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The AAT has held that persons engaged by the taxpayer to crew 4 fishing vessels owned by a party related to the taxpayer were not independent contractors but, instead, were employees for the purposes of the Superannuation Guarantee (Administration) Act 1992. As a result, the taxpayer was obliged to make a superannuation contribution at a prescribed level for the benefit of those crew members. Having failed to do so, it was liable to pay superannuation guarantee charge on the shortfall.

The AAT considered the evidence led in the context of the indicia of a business identified by Bromberg J in On Call Interpreters & Translators Agency Pty Ltd v FCT (No 3) [2011] FCA 366, and concluded that none indicated that the crew members were carrying on a business separate from the business carried on by the taxpayer.

In relation to the degree of control to which the crew members were subject, the AAT said, at para 17:

"The control of Floorplay extended to the catch and how it was dealt with. The crew members were not at liberty to treat the catch as the product of their endeavours which they could sell as and how they saw fit in their economic interests. Instead they were obliged to have a catch processed and sold through one of Floorplay’s associated entities. It is, as well, significant that the parties agreed that Floorplay would deduct PAYG Withholding Tax payments from amounts otherwise payable to the crew members. Such an arrangement is not consistent with the notion that the crew members are operating independent businesses; it is, instead, suggestive of the relationship of employer and employee."

Floorplay Pty Ltd and FCT [2013] AATA 637 (AAT, Hack SC DP, 6 September 2013).


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