Contractor drivers are employees for super guarantee: ATO

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Contractor or employees - super guaranteeThe ATO has issued an Interpretative Decision setting out when superannuation guarantee can be owed for people who are called ‘independent contractors’.

This is contained in ATO ID 2014/28: Superannuation Guarantee Status of the Worker: Pizza delivery drivers as employees.

The question addressed in the decision was:

“Are pizza delivery drivers, who are required to provide and maintain their own motor vehicles in performing their deliveries, employees for the purposes of the Superannuation Guarantee (Administration) Act 1992 (SGAA)?”

The ATO says yes,  the pizza delivery drivers are employees for the purposes of superannuation guarantee, even though they provide their own vehicles.

The ATO ID describes a scenario where a “pizza delivery franchise business” paid pizza delivery drivers a fixed fee per delivery under a ‘Independent Contract Driver Agreement’. The drivers were required to have ABNs and issue invoices to the franchise. “The drivers were not obliged to accept work or to work exclusively for the employer,” said the ATO.

The ATO draws a distinction between pizza drivers and couriers, as set out in Vabu Pty Limited v. Federal Commissioner of Taxation. In that case the courier company acted as an organiser for the couriers, who were independent contractors. The couriers were not “integrated into Vabu’s business.” Whereas the ATO says the delivery of pizza “represented the core business of the employer.”

“The provision of motor vehicles by the pizza delivery drivers is not significant enough to prevent them from being considered employees under the ordinary meaning in subsection 12(1) of the SGAA,” said the ATO in the ruling.

The ATO does acknowledge though that different circumstances could lead to a different conclusion.

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