Business taxation Employment taxes Employee vs contractor

Draft guidance on the meaning of an employee

Author: The Tax Institute

Published Date: 15 Mar 2023


Sorry, this is subscriber only content.

If you're not yet a subscriber, to gain access to this material and much more - Subscribe Now.

Already a Subscriber? Login now

Already a Subscriber? Login now

The recent decisions of the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contacting Pty Ltd [2022] HCA 1 (Personnel Contracting) and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 (Jamsek), have signalled a major shift away from the approach the courts have historically adopted to characterise a worker as either an employee or independent contractor at general law. The judgment of Wigney J in JMC Pty Ltd v Commissioner of Taxation [2022] FCA 750 (JMC) is an example of how the courts have applied the principles in Personnel Contracting and Jamsek, with the analysis centred around the terms of the relevant employment contract. 

It is important for the guidance to be consistent with, and accurately reflect the reasoning of the High Court, including, in particular, the emphasis that the High Court has placed on legal rights and obligations being determined by reference only to the terms of the contract between the worker and the principal. 


Please note: the attachments referred to in this submission have not been published on our website.


  • Published By:The Tax Institute
  • Published On:15 Mar 2023

The material is copyright. Apart any fair dealing for the purpose of private study, research criticism or review, as permitted under the copyright Act, no part may be reproduced by any process without written permission from The Tax Institute.

Unless expressly stated, opinions are not that of The Tax Institute, which accepts no responsibility for the accuracy of any of the information contained within it.

The Tax Institute
(ABN 45 008 392 372 (PRV14016))


The Tax Institute is a Recognised Tax Agent Association (RTAA) under the Tax Agent Services Regulations 2009. 

Copyright Statement

All materials provided on this site are protected by copyright and are owned by or licensed to TTI.

Except as expressly permitted by TTI or the copyright owner, any person or company who uses this site must not use, reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, the materials or any information, software or other content, in whole or in part, which is available through this site.


Business taxation Employment taxes Employee vs contractor

Share this page