If your business is looking to put on more staff, first of all: congratulations. But secondly, a warning. The engagement status of workers is an important distinction – whether they are employees or independent contractors – and has consequences that can get many employers into unforeseen hot water. Hired a “contractor” who is really an employee? There are consequences
Sometimes contracting is necessary, for example when you require specialist skills that are not easily covered by placing a job ad. Some workers only want to be put on as a contractor, particularly where they service multiple clients. Contracting can also prove more cost-efficient than employment.
However, there are dangers in engaging an individual as a “contractor” without having a proper understanding of the law. You may find that the individual is considered to be an “employee” regarding several and different legislative requirements, and this brings with it a range of legal obligations – and liabilities if you get it wrong.
The Tax Office says businesses that incorrectly treat employees as contractors face penalties and charges, including:
- PAYG withholding penalty for not meeting their PAYG withholding obligations.
- Super guarantee charge (for not meeting their super obligations), made up of super guarantee shortfall amounts (amount of super contributions that should have been paid into a complying fund), interest and administration fee.
There are several areas of both tax and employment legislation that can trip up employers regarding the contractor/employee divide.
Naturally, the Tax Office expects that PAYG withholding is withheld from payments to employees, and it has an online employee/contractor decision tool to determine the status of workers (there’s a separate one for the construction industry).
If you enter into an arrangement that is through a partnership, trust or company, that operates under a bona fide contracting arrangement and provides an ABN, this may mean that no PAYG withheld. But this is the sticking point for many Tax Office decisions — whether arrangements are genuine or sham.
The Superannuation Guarantee (SG) law requires that contributions are made on behalf of “employees”, which is a term that is even defined in the relevant ruling. “If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract.”
This extended definition of an employee means that, if you engage an individual as a contractor, you may need to pay superannuation contributions for their benefit, even if your written contract with them does not provide for this, and even if they use an ABN.