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The employer/employee relationship - Legal perspective


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 is a Barrister at Owen Dixon Chambers West, specialising in taxation, and was National President of The Tax Institute in 2014. He is the author, with James Kessler, QC, of Drafting Trusts and Will Trusts in Australia (2nd edition, 2017). Michael has appeared in the Administrative Appeals Tribunal, the Federal Court and the High Court in taxation cases. Michael has been a member of various committees of The Tax Institute for over 20 years. - Current at 02 December 2019
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