Edited version of private advice

Authorisation Number: 1052230970586

Date of advice: 3 May 2024

Ruling

Subject: Status of worker - superannuation guarantee

Question 1

Is the worker a common law employee of the employer under subsection 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA)?

Answer

No.

Question 2

Is the worker an employee of the employer under the expanded definition in subsection 12(3) of the SGAA?

Answer

No.

This advice applies for the following periods:

Quarter ending 31 December 2024

The scheme commenced on:

1 July 2022

Relevant facts and circumstances

The worker (a sole trader) operates under their own business name.

The worker is a qualified counsellor.

All public schools in the particular state fall under the administration of the employer.

In the period considered by this administratively binding advice, the worker entered into three separate contractual agreements (Agreements) with the employer, as detailed below.

•         Agreement 1 - between the worker and employer was entered into on XX/XX/XXXX. It listed the specific terms of the engagement.

•         Agreement 2 - between the worker and employer was entered into on XX/XX/XXXX. It listed the specific terms of the engagement.

•         Agreement 3 - between the worker and employer was entered into on XX/XX/XXXX. It listed the specific terms of the engagement.

The worker received upfront lump sum payments for the delivery of the agreed services in relation to the individual Agreements. These lump sum payments were inclusive of GST.

On XX/XX/XXXX, the employer's representative, provided the following responses to queries raised by the Australian Taxation Office (ATO):

•         The worker is not required to wear the employer's uniform or a badge.

•         The worker is unable to delegate or subcontract their work to others.

•         The worker is only required to communicate with principals of the engaging schools.

•         The worker's work is not supervised or checked.

•         If the worker is unable to deliver part of the scheduled sessions, the session is either rescheduled (where possible) or the worker reimburses the employer for the undelivered service.

•         The engagement under Agreement 3 supports that the worker brings another worker to assist with the delivery of the agreed work, whose is supervised by the primary worker.

On XX/XX/XXXX, invoices listing the individual lump sum payments for the negotiated Agreements were provided.

Relevant legislative provisions

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

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

Reasons for decision

Question 1

Summary

The worker is not a common law employee of the employer under subsection 12(1) of the SGAA.

Detailed reasoning

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.

The leading case outlining the principles governing the ordinary meaning of 'employee' is Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting 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 which constitute that relationship.[2]

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]

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]

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]

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."

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

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.

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.

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

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]

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

Presenting as an emanation of the business

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.

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]).

Control

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.[17]

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, 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."[18]

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.[19]

Delegation

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.[20] 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.

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.[21] 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.

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[22], as the putative employer effectively has full control over who provides the services.

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 not to be 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.[23]

'Results' contracts

Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is one for services. [24]

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.

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.[25] The total fee may reflect an estimated completion time.

However, a piece rate, or output-based remuneration, can still be consistent with an employment relationship, if it is a natural means to remunerate the particular kind of task the worker is performing.[26] 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.[27] 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, both for ease of calculation, and to provide an incentive to more efficiently make deliveries.[28]

Tools and equipment

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 to 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.

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 into their overall fee or will seek separate payment for such expenses from the principal.

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.[30]

Equipment that is not specialised or used only for completing the contracted services, such as a mobile phone, is less likely to be considered significant.[31]

Goodwill and Intellectual Property

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.

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

Risk

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.

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.

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, both by having taken out its own insurance policy against claims made by clients, and by not financially penalising interpreters for unsatisfactory work.[32]

In Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd[33], the Full Federal Court concluded that, 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

In Personnel Contracting the High Court found that the "labels" which the parties may have chosen to describe their relationship are not determinative of, or even likely relevant to, the characterisation of their relationship.[34] Rather the characterisation of the relationship needs to turn on the substantial rights and duties between the parties.[35]

Clauses that stem from the parties' characterisation of their relationship (such as the requirement to obtain an ABN or a lack of certain worker entitlements) will be similarly limited in their impact on the actual character of that relationship, for the same reasons.

Application

Serving in the engaging entity's business

As detailed above, 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.[36]

As such, the totality of the relationship is derived from the rights and obligations created by the contract[37] between the parties, construed at the time they entered into it.[38] 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.[39]

The ATO's response to the Personnel Contracting case is provided in a Decision impact statement (the Statement) issued on 31 March 2022, and states:

The long-established employment indicia are still relevant when characterising the contractual relationship between the parties. However, they are to be considered through the focusing question or prism of whether the putative employee is working in the business of the employer. This reflects the Commissioner's understanding and application of the business integration test. The High Court has elevated that test as one of the primary and focusing aspects of the examination of the contractual terms. In addition, the High Court has continued the emphasis on the examination of control as a complementary focus to the business integration test.

(emphasis added)

Characterising a putative employer's business

In this case, the putative employer engaged the worker under three separate Agreements.

The Agreements provide the terms of the individual engagements. There is no dispute or challenge as to the content of those documents.

Based on those terms, the worker is neither serving in the business of the employer, nor being held out as a representative of the employer.

The terms on which the worker is engaged make no reference to an intention to form an employment relationship.

The remit of the worker is to design and deliver counselling and expressive arts therapy sessions to students and peers, as well as provide other services, such as trauma-informed and neurodivergent social-emotional wellbeing support strategies, to teachers. The agreed services are delivered over a period of one year and are outside the employer's business.

Presenting as an emanation of the business

No evidence was provided to show that the worker performs any duties, or has any executive roles, relating to the employer's operation. Additionally, on an objective basis, it is unlikely that the worker delivering services that are outside the scope of the employer's business would be seen as an employee serving in, and presenting as an emanation of, the employer's business.

Control

The role of the worker is to deliver counselling and expressive arts therapy sessions to students and peers, as well as services such as trauma-informed and neurodivergent social-emotional wellbeing support strategies, to teachers. These services are outside the employer's business.

No evidence was provided to demonstrate that the employer controls how the worker is to perform their services.

Summary - Business Integration and Control

The worker is neither integrated into, nor held out as a representative of, the employer's business. The employer's right to exercise control is limited to the agreed attendance to ensure the delivery of the agreed services.

Other indicia

Whether the work can be delegated or subcontracted

The role of the worker is to provide counselling and expressive arts therapy sessions to students and peers, as well as provide other services, such as trauma-informed and neurodivergent social-emotional wellbeing support strategies, to teachers.

Except for one service listed in one of the Agreements, the delivery of the agreed services is to be done by the worker personally, a notion confirmed by the employer's representative. One of the services listed in that particular Agreement is being delivered by another worker that is under the supervision of the primary worker.

Further, it is implied that the worker is engaged for their relevant professional expertise and would be able to employ their own means in order to deliver that result.

In these circumstances, any delegation is likely to be very limited, or non-existent.

'Results' Contracts

The provided Agreements, as well as the tax invoices, were central in understanding the nature and operation of the contractual relationship between the parties. The Statement issued for the Personnel Contracting case states, amongst other things, that the most significant clarification arises primarily in examining the terms of the written contract between the parties to establish the character of the relationship. Furthermore, as highlighted in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 (JMC) [40] at [10], the law is settled in respect of the need to consider both express and implied contract terms when determining the nature of a relationship.

In this case, the Agreements are all titled 'Contractor Agreement' and refer to the worker as a 'contractor'.

The individual Agreements and tax invoices list the periods the worker is engaged for, and the delivery of the agreed services, as well as the compensation the worker agreed to receive in exchange for the delivery of these services.

The compensation is in the form of lump sum payments, which are paid upfront, inclusive of GST.

No evidence was provided to show that all labour required to plan and design and deliver the agreed services was recognised as labour and paid at an hourly rate. Rather, the lump sum payments for the worker's services represent a fixed price, determined prior the delivery of the agreed services.

Moreover, the compensation paid for the delivery of one of the services in a particular Agreement, is a payment for supervision of work delivered by another worker engaged by the primary worker. This indirect engagement supports that the primary worker is free to employ their own means to achieve delivery of the agreed services.

Both the agreed purpose and structure of the payments are indicative of being paid for a result, in contrast to being paid an hourly rate for actual hours of attendance. Additionally, the recent view expressed in paragraph 62 of Taxation Ruling TR 2023/4 - Income tax: pay as you go withholding - who is an employee? is that 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 [41]. Given the range of the worker's services, which include the planning and design of the delivery of their services, as well as the supervision of services delivered by the supervised worker, the likelihood of the fixed payments for the delivery of these services reconciling with the time spent working to produce the outcome, is very small.

In summary, under the express and implied contractual terms, the worker has contractual obligations to spend time working both prior to, and during, the delivery of the agreed services. This preparation, attendance, presentation and supervision of another worker, is the result that the primary worker is paid to achieve.

Tools and equipment

No evidence of any significance was provided in relation to the provision of tools and equipment, the burden of risk, or any associated insurance arrangements.

Generation of goodwill

The worker is able to generate goodwill through the provision of their services.

Conclusion

On balance, it is considered that the worker is not a common law employee of the employer under subsection 12(1) of the SGAA.

Question 2

Summary

The worker is not an employee of the employer under the expanded definition in subsection 12(3) of the SGAA.

Detailed reasoning

The law

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

•      there must be a contract (written or otherwise),

•      the contract must be wholly or principally for the labour of a person, and

•      that person works under that contract.

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:

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

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

•      the individual is not contracted to achieve a result.

The existence of a contract (written or otherwise)

Requirements for establishing a contractual relationship were discussed in earlier paragraphs.

The person works under that contract

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.

Wholly or principally for the person's labour

A person's labour can include mental and artistic effort, as well as physical toil.[42]

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

The case of Dental Corporation v Moffet [2020] FCAFC 118 (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).[43]

In Moffet, Perram and Anderson JJ considered that the Services Agreement provided Dental Corporation, the putative employer, with two sets of benefits:[44]

"... 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."

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.[45] 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.[46] For that reason, the Services Agreement was, from Dental Corporation's perspective, wholly or principally for Dr Moffet's labour.[47] It was substantially for that purpose[48], notwithstanding that the contract also provided a secondary, non-labour benefit.

Contract for a result

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.[49]

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.

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.[50] 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.

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.[51] The total fee may reflect an estimated completion time.

However, a piece rate, or output-based remuneration, can still be consistent with an employment relationship if it is a natural means to remunerate the particular kind of task the worker is performing.[52] 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.[53] 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, both for ease of calculation, and to provide an incentive to more efficiently make deliveries.[54]

As such, the contractual relationship as a whole must still be considered, in order to determine whether the legal rights and obligations in the 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

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.[55] 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.

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.

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.[56] 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.

The case in On Call entailed both of these circumstances. A purported power to delegate was found to be no 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.[57]

Application

Wholly or principally for the person's labour

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).[58]

The worker is engaged to design and deliver counselling and expressive arts therapy sessions to students and peers, as well as provide other services, such as trauma-informed and neurodivergent social-emotional wellbeing support strategies, to teachers. Moreover, one of the services listed in a particular Agreement is for the supervision of work delivered by another worker engaged by the primary worker.

None of the provided Agreements support that the Agreements were in part for the supply of any materials or equipment.

Accordingly, it is considered that the benefit realised by the employer results principally from the labour of the worker.

Contract for a result

As discussed previously, the worker is free to employ their own means to achieve the required outcome in delivering the agreed services. The nature of the provided Agreements is to achieve a result.

Rather than being paid an hourly rate, the worker is paid agreed lump sums, which are paid upfront, inclusive of GST.

No evidence was provided to show that all labour required to plan and design and deliver the agreed services was recognised as labour and paid at an hourly rate. Rather, the lump sum payments for the worker's services represent a fixed price, determined prior to the delivery of the agreed services.

Moreover, the compensation paid for the delivery of one of the services listed in a particular Agreement, is a payment for the supervision of work delivered by another worker. This indirect engagement supports that the worker is free to employ their own means to achieve the delivery of the agreed services.

On consideration of the contractual relationship as a whole, inclusive of the supervision of work delivered by the secondary worker, an intention of the employer to obtain a result is preferred to an intention to wholly or principally engage labour to serve in the employer's business.

Accordingly, the substance of the contract is to achieve a result.

Worker must perform the work personally

As mentioned previously, the role of the worker is to provide counselling and expressive arts therapy sessions to students and peers, as well as provide other services, such as trauma-informed and neurodivergent social-emotional wellbeing support strategies, to teachers.

With the exception of one of the services listed in a particular Agreement, the delivery of the agreed services is to be done by the worker personally, a notion confirmed by the employer's representative. That service is being delivered by another worker, under the supervision of the primary worker.

It is implied that the worker is engaged for their relevant professional expertise, and would be able to employ their own means in order to deliver that result.

In these circumstances any delegation is likely to be very limited, or non-existent.

Summary

Accordingly, as the substance of the contract is to achieve a result, the worker does not meet the extended definition of employee as set out under subsection 12(3) of the SGAA.

Overall conclusion

On balance, the worker is not an employee of the employer for the purpose of either subsection 12(1) or 12(3) of the SGAA.

[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] 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.

[18] Personnel Contracting at[73].

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

[20] 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].

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

[22] 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].

[23] On Call at [253].

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

[25] For example, in Stevens.

[26] Hollis at [54].

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

[28] Hollis at [4520].

[29] Stevens at [12].

[30] ZG Operations at [88].

[31] Hollis at[56].

[32] On Call at [290].

[33] [2015] FCAFC 37.

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

[35] Personnel Contracting at[66].

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

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

[38] Personnel Contracting at [174].

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

[40] JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76.

[41] Roy Morgan Research Pty Ltd v Commissioner of Taxation [2010] FCAFC 52.

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

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

[44] Moffet at [100].

[45] Moffet at[101].

[46] Moffet at[103].

[47] Moffet at [104].

[48] Ibid.

[49] World Book at [4334].

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

[51] For example, in Stevens.

[52] Hollis at [54].

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

[54] Hollis at [4520].

[55] 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].

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

[57] On Call at [253].

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