Article by Andrew Tobin, Partner
4. 'Employer' obligations and liabilities in relation to contractors
4.1 PAYG withholding tax
Under the PAYG withholding system, a person who makes certain kinds of payments must withhold amounts from those payments and pay the withheld amounts to the Australian Taxation Office (ATO). Employers must withhold PAYG tax from any salary, wage, commission, allowance or bonus paid to an employee.
Generally, there is no PAYG obligation attached to payments made to contractors, but there can be exceptions.
The limited circumstances in which a principal is required to withhold PAYG tax from payments made to a contractor are where the contractor:
- enters into a voluntary agreement with the employer to withhold PAYG tax;
- provides their work or services for a client of the principal under a labour hire arrangement; or
- has not quoted their Australian Business Number (ABN) to the employer.
Failure to withhold and remit amounts required to be withheld under the PAYG system may result in unexpected tax liabilities, plus associated penal liability. For advisers seeking to help parties structure their affairs, the potential impact of tax laws needs to be considered carefully to ensure that relevant obligations are met.
4.2 Statutory superannuation
Under the Superannuation Guarantee Scheme (SGS), employers are generally required to make compulsory superannuation contributions for their employees at (currently) the minimum rate of nine percent of ordinary time earnings. In this context, the meaning of 'employee' and 'employer' is determined by the common law, with the result that, in many situations, the obligation imposed upon employers to make superannuation contributions for workers does not apply to contracting arrangements.
However, the SGS legislation deems a person to be an employee if a person works under a contract that is wholly or principally for the labour of the person.22 A contract for a person's labour is one where the work must be done by the person engaged to do it, as distinguished from an engagement where, for example, the contractor is free to engage other workers to do the work.
Where the deeming provisions applies, and whether or not the contractor has an ABN and for other purposes can be treated as a contractor, the principal will be liable to make superannuation contributions for the contractor under the SGS.
There are adverse consequences for a principal/employer who fails to make superannuation contributions as required. Employers may incur a non-deductible superannuation guarantee charge and additional costs and penalties for late payment.
4.3 Workers' compensation
The liability to include a worker under statutory workers' compensation insurance arrangements is another area in which those engaging workers as contractors commonly misunderstand their obligations.
The aim of the Workers' Compensation and Rehabilitation Act 2003 (Qld) (WCRA), is to require employers to maintain insurance that covers against legal liability for compensation or damages arising out of injury sustained by their workers during the course of employment. The employer is required to take out insurance under the legislation for each 'worker' employed by the employer.
The definition of 'worker' adopted by the legislation includes not only workers engaged under a contract of service (employees in the usual sense), but also (and among others):
- a person who works under a contract, or at piece work rates, for labour only or substantially for labour only; or
- a person who works for another person under a contract unless the person performing the work:
- is paid to achieve a specific result or outcome;
- has to supply the plant and equipment or tools of trade needed to perform the work; and
- is, or would be, liable for the cost of rectifying any defect in the work performed.23
In every case it will be necessary to consider whether the terms and nature of a particular contract are such so as to exclude the arrangement from liability to insure under the workers compensation legislation. If a worker suffers an injury where a policy of insurance should have been but was not taken out, WorkCover can recover the premium that should have been paid from the employer, plus a penalty of up to 100 percent, and the entire cost of the claim (ie any damages paid to the worker), plus a penalty of up to 50 percent.24
The risk of injury to a contractor, even where there is no liability to insure, should at least be considered by the parties, particularly an employer, when putting together a contracting arrangement. It will often be appropriate and prudent for the parties to make alternative insurance arrangements. In the absence of insurance cover there will always be a risk, in the event of injury to a worker, that a claim will be made against the employer seeking to establish liability for the injury. The fact that liability might not be established will be of little comfort to an employer who nevertheless has to incur time, trouble and expense in defending such a claim.
The other thing to bear in mind in relation to workers' compensation issues is that workers' compensation legislation is State-based legislation subject to different rules in different States. If a prospective contract will or might involve work outside Queensland, the insurance requirements in each relevant jurisdiction will need to be considered and appropriately managed.
4.4 Payroll tax
Payroll tax is a State/Territory based tax imposed on employers in respect of 'wages'. As such, payroll tax rules also vary between the States and Territories and the requirements of all jurisdictions relevant to any particular contracting engagement will have to be considered.
In Queensland the payroll tax rate is 4.75 percent once total wage payments exceed the tax exemption threshold of $1,000,000 in a financial year. Different rates and thresholds apply in other jurisdictions.
Before 1 July 2008, the Queensland payroll tax legislation did not impose payroll tax on remuneration paid to contractors - rather, it attached to 'wages' paid to 'employees' proper in respect of services performed within Queensland. Because of this, payroll tax was not, at least in Queensland, previously an issue impacting upon genuine contracting engagements.
However, this changed under the payroll tax harmonisation process undertaken by the Queensland Government – to bring the Queensland payroll tax rules into line with those applicable in other States – which took effect from 1 July 2008.
So far as contracting engagements in Queensland are now concerned, the current rules deem parties to a 'relevant contract' to be an employer and employee, and payments made under such a contract to be 'wages'.
Practically speaking, the effect of the contractor provisions now in the legislation will be to rope service fees paid to contractors working in Queensland into the payroll tax system in a wide range of situations (subject to a number of exemptions), when prior to 1 July 2008 most payments to contractors would not have been caught.
Potential exemptions include, among others:
- '90-day exemption': A contract may be exempt from payroll tax if a person provides the principal with the same or similar services provided by the principal's business, for a total of not more than 90 days in a financial year. On the 91st day, the entire period becomes liable for payroll tax.
- '180-day exemption': This exemption may be applicable where the contract relates to the provision of services of a kind ordinarily required by the principal's business, for less than 180 days in a financial year.
- 'Not ordinarily required exemption': This exemption may operate to exempt a contract under which the contractor provides services to the principal not ordinarily required by the principal, and where the contractor provides the same services to the public generally in the relevant financial year.
- 'Contractor engages others exemption': This exemption may exempt payments made under a contract where the contractor engages others to provide the services they are contracted to provide, or two or more people are needed to fulfil the purpose of the contract. The exemption does not apply if the contractor is a partnership of persons engaged to do, and who themselves do, the work.
Where payroll tax should have been paid but was not paid and that situation is discovered by the Office of State Revenue, not only will the employer incur the principal liability that should have been discharged, but potentially also an additional penalty of up to 200 percent of the tax due.
4.5 Vicarious liability
As a general rule, employers/principals are not vicariously liable for injuries, or damage caused by, contractors in the course of their work.25 The theoretical underpinnings of this rule are based on the premise that a contractor is in business for him or herself on their own account and the principal employer has no right to control how the contractor's work is done.
Aside from the fact that there are recognised exceptions to the general rule, the classification of a worker as a contractor is not an infallible means by which to avoid the prospect for vicarious liability for the consequences of their negligence or other conduct.
The decision of the High Court in Hollis v Vabu26 demonstrates the potential exposure.
In that case, the facts of which are discussed further below, the principal issue for determination was whether or not the defendant employer, Vabu, was vicariously liable for the negligence of one of the employer's workers, a bicycle courier, which resulted in injury to the plaintiff, Mr Hollis.
Vabu resisted the claim on the basis that their worker was a contractor, while the injured Mr Hollis argued that the worker was an employee. The dispute was ultimately determined in favour of the injured plaintiff, on the basis that the worker was in fact an employee of the employer so that the employer was vicariously liable for the worker's conduct.
Justice McHugh, departing from the majority judgment, found that the worker was neither an independent contractor nor an employee of the employer but that, nevertheless, the employer was vicariously liable for the worker's conduct. He expressed the view that the case was not one in which the definitions of employee or contractor should be stretched to encompass the role the workers/couriers performed. In his view the couriers were clearly not independent contractors but, equally, they were not employees. Instead, His Honour thought that the case provided an opportunity to adapt the doctrine of vicarious liability to better fit with the modern workplace environment, based on policy considerations:
Ultimately His Honour determined that while the defaulting worker was neither an independent contractor nor an employee, but should probably have been characterised as an agent for the employer, the employer was nevertheless vicariously liable for courier's negligence.
Similar considerations arose in the later High Court decision in Sweeney v Boylan Nominees Pty Ltd27, where a majority appeared to reject any wider principle of vicarious liability, of the kind for which McHugh J advocated in Vabu.
In Sweeney, the plaintiff sought to recover damages for personal injury from Boylan, as the result of the negligence of a contract mechanic retained by Boylan, to repair a refrigerator otherwise maintained by Boylan. The door of the refrigerator, which was in use at a convenience store, fell on the plaintiff after the mechanic had serviced it.
The court held, by majority, that Boylan was not vicariously liable for the actions of the mechanic, because he 'did what he did not as an employee... but as a principal pursuing his own business or as an employee of his own company pursuing its business'. In their joint judgment, the majority said that:
Those bounds should not now be redrawn in the manner asserted by the appellant.
Justice Kirby dissented, saying that the Court had to keep in mind the changing social conditions that affected economic activities of employment, or quasi-employment in contemporary Australia.
He would have found, relying on one of the recognised (and seemingly narrow) exceptions to the general rule described above, Boylan liable to the plaintiff, on the basis that the mechanic was the representative agent of the party sued, performing that party's functions and advancing its economic interests, effectively as part of its enterprise.28
While the decisions in Vabu and Sweeney support the general rule described earlier, the point to be made is that determining whether an employer is vicariously liable for the actions of a contractor will not always be straightforward. In both cases, for different reasons, expensive and protracted litigation took place before the liability of the principal/employer for the conduct of 'their' worker was determined.
There are at least two practical things that employers can do, in planning contracting arrangements, in order to mitigate the prospect for exposure to vicarious liability:
- First, relevant risks inherent in the work need to be identified and managed, in much the same way, as far as possible, that those risks are managed for proper employees.
- Second, the parties should ensure that, as far as possible, relevant risks are underwritten by appropriate policies of insurance. It may be that the principal will be able to insure for at least some risks of the contractor's activities or, alternatively, is in a position to require the contractor to take out and maintain appropriate insurance coverage.
If appropriate precautions are observed, where a compensable event occurs, hopefully the parties will never have to contribute, through litigation, to developing the law upon the subject of vicarious liability or otherwise be put to the time, trouble and expense associated with managing claims and claims liability.
Other areas in which liability for the activities of contractors and/or a contractor's workers might be 'vicariously' acquired by the employer include breaches of workplace health and safety obligations or discrimination laws.
Depending on the precise circumstances of a particular contracting arrangement, it may be necessary for the principal to seek to manage risks of these kinds in the same way that those risks are managed in the case of the principal's own employees. Risk management processes may include, for example, the necessity to induct workers in relation to occupational health and safety management issues and to train them in relation to discrimination issues. It is simply not possible for the employer to ignore those matters on the basis that the nature of the arrangement between the parties, as a contracting arrangement, exculpates the employer from possible claims.
5. Tax considerations
5.1 Income splitting and tax deductibility of worker expenses
The taxation of 'personal services income' (PSI) is regulated by Australian tax law specifically to prevent individuals from reducing their tax liability by:
- seeking to alienate their PSI to an associated company, partnership, trust or individual; or
- claiming inappropriate 'business' expense tax deductions.
While the issue of tax liability will predominantly be one for a prospective contractor, a prospective principal, for obvious reasons, also has an interest in the viability of a proposed contracting arrangement. If it is assumed that the profitability of the contracting arrangement depends, among any other considerations, on assumptions about liability for tax, then the parties need to be sure that those assumptions are correct.
An assumption that the PSI regime does not apply, where it does, may result in parties making an arrangement that is not economically viable, particularly if additional tax liabilities and penalties are incurred long after the relevant events.
Where it applies, the PSI regime generally:
- ignores income splitting arrangements, and treats the whole of the PSI as assessable income in the hands of a the individual who earned it; and
- restricts allowable deductions to those that might legitimately be claimed by 'employees' working as such.
PSI is income mainly earned as a reward for an individual's personal efforts or skills, regardless of whether the income is treated as income of a company, partnership or trust. Outside a typical employer/employee arrangement, PSI will usually apply if the majority (more than 50 percent) of the income received is generated by the skills, knowledge, expertise or efforts of the individual who performs the services. Income is not considered PSI if more than 50 percent of the income received is for the supply of materials and/or tools and equipment used to complete a job.
Whether or not income is PSI is a question of fact depending on the circumstances of each case.
The PSI tax regime exempts income earned from a genuine 'personal services business' (PSB). An entity may be considered a PSB if the entity can pass either the 'results' test or, alternatively, the '80 percent rule' applies.
To meet the results test in a particular tax year, the tax payer has to meet the following conditions in relation to at least 75 percent of their PSI in that year:
- The income received is based upon the achievement of a result or definitive outcome. Services rendered on a time or similar basis do not pass the test.
- The tax payer provides their own plant and equipment and/or tools of trade needed to perform the work.
- The tax payer is or would be liable for the cost rectifying any defect in the work performed.
If the tax payer cannot meet all the conditions of the results test, they may still be treated as a PSB if the 80 percent rule can be satisfied. The 80 percent rule requires that no more than 80 percent of the tax payer's PSI, in the relevant year, is earned from one client. If the tax payer only received income from one client in a relevant year they will usually be subject to the PSI regime.
If neither the results test nor the 80 percent rule is satisfied, a tax payer will generally be subject to PSI rules unless one or more of the following tests are satisfied:
- Unrelated client test
- The tax payer generates income by providing services to two or more entities that are neither related to each other nor to the tax payer; and
- the services are provided as a direct result of the tax payer's solicitations for that business. An example is where the tax payer advertises, direct to the public at large or to a section of the public.
- Employment test
At least 20 percent (by market value) of the worker's principal work for the year is performed by other independent persons (employees or sub contractors) or entities.
- Business premises test
Business premises are maintained exclusively for use by the business. This requires the tax payer to maintain and use premises from which their PSI is earned, of which there is exclusive use and which is separate from the tax payer's main residence and the premises of any client.
If the parties perceive that their proposed arrangement does not contemplate the conduct by the intending contractor of a PSB, it may be that the entire arrangement will serve no practical purpose. The cautionary tale for advisers to prospective parties to these types of arrangements is to ensure that they are not contracting based on mistaken assumptions as to their tax liabilities.
6. 'Contractor' or 'employee'? Tests for telling the difference
The differences between an employee and a contractor can be complex and are not easily summarised. There is an enormous body of case law devoted to the issue. Furthermore, as previously discussed, some legislation extends the definition of 'employee', treating contractors as employees for some purposes.
The only conclusion to be drawn from the many cases and legal principles in the area is that the nature of an employer's relationship with a worker will depend on the facts of each case, and the legal context in which the determination has to be made. For example, while it may be incumbent on an employer to account for payroll tax on remuneration payments made to a 'contractor', just as if the contractor was an 'employee', that may not necessarily lead to a conclusion that the worker must also be treated as an employee for the purposes of the unfair dismissal laws.
For most purposes, however, an 'employee' is a person employed under a 'contract of service' to provide his or her personal service to the employer, whether indefinitely or for a discrete period of time. Most elements of an employment relationship are significantly controlled by the employer as to where work is done, what work is done, how work is done and so on.
A contractor is engaged under a 'contract for services' to achieve a defined result or to deliver certain outcomes. The focus of a contracting arrangement is on outcomes rather than on the relationship itself or the way in which outcomes are achieved. Unlike employees, contractors are not necessarily engaged to provide services personally and, usually, may delegate tasks to others. Contractors may also be engaged through a corporate vehicle. The existence of these features will generally vitiate an employment relationship.
But these basic statements of principle often provide little practical guidance in assisting parties, courts or administrative authorities to characterise the precise nature of particular relationships. The result is that the various courts and tribunals that have been concerned with the subject from time to time have, over time, developed a range of tests to assist that process. While some enjoy more popularity in some jurisdictions than others, all have the capacity to be useful in particular fact situations.
6.1 The 'control' test
Probably the most recognised test is the 'control test'. The control test is not a rule of law but it has been historically considered to be a commonsense criterion for determining the existence of a legal relationship and its application always turns on the facts of a particular case.
The test was set out by McCardie J in Performing Right Society Ltd v Mitchell & Booker Ltd29:
The High Court has, however, made a move away from a singular control test and has showed a preference for considering the totality of the relationship between the parties.30 Control held over the worker, however, still remains a distinctive consideration taken by the courts when considering the classification of the relationship.
Schedule 1 to this paper includes references to cases and judicial statements, including recent cases and statements, demonstrating the ongoing use of the control test.
6.2 The organisation test
The organisation test was developed due to the difficulties posed by the control test in determining the distinction between an independent contractor and an employee. The organisation test was developed as a 'subsidiary check on a conclusion to which an analysis in terms of control was tending in any event'.
The High Court's move away from the control test has also seen a shift in reliance on the organisation test.31 Nevertheless, the organisation test is still recognised as a distinctive consideration in determining the status of the employment relationship.
The organisation test was formulated by Denning LG in Stevenson, Jordan and Harrison Ltd v McDonald and Evans32:
6.3 The multiple indicia test
The approach currently being adopted by the courts is that it is only by making a balanced evaluation of all the features of a relationship that one can determine whether there is a sufficient quality and quantity of control by one party over another to indicate the existence of an employment relationship.
This test is known as the multiple-indicia test and the High Court of Australia considers it the primary test to be used.
The High Court in Stevens v Brodribb Sawmilling Co Pty Ltd33 outlined the multi-indicia approach:
It is 'no longer sufficient to consider only the extent to which the employer may exercise control (whether actual or the authority to do so) over those sought to be characterised as employees'. However, it must be noted that in most cases it is still appropriate to apply the 'control test' in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee.
The approach adopted in Stevens was confirmed in the High Court decisions in Vabu and Sweeney.
The facts in Vabu were that the plaintiff, Mr Hollis, was struck by one of Vabu's bicycle couriers and as a result suffered permanent damage to his knee. Mr Hollis sued Vabu, alleging that it was vicariously liable for the negligence of the courier as they had been engaged as an employee. Vabu sought to avoid liability on the basis that its couriers were engaged as independent contractors.
The High Court ultimately decided, overruling the courts below, that the courier was an employee and that Vabu was vicariously liable for the courier's negligence. In the argument before the High Court and the NSW Court of Appeal below, Vabu had relied upon the findings of a previous decision of the NSW Court of Appeal involving the same relationships (ie those between Vabu and its couriers) in litigation with the ATO relating to Vabu's liability to pay statutory superannuation contributions.34 In the earlier decision, the NSW Court of appeal had relied on the following factors to conclude that the couriers were contractors so that superannuation contributions were not payable for them by Vabu:
- The couriers supplied and maintained their own vehicles at their own cost.
- The couriers described themselves as independent contractors (and they were taxed as contractors, not employees).
- The couriers provided the tools necessary to do their work (bicycles, street maps, and so on).
- The mode of remuneration was a fixed rate per kilometre rather than a wage or salary.
In determining the claim by Mr Hollis, the High Court disagreed with these conclusions and held that the Court of Appeal in the earlier decision had placed too great an emphasis on the couriers owning and maintaining their own bicycles and providing their own equipment. In deciding that the relationship was one of employer and employee, the court referred to the following indicia:
- The couriers had little or no control over the manner in which they performed their work.
- The couriers were required to wear a uniform which presented them to the public as emanations of Vabu.
- Vabu was aware of the dangers which its couriers presented to pedestrians, yet failed to adopt any means for personal identification of individual couriers by the public.
- Vabu administered the couriers' finances and offered no scope for couriers to bargain for their remuneration. In addition, their employment left the couriers with limited scope for undertaking any business enterprise of their own.
- The fact that the couriers were required to supply their own transport and equipment was not determinative.
When considered practically, the High Court decided that the couriers were not running their own business, nor did they have any real independence in conducting their work.
The various 'indicators' to which the multiple indicia test is directed can include:
- The parties' intention as to the type of relationship they want to have.
- The exercise of (or capacity to exercise) control over the work and the manner in which work it is performed. Contractors will often retain a high degree of discretion over how tasks are performed.
- Whether work is undertaken for others. An employee may have to work exclusively or primarily for the employer whereas a contractor will generally be free to work for other employers.
- Control over the hours worked. An employee is usually required to work a minimum or set number of hours, whereas a contractor may often be free to set their own hours of work provided the tasks for which he or she is engaged are completed.
- Supply of tools and equipment. An employee is often required to use the employer's equipment. A contractor will generally provide their own tools and equipment.
- Business premises. Employees will generally have to work on the employer's premises, whereas a contractor may have a separate business premises.
- Advertising. Independent contractors will generally advertise their services to the public.
- Delegation of work. A contractor is usually entitled to delegate work to employees or subcontractors.
- Dismissal. An employee will be subject to dismissal at the initiation of the employer. A contractor, however, is usually engaged to complete a given task and the relationship may end once that task is over.
- Reimbursement of work expenses. An employee is invariably reimbursed for his or her work related expenses. A contractor will often bear their own expenses.
- Presentation. An employee will often be presented to the public as an emanation of the employer's business (eg through work arrangements, clothing or vehicle signage) while a contractor will often present to the public as carrying on business for themselves.
- Entitlements. Contractors will not usually be entitled to annual leave, sick leave and long service leave.
- Wages. Contractors are generally paid to produce a result, while employees are usually remunerated by reference to hours worked or a piece rate.
- Tax arrangements. Contractors will normally quote an ABN and invoice for their services (with or without charging GST).
Schedule 2 of this paper provides a checklist setting out the indicators above and related matters.
6.4 Economic reality/dependence test
Mention should finally be made of the economic dependence test. Although this test has not received considerable support from the courts, it should still be considered when determining whether a person is an independent contractor or not.
What the test requires is 'an examination of the practical realities of the economic relationship between the parties, rather than detailed scrutiny of the terms (whether written or oral) on which the worker is formally engaged'.
A finding that no employment relationship exists should only be found if the worker is 'in business on their own account', or operates as an 'independent economic unit'.
It could be said that the High Court in Hollis v Vabu was casting its mind to this test when it discussed the fact that the couriers' engagement with Vabu left them with limited scope for undertaking any business enterprise of their own.
Gray J's judgement in Re Porter35 provides the clearest example of this approach:
22. Superannuation Guarantee (Administration) Act 1992 (Cth), s12(3).
23. WCRA, s11 and Schedule 2 Part 1.
24. WCRA, s57(2)(b).
25. Sweeney v Boylan Nominees Pty Ltd  HCA 19 (16 May 2006).
26. (2001) 207 CLR 21.
27.  HCA 19.
28. See Colonial Mutual Life Assurance Society Ltd v The Producers and Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 and Jonathan Burnett, Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees (2007) 129 Sydney Law Review 162 available online at http://sydney.edu.au/law/slr/slr29_1/Burnett.pdf as accessed 27 February 2011.
29.  1 KB 762.
30. Sweeney v Boylan Nominees Pty Ltd  HCA 19; and Hollis v Vabu (2001) 207 CLR 21. See also Roy Morgan Research Centre v Commissioner for Taxation  SASC 342.
31. Op cit.
32.  TLR 101. For a further statement of the test by Denning L J see Bank Voor Handel en Scheepvaart NV v Slatford  1 QB 248.
33. (1986) 160 CLR 16.
34. Vabu v Federal Commissioner of Taxation (1996) 33 ATR 537.
35. (1989) 34IR 179.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.