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The employer/employee relationship - Legal perspective

Published on 01 Feb 12 by "THE TAX SPECIALIST" JOURNAL ARTICLE

Australian governments impose a range of taxes and other monetary obligations on employers in relation to payments of salary and wages and other benefits to their employees. The main touchstone for liability to these taxes and obligations is whether the payee is considered an employee at common law, but obligations are also imposed on payments to persons who fall outside the common law definition.

This article surveys a number of cases with a view to determining the key indicia of the employment relationship at common law, and whether it is possible to identify any trends in the criteria that the courts apply to distinguish employees from independent contractors. The article also examines the question of whether and to what extent the employee/independent contractor distinction is still relevant, and whether there is a basis for distinguishing between the various employment-related taxes and obligations.

Author profile

Michael Flynn QC CTA-Life
Photo of author, Michael FLYNN Michael Flynn, CTA-Life, is a Barrister specialising in taxation and was National President of The Tax Institute in 2014. He was chair of the organising committee of the National Infrastructure Conference in 2015 and 2016. Michael has appeared before the Federal Court and the High Court in many cases on behalf of both taxpayers and the Commissioner. Michael has been a member of various committees of The Tax Institute for over 20 years, including Victorian State Council (he is a past State Chair) and National Council. He lectures in the postgraduate program at Melbourne University and is President of the Tax Bar Association. - Current at 30 August 2017
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