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katie r.
katie r.
Sydney South, NSW
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If someone worked as part of a real estate agency between 2000-10 selling property on a commission only basis with no OTE's and were required to give the agency manager a personal invoice for the sale, would the manager or agency then be required to pay those individuals super? Given the time lapse could the employee obtain unpaid super? Consider there was no formal employment contact between the parties and agency, yet all worked from one office under single unified company label/brand.

6 years ago

Responses

Almost certainly.
The ato is all over people who dodge their obligations as an employer.
Talk to an expert in tbis area to find out what needs to happen
Penalties can be severe for the employer!!!!

Hi again Katie,

this informal subcontractor arrangement was very common 10 years ago, however the ATO has been working its way through these employers and auditing their super guarantee obligations. There are a few tests that allow you to pretty easily determine whether someone is a "deemed worker" or a "subcontractor". They revolve around how the work is invoiced, what the work involves, who is responsible to fix it up, who tells who what to do and how and when, etc etc.

I call it the duck test: if it walks like a duck and quacks like a duck; well the chances are its a duck.
if you look like an employee and act like and employee; well then you are probably an employee.

If you are the person getting paid here, then I would have a chat with your accountant and then talk to the ATO: they love to hear from employees who got stitched up by employers seeking to avoid their obligations

If you are the real estate agent, then you DEFINITELY need to see someone ASAP!! It is likely that you have a big problem that will cost you many thousands of dollars in unpaid SG obligations. It makes no difference whether the issue was intentional or not, if the ATO gets wind of an employer not paying super, they go for the jugular!! and just to rub salt into the wound, if an employer gets picked up for this, none of the super, or the fines are tax deductible!!!

oh, and the next thing the employer can look forward to is a Workers Comp insurance audit: the same duck test applies here, and in my experience the ATO is all too happy to share info with the likes of GIO.

you may get the impression that I tend to side with the employee in this matter: I do. I believe it is reprehensible that an employer can attempt to avoid obligations in respect of the very people that the employer is reliant upon for their income. If you have such little regard for your employees you probably deserve everything that the ATO is going to deliver.

moral of the story is GET GOOD ADVICE!!

good luck
BC

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