Update on Court Case on Employee vs Subcontractor

Last year we discussed the case of JMC Pty Ltd v Commissioner of Taxation, where an individual lecturer engaged as a subcontractor by a higher education provider was held to be an employee by the federal court for superannuation purposes.

The agreement allowed the lecturer to subcontract or assign the performance of teaching services.

The original blog.

JMC Pty Ltd appealed to the full federal court, and the lecturer was found to be an independent contractor rather than an employee, and as such, no superannuation was required to be paid by JMC Pty Ltd.

The full federal court’s view was that:

• The contract did not provide control to JMC Pty Ltd over how, when or where the lecturer was required to deliver its lectures.

• The right to subcontract or assign teaching services to third parties with the consent of JMC Pty Ltd was also important.

The ATO has applied for special leave to the high court.

We will keep you posted if the High Court allows the leave.

Full details of the case are available at:

JMC Pty Ltd v Commissioner of Taxation.