{"id":6064,"date":"2016-01-29T19:43:54","date_gmt":"2016-01-29T08:43:54","guid":{"rendered":"http:\/\/www.dbalawyers.com.au\/?p=6064"},"modified":"2023-04-05T15:38:21","modified_gmt":"2023-04-05T05:38:21","slug":"reconsidering-incorporated-contractors-in-an-sg-context","status":"publish","type":"post","link":"https:\/\/www.dbalawyers.com.au\/ato\/reconsidering-incorporated-contractors-in-an-sg-context\/","title":{"rendered":"Reconsidering Incorporated Contractors In An SG Context"},"content":{"rendered":"
Determining whether payments to a contractor are covered by the superannuation guarantee (\u2018SG\u2019) regime can be a vexed and difficult exercise. Of particular interest is whether an incorporated contractor is automatically outside the scope of the SG regime, such that SG contributions are not required to be made on their behalf to avoid a shortfall under the Superannuation Guarantee (Administration) Act 1992<\/em> (Cth) (\u2018SGAA\u2019).<\/p>\n This article will consider the legislative provisions and key Federal Court decisions, as well as providing practical guidance on the application of the SG regime to incorporated contractors.<\/p>\n Definition of an employee<\/em><\/p>\n For the purposes of the SGAA, an employee is defined in s 12 as a common law employee and a worker that falls within the expanded definition of an employee, which includes a person that works under a contract that is wholly or principally for their labour (s 12(3) of the SGAA).<\/p>\n What is a contract for labour?<\/em><\/p>\n In determining whether a contractor works under a contract that is wholly or principally for their labour, it is important to first consider what constitutes a contract for labour.<\/p>\n The Commissioner of Taxation (\u2018Commissioner\u2019) has outlined his view on when a contract for labour will be held to exist in Superannuation Guarantee Ruling SGR 2005\/1 \u2013 Superannuation guarantee: who is an employee?<\/em> (\u2018SGR 2005\/1\u2019).<\/p>\n The Commissioner will look at three key factors as follows:<\/p>\n It is not uncommon for incorporated contractors to be engaged under an independent contractor agreement and for a key person who is required to provide the services to the principal to also be a party to the contractor agreement. In this circumstance, the key person of the company has a legal obligation to provide the specified services to the principal and the principal has corresponding legal rights in respect of non-performance by the key person.<\/p>\n The difficulties that arise when contractor agreements are structured in this manner is discussed in greater detail below.<\/p>\n It is also not uncommon for principals to seek to equate delegation with the reallocation of work among a pool of contractors. It is important to remember that effective delegation requires the contractor to be legally responsible for remunerating the person or entity to whom the work is delegated. It is not sufficient for a contractor to arrange for another entity to undertake the work, where the obligation to remunerate the entity continues to rest with the principal. Thus, for delegation to be effective, the contractor would accept the particular job and then resource the job by delegating the tasks required to achieve the specified outcome to a sub-contractor for example. In this scenario, the contractor is legally liable for the fees it has agreed to pay to the sub-contractor, as well as any other applicable legislative requirements, such as workcover premiums. Similarly, the principal continues to be liable to pay the agreed fees to the contractor for the completion of the agreed job.<\/li>\n Can a company be engaged under a contract for labour?<\/em><\/p>\n It is commonly understood to be the case that a company cannot be a common law or deemed employee for SG purposes. This view has been confirmed by the Commissioner in SGR 2005\/1 at paragraph 13 as follows:<\/p>\n Where an individual performs work for another party through an entity such as a company or trust, there is no employer-employee relationship between the individual and the other party for the purposes of the SGAA, either at common law or under the extended definition of employee. This is because the company or trust (not the individual) has entered into an agreement rather than the individual. However, the individual may be the employee of the intermediary company or trust, depending on the terms of the arrangement.<\/em><\/p>\n However, it is important to keep in mind that SGR 2005\/1 is not binding on the Commissioner and represents the Commissioner\u2019s thinking 10 years ago, and that the law in this area has continued to advance.<\/p>\n In light of this background, we now consider how the Courts have treated incorporated contractors for SG purposes.<\/p>\n Roy Morgan Research Pty Ltd v Commissioner of Taxation<\/em><\/p>\n In the case of Roy Morgan Research Pty Ltd v Commissioner of Taxation<\/em> [2010] FCAFC 52 (\u2018Roy Morgan Research\u2019), it was found that some interviewers were engaged under the name of a company. It was held that while incorporation was a relevant factor, it was outweighed by other factors.<\/p>\n Ultimately, the fact that an interviewer was incorporated carried little weight because the entity selected to conduct the interviews was the individual interviewer, and the company featured only as the recipient of the fees.<\/p>\n This case highlights the issues involved in engaging a company, but requiring a key individual to perform the relevant services. Further, incorporation by itself is not sufficient to take a worker outside the scope of the SG regime where they would otherwise be caught. Thus incorporation was considered to be merely one factor to be taken into account and weighed in light of the totality of the circumstances. It is not a \u2018silver bullet\u2019 that automatically ensures a contractor is outside the scope of the SG regime.<\/p>\n ACE Insurance Ltd v Trifunovski <\/em><\/p>\n In Ace Insurance Ltd v Trifunovski<\/em> [2011] FCA 1204 (\u2018Ace Insurance\u2019), the Federal Court considered the status of insurance agents.<\/p>\n In this case, all of the contracts permitted the agents to operate, if they chose, through a corporation. As sub-regional representatives, Mr Peries and Mr Trifunovski did at certain times conduct their operations through their respective companies. However, despite these arrangements, the services were provided by Mr Peries or Mr Trifunovski. The Australian financial services (\u2018AFS\u2019) licence required the individuals to be authorised by the relevant AFS licence holder. This was an important factor in the ultimate decision of the Federal Court.<\/p>\n The Federal Court followed the decision in Roy Morgan research, stating that:<\/p>\n In substance, the corporate vehicle merely allowed the commissions to be received by the companies and for the incurring by them of expenses. As the Full Court noted in Roy Morgan Research at 464 [43] the Tribunal in that case had committed no error in giving this matter little weight when \u2018the entity selected to do the work… was the individual interviewer, and the company featured only as the recipient of the fees that would otherwise have been paid to the interviewer\u2019.<\/em><\/p>\n Thus the Federal Court held that a similar conclusion applies in this case as the incorporated contractor merely featured as a payment mechanism for the receipt of fees and payment of expenses. The Federal Court took the view that the relationship between the engaging entity and the company was not in substance a principal\/independent contractor relationship.<\/p>\n As a result of the Federal Court decisions in Roy Morgan Research and Ace Insurance, it is crucial to consider which entity in practice is actually being engaged to perform the relevant services. It is not sufficient to simply engage an incorporated entity under a contractual arrangement \u2013 it is still necessary to consider each factor in determining whether the contractor (or key person) falls within the scope of the SG regime, as the Courts will consider the substance of the relationship between the relevant parties in discerning the relationship. The principal and contractor \u2018cannot create something which has every feature of a rooster, but call it a duck and insist that everybody else recognise it as a duck\u2019 (Re Porter; re Transport Workers Union of Australia<\/em> (1989) 34 IR 179 at 184).<\/p>\n There is a risk that where a contractor operates via a company, but the dealings are in substance between the principal and a key person rather than the company, and the following factors are present:<\/p>\n it may result in a Court being willing to ignore the corporate structure.<\/p>\n In contrast, where an incorporated contractor has numerous employees, substantial equipment, business systems and goodwill, it is unlikely that payments to such a contractor will be deemed to be a payment to an individual engaged by the contractor.<\/p>\n It is commonly understood that a payment to a contractor that operates via a company is not covered by the SG regime. However, as the analysis above suggests, this is not a safe position to rely on without a more detailed examination of the overall circumstances to see if, in substance, the arrangement is primarily for an individual\u2019s labour.<\/p>\n As the cases outlined above demonstrate, this area of the law is complex and difficult to apply in practice. As Bromberg J noted in On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation<\/em> [2011] FCA 366:<\/p>\n the absence of a simple and clear definition which explains the distinction between an employee and an independent contractor is problematic\u2026 Workers and those who employ or engage them require more clarity from the law. That is particularly so when important legislation such as the Fair Work Act (and its predecessors dating back to 1904) have steadfastly avoided defining what is an employee, yet demand (on pain of civil penalty) that there be no misrepresentation as to the nature of the work relationship: see s 357 of the Fair Work Act.<\/em><\/p>\n We now examine what happens if the parties get it wrong. It is not uncommon for parties to intend to enter into a contractor arrangement, and for the ATO or the Courts to find that irrespective of each party\u2019s intention, the relationship is in fact an employment relationship. We outline the consequences that may follow below.<\/p>\n As the law currently stands, when a principal fails to make SG contributions on behalf of a contractor that is a common law or deemed employee for SG purposes, the principal is liable for the superannuation guarantee charge (\u2018SGC\u2019), which is calculated as follows:<\/p>\n Principals may also be liable for:<\/p>\n These penalties can apply irrespective of whether the failure to make SG contributions was an inadvertent mistake or misunderstanding in applying complex legislative provisions. The Commissioner does not have discretion to remit the SGC. This area of the law should be revised in view of the complexity of contractor arrangements that currently exist.<\/p>\n The inherent difficulty in the SG regime is the uncertainty of the \u2018deemed\u2019 employee test and whether a contract is wholly or principally for the labour of the worker. Determining whether a contractor is in fact an employee for SG purposes requires various factors to be weighed up and considered and a decision made on a case by case basis. Inevitably, there are factors that suggest a worker could be both a contractor and an employee (either under the common law definition or the expanded definition of employee for SG purposes) and the weighting given to each factor can vary depending on the specific circumstances. Therefore, principals cannot be certain that a worker is in fact an independent contractor merely because the worker is engaged via a company, especially where a key person is required to carry out the services.<\/p>\n If there is a SG exposure on any contractor arrangement, the PAYG implications should also be considered. Moreover, the workcover insurance and payroll tax legislation should also be considered as each area of the law has specific provisions dealing with contractors, even for those that operate via companies.<\/p>\n Please let us know if you require any assistance in determining whether a contractor falls within the scope of the SG regime or whether you require a review of any contractor arrangement to see if it needs restructuring.<\/p>\n Refer to prior related article: Determining whether payments to a contractor are covered by the superannuation guarantee (\u2018SG\u2019) regime can be a vexed and difficult exercise. Of particular interest is whether an incorporated contractor is automatically outside the scope of the SG regime, such that SG contributions are not required to be made on their behalf to avoid a shortfall [read more<\/a>]<\/p>\n","protected":false},"author":22,"featured_media":6066,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[25,27,33],"tags":[70,71,67,66,73,72,65,69,68,63,64],"ppma_author":[138],"yoast_head":"\nBackground<\/h3>\n
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Incorporated contractors<\/h3>\n
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What are the risks of getting it wrong?<\/h3>\n
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Conclusion<\/h3>\n
Related articles<\/h3>\n
\nEmployee or independent contractor — PAYG & SG — Part 1<\/a>
\nEmployee or contractor – High Court focus on contract v. multi-factors – Part 2<\/a>
\nEmployee or contractor – Payroll Tax considerations – Part 3<\/a>
\nReconsidering Incorporated Contractors in an SG Context<\/a>
\n<\/div>\n