Contractors and Superannuation

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Published by Preston Law on 05/04/2023

Since the pandemic in 2020, there has been a change in how individuals choose to work. Some individuals have flexible working arrangements where they can work different hours to suit their personal circumstances or work from different locations. We have also seen a rise in individuals establishing their own businesses and providing consultant and contractor services to Councils.

When engaging contractors or consultants, the question always arises as to whether there is an obligation on the Principal, to make compulsory superannuation contributions in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) (“the Act”).

There are strict requirements regarding the engagement of contractors to ensure that they are contractors and not employees. This topic has been explored significantly by the High Court of Australia 2022 in two matters – the CFMEU and Personal Contracting Pty Ltd and ZG Operations and Jamsek. 

Whether or not contractors are in fact employees for the purposes of leave entitlements is important and this can be appropriately addressed in the Contract, however, the question regarding whether superannuation is payable remains entirely separate.

The Act states that you must make superannuation contributions for individuals if you pay them under a verbal or written agreement that is wholly or in principally for their labour, for personal labour and skills or to perform the contract work personally in that they must not delegate this.

This matter arose in a decision of the Federal Court this year in the decision of Jamsek and ZG Operations (2023).  In this case, two truck owner drivers had been providing transportation services for approximately 40 years.  They had previously been found to not be employees of the company. The drivers had a partnership arrangement whereby they were owners of the vehicles and were in a contractor agreement with the company.

In consideration of that 2023 case, the Federal Court held that the provisions of the Act did not apply as the contractor agreement was entered into by the partnership and that each of the partners were a party to the contract in their right as a partner and not in the personal capacity.  In this case it was held that a partnership cannot be deemed to be an employee for the purposes of the Act.

What We Have Learnt

From the cases relating to contractors, it is clear that this is a complex area of law that must be dealt with correctly.  If compulsory superannuation contributions are not paid in circumstances where the Act requires them to be, the Australian Taxation Office may and will impose significant penalties on employers.  As such it is essential that any contractor agreements that you enter into are prepared correctly having regard to an employer’s obligations regarding superannuation.

If you would like some assistance regarding contractor agreements and superannuation, speak to an employment lawyer today.

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