RWPY v CofT – Promotional makeup artist not eligible for JobKeeper – not carrying on a business

Late last year (24.12.21) the AAT agreed with the Commissioner, that a promotional makeup artist, who worked for a cosmetic company, as a contractor, was not carrying on a business, and was therefore not eligible to receive JobKeeper payments. This is another, in the flurry of JobKeeper cases, coming out late last month (Dec 2021).

The facts were these.

1. The applicant worked as a promotional makeup artist for a cosmetic company.
2. She was engaged as a contractor and had an ABN.
3. The company would allocate her work at its concession outlets in department stores.
4. She helped “beauty assistants” with sales and demonstrated the company’s cosmetic products for the benefit of shoppers.
5. Promotional makeup artists tended to work during peak times, such as Christmas, and during sales and did not work regular hours.
6. The applicant’s work was overseen and directed by the counter manager at each concession outlet.
7. That work was also integrated into that of the team with a view to achieving a “counter target”.
8. The applicant was required to wear the company’s uniform and use the company’s makeup products at work.
9. She was paid the relevant hourly rate, applicable to all promotional makeup artists, engaged by the company.

The issue was whether the applicant was carrying on a business and thus eligible to receive JobKeeper payments. Employees could get JobKeeper indirectly – namely: by payments to their employer, who’d suffered a 30% decline in turnover, but kept paying that employee’s salary or wages. Self-employed persons could get JobKeeper directly, but there was a threshold test of carrying on a business. See r.12(2)(a) of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 [Federal Register of Legislation – F2020L00419]

The AAT agreed with the ATO that she was not carrying on a business.

• In the AAT’s view, the applicant’s activities looked more like a casual employment arrangement under which she was rostered or allocated work on an as-needed basis rather than a business.
• Key factors were:
  • the applicant did not enjoy the sort of autonomy one would expect from somebody conducting their own business –
  • she had limited control over her working day and
  • she was not free to exercise judgment in the way in which she undertook her work;
  • there was nothing especially commercial about the applicant’s interaction with the company; and
  • her role was a supporting one, reflecting a relatively high level of integration into the company’s business.

(RWPY v CofT [2021] AATA 4921, AAT, McCabe DP, 24 December 2021)  [LTN 6, 12.1.22]

[Tax Month – January 2022 – Previous 2021] 11.1.22