Superannuation and independent contractors: fresh Full Federal Court guidance

In February 2022, the High Court handed down a landmark decision in ZG Operations v Jamsek, which clarified the test for determining whether a worker is an employee or an independent contractor.

 

The High Court remitted the question of whether the workers were “employees” under the extended definition of that term in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (the SGA Act) back to the Full Federal Court.

In deciding that the relevant workers were not “employees” under the extended definition in s 12(3), the Full Federal Court determined that s 12(3) does not apply to an independent contractor relationship where the worker uses a company, trust or other service vehicle to contract with the putative employer instead of doing so in their personal capacity. This confirms the ATO’s guidance in Superannuation Guarantee Ruling SGR 2005/1.

Additionally, in determining whether a worker is an “employee” under the extended definition in s 12(3), the Full Federal Court has confirmed that a worker will not be taken to work under a contract that is “wholly or principally for [their] labour” in the following circumstances.

Finding

Comment

The contract is for labour and non-labour (eg the provision of substantial capital assets or the assumption of risk) components, and based on a quantitative valuation, the non-labour components predominate.

In many independent contractor relationships, the contractor may be required to provide their own tools and equipment. Whether the contract is principally for labour or alternatively the provision of capital assets and the assumption of material risks is likely to turn on a valuation of the labour and non-labour components respectively.

The worker has the ability to delegate the performance of work under the contract to other persons.

The party that bears the onus of proof will need to substantiate the value of the labour and non-labour components through evidence.

The worker is engaged under a contract for a “result”.

This finding is consistent with previous case law and ATO guidance. The workers had a contractual right of delegation in this case.

 

Employers are required to provide their employees with a minimum level of superannuation support (currently 10.5%) each quarter, otherwise the employer will become liable to pay the superannuation guarantee charge. An “employee” for these purposes includes an employee at common law.

The SGA Act also includes a number of provisions which extend the meaning of “employee”. Relevantly, s 12(3) of the SGA extends the meaning of “employee”, so that: “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.”

This provision is broad and captures many independent contractor relationships. An entity that engages an independent contractor under a contract of this nature is required to provide the contractor with superannuation support (otherwise they will become liable to pay the superannuation guarantee charge).

Whilst there is nothing new about these conclusions at such a high judicial level, this is a prudent time to review independent contractor relationships.

Expansion of the superannuation net is inevitable.

 

 

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Mark Lisle

Mark Lisle

Mark is our managing partner and has been with the firm for over 36 years. He brings a wealth of experience in all areas of our business, including business advisory, taxation and self managed superannuation.

Mark’s ethos is that good advice stems from working closely with our clients and being prepared to go that extra step to assist them in meeting their goals and optimising their financial position.

Mark is a Fellow of Chartered Accountants Australia and New Zealand, an accredited SMSF Specialist and a registered SMSF auditor.

Outside of work, Mark enjoys trying to keep fit and spending time down at his “second home” in Port Fairy.

Josh Laing

Josh Laing

Joshua began working at Rundles in 1999 whilst still completing his Bachelor of Business (Accountancy) degree at RMIT. After graduating in 2001 he was admitted to the Institute of Chartered Accountants Australia and New Zealand in 2004. Joshua spent two years working in London before returning to Rundles in 2006.

Josh has a wealth of knowledge across a broad range of industries as well as in Self Managed Superannuation. Josh enjoys working with family groups and businesses to ensure they’re structured correctly to maximise asset protection, succession planning and management of tax.

Married with 2 children, Josh spends his weekends with his family and following the Tigers.

Brad Roach

Brad Roach

Brad has been a part of the Rundles Team since 1996 and became a Partner of the firm in 2014. During his time at Rundles, Brad has developed a strong relationship with his clients across a wide range of industries and is dedicated to assisting them to reach their personal and business goals.

Brad is passionate about seeing his clients succeed and utilises his extensive experience in public practice to provide a holistic service to his clients. He also has a wealth of experience in superannuation, particularly self managed superannuation funds.

In his spare time, Brad likes to play a round of golf with friends and enjoys watching his two sons play various sports.

Peter Davison

Peter Davison

Peter graduated from RMIT with a Bachelor of Business (Accountancy) with distinction in 1976. He joined Rundles upon graduating. Peter has been a member of the Institute of Chartered Accountants since 1979 and a Fellow since 1991. As an active yachtie of many years, Peter can often be found on the water. Otherwise, he and his wife spend time with their friends and extended family.

Sandy Gilbert

Sandy Gilbert

Sandy was admitted to the Institute of Chartered Accountants in 1973 and has been a Fellow since 1983. He gained extensive experience in auditing and accounting services over seven years at Pannell Kerr Forster before joining Rundles in 1973. Sandy is married with three children. A former amateur footballer of some note, Sandy is still an avid follower of the game and enjoys weekends at his country retreat.