JMC Pty Limited v Commissioner of Taxation [2022] FCA 750

Federal Court of Australia JMC Pty Limited v Commissioner of Taxation [2022] FCA 750 File number: NSD 175 of 2020

Judgment of: WIGNEY J

Date of judgment: 29 June 2022

Catchwords: TAXATION – applicant provides accredited higher education creative industries courses – Mr Harrison engaged by applicant as lecturer – respondent deemed Mr Harrison an employee of applicant under the Superannuation Guarantee (Administration) Act 1992 (Cth) – applicant issued notices of assessment of superannuation guarantee charges – applicant lodged objection to notices of assessment – respondent disallowed applicant's objection – applicant appealed respondent's objection decision under s 14ZZ(1) of the Taxation Administration Act 1953 (Cth) CONTRACTS – whether Mr Harrison was an "employee" per its ordinary meaning in s 12(1) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – common law principles inform ordinary meaning of "employee" – issue of whether contract between applicant and Mr Harrison was one of employment or independent contractor – consideration of recent statement of test in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 96 ALJR 89; [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek (2022) 96 ALJR 144; [2022] HCA 2 – consideration of totality of parties' contractual rights and obligations – parties' contracts contained in memoranda of agreement and email correspondence – right to sub-contract or assign required applicant's written consent – not an "unlimited power of delegation" – Mr Harrison remunerated referable to hourly rate for "teaching services" provided – provision of teaching services under the contracts could not reasonably be considered delivery of a "product or result" – balance of the terms of the contracts favoured characterisation as one of employment – Mr Harrison held to be an "employee" on ordinary meaning in s 12(1) CONTRACTS – whether contracts were wholly or principally "for" Mr Harrison's labour per extended meaning of "employee" in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) – application of Dental Corporation Pty Ltd v Moffet (2020) 278 FCR 502; [2020] FCAFC 118 – contracts were at least "principally" for Mr Harrison's labour – applicant contracted for the benefit of teaching services by Mr Harrison that complied with its accreditation obligations – right to sub-contract or assign work was limited given the need for applicant's consent and compliance with accreditation obligations – Mr Harrison held to be an "employee" on extended meaning in s 12(3)