hiring a contractor or employee

Hired a “contractor” who is really an “employee”? There are consequences

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.

Sometimes contracting is necessary. You may 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 different legislative requirements, and this brings with it a range of legal obligations … and liabilities if you get it wrong. The Tax Office takes this so seriously it even encourages taxpayers to dob in a business incorrectly treating employees and contractors.

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
    • an administration fee.

There are several areas of both tax and employment legislation that can trip up employers regarding the contractor/employee divide.

1. PAYG withholding

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, which 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.

2.   Superannuation

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 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.

3. Payroll tax

Most states and territories (all except Western Australia) have provisions written into their payroll tax laws to cover the use of contractors. These generally deem payments made to contractors to be “taxable wages” and thus subject to payroll tax — although there may be concessions and exemptions depending on the jurisdiction, so it’s best to check. This Payroll Tax Australia page has links to each state and territory legislation.

4. Workers compensation

Be aware that in some jurisdictions in Australia, workers compensation legislation may require such insurance cover for workers taken on as contractors. In Queensland for example, this is required for any “worker”, the definition of which includes a contractor put on for “labour only or substantially for labour only”. This page of the business.gov.au website has links to guidance for every state and territory WorkCover authority.

More help

We’ve written about this concern before in The undercover employee and Employee or contractor? 12 common myths.

We also recommend that you check these Tax Office decision tools to help you work out the real engagement status:

And of course, please see us if you have any questions.