Federal Court of Australia
Federal Court of Australia
Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48 File number: NSD 332 of 2022
Judgment of: PERRAM, WIGNEY AND ANDERSON JJ
Date of judgment: 24 March 2023
Catchwords: INDUSTRIAL LAW – High Court remittal – section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) (SGA Act) – whether the primary trial judge was correct to find that the appellants did not fall within the extended definition of "employee" pursuant to s 12(3) of the SGA Act – where the primary judge was correct to find that the contracts of employment between the appellants and first and second respondents were not wholly or principally for the labour of the appellants – where the appellants have not discharged the onus of proving that the contracts of employment were principally for their labour and therefore the second element of s 12(3) of the SGA Act is not satisfied – appeal dismissed
Legislation: Acts Interpretation Act 1901 (Cth) Superannuation Guarantee (Administration) Act 1992 (Cth) Superannuation Guarantee (Administration) Bill 1992 (Cth)
Cases cited: Bluescope Steel (AIS) Pty Ltd v Australian Workers' Union (2019) 270 FCR 359 Cascade Brewery Co Pty Ltd v Commissioner of Taxation (2006) 153 FCR 11 Commissioner of Taxation v Commonwealth Aluminium Corporation Limited (1980) 143 CLR 646 Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118; 278 FCR 502 Federal Commissioner of Taxation v Vabu Pty Ltd (1997) 35 ATR 340 Gray v Mercantile Mutual Insurance (Australia) Limited (1994) SASR 154 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119; (2020) 279 FCR 114 JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 Neale v Atlas Products (1955) 94 CLR 419 On Call Interpreters and Translators Agency Pty Ltd v Federal Commissioner of Taxation (No 3) (2011) 214 FCR 82 Parker Pen (Australia) Pty Ltd v Export Development Grants Board (1983) 67 FLR 234 Rose v Federal Commissioner of Taxation (1951) 84 CLR 118 Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 96 ATC 4898 Whitby v ZG Operations Australia Pty Ltd [2018] FCA 1934 World Book (Australia) Pty Ltd v Commissioner of Taxation (FCT) (1992) 27 NSWLR 377 ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; 96 ALJR 144; 398 ALR 603; 312 IR 74
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