JMC Pty Ltd: High Court rejects the Commissioner's leave to appeal

• Law Firm: Holding Redlich
• Published date: 19 October 2023

Today the High Court rejected the Commissioner's application for special leave to appeal the Full Federal Court decision in JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 - a significant win for those looking for certainty in how the principally for labour definition of employee operates in the Superannuation Guarantee (Administration) Act 1992(Act).

Case history

The JMC case was centred on the determination of whether a lecturer, Mr Harrison, should be classified as an employee or an independent contractor. Mr Harrison had been engaged under a contract specifying his obligations, fees, and the right to sub-contract his duties with the consent of the employer. The issue in JMC was the common law definition of employee for section 12(1) of the Act and in the alternative, the extended definition in section 12(3) of the Act which provides:

"If a person works under a contract that is wholly or principally for the labour of the person, the person is an employee of the other party to the contract."

The case had a mixed history:

• emerged from disputes over superannuation guarantee charges issued by the ATO to JMC Pty...