Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48

Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48

Section 12(3) of the SGA Act applies only where the person claiming to be an 'employee' is an identified natural person who is a party to the contract in their individual capacity; as the contracts were between ZG and the partnerships, not the individuals as such, s 12(3) does not apply. Further, even if the individuals were parties, the contracts in question were not wholly or principally for their labour but for the provision of a delivery service requiring substantial capital equipment, and the appellants did not discharge the onus of proving otherwise. The appeal was therefore dismissed.

Parties
First Appellant: Martin Jamsek; Second Appellant: Daniel Civtanovic as trustee for the bankrupt estate of Robert William Whitby; Third Appellant: Stephen Hundy as trustee for the bankrupt estate of Robert William Whitby; First Respondent: ZG Operations Australia Pty Ltd ACN 060 142 501; Second Respondent: ZG Lighting Australia Pty Ltd ACN 002 281 601; Third Respondent: Commissioner of Taxation
Jurisdiction
Australia
Judgment Date
24 March 2023
Procedural Posture
Appeal (remitted From High Court) / Judgment After Remittal
Outcome
Appeal dismissed
Legal Topics
Employee Definition Under Superannuation Guarantee (administration) Act 1992 (cth), Section 12(3) SGA Act, Partnerships and Employment Law, Contracts for Labour Vs Result, Superannuation Guarantee Obligations
Employment and Industrial Relations Industrial Law Employee Definition Under Superannuation Guarantee (administration) Act 1992 (cth) Section 12(3) SGA Act Partnerships and Employment Law Contracts for Labour Vs Result Superannuation Guarantee Obligations

Case Brief

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Parties

Martin Jamsek

First Appellant

Daniel Civtanovic as trustee for the bankrupt estate of Robert William Whitby

Second Appellant

Stephen Hundy as trustee for the bankrupt estate of Robert William Whitby

Third Appellant

ZG Operations Australia Pty Ltd ACN 060 142 501

First Respondent

ZG Lighting Australia Pty Ltd ACN 002 281 601

Second Respondent

Commissioner of Taxation

Third Respondent

Procedural Posture

Appeal (remitted From High Court) / Judgment After Remittal

Legal Issues

  1. 1 Whether the appellants fell within the extended definition of 'employee' under s 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth)
  2. 2 Whether the relevant contracts were wholly or principally for the labour of the appellants

Ratio Decidendi

Section 12(3) of the SGA Act applies only where the person claiming to be an 'employee' is an identified natural person who is a party to the contract in their individual capacity; as the contracts were between ZG and the partnerships, not the individuals as such, s 12(3) does not apply. Further, even if the individuals were parties, the contracts in question were not wholly or principally for their labour but for the provision of a delivery service requiring substantial capital equipment, and the appellants did not discharge the onus of proving otherwise. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • No order as to costs