Living Works Education (Australia) Pty Ltd v Chief Commissioner of State Revenue [2026] NSWCATAD 80;

1. Where tax has been assessed, s 86 of the Taxation Administration Act 1996 (NSW) ("Administration Act"), allows rights of objection to a taxpayer dissatisfied with an assessment. This is an internal review process under which the Chief Commissioner of State Revenue, the Respondent in these proceedings, must consider and determine the objection (s 91 of the Administration Act).
2. A taxpayer who is dissatisfied with the decision made upon the Respondent's determination of an objection, may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 ("NSW") ("ADR Act") of the decision of the Chief Commissioner of State Revenue the subject of the objection.
3. These circumstances have arisen in the present matter as set out in the background above, so bringing the matter within the jurisdiction of the Tribunal.
4. The onus of proving their case lies with the Applicant (s 100(3) of the Administration Act).
5. The Tribunal, dealing with the taxpayer's application, may do one or more of the following under s 101 of the Administration Act:

"(a) confirm or revoke the assessment or other decision to which the application relates,

(b) make an assessment or other decision in place of the assessment or other decision to which the application relates,

(c) make an order for payment to the Chief Commissioner of any amount of tax that is assessed as being payable but has not been paid,

(d) remit the matter to the Chief Commissioner for determination in accordance with its finding or decision,

(e) make any further order as to costs or otherwise as it thinks fit."

1. Under the PTA, payroll tax is imposed on all "taxable wages" (s 6). Section 7 of the PTA provides that the employer by whom taxable wages are paid or payable is the person liable to pay payroll tax on the wages.
2. "Taxable wages" are wages that are paid or payable by an employer to an employee (s 13 of the PTA). The PTA does not define who is an "employee" within the meaning of s 13 but s 3(1) defines the term "employer", to relevantly mean a person who pays or is liable to pay "wages".
3. Section 13(1) of the PTA defines "wages" as follows:

"wages" mean wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee, including--

(a) an amount paid or payable by way of remuneration to a person holding an office under the Crown or in the service of the Crown, and

(b) an amount paid or payable under any prescribed classes of contracts to the extent to which that payment is attributable to labour, and

(c) an amount paid or payable by a company by way of remuneration to or in relation to a director of that company, and

(d) an amount paid or payable by way of commission to an insurance or time-payment canvasser or collector, and

(e) an amount that is included as or taken to be wages by any other provision of this Act.

(2) For the purposes of this Act, wages, remuneration, salary, commission, bonuses or allowances are wages--

(a) whether paid or payable at piece work rates or otherwise, and

(b) whether paid or payable in cash or in kind.

(3) This Act applies in respect of wages referred to in subsection (1) (a)-(e) that are paid or payable to or in relation to a person who is not an employee in the same way as it applies to wages paid or payable to an employee (as if a reference in this Act to an employee included a reference to any such person)".

1. If the trainers were "employees", there was no dispute that the Applicant was an "employer" who paid them "taxable wages" and as such, liable for payroll tax. The first question for determination, in these circumstances, is whether the trainers were "employees" within the meaning of s 13.
2. In the absence of a specific statutory definition, what is an "employee" in the PTA takes its meaning as understood in common law. The parties were in agreement as to this. What they disagreed upon was whether or not the trainers were employees in common law.
3. The Applicant said that they were not employees but independent contractors. The Respondent, however, said that they were employees.

1. What is an employee at common law has fallen for consideration in multiple cases over time. With its historic origins in the master servant relationship as understood in English law, the law of employment, as it has developed into contemporary times, places emphasis on whether or not the purported employer has control over the purported employee.
2. Once, "control" was understood in terms of control exercised by the employer to direct what work was done and how it was done. However, the contemporary understanding of the employment relationship emerging out of the cases, involves not actual control but the right of control in a manner that is consistent with the contract of employment (Narich Pty Ltd v Commissioner of Pay-roll Tax (1983) 2 NSWLR 597, at 606). In Stevens v Brodribb Sawmilling Company Pty Ltd [1986] HCA 1, Mason J said, at [19],

"It is said that a test which places emphasis on control is more suited to the social conditions of earlier times in which a person engaging another to perform work could and did exercise closer and more direct supervision than is possible today. And it is said that in modern post-industrial society, technological developments have meant that a person so engaged often exercises a degree of skill and expertise inconsistent with the retention of effective control by the person who engages him. All this may be readily acknowledged, but the common law has been sufficiently flexible to adapt to

changing social conditions by shifting the emphasis in the control test from the actual exercise of control to the right to exercise it, "so far as there is scope for it", even if it be "only in incidental or collateral matters" (Zuijs v. Wirth Brothers Pty Ltd, at p 571)". (without footnotes)

1. The High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 ("CFMEU") considered the historical and more recent cases dealing with the question of what an employee was. It confirmed that it is the "right of a person to control the work of the other, rather than the detail of the actual exercise of control, which serves to indicate that a relationship is one of employer and employee", (at [74]).
2. The High Court considered whether what is known as the "multifactorial test" had application to the determination of whether someone was an employee. This is a test that required examination of the "totality of the relationship between the parties" to the purported contract of employment.
3. The High Court (Kiefel CJ and Keane and Edelman JJ), in criticising the multifactorial test, said, at [33]-[34]:

"A multifactorial approach is open to the objection that it "does not provide any external test or requirement by which the materiality of the elements may be assessed". As Lee J recognised in this case, without guidance as to the relative significance of the various factors the "multifactorial test" is distinctly "amorphous" in its application, is "necessarily impressionistic", and thereby is "inevitably productive of inconsistency". Such a test is apt to generate considerable uncertainty, both for parties and for the courts. That uncertainty is exacerbated where it is contended that the test is to be applied in respect of the parties' conduct over the whole course of their dealings with each other.

34 In Stevens v Brodribb Sawmilling Co Pty Ltd and Hollis v Vabu Pty Ltd, it was said that the characterisation of a relationship as being either one of employment or one of principal and independent contractor is to be determined by reference to "the totality of the relationship between the parties". It was not suggested that this assessment should proceed as if the court is running down items on a checklist in order to determine a balance of ticks and crosses. It has never been suggested that the factors identified to be relevant are of equal weight in the characterisation of the relationship. Some understanding as to the relative significance of the various factors is desirable, both to minimise the extent to which application of the test may produce an impressionistic and subjective outcome on the one hand, and to avoid the injustice of a mechanistic checklist approach on the other". (without footnotes).

1. In WorkPac Pty Ltd v Rossato [2021] HCA 23, the High Court said that the resolution of the question whether a person engaged to work for another is an employee or an independent contractor "may depend upon the extent to which it can be shown that one party acts in the business of, and under the control and direction of, the other", at [101]). In CFMEU, the High Court agreed. Their Honours made the following observations as to some of the matters going to determining whether or not an employment relationship arose, including asking whether the purported employee had their "own business" rather than serving the business of the employee. They said, at [35] - [39]:

"In this Court, the appellants submitted that the question whether a labourer is conducting his or her own independent business, as distinct from serving in the business of the employer, provides a more meaningful framework to guide the characterisation of the parties' relationship. There is force in that submission.

The value of the "own business/employer's business" dichotomy in determining whether a person engaged to undertake work for another is an employee of that other has long been recognised. In an opinion written a century ago, expressed in the language of the time, by Andrews J for a strong New York Court of Appeals in Braxton v Mendelson. His Honour said:

"Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools and appliances he may use in his work; the business in which the master is engaged or that of him said to be a special employer; none of these things give us an infallible test. At times any or all of them may be considered. The question remains: In whose business was the servant engaged at the time?"

In Marshall v Whittaker's Building Supply Co, Windeyer J said that the distinction between an employee and an independent contractor is:

"rooted fundamentally in the difference between a person who serves his employer in his, the employer's, business, and a person who carries on a trade or business of his own."

In Stevens, Wilson and Dawson JJ observed that Windeyer J in Marshall "was really posing the ultimate question in a different way". Similarly, in Hollis, the plurality referred to the statement of Windeyer J as reflecting the "representation and ... identification with the alleged employer" that characterises a relationship as one of employment. In their Honours' view, it was another way of putting the proposition that an independent contractor "carries out his work, not as a representative but as a principal". It may also be noted that the Federal Court has previously recognised that viewing the totality of the relationship between the parties through the prism of this dichotomy can give useful shape and meaning to the assessment of the relative significance of the parties' rights and duties.

While the "central question" is always whether or not a person is an employee, and while the "own business/employer's business" dichotomy may not be perfect so as to be of universal application for the reason that not all contractors are entrepreneurs, the dichotomy usefully focusses attention upon those aspects of the relationship generally defined by the contract which bear more directly upon whether the putative employee's work was so subordinate to the employer's business that it can be seen to have been performed as an employee of that business rather than as part of an independent enterprise. In this way, one may discern a more cogent and coherent basis for the time‑honoured distinction between a contract of service and a contract for services than merely forming an impressionistic and subjective judgment or engaging in the mechanistic counting of ticks on a multifactorial checklist". (emphasis added - without footnotes)

1. Their Honours laid emphasis on the terms of the relevant contract of employment going to the determination of whether or not an employment relationship could be established. They said, at [40]-[43]:

"In Commonwealth Bank of Australia v Barker, French CJ, Bell and Keane JJ said:

"The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment."

An employment relationship will not always be defined exclusively by a contract between the parties. Historically, the employment relationship was recognised and regulated by the law before the law of contract came to govern the relationship. An employment relationship, though principally based in contract, may be affected by statutory provisions and by awards made under statutes. It may also be that aspects of the way in which a relationship plays out "on the ground" are relevant for specific statutory purposes. So, for example, a statute may operate upon an expectation generated in one party by the conduct of another, even though that expectation does not give rise to a binding agreement.

A contract of employment may be partly oral and partly in writing, or there may be cases where subsequent agreement or conduct effects a variation to the terms of the original contract or gives rise to an estoppel or waiver. In such cases, it may be that the imposition by a putative employer of its work practices upon the putative employee manifests the employer's contractual right of control over the work situation; or a putative employee's acceptance of the exercise of power may show that the putative employer has been ceded the right to impose such practices.

While there may be cases where the rights and duties of the parties are not found exclusively within a written contract, this was not such a case. In cases such as the present, where the terms of the parties' relationship are comprehensively committed to a written contract, the validity of which is not challenged as a sham nor the terms of which otherwise varied, waived or the subject of an estoppel, there is no reason why the legal rights and obligations so established should not be decisive of the character of the relationship". (without footnotes)

1. Their Honours went on to say, at [44] - [46]:

"Not only is there no reason why, subject to statutory provisions or awards, established legal rights and obligations in a contract that is entirely in writing should not exclusively determine the relationship between the parties but there is every reason why they should. The "only kinds of rights with which courts of justice are concerned are legal rights". The employment relationship with which the common law is concerned must be a legal relationship. It is not a social or psychological concept like friendship. There is nothing artificial about limiting the consideration of legal relationships to legal concepts such as rights and duties. By contrast, there is nothing of concern to the law that would require treating the relationship between the parties as affected by circumstances, facts, or occurrences that otherwise have no bearing upon legal rights.

In Narich Pty Ltd v Commissioner of Pay‑roll Tax, approving the earlier decision in Australian Mutual Provident Society v Chaplin, in the course of delivering the reasons of the Privy Council dismissing the appeal from the Supreme Court of New South Wales, Lord Brandon of Oakbrook said that:

"where there is a written contract between the parties whose relationship is in issue, a court is confined, in determining the nature of that relationship, to a consideration of the terms, express or implied, of that contract in the light of the circumstances surrounding the making of it; and it is not entitled to consider also the manner in which the parties subsequently acted in pursuance of such contract."

The one exception to this principle was said to be the case where subsequent conduct could be shown to have varied the terms of the contract. To similar effect, in Connelly v Wells, following Narich, Gleeson CJ said:

"Where the relationship between two persons is founded in contract, the character of the relationship depends upon the meaning and effect of the contract. In the absence of a suggestion that a contract was varied after it was originally made, its meaning and effect must be determined as at the time it was entered into. If the contract is in writing, then the court which is considering the nature of the relationship between the parties is directed to an examination of the terms of the written agreement in the light of the circumstances surrounding its making."

Numerous other Australian courts have continued to recognise as authoritative the decisions in Chaplin and Narich". (without footnotes)

1. Their Honours described the importance of the contract allowing the employer direction and control over a person, before a relationship of employer and employee can arise. They said, at [53]:

"In Logan v Gilchrist, this Court treated the question of whether a drover was an employee or an independent contractor as whether, as Isaacs J put it, the putative employer has "a right at the moment to control the doing of the act" or, as Higgins J put it, a question which "is answered by the contents of the agreement". In Queensland Stations Pty Ltd v Federal Commissioner of Taxation and Humberstone v Northern Timber Mills, Dixon J spoke respectively of whether "such a contract created the relation of ... employer and employee" and whether "the contract placed the supposed servant subject to the command of the employer ... not whether in practice the work was in fact done subject to a direction and control". In Federal Commissioner of Taxation v J Walter Thompson (Aust) Pty Ltd, Latham CJ spoke of the "decisive element" in characterising a relationship of employment as being "the extent of control which, by the agreement, the master may exercise". (emphases added -without footnotes)

"Where the parties have comprehensively committed the terms of their relationship to a written contract the validity of which is not in dispute, the characterisation of their relationship as one of employment or otherwise proceeds by reference to the rights and obligations of the parties under that contract. Where no party seeks to challenge the efficacy of the contract as the charter of the parties' rights and duties, on the basis that it is either a sham or otherwise ineffective under the general law or statute, there is no occasion to seek to determine the character of the parties' relationship by a wide‑ranging review of the entire history of the parties' dealings. Such a review is neither necessary nor appropriate because the task of the court is to enforce the parties' rights and obligations, not to form a view as to what a fair adjustment of the parties' rights might require". (emphasis added - without footnotes).

In this respect, the principles governing the interpretation of a contract of employment are no different from those that govern the interpretation of contracts generally. The view to the contrary, which has been taken in the United Kingdom, cannot stand with the statements of the law in Chaplin and Narich.

The foregoing should not be taken to suggest that it is not appropriate, in the characterisation of a relationship as one of employment or of principal and independent contractor, to consider "the totality of the relationship between the parties" by reference to the various indicia of employment that have been identified in the authorities. What must be appreciated, however, is that in a case such as the present, for a matter to bear upon the ultimate characterisation of a relationship, it must be concerned with the rights and duties established by the parties' contract, and not simply an aspect of how the parties' relationship has come to play out in practice but bearing no necessary connection to the contractual obligations of the parties". (without footnotes)

1. The particular description of the service provider as an employee or contractor is not determinative of the relationship. What is relevant is the real character of the relationship between the parties and not the labels the parties use to describe the relationship (Ex parte Robert John Pty Ltd; Re Fostars Shoes Pty Ltd [1963] SR (NSW) 260 at 272; CFMEU, at [51])
2. Equally, a provision of the contract in question that purports to exclude an employment relationship in favour of some other kind of relationship such as that of independent contractor, is also not determinative (R v Foster; Ex parte The Commonwealth Life (Amalgamated) Assurances Ltd [1952] HCA 10; at [19]); CFMEU, at [49] - [50]).
3. Determining whether or not the persons entering into the agreements in issue are employees or not, first of all, requires consideration of the terms of each applicable agreement. There were three forms of agreement in evidence, described below, on which submissions were made. I will go on to outline the relevant terms of each of the three agreements on which submissions were made.

Independent Contractor Agreement dated 1 January 2021 ("Earlier Independent Contractor Agreement")

1. The salient features of the Earlier Independent Contractor Agreement were as follows:

(1) Recital B says that the trainer "possesses the skills and experience to conduct training workshops and is registered as a LivingWorks trainer".

(2) Clause 2 requires the trainer to "provide the Services on a non-exclusive basis". They must provide the Services "subject to the operating needs and requirements of LivingWorks from time to time". The Services are described in the Schedule to include "safeTALK" and ASIST. The agreement is for a given term (cl 3.1).

(3) Clause 4 requires the Applicant to pay the agreed fee in "consideration for the proper provision of Services". The fee is described in the Schedule as a given dollar amount per workshop and relevant expenses. The Applicant says the trainers were to be paid the fee based on their experience.

(4) The trainer's invoices must include their Australian Business Number and the fee "including any GST". Any invoice must be a '"tax invoice" (cl 5.2(b) and (c)).

(5) Clause 6 requires the trainer to comply with the Applicant's policies, including those regarding bullying and harassment.

(6) The trainer is also obliged to use the training and workshop materials supplied by the Applicant when performing the Services (cl 6.1(c)).

(7) The trainer must provide and use their own presentation equipment as may be required, including laptop, projector and AV connections (cl 6.1(d)).

(8) The trainer must also liaise with and report to the Applicant with respect to all aspects of the Services, including providing participant details and sign in sheets at the conclusion of each workshop upon request (cl 6.1(e)).

(9) The trainer must take out all insurance required to be effected by law including the insurances as reasonably required by the Applicant and produce evidence of their insurance to the Applicant (cl 6.1(f)).

(10) Certain accommodation and travel costs are borne by the Applicant (cl 7).

(11) Clause 9 states that "the relationship between LivingWorks and the Contractor is that of a principal and an independent contractor. Nothing in this agreement constitutes the relationship of partnership or employer and employee between LivingWorks and the Contractor".

(12) Clause 13 provides that the trainer will be responsible for and indemnify the Applicant against liability for all loss, damage or injury to any person or property caused by the trainer, in the course of providing the Services, provided such loss, damage or injury was the result of the negligent act or omission of the trainer.

(13) Clause 14 prevents assignment of the agreement.

Independent contractor agreement dated 1 January 2024 ("Independent Contractor Agreement")

(1) Recital 1 describes the trainer as "an approved Coach/Instructor/ Hosted Workshop Trainer providing Coaching and/or instruction for LivingWorks ASIST and safeTALK Training for Trainers (T4T's) and/or ASIST and safeTALK LivingWorks Hosted Workshops". The recital describes these as the "Services" to be provided.

(2) The Services are to be provided in accordance with the "LivingWorks Hosted Workshop Trainer Reference Guide". This document is described as the "Reference Guide". The dates, locations and other specific details of performance are to be "agreed upon by the parties in accordance with the Reference Guide". The Applicant may request services and the trainer may "in its sole discretion determine if they wish to accept any such request for the provision of Services" (cl 2). The agreement is for a term (cl 1).

(3) The fees payable for Services are set out in cl 5 and the Reference Guide. They require the trainer to provide their GST registration status and as such, contemplate GST being part of the fees (p 77). The fee is described in the "Schedule - Fees - Australia" of the Reference Guide as a "flat rate" per workshop and relevant expenses.

(4) The trainer cannot subcontract all or any portion of the Services unless the company expressly provides prior written consent (cl 3). Assignment of rights under the agreement without prior written consent is not permitted (cl 14).

(5) Clause 3 describes the trainer as an "independent contractor as that term is commonly used". It goes on to say: "All actions taken in connection with the performance of this Agreement are conducted by the Contractor as a separate and distinct business entity. The Contractor is responsible for decisions affecting its business, and except as otherwise provided for in this Agreement, has the sole right and obligation to supervise, manage, contract, direct, procure, perform or cause to be performed, all work to be performed under this Agreement".

(6) The trainer is obliged to provide the tools and supplies necessary to perform the Services unless otherwise specified in the agreement or by the Applicant (cl 3(k)).

(7) The trainer is also obliged to obtain all necessary licences and permits (cl 3(m))

(8) The trainer must also maintain adequate and appropriate insurance coverage at its own expense necessary for the delivery of the Services (cl 3(n)).

(9) Clause 4 says that nothing in the agreement will be "deemed to constitute the Contractor as an agent, representative, partner or employee of the Company" and that the "parties expressly deny that it is their intention to create the relationship of employer/employee, partnership, joint venture or association".

(10) Clause 5 sets out the fees to be paid to the trainer, which will be on the terms and conditions described and set forth in the "Reference Guide". These fees are relevantly described as being exclusive of any value added, goods and services all other general consumption tax, which will be payable if and only if invoiced to the Applicant by the trainer.

(11) Clause 8 includes a non-compete provision that binds the trainer during the term of the agreement and for one year after termination.

(12) Clause 10 sets out an indemnity under which the trainer indemnifies and holds harmless "the Company or any of its directors, officers, employees or agents from any and all claims, actions, losses, expenses, costs or damages which the Company or any of its directors, officers, employees or agents may become exposed to" as a result of relevant acts or omissions on the part of the trainer.

(13) Clause C and D of the Reference Guide provide for the trainer to bear meal and travel costs, unless otherwise agreed.

(14) Clause F of the Reference Guide Requires the Applicant to work with the host/organiser to ensure that all participant kits are provided at the workshop and cover the cost of the kits and shipping charges.

(15) Clause G of the Reference Guide requires the Applicant to work with the host/organiser to provide screens and flip charts when needed. However, the trainer has the responsibility to provide a laptop computer and projector for the workshop and AV connections.

(16) Clause J of the Reference Guide requires all trainers to access their own and maintain adequate general liability and professional liability insurance, as well as "Workers Compensation Board" coverage upon request.

(17) The Reference Guide also sets out policies, including an anti-bullying and harassment policy (Clause 0).

1. A third form of contract in evidence was one titled "Service Agreement" dated 17 May 2023. It included the following terms:

(1) Clause 2 provides for the engagement of the trainer to provide the "Services on a non-exclusive basis". Those Services are described in the Schedule of that agreement to include "LivingWorks safe TALK Workshops" and "LivingWorks ASIST Workshops". It contains a warranty from the contractor that their "employees, contractors and agents are competent and have the necessary skills to provide the Services. The Contractor's employees and agents must be acceptable to the LivingWorks". The Services are to be provided "subject to the operating needs and requirements of LivingWorks from time to time" (cl 2.2). The agreement is for a term (cl 3).

(2) Clause 4 provides for the payment of the "Fee as described in the Schedule", which is quoted exclusive of GST, in consideration for the proper provision of the Services. The fees shown in the Schedule are expressed as a dollar amount for the particular workshop. The Schedule also specifies a minimum number of attendees for each workshop. The trainer's invoice must be a tax invoice and include any GST (cl 5).

(3) The trainer undertakes to comply with policies including those regarding bullying and harassment (cl 6.1(a)).

(4) The trainer must use the training and workshop materials supplied by the Applicant when performing its services (cl 6.1(c)).

(5) The trainer must provide its own presentation equipment as may be required including laptop, projectors and AV connections (cl 6.1(d)).

(6) The trainer must also take out all insurances required to be effected by law including the insurances as reasonably required by the Applicant (cl 6.1(f)).

(7) Clause 7 requires certain expenses to be borne by the contractor relating to the provision of the services, including for their accommodation, travel, meals, workshop materials (not including participant kits), venue hire and catering costs, marketing and engagement and workshop administration.

(8) Participant kits are supplied by the Applicant for the workshops (cl 7.2).

(9) Clause 8 says that the relationship between the parties is that of "a principal and an independent contractor. Nothing in this Agreement constitutes the relationship of partnership or employer and employee between LivingWorks and the Contractor".

(10) Clause 14 sets out a non-solicitation obligation on the trainer during the term of the agreement or the applicable restraint period thereafter.

(11) Clause 15 obtains from the contractor an indemnity "against liability for loss, damage or injury to any person or property caused by the Contractor, in the course of providing the Services, provided that such loss, damage or injury was the result of the negligent act or omission of the Contractor".

Respondent's submissions - Independent Contractor Agreement

1. The Respondent says that the Applicant has the right to control who provides the services by requiring that the trainer be trained by the Applicant.
2. The Respondent also says that the Applicant's control of subcontracting and a prohibition on assignment of any rights or obligations under the agreement go to allowing the Applicant control of the specific person who is delivering its workshop programmes.
3. Additionally, the Respondent says that in the event of illness, it is the Applicant who provides the replacement and not the trainer (Reference Guide, cl E).
4. The Respondent says that the Applicant has the right to supervise the work performed by the trainer in delivering the relevant workshops and programmes. The Respondent relies on a stipulation which gives the Applicant the right to "attend and assess" any workshops that the trainer delivers.
5. The Respondent also relies on the provisions of the agreement determining how delivery of the relevant workshops and programmes set out in the agreement occurs. They include requirements as to the content that the trainer is required to deliver, observing any applicable policies, procedures, administrative routines established, compliance with the Applicant's core values with respect to communications, and control over the travel schedule, accommodation and ground transportation.
6. The Respondent says that these are matters that show that the Applicant has the right to control how the Services are provided.
7. The Responded also relied on the terms of a contract entered into by the Applicant and a government agency. The Respondent says that control was expressly conferred by clause 11 of the relevant Independent Contractor Agreement, to the extent that this provision required that where the trainer was providing services to the Applicant and the services are "either directly or indirectly, provided pursuant to or in any way, pertain to an agreement between the Company and a government agency or the party, the Contractor agrees to comply with and adhere to any additional contract terms and conditions specified in such an agreement". One such agreement was in evidence (see [11] above).
8. In circumstances where the trainer is not party to the relevant agreement between the Applicant and a third party but is nevertheless required to comply with the contractual requirements set out in that agreement, the Respondent says that these are circumstances inherently inconsistent with the notion that the trainer is an independent contractor. These are circumstances that, in the Respondents submission, reinforce that the trainers are employees of the Applicant.

1. The Respondent submits that the terms of the Service Agreement also confer the right to exercise control and direction of the individual trainer. This includes control over when, where and how the trainer delivers workshops and programmes.
2. The relevant circumstances that the Respondent relies upon include the selection of the trainer, the selection of a replacement trainer where required, the selection of additional trainers, when the workshops and programmes are to be delivered, the content of the programmes and workshops, the supervision of trainers delivering workshops and programmes, reporting requirements and the requirements upon the trainers how to conduct themselves.
3. The Respondent also says that the trainers have no ability to delegate tasks to employees or subcontractors without the prior written consent of the Applicant. Further, trainers have no flexibility in the delivery of services but they must adhere to mandated methods and content, use the kits supplied by the Applicant and not supply their own content. Trainers must also comply with the Applicant's code of conduct, policies and procedures. Further, the Applicant, in the Respondent's submission, also controls the workflow and determines what work is given to a trainer.

1. The Applicant says that the powers conferred on the Applicant under the relevant contracts are appropriately limited in scope to maintain the integrity of "in confidence" intellectual property of the Applicant, being the material provided during the workshops. The Applicant also disagreed that the provisions relied upon by the Respondent could be said to be conferring a power of control on the Applicant.
2. The Applicant also disagreed with the proposition that limiting who may provide the services to those adequately trained to do so, did not give rise to a relationship of employee and employer. Further, they said that the right to "attend and assess" a workshop or programme did not allow control.

1. Each of the forms of agreement in evidence contained terms that were broadly similar in effect, although there were certain differences. I will go on to consider the terms of each of the three forms of agreement and where relevant, consider the differences.
2. Each of the forms of agreement makes provision for the trainer to deliver the services the agreement describes, in return for payment of the agreed consideration. Whether a contract of employment or agreement made by an independent contractor and principal, the provision of agreed services for payment is a characteristic of both kinds of relationships. To this extent, I do not think that any necessary conclusion can be drawn that the trainer is or is not an employee, simply on the basis of their obligation generally to deliver services for payment.

1. The parties agreed that a question of importance was the degree of control the Applicant held over the trainer. This is a question whose determination requires consideration of what the terms of each relevant form of agreement prescribes, as to the circumstances in which services are to be delivered.
2. Each agreement specifies what services are to be delivered. The Independent Contractor Agreement requires provision of coaching and/or instruction for "LivingWorks ASIST" and "safeTALK Training for Trainers" and/or "ASIST and safeTALK LivingWorks Hosted Workshops". The content of each programme to be delivered is prescribed. These services are to be performed in accordance with the "LivingWorks Hosted Workshop Trainer Reference Guide". The Earlier Independent Contractor Agreement in turn describes the services to be delivered as "safeTALK" and "ASIST".
3. The Services Agreement also describes specifically what services are required, including "LivingWorks safe TALK Workshops" and "LivingWorks ASIST Workshops".
4. The specific description of the kinds of workshops the trainer must deliver, and their contents set out the parameters of what trainers do, namely delivery of a workshop that covers the prescribed content using the material the Applicant provides. To that extent, the agreements establish a degree of control on what work the trainers do.
5. In JMC Pty Ltd v Commissioner of Taxation [2023] FCAFC 76 ("JMC"), the Full Federal Court considered the characteristics of an agreement under which an individual provided teaching services. The Court considered the relevance of a "lesson plan" in determining the degree of control the contract in question allowed over the teacher. The Court said, at [95]:

"The lesson plan is neither detailed nor proscriptive. It does not dictate how the lesson content is to be conveyed, or even mandate (as opposed to suggest) the duration, method or content. The lesson plan is plainly no more than a guide which, on its face, Mr Harrison was free to follow but which he could deliver in a different way".

1. The lesson plan in question in JMC was four pages in length. Even if the content of materials prescribing what the workshops were to cover, was significantly greater and as such, allow for a greater degree of control than the lesson plan under consideration in JMC, this is not to say that the trainer has no scope to apply their own style of teaching. There was nothing in the evidence preventing a trainer from doing so.
2. Relevant matters may include how each trainer verbally expresses the content of the written materials, how much explanation is given, the extent to which questions are taken, the length of time taken for each part of the workshop relative to other parts, whether the trainer provides summaries and if so, at what points in the workshops they do so and how detailed the summaries are, and generally the trainer's particular style of presenting.
3. While there was no specific evidence as to these matters, it is reasonable to infer that these are relevant variables and matters within the remit of the trainer that limit the control the Applicant has.
4. However, I accept that the Applicant has some degree of control through mandating the course contents and methodology.

1. Each of the forms of agreement requires that the trainer comply with the identified policies of the Applicant (see above at [40](5), [41](17) and [42](3)). This too indicates a degree of control by the Applicant over its trainers.
2. The Respondent relied on various provisions of the agreements in evidence that required trainers to comply with specified policies of the Applicant including those concerning bullying and harassment, use of social media and other matters going to personal conduct. They also included various obligations to report to the Applicant. The terms of each of the three agreements did not differ in any material way in this regard, so as to affect the weight these matters carried in each case.
3. To the extent that requirements to comply with policies of this kind will allow a degree of control over trainers by the Applicant, these are requirements that will allow a degree of control consistent with a relationship of employment. However, these are not matters that can conclusively determine the question of whether trainers are employees, especially to the extent that these are requirements that can be equally explicable within the context of a relationship between an independent contractor and principal, as necessary to permit the effective delivery of services.

1. In each case, the trainer must use materials supplied by the Applicant (see above at [40](6), [41](14) and [42](4)). This indicates a degree of control by the Applicant over its trainers through prescribing what materials to use in the performance of services. This is a matter that indicates a degree of control by the Applicant, but subject to the matters set out at [64] above.

1. A relationship of employment may typically involve the employer providing the equipment the employee needs to provide services. An employment relationship may well also arise in cases where the employee owns the equipment used to provide their services, such as couriers who own the bicycles they use to deliver goods (Hollis v Vabu Pty Ltd [2001] HCA 44, ("Vabu") at [47]).
2. I do not think that the provision by the trainer of their own equipment, namely a laptop, projector and AV cable carries significant weight of itself, in determining whether or not a relationship of employment arises.

1. The absence on the part of an employee to general goodwill so as to make an independent career for themselves, is also a matter of relevance going to the determination of their contract as one of employment (Vabu, at [48]).
2. In the case of the trainers, the evidence was that they could generate their own workshops to help the Applicant reach targets as to numbers of workshops. There are provisions restricting competition by trainers found in the Independent Contractor Agreement (above at [41](11)) and the Service Agreement (above at [42](10)). These provisions also evidence that the trainers have the capability to generate or enhance goodwill and that these provisions are in the agreements to stop the trainers enhancing their own goodwill through solicitation or other competitive activities.
3. The ability of the trainer to generate goodwill of their own may favour a conclusion that they operate their own business, goodwill understood as the attractive force that brings custom to a business, being a typical characteristic of a business (Commissioner of Taxation (Cth) v Murry [1998] HCA 42, at [17]). However, it is not inconceivable that an employee may equally be capable of bringing in business to benefit the goodwill of their employer, especially one with specialist skills who brings in repeat business from the same customers.
4. I do not, in these circumstances, place much weight on the ability of trainers to generate goodwill in the context of any of the three forms of agreement in evidence, as a matter of importance going to the determination of whether trainers are employees or independent contractors.

1. I do not think that the right of the Applicant to attend and assess workshops necessarily amounts to any kind of relevant control. Observation of the performance of a trainer at a workshop does not give the Applicant control. A right on the part of the Applicant, on the other hand, to direct the trainer or otherwise intervene in the running of the workshop may indicate the kind of control found in an employment relationship. There was nothing in any of the agreements in evidence to indicate that the Applicant held such a right.

1. There are other matters that indicate limits to what control the Applicant has over trainers and the work they do. Each agreement is expressed to be for a term but none of the agreements specify the extent of the services required to be provided during that term. There is no guaranteed minimum work to be given to a trainer, setting a benchmark for the amount of the services each trainer provides. This is a matter to be agreed from time to time.
2. The Independent Contractor Agreement specifically says that the dates, locations and other specific details of performance are to be "agreed upon in writing by the parties in accordance with the Reference Guide". Additionally, the trainer may "in its sole discretion determine if they wish to accept any such request for the provision of Services".
3. The Earlier Independent Contractor Agreement does not contain an equivalent provision. However, it says that the provision of services will be subject to the operating needs and requirements of the Applicant from time to time. The Service Agreement likewise says that the provision of the services will be "subject to the operating needs and requirements of LivingWorks from time to time". In both cases, what follows is the particular services, such as taking a given workshop at a particular place and time, must be agreed between the parties.
4. If the delivery of any particular service under both the Earlier Independent Contractor Agreement and Services Agreement is subject to prior agreement, what follows, as in the case of the Independent Contractor Agreement, is that the trainer may refuse work by not agreeing to deliver a particular service. In other words, the agreements in question do not operate on the basis of a unilateral power on the part of the Applicant to select a trainer and require the trainer to carry out particular work. Whether or not the trainer carries out the work is a matter for agreement between the Applicant and the trainer.
5. In Vabu, the relevant contract did not allow the service providers in question in that case, any right to refuse work. This was a factor that went to the characterisation of the contracts under consideration in that case as contracts of employment (Vabu, at [49]).
6. On the present facts, the ability of the trainer to refuse work is, in my opinion, a factor going against a conclusion that an employment relationship has arisen. While not determinative of the question, it is an important limit on the extent of control that the Applicant wields in that what work a trainer does is not something the Applicant can unilaterally determine.

1. In JMC, the Federal Court, in considering the degree of control afforded by a contract over a service provider, found that a requirement for a teacher to work when and where required under a timetable did not allow for substantial control over the teacher. The Court said, at [99] to [101]:

"The main remaining aspect of control identified by the primary judge related to control of when and where the teaching services were to be provided. His Honour found that substantial control consistent with Mr Harrison being an employee was manifested by JMC's use of timetables, without any right to have them varied once set. The primary judge's reasoning suggests that a lecturer who is an independent contractor must be able to decide when and where lectures would take place. But just as one might require building work to be carried out by an independent contractor during an allocated time or day to allow for other trades to perform their work, so might an institution require lectures to be given at a time or on a specified day in order to manage the delivery of courses.

The primary judge's reasoning pays insufficient regard to the practical context, known to both parties, that students enrol in and pay for courses at a time when they are able to attend, and for more than one course to be studied by the same student without timetable clashes.

The relevant degree of freedom was in Mr Harrison providing for times when lectures could be given by him, with the evidence indicating that this was negotiated, rather than seeking to vary the timetable after it had been provided to prospective students and enrolment had taken place. The fact that a timetable cannot ordinarily be changed after publication and enrolment should not be viewed as an exercise of employer power, but rather as a matter of education provider necessity". (emphasis added)

1. I am of the opinion that the observations of the Federal Court are apposite in the present case. I do not think the requirement to adhere to the Applicant's timetables bears significant relevance if the trainers could refuse work where not compatible with their own calendars or for any other reason.

1. The Respondent says that the Applicant has control over subcontracting by the trainers and this is a factor going to the control they claim the Applicant has over trainers. I do not agree. The very fact that the Independent Contractor Agreement (above at [41](4) and Services Agreement (above at [42](1)) each contemplates that subcontracting can occur in the first place, is a characteristic that appears to appertain to a relationship of independent contract than that of employment. This is because the trainer's ability to subcontract means that they are not necessarily required to perform a service but can find someone else to do it through subcontracting, with the consent of the Applicant. The Applicant, in other words, does not have the degree of control over the trainer to require the trainer and only the trainer to provide services. The Earlier Independent Contractor Agreement does not have equivalent provisions but does not prohibit subcontracting.

1. The fees in each case are paid for a particular task, namely the delivery of a workshop in the agreed form for a stated dollar amount, together with relevant expenses (see above at [40](3), [41](3) and [42](2)). In no case are the fees calculated on the basis of hours worked, including preparation time. There is a fixed amount payable regardless of the labour expended to deliver the workshop. That arrangement is common to all three relevant forms of agreement.
2. In the case of the Service Agreement, there is one difference, namely a requirement as to the minimum number of attendees. However, this is not a difference that has a bearing on the conclusion that the trainer is paid for a given task, without express regard to the time and labour they expend on the provision of the service. The fee paid, on its face, remains referable to the delivery of a particular workshop without regard to the hours worked.
3. The structure of fees payable to trainers bears relevance in determining whether or not they are employees. They are in their expressed terms paid for delivery of workshops. Under each of the three forms of agreements in evidence, that payment does not depend on how much labour the trainers expend but for a particular task they carry out, namely delivery of a given workshop.
4. In other words, the structure for the payment of trainers appears to answer the description of a payment "directed towards the carrying out of.. [a] .. particular task" (CFMEU, at [75]). This is unlike the circumstances that arose for consideration in that case where the contract in question was for the employee "to supply nothing but his labour" (at [158]). The contractual fee structure in the present case is a factor, that even if not determinative, tends towards a conclusion that the services of trainers are those provided by an independent contractor.

1. Each of the agreements in evidence provides for the trainers to take out their own insurance (see above at [40](9), [41](8) and (16) and [42](6)). In Vabu, the taking out of insurance for the employees in question by their employer was a matter of relevance going to the determination of the relationship as one of employment, even where there was a deduction from wages to contribute towards the cost of insurance (at [54]). The obligation on the part of trainers themselves to take out their own insurance is a factor weighing in favour of a conclusion that the relationship between the parties is not one of employment.

1. Dixon J in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd [1931] HCA 53 described an independent contractor's liability for tort in the following terms:

"In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorized the doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of its performance. The independent contractor carries out his work, not as a representative but as a principal".

1. Each agreement, in addition to the requirement for the trainer to take out their own insurance, also requires that the trainer indemnify the Applicant in the terms set out in each relevant agreement (see above at [40](12), [41](12) and [42](11)). Provisions of this kind, in my opinion, indicate that the intention of the contracting parties was that the trainer bear sole responsibility for the consequences of their acts and omissions and that the Applicant was not to carry liability. Placing responsibility of this kind upon the trainer appears inconsistent with a relationship of employment under which the employer is generally liable for the wrongs in tort of the employee (CCIG Investments Pty Ltd v Schokman [2023] HCA 21, at [20]).

1. Each agreement in evidence makes provision for GST to be added to the amounts invoiced by the trainers for their services (see above at [40](4), [41](3) and [42](2)). The evidence also is that certain trainers did add GST to their invoices. The consequences of the services of trainers being subject to GST requires consideration.
2. Under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("GST Act"), one of the requirements for taxation of a service is that the supplier of the service supply the service in the course or furtherance of an "enterprise" that they carry on (s 9-5 of the GST Act). What is an "enterprise" is, in turn, defined to include various activities or series of activities, including such activities done in the form of a business (s 9-20 of the GST Act). However, an enterprise does not include an activity, or series of activities, done, by a person as an "employee", subject to certain exceptions that are not relevant. The term "employee" is not defined in the GST Act and so takes its ordinary meaning.
3. The contemplation by the agreements in evidence of GST being added to amounts invoiced evidences that the parties have proceeded on the basis that the relationship between trainers and the Applicant was not one of employment. If it was an employment relationship, no GST would have been applicable. While not determinative of the question, the contemplation by the parties of the application of GST to the trainer's services and the actual collection of amounts on account of GST from the Applicant for the trainers' services evidences that the parties did not intend for the forms of agreements in evidence to create a relationship of employment.

1. There are some factors in the relationship between the trainer and the Applicant that may support the conclusion that the trainers are employees. Factors in the arrangements between the Applicant and trainers that can be characteristics of contracts of employment are those that give to the Applicant a degree of control over the trainer and their work. They include the training of trainers in accordance with the Applicant's training programmes so that they deliver programmes in accordance with the Applicant's requirements. They also include the requirement for the trainers to deliver workshops in accordance with the specifications laid down by the Applicant and using the material it provides, and not as decided by the trainer. There are also requirements on the part of the trainer to comply with the identified policies of the Applicant. These are not, however, matters that are determinative of the character of the relationship between trainers and the Applicant.
2. There are other factors that weigh in favour of the conclusion that the relationship between the Applicant and the trainers is that of an independent contractor and principal. First of all, whether the trainer is to carry out particular work is determined by agreement between the trainer and the Applicant. The Applicant has no unilateral right to require work to be done. The ability on the part of the trainer to refuse work by not reaching agreement, limits the extent of the Applicant's control over the trainer. This is a factor that weighs in favour of the relationship being one of independent contractor and principal.
3. The way in which fees are structured, that is, by reference to the delivery of a particular outcome rather than to the amount of labour provided is also a matter set out in the agreements in issue, that tends towards the conclusion that the agreements are not contracts of employment.
4. The requirement for the trainer to take out their own insurance is additionally a matter that weighs in favour of a relationship of independent contractor and principal. The indemnity granted by the trainer to the Applicant is another factor that goes against the conclusion that the trainer is an employee. Both the requirement to take out insurance as well as the indemnity, in my opinion, indicate that the intention of the parties is that the trainer assume responsibility for the consequences of their own acts and omissions, and does so outside the workings of the relationship of employment, that relationship carrying as it does, certain prohibitions upon the ability of an employer to obtain relevant indemnities from employees (Employee Liability Act 1991 (NSW), s 3).
5. I do not think that the controls over subcontracting described above go to show that the relationship between the trainer and the Applicant is one of employment. It could equally be said that contemplation of subcontracting with the Applicant's consent, indicates otherwise, for the reasons set out at [86] above. This is also a matter that weighs in favour of the conclusion that the relationship between the Applicant and trainers is not one of employment.
6. Each form of agreement contained prohibitions on assignment of rights under the agreement by the trainer. I am of the opinion that prohibition on assignment bears limited relevance to making a determination of whether or not there was a contract of employment, given the expressed ability to subcontract set out in the Independent Contractor Agreement and Service Agreement and the absence of a prohibition of subcontracting in the Earlier Independent Contractor Agreement.
7. The ability of the Applicant to replace the trainer in the event of illness does not, in my view, assist the Tribunal in making a determination as to the character of the relationship between the Applicant and the trainer. Whether an employee or a trainer, the ability of the Applicant to choose a replacement appears explicable in both cases as a necessary matter for the Applicant to address in order to service its customers, without carrying any further relevance or significance.
8. The evidence is that trainers could register for GST and add GST to the invoices they raised for the provision of their services to the Applicant. There was evidence that trainers did so. Under the GST Act, however, an employee is not required to and does not charge GST to their employer. On the other hand, GST can apply if the trainer is an independent contractor.
9. However, I am not called upon to determine whether or not trainers, who are not parties to these proceedings, are compliant with their obligations under the GST Act. I do not in these circumstances rely on how the parties have accounted for GST on the provision by trainers of their services as matter that goes to the determination of this matter. Nevertheless, I observe in passing that the charging of GST by trainers to the Applicant is consistent with the position that they are not employees.
10. I do not think that an obligation on the part of the trainer to comply with the terms of an agreement between and Applicant and a third party such as "Health NSW" can be determinative of the question at issue, namely whether or not the trainers are employees. The Respondent could not show any particular provisions of any such agreement that overrode or otherwise limited or modified the operation of the provisions of the agreements between the Applicant and the trainer described above, going to the determinations of the relationship between the parties.
11. If such agreements with third parties did have the effect of overriding, limiting or modifying the application of the agreements between trainers and the Applicant, these would be relevant to the determination of the question in issue. However, in the absence of evidence that this was the case, I do not find that the application of agreements between the Applicant and third parties have material relevance to the determination of the question in issue.
12. There was also no evidence as to whether such agreements have been provided to trainers, in the absence of which, questions may arise as to the enforceability of a stipulation that imposes on trainers obligations arising under agreements between the Applicant and third parties. In any event, even if agreements of this kind had been provided to a trainer, I do not see how the obligation of the trainer to comply with the terms of such an agreement bear upon the analysis for the reasons set out above, in the absence of any relevant inconsistency with the terms of the agreements between the trainer and the Applicant.
13. I am of the opinion that the trainers are not employees because of the weight carried by the matters going against the conclusion that the agreements between the trainers and the Applicants are contracts of employment. I place particular weight on the ability of trainers to refuse work, their obligations to take up their own insurance and the indemnity they provide to the Applicant. These are matters that in my opinion that indicate that the trainers were solely responsible for their own acts and omissions while delivering services to the Applicant, outside the workings of the relationship of employer and employee.
14. These are factors, together with the other factors set out above, in favour of the conclusion that the relevant agreements are between an independent contractor and a principal, that carry preponderant weight. These other factors include a fee structure indicative of the delivery of a particular result rather than labour provided for an agreed period and the ability to subcontract.
15. I do not think that the absence of an expressed ability to subcontract allowed under the Earlier Independent Contractor Agreement affects my conclusions, on account of the weight carried by the other factors in favour of the agreement being an agreement between independent contractor and principal.
16. I do not rely on the provisions of each agreement that purport to say the trainers are not employees (see [40](11), [41](9) and [42] (9) above) in making my determination of the question of whether or not they are employees. Statements of this kind may at times be self-serving but they can at other times set out the genuine intentions of the parties. While I do not rely on these statements or the intention they evidence, I observe that the provisions stating that the trainers are not employees accord with the conclusions I have come to that the trainers are not employees, for the reasons set out above.
17. It follows that the assessments in dispute for payroll tax cannot stand to the extent that they were made on the basis that the trainers were employees of the Applicants.

1. Division 7 of Part 3 of the PTA sets out provisions applying to "relevant contracts". If these provisions have application, payroll tax may be payable even if the trainers are not employees.
2. Section 32(1) of the PTA sets out what is a "relevant contract". It says:

"32 What is a relevant contract?

(1) In this Division, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person -

(a) supplies to another person services for or in relation to the performance of work, or

(b) has supplied to the designated person the services of persons for or in relation to the performance of work, or

(c) gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of the goods to the designated person or, where the designated person is a member of a group, to another member of that group".

1. The Applicant accepted that s 32(1) applied to contracts under which its contractors performed work so that these were "relevant contracts" as defined by s 32(1). The Applicant correctly made that concession.
2. The Applicant, however, claimed that the agreements with trainers were taken out of the definition of "relevant contract" by reason of s 32(2)(b)(iii). This provision says:

(2) However, a relevant contract does not include a contract of service or a contract under which a person (the designated person) during a financial year in the course of a business carried on by the designated person -

(a) .....

(b) is supplied with services for or in relation to the performance of work where -

(i) those services are of a kind not ordinarily required by the designated person and are performed by a person who ordinarily performs services of that kind to the public generally, or

(ii) those services are of a kind ordinarily required by the designated person for less than 180 days in a financial year, or

(iii) those services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year and are not services -

(A) provided by a person by whom similar services are provided to the designated person, or

(B) for or in relation to the performance of work where any of the persons who perform the work also perform similar work for the designated person,

for periods that, in the aggregate, exceed 90 days in that financial year....".

1. The person to whom services are supplied under what the Applicant accepts are "relevant contracts" falling within s 32(1), is the Applicant. Once a "relevant contract" is found within the meaning of s 32(1) under which the Applicant is supplied with services, the question is whether it is taken out of s 32(1) by s 32(2).
2. The application of s 32(2)(b) requires identification of a "designated person" within the meaning of that subsection (as distinct from what is required under s 32(1)). This must be "a person" who is supplied with services for or in relation to the performance of work. Additionally, s 32(2) requires that the "designated person" referred to in that subsection be supplied with services in the course of a business that the designated person carries on. I understood the Applicant to say that the person so identified as a "designated person" within the meaning of s 32(2) was itself, because it was the person supplied with services under the agreements it accepted as "relevant contracts" under s 32(1).
3. Section 32(2)(b) then sets out three sub-paragraphs, one of which additionally needs to be satisfied. The Applicant relies on subparagraph (iii).
4. The Applicant said that there was no evidence of the provision of a service by a trainer for a period exceeding 90 days in any relevant financial year within the meaning of subparagraph (b)(iii) of s 32(2). The Applicant provided evidence of the periods for which the trainers provided their services. That evidence, the Applicant said, showed that no services were provided by a trainer for a period exceeding 90 days in any relevant financial year.
5. An affidavit of Mr Jay McConnell of 18 February 2026, an executive vice president of the Applicant, however, said that there was a single contractor who worked for more than 90 days in certain financial years. He said that this contractor had been contracted for most of the 2023 and 2024 financial years. What consequences follow require consideration.
6. Section 32(2)(b)(iii) relevantly applies to a contract where services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year. However, additionally, the services must not be services provided by "a person by whom similar services are provided to the designated person ..... for periods that, in the aggregate, exceed 90 days in that financial year" (emphasis added).
7. There was no evidence to indicate whether the services provided by the one contractor who provided services for more than 90 days during the financial years in issue were "similar services" to those under any or all of the other contracts in issue. The Applicant bears the onus of proof. In the absence of relevant evidence as to these matters, the Applicant has not shown that s 32(1)(b)(iii) applies to benefit the Applicant.
8. Nor did the Applicant make submissions as to whether or not just a single contract of the kind in evidence under which services were provided for more than 90 days entirely disentitles the Applicant's claim for relief under s 32(1)(b)(iii), or whether something like "substantial compliance" would suffice.
9. The Respondent was required by orders made by the Tribunal to provide its response to the Applicant's material dealing with "relevant contracts" by 6 March 2026. He has not done so, nor has he sought an extension of time to comply with the Tribunal's orders.
10. I have gone on to decide the matter on the basis of the evidence provided by the Applicant as to "relevant contracts".

1. The Respondent during the hearing of the matter said that his claim for payroll tax extended insofar as payroll tax was assessed on payments referable to services provided by trainers for consumption by government agencies. The Applicant said that work of this kind equated to about 10% of the work trainers undertook. In these circumstances, I understood the assessments in dispute to include assessments mostly on payments other than payments to trainers who provided services consumed by government agencies.
2. The amounts in dispute are not readily identifiable on the evidence. In these circumstances and in the absence of a reply from the Respondent to the Applicant's evidence and submissions on "relevant contracts", I think that the preferable course is for the remission of the matter to the Respondent in accordance with these reasons for reconsideration under s 65 of the ADR Act.

(1) Payroll tax is not assessable on the basis that the trainers are employees. I have found that they are not employees.

(2) The contracts in issue are "relevant contracts" within the meaning of s 32(1) of the PTA as conceded by the Applicant.

(3) The contracts in evidence are taken outside the definition of "relevant contract" by s 32(2) of the PTA, other than those under which services have been provided for a period of more than 90 days and subject to (4) below.

(4) Where there are services provided by "a person by whom similar services" are provided to the Applicant for periods that, in the aggregate, exceed 90 days in that financial year, a contract that would otherwise fall within s 32(2)(b)(iii) does not obtain the benefit of s 32(2)(b)(iii). There was evidence that one contractor in certain financial years provided services for a period of more than 90 days for the financial year. However, there was no evidence as to whether these were relevantly "similar services" to the services provided under any or a class of the contracts in issue. To this extent, the Applicant has not shown that they can rely on s 32(2)(b)(iii).

(5) The matter should be remitted to the Respondent for reconsideration in accordance with these reasons under s 65 of the ADR Act.

(6) Following reconsideration, the parties should apply to the Tribunal for any further orders each seeks to enable disposition of the matter under s 101 of the Administration Act, including directions permitting them to make further submissions for consideration by the Tribunal, before the Tribunal makes any further orders. The matter is listed for directions on 26 May 2026 to allow them to seek any directions or further orders.

(1) The assessments under review are remitted to the Respondent for reconsideration in accordance with these reasons under s 65 of the Administrative Decisions Review Act 1997 (NSW).

(2) The matter is listed for directions on 26 May 2026 at 12pm.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.