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The AAT has held that crew members on a commercial fishing vessel operated by the taxpayer were not employees for the purposes of s 12(3) of the Superannuation Guarantee (Administration) Act 1992.

The parties operated in accordance with the terms of a document that provided:

  • The parties were “joint venturers” for the purposes of a single voyage, although the document added the agreement should not be construed so as to confer any right or interest in the vessel or create a partnership.
  • The cost of maintaining the vessel during the voyage was the responsibility of the taxpayer, but all of the parties would make a contribution towards the operating costs of the vessel. The maximum amount of operating costs that could be recovered under the terms of the agreement was $1500 or – if it were a larger number – an amount equal to 25% of the gross catch. The agreement said the costs would be borne in fixed shares, with the owner and the skipper shouldering bigger shares than the crew.
  • The fish would be sold to a buyer at the conclusion of the voyage. Each of the parties to the agreement was entitled to a share of the gross proceeds of the catch in accordance with the schedule.
  • Each party was required to bear the costs of sickness and accident insurance, and it was agreed “no party is liable for any accident or mishap that occurs during the voyage.”

After describing the preparation of the vessel for sea and the journey to the fishing grounds, the AAT continued:

"Once the vessel was moored at a particular location, the crew members would head off in their dories in search of fish. Each crew member operated independently, according to Mr Hemingway. He was not obliged to fish anywhere in particular, and he did not take instruction from the skipper or his crewmates as to how or where he should fish. He said each dory might travel several miles from the mother ship, and be gone all day. I have no reason to doubt the individual crew members enjoyed significant autonomy in the conduct of their fishing operations."

The AAT said, at paras 29-30:

"As far as the common law is concerned, I think the taxpayer’s characterisation of the relationship with the crew members is preferable to that contended for by the Commissioner. The terms of the agreement between the parties contemplates them operating as joint venturers – independent business people who are cooperating for the limited purpose of catching and ultimately selling fish. Individual crew members brought their skills and preferred equipment to the venture, and they could exit the arrangement if they wished (albeit there were some practical limits on their ability to leave the boat while it was at sea). The taxpayer provided equipment – most obviously the boat itself – and the skipper and marketing arrangements. But the equipment was effectively placed at the service of the joint venture, to be managed collectively during the voyage for the common end. The crew members, for their part, were free to fish on their own and they were paid for their output. The crew were not integrated into the taxpayer’s organisation; each of the parties had a function that they performed individually, albeit cooperatively.

I do not think the extended definition in s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth) makes any difference to that characterisation. The contract is not wholly or principally for the labour of the crew member. As I have already explained, it is a joint venture agreement that is intended to produce fish for sale. It is true the agreement contemplates the crew members contributing labour, in particular, but they are remunerated on the basis of an outcome. If there was no outcome – if they did not catch any fish – the director said in his evidence there would be no remuneration. Indeed, it was theoretically possible under the agreement the crew might return to port owing money to the taxpayer if there were no fish caught on a voyage (although the director acknowledged that had never occurred). "

Dominic B Fishing Pty Ltd and FCT [2014] AATA 205 (10 April 2014).

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