The AAT has affirmed, in 5 separate cases (that were heard at the same time by the same AAT member), that jockeys were deemed “employees” of various NSW horse racing clubs, for super guarantee purposes, and that each relevant club, was liable to make super contributions, in relation to jockey riding fees, paid by the club.
The ATO had issued super guarantee charge assessments, to these clubs, on the basis that jockeys, riding in races conducted by those clubs, were their “employees” for super guarantee purposes. This was on the basis that:
- section 12(8) of the SGAA applied, to deem the jockeys ’employees’, as ‘performers paid to participate in a sport‘.
- the racing clubs were, by virtue of local racing rule LR 72, “the person liable to make the payment” (ie the riding fee) and thus they were deemed ’employers’.
- The Clubs were, therefore, obliged to make superannuation contributions, based on those riding fees, or pay the SGC tax (to the extent those contributions were not made).
The AAT agreed with the ATO that the assessments were correct, under s12(8) of the SGAA, but not under s12(3), as it did not consider the jockeys were hired under a ‘contract primarily for their labour’.
Armidale Jockey Club v FCT [2024] AATA 2726; Illawarra Turf Club Ltd v FCT [2024] AATA 2727; Australian Turf Club Ltd v FCT [2024] AATA 2728; Clarence River Jockey Club Ltd v FCT [2024] AATA 2729; Grenfell Jockey Club Limited v FCT [2024] AATA 2730; , AAT, Griggs SM, 30 July 2024.)
[FJM 17.8.24; LTN 153, 14.8.24]