Private ruling: Status of employee
Date of advice: 3 November 2023
Published: 18 December 2023
Date scheme commenced: 1 July 2023

Ruling: Q1: Are indigenous individuals engaged to provide ceremonial activities considered employees under subsection 12(8) of the Superannuation Guarantee (Administrative) Act 1992 (SGAA)? | A1: Yes.

Relevant facts and circumstances: The payer pays a number of indigenous people to provide various ceremonial activities such as Welcome to Country. A Welcome to Country is performed by Aboriginal Traditional Owners. These ceremonies vary from speeches of welcome to traditional dance and smoking ceremonies. The indigenous people are engaged as individuals.

Relevant legislative provisions: Superannuation Guarantee (Administration) Act 1992 section 12

Reasons for decision: Summary: Section 12 of the SGAA provides a definition of an employee. Subsection 12(8) of the SGAA [ Artists, musicians, sports persons etc] states that the following are employees for the purposes of this Act: (a)a person who is paid to perform or present, or to participate in the performance or presentation of, any music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills is an employee of the person liable to make the payment; (b)a person who is paid to provide services in connection with an activity referred to in paragraph (a) is an employee of the person liable to make the payment; (c)a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment. Indigenous individuals who conduct a Welcome to Country speech, traditional dance and smoking are paid for their personal skills to perform or present in ceremonies. The Commissioner considers these activities to be a presentation of artistic, musical or other personal skills and therefore they are considered employees under paragraph 12(8)(a) of the SGAA. As they are engaged as individuals, the payer is liable to pay superannuation guarantee to the indigenous individuals.