Private ruling: Employee v contractor
Published: September 2012
Ruling period: Year ended 30 June 2012
Date scheme commenced: 1 July 2011

Ruling: Q1: Are the persons you engaged considered contractors or employees? | A1: Contractors


Relevant legislative provisions: Taxation Administration Act 1953 Section 12-35 of Schedule 1

Reasons for decision: Summary: Based on the information you have provided the Commissioner considers that engaged workers, described in the facts, are independent contractors and not employees. | Detailed Reasoning - Detailed reasoning: Section 12-35 of Schedule 1 to the Taxation Administration Act 1953 (TAA) provides that you must withhold an amount from salary, wages, commission, bonuses or allowances you pay to an individual as an employee. A determination of whether an individual under a specific arrangement is an employee must be made by a consideration of the total factual circumstances in light of all of the indicators determining the status of that individual. It is the totality of the relationship that needs to be considered. Taxation Ruling TR 2005/16 discusses the various indicators the courts have considered in establishing whether a person engaged by another individual or entity is an employee within the common law meaning of the term. These indicators include: · The control test: The degree of control which the payer can exercise over the payee. · The organisation or integration test: Whether the worker operates on their own account or in the business of the payer. · The results test: Whether the worker is free to employ their own means and is paid to achieve the contractually specified outcome. · The delegation test: Whether the work can be delegated or subcontracted (with or without the approval or consent of the principal). · The risk test: Whether the worker bears the legal responsibility and expense for the rectification or remedy in the case of unsatisfactory performance. Which party provides tools, equipment and payment of business expenses? | Detailed Reasoning - Control: A test for determining the nature of the relationship between a person who engages another to perform work and the person so engaged is the degree of control which the former can exercise over the latter. A common law employee is told not only what work is to be done, but how and where it is to be done. The importance of control lays not so much in its actual exercise as in the right of the employer to exercise it. A high degree of discretion or latitude in the manner in which a task is performed does not, of itself, indicate a contract for services. Further, although it is not uncommon for a contract to specify how the contracted services are to be performed, this does not necessarily imply an employment relationship. A high degree of direction and control is not uncommon in contracts of service. In contractual arrangements any control or direction must be expressed in terms of the contract only, so that outside the contractor is free to exercise their own discretion, because they work for themselves. In this case, there is no effective right of control over any of the engaged workers. The engaged workers are told where the job is and what work is to be done but how the work is to be done is at the discretion of the individual engaged worker. | Detailed Reasoning - Organisation or integration: In an employment relationship, tasks are performed at the request of the employer and the employee is said to be working in the business of the employer. An independent contractor carries on a trade or business of their own. An independent contractor enters into a contract to perform specific tasks and has a high level of discretion and flexibility about how the work is to be performed, even if the contract contains precise terms about methods of performance. An employee works in the business of the employer and the work performed may be said to be integral to that business. An independent contractor works for the payer's business but the work is not integrated into the business rather is an accessory to it. In your case, all engaged workers have specific skills which they all carry on in their own right. Often you schedule your jobs around the availability of engaged workers as they could be doing work for themselves or for some other business. | Detailed Reasoning - Results: Where the substance of a contract is for the production of a given result, there is a strong indication that the contract is one for services. 'The production of a given result' means the performance of a service by one party for another where the first-mentioned party is free to employ their own means (such as third party labour, plant and equipment) to achieve the contractually specified outcome. Satisfactory completion of the specified services is the 'result' for which the parties have bargained. The consideration is often a fixed sum on completion of the particular job as opposed to an amount paid by reference to hours worked. If remuneration is payable when, and only when, the contractual conditions have been fulfilled, the remuneration is usually made for producing a given result. In this case, engaged workers are paid on a piece rate basis. The engaged worker submits an invoice for the job once it is completed. | Detailed Reasoning - Delegation: The power to delegate or subcontract 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. Whereas if an individual has unfettered power to delegate the work to others (with or without approval or consent of the principal), this is a strong indication that the person is engaged as an independent contractor. The contractor is free to arrange for their employees to perform all or some of the work or may subcontract all or some of the work to another service provider. In these circumstances, the contractor is the party responsible for remunerating the replacement worker. A common law employee may frequently 'delegate' tasks to other employees, particularly where the employee is performing a supervisory or managerial role. However, this 'delegation' exercised by an employee is fundamentally different to the delegation exercised by a contractor outlined above. 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 workers have merely organised a substitution or shared the work load. This is not delegation consistent with that exercised by a contractor. Engaged workers are free to engage subcontractors without your consent. The engaged workers are responsible for the work performed by the sub-contractors. | Detailed Reasoning - Risk: An employee bears little or no risk of the costs arising out of injury or defect in carrying out their work. An independent contractor bears the commercial risk and responsibility for any poor workmanship or injury sustained in the performance of work. An independent contractor is usually expected to take out their own insurance and indemnity policies. Whether the worker is contractually obliged to accept liability for the cost, in terms of time or money, for the rectification of faulty or defective work is a relevant consideration in determining if that worker should be regarded as an employee or independent contractor. Commonly, an independent contractor or entity would solely bear the risk and responsibility of liability for their work if it does not meet an agreed standard and would be required to either rectify this defective work in their own time or at their own expense. An employee on the other hand, would bear no such responsibility and the liability for any defective work of the employee, either to a third party or otherwise, would fall to the employer in terms of the burden of cost or time for rectification. The risk for any job undertaken is borne solely by the engaged workers. If the final product is not completed to the satisfaction of the client the engaged workers are solely responsible for doing any rectification work. | Detailed Reasoning - Provision of tools and equipment and payment of business expenses: The provision of assets, equipment and tools by an individual and the incurring of expenses and other overheads is an indicator that the individual is an independent contractor. However, the provision of necessary tools and equipment is not necessarily inconsistent with an employment relationship. The provision and maintenance of tools and equipment and payment of business expenses should be significant for the individual to be considered an independent contractor. There are situations where very little or no tools of trade or plant and equipment are necessary to perform the work. This fact by itself will not lead to the conclusion that the individual engaged is as an employee. The weight or emphasis given to this indicator (as with all the other indicators) depends on the particular circumstances and the context and nature of the contractual work. Further, an employee, unlike an independent contractor, is often reimbursed (or receives an allowance) for expenses incurred in the course of employment, including for the use of their own assets such as a car. Engaged workers used are skilled in this industry. They all use the tools they deem necessary for a job. They all use their own tools. | Detailed Reasoning - Conclusion: After assessing the facts against the indicators in TR 2005/16, it is considered that the engaged workers are independent contractors and not employees.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet. | Relevant facts: You operate a specialised business as a sole trader. | You often schedule jobs around the availability of engaged workers. | In the past you have needed assistance, from others with similar specialised skills. | The individuals you engaged came and went depending on their availability. They may be unavailable as they may be working for a competitor or doing work for themselves. | Each individual you engaged works in their own style at their own pace on specific job sites. | Each individual purchases, maintains and uses their own tools. Tools used vary between individuals. | All individuals are paid on a piece rate per job, have ABNs and submit invoices to you for payment. | You have not paid superannuation, withheld tax from their payments nor have you made provision for sick or annual leave for any of these engaged workers. | Any person approached to work for you are under no obligation to do so. Your only involvement with any job given to an engaged worker is to provide the address where the job is. | All individuals are free to engage subcontractors to do the work for them, however the engaging individuals are responsible for the work done by the subcontractors. | If there is a problem with the final product on a job site the engaged worker is responsible for the rectification processes/costs to fix the problem. | The engaged individuals are not required to wear clothing which would identify them with your business.