A taxpayer has been successful before the AAT in arguing that workers engaged by it were not employees for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA).
The Commissioner had disallowed the taxpayer’s objection to assessments of a superannuation guarantee charge in respect of the taxpayer’s employment of certain workers in the quarterly periods from 30 September 2009 to 30 September 2011. It was not in dispute the taxpayer carried on the business of a plumbing services sub-contractor and for that purpose engaged the workers, being persons qualified to engage in plumbing in WA in accordance with how they were licenced. The Tribunal heard evidence from one of the workers and a director of an entity affiliated with the taxpayer. According to the director, the matter concerned 9 workers. The Tribunal heard evidence of the arrangements concerning how work was sourced by the taxpayer. It heard the taxpayer contracted through another entity (principal subcontractor), which has a contract with another entity which represented a government housing authority.
The Tribunal held the workers were not employees of the taxpayer within the ordinary meaning in accordance with s 12(1) of the SGAA. The Tribunal said: “Having regard in particular to the evidence in relation to control, to the non-representation of the employer by the worker, to the results character of the oral contract for engagement of the worker, to the capacity of a worker to delegate, to the assumption of risk by the worker and to the significant ownership by the worker of tools and equipment [the Tribunal] conclude that the workers were not employees within the usual meaning of that word.” Although noting the conclusion was reached without evidence from more than one worker, the Tribunal considered the evidence of the director adequately discharged the onus upon the taxpayer in relation to the workers generally. Accordingly, the Commissioner’s objection decision was set aside.
(AAT Case [2014] AATA 319, Re XVQY and FCT, AAT, Ref No: 2013/3292 – 3293, Nicholson DP, 22 May 2014.)
[LTN 98, 23/5/14]