Snapshot
- The Full Court of the Federal Court has confirmed that only ‘natural persons’ are entitled to superannuation guarantee contributions.
- This excludes workers providing services through corporations, trusts and partnerships.
- From a superannuation perspective, it is prudent to contract with non-natural person entities, to avoid workers unintentionally being found to be employees at common law.
In Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48 (‘Jamsek No 3’), the Full Federal Court confirmed that only natural persons are entitled to superannuation guarantee contributions, which excludes workers providing services through corporations, trusts and partnerships. The case involved truck drivers who owned and supplied their own trucks and contracted through their partnerships with ZG Operations. The Full Court found the truck drivers were not employees under the extended definition in the superannuation legislation.
Background
The dispute concerned whether two truck drivers, Mr Jamsek and Mr Whitby, were employees for the purposes of the Fair Work Act 2009, superannuation and long service leave legislation.
The drivers derived their sole income from performing delivery work for close to 40 years for the same business (most recently known as ZG Operations) (‘Company’).
The drivers started as employees of the Company. In 1986, rather than end their working relationship, both of the drivers entered a contracting relationship which involved them buying the trucks previously owned by the Company and taking over the risk and expense of owning and operating the delivery trucks.
The relationship between each driver and the Company was, for the most part, subject to written contracts between a partnership (being the driver and his spouse) and the Company. The respective partnerships executed a written agreement entitled ‘Contract Carriers Agreement’ and the respective partnerships were described as the ‘contractors’.
