ATO ID 2003/689: Exempt benefits: work related preventative health care - meaning of 'on behalf of a legally qualified medical practitioner'
Date of decision: 19 March 2003
Year of income: Year ended 31 March 2001
Business line: Superannuation and Employer Obligations

Issue
Where an employer engages a masseuse on the recommendation of a legally qualified medical practitioner, is the masseuse providing any form of care 'on behalf of a legally qualified medical practitioner' for the purposes of the definition of 'work related preventative health care' under subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Decision
No. The masseuse is not providing any form of care 'on behalf of a legally qualified medical practitioner' for the purposes of the definition of work related preventative health care.

Facts
The advice of a legally qualified medical practitioner was sought by the employer in order to determine what action should be taken in respect of employees whose health was suffering because of their work environment. After examining the work environment and the nature of the illnesses and injuries being suffered by the employees, the legally qualified medical practitioner made a recommendation to the employer concerning the type of treatment that would reduce or prevent illness and injury of the employees. Based on that recommendation, the employer engaged the services of a masseuse. The masseuse does not report to the legally qualified medical practitioner.

Reasons for decision
Summary: Subsection 58M(1) of the FBTAA provides that benefits relating to the 'work-related preventative health care' of an employee are exempt benefits. For health care to be 'work-related preventative health care' as defined in subsection 136(1) of the FBTAA the care must be provided by, or on behalf of, a legally qualified medical practitioner, nurse, dentist or optometrist in order to prevent the employees from suffering injuries or illnesses relating to their employment. The form of care must be made available to all employees with similar work-related risks. When health care is not provided directly by a legally qualified medical practitioner, nurse, dentist or optometrist, the care must be provided 'on behalf of' such a qualified person. The phrase 'on behalf of' is not defined for the purposes of the FBTAA. The Australian Oxford Dictionary, 1999, Oxford University Press, Melbourne defines the term 'behalf' or 'on behalf of' as behalf n. on behalf of (or on a person's behalf ) 1 in the interests of (a person, principle, etc.). 2 as representative of ( acting on behalf of my client ). In Cuthbertson & Richards Sawmills v. Thomas (1999) 93 FCR 141 the meaning of the phrase 'on behalf of' was discussed. It was stated that the phrase does not have a strict legal meaning. The court referred to R v. Toohey; Ex parte Attorney General (N.T.) (1980) 145 CLR 374 at 386 where Stephen, Mason, Murphy and Aickin JJ referred to the phrase in these terms: ...it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, all however, in some way concerned with the standing of one person as auxiliary to or representative of another person or thing. ...Context will always determine to which of the many possible relationships the phrase "on behalf of" is in a particular case being applied; "the context and subject matter" (per Dixon J in R v. Portus; Ex parte Federated Clerks Union (1949) 79 CLR 428) will be determinative. In the present case, the phrase 'on behalf of' requires a relationship between the two parties such that one party is acting in place of or as representative of the other. The masseuse is not acting in the place of or as a representative of the legally qualified medical practitioner. The health care provided by the masseuse is not provided by, or on behalf of, the legally qualified medical practitioner. As a result, the health care services provided by the masseuse are not 'work related preventative health care' for the purposes of the definition in s 136(1) of the FBTAA and are not exempt benefits under section 58M (1).

Legislative references: Fringe Benefits Tax Assessment Act 1986 subsection 58M(1) subsection 136(1)
Case references: Cuthbertson & Richards Sawmills v. Thomas (1999) 93 FCR 141
Related ATO interpretative decisions: ATO ID 2002/963
Other references: Australian Oxford Dictionary, 1999, Oxford University Press, Melbourne
Subject references: Fringe benefits Exempt benefits FBT work related preventative health care FBT health care