LMC Logo

Latest News

Why employee v contractor comes down to fine print

The task of worker classification has been a long-running point of contention but the Commissioner’s response to recent court cases suggests a written contract is king.

.

The classification of an individual as an employee or contractor for PAYG and superannuation obligations has been a long-running point of contention.

With the High Court decisions of Jamsek and Personnel Contracting changing the determination process, together with the recent case of JMC Pty Ltd v Commissioner of Taxation potentially expanding the role of the contractor, the question before us now is: where are we with the Commissioner’s response?

Background

In 2022, Jamsek and Personal Contracting determined that the terms and conditions of a written contract between parties were what was relevant when deciding whether an individual providing services is characterised as an employee or a contractor. 

 

As a result, a written agreement between parties contains the determining factors in the employee v contractor issue (control, risk, integration of the individual into the principal’s business).

Provided the agreement is not a sham or has not been varied, it is not necessary for further facts and/or evidence to be gathered or considered by the parties in determining the outcome.

JMC Pty Ltd v Commissioner of Taxation [2023]

JMC was a superannuation case concerning whether sections 12(1) and 12(3) of the Superannuation Guarantee Administration Act 1992 applied to a contract primarily for labour.

The decision is important because including a term that allows for delegating or transferring someone's services in the written agreement will likely lead to them being characterised as a contractor instead of an employee.

The Full Federal Court clearly stated (paragraph 89):

“The right bestowed upon Mr Harrison to subcontract or assign the performance of his teaching services, subject to written consent, was a real and substantial right which was inconsistent with an employment relationship between him and JMC.”

This decision expands the potential for individuals to be engaged as contractors where their agreements have such a delegation authority, regardless of whether the principal approves the delegation. The fact that it exists is the primary issue.

This means that a principal may directly hire an individual for services without the need for any intermediary entity.

The Commissioner’s position

Taxation ruling TR 2023/4 outlines the Commissioner’s position.

It starts in a somewhat pedestrian fashion on the question “who is an employee” for PAYG, and reemphasises that it will be approached in a “holistic” manner.

But the key points in the ruling with respect to the question of employee v contractor are as follows:

  1. The delegation authority

The Commissioner accepts the position that a right to delegate or assign services, as evidenced in a written agreement, will indicate that the individual is not an employee.

However, there will be parameters in the contractual terms:

  •       Not be limited in scope (that is, the worker can delegate, subcontract, or assign the entirety of their work to another, as opposed to only discrete tasks)
  •       Not be a sham, and
  •       Be legally capable of being exercised.

The Commissioner goes on to state: “Whether the worker is, however, an independent contractor will depend upon an examination of the totality of the legal rights and obligations between the parties.”

It is unclear what the Commissioner means by this. It would appear without doubt that in JMC the weighting to the question of delegation was the substantial factor in favour of characterising an individual as a contractor (independent or otherwise).

  1. The comprehensive written agreement

A comprehensive written agreement that governs the entire relationship between the parties will be the evidentiary document in considering the employee and contractor divide. 

The Commissioner states:

“Where the worker and the engaging entity have comprehensively committed the terms of their relationship to a written contract and the validity of that contract has not been challenged as a sham, nor have the terms of the contract otherwise been varied, waived, discharged or the subject of an estoppel or any equitable, legal or statutory right or remedy, it is the legal rights and obligations in the contract alone that are relevant in determining whether the worker is an employee of an engaging entity.”

Notably, the Commissioner accepts that “evidence of how the contract was performed, including subsequent conduct and work practices, cannot be considered for determining the nature of the legal relationship between the parties”.

Consistent with this, the respective practical compliance guideline (PCG 2023/2) says that there will be low or very low risk outcomes where parties have a written contract expressing the employee v contractor outcome.

  1. The requirement for written advice

PCG 2023/2 also indicates that each party must commit to and understand the worker classification in their agreement.

The party relying on this classification will fall within the ‘”no risk” or “very low risk” category if they have “obtained specific advice confirming the classification was correct”.

The specific advice does not need to be in writing, but if it is, that will be given greater weighting in the Commissioner’s determination.

Takeaways

The employee v contractor classification is not straightforward.

The High Court’s direction has limited the question to the written agreement (where one is in place). However, issues and disputes between parties regularly arise for “handshake” agreements between friends when the relationship subsequently sours.

The lesson in such matters is simply to get everything in writing.

 

 

 

 

 

 

Phillip London
16 February 2024
accountantsdaily.com.au

 

Latest News

Louise McNeich

Louise is a CPA with a Masters in Professional Accounting and a diploma of Financial Planning. Louise has been in Public Practice for 21 years and has been the principal of LMC since 2012. With a focus on small business support services and self-managed super funds, Louise is passionate about helping small businesses achieve their potential through good cashflow management and strategies for success. Louise and her family enjoy the space and tranquility of the Noosa hinterland with a small acreage block complete with dogs, chickens, geese, ducks and donkeys!

Lesley Joyce

Lesley is our individual taxation specialist and has over 23 years experience in preparing individual and small business returns. Lesley loves country music and line dancing and having recently relocated closer to the coast, enjoys a walk along the beach. Lesley is a proud Nana to her 14 grandchildren.

SuzAnne King

Suzanne is our Client Service Coordinator. She has worked in accounting practices for 20+ years and has expert knowledge in all things relating to Corporate Compliance. She is an active local community volunteer. In her leisure time she enjoys wandering in ancient places and reading biographies.

Kristie Virgo

Kristie has recently joined LMC Financial Group in Office Administration and Reception. She has run her own interior design small business for 20 years and when she is not at LMC she continues to work with clients on the Sunshine Coast. Our new office space has been designed by Kristie and Louise and brings a fresh warm approach to accounting in Cooroy.

Kelly Waldron

Kelly has qualifications in accounting and bookkeeping and has over 20 years’ experience in these areas. Kelly is a local to the beautiful sunshine coast and town of Cooroy and is ready to help with all your accounting and bookkeeping needs, nothing is too difficult. Kelly loves spending time with her family and everything the Sunshine Coast offers, we do really live in paradise.

Jemma Gibbs

Jemma is local to Cooroy embarking on a new career journey with the LMC team. Working as a bookkeeper for her husband's lawncare business for the past 6 years and undertaking formal education in accounting and bookkeeping has inspired her to take the leap into a new industry after 15 years in HR and Administration. With a big, close-knit family, her weekends are spent with family and friends enjoying all the wonderful places the coast has to offer.

Business Taxation Services

No client too big or too small. At LMC Accounting we make sure we get to know your business, so that we can offer you sound financial and accounting advice and the best service possible, taking care of your tax obligations in a timely and efficient manner.

Business Activity Statements

Preparation and lodgement of Business Activity Statements (BAS) and Instalment Activity Statements (IAS). We can assist you with your quarterly, monthly or annual returns, reviewing your information, calculating your GST and PAYG tax liability and electronically lodging your BAS and IAS statements.

GST Advice

Getting the right advice on GST and tax is critical to your business. Work with one of our highly experienced and qualified agents and let us assist you in meeting your business taxation obligations.

Business Structure

What is the most appropriate business structure for you? We can advise you on the best structure to suit your financial needs. LMC Financial will discuss the advantages and disadvantages of each available business structure and help you to decide which business structure best suits your business model.

Business Setup

Starting a new business and not sure where to go or what to do first? We offer Proactive Strategies Business Setup and GST/ABN registration services.

Onsite Visits

LMC Accounting can visit your business and assist you with the most up to date accounting software options making your record keeping more streamlined for when it comes to reporting time.

Not For Profit

We offer bookkeeping and annual reporting assistance for Not for Profit organisations.

Tax Planning

Forward planning and prior preparation is key! Contact us today and give yourself the opportunity to minimise tax before the 30th of June!

Contact us today to discuss how we can work together: (07) 5447 0067 or email us at admin@noosaaccounting.com.au

Small Business Support

Bookkeeping

All small businesses must be built on a strong foundation of record-keeping. Without accurate information about business income and expenses, it is not possible to effectively plan, grow or sell a business.

We offer many options to suit various budgets and various sized businesses. We use all major accounting software providers so if you have a preference, that is fine too.

Cloud-based accounting software is a great way of keeping your business records up to date, easily accessible and at an affordable price – talk to us about your options today.

Tax & Reporting

Every small business has tax and reporting obligations every year, every quarter and even every month or week (think Single Touch Payroll!).

We can make sure your compliance is up to date and your reporting obligations are met in full and on time. Stress less and focus more on your business while we do what we do best – accounting!

We also provide comprehensive tax planning analysis so we can assist you to effectively plan for any tax issues.

Profit Planning

It is important to have good bookkeeping processes in place and be compliant with tax office obligations, but you also need to know if your small business is or will be profitable. Otherwise what is the point!

Let us help you examine where your business is at and create a Profit Plan to clearly identify your income goals, realistic expenditure items and potential profit-making opportunities as well as highlight any financial hurdles that may be in your way.

Profit Strategies

It is time to create real profit in your small business, real cash in a real bank account that you can spend without feeling guilty!

Knowing where your money is going and how much you actually have to spend at any point in time is a game-changer when it comes to creating real profit. We can assist you to put the processes in place to effectively manage your cashflow once and for all so that you never have to worry about that next BAS payment or super liability and at the same time, build real profit into your business.

Put your Profit First, not last and you will ensure that your business works for you not the other way around.

Growth & Equity

Your business is an asset and if you can ensure that your small business asset has value then you have an asset you can sell.

Imagine someone paying you for your business that you may have built from the ground up? All that time, money and energy is now being returned to you because you have created value in your business.

Learn how to create that value, ensure you have the processes in place so that you can spend time on your business not in your business and watch your business grow.

Contact us today to discuss how we can work together: (07) 5447 0067 or email us at admin@noosaaccounting.com.au

Self Managed Super Funds

Let us help with your Super Fund

Let LMC Accounting and Financial Services, Noosa, help you to decide if a self managed super fund is right for you and your financial circumstances. Setting up a DIY super fund can be a really straightforward process but it needs to be set up properly right from the start.

Do you want to simplify your Super Fund but don’t quite know where to begin. With support from us at LMC Accounting we can help you to make this happen, saving you unnecessary stress, time and money.

At LMC Accounting we make sure you understand all of your Self Managed Super Funds options and obligations as well as advice regarding rules, regulations and investments.

Have you thought about your retirement years? Are you concerned you may not have done enough preparation to live comfortably in your twilight years? The sooner you put plans in place, the greater benefits you will have in the long run.

We offer reasonable rates and efficient service coupled with the best advice. Contact us to find out how we can help you with your Super Fund requirements and planning for your future.

Contact us today to discuss how we can work together: (07) 5447 0067 or email us at admin@noosaaccounting.com.au

Personal Tax

We can help you with your individual tax returns including advice and assistance with:

  1. Work-related deductions
  2. Rental properties including short-stay rentals
  3. Investment income reporting including dividends and managed funds
  4. Capital gains including real estate, shares and crypto!
  5. Foreign income
  6. Non-resident tax matters
  7. Super contributions

Contact us today to discuss how we can work together: (07) 5447 0067 or email us at admin@noosaaccounting.com.au

Tax Diary

General Calculators

 

Accounting Videos

Secure File Transfer

Secure File Transfer is a facility that allows the safe and secure exchange of confidential files or documents between you and us.

Email is very convenient in our business world, there is no doubting that. However email messages and attachments can be intercepted by third parties, putting your privacy and identity at risk if used to send confidential files or documents. Secure File Transfer eliminates this risk.

Login to Secure File Transfer, or contact us if you require a username and password.

Terms & Conditions

Welcome to noosaaccounting.com.au. Before you begin using the service you must agree to these Terms of Use.

1. noosaaccounting.com.au is managed by LMC Accounting and Financial Services. noosaaccounting.com.au is hosted on noosaaccounting.com.au which is managed by Louise McNeich.

2. Your use of noosaaccounting.com.au is deemed to be your acceptance of these Terms of Use. Please read them carefully.

LAWFUL PURPOSES

3. You agree to use noosaaccounting.com.au only for lawful purposes, and in a manner that does not infringe the rights of or restrict or inhibit the use and enjoyment of noosaaccounting.com.au by any third party. This includes conduct which is unlawful or which may harass or cause distress or inconvenience to any person, the transmission of obscene or offensive content or disruption to noosaaccounting.com.au.

4. You must not post or transmit via noosaaccounting.com.au any unlawful, defamatory, obscene, offensive or scandalous material, or any material that constitutes or encourages conduct that would contravene any law.

DISCLAIMER

5. Your use of noosaaccounting.com.au does not:

6. noosaaccounting.com.au is not a substitute for independent professional advice and you should obtain any appropriate professional advice relevant to Your particular circumstances.

CONTENT

7. Comments on noosaaccounting.com.au are provided by, and are the responsibility of, the person or people who made such postings. We do not endorse, support, or guarantee the truthfulness, accuracy, or reliability of any the comments posted on noosaaccounting.com.au or endorse any of the opinions expressed.

8. We take reasonable care in linking to other websites but we have no direct control over the content presented in those websites or the availability of those websites.

9. We make no representation that the material on any linked websites does not infringe the intellectual property rights or any other rights of any person. We do not authorise the reproduction of such material.

10. We do not endorse or recommend any links to external websites, or third party content, including products and services offered by, from or through those websites or their content.

11. With the exception of the Commonwealth Coat of Arms and where otherwise noted, material presented onnoosaaccounting.com.au is provided under a Creative Commons Attribution 2.5 Australia licence.

SECURITY

12. The development and management of noosaaccounting.com.au is coordinated by us, however some interactions with noosaaccounting.com.au occur on systems under the control of third parties.

13. The Department of Finance and Deregulation is responsible for the security of information while it is collected by, stored on or passing through the noosaaccounting.com.au system.

14. We strive to protect comments and information you provide on noosaaccounting.com.au. We will use all reasonable endeavours to ensure that your comments and information are not compromised. However, we cannot guarantee that no Harmful Code will enter noosaaccounting.com.au. You should be aware of the risks associated with using websites.

15. We recommend that you use appropriate and up-to-date firewall and anti-virus software to protect your computer systems.

PRIVACY

16. For more information about how we protect your privacy and personal information, please contact us.

17. In order to participate in, and contribute to, noosaaccounting.com.au you may be required to register and provide an email address.

18. We will only use and disclose your personal information to a person, body or other Agency:

GENERAL

19. These Terms of Use are governed by the laws of the Australian Capital Territory, Australia and you agree to submit to the exclusive jurisdiction of the courts of the Australian Capital Territory.

20. If any of these Terms of Use are held to be invalid, unenforceable or illegal for any reason, the remaining Terms of Use will continue in full force.

21. These Terms of Use do not negate any Terms or Conditions that apply to your use of any other government website.

22. We may revise these Terms and Conditions from time to time.

23. Please contact us if you have any questions, problems or feedback regarding our site.

DEFINITIONS

Harmful Code – Any form of harmful surreptitious code or other contaminants, including viruses, bugs, trojan horses, spyware or adware.

You and Your means the user of this website and noosaaccounting.com.au.

Our, Us and We means the Commonwealth of Australia represented by LMC Accounting and Financial Services.