Summary of stakeholder concerns

Determining worker status

2.1 Many stakeholders raised concerns regarding the uncertainty employers face in determining whether a worker is an employee for specific employer obligations. First, the common law definition of employee is heavily fact-based. It is inherently ambiguous as there are no determining factors with some being more influential in the presence or absence of others.

2.2 Secondly, the common law definition is altered by different rules contained in tax and superannuation legislation. As a result, the uncertainty is heightened and the cost of compliance increased with every working relationship needing to be assessed against each of these rules. For example, courier drivers of Vabu Pty Limited were held to not be employees for SG purposes, in Vabu Pty Limited v Federal Commissioner of Taxation,97 whilst, in Hollis v Vabu,98 they were held to be employees for vicarious liability purposes.

2.3 Working arrangements may also change over time which may alter the classification of a worker. A common example provided by stakeholders is where a business becomes more reliant on a particular worker which may be more indicative of an employment relationship.

2.4 The costs involved in seeking professional advice on the application of the various rules may be prohibitive for businesses. Instead, businesses may seek limited or incomplete advice or none at all. For example, some stakeholders reported paying SG based on the extended definition of employee and incorrectly assumed that they were also liable to pay other employee entitlements. In other examples provided by stakeholders, it was observed that some employers may increasingly engage contractors as a way to avoid increasing professional costs as well as being liable for various employee entitlements.

2.5 Stakeholders have also raised concerns that workers may incorrectly assume that being granted an ABN automatically confirms their contractor status, particularly where they may be encouraged to apply for an ABN and be engaged as contractors by their employers.

2.6 Thirdly, where workers are misclassified, intentionally or otherwise, the ATO may after many years, apply retrospective changes to those relationships resulting in significant unplanned liabilities for businesses which may affect their ongoing viability. This may be a particularly harsh outcome for businesses where the workers in question seek to be treated as employees at the end of their engagement despite agreeing to be treated as contractors at the outset and being compensated for managing their own superannuation and PAYG instalments (a type of ‘double dipping’).

2.7 A retrospective change to workers’ status can also have an adverse effect on the workers where tax deductible concessional superannuation contributions become non-deductible as a result of the reclassification. The reclassification could also result in a breach of the contributions cap and liability for excess contributions tax.

2.8 Some stakeholders have also raised concerns with ‘unreasonable delays’ in obtaining an ABN and insufficient reasons provided for refusal. Whilst such delays and reasons may be indirectly related to whether a worker is a contractor or an employee, the eligibility for an ABN is based on whether an ‘enterprise’ is being undertaken. This is outside the scope of this review. However, it may be an area for future review if concerns persist.

Guidance on worker status

2.9 Many stakeholders have raised concerns with the ATO’s Employee/Contractor Decision tool (ECD tool). The ECD tool is an online aid for businesses to determine whether their worker is an employee or contractor by asking them a series of questions.

2.10 Specific concerns raised with the ECD tool included that it:

  • was ‘overly simplistic’ as it does not reflect all common law factors and does not adequately reflect different business practices or intent;
  • may be geared towards finding an employer/employee relationship; and
  • may be manipulated to achieve a desired outcome rather than reflecting the actual substance of an arrangement.

2.11 An example provided by stakeholders was that the ECD tool does not accommodate outcome-based contractors who are paid on an hourly basis, such as contracting bookkeepers or BAS agents who work for multiple clients. Such contractors may be considered an employee of each client under the ECD tool which is clearly a misclassification.

2.12 The ECD tool is also believed to be lacking relevant and useful links to information on other employer obligations such as state payroll and workers compensation.

2.13 Some stakeholders have also raised concern with the level of protection afforded to employers when using the ECD tool for determining PAYGW and SG obligations. They believe that there is a lack of protection against penalties where employers use the tool in good faith to determine workers’ classification but the ATO later finds those classifications to be incorrect.

2.14 Stakeholders have also raised concerns that the ATO’s regimes for the provision of binding advice are only available to employers and not to workers. They have also questioned the extent to which reliance can be placed on such advice as they are heavily fact-based and the relevant facts may evolve significantly over time.

2.15 Stakeholders have also asserted that the ECD tool is designed for use by employers only and that it is another example of a missed opportunity to inform both workers and employers equally of their respective rights and obligations.

Relevant ATO materials

Guidance on worker status

2.16 The ATO has advised that there were previously two ECD tools – one specifically for the building and construction industry and another for all other industries. Following user testing, on 25 February 2016, the ATO released a new ECD tool which combined the two existing tools into one and included questions on the use of interposed entities and links to guidance on SG, PAYGW and FBT obligations. These updates were in line with the recommendations made by the BoT in 2014.99

2.17 The ECD tool instructions state that its questions are ‘based on the outcomes of court cases that considered various indicators to establish whether a person is an employee within the common law meaning of the term’.100 The areas covered by the questions include:

  • the basis of calculating remuneration for workers;
  • the worker’s ability to subcontract or delegate tasks;
  • who provides equipment, tools and other assets to complete tasks; and
  • who bears commercial risks, such as remedying errors.

2.18 The ATO has advised that it has received positive feedback about the new tool such as it was easier to understand. It also received constructive feedback that additional guidance was required particularly in connection with the classification of outcome-based contractors who are paid by the hour.101

2.19 The instructions of the new ECD tool continue to state that it is only to be used ‘by businesses that engage to pay a worker’ and is not ‘designed for labour hire firms or individual workers’. Furthermore, the instructions specifically state that it ‘does not consider other obligations, for example, payroll tax or WorkCover obligations’ but a link to the Department of Industry, Innovation and Science’s website is provided where information on other federal, state and territory employer obligations can be found.102

2.20 The new instructions also outline the level of protection offered to employers who rely on the tool:

Provided your responses accurately reflect the working arrangement, you can rely on the result provided by the tool. It is a record of your genuine attempt to understand your obligations for your worker and would be considered if we review your working arrangement in the future.103

2.21 They do not specifically provide protection against penalties as was the case with the previous instructions.104

2.22 Once the ECD tool determines the worker status to be that of an employee, links are provided to the main webpages for the various employer obligations where the ATO provides general105 as well as industry specific106 information. This information includes case studies,107 rulings108 and transcripts of videos on the distinction which demonstrates the distinguishing features of employees from contractors.109 It should be noted that it does not provide a link to the main Business webpage where the obligations associated with hiring workers are explained and checklists provided.110 It also does not provide links to any information for workers.

2.23 If businesses are still uncertain as to the status of the workers they wish to or have hired, the ECD tool advises them to seek independent advice or request a private ruling from the ATO with a link being provided on how to do this.111

2.24 In addition to the ECD tool and materials on its website, the ATO also disseminates information to businesses about their obligations though mail out campaigns.112 An example of such a campaign is the ATO’s trial of a new ‘online education product’.113 This trial involves sending a series of emails114 to 1000 small businesses in their first year of operation, at different stages, about their federal and state taxation as well as non-taxation responsibilities.115

2.25 Links to the ECD tool and an explanation of the key differences between employees and contractors116 are also provided as part of the instructions to the online ABN application form.117 It should be noted that the Commissioner of Taxation (Commissioner) is also the Registrar of the Australian Business Register (ABR). The ABR has advised that 99.7 per cent of the ABN applications received in the 2014-15 financial year were submitted using the ABR’s online form.118

2.26 The ATO has also advised that the SBFS has made recommendations about how guidance on the employee/contractor distinction should be provided. One of these recommendations is to develop a whole-of-government tool that helps employers determine the status of the worker for federal and state government obligations such as PAYG, SG, WorkCover and Portable Long Service Leave. The recommendation notes that, long term, the considerable data held by the ATO could be used to ‘push’ employee/contractor classifications to employers, improve legislation to provide one common answer across agencies and link the ECD tool to the ABN registration process to provide early guidance.

2.27 In relation to information on the rights and obligations of workers, the ATO separately provides website materials119 targeted at employees120 and contractors.121 Where workers are unsure about their status, the website material advises the worker to first contact the business before seeking legal advice, contact the FWO, or visit for further information.122

Private Binding Rulings and Administratively Binding Advice

2.28 Businesses may seek binding advice from the ATO at any time about the status of their workers. Such advice is generally in the form of a Private Binding Ruling (PBR) which in this case be requested in the context of PAYGW. The PBR regime does not extend to SG. The ATO can issue an Administratively Binding Advice (ABA) on SG related issues but is not obliged to do so.123

2.29 Both PBRs and ABAs are binding on the Commissioner and offer protection from penalties to the extent that all material facts have been provided in the request and they accurately reflect the working arrangement.

2.30 On average over the last five financial years (2010-11 to 2014-15), the ATO has advised the IGT that it has completed 38 PBR requests regarding the obligation to withhold PAYG.124 With respect to ABAs, over the last five financial years (2010-11 to 2014-15), it has received, on average, 51 ABA requests per year and issued 40 ABAs.125 Common reasons for the ATO not issuing an ABA include instances where the request was withdrawn (60 per cent) or further information was requested but not provided by the employer (20 per cent).126

ATO management of the employee/contractor distinction

2.31 Further to providing guidance, binding advice and rulings to employers to assist with the employee/contractor distinction, the ATO has advised that it has implemented compliance strategies during audit to remove the retrospective impact on employers where a worker was unintentionally misclassified as a contractor.

2.32 In this respect, where a failure to withhold PAYGW penalty is raised on the employer in circumstances where a worker has been incorrectly treated as a contractor, the ATO has discretion to remit the penalty.127 The ATO’s internal procedures provides for such remission where employers can demonstrate that, at the outset, they had made a genuine attempt at correctly classifying their workers and that, moving forward, they would rectify those classifications as per the ATO findings.128

2.33 The ATO has also advised that it has a similar strategy, known as the
‘go-forward strategy’, which applied from 1 July 2014 where workers are incorrectly misclassified for SG purposes. Where the ATO determines that workers have held themselves out to be contractors, demonstrated through the deduction of business expenses and superannuation contributions, employers will not be liable for SGC liabilities relating to prior periods129 provided that they comply with their SG obligations for those workers going forward.130

International comparisons

2.34 Revenue agencies in other jurisdictions encounter similar issues with the employee/contractor distinction and have different approaches to managing the uncertainty associated with the common law definition.

2.35 To assist in the determination of worker status, Her Majesty’s Revenue & Customs (HMRC) in the United Kingdom (UK) provides an online ‘Employment Status Indicator’ tool that can be used by both employers and workers. The outcome of the tool may be used in future disputes about a worker’s employment status and can be binding on HMRC.131 The online Employment Status Manual on the HMRC’s website provides lists of relevant factors to consider and provides references to a number of tax court cases.132 Written contracts in the UK appear to be a dominant element in a determination for worker classification.133

2.36 The Internal Revenue Service (IRS) in the United States (US) provides guidance on worker classification which focuses primarily on three common law factors - behavioural control, financial control and relationship of the parties.134 Under the common law definition of employee, a person is an employee if their employer can control ‘what will be done and how it will be done’ even if ‘freedom of action’ is given.135

2.37 The US also has a statutory definition of employee for the purposes of Social Security and Medicare taxes, which include certain drivers and salespersons.136 Independent contractors are considered self-employed and are subject to
Self-Employment Tax, which they calculate themselves and can deduct from their adjusted gross income.137 There is a specific category of workers, who are also treated as independent contractors called ‘statutory nonemployees’.138

2.38 In the US, if there is uncertainty about a worker’s status, either the worker or business can lodge an ‘SS-8 form’ to the IRS who will make an official determination. However this can be a lengthy process with the IRS advising that it can take at least six months to receive a determination.139 The requestor is required to complete a form and answer detailed questions about the work relationship between the business and the worker. Once the form is completed, the IRS sends the same form to the other party as the ‘determination of employment status affects both parties’.140 The IRS will then make a determination based on the information provided. If either party disagrees with the IRS determination, they may request reconsideration of the determination if they are able to provide additional information. No administrative appeal rights are currently allowed.141

2.39 Employers may seek a review of certain employment tax determinations (worker status) associated with an audit.142 They may also utilise the safe harbour rule143 that prevents the IRS from retroactively reclassifying ‘independent contractors’ as employees and subjecting the employer to federal employment taxes, penalties and interest where the employer can demonstrate that they ‘in good faith, misclassified their employees as independent contractors’.144 Employers may also reclassify their workers for future tax periods and obtain partial relief from federal employment taxes under the Voluntary Classification Settlement Program.145

2.40 Where a worker is found to have been misclassified by the employer, the worker may submit a form to the IRS to have their social security and Medicare taxes credited to their social security record.

2.41 In Canada, workers and businesses also have the ability to apply for a ruling of the worker’s employment status. Canada has a similar common law definition to Australia with the exception of the province of Quebec, which has a statutory definition of a business contract (contract for services) and thus a different set of factors to consider.146

2.42 The Canada Revenue Agency (CRA) considers whether there is ‘common intent’ by the parties or not. If there is no common intent, various factors are considered including:

  • the level of control the payer has over the worker’s activities;
  • whether the worker provides the tools and equipment;
  • whether the worker can subcontract work or hire assistants;
  • the degree of financial risk the worker takes;
  • the worker’s opportunity for profit; and
  • any other relevant factors, such as written contracts. 147

2.43 If a worker or payer is not sure of the worker’s employment status, either party can request a ruling to have the status evaluated. A ruling decides whether a worker is an employee or is a self-employed individual, and whether that worker’s employment is pensionable or insurable.148

IGT observations

2.44 It is clear from the above discussion that determining the status of a worker can be challenging. The employee/contractor distinction is rooted in a common law definition with no determinative factor. There are number of factors that need to be considered relative to each other, and therefore, making a determination is very much reliant on the facts and the outcome differs from one case to another.

2.45 The above challenge is exacerbated by the fact that many tax and non-tax obligations at both federal and state levels rely on the correct classification of employees and contractors. An incorrect classification of workers may have significant adverse impacts particularly for the businesses that engaged those workers. Any corrective action may have retrospective effect giving rise to unplanned liabilities going back many years.

2.46 To address the challenges of determining workers’ status and the potential of liabilities arising retrospectively, some stakeholders have suggested that the contract between the business and the worker should be respected irrespective of the common law definition. For example, if the relevant contract envisages a contractual relationship between a business and a contractor then it should be regarded as such even if the relationship is more akin to an employer/employee relationship under the common law definition.

2.47 Other stakeholders believe the above approach would be unfair as the business and the worker may have competing interests but not the same bargaining power and/or be equally informed. This may lead to bona fide employees being engaged as contractors thereby foregoing employment benefits to which they may otherwise be entitled.

2.48 Another solution that has been put forward is to legislate a definition of employee that is easier to apply than the common law definition. However, to ensure a fair outcome, such an enacted definition will also require the examination of all the relevant facts and may not be any simpler to apply. Furthermore, an ingrained legislated definition would lack the flexibility of common law which may evolve over time to reflect changing norms.

2.49 Whilst it may not be possible to simplify the employee definition, the IGT believes that businesses and workers could benefit from further assistance in determining the status of workers at an early point in their relationship to minimise any unplanned liabilities arising with respect to prior periods. In addition to ATO’s recent initiatives, such as taking steps to reduce the retrospective impact of audits, the IGT believes that the ECD tool could be further improved and a Voluntary Certification System (VCS) could be implemented to provide upfront certainty to both businesses and workers.

ECD and other tools

2.50 As outlined at the beginning of this chapter, stakeholders have raised a number of concerns about the utility of the ECD tool. During the course of this review, the ATO released its new ECD tool in February 2016. It is too early to fully assess the success of the new tool but some stakeholders have commented favourably on it.

2.51 One major concern that has been raised with the new ECD tool is that there is uncertainty as to the level of protection afforded to employers who rely on its outcome. The IGT believes that the ATO should revert back to the wording in the instructions to the old ECD tool, that is, make it clear that no penalties apply to those employers who use and rely on it in good faith.

2.52 There are also issues that the new ECD tool has not addressed, including the inability for workers to use or rely on the ECD tool. The IGT notes, in addition to the employees who are employed by 905,000 employers,149 there are approximately one million contractors150 in Australia. This is a sizeable group who could benefit from the ECD tool and prevent disputes arising at a later time.

2.53 The IGT is of the view that the current ECD tool should be expanded to allow use by workers. The proposed expanded ECD tool should be promoted amongst workers at the earliest possible times to inform them of potential tax and superannuation obligations and aid their decision making process. For example, it should be drawn to workers’ attention when they apply for ABNs through the online application process which accounted for 99.7 per cent of all ABN applications in
2014-15. Indeed it could be integrated with the ABN application process as well as the PSI tools to alert contractors of relevant information prior to being hired.

2.54 Consistent with the HMRC’s ‘Employment Status Indicator tool’151, the outcome of the proposed expansion to the ECD tool could be accompanied by advice about workers’ rights and obligations through the use of links to relevant information. For example, where the ECD tool determines the worker status to be one of contractor, it could provide links to the responsibility to remit PAYG instalments, provision of superannuation, or the possibility of being subject to the PSI regime.

2.55 The ECD tool could also be used to encourage businesses and workers to subscribe to specialised ATO communication so that they are provided with relevant updates. For example, employers could be encouraged to visit or subscribe to the ‘employers’ section of the small business newsroom when the ECD tool provides an outcome that the worker is an employee. Providing targeted information at key interaction points, such as when employers or workers are using the ECD tool or applying for an ABN, is more cost effective than an active communication campaign using television advertisements and mail-outs. Such a process accords with the SBFS’s long-term proposal to provide information to workers at the ABN application stage.152

2.56 Some stakeholders have also suggested the development of a broad tool that determines worker status across various tax and non-tax employer obligations at federal and state level. Whilst this is beyond the remit of the IGT, it should be noted that the SBFS153 and the Standing Committee on Education and Employment have recommended such a whole-of-government single tool.154 At the time of writing, the Government was yet to provide its response.155

Voluntary Certification System

2.57 In addition to expanding the ECD tool to provide workers with a basic level of certainty as to the nature of their engagement, the ATO could provide a higher degree of certainty in the form of binding advice to workers through a VCS. A VCS would, in effect, be an extension of the existing ruling and advice framework but would be based on information provided independently by each party. This would be consistent with the US and Canadian approach where either the worker or business may request a binding determination from the IRS and the CRA respectively.

2.58 Currently, where employers wish to seek binding advice or are uncertain about the classification of their workers after using the ECD tool, they may request the ATO to issue a PBR for any PAYGW obligations or an ABA for any SG obligations. Similar binding advice is not currently available for workers. Towards the end of this review, the ATO advised the IGT that a worker may seek certainty from the ATO in the form of a PBR on the issue of whether the worker is carrying on a business and that a positive ATO determination would mean that the worker is a contractor and not an employee. However, this is not an accurate reflection of a worker’s status as it does not consider the business who is engaging the worker nor the relationship between them — the key factor in deciding whether a worker is a contractor or an employee.

2.59 The ATO has also argued that workers and businesses could jointly complete a PBR or ABA application to obtain certainty upfront for both parties but such an approach presents some challenges. The potential power imbalance that may exist between the two parties, may, for example, lead to the workers not raising all their concerns.156 Whilst this would be unfair on the worker, it is also not ideal for the business if, at a later time, such as after the engagement has concluded, the worker presents different facts and challenges the determination of their status. If the worker’s challenge is upheld, retrospective liabilities may arise for the business.

2.60 The proposed VCS would be expected to overcome the inability of workers to obtain relevant binding advice on their status and for both parties to independently submit their facts for consideration. Similar to the proposed expanded ECD tool outlined above, both parties should be encouraged to use it as soon as possible to make them aware of their obligations early in the process and limit their unplanned liabilities relating to prior periods. As noted earlier, the current PBR and ABA requests are minimal – on average, 38 and 51 per year, respectively. Similarly, in order to maximise the benefits of the VCS, it should be promoted to both businesses and workers through such means as the ABN online application process as mentioned above. The VCS would also assist the ATO in their future compliance activities as they are able to use the facts provided as part of the VCS as a baseline from which they can assess changes to working arrangements and the impact it had on worker status.

2.61 The IGT recognises that, as with any binding advice, certification would be a point in time assessment of facts presented and the decision would only be binding to the extent that the relevant facts remain unchanged. Any material changes to the working arrangement over time, intentional or otherwise, would require recertification.

Harmonisation of the definition of ‘employee’

2.62 As mentioned earlier, the employee/contractor distinction is the basis for determining a number of tax and non-tax employer obligations at state and federal level. Whilst, in all cases, the distinction is based on the common law definition of employee, it is altered by the governing legislation in most instances such that businesses have the burden and associated costs of determining worker status multiple times for each category of workers.

2.63 Some stakeholders have suggested that a simple solution would be to have one definition for all obligations. However, the current definitions reflect the different policy intents of each of the relevant legislative regimes. For example, the definition of employee for SG is broader compared to that of PAYGW to reduce reliance on the Age Pension. It would require significant work and cooperation to achieve a single definition which meets the legislative intent of all these regimes.

2.64 Harmonisation of the definitions across all tax and non-tax employer obligations at federal and state levels may be more achievable than a single definition. Many stakeholders have for some time called for such harmonisation,157 however, it is a considerable undertaking and one that is beyond the remit of the IGT. It should be noted that some steps towards harmonisation are being taken158 such as the recent recommendation of the House of Representatives Standing Committee on Education and Employment for the ATO and the FWO to set up a working group for identification of the legislative change required to align the definitions of ‘employee’ across federal government agencies.159

Recommendation 2.1

The IGT recommends the ATO:

  1. clarify the protection provided to those who use and rely on the Employee Contractor Decision tool in good faith, promote the tool and allow it to be used by employees and contractors as well as accompanying the result with links to information outlining their respective rights and obligations; and
  2. implement and promote a Voluntary Certification System which employers, employees and contractors may use, as soon as possible, to confirm worker status and refer them to information about their respective rights and obligations once their status has been determined.

ATO response

Agree with recommendation 2.1(a).

Disagree with recommendation 2.1(b).

We agree to clarify the protection provided to those who use and rely on the Employee Contractor Decision (ECD) tool, to the extent this is supported from a further analysis of users’ needs which we will conduct.

We already actively promote the ECD tool and ran a funded advertising campaign earlier this year to promote the tool and myths about worker status. We will continue with our planned promotional activities.

We will explore the use of the ECD tool by workers. We will undertake the necessary design and consultation work with employees/contractors to assess the relative merits and priority of this suggestion, and schedule for implementation in accordance with the findings of that work.

We are not convinced that the proposed Voluntary Certification System offers advantages over the existing advice system, especially if we can enable the ECD tool to be used by workers. For example, the current private advice service provided by the ATO supports:

  • the provision of advice to workers on their status and
  • whether or not an individual is carrying on an enterprise.

While binding advice cannot be given to a worker about whether they should be subject to PAYGW or superannuation guarantee (because these obligations are not borne by the worker) we can and do give general advice in these situations.

A voluntary certification system would not overcome the issues identified in the review. A voluntary certification system would still require the parties to set out the facts and details of their arrangement in order for a decision to be made, as with the current private ruling system. A voluntary certification system would also only be able to make a decision based on the facts of the arrangement at the time as does the current advice system.

97 Vabu Pty Limited v Federal Commissioner of Taxation (1996) 95 ATC 4898.

98 Hollis v Vabu (2001) 207 CLR 21.

99 BoT, Tax impediments facing small business, above n 73, pp 20-2.

100 ATO, Employee/contractor decision tool (25 February 2016) <>.

101 ATO communication to the IGT, 21 March 2016.

102 ATO, Employee/contractor decision tool, above n 100, <>.

103 Ibid.

104 ATO webpage – no longer available as the page has been updated.

105 ATO, Business <>.

106 ATO, Building and construction industry - how to work out if workers are employees or contractors (13 April 2016) <>.

107 ATO, Difference between employees and contractors (22 February 2016) <>.

108 ATO, TR 2005/16, above n 13; ATO, Superannuation guarantee: who is an employee?, SGR 2005/1 (2005).

109 ATO, Video transcript – Employee or contractor? Avoid the myths (25 February 2016) <>.

110 ATO, Your workers (22 February 2016) <>.

111 ATO, Employee/contractor decision tool, above n 100, <>.

112 ATO letter template, Are your workers employees or contractors? (internal ATO document).

113 The information relates to various aspects of tax, superannuation and other government responsibilities on, such as access to business advice, record keeping and tax obligation changes.

114 ATO and Department of Industry, Innovation and Science, Congratulations on starting your new business (26 February 2016).

115 ATO communication to the IGT, 9 March 2016 p 4.

116 ATO, Difference between employees and contractors, above n 107, <>.

117 Australian Business Register, Applying for an ABN – ABN entitlement (19 August 2016) <>.

118 ATO communication to the IGT, 4 March 2016.

119 ATO, Working (4 August 2015) <>.

120 ATO, Working as an employee (9 June 2015) <>.

121 ATO, Working as a contractor (9 June 2015) <>.

122 ATO, Working, above n 119, <>.

123 ATO, Provision of advice and guidance by the ATO, PS LA 2008/3, 28 February 2008, para [190].

124 ATO communication to the IGT, 19 February 2016.

125 ATO communication to the IGT, 7 June 2016.

126 Ibid.

127 TAA sch 1 s298-20.

128 ATO, Employer Obligations: s16-30 Failure to withhold penalty method (internal ATO document, 4 August 2015) p 6.

129 ATO, Employer Obligations (EO): Superannuation guarantee (SG) risk method (internal ATO document, 16 December 2015) p 17 app A.

130 ATO, Unpaid super (5 May 2016) <>.

131 HMRC, Business tax – guidance - Employment Status Indicator (26 November 2014) <>.

132 HMRC, ESM0515 Guide to determining status: relevant factors (7 April 2016) Employment Status Manual, <>.

133 HMRC, ESM0507 Guide to determining status: importance of a written contract (7 April 2016) Employment Status Manual, <>.

134 IRS, Independent Contractor or Employee (2012) <>; IRS, Employer's Supplemental Tax Guide (Cat. No. 21453T, 2016) <>.

135 IRS, Employee (Common-Law Employee) (4 May 2016) <>.

136 IRS, Statutory Employees (17 June 2016) <>.

137 IRS, Self-Employment Tax (Social Security and Medicare Taxes) (20 June 2016) <>.

138 IRS, Statutory Nonemployees (16 June 2016) <>.

139 IRS, Independent Contractor (Self-Employed) or Employee? (7 June 2016) <>.

140 Taxpayer Advocate Service (US), 2013 Annual report to Congress – Volume One, MSP #19, (2013) p 199.

141 Ibid p 200.

142 Internal Revenue Code (US) s 7436.

143 Revenue Act 1978 (US) s 530.

144 Taxpayer Advocate Service (US), 2008 Annual report to Congress – Volume One, LR #5, (2008) p 378.

145 IRS, Voluntary Classification Settlement Program (VCSP) (22 June 2016) <>.

146 Civil Code of Québec.

147 CRA, RC4110 Employee or Self-employed? (29 July 2016) p 6-10 <>.

148 Ibid pp 5-6.

149 Commissioner of Taxation, Annual Report 2015-16, Volume 1 (October 2016) p 12.

150 Australian Bureau of Statistics, Characteristics of Employment, Australia, August 2014, Cat. No. 6330.0.

151 HMRC, Employment Status Indicator, above n 131, <>.

152 ATO, Small Business Fix-it Squads – concept testing report (internal ATO document) p 3 product 3.

153 Ibid.

154 Parliament of Australia, Getting business booming, above n 71, p xvii rec. 1.

155 ATO communication to the IGT, 2 June 2016.

156 GfK Australia Research, Superannuation Guarantee Research, ATO (2013). This ATO commissioned research found that employees do not raise concerns with the non-payment of their superannuation entitlements out of fear of losing their job.

157 Combined Small Business Alliance of Western Australia Inc., Submission 6 to the Standing Committee on Employment, Workplace Relations and Workforce Participation, House of Representatives, Making it work: Inquiry into independent contracting and labour hire arrangements (August 2005) p 2 citing Small Business Regulation Task Force, Time for Business (November 1996) p 5.

158 ATO, ‘Small Business Fix-it Squads – concept testing report’, above n 152, p 3; Council of Australian Governments, Business Regulation and Competition Working Group Report Card on progress of deregulation priorities (19 August 2011) <>.

159 Parliament of Australia, Getting business booming, above n 71, p xvii rec. 1.