In the Balance: Employee or Contractor - Recent Court Ruling in Australia Reinforces Contract Importance

In a recent landmark decision, the Full Federal Court of Australia has underscored the vital role of written contracts in resolving the ongoing employee versus contractor conundrum. The ruling, given in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76, marked a substantial victory for JMC and cemented the primacy of contracts in ascertaining employment status.

This decision highlights that detailed contracts are key in determining whether someone is an employee or an independent contractor, unless the contract is deceptive. It also emphasises that the ability to delegate tasks and subcontract work is important when distinguishing between employees and contractors.


The ruling also sheds light on the fact that all written communication between parties during the implementation of a contract does not necessarily translate to a "variation to the terms of the contract". For instance, in the case of the emails exchanged in this case, they simply represented performance.

A Brief on the Case JMC, the taxpayer in this case, is an educational institution providing accredited higher education programs to students. They hired Mr Harrison under a contract to deliver lectures and mark papers, receiving a fee per lecture and paper. The payment followed invoices Mr Harrison issued, which carried an ABN he registered. Despite needing JMC's consent, Mr Harrison retained the right to delegate the lecture delivery and marking responsibilities to subcontractors.

The Australian Taxation Office (ATO) issued superannuation guarantee charges to JMC, stating that Mr Harrison was an employee, as per the common law definition and the broader definition under the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act). However, the Full Federal Court overruled this assessment.

The court asserted that Mr Harrison was neither an employee under the conventional definition nor was the contract primarily for personal labour as required under the SGA Act. The court emphasised that having the legal right to subcontract was significant, irrespective of the need for consent or if the right was ever exercised. It was discounted only if legally infeasible.

Moreover, the court clarified that emails exchanged to confirm lecture schedules or intentions to assign or subcontract services were not contractual and did not alter the contract terms.

The court also disagreed with the initial decision about the relevance of contractual terms like:

  1. Using a registered business name for invoicing JMC.
  2. Including an ABN in invoices.
  3. Providing tax invoices if registered for GST.
  4. Taking responsibility for workers' compensation and income protection insurance, and indemnifying JMC for any workers compensation claim.

Each of these was found to be pertinent to the analysis.

Lastly, the Full Federal Court noted the lack of provisions for sick leave, holiday pay or superannuation in the contract. Although not decisive, these factors were essential considerations in the overall context.

This ruling is a reminder of the crucial role contracts play in defining working relationships in Australia, reiterating the need for clear, comprehensive, and carefully drafted contracts.

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