Businesses in Australia must distinguish between an employee and a contractor since doing so has a direct impact on payroll tax responsibilities and tax compliance. Misclassification will lead your company to unnecessary legal issues. In addition to potential payroll tax liabilities, misclassifying an employee as a contractor can result in enforced back payments, interest charges, and penalties from both the ATO and state revenue offices.
While contractors operate autonomously and supply their own tools, employees usually work under direct supervision, earn a regular salary, and have benefits like leave and superannuation. Businesses can avoid needless charges and fulfil their tax obligations by being aware of these distinctions.
In Australia, contractor provision is applicable only when a worker genuinely qualifies as a contractor. To distinguish between an employee and a contractor, it's essential to observe the overall relationship between the worker and the business. In some cases, a worker classified as a contractor may actually possess all the characteristics of an employee.
An employee has a contract of service with the employer and is obligated to adhere to the terms of the contract. A contract of service establishes an employer-employee relationship. Both the employer and the employee share mutual responsibilities, and the employee maintains an employment relationship with the company.
In contrast, a contractor enters into a contract for service, which entails providing a specific service. A contract for service establishes a client-independent contractor relationship. A contractor typically operates an independent business and provides services to clients under commercial terms.
To establish the correct classification, it's crucial to examine the overall status of the worker's interaction with the business. Below are the six main factors to assess when distinguishing between an employee and a contractor:
This factor examines the extent of control the employer has over the service provided. It involves considering what, where, and when tasks are completed, and how the work is executed. While it's not necessary to monitor every detail, the business should be aware of its level of control and influence over the service and how the work can be impacted.
Regarding an employee, the employer has legal authority over the worker's tasks, work hours, and gives instructions.
On the other hand, the independent contractor has greater control over how they carry out the work, with reasonable directions from the employer who is the client. Contractors consent to a particular project or task in exchange for payment.
Does the business take the risk for the employer, and who possesses the license and insurance?
An employee bears little to no risk. The employer is responsible for bearing any legal or commercial risks that result from defects or injury in the employee’s work.
Comparatively, contractors should take upon themselves any expenses resulting from an injury or flaw in their work.
This fact decides if the employer gives annual leave or sick leave to the worker, and who pays superannuation to the worker, etc.
An employee is entitled to vacation time, sick leave, and potentially other types of leaves, while a contractor generally won’t receive them. Moreover, an employee may receive various forms of benefits from the employer, such as health insurance and retirement plans, that again a contractor is not entitled to.
Speaking of remuneration, an employee can receive it for the period or the number of days they worked, as a price for each activity or target, or as a commission. On the other hand, a contractor is required to complete a certain project and is paid the promised or predetermined amount when the work is concluded or the result is achieved.
The company is responsible for providing all or most of the necessary equipment, tools, and other assets to an employee. However, if the employees arrange the tools for themselves, the business should provide them with an allowance or reimburse the expenses incurred.
Contractors are responsible for bringing or arranging their own tools, materials, and equipment, and the business does not give them an allowance or reimbursement. The independent contractor is totally in charge of any such valuable tool that is necessary to complete their task or service.
This refers to whether the worker is allowed to delegate or hand over their work to someone else, or get it done through another.
A contractor is able to delegate the work as the contract includes a clause that provides the power to subcontract to delegate. However, there is no such clause in the contract of an employee. Hence, employees are not allowed to delegate their work to others and should complete their duties by themselves.
This recognizes whether the workers and their work are connected and integrated into the organization, and is part of the organization, or rather, their work is separate and not merged with that of the main operations of the company.
Therefore, employees work for the company, obeying the contract, while contractors provide a certain service. An employee represents the business and works for its improvement, while a contractor works to improve their own business.
Each of these factors plays a critical and equal role in determining whether a worker is classified as an employee or a contractor.
If you determine a worker is an employee, payments to them are taxable. If you determine a worker is a contractor, payments to them are taxable unless you can exclude them under one of the contractor exemptions.
There are several exemptions for payroll tax concerning contractors. They can be categorized as specific exemptions and general exemptions. Businesses can claim these exceptions as long as the provided conditions are met, and given that the worker should be an independent contractor, the contract should be a relevant contract, and at least one of the above exemptions should apply.
Therefore, if any contract is eligible for the exemption, businesses can simply exclude such payments from the taxable wages. There is no other specific procedure to go through or a separate form to fill out.
Owner drivers who transport goods in their own vehicles are exempt from payroll tax, given that
the contractor only provides incidental services. The main purpose of this contract is to transport
goods. Moreover, the vehicle should be the contractor’s own vehicle or the contractor should have
leased the vehicle, and he/she cannot be an employee of the company. The employer is not
allowed to make any contribution regarding the vehicle or its running expenses.
This exemption typically excludes couriers in some states. However, eligibility can vary based on
how the service is structured and state-specific rules. Check with your local revenue office for
guidance.
Please note that the two exceptions below do not apply in the Northern Territory,
New South Wales, and Western Australia.
This exemption applies to a person who sells domestic goods on behalf of your company but is
not an employee of the company. The sales should happen in the customer's or buyer's residence.
Moreover, products should be sold to the public for the use of the final consumer and not for
resale. If so, the amount you pay to that contractor is exempt from payroll tax.
Insurance Sales Agents
Insurance companies may hire sales agents to sell their insurance. This exemption applies to
such insurance companies that hire contractors by making payment on a commission basis.
Again, the sales agent cannot be the company's employee and has to be a genuine independent
contractor with an agency business.
Services provided for 90 days or less
This exemption applies to contractors who provide the same or a similar service for no more than
90 days. A day is one calendar day, which is 24 hours from midnight to midnight. Any amount of
time worked during these 24 hours is considered a day of work.
These 90 days should be in the same financial year, but need not be consecutive.
This exception only applies to the first 90 days, and if it exceeds, then all payments made to the
contractor, including the payments for the first 90 days, will be subject to tax.
Businesses must accurately determine whether a worker is an employee or a contractor in order to maintain compliance with Australian payroll tax regulations. To make well-informed decisions, employers must evaluate elements including control, financial independence, and the nature of the working relationship. Businesses can also minimise their tax liabilities and prevent expensive mistakes by being aware of payroll tax exemptions and contractor rulings.