Edited version of Private advice

Authorisation number: 1052190823984

Date of advice: 21 December 2023

Ruling

Subject: Superannuation - common law employees

Question 1

Are the workers common law employees of the Principal under subsection 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) for the period 1 July 20XX to 30 June 20XX?

Answer

No.

Question 2

Are the Workers employees of the Principal in accordance with subsection 12(3) of the SAGG for the period 1 July 20XX to 30 June 20XX?

Answer

No.

This advice applies for the following periods:

1 July 20XX to 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

The Principal operates a business in which it agrees to provide comprehensive work related services to clients at residential and commercial premises.

The Principal charges a fixed monthly fee to its clients for the services. The amounts of the fee are based on a number of factors, including:

a)    The scope and nature of any consulting provided by the Principal as to the client's work needs; and

b)    The volume of physical work required to be undertaken.

The Principal employs individuals to undertake work for the clients. The Principal also engages independent contractors to undertake work for the clients.

The independent contractors engaged by the Principal comprise a mixture of individuals (the Workers), partnerships, and companies.

The Principal seeks out prospective Workers through word of mouth and adverts in newspapers.

The criteria used by the Principal when selecting a suitable Worker include:

a)    Whether the Worker has a good reputation and track record;

b)    Whether the Worker has specific skills required for the job;

c)    Whether the Worker is available to do the job;

d)    Whether the Worker has available staff;

e)    Whether the Worker is considered to be able to complete the work in the timeframe required and to the quality expected by the client; and

f)    Whether the Worker's fees are considered reasonable.

Prior to engagement of a Worker, a senior manager has a meeting with the prospective Worker in which:

a)    The Principal and the Worker negotiate the price to be charged by the Worker; and

b)    The Principal explains the expectations of the quality of the services to be performed.

The Principal and the Worker then enter into a formal written contract.

The relevant terms and circumstances of the engagement of the Worker by the Principal are as follows:

a)    Upon engagement the Principal is liable to pay the Worker in accordance with the contract;

b)    The Principal pays the Worker an agreed lump sum per job. This amount is paid whether the Worker takes longer or less time to finish a job;

c)    The Worker's fees are paid on a regular basis provided an invoice has been received and verified by The Principal. Payments are usually made each fortnight;

d)    Workers are entitled to sub-contract a job. Permission to sub-contract is not required from the Principal as the Worker is ultimately responsible for the work and the Worker will not receive payment if the task is not completed in accordance with the agreement. The Worker is responsible for paying any sub-contractor who works for them;

e)    Workers are free to decline to undertake any work. There is no requirement for the Worker to give notice of termination should they wish to not undertake work in the future;

f)     The Principal does not provide any uniforms or identification badges;

g)    All Workers must provide an Australian Business Number to the Principal before payment is made;

h)    Following an initial introduction by the Principal, the Worker and the client will negotiate between themselves any adjustment to the time in which the works are to be conducted;

i)    Workers are to hold relevant public liability and worker's compensation insurance policies with copies of the policies to be given to the Principal prior to any work being undertaken by the Workers; and

j)    The Workers supply all their own materials and equipment, that is, work products, work equipment and own mode of transport with no reimbursement or allowance paid by the Principal for any expenses.

The Principal provides the following further information in relation to the arrangement:

a)    None of the Workers work exclusively, or even primarily for the Principal. The Workers concerned provide the same services to other businesses.

b)    The Workers are engaged by the Principal in cases where demand for cleaning services exceeds what can be undertaken by the Principal's employees. If there is a decline in demand from the Principal's clients, the Workers will not be engaged.

c)    Workers work, on average, 6 to 8 hours for the Principal each week.

d)    In some months, Workers will not be engaged by the Principal at all.

e)    The Principal negotiates certain aspects of the service relationship with the Workers. These include the location of the job and a mutually acceptable rate/quote for the entire clean. However, All other aspects of the services are determined by the Worker, including:

(A) the appropriate work equipment and materials to be used in undertaking the work;

(B) the manner and sequence in which the work is completed; and

(C) the time taken to complete the work.

f)    The Workers fees are not based on time but on the result. Some Workers will obviously be able to undertake a job faster than others. However, the time taken to complete the job does not affect the amount fees paid by the Principal.

g)    The Principal is engaged by its clients to provide comprehensive working solutions, which includes consulting. Accordingly, the Workers engaged by the Principal provide just one component of the overall service offering that the Principal provides to particular clients.

h)    The Principal offers jobs on a specific assignment basis. Should a Worker refuse an assignment for any reason, the assignment will simply be offered to the next available Worker. Workers are entirely free to accept or decline an assignment.

i)    The Workers do not use the Principal's business cards nor are they expected to comply with a dress code. There is no expectation that Workers work exclusively for the Principal or that they represent it in respect of engagements.

j)    The fees charged vary depending on a number of factors, primarily due to rates imposed by the particular Workers.

k)    The Workers use their own equipment and vehicles to undertake the work. Any or all of the resources and tools required to perform the task are the sole responsibility of, and are solely provided by the Workers.

l)    The Workers are not, in any way, guided as to the manner in which they must perform their work. The Principal does not supervise nor dictate any aspect of the work. The Workers are completely responsible for their own work and must fix any errors. If the services provided by a Worker do not meet the expectations of the Principal's clients, then the Worker may not be engaged for future Workers assignments.

m)    The Workers may delegate the work to another person. The only condition that the Principal places on such delegation is that responsibility for the work must be borne by the Worker that it engaged to accept the assignment.

Relevant legislative provisions

Superannuation Guarantee (Administration) Act 1992 Section 12 (1)

Superannuation Guarantee (Administration) Act 1992 Section 12 (3)

Reasons for decision

Question 1

Are the Workers common law employees of the Principal under subsection 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) for the period 1 July 20XX to 30 June 20XX?

Answer

No.

Summary

Workers as detailed above hired by the Principal are not considered employees within the ordinary or common law meaning for the purposed to Subsection 12(1) and Subsection 12(3) of the SGAA.

Background

Under the SGAA, employers are required to make superannuation contributions into a complying superannuation fund or retirement savings account for the benefit of their eligible employees in accordance with minimum prescribed levels.

The definition of 'employee' for the purposes of the SGAA is found in section 12, which is both a clarifying and extending provision.

Subsection 12(1) of the SGAA states that 'employee' and 'employer' take on their ordinary or common law meaning.

Where the relationship between the parties to a contract is not a common law employment relationship, or there is doubt in respect of the status of a person, the expanded meaning of 'employee' is contained in subsection 12(2) to 12 (11). Of relevance here is subsection/s 12(3).

The Law

1.         The relationship between an employer and employee is a contractual one. When a business engages a worker, generally it will either be a relationship of employment, often referred to as a contract of service, or a principal/independent contractor relationship that is referred to as a contract for services.

2.         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[1] (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 with constitute that relationship.[2]

3.         As such, the totality of the relationship is derived from the rights and obligations created by the contract[3] between the parties, construed at the time they entered into it.[4] Where the parties have comprehensively committed the terms of their relationship to a written contract, and the contract has not been varied, challenged as a sham or subject to legal or equitable relief, then it is the legal rights and obligations in that contract alone that are relevant in this analysis.[5]

4.         Evidence of subsequent conduct and work practices can only be considered in some instances, such as establishing the existence of a contract, identifying the contractual terms agreed to where the contract is wholly or partially oral, demonstrating that the contract has been varied or is a sham, and establishing evidence of other legal or equitable entitlements.[6]

5.         Where a contract is oral, evidence of the way the parties conducted themselves may be considered but only for the purposes of inferring what terms and conditions were verbally agreed to or necessarily implied into the contract. The relationship cannot be characterised based on the 'reality' of what took place over the duration of the performance of work.[7]

6.         The examination of the totality of the relationship must be considered through the focussing question of whether the worker is working in the business of the putative employer, having regard to the various employment indicia from case law.[8] In Marshall v Whittaker's Building Supply Co,[9] Windeyer J said that the distinction between an employee and an independent contractor is:

"rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own."

7.         The common law indicia include the level of control exerted by the putative employer, the extent of integration of the worker into the business, 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.[10]

Whether worker is serving in your business

8.         An employee serves in the business of an employer, performing their work as a representative of that business. In contrast, an independent contractor provides services to a principal's business, but the contractor does so in furthering their own business enterprise and representing their own business.

9.         A person is not excluded from being an employee just because they also conduct their own business.[11] A person may realistically have more than one job and may both conduct their own business and be employed in someone else's business.

10.         As such, it is helpful to focus attention upon the aspects of the contractual relationship which bear more directly upon whether the worker's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise.[12]

Characterising a putative employer's business

11.         The correct characterisation of the business being carried on by the putative employer is an essential part of determining whether the worker is working in the business of the putative employer.[13]

12.         In Personnel Contracting, the majority considered that the core of Construct's business was their promise to supply compliance labour to their customer, Hanssen. Construct's right to control the provision of Mr McCourt's labour was an essential asset of their business, which they deployed in order to fulfil contractual obligations with Hanssen.[14]

Presenting as an emanation of the business

13.         Whether a worker is represented to the public as an emanation of the putative employer's business is a key consideration in determining whose business they are serving in.

14.         However, it is important to distinguish between a worker being contractually obliged to present as an emanation of the putative employer's business (such as in Hollis v Vabu Pty Ltd (Hollis)[15]), and them merely choosing to do so to abide by a business' expectations (such as in ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors (ZG Operations)[16]).

Delegation

15.         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.[17] 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.

16.         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.[18] 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.

17.         Some contracts may provide a "limited or occasional" power of delegation where the scope and operation of the power is so narrow that the worker cannot exercise it unilaterally, for example where the putative employer needs to provide consent before a subcontractor is engaged. This factor is not inconsistent with an employment relationship[19], as the putative employer effectively has full control over who provides the services.

18.         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 be on the register and approved by On Call.[20]

'Results' contracts

19.         Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is one for services. [21]

20.         The meaning of the phrase 'producing a result' means the performance of a service by the worker for the putative employer where the worker 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 provide the worker's labour.

21.         Under a results-based contract, payment is often made for a negotiated fixed price on completion of the job, as opposed to an hourly rate.[22] The total fee may reflect an estimated completion time.

22.         However, a piece rate or output-based remuneration can still be consistent with an employment relationship if they are a natural means to remunerate the particular kind of task the worker is performing.[23] For example, in Commissioner of State Taxation v Roy Morgan Research Centre Pty Ltd (Roy Morgan), the Court found that although interviewers were only paid on the completion of each assignment, their pay was calculated by reference to their time spent, not for producing a result.[24] In Hollis, it was considered that payment to the bicycle couriers per delivery was a natural means to remunerate employees whose sole purpose is to perform deliveries, for ease of calculation and to provide an incentive to more efficiently to make deliveries.[25]

Tools and equipment

23.         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.

24.         In comparison, independent contractors carrying on their own business often provide and pay for their own assets, tools, equipment, maintenance costs and other expenses.[26] Usually, they will have factored these costs in their overall fee or will seek separate payment for such expenses from the principal.

25.         The question of scale with respect to the cost of tools and equipment is important. Where a worker uses a substantial item or piece of equipment for which they are wholly responsible to conduct their work, the mechanical aspect of the contract outweighs the personal.[27]

26.         Equipment that is not specialised or used only for completing the contracted services, such as a mobile phone, are less likely to be considered significant.[28]

Goodwill and Intellectual Property

27.         If an independent contractor performs services in the course of their own business, it would be common for the contractor to be able to generate goodwill for that business.

28.         Where a contract between a worker and putative employer prevents any goodwill from accruing for a worker's possible business, this may indicate that the worker is instead serving in the putative employer's business.

Risk

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

30.         Where a contract requires a worker to obtain their own insurance or indemnify the putative employer against loss arising from harm or injury caused by the worker, it may be seen as a consequence of a subjective characterisation that the contract is one for service, and as such must be considered in light of the entire contract.

31.         In On Call, although interpreters were contractually required to indemnify On Call against loss, Bromberg J found that On Call bore the ultimate financial risk for a failure by an interpreter to perform the work, having taken out its own insurance policy against claims made by clients and not financially penalising interpreters for unsatisfactory work.[29]

32.         In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd[30], the Full Federal Court concluded although these workers were required to acquire their own public liability insurance, this one factor alone was insufficient to support a conclusion that the workers were not employees.

Use of labels to characterise relationship

33.         In Personnel Contracting the High Court found that the "labels" which the parties may have chosen to describe their relationship are not determinative or even likely relevant to, the characterisation of their relationship.[31] Rather the characterisation of the relationship needs to turn on the substantial rights and duties between the parties.[32]

34.         Clauses that stem as a consequence of the parties' characterisation of their relationship will be similarly limited in their impact on the actual character, for the same reasons, for example obtaining an ABN or the provision or lack of provision of certain work entitlements.

35.         In this case, the Principal uses contractors or entities to engage in cleaning for clients. The contractors are only told the time and venue of the clients they are required to clean for. They are not told how to clean and have the option to sub-contract the clean if required. Contractors are paid for a given result i.e. the satisfactory of the clients expectations. The contractors are chosen because they have the requisite skills.

In this case, the Principal engages the Workers to provide cleaning services to clients.

The Workers can negotiate with the client as to the time the clean is to be conducted and the fact that the Workers make all decisions as to how the work is completed leads towards the conclusion that the relationship is one of Principal and independent contractors.

The Workers have the right to refuse work and this indicates a Principal and independent contractor relationship.

When the work is sub-contracted or delegated, the responsibility for the work must be borne by the Worker that has been engaged for the assignment. Furthermore, it is the responsibility of the Worker to pay any sub-contractors or any other person the Worker engages to complete the work.

Based on the information provided, the provision of tools and equipment and the payment of business expenses lie with the Workers.

After comparing the facts against the above factors, it is considered that the Workers are not employees of the Principal. As the Workers are not employees of the Principal, amounts paid to these Workers are not paid as a consequence of employment. It is considered that the Workers are not common law employees of the Principal.

Question 2

Are the Workers employees of the Principal in accordance with subsection 12(3) of the SAGG for the period 1 July 20XX to 30 June 20XX?

Answer

No.

Summary

The facts and evidence provided suggest that the workers are not employees of the Principal for the purposes of Subsection 12(3) of the SGAA..

The Law

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.

1.         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

2.         A person's labour can include mental and artistic effort, as well as physical toll.[33]

3.         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

4.         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).[34]

5.         In Moffet, Perram and Anderson JJ considered that the Services Agreement provided Dental Corporation, the putative employer, with two sets of benefits:[35]

"... 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."

6.         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.[36] 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.[37] For that reason, the Services Agreement was, from Dental Corporation's perspective, wholly or principally for Dr Moffet's labour.[38] It was substantially for that purpose[39], notwithstanding that the contract also provided a secondary, non-labour benefit.

Contract for a result

7.         Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is not wholly or principally for the person's labour, but rather for the worker to produce the result they have contracted to produce. While the worker may perform labour, they do so for their own purposes to achieve the contracted result.[40]

8.         A contract is for the production of a given result where the worker 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 wholly or principally to provide the worker's underlying labour that produces the result.

9.         Where a worker uses a substantial item or piece of equipment for which they are wholly responsible to conduct their work, the contract may be better described as for a result that entails the specific use of the item.[41] In other circumstances, the contract may be for the sum of multiple components that involve both labour and equipment, but the use of the equipment is so significant that the labour is no longer principal. This contract would not be wholly or principally for the worker's labour even if it is not for a result.

10.         Under a results-based contract, payment is often made for a negotiated fixed price on completion of the job, as opposed to an hourly rate.[42] The total fee may reflect an estimated completion time.

11.         However, a piece rate or output-based remuneration can still be consistent with an employment relationship if they are a natural means to remunerate the particular kind of task the worker is performing.[43] For example, in Commissioner of State Taxation v Roy Morgan Research Centre Pty Ltd (Roy Morgan), the Court found that although interviewers were only paid on the completion of each assignment, their pay was calculated by reference to their time spent, not for producing a result.[44] In Hollis, it was considered that payment to the bicycle couriers per delivery was a natural means to remunerate employees whose sole purpose is to perform deliveries, for ease of calculation and to provide an incentive to more efficiently to make deliveries.[45]

12.         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

13.         Subsection 12(3) 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.[46] 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.

14.         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.

15.         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.[47] 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.

16.         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 be on the register and approved by On Call.[48]

Person works under the contract

17.         The word 'work' in subsection 12(3) 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.

18.         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.

In this case, the Principal uses individuals or entities contracted to provide cleaning services. The Workers are paid to achieve a result and are able to sub-contract their services.

The Workers provide all the materials and equipment required to complete the job. The Workers are paid a set fee per clean which includes remuneration for the materials, equipment and their labour and skills

After comparing the facts against the above factors, it is considered that the Workers engaged by the Principal do not meet the definition of all employee as set out under subsection 12(3) of the SGAA.

As Workers are not employees of the Principal, amounts paid to these Workers are not paid as a consequence of employment. Therefore, not required to make Superannuation Guarantee payments pursuant to Section 12 (3) of the Superannuation Guarantee (Administrative) Act 1992

[1] Personnel Contracting [2022] HCA 1.

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

[3] Personnel Contracting at [60], [124] and [173].

[4] Personnel Contracting at [174].

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

[6] Personnel Contracting at [54], [59] and [177].

[7] Secretary, Attorney-General's Department v O'Dwyer [2022] FCA 1183.

[8] Personnel Contracting at [36-39], [61-62], [121], [173] and [183]. The relationship may be affected by statutory provisions and by awards made under statutes (Personnel Contracting at [41]).

[9] (1963) 109 CLR 210 at [217].

[10] Personnel Contracting at [34].

[11] Personnel Contracting at [181].

[12] Personnel Contracting at[39].

[13] Personnel Contracting at [70-71], [89] and [200].

[14] Personnel Contracting at [89].

[15] Hollis 2001 ATC 4508 at [50-52].

[16] ZG Operations at[32-33] and[52-53].

[17] 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].

[18] On Call [2011] FCA 366 at [105] and [253].

[19] 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].

[20] On Call at [253].

[21] World Book (Australia) Pty Ltd v FC of T 92 ATC 4327 at [4334].

[22] For example, in Stevens.

[23] Hollis at [54]

[24] Roy Morgan (2004) SASC 288at [42].

[25] Hollis at [4520].

[26] Stevens at [12].

[27] ZG Operations at [88].

[28] Hollis at[56].

[29] On Call at [290].

[30] [2015] FCAFC 37.

[31] Personnel Contracting at [58], [63], [127] and [184].

[32] Personnel Contracting at[66].

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

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

[35] Moffet at [100].

[36] Moffet at[101].

[37] Moffet at[103].

[38] Moffet at [104].

[39] Ibid.

[40] World Book at [4334].

[41] ZG Operations at [88]. See also Humberstone v Northern Timber Mills (1949) 79 CLR 389.

[42] For example, in Stevens.

[43] Hollis at [54].

[44] Roy Morgan (2004) SASC 288 at [42].

[45] Hollis at [4520].

[46] 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].

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

[48] On Call at [253].