Private ruling: principal required to make superannuation guarantee payments
Date of advice: 28 January 2026
Published: 23 March 2026
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are individual Clinicians engaged by the Principal considered to be their employees within the ordinary or common law meaning, pursuant to subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA)? | A1: No. | Q2: Are the Clinicians engaged by the Principal employees within the expanded definition of an employee under subsection 12(3) of the SGAA? | A2: No. The scheme commenced on: 1 July 20XX

Relevant facts and circumstances: The Principal is a technology-based health-industry provider. It uses its technology platform to connect medical professionals with patients. To achieve this, the Principal contracts with General Practitioners and other medical Clinicians. The Principal engages individual Clinicians as sole trader contractors. All Clinicians have their own Australian Business Numbers (ABNs). Clinicians must have and maintain relevant insurance coverage, at their own expense. All Clinicians are engaged as independent contractors through a standard form of agreement (the Agreement). These can be offered on either a per consult or a per hour arrangement. These are accompanied by an associated Deed Poll (DP) which is entered into by both parties and extends to any providers the Clinician engages for delegation. The Principal provided further clarification regarding the working arrangements. • The Principal does not provide medical services to any patients that use their platform. It only provides a digital platform to the Clinicians they engage with, as well as administrative support and payment processing. • A patient makes a single upfront payment directly to the Principal at the time of booking a consultation. This covers the Clinician's fee, a platform/administration fee and any additional product or service costs. • Upon receipt of an invoice and the Clinician accepting it's validity, the Principal pays the Clinician from funds received after the patient has paid for their consultation. • Whilst Clinicians are remunerated under a fixed service model, this is not considered a profit-sharing arrangement by the Principal. • Clinicians who have entered a per-hour agreement receive a payment depending on the type of consult undertaken and the qualification of the individual Clinician. The payment is intended to reflect market rates for the qualification held. • For Clinicians engaged on a per consultation basis, the fee they receive is based on a percentage of the consultation fee as per their service agreement and the qualification held by the individual Clinician. • Clinicians provide services to patients only. They are not engaged to, nor do they supply any services directly to the Principal. • Clinicians are not providing services that assist with the Principal's business operation.

Relevant legislative provisions: Taxation Administration Act 1953 Schedule 1 (12-35) | Taxation Administration Act 1953 Schedule 1 (12-45) | Superannuation Guarantee (Administration) Act 1992 12 (1) | Superannuation Guarantee (Administration) Act 1992 12(3)

Reasons for decision: Summary: The Principal is not required to make Superannuation Guarantee payments to individuals engaged as Clinicians pursuant to section 12(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA). | Detailed Reasoning - 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 subsections 12(2) to 12(11). Of relevance here is subsection 12(3). | Detailed Reasoning - The law: 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 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] 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] | Detailed Reasoning - 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] | Detailed Reasoning - 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 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] | Detailed Reasoning - 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] ). | Detailed Reasoning - Control and the right to 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] | Detailed Reasoning - 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 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. [23] | Detailed Reasoning - '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 they are 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, for ease of calculation and to provide an incentive to more efficiently to make deliveries. [28] | Detailed Reasoning - 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 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 in 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, are less likely to be considered significant. [31] | Detailed Reasoning - 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 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. | Detailed Reasoning - 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, having taken out its own insurance policy against claims made by clients and 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 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. | Detailed Reasoning - 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 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 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. | Detailed Reasoning - The law: In this case, the Principal engages an individual Clinician under the Agreement. The Agreement provides the terms of the individual engagement. There is no dispute or challenge as to the content of those documents; the language used in the Agreement to the effect that the Clinician will provide their own services to the Principal or supply an authorised delegate to do so. The Agreement contains a duration of service, outlines the terms and conditions, and the expectations of the level of service provided to the Principal. An hourly rate or a per consultation rate can apply to the Clinician's remuneration. It is the provision of medical consultations that will be the basis for the Principal to receive an assigned payment from a patient and the subsequent payment of a service fee to the Clinician - that is the benefit and the result that the parties have bargained for. In this case, the Principal engages a Clinician under the Agreement. The contract can be considered as formed as offer, acceptance and consideration are present. | Detailed Reasoning - Nature of the business/business integration: Based on the terms contained within the Agreement, the Clinician is not serving in the business of the employer. The Clinician provides a medical consultation directly to a patient using the Principal's online platform. As the Clinician has the full responsibility for determining the nature of any treatment, as well as the autonomy to provide their service as they choose, It is more likely that the Clinician would be viewed as a medical professional in their own right, providing an independent medical service using the business of the Principal. A Clinician is required to have relevant and current medical qualifications, licences and registration. It is reasonable to expect that the individual has previous/current experience treating patients and, in a position to offer a consultation to patients via the online platform provided by the Principal. The Clinician would be regarded as an independent medical professional available for consultation through the platform, rather than seen as an employee of the Principal. A contractor would typically 'carry out the work as principal of their own business, not part of another'. In this case, the Principal seeks out individual Clinicians that have experience and relevant qualifications to provide a service. No evidence was provided to show that the Clinician performs any duties relating to the Principal's operation. The Clinician is required to participate in a paid induction process with the Principal to become familiar with the systems and process used with their platform, but this is not considered a service provided to the Principal. The Agreement provides that the Clinician is required to respond to requests for clinical advice from the Principal's staff as soon as practicable within a time frame commensurate to the urgency of the request. This is indicative of assisting the Principal's staff with a time-sensitive query relating to patient management/referral rather than a duty performed for the benefit of the Principal's business. Whilst the Agreement between the parties note that the Clinician "wishes to be engaged by the Principal and an independent contractor", there is no indication that in assuming such a role, the Clinician is available to or is assimilated into the organisation. It is reasonable to expect that patients receiving treatment would be aware that whilst they have engaged the Clinician through the Principal's platform, they regard the treatment received as directly provided by an independent Clinician in their own right. In that sense, only a medical professional and patient arrangement exist for the purpose of treatment, rather than treatment received from an employee of the Principal. The Clinician, in their capacity as a medical professional, delivers consultancy and treatment services to individual patients, not the Principal. Such services are unlikely to be considered as falling within the scope of the Principal's business, which is only to provide an online platform to facilitate patient and medical professional interactions rather than providing direct medical services. As such, it is likely that the Clinician is not seen as serving in nor presenting as an emanation of the Principal's business. | Detailed Reasoning - Control: The role of the Clinician is to provide online medical consultations and treatment as per an agreed roster (and where approval exists, provide personnel to do so on their behalf). The Clinician is expected to accomplish this by being available to offer online consultations, in line with the Agreement. The medical treatment delivered/decisions the Clinician makes remain at their discretion and judgement. Other than the expectation that the Clinician observes medical and legal standards, codes, policies and legislations, maintains their accreditation and insurances and otherwise complies with the terms of the Agreement, there is no control exerted over how the Clinician, engaged as medical professional, achieves this. No evidence was provided to demonstrate that the Principal controls how the Clinician is to perform their services. The mandatory induction is intended to introduce Clinicians to the online systems and processes prior to becoming available on the Platform. The requirements in the Agreement placed on a Clinician when providing their services, such as compliance with legislation, maintaining registration with the Medical Board, fulfilling the service requirements, etc, do not extend to how the Principal specifically requires how medical treatment is recommended or provided. The Principal's right to exercise control is very limited to that of the expectation that the Clinician will satisfactorily provide medical consultation services on their platform and adhering to an agreed roster, as well as meeting compliance requirements, The Principal does not have to, nor cannot provide any type of supervisory presence. There is no apparent review of the Clinician's service prior to distribution of payment. The Agreement provides that the Clinician has an express right of delegation. The DP also confirms the right of delegation as additional individuals providing services on behalf of the Clinician are acknowledged by the Principal and therefore similarly bound by the Agreement. Given the lack of integration and control the Principal purports to have over the Clinicians role in terms of how the work is to be performed and when it is to be performed, this leans toward a finding that the Clinicians are independent contractors rather than employees of the Principal. | Detailed Reasoning - Other indicia: The Clinician agrees to offer to provide their services to the Principal, as per the terms and conditions of the Agreement, as well as accepting either a per consultation or per hour fee. They also acknowledge that they have a right of delegation. The Principal consents to the Clinician to use approved employees or subcontractors to provide the consulting and treatment service on the Platform. Both parties agree to the expected delivery of services in accordance with the conditions of the Agreement. Either party may, upon notice, terminate the arrangement. Additional criteria exist for the Principal to terminate the Agreement by default in the situation of an unresolved breach of the Agreement, such as performance issues. Similarly, the Clinician has the same right of termination if there is an unresolved breach of the Agreement by the Principal. The Agreement contains conditions regarding the provision of tools and equipment, where the Clinician is required to ensure they have suitable equipment available to use in conjunction with the Platform. Similarly, the Clinician carries the burden of risk, as well as any associated insurance arrangements. The Clinician is required to indemnify the Principal. Employers are generally liable for costs arising out of injury or defects in carrying out the agreed work by their employees, whereas a principal will not be liable for costs arising out of injury or defects caused by an independent contractor. Another consideration of risk is the liability for the cost of rectifying faulty work. That is, the key underlying consideration is whether the individual is exposed to commercial risk in terms of a liability to cover the cost of rectifying defective work themselves. The Clinician must comply with intellectual property and confidentiality clauses contained in the Agreement. They must also notify the Principal of any suspected breach of confidentiality or misuse of information owned by the Principal. The Clinician acknowledges they bear all risks associated with the performance of their services, at their own expenses and for correcting any errors in the performance of same. The Clinician must take out and maintain sufficient insurance against such risks as reasonably required by the Principal and provide proof of same to the Principal. The Clinician must indemnify the Principal against any loss, expense, penalty, etc, brought against the Principal in connection with any breach of the Agreement or an act on the part of the Clinician or their employee or sub-contractor. After comparing the facts against the above factors, it is considered that a contract has been formed, but the Clinicians are not employees of the Principal as the contract is for labour provided, rather than provision for services to the Principal. As the Clinicians are not employees of the Principal, amounts paid to the Clinicians are not paid as a consequence of employment. It is considered that the Clinicians are not common law employees of the Principal. | Summary: In considering all the terms of the contractual relationship the Commissioner of Taxation considers that a Clinician is not an employee of the Principal under subsection 12(3) of the SGAA. There was a benefit provided to the Principal, and a qualitative analysis characterises the Agreement as not being wholly or principally for labour. Additionally, as the Clinician has specific delegation rights under the Agreement, the Agreement is a contract for a result. | Detailed Reasoning - 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. 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. | Detailed Reasoning - The existence of a contract (written or otherwise): The Agreement is required to be signed by both parties prior to the Clinician being able to provide consultations on the platform. | Detailed Reasoning - 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. The Clinician must provide the agreed consultation services under the Agreement. 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 terms of the Agreement provide for delegation. Accordingly, element c) is not satisfied. | Detailed Reasoning - Application: As discussed earlier in the ruling, a contract has been considered as formed. Offer, acceptance and consideration are present for the formation of a contract. It follows that a written contract was established where the Clinicians work under that contract. | Detailed Reasoning - Wholly or principally for the person's labour: A person's labour can include mental and artistic effort, as well as physical toll. [36] 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.' | Detailed Reasoning - Benefit derived by the putative employer: 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). [37] In Moffet , Perram and Anderson JJ considered that the Services Agreement provided Dental Corporation, the putative employer, with two sets of benefits: [38] ... 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. [39] 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. [40] For that reason, the Services Agreement was, from Dental Corporation's perspective, wholly or principally for Dr Moffet's labour. [41] It was substantially for that purpose [42] , notwithstanding that the contract also provided a secondary, non-labour benefit. The Clinician's obligation to provide medical consultation services is for labour. The hourly or per consultation fee charged by the medical professional is indicative of their expertise, which is expected to result in patients using the platform. In a discussion of how to determine if labour is the principal benefit or component contracted for paragraph 111 of TR 2023/4 refers to the need for a quantitative valuation, or where appropriate a qualitative analysis, to be undertaken. The Commissioner issued Decision Impact Statement - Jamsek v ZG Operations Australia Pty ltd (No 3) on 15 May 2024, in which the Commissioner accepts that it remains open to apply a qualitative analysis for the purpose of testing whether a contact is principally for the labour under subsection 12(3) of the SGAA, where the factual circumstances of a case warrant that approach. There was no equipment component under this Agreement, and as such a quantitative analysis was not possible. An additional non-labour benefit, as discussed in Moffet , was recognised, however no evidence was provided to warrant a qualitative analysis for the purpose of testing whether the Agreement was principally for labour. | Detailed Reasoning - 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. 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. 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. 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 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. 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. 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. | Detailed Reasoning - 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. [44] 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. [45] 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 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. [46] | Detailed Reasoning - Wholly or principally for the person's labour: As determined under TR 2023/24 at paragraph 107 and 108: 107: A contract will not be wholly or principally for the labour of a worker where the contract is properly characterised as being for the provision of a result. That is, the essence of the contract must be to achieve a specified result and not to do work. Where the contract is genuinely for the provision of a result, the worker will not fall within the extended definition of 'employee' under subsection 12(3). 108: To the extent that a contract is partly for labour and partly for something else, for example, the hire of plant or machinery, whether the contract is principally for the worker's labour will be a question of fact. This involves an evaluation of the terms of the relevant contract or contracts, and is assessed by reference to the benefit or benefits that the engaging entity receives out of the bargain The Clinician will be engaged for their relevant professional expertise and would be able to deliver medical consultation/treatment, based on that professional knowledge and judgement, in order to deliver a result. Notwithstanding the Clinician would specifically be engaged based on their qualifications and experience, there would be a reasonable expectation that only a suitably qualified third party could provide services in their place. The payment is calculated by reference to their time spent, not the result or outcome of the activity. Therefore, it is not considered that the Clinicians are engaged to provide a result, but rather they are engaged for their labour As previously noted, because the Agreement provided the benefit to the Principal of an income stream via their platform, it is reasonable to characterise the Agreement as not being wholly or principally for labour. | Detailed Reasoning - Right of delegation: Whether the individual Clinician must perform the duties themselves is a significant factor in determining whether an individual is considered an employee under the extended definition of the SGAA. There is specific provision in the Agreement regarding delegation. The Clinician can delegate to their employees or subcontractors providing conditions of the Agreement are adhered to. It is implied that the Clinician is engaged for their relevant professional skill and expertise, to deliver a result. As the Agreement is clear on granting the right of delegation to the Clinician, this is likely to indicate the worker is not an employee under the extended definition of an employee. | Detailed Reasoning - Contract for a result: The Clinician alone determines the appropriate medical treatment offered to a patient, based on their expertise and judgement. The Principal has no part in the treatment outcomes. The Clinician can employ their own means to achieve the required outcome in delivering the agreed services, such as delegating the provision of service to a suitably qualified and approved employee. The nature of the Agreement is to achieve a result, which will be achieved by completing online consultations with individual patients via the Principal's platform. The Clinician is only paid for provision of consultations. The Clinician is paid an agreed per consultation or per hour rate, which are paid upon invoice, exclusive of GST. These payments represent a fixed price, determined prior to the delivery of the agreed services. Accordingly, the substance of the contract is to achieve a result. | Detailed Reasoning - Conclusion: Accordingly, as all three elements listed for the Clinician to be an employee under subsection 12(3) of the SGAA are not satisfied, the Clinician does not meet the extended definition of employee as set out under subsection 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] Deputy Commissioner of Taxation v Bolwell (1967) 1 ATR 862 at 873. [37] Moffet [2020] FCAFC 118 at [96-97]. [38] Moffet at [100]. [39] Moffet at[101]. [40] Moffet at[103]. [41] Moffet at [104]. [42] Ibid. [43] Hollis at [54]. [44] 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]. [45] On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3) [2011] FCA 366 ( On Call ) at [105] and [253]. [46] On Call at [253].

Question 1: Are individual Clinicians engaged by the Principal considered to be employees within the ordinary or common law meaning, pursuant to subsection 12(1) of the SGAA?