a finding that the Workers are being paid for their labour. This is because they are providing their time at a set daily rate in order to perform their role at the Program. However, they are also being reimbursed for the use of their motor vehicle. We do not consider this factor points either way to an employee or subcontractor relationship.[26]

Ability to delegate or sub-contract work to others

44.  An unlimited, unfettered power to delegate or subcontract to others to perform the work is usually an indication that the worker is not an employee.[27] That is so even if the contractor actually does perform the work personally and had no intention of doing otherwise. In contrast, where a person is contractually required to personally perform the work, this points to the person being an employee. Personal service is generally seen as a critical feature of an employment relationship, whereas a contractor having the ability to utilise their own workforce is consistent with carrying out their own business.

45.  Some contracts may provide a "limited or occasional" power of delegation where the scope and operation of the power is narrow and the worker cannot exercise it unilaterally, for example because the engaging business needs to provide consent before a subcontractor is engaged. This factor is not necessarily inconsistent with an employment relationship[28], as the engaging business effectively has full control over who provides the services.

Application

46.  The Handbook and subsequent emails provided by Y are silent on whether a Worker can specifically delegate. We therefore find that a Worker does not have a right to delegate their responsibilities in the Program. We consider that this factor is not determinative either way and does not point towards a finding of an employee or an independent contractor.

Tools and equipment

47.  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 their work and be reimbursed for business expenses by the employer. This includes being given a reimbursement or allowance for the use of the worker's own assets such as a car.

48.  In comparison, independent contractors carrying on their own business often provide and pay for their own assets, tools, equipment, maintenance costs and other expenses.[29] Usually, they will have factored these costs in their overall fee or will seek separate payment for such expenses from the principal.

49.  However, there are situations where, having regard to the custom and practice 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.

Application

50.  In this case, the Workers are reimbursed for their car expenses they incur. The rate of reimbursement they receive is the same as is paid to Y's employees.

51.  Further, any accommodation a Worker requires is booked directly through Y, meaning a Worker does not incur any expenses when performing their role.

52.  We accept that the nature of the Worker role does not require them to use any tools and equipment, beyond a car to be able to travel to the relevant facility. The fact that they are reimbursed for this travel leans towards a finding that they are employees as they are treated the same way as other employees of Y.

Conclusion as to 'employee or contractor' under the common law

53.  We find that the contractual terms that establish the parties' relationship indicate that the Workers are independent contractors of Y. This is because Y does not have any significant right to control how the Workers perform their role; there are no set days for work and the Workers are consulted on the task timetable; there are no consequences if they are unable to attend a task due to other commitments.

54.  Therefore, the Workers are not employees of Y under subsection 12(1) of the SGAA.

Question 2

Does Y have a superannuation guarantee charge liability for payments made to the Workers?

Summary

Y has a superannuation guarantee charge liability for payments made to the Workers pursuant to the extended definition of employee under subsection 12(3) of the SGAA.

Detailed reasoning

55.  Subsection 12(3) of the SGAA was intended to extend the scope of superannuation beyond traditional employment relationships to take into account some independent contractors who principally provide their own labour to meet obligations under a contract.

56.  For a worker to be an employee under subsection 12(3) of the SGAA, three elements must be satisfied:

a.    there must be a contract (written or otherwise);

b.    which is wholly or principally for the labour of a person; and

c.     that person works under that contract.

57.  For the purpose of determining if a contract is wholly or principally for the labour of a person, it is useful to identify whether the terms of the contractual relationship indicate that:

a.    the individual is remunerated (either wholly or principally) for their personal labour and skills

b.    the individual must perform the contractual work personally (that is, where there is no right to delegate, or only a limited right), and

c.     the individual is not contracted to achieve a result.

Wholly or principally for the person's labour

58.  A person's labour can include mental and artistic effort, as well as physical toll.[30]

59.  The words 'wholly' and 'principally' take on their ordinary meaning. The Macquarie Dictionary defines the word 'wholly' to mean 'entirely; totally; altogether; quite.' To the extent that a contract is partly for labour and partly for something else (for example, the supply of goods, materials or hire of plant or machinery), it will only meet the provision if it is 'principally' for labour. The word 'principally' is defined by the Macquarie Dictionary as 'chiefly; mainly.'

Benefit derived by the putative employer

60.  The case of Dental Corporation v Moffet (Moffet) provides guidance as to determining whether the contract is wholly or principally for the labour of the individual engaged. Specifically, the question must be answered from the perspective of the person obtaining the benefit of the labour (i.e. the quasi-employer).[31]

61.  In Moffet, Perram and Anderson JJ considered that the Services Agreement provided Dental Corporation, the putative employer, with two sets of benefits:[32]

"... One related to Dr Moffet's personal services as a dentist, as a practice manager, as a consultant both in relation to the administration of the practice but also in relation to fees and as a maintainer of medical records (i.e. the 'Dentistry Services' contained in Sch 1). The other was his promise that the practice would achieve a minimum cash flow which was backed up by a right in Dental Corporation to reduce his monthly drawings by 50% until any shortfall was made good."

62.  Dr Moffet's obligation to provide personal services as a dentist and manager was 'for labour', whereas the promise to achieve the minimum cash flow was not.[33] The two benefits were so intertwined that they had to be dealt with together, where the requirement to provide minimum annual cash flows could not be met without Dr Moffet carrying out his services.[34] For that reason, the Services Agreement was, from Dental Corporation's perspective, wholly or principally for Dr Moffet's labour.[35] It was substantially for that purpose[36], notwithstanding that the contract also provided a secondary, non-labour benefit.

63.  As such the contractual relationship as a whole must still be considered to determine whether the legal rights and obligations in contract demonstrate an intention to wholly or principally engage labour to serve in the putative employer's business or to obtain a result.

Worker must perform the work personally

64.  Subsection 12(3) of the SGAA requires the contract to be for the worker's labour specifically. An unlimited, unfettered power to delegate or subcontract to others to perform the work is usually an indication that the worker is not required to perform the work personally.[37] That is so even if the contractor actually does personally perform the work and had no intention of doing otherwise. Even if a contract is "for labour", an unrestricted delegation power indicates that the contract is not for the worker's labour.

65.  Some contracts may provide a "limited or occasional" power of delegation where the scope and operation of the power is narrow and the worker cannot exercise it unilaterally, for example where the putative employer needs to provide consent before a subcontractor is engaged. The putative employer effectively has full control over who provides the services and the contract more clearly contemplates that it would primarily be the worker who does the work. Thus a limited delegation power may indicate that while the contract is not wholly for the worker's labour, it is still principally for their labour.

66.  True delegation is differentiated from situations where the worker has delegated tasks in a supervisory capacity or has asked another colleague to take an additional shift or responsibility where the worker is unable to work.[38] In these arrangements, the worker has merely organised a substitution or shared the workload. It is not the same as the freedom of an individual to subcontract or employ others to perform the work in their own business. A subcontractor is generally paid by the worker, reflecting that they work for the worker, whereas a substitute is usually paid directly by the putative employer, without the involvement of the worker.

67.  The case in On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) (On Call) entailed both of these circumstances. A purported power to delegate was found to be not any more than job swapping that can occur amongst casual employees, given the requirement that any replacement interpreter had to be on the register and approved by On Call.[39]

Person works under the contract

68.  The word 'work' in subsection 12(3) of the SGAA takes on its ordinary meaning. The Macquarie Dictionary defines 'work' as a verb to mean 'to do work, or labour; exert oneself.' Where a person has provided the agreed services in accordance with the contract, the person has worked under the contract.

69.  Where a person has a right to delegation and has in fact delegated their work to someone else, it is less likely that the person has worked under the contract.

Application

70.  In this case, we consider that there is a contract between the Workers and Y so the first element is met. As discussed above, this contract comprises of the Handbook and Code of Conduct plus the terms that we have acknowledged that have been varied by conduct.

71.  With respect to the second element, we are of the view that properly construed, the contract is principally for the labour of the Workers. The agreement specifically sets out the role and responsibility of the Workers when they visit relevant facilities and they are paid a daily rate for each day they visit a relevant facility. The Handbook, does state that the Workers are nominated by X[40] and that nomination reflects the X contact the Workers can provide to improve the X prospects of people in Y's relevant facilities. This is further recognised by the fact that when the Workers do want to resign, a subsequent Worker is required to be nominated. Therefore, it seems that the work provided by the Workers is of a kind that needs to be performed personally having regard to the nature of the contract and the subject matter of the Program, that right is personal in the sense that the identity of the Worker is material to the contractual relationship itself.[41] As such, the second element would be met.

72.  With respect to the third element, we consider that the Workers do not have a right to delegate and as such have worked under the agreement.

Conclusion as to subsection 12(3) of the SGAA

73.  We find that the Workers are employees under subsection 12(3) of the SGAA. Therefore, Y has a superannuation guarantee charge liability for payments made to the Workers.

Conclusion

74.  The Elders are not employees under subsection 12(1) of the SGAA, but are employees under subsection 12(3) of the SGAA. As such, superannuation guarantee obligations will be required to be met.

[1] Personnel Contracting at [44].

[2] Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at [457].

[3] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [24].

[4] Ibid at [25].

[5] Ibid.

[6] Ibid at [26].

[7] Ibid at [27].

[8] Ibid at [44].

[9] Personnel Contracting [2022] HCA 1.

[10] Personnel Contracting at [61] and [172-173].

[11] Marshall v Whittaker's Building Supply Co [1963] HCA 26 at [5], per Windeyer; Colonial Mutual Life Assurance Society Limited v Producers and Citizens Co-operative Assurance Company of Australia Limited [1931] HCA 53; (1931) 46 CLR 41 at [48].

[12] Personnel Contracting at [34].

[13] Personnel Contracting at [43], [59] and [173]; WorkPac Pty Ltd v Rossato [2021] HCA 23 at [56-57] and [63].

[14] Personnel Contracting at [55], [59], [173] and [185-189].

[15] Zuijs v Wirth Bros Pty Ltd [1955] HCA 73; 93 CLR 561 (Zuijs) at [571-573]; Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens) at [9] and [15-20], per Mason J.

[16] Personnel Contracting at[73].

[17] ZG Operations at [69] and [105].

[18] The Handbook at p.X.

[19] Email from Y dated X X 202X.

[20] Ibid.

[21] Ibid.

[22] World Book (Australia) Pty Ltd v Commissioner of Taxation (1992) 92 ATC 4327 at [4334], per Shelley JA.

[23] Neale v Atlas Products (Vic) Pty Ltd [1955] HCA 18; 94 CLR 419 at [424-425].

[24] Stevens at [10].

[25] [1945] HCA 13; (1945) 70 CLR 539 at [542].

[26] JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 at [45].

[27] Australian Mutual Provident Society v Chaplin and Anor (1978) 18 ALR 385 at [391]. See also Neale (DFC of T) v Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at[425].

[28] Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515, cited with approval in On Call at [283].

[29] Stevens at [12].

[30] Deputy Commissioner of Taxation v Bolwell (1967) 1 ATR 862 at 873.

[31] Moffet [2020] FCAFC 118 at [96-97].

[32] Moffet at [100].

[33] Moffet at[101].

[34] Moffet at[103].

[35] Moffet at [104].

[36] Ibid.

[37] Australian Mutual Provident Society v Chaplin and Anor (1978) 18 ALR 385 at [391]. See also Neale (DFC of T) v. Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 (Neale) at [425].

[38] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 (On Call) at [105] and [253].

[40] The Handbook at X.

[41] Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40.