An Executor of an estate takes on responsibility for the debts of the deceased (including their tax debts). Most estates are administered and distributed within 12-18 months, whereas the ATO can review and amend tax returns for up to 4 years.
So, what happens if an Executor distributes the estate, only later to find that there is an outstanding tax debt, due to a reviewed and amended tax assessment? Is the executor at risk of personal liability?
This is a particular issue for executors who are not also beneficiaries such as accountants or other professional advisors. Short of holding back distribution for 4 years, how can they mitigate the risk of liability?
The new guidelines issued on 5 July 2017 (in draft) seek to clarify the circumstances when an Executor can distribute without concern of ongoing risk of personal liability for tax of the deceased without waiting for the amendment period to run.
Basically, if an executor has:
then, subject to certain exceptions, the ATO will treat the Executor as having no notice of a claim and therefore the Executor is practically able to distribute the estate without ongoing exposure.
The guidelines only apply to relatively simple estates. They do not apply where:
For executors acting in these estates, the ongoing risk of personal liability for the tax of the deceased remains. In those cases, the executors can consider:
Moores has a team of lawyers specialising in assisting professional executors.
If you require any further information, please do not hesitate to contact us.
Restraint of trade clauses are widely known to have an image problem. They receive bad publicity like few other contractual terms. It’s true, courts often label them as ‘void’, ‘contrary to public policy’, and ‘unenforceable’ unless they are shown to be ‘reasonable’.
Despite these hurdles, there is strong commercial demand for valid restraint of trade clauses, and employers are increasingly relying on these clauses to protect their businesses when former employees jump ship to work for a competitor. At worst, a restraint clause can deter employees from obtaining employment with a competitor and disclosing their sensitive commercial information. At best, a well-drafted clause can be enforced by court order, protecting an organisation’s legitimate businesses and attracting damages, penalties and costs.
A recent decision by the Victorian Supreme Court highlights the importance of a carefully drafted restraint clause if an employer wants to successfully enforce a restraint to protect its legitimate business interests. In this case, Just Group was unsuccessful in its bid to rely on a restraint clause to prevent an employee from working with Cotton On because the scope and duration of the restraint were too broad, and therefore void for being unreasonable. This case serves as a cautionary tale to employers about the importance of having a well-drafted restraint clause to increase likelihood of the restraint being enforceable.
Restraints of trade are often included in employment contracts to protect an employer’s confidential information, trade secrets, customer networks and staff connections by restricting an employee’s activities after they have ceased employment. Generally speaking, restraint of trade clauses will be enforceable to the extent that the restraint is ‘reasonably necessary’ to protect the legitimate business interests of the employer. Whether a clause is reasonably necessary will turn on the specific clause and the facts of the case.
Where a current or former employee breaches a restraint clause, an employer can apply for an injunction to prevent the employee from acting in a way that breaches a term of the contract. For example, an employer may seek an injunction that prevents the former employee from contacting its clients, working for a competitor for a defined period of time, or from disclosing information confidential to the employer and its business.
When exercising its discretion to grant an injunction, the task for the court is to determine whether the restraint clause is enforceable.
Clauses which are too broad are unlikely to be enforceable, as they are unreasonably restrictive on the employee’s ability to obtain other employment.
A carefully drafted restraint clause is crucial if an employer wants to successfully enforce a restraint to protect its legitimate business interests.
The perils of employees jumping ship – cautionary tales on restraints of trade | Moores
In Just Group Ltd v Peck [2016] VSC 614 the Victorian Supreme Court refused to enforce a restraint clause in the employment contract of Just Group Ltd’s (Just Group’s) former CFO when she jumped ship to work for its major competitor, Cotton On.
The CFO, Ms Peck, commenced working for Just Group in January 2016, and tendered her resignation shortly after on 2 May 2016. Prior to leaving she informed Just Group that she was going to work with its major competitor, Cotton On.
Just Group sought to enforce the restraint clause in Ms Peck’s employment contract to prevent her from commencing work for Cotton On for a period of two years. It claimed that the restraint was necessary to protect its confidential information, which Ms Peck had access to during her employment.
Justice McDonald accepted that during her employment Ms Peck was exposed to Just Group’s commercially sensitive information and that Just Group had a legitimate interest in protecting its confidential information from disclosure to one of its competitors. However, because the restraints contained in Ms Peck’s employment contract were not ‘reasonable’, they could not be enforced.
Justice McDonald confirmed that a restriction will only be reasonable if the employer can establish it does not go further than to reasonably necessary to protect the employer.
Under the contract Ms Peck was restrained from engaging in any activity which ‘is the same as, or similar to’ any part of the business of the Just Group. Justice McDonald found that the restraint was unreasonable because it would prevent Ms Peck from being employed in a new role where the confidential information she acquired during her employment with Just Group would be irrelevant to the new employer.
The contract also contained a list of 50 of the Just Group’s competitors and a clause seeking to prevent Ms Peck from being engaged in ‘any activity… for or on behalf of any of the entities operating the brands’ listed.
Justice McDonald found that due to a drafting flaw the restraint clause could not be considered as 50 separate restraints, and ‘the evidence which was led in respect of competition between Just Group and Cotton On provides no legitimate foundation for a conclusion that the restraints imposed on Ms Peck in respect of the other 49 brands/entities are reasonable’.
Accordingly, Justice McDonald held that the restraint was also unreasonable because it would have prevented her from working for businesses that did not compete with the Just Group.
The restraint clause applied anywhere in Australia and New Zealand for 24 months after Ms Peck’s employment was terminated.
Similar to many employment contracts, the contract also included an option for a court to enforce narrower restraints (for example, applying the restraint just to Victoria for lesser period) if it was found that the broader period was deemed unreasonable and overly restrictive.
However, Justice McDonald was not even prepared to find that the shorter period was reasonable, because Ms Peck’s employment could be terminated on short notice during the first six months of employment. This meant that Ms Peck could be restrained from working for two years but only receive one month’s notice, thereby giving rise to an unreasonable disparity.
Carefully drafted restraint clauses can greatly assist employers protect their legitimate business interests.
Employers should be wary of any generic clauses. If they are not tailored to the specific circumstances, they are likely to be void and unenforceable.
An employer will have significantly better prospects of enforcing a restraint if:
We also recommend that employers remind employees of their post-employment obligations in writing and recover all company property (including confidential information) prior to an employee’s departure.
Moores has successfully enforced restraints against former employees of its clients on matters ranging from use of confidential information to soliciting clients and acting in competition.
Moores can assist with drafting and enforcing restraint of trade clauses to protect your legitimate business interests, recovering damages, and protecting your confidential and copyright information.
For more information please do not hesitate to contact us.
High Court declares the “relevant approach” regarding vicarious liability for criminal conduct | Moores
Employees who commit wrongful acts rarely have pockets that are as deep as their employer’s. By suing the innocent employer on the basis of vicarious liability, an applicant has the potential to recover more in damages than if they simply sued an individual employee.
However, an employer won’t always be vicariously liable for the wrongful act of an employee. After years of uncertainty, the High Court’s decision in Prince Alfred College Incorporated v ADC [2016] HCA 37 (“PAC“) has clarified the correct approach to be taken to the question of an employer’s vicarious liability for the criminal acts of an employee. Vicarious liability is a form of legal liability which can be imposed despite the employer not itself being at fault[1].
In the seminal High Court decision of New South Wales v Lepore [2003] HCA 4 (“Lepore“), the judgements expressed diverging views on the correct approach to apply to the question of vicarious liability, and no majority emerged as to whether the employer was vicariously liable for the intentional criminal conduct “in the course of employment”. Consequently, the scope of vicarious liability in Australia has been shrouded by a cloud of uncertainty.
In PAC, the majority of the High Court held that the “relevant approach” to take when considering the issue of vicarious liability requires a careful examination of the actual role that the employer assigns to the employee and the position in which the employee was thereby placed vis-à-vis the victim.
Although the Court did not ultimately consider PAC’s liability in this case as it found that the extension of time sought by ADC should not be granted, the case does provide useful guidance for employers wanting to assess vicarious liability for criminal conduct by an employee, particularly in the context of child sexual abuse in educational institutions.
In 1962 the respondent, ADC, was sexually abused on multiple occasions when he was 12 years old and living as a boarder at the Prince Alfred College (“the College“). The perpetrator, Mr Dean Bain, was employed by the College as a housemaster. Shortly after the College became aware of the abuse, Mr Bain was dismissed from his employment at the College.
In his adult life, the respondent was diagnosed with post-traumatic stress disorder, suffered alcoholism, attempted self-harm, and was admitted to a psychiatric clinic on a number of occasions.
In 1997 the respondent commenced civil proceedings against Mr Bain, but decided not to pursue legal action against the College. In September 1999, the respondent reached a settlement with Mr Bain pursuant to which Mr Bain agreed to pay $15,000 to the respondent.
In December 2008, the respondent brought proceedings against the College in the Supreme Court of South Australia[2] alleging that the College was liable for damages on the basis that:
(a) it breached its non-delegable duty of care that it owed him;
(b) it was negligent and breached its duty of care; and
(c) even if the College was not itself at fault, it was vicariously liable for the wrongful acts of Mr Bain.
Because the statutory time limitation had expired, the respondent had to apply for an extension of time to bring the proceedings.
At first instance, Justice Vanstone in the Supreme Court of South Australia dismissed the claim with regard to liability. Her Honour said that in any event she would have refused an extension of time because the effluxion of time was so great that the College would be prejudiced in its attempts to defend the claims.
On appeal, the Full Court of the South Australian Supreme Court disagreed with the primary judge, finding the College was vicariously liable for the criminal conduct of Mr Bain and that an extension of time should have been granted by the primary judge.
By grant of special leave, the College appealed to the High Court for the matters to be determined.
In this case, the relevant limitation period had expired, so the first issue that the court was required to consider was whether the respondent should be granted an extension of time to actually bring the claim.
A limitation period (or “statute of limitations”) refers to the time limit within which legal proceedings must be commenced. They are set out in each state or territory in Australia.
Under the Limitations of Actions Act 1936 (SA) (“the Limitations Act“), the claim should have commenced within three years of attaining the age of 21 years (i.e. by 17 July 1973) in order to proceed[3]. However, under the Limitations Act, a court can exercise its discretion and extend the prescribed time to institute civil proceedings.
In order to secure an extension of time, ADC was required to show that it was just in all the circumstances for the court to extend the limitation period and that the College would not be significantly prejudiced if the discretion was exercised in his favour.
The High Court unanimously held that an extension of time under the Limitations Act should not have been granted by the Full Court due to the length of the delay and consequent deficiencies in the evidence placed by the College, thereby prejudicing the College’s ability to defend its position. For instance a number of people who may have been witnesses in the proceedings had died and the psychologist whom the respondent first consulted had destroyed his notes. Furthermore, the High Court was persuaded by the fact that the respondent had made a deliberate decision not to pursue civil proceedings against the College (even though he could have done so) and later changed his mind.
As an aside, the Royal Commission into Institutional Responses to Child Sexual Abuse has expressed criticism about limitation periods especially given that the average time for a victim to disclose sexual abuse is 22 years. The Royal Commission has recommended all states and territories remove the time limitation so that more victims are eligible to claim compensation. The states and territories are slowly moving to implement this recommendation. For instance, following the Betrayal of Trust Inquiry in Victoria, limitation periods for child abuse claims were removed on 1 July 2015.
Even though the claim was statute barred, the High Court took the opportunity to consider the “divergent views” that have arisen from common law courts about how to approach the question of vicarious liability, particularly with regard to cases concerning the sexual abuse of children in educational, residential or care facilities by persons who were placed in special positions with respect to the children.
At first instance[4], Justice Vanstone was unable to make findings of fact relevant to the question of vicarious liability because there was insufficient evidence of a reliable nature about Mr Bain’s designated role upon which to base a conclusion that what he did was done in the course of employment. However, on the assumption that these activities were part of Mr Bain’s designated role, the primary judge concluded that the sexual abuse was not in the course of Mr Bain’s employment because it was “so far from being connected to Bain’s proper role”.
On appeal[5], each member of the Full Court of the South Australian Supreme Court, found the College was vicariously liable for Mr Bain’s criminal acts of abuse on the basis that the abuse was “so closely connected” to his employment. Evidence which led to this conclusion included:
By grant of special leave, the High Court identified that the “relevant approach” is to consider whether the employer assigned to the employee any special role and the position in which the employee is thereby placed vis-à-vis the victim. To determine whether the employment may be said to give the “occasion” for the wrongful act, the High Court said that it was necessary to consider the role’s authority, power, trust, control and the ability to achieve intimacy with the victim.
The High Court asserted:
the appropriate enquiry is whether Bain’s role as housemaster placed him in a position of power and intimacy vis-à-vis the respondent, such that Bain’s apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment.
So what does this mean for employers? In the past, it has been difficult for employers to assess their potential liability with regard to an employee’s wrongful acts, particularly in relation to historical claims of child sexual abuse.
In light of the “relevant approach” espoused by the High Court, employers will be able to identify with greater certainty the extent to which they could be vicariously liable for the wrongful acts of employees.
To determine whether an employer is vicariously liable for an employee’s wrongful acts, it will be necessary to consider whether the employer assigned to the employee any special role and the position in which the employee is thereby placed vis-à-vis the victim.
Organisations that directly care for children in situations where employees exercise the ability to achieve intimacy with the children (including school boarding houses, sporting clubs, and youth camps) must implement rigorous mechanisms to protect the children’s safety and prevent the “occasion” for any wrongful act.
(1) Prince Alfred College Incorporated v ADC [2016] HCA 37, [39] (2) A, DC v Prince Alfred College Incorporated [2015] SASC 12(3) Prince Alfred College Incorporated v ADC [2016] HCA 37, [86] (4) A, DC v Prince Alfred College Incorporated [2015] SASC 12 (5) A, DC v Prince Alfred College Inc [2015] SASCFC 161
Nomination is a handy tool – don’t be scared of it. But be aware that the Duties Act is designed to levy double duty on a “nomination” if you step outside of the boundaries. Here’s how a “parallel arrangement” can catch you out.
Rob and Bob are builders. They are 50/50 partners. They like to buy land, build on it and sell it again. Rob contracts (personally) to buy some land but he intends to put it into a new company. So far, no problem.
Rob and Bob realise they’re a bit stretched. Rob talks about the land with his mate, Sam, who is a property developer. Sam likes the land and the opportunity, so he agrees to complete the purchase. Rob nominates Sam as an alternative purchaser under the contract.
Sam is simply stepping into the contract and doing no more than paying the agreed contract price (and reimbursing Rob for the deposit paid), there is no “consideration” passing between them. Rob is not getting any benefit out of this deal. So far, still no problem.
Sam obtains a permit really quickly and is ready to start building on the land soon after settlement. He talks to some builders (including his mates Rob and Bob) and asks for quotes to build some dwellings on the land. After some negotiation, Sam favours the quote from Rob and Bob, so he signs a building contract with Rob and Bob’s building company.
“Parallel arrangements” – one of Victoria’s remaining double duty snares | Moores
Boom – without knowing it, they just incurred double duty. Although he never settled his purchase of the land, Rob is about to get a duty bill.
Here’s how:
Nasty huh?
If you would like more information, please do not hesitate to contact us.
After a long period of uncertainty, it appears that a judicial decision maker has finally been willing to provide some guidance to the community housing sector on where they stand in relation to the Charter of Human Rights.
The case of Goode v Common Equity Housing Limited has been a long ordeal (and painful for all, no doubt). The case has been to VCAT, then to the Supreme Court on appeal and then back to VCAT. Although Ms Goode was ultimately unsuccessful in her quest to have orders made against CEHL, in the most recent (and hopefully final) written decision in this case (Goode v Common Equity Housing Limited [2016] VCAT 93), the Tribunal confirmed its views that:
This most recent decision goes a significant step further than the decision of VCAT in Sudi (Metro West v Sudi [2009] VCAT 2025), where the Tribunal held that Metro West was a ‘public authority’ for the purposes of the Charter. Metro West had been the manager of public housing stock under a power of delegation in the Housing Act 1983 – it wasn’t hard to guess that it would be considered a ‘public authority’ when carrying out that function. CEHL however, was providing community housing using its own housing stock.
In a written judgement that some will find useful for future reference, the member made the following observations:
The deadline for CEHL to appeal has passed. For now, it appears that this is the law in Victoria.
Are you answerable under the Charter in the same way as the Director of Housing? Are you expected to perform in the same way as government even though you don’t have the resources of government? Is this yet another unfunded administrative burden that you must somehow meet?
If you’re a registered housing provider, the answer to each of those questions appears to be “yes”. Some will say “Why not? Why should a community housing tenant have fewer rights than a public housing tenant?” Others will wonder whether this kind of position may compromise the sector’s ability to out-perform government in the provision of housing.
So what now for the sector? Here’s my suggested action plan:
For further information, please do not hesitate to contact us.
When a member dies without a binding nomination, there is often uncertainty as to how death benefits should be paid. This can sometimes put executors and administrators of the member’s will in a difficult position.
In 2014, it was found in the decision of McIntosh v McIntosh [2014] QSC 99 that an administrator of an estate was obliged to account to an estate for superannuation death benefits paid by an industry fund to her in her personal capacity. The basis of the decision was the conflicted position in which the administrator had voluntarily put herself. This decision was widely regarded as having no application to an executor, whose appointment by the will-maker was viewed as implicitly authorising such a conflict.
Now, the decision of Brine v Carter [2015] SASC 205 draws executors into the same questions and creates significant potential consequences in relation to:
In McIntosh, the deceased died intestate. His next of kin were his mother and father, who were divorced. With the consent of the father, the mother obtained letters of administration on 24 September 2013. On 30 September 2013, the mother made applications to the deceased’s three external superannuation funds as a dependant of the deceased (on the basis of an interdependent relationship) for superannuation benefits to be paid to her personally. The trustees of the funds exercised their discretion accordingly.
The Qld Supreme Court found part of the duty of the administrator of the estate to call in the estate was to claim the super death benefits, and the fact that Mrs McIntosh had failed to do so was a breach of her duty for which she may be held liable.
The relevant facts of this case were as follows
1. Professor Brine was survived by his de facto Ms Carter and 3 sons from a prior relationship
2. In his will he appointed Ms Carter and the sons as executors and provided a life interest for Ms Carter in his principal residence and another property and gave the rest of his estate to his sons and grandchildren.
3. He left 2 member accounts with UniSuper. One, an indexed pension (a defined benefit account), was only able to be paid to a spouse on death. The second account was able to be paid to spouse, children or the estate of Professor Brine. Professor Brine had provided a non binding nomination during his lifetime to UniSuper, and indicated that Ms Carter was his spouse for the defined benefit pension and that his preferred recipient of the other pension was his estate.
4. For some months, Ms Carter was found to have failed to disclose the extent of the super benefits to the sons and that the estate and each of them was a potential beneficiary of one of the pensions.
5. Once the sons found out about the super and the potential to claim, the 3 of them claimed the benefit as executors of the estate, however UniSuper exercised its discretion in favour of Ms Carter.
6. The Court found:
7. Importantly, unlike in McIntosh, the Court found that there was no distinction between an administrator and an executor in this regard. The Court found that the usual implication of consent to act in a conflicted position afforded to an executor does not apply to superannuation claims because those positions needed to be contrasted with “a sophisticated superannuation policy governed by a complex trust deed in which the trustee has discretionary functions.”
8. Once the sons were aware of their capacity to claim and allowed Ms Carter to pursue her own claim and continue as an executor, the Court found that they consented to her doing so, and in that case, there was no breach of her fiduciary obligations.
9. Notwithstanding this breach by Ms Carter she was not required to account for the benefits paid to her to the estate, because the sons had made a claim and the trustee had exercised its discretion so that there was not sufficient connection between the breach and the benefit she received.
10. The Court noted that had the sons not been aware of the position and not made a claim, Ms Carter would have been liable to account.
1. For Willmakers who want certainty about who receives their superannuation benefits, these cases illustrate the significance of a valid binding nomination or reversionary pension. Validity is key (see e.g. SMSFD 2008/3, Munro v Munro [2015] QSC 61 and Donovan v Donovan [2009] QSC 26) and we have seen numerous issues recently including:
2. For Willmakers who want their spouse to benefit from their super but have different beneficiaries in their estate (hello second relationships), they should consider taking steps to mitigate the risk of a conflict of interest arising. This could include an express authority in the Will regarding the spouse claiming and receiving death benefits personally.
3. These questions are more significant in the SMSF context, given that the Court is more likely to find causal connection between the benefit and the breach in the case of an SMSF.
4. If Ms Carter had been the sole controller of a SMSF and exercised the discretion in her own favour, then subject to the terms of the deed (including whether there is a provision allowing the trustee to act in a position of conflict) and whether an application had been made on behalf of the estate, she may have been more likely to have been found liable to account.
If you require further information, please do not hesitate to contact us.
Aged care facility leases – 10 important tips | Moores
As the demand across Australia for aged care grows, the market is responding with supply. To preserve capital, some aged care providers are opting for a leasehold model for new aged care properties. A lease for an aged care facility is not a ‘standard’ lease. Whether you’re talking about a ground lease, development lease or other arrangement, here’s some things you should consider in any leasehold aged care facility.
If you would like further advice on aged care facility leases, please don’t hesitate to contact us.
The Court of Appeal recently confirmed that a ‘building action’ can be brought anytime within ten years from the date of the relevant occupancy permit – this has significant practical implications for participants in the building industry.
The contractual defect liability period under a construction contract (DLP), generally 12 months, provides a principal or client with a contractual mechanism for the rectification of defects in the works carried out by a contractor. However, a contractor’s liability for defects does not end there.
Many defects don’t manifest for years after the DLP has ended, and the only time bar on a contractor’s potential liability to a principal or client is the relevant statutory limitation period.
For building or development projects the relevant limitation period for a ‘building action’ is contained in section of 134 of the Building Act 1993 (Vic), and a recent decision of the Court of Appeal has clarified how that provision operates.1 Putting to bed years of legal uncertainty, Brirek confirms that:
This decision has significant practical implications for participants in the building industry as most building and construction contracts are based on the assumption that the maximum period of a contractor’s liability is six years. The risk profiles and associated drafting in your contracts may need to be reconsidered given Brirek. For example:
If you would like to explore how your contractual frameworks can be improved to protect you against potential claims liability, please do not hesitate to contact us.
1. Brirek Industries Pty Ltd v McKenzie Group Consulting Pty Ltd [2014] VSCA 165 (Brirek).
2. ‘Building action’ is defined broadly to include any action (including counter-claim) for loss or damage arising out of or concerning defective building work. ‘Building work’ means any physical activity involved in the erection of a building.
The recent stamp duty case of White Rock Properties Pty Ltd v Commissioner of State Revenue [2014] VSC 312 is a timely reminder of what is not a bare trust and the importance of obtaining reliable stamp duty advice when effecting a change of ownership – legal or equitable – in land.
In this case, the trustees of five testamentary trusts entered into a partnership in relation to the development and sale of three parcels of land. The key facts are:
The State Revenue Office assessed the transfer to the agent as dutiable.
White Rock disputed the assessment primarily on the basis that the transfer should be exempt from stamp duty under section 35(1)(a) of the Duties Act 2000.
That section provides:
“No duty is chargeable…in respect of…a transfer of dutiable property that is made by the transferor to a trustee or nominee to be held solely as trustee or nominee of the transferor, without any change in beneficial ownership.” (emphasis added)
White Rock argued that it held the land as trustee for the Partners under a trust established by the Partnership Agreement and that the transfers did not give rise to a change in beneficial ownership. The Commissioner argued that section 35(1)(a) applies to transfers to what is commonly referred to as a “bare trust” and the trust created under the Partnership Agreement was not such a trust.
In the single Judge decision of the Victorian Supreme Court, Robson J agreed with the Commissioner. In this case, the agent had “active” duties to develop and sell the land and so the exemption under section 35(1)(a) could not apply – the beneficial ownership in the land had changed. From the decision, it can be drawn that the exemption would, as commonly thought, be limited to transfers to bare trusts.
The term “bare trust” is a shorthand term for a trust in which the trustee has no active duties. The trustee has only a “bare” duty to transfer the land upon demand to the beneficiary or as directed by the beneficiary (for example, to a third party).
Bare trusts are commonly used in private and business structures. The importance of properly effecting and evidencing a bare trust is important
For CGT purposes, the concept of absolute entitlement arises from tax law and the Australian Taxation Office has its own views in relation to the particular circumstances in which a beneficiary is taken to be absolutely entitled to property. The Australian Taxation Office view is that the existence of a bare trust is not by itself sufficient to demonstrate that a beneficiary has an absolute entitlement to the underlying land (TR 2004/D25). In relation to what constitutes “absolute entitlement”, the recent Federal Court decision of Oswal v FCT [2013] FCA 745 on the issue is on appeal.
Whilst a bare trust is (for trust law purposes) the simplest form of trust, ill-considered dealings with it can give rise to not so simple stamp duty, CGT and GST implications.
White Rock is a timely reminder of what not to do.
Differentiating between an employee and an independent contractor is important to businesses particularly with the significant economic shift to outsourcing.
The classification can impact on a business’ obligations regarding PAYG withholding, employee entitlements, superannuation contributions, payroll tax and WorkCover. The starting position in determining whether a worker is an employee or a contractor is the “common law”. However there are also specific statutory tests.
For the purposes of superannuation, the Superannuation Guarantee (Administration) Act 1992 (SGAA) expands the definition of “employee”. The effect of this is that a wider class of workers are entitled to superannuation contributions.
Accordingly, for superannuation purposes, the test has two parts. First it requires an examination of whether the “worker” is an employee at common law. If a worker is not an employee at common law, he/she could still be an employee under a specific statutory test.
Prior to entering into a contract or agreement with an individual, it is important to determine whether the organisation is engaging that person as an employee or a contractor at common law.
Whether an individual is engaged by an organisation as an employee or a contractor determines the parties’ rights and obligations. The courts have established tests to assist parties to determine the true nature of the relationship.
To determine the “true” nature of the labour agreement one has to assess the totality of the relationship between the parties. Over time the courts have identified a number of key factors to determine the status of the relationship as a whole, and no one factor alone is determinative of the relationship.
Key factors that can point to a person being a contractor include:
Conversely, key factors that can point to a person being an employee include:
Whilst these traditional factors are still important, in the recent Federal Court decision of On Call Interpreters and Translators Agency Pty Ltd v CoT (No.3) [2011] FCA 366, the focus shifted to whether the worker performs the work in the course of their own business or in working in the employer’s business.
Ultimately, if it is determined that a person is an employee at common law, that person is an employee under the SGAA (and will be owed superannuation).
Even if a worker is taken to be a contractor at common law, there is a statutory test to determine if the individual is entitled to be paid superannuation by the principal.
Section 12 of the SGAA deems certain individuals to be employees for superannuation guarantee purposes.
The test states that an employee for the purposes of superannuation is a person who: “works under a contract that is wholly or principally for the labour of the person”.
The words ‘wholly or principally’ are used to limit the types of contracts that are caught.
Therefore, if a contract is partly for labour and partly for something else (eg the supply of goods, materials or hire of plant or machinery), it will qualify only if it is ‘principally’ for labour.
The term ‘labour’ is not limited to physical labour but also includes mental and artistic effort.
It is important to remember that contractors (that meet the test set out above) can also be entitled to superannuation.
In 2005, the ATO released a ruling on this issue that outlined the way that it would interpret the SGAA to determine when a person is owed superannuation (even if they are an independent contractor).
According to that ruling (SGR 2005/1) a contract is considered to be wholly or principally for the labour of the person engaged if the terms of the contract and the conduct of the parties have all of the following characteristics:
(a) the individual is remunerated (either wholly or principally) for their personal labour and skills;
(b) the individual must perform the work personally (there is no right of delegation); and
(c) the individual is not paid to achieve a result.
Therefore on a strict reading of this ruling, if one of the above characteristics is absent in the relationships, the ATO view should be that the individual will not be owed superannuation. However if an arrangement is reviewed or audited by the ATO, their decision will turn on the evidence available to substantiate any claims being made by the business.
The ATO states that if a contractor is a company, trust or partnership, the engagement of that contractor entity or “vehicle” is not, in its view, “for the labour of an individual” and therefore superannuation will not be payable.
Provided there is a genuine contracting relationship on foot (ie the contractor will not in fact be deemed to be a common law employee arising from any arguments of a sham arrangement), if businesses engage companies, trusts and partnerships, the ATO’s view is that superannuation is not payable.
Prior to entering into a contract or agreement with a worker, it is important to determine (and we can assist you with) the following:
With experienced workplace relations and tax lawyers, Moores has significant experience in structuring labour contracts and arrangements. The starting position must always be the “substance” of the relationship, that is, the actual relationship and arrangement between the parties. The terms of the contract are a key element.
Moores has also acted for principals in disputes with the Australian Taxation Office and state authorities in relation to the applicability of PAYG withholding requirements, superannuation obligations, payroll tax and WorkCover obligations. Through this experience we have a strong practical understanding of interpretations and views taken by the Australian Taxation Office and state authorities.
If you would like further advice about your obligations with respect to your workers (whether they are employees or contractors) please contact do not hesitate to contact us.