Are your contractors really employees? A summary of the ATO guidelines recently released

The Australian Tax Office (ATO) recently released information helping businesses to determine if workers are employees or contractors. The ATO is cracking down on businesses using contractors to try 'to illegally lower their labour costs by avoiding their pay as you go (PAYG) withholding and super obligations for the worker'.

Penalties, interest and charges may apply for employers if the ATO finds that workers are engaged as contractors when they are really employees. The ATO also suggests "dobbing in" other businesses that may be treating employees as contractors.


Examining the working arrangement is key. Just because the worker has an ABN or business name, its the industry 'norm', is only needed for short-term or irregular work, have specialist qualifications or skills DOES NOT mean that the worker is actually a contractor, according to the ATO.
The ATO sets out typical aspects of a contractor working arrangement to include:

• they run their own business and provides services to your business,
• they can sub-contract/delegate or pay someone else to do their work,
• they are paid for a result achieved based on the quote provided,
• they provide all or most of the equipment, tools and other assets required to complete the work and they do not receive an allowance
• they take on commercial risks and are legally responsible for their work and liable for the cost of rectifying and defect in their work,
• the have freedom in the way the work is done subject to specific terms in any contract or agreement,
• the worker is operating their own business independently to your business and they are free to take on additional work.

If the worker is a contractor, the business also won't have Fringe Benefits Tax (FBT) obligations. Additionally, they may avoid other obligations such as occupational health and safety requirements, payroll tax, wages, conditions and leave entitlements.

Typical aspects of an employee working arrangement include:

• they work in your business and are a part of your business,
• they cannot sub-contract/delegate or pay someone else to do the work,
• they are paid for the time worked, price per item of activity or a commission,
• your business provides an allowance or their equipment, tools and other assets required to complete the work,
• they take no commercial risks and your business is legally responsible for the work performed by the worker and liable for the cost of rectifying any defect in the work,
• they are subject to control over their work and your business has the right to direct the way in which the worker performs,
• they are not operating independently from your business.

Below is a link to an ATO decision tool to help you determine whether your workers should be classified as employees or contractors.

http://www.ato.gov.au/content/00095062.htm?alias=employeecontractor

If you are after more specific advice, I recommend getting in touch with an accountant who understands these issues and is willing to discuss them with you.