This article forms part of the series “Contractors vs Employees – Shifting Sands for Medical and Allied Health Practices”
Determining whether an individual is an employee or contractor can leave you scratching your head. There is unfortunately little clarification in the context of superannuation entitlements and determining whether payments to a contractor are covered by the superannuation guarantee (SGC) regime further blurs the line between contractor and employee.
The SGC is administered under the Superannuation Guarantee (Administration) Act 1992 (SGAA). In addition to including all individuals who the common law characterises as an employee, through an assessment of all of the factors involved in the relationship, the definition of an “employee” in the SGAA is extended to include a person who works under a contract that is wholly or principally for their labour (contract for labour). This gives rise to the following questions: are my contractors, in fact, contractors? Or are they employees? Even if they are contractors, am I required to pay Superannuation?
When are contractors owed Superannuation?
The Tax Office Superannuation Guarantee Ruling SGR 2005/1 consider three factors to determine whether a person who engages a contractor must pay the SGC:
• is the individual remunerated for his or her personal labour and skills;
• is the individual required to perform the work personally, or do they have the ability to delegate; and
• is the individual paid to produce a result (or merely for their time or efforts)?
Depending on the answers to these questions, superannuation obligations may arise even where a person is otherwise a genuine independent contractor.
The allied health industry is at particular risk of this occurrence because of the nature of the work or services provided by health professionals. The SGC must be paid at least 4 times per year (in accordance with the quarterly due dates) if a minimum level of superannuation contributions, currently 9.5% of an employee’s ordinary time earnings, are not made on behalf of all of your “employees”. This means, your practice may be at significant risk of being held liable for backdated superannuation entitlements, even where, for example, a doctor, clinician or other professional was expressly hired under the label “contractor”.
For example, in the recent case of Moffet v Dental Corporation Pty Ltd  FCA 344, the Federal Court found that even though a dental practitioner was, in the particular circumstances, properly characterised at common law as an independent contractor, he was nevertheless an “employee” for the purpose of the SGAA.
Consider your current arrangements and review your practice structure. We invite you to contact us with any questions.
Senior Associate, Employment Law and OH&S Dispute Resolution and Litigation - Harwood Andrews
Sonia provides advice, representation and regular business support to employer clients in a wide variety of employment and industrial relations matters, including defending and resolving dismissal, discrimination and general protections claims, advising on transfers of business and employment, representing employers in union disputes and advising on disciplinary procedures, post-employment restraints, redundancies and protection of business information and intellectual property.
Sonia applies her dispute resolution background and experience to assist employers in taking commercial and proactive steps to prevent and minimise their employment risks, including by ensuring that employment documents such as employment agreements, policies and enterprise agreements are legally compliant, suited to the needs of each client’s business and provide future protection for employers.
Principal Lawyer - Harwood Andrews Lawyers
Paul brings experiences as in-house counsel, private legal advisor and business owner to his role as a Principal Lawyer with Hardwood Andrews.
Aligning with his philosophy that good professional advice can be transformative to business Paul is valued for distilling issues down to what is really important and being prepared to make a risk call based on judgement and experience.