Private ruling: Superannuation Guarantee
Published: November 2013

Ruling: Q3: Is the Principal liable to pay superannuation guarantee (SG) for the workers? Advice Yes. Refer to 'reason for decision'

Relevant facts and circumstances: The workers are paid a fee for days per week of work, plus reimbursement for costs in the commission of services for the Principal. The workers must issue an invoice for the fee. They are paid weekly. There is no provision in the Agreement for the Principal to provide annual leave, sick leave, and long service leave or workers compensation. Under the terms of the Agreement, Principal does not pay any taxes or superannuation obligations which arise in relation to the payments made from the Principal to the worker. Taxes include but are not limited to any withholding obligations. The terms of the Agreements provide that the workers represent to the Principal that they have skill, knowledge, experience and expertise in providing the services and are able to provide the services to the standard reasonably required by the Principal. The hours of work are set. The workers must perform the services in a proper and competent manner and according to all reasonable directions given by the Principal. The workers will perform their duties in a careful and prudent manner, conducting themselves at all times so as to maintain and improve the reputation and interests of the Principal. The Agreements contain a restriction of trade which prohibits the workers soliciting customers of the Principal during the period of the Agreement and for six months after termination. If the Invoices are not paid then the worker may suspend and then terminate provision of services to the Principal. All work is reported on by the workers to the Principal. The workers are not required to wear any uniform associating them with the Principal's business. The Agreements contain no provisions stipulating whether workers may employ their own staff to assist in providing the services. The Agreements indicate that the workers must perform the work personally. Either party may terminate the Agreements at any time from the date of the Agreement by giving to the other party prior written notice. The workers must be paid by the Principal up to and including the Termination Date. If there is a breach of any of the contractual obligations under the Agreements and the breach is not remedied promptly, then the other party may terminate the Agreements. The terms of the Agreements do not provide that the workers must hold professional indemnity insurance or other types of insurance.

Relevant legislative provisions: Superannuation Guarantee (Administration) Act 1992 Subsection 12(1) | Superannuation Guarantee (Administration) Act 1992 Subsection 12(3).

Reasons for decision: Summary: The workers are considered to be common law employees as defined in subsection 12(1) of the SGAA, and employees by virtue of the expanded definition in subsection 12(3) of the SGAA. As the workers are employees under the SGAA there is a liability to pay SG for them. | Detailed Reasoning - Detailed reasoning: The SGAA states that an employer must provide the required minimum level of superannuation support for its employees (unless the employees are exempt employees) or pay the SGC. While the term 'employee' which is defined in section 12 of the SGAA, includes common law employees, it also extends to include workers who are engaged under a contract wholly or principally for their labour. This employment relationship is often referred to as a 'contract of service'. This relationship is distinguished in Superannuation Guarantee Ruling SGR 2005/1 Superannuation guarantee: who is an employee? (SGR 2005/1) from a 'contract for service' which is typically a contractor and principal type of relationship and does not attract an SGC liability. Therefore, it is necessary to consider not only whether there is a common law relationship of employer/employee between the parties, but also, if the common law test is not met or is inconclusive, whether the expanded definition of 'employee' in subsection 12(3) of the SGAA applies. If a worker is not an employee under subsections 12(1) or 12(3) of the SGAA, their status is described as an independent contractor and there is no SG obligation. The task of defining the characteristics of the contract of service - the employment relationship - has been the subject of much judicial consideration. As a result, some general tests have been developed by the courts to assist in the determination of the nature of the relationship. However, defining the contractual relationship between the employer and employee can be difficult and will depend on the facts of each case. Accordingly it is necessary to determine the true nature of the whole relationship between the principal and the workers, as to whether there was a common law employer and employee relationship, or whether the workers meet the expanded definition of employee under subsection 12(3) of the SGAA. | Summary: The workers are considered to be common law employees as defined in subsection 12(1) of the SGAA. | Detailed Reasoning - Detailed reasoning: The Courts have considered the common law contractual relationship between parties in a variety of legislative contexts. As a result, a substantial and well-established body of case law has developed on the issue. Consideration should be given to the various indicators identified in judicial decisions. No list of factors is to be regarded as exhaustive and the weight to be given to particular facts will vary according to the circumstances. The totality of the relationship between the parties must be considered to determine whether, on balance, the worker is an employee or independent contractor. In deciding whether an individual is a common law employee, there are a number of common law factors to consider. The common law factors we have considered are discussed below. | Detailed Reasoning - 1. Terms of engagement: The fundamental task with respect to the terms of engagement test is to determine the nature of the contract between the parties. For this test, we must determine the nature of the contract between the parties. We will consider whether the contract is written or verbal and whether the terms and conditions are express or implied. These factors are important in characterising the relationship between the parties. It might be argued that the parties' intention in forming a contract is not subjective, but an objective one; that is, the task is not to discover the intention of the parties involved but to decide what each could reasonably conclude from the actions of the other. In the observation made by Isaacs J in Curtis v. The Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17: Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence. Many cases have arisen where Courts have disregarded such labels, because in law they were wrong, and have looked beneath them to the real substance. Therefore, simply defining someone as a contractor does not necessarily lead to the conclusion that the individual is providing services as part of an operation of their own independent business. In Hollis v. Vabu Pty Ltd (2001) 207 CLR 21 ( Hollis v. Vabu Pty Ltd ) it was noted that although no payments of annual leave or sick leave were given, and no superannuation deductions were made by Vabu in respect of the bicycle couriers, the relationship between the parties was found not merely from these contractual terms. The system which was operated under and the work practices imposed by Vabu went to establishing 'the totality of the relationship' between the parties and it is this which is to be considered Application of the common law to your case: The workers are paid a fee per day of work, plus reimbursement for costs in the commission of their services for the Principal. The workers must issue an invoice for the fee. Either party can terminate the Agreements at any time by providing the other party with prior written notice of termination. In the event of a breach by the Principal or the workers which they fail to remedy then the other party may terminate the Agreement. There is no provision in the Agreements for the Principal to provide annual leave, sick leave, and long service leave or workers compensation. Also the Principal does not pay any taxes or superannuation obligations which arise in relation to the payments made from the Principal to the workers. Based on the information provided and considering the relationship in totality, we are satisfied that the terms of engagement test in isolation is inconclusive. | Detailed Reasoning - 2. Control: The extent to which the employer has the right to control the manner in which the work is performed is the classic test for determining the nature of a working relationship. A common law employee is told not only what work is to be done, but how and where it is to be done. With the increasing usage of skilled labour and consequential reduction in supervisory functions, the importance of control lies not so much in its actual exercise, although clearly that is relevant, as in the right of the employer to exercise it. The mere fact that a contract may specify in detail how the contracted services are to be performed does not necessarily imply an employment relationship. A high degree of direction and control is common in contracts for services because the payer has the right to specify in the contract how the services are to be performed. Similarly, the right to supervise how the work is to be performed does not constitute a contract of service where the essence is one of independent contractor. Paragraphs 36 and 37 of SGR 2005/1 provide that while control is important, it is not the sole indicator of whether or not a relationship is one of employment. The approach of the Courts has been to regard it as one of a number of indicia which must be considered in determination of that question. Even though the modern approach to defining the contractual relationship is to have regard to the totality of the relationship between the parties, control is still an important factor to be considered. This was recognised by Wilson and Dawson JJ in Stevens v. Brodribb ((1986) 160 CLR 16 at 36) ( Stevens v. Brodribb) , where they state: In many, if not most cases, it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. Application of the common law to your case: Terms of the Agreements give the Principal the right to instruct, direct, and approve the activities of the workers. The workers are paid a fee on a per day basis that is set out in the Agreement. The hours of work are set in the Agreement. The workers are told by the Principal what work is to be done; and how and where it is to be done. The Principal under the Agreements has the right to exercise control. On the basis of the information provided, we are satisfied that the control test in isolation is more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - 3. Integration: Another significant factor in establishing the nature of a contractual relationship at common law is to determine whether the worker's services are an integral part of the employer's business (under a contract of service as an employee) or providing services as an individual carrying on his or her own business (under a contract for services as an independent contractor). This is known as the 'integration' test. If the worker's services are an integral and essential part of the employer's business that engages them, they are considered by the courts to be a common law employee. If the worker is providing services as an individual carrying on their own business, they are an independent contractor. It is necessary to keep in mind the distinction between a worker operating their own business and a worker operating in the business of the payer. The worker needs to be running their own business or enterprise and have independence in the conduct of their operations. In Montreal v. Montreal Locomotive Works [1947] 1 DLR 161, Lord Wright said: ...it is in some cases possible to decide the issue by raising as the crucial question whose business is it, or in other words by asking whether the party is carrying on the business, in the sense of carrying it on for himself or on his own behalf and not merely for a superior. Similarly, in Stevenson, Jordan and Harrison Ltd v. MacDonald and Evans [1952] 1 TLR 101 Denning LJ said: ...under a contract of service, a man is employed as part of the business, and his work is done as a integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it. The professional skills involved in carrying out the work are also a useful guide in determining whether a person is carrying on their own business or not. The provision of professional skills or skilled labour may imply that the contractor is able to make an independent career by selling that skill. In the case of a contractor with an independent career, it may be implied that the contractor is able to conduct their own business using those skills. This was highlighted in Hollis v. Vabu Pty Ltd at paragraph 48, where the court said in relation to bicycle couriers hired by Vabu: The couriers were not providing skilled labour or labour which required special qualifications. A bicycle courier is unable to make an independent career as a free-lancer or to generate any 'goodwill' as a bicycle courier… Consideration may also be given to whether the worker could be expected to generate goodwill in their own right. If the benefits from the creation of goodwill flow to the worker then this would indicate that they are an independent contractor. Alternatively, if goodwill flows to the principal, this suggests an employer/employee relationship. It is therefore necessary to consider whether the worker is providing services as part of the principal's business (under a contract of service as an employee) or providing services as part of their own business (under a contract for services as an independent contractor). Application of the common law to your case: The Agreements set out how the workers are to perform as part of the machinery of the Principal's business: The Agreements protect the goodwill and market share of the Principal's business. Conversely, there is no evidence in the application or Agreements that the workers are required to wear any uniform associating them with the Principal's business. The workers must issue a Tax Invoice for the fee for days of work. The workers must add and separately identify on each of their Tax Invoices all GST. If for whatever reason the Principal does not pay the fee when it becomes due, the workers may suspend providing the services then terminate the Agreements and cease providing the services for the Principal. On balance, however, the workers are accessories within the Principal's business rather than operating their own businesses. Therefore we are satisfied that the integration test in isolation is more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - 4. 'Results' test: Under a results based contract, payment is often made for a negotiated contract price, as opposed to an hourly rate. The meaning of the phrase 'producing a result' means the performance of a service by one party for another where the first mentioned party 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 do work. Satisfactory completion of the specified services is the result for which the parties have bargained. That is, a payment becomes payable when, and only when, the contractual conditions have been fulfilled. Where the substance of a contract is to achieve a specified result, there is a strong indication that the contract is one for services. In World Book (Australia) Pty Ltd v. FC of T 92 ATC 4327 ( World Book (Australia) Pty Ltd v. FC of T) Sheller JA said: Undertaking the production of a given result has been considered to be a mark, if not the mark, of an independent contractor. While the notion of 'payment for a result' is expected in a contract for services, it is not necessarily inconsistent with a contract of service. For example, the Full Court of the Supreme Court of South Australia in the decision of Commissioner of State Taxation v. Roy Morgan Research Centre Pty Ltd (2004) SASC 288 ( Commissioner of State Taxation v. Roy Morgan Research Centre Pty Ltd) , found that interviewers who were only paid on the completion of each assignment not on an hourly basis, were employees and not independent contractors. It was found that the workers were paid for their time spent and labour, and not to produce a result. Having regard to the true essence of the contract, the manner in which payment is structured will not of itself exclude genuine result based contracts. For example, there are results based contracts where the contract price is based on an estimate of the time and labour cost that is necessary to complete the task, or may even be calculated on that basis, subject to reasonable completion times. Generally, where a worker submits quotes or issues invoices for each job to the principal, this would be consistent with operating their own business. Nonetheless, the issuing of invoices is not necessarily determinative of the nature of the relationship. Accordingly, the contractual relationship as a whole must still be considered to determine the true character of the relationship between the parties. Application of the common law to your case: The terms of the Agreement specifically provide that the workers are paid weekly for the days worked on the basis of a daily rate and in accordance with the business hours set under the agreement upon the presentation of a weekly invoice. The workers' payments are not dependent on the completion of particular jobs or transactions or outcomes. While the Principal does not deduct any amounts from the workers for income tax or superannuation, the workers are entitled to receive payment or reimbursement for expenses or allowances. The facts and evidence indicate that the workers are under a contract of service with the Principal where they are paid to do work for three days a week, rather than a contract for services where the payment of fees becomes payable only upon satisfactory completion of the specified services. Overall, we are satisfied that the results test in isolation is more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - 5. Delegation: The power to delegate or subcontract (in the sense of the capacity to engage others to do the work) is a significant factor in deciding whether a worker is an employee or independent contractor. If a person is contractually required to personally perform the work, this is an indication that the person is an employee. If the contract does not expressly require the worker to personally perform the services, an independent contractor has the capacity to delegate or subcontract all (or some) of the work to others. Where the worker delegates, they are responsible for remunerating that worker. In the case of Neale (DFC of T) v. Atlas Products (Vic) Pty Ltd (1955) 94 CLR 419 at 425; 6 AITR 201 at 202, the High Court interpreted the words 'a contract which is wholly or substantially for the labour of the person to whom the payments are made' to decide that if a contract leaves a person completely free, if he or she chooses, to engage others to perform the work on his or her behalf means that the payments are not payments under a contract for labour. That is so even if the contractor actually does perform the work personally and had no intention of doing otherwise. If the contract leaves the contractor free to do the work himself or employ other persons to carry it out the contractual remuneration when paid is not a payment made wholly or at all for the labour of the person to whom the payments are made. It is a payment made under a contract whereby the contractor has undertaken to produce a result... When an employee asks a colleague to take an additional shift or responsibility, the employee is not responsible for paying that replacement worker; rather the employee has merely substituted or shared the workload. However, a clause in the contract may permit the worker to delegate the task to another worker subject to approval of the principal, as the principal may not want an unknown worker to be working on their site or who may not be suitably qualified. In the case of Bowerman v. Sinclair Halvorsen Pty Ltd [1999] NSWIRComm 21, Bishop J said: The fact that any substitute driver had to be approved by the company does not give the respondent [the principal] control over that delegation… the company surely had the right to be confident that any substitute driver was competent to do the job and maintain the "integrity" of the company as Mr Coomb put it. Therefore, under a contract for services, the emphasis is on the performance of the agreed services (achievement of the 'result'). A person who has a right to delegate work (whether or not that right is exercised in practice) does not work under a contract wholly or principally for their labour. Unless the contract expressly requires the service provider to personally perform the contracted services, the contractor is free to arrange for his or her employees to perform all or some of the work or may subcontract all or some of the work to another service provider. Application of the common law to your case: The Agreements contain no provisions stipulating whether workers may employ their own staff to assist in providing the services. The workers do not have the power to delegate or sub-contract under the Agreement. Overall, we are satisfied that the delegation test in isolation is more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - 6. Risk: Generally speaking, employers are vicariously liable for negligence and injury caused by their employees. However a principal will not be liable for negligence or injury caused by an independent contractor. The higher the degree to which a worker is exposed to the risk of commercial loss (and the chance of commercial profit), the more they are likely to be regarded as being independent. Typically, a worker who derives piece rate payments and sustains large outgoings would be so exposed. The higher the proportion of the gross income of the worker which is required to be expended in deriving that income, and the more substantial the assets which the worker brings to the tasks, the more likely that the contract is for service, or a contract with an independent contractor. As stated by McKenna J in Ready Mixed Concrete (South East) Limited v. Minister Pensions and National Insurance [1968] 2 QB 497 at 526: …the owner of assets, the chance of profit and risk of loss in the business of carriage are his and not the company's. 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. This is consistent with the focus on the chance of profit and the risk of loss as a traditional indicator that a worker is an independent contractor conducting their own business. Carrying their own insurance and indemnity policies is an indicator that a worker is engaged as an independent contractor. Application of the common law to your case: The terms of the Agreements do not provide that the workers must hold professional indemnity insurance or other types of insurance. The majority of risk is borne by the Principal. Overall, we are satisfied that the risk test in isolation was more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - 7. Capital - Provision of tools and equipment and payment of business expenses.: 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 his work by the employer. Furthermore, the employer is often also responsible for the business expenses incurred by the worker, since the worker has been integrated into the employer's business. Independent contractors carrying on their own business often provide and pay for their own assets, tools, equipment, maintenance costs and other expenses. Usually, they will have factored these costs in their overall fee or will seek separate payment for such expenses from the principal. In Stevens v. Brodribb at 36-37, the High Court observed that working on one's own account (as an independent contractor) often involves: The provision of him by his own place of work or of his equipment, the creation of him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion… Application of the common law to your case: The workers are integrated as employees into the business of the Principal as they may be provided with tools and equipment required for their work by the Principal; and the Principal is responsible for the business expenses incurred by the workers. Therefore overall, we are satisfied that the capital test in isolation is more in favour of the notion that the relationship between you and the workers is one of employer and employees. | Detailed Reasoning - Our conclusion regarding the common law definition of employee: With respect to the relationship between you and the workers, the facts and evidence provided points to the conclusion that the workers are common law employees of the Principal. | Summary: The workers are your employees by virtue of subsection 12(3) of the SGAA. | Detailed Reasoning - Detailed reasoning: The expanded definition of employee within subsection 12(3) of the SGAA, which states: If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract. SGR 2005/1 explains when an individual is considered to be an 'employee' under section 12 of SGAA. Paragraph 78 of SGR 2005/1 states that where the terms of the contract, in light of the subsequent conduct of the parties, indicate that: § the individual is remunerated (either wholly or principally) for their personal labour and skills; § the individual must perform the contractual work personally (there is no right to delegate); and § the individual is not paid to achieve a result. The contract is considered to be wholly and principally for the labour of the individual engaged, and he or she will be an employee under subsection 12(3) of the SGAA. Wholly or principally for labour In this context, the word "principally" assumes its commonly understood meaning, that is chiefly or mainly, and labour includes mental and artistic effort as well as physical toil. A contract may be partly for labour and partly for something else, such as the supply of goods, materials or hire of plant or machinery. Subsection 12(3) of the SGAA only applies if the contract is wholly or principally for labour. The workers are paid for work done during a normal work day. The workers are not required to provide equipment and tools required to perform the services. Business expenses are the responsibility of the Principal under the Agreements. Based on the available facts and evidence, we consider that the facts and evidence support that the workers are paid primarily for their own labour and skills. The individual must perform the duties themselves As discussed earlier, we consider that the facts and evidence indicate that the workers are required to perform the duties themselves and do not have the right to delegate work to others. Not paid to achieve a result As discussed earlier, we consider that the facts and evidence indicate that the workers are paid not for a result. | Detailed Reasoning - Our conclusion regarding the expanded definition of employee: Accordingly, as the workers do satisfy all three components of the expanded definition under subsection 12(3) of the SGAA, they do meet the expanded definition of employee as set out under subsection 12(3) of the SGAA. | Detailed Reasoning - Conclusion - overall: Upon considering all the available facts and evidence the Commissioner is satisfied that with respect to work performed for the Principal, the workers do meet the definition of employees for the purposes of the SGAA under both common law and the expanded definition provided under subsection 12(3) of the SGAA. Accordingly the Principal does have an obligation to pay SG contributions for the benefit of the workers under the SGAA.

Question 1: Are the workers considered to be common law employees as defined in subsection 12(1) of the Superannuation Guarantee Administration Act 1992 (SGAA)? | Question 2: Are the workers employees by virtue of subsection 12(3) of the SGAA?