As discussed here, the decision in Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 (16 June 2020) (Moffet) marked an important shift in how the courts have interpreted the employee/contractor distinction for the purposes of superannuation guarantee obligations. In Moffet, the court found that Dr Moffet, a dentist providing his services under an agreement with Dental Corp, was an employee under the extended definition in section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth). This would mean that Dental Corp had an obligation to make superannuation contributions on behalf of Dr Moffet (albeit that Dr Moffet had no standing to enforce super guarantee obligations).
Dental Corp made an unsuccessful application in the High Court for special leave to appeal from the decision in Moffet. This means that the finding that Dr Moffet is covered by the super guarantee system stands. However, given that the enforcement of the super guarantee system lies with the Australian Taxation Office (ATO), we will have to wait and see whether the ATO will use the decision to review similar arrangements (particularly, in the allied health sector).
This may have significant implications for many allied health practices which have traditionally taken the view that superannuation guarantee and employee related taxes don’t apply to their structures. This also serves as an important reminder for employers to review whether their contractor arrangements trigger any employee related obligations.
To discuss or for further information please contact:
Phil Broderick
Principal
M +61 419 512 801 | T +61 3 9611 0163
E: pbroderick@sladen.com.au
Philippa Briglia
Senior Associate
T +61 3 9611 0173
E pbriglia@sladen.com.au
