Employee Or Contractor?

Knowing the difference is important to the ATO and therefore to you!

Contractor or employee? The ATO wants you to decide based on fact, not myth. - image
Which one is a contractor and which one is an employee? The ATO wants you to decide based on fact, not myth.

The Australian Tax Office reveals several myths and assumptions, which I’ll share with you in a moment, mistakenly applied by both workers and employers when trying to identify the tax status of a some workers.

It found that employers continually rely upon misinformation when distinguishing between what makes a worker an employee or a contractor — and therefore the tax treatment that applies in these cases.

12 myths about contractors vs employees

These myths can put both businesses and workers on the wrong side of the ATO:

  • Myth: If a worker has an ABN they are a contractor.

Fact: Just because a worker has an ABN does not mean they will be a contractor for every job. Whether the worker has or quotes an ABN makes no difference and will not change the worker into a contractor.

To determine whether a worker is an employee or contractor, you need to look at the whole working arrangement and examine the specific terms and conditions under which the work is performed.

  • Myth: Common industry practice. “Everyone in my industry takes on workers as contractors, so my business should too.”

Fact: Just because “everyone” in an industry uses contractors does not mean they’re correct. I strongly advise you to avoid using “common industry practice” to make determinations.

  • Myth: Short-term work. Employees cannot be used for short jobs or to get extra work done during busy periods.

Fact: The length of a job (short or long duration) or regularity of work makes no difference to whether a worker is an employee or contractor. Both employees and contractors can be used for:

– casual, temporary, on call and infrequent work
– busy periods
– short jobs, specific tasks and projects.

To determine whether a worker is an employee or contractor, you need to look at the whole working arrangement and examine the specific terms and conditions under which the work is performed.

  • Myth: The 80% rule. A worker cannot work more than 80% of their time for one business if they want to be considered a contractor.

Fact: The 80% rule, or 80/20 rule as it is sometimes called, relates to personal services income (PSI) and how a contractor:

– reports their income in their own tax return
– determines if they can claim some business deductions.

The 80% rule is not a factor a business should consider when deciding if a worker is an employee or contractor.

  • Myth: Past use of contractors. “My business has always used contractors, so we do not need to check whether new workers are employees or contractors.”

Fact: Before engaging a new worker (and entering into any agreement or contract), a business should always check whether the worker is an employee or contractor by examining the working arrangement. Unless a working arrangement (including the specific terms and conditions under which the work is performed) are identical to previous arrangements, it could change the outcome of whether the worker is an employee or contractor.

Sometimes a business may also have incorrectly identified their worker as a contractor. Continuing to rely on the original “contractor” decision would mean the business is incorrectly treating all future workers as contractors when they are in fact employees.

  • Myth: Registered business name. If a worker has a registered business name, they are a contractor.

Fact: Having a registered business name makes no difference to whether a worker should be classified as an employee or as a contractor for a particular job. Just because a worker has registered their business name does not mean they will be a contractor for every job or working arrangement.

  • Myth: Contracting on different jobs. If a worker is a contractor for one job, they will be a contractor for all jobs.

Fact: If a worker is a contractor for one job, it does not necessarily follow that they will be a contractor for every job. The working arrangement and specific terms and conditions under which the work is performed will determine whether a worker is an employee or contractor for each specific job.

Depending on the working arrangement, a worker could be an:
– employee for one job and a contractor for the next job
– employee and a contractor if completing two jobs at the same time for different businesses.

  • Myth: Paying super. “My business should only take on contractors so we do not have to worry about super.”

Fact: A business always needs to look at the working arrangement and examine the specific terms and conditions under which the work is performed to determine whether a worker is an employee or contractor. A business cannot decide to treat a worker as a contractor when they are an employee.

Additionally, businesses may be required to pay super for their contractors. If you pay an individual contractor under a contract that is wholly or principally for the labour of the person, you have to pay super contributions for them.

  • Myth: Specialist skills or qualifications. Workers used for their specialist skills or qualifications should be engaged as contractors.

Fact: If a business takes on a worker for their specialist skills or qualifications it does not automatically mean they are a contractor. A worker with specialist skills or qualifications can either be an employee or contractor depending on the terms and conditions under which the work is performed.

Qualifications or the level of skill a worker has (including whether they are “blue” or “white” collar) makes no difference to whether a worker is an employee or contractor.

  • Myth: Worker wants to be a contractor. “My worker wants to be a contractor, so my business should take them on as a contractor.”

Fact: Just because a worker has a preference to work as a contractor does not mean your business should engage them as such. Whether a worker is an employee or contractor is not a matter of choice, but depends entirely on the working arrangement and the specific terms and conditions under which the work is done.

If you bow to pressure and agree to treat an employee as a contractor, you can face penalties, interest and charges for not meeting your tax and superannuation obligations.

  • Myth: Using invoices. “If a worker submits an invoice for their work, they are a contractor.”

Fact: Submitting an invoice for work done or being “paid on invoice” does not automatically make a worker a contractor.

To determine whether a worker is an employee or contractor, you need to look at the whole working arrangement and examine the specific terms and conditions under which the work is performed. If based on the working arrangement a worker is an employee, submitting an invoice or being paid on the basis of an invoice will not change the worker into a contractor.

  • Myth: Contracts. “If a worker’s contract has a section that says they are a contractor, then legally they are a contractor.”

Fact: If a worker is legally an employee, a contract saying the worker is a contractor will not make the worker a contractor at law. Businesses and workers will sometimes include specific words in a written contract to say that the working arrangement is contracting, in the mistaken belief that this will make the worker (who is an employee) a contractor at law.

If a worker is legally an employee, a contract specifying the worker is a contractor makes no difference and will not:
– override the employment relationship or change the worker into a contractor
– change the PAYG withholding and superannuation obligations a business is required to meet.

Need professional help to you work out the difference between employers and contractors for your business? Contact W Wen and Co at our Epping office here

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