Contractor or Employee Argument: Sessional lecturer entitled to superannuation support.

The Federal Court has agreed with the ATO that a lecturer providing services to a higher education provider was a common law employee and therefore entitled to superannuation support, despite being engaged as an independent contractor.

The ATO reviewed the situation and concluded that the lecturer was entitled to receive superannuation support.  This was on the basis that for superannuation guarantee purposes they were either an ‘employee’ within the ordinary meaning of that term, or was what is referred to as an ‘extended definition employee’ as someone engaged primarily for the provision of their labour services.

Some of the factors which indicated the lecturer was in an employment relationship with the higher education provider included:

• that the lecturer was engaged in his personal capacity and not through an interposed entity (such as a company or trust);

• that the higher education provider had a right of control over the lecturer, including the question of how, when and where he was required to provide the relevant teaching services; and

• the mode or manner by which the lecturer was to be remunerated was clearly expressed by reference to the time that the lecturer was engaged in delivering lectures and marking, not by reference to any readily identifiable or quantifiable product or result.

Please get in touch with our office to discuss any scenarios where a ‘contractor’ is engaged personally, remunerated on an hourly basis for hours worked and is not provided with superannuation support as there may be potential exposure for employers.