By Dr Rhonda Daniels AE, Pay and Conditions Standing Committee
Creative Workplaces – part of the Australian Government arts advisory body, Creative Australia – promotes fair, safe and respectful creative workplaces. The organisation has compiled some useful information on who gets super in the context of editors providing personal labour and skills. This is relevant for self-employed editors who may be wondering when they are, or are not, entitled to be paid superannuation by clients. Employers and hirers must pay super for employees and some independent contractors, including certain performers, creatives and arts workers.
The website provides an example of a business engaging “Bruce”, an editor, to do some work on a publication. Bruce is an independent contractor using his own Australian business number (ABN). Under the contract, Bruce is paid an hourly rate up to a maximum value of $4,000 and can subcontract the work. Bruce does not get super.
Even though Bruce is paid an hourly rate, which is generally a factor pointing towards a worker providing personal labour, this alone does not make him entitled to super. Hourly payment is usually a weak indicator of an entitlement to super when considered on its own. The stronger and more decisive factor in this scenario is that Bruce is genuinely allowed to subcontract the work. This means the obligation to perform the work is not personal. For the super guarantee, a worker is more likely to be deemed an employee when the contract requires personal labour and the worker cannot delegate or subcontract the work.
The ability to delegate the work indicates the engagement is with a business, not the individual, personally. If Bruce can engage someone else to complete the task (even if he chooses not to), the ATO generally considers the arrangement to be a contract for results or services, rather than a contract for personal labour.
Read more
- Who gets super
- Contracts with sole traders engaged for performing, presenting, or work connected to performing or presenting
PS. Given a very highproportion of editors are women, it was an interesting choice of a male name for the editor example.