The Full Federal Court has confirmed in Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48 that a truck driver partnership was not eligible for super guarantee contributions. The decision is an important decision in relation the application to super guarantee in relation to contractors and, in particular, partnerships and other entities. The decision confirms the long standing position that the application of the super guarantee regime only applies to individual (sole trader) contractors. Interestingly, the ATO were made a party to the case and largely supported the position of ZG (not that of the truck drivers) – ie that super guarantee was not payable.

Briefly, the case involved two truck drivers who set up partnerships with their wives and contracted to drive their own trucks for the ZG business. While the truck driver partnerships worked regular hours and were paid on an hourly rate basis, they were found to be contractors under the High Court’s recent decision. Importantly, the partnerships owned and operated their own trucks and were responsible for the ongoing costs relating to those trucks.

Important findings of the Court included:

The expanded application of super guarantee to contractors (under section 12(3) of the Superannuation Guarantee (Administration) Act 1992) only applied to natural persons and did not capture partnerships (even a partnership of natural persons)
A contact with a contractor for a result, and not for labour, is not caught by super guarantee
A contract that permits delegation by the contractor is not caught by super guarantee
A contract that provides a mixture of labour and equipment may not be caught – here, the truck driver partnerships did not provide evidence that the provision of labour was the principal benefit provided by the contractors

Phil Broderick
Principal
M +61 419 512 801 | T +61 3 9611 0163
E: pbroderick@sladen.com.au

Jan Harnischmacher
Lawyer
T +61 3 9611 0158
E jharnischmacher@sladen.com.au