Part 2Key principles, concepts and requirements

Part 2—Key principles, concepts and requirements 5—Contract of service and other terms (section 4 of Act) (1) For the purposes of the definition of contract of service in section 4(1) of the Act (but subject to this regulation and regulation 6), the following classes of work under a contract, arrangement or understanding are prescribed classes of work: (a) building work, other than wall or floor tiling, where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed— (A) 4% of the total amount payable, or reasonably expected to be payable, under or pursuant to the contract, arrangement or understanding; or (B) $120 (indexed), whichever is the greater; and (v) the value of any 1 tool, or any single item of plant or equipment, owned or leased by the worker for work purposes (whether or not it is used in the performance of the particular work) does not exceed $18 988 (indexed); (b) cleaning work, where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) — (A) in the case of window cleaning work—the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed— • if the term of the contract, arrangement or understanding is not more than 1 month—$60 (indexed); • if the term of the contract, arrangement or understanding is more than 1 month—an average of $60 (indexed) per month; (B) in any other case—the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed— • if the term of the contract, arrangement or understanding is not more than 1 month—$120 (indexed); • if the term of the contract, arrangement or understanding is more than 1 month—an average of $120 (indexed) per month; (c) driving a motor vehicle used for the purposes of transporting goods or materials (whether or not the vehicle is registered in the driver's name) where the driver is paid under the Local Government Employees Award or the Adelaide City Corporation Award and where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed $120 (indexed); (d) driving a taxi‑cab or similar motor vehicle used for the purpose of transporting members of the public where the driver does not hold or lease a licence issued in relation to the vehicle and where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed $120 (indexed); (e) driving or riding for fee or reward a vehicle, other than a commercial motor vehicle, for the purpose of transporting by road goods or materials (including money) where the driver or rider does not simultaneously own or operate more than 1 vehicle for work purposes and where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed $120 (indexed); and (v) the goods or materials being transported are not owned (and have not been previously owned) by the driver or rider (as the case may be), or by the employer; (f) performing as a singer, dancer, musician, comedian or other entertainer at a hotel, restaurant, club or other similar venue, but excluding work as an actor, model or mannequin, or as any other type of entertainer, in performing as part of a circus, concert recital, opera, operetta, mime, play or other similar performance, where— (i) the work is performed by 1 person to the contract, arrangement or understanding (the worker) in the course of or for the purposes of a trade or business carried on by another person to the contract, arrangement or understanding (the employer); and (ii) the work is performed personally by the worker (whether or not the worker supplies any tools, plant or equipment); and (iv) the value of any materials supplied, or reasonably expected to be supplied, by the worker does not exceed $120 (indexed); (g) thoroughbred riding work where the work is performed by a licensed jockey. (2) For the purposes of subregulation (1)— (a) the value of any tool, plant or equipment owned or leased by a worker is the price that, at the time that the worker enters into the relevant contract, arrangement or understanding, the worker would reasonably be expected to pay if the worker were to purchase an equivalent, unused, tool or item of plant or equipment; and (b) a vehicle will not be taken to be used for work purposes if its sole or principal use is to transport the worker, and any tools, plant or equipment, to any work site. (3) In relation to the work prescribed under paragraph (g) of subregulation (1), TRSA is designated as the presumptive employer of workers who are within the ambit of that paragraph. (4) If— (a) a person performs work as an outworker; and (b) any aspect of that work is governed by an award or industrial agreement that is expressed to apply to outworkers (or a specified class or classes of outworkers), that work is prescribed work for the purposes of the definition of contract of service in section 4(1) of the Act. (5) Subject to regulation 6, the work of a minister, priest or other member of a religious order is a prescribed class of work for the purposes of the definition of contract of service in section 4(1) of the Act. (6) For the purposes of the definition of local government corporation in section 4(1) of the Act, the following bodies are prescribed as being within this definition: (a) committees of a council under the Local Government Act 1999; (b) subsidiaries of a council (or councils) established under the Local Government Act 1999; (c) the Local Government Finance Authority of South Australia established under the Local Government Finance Authority Act 1983; (d) LGCS Pty. Ltd.; (e) Local Government Managers Australia, South Australian Division Incorporated; (f) LG System Incorporated; (g) Upper Spencer Gulf Business Incubator Network Incorporated. (7) For the purposes of the definition of prescribed allowance in section 4(1) of the Act, an allowance or benefit prescribed for the purposes of this definition includes allowances paid occasionally or intermittently for accommodation or travel where— (a) the worker's accommodation or means of travel is not otherwise provided by the employer; or (b) the cost of the worker's accommodation or travel is not otherwise reimbursed by the employer. (8) For the purposes of section 4(4) of the Act, a prescribed circumstance is where a person (the principal) contracts with another person (the contractor) who is not registered as an employer under the Act. (9) In this regulation— award means— (a) an award under the Fair Work Act 1994; or (b) an award, determination or order of the Fair Work Commission under the Fair Work Act 2009 of the Commonwealth; or (c) an award or determination given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; building work has the same meaning as in the Building Work Contractors Act 1995; cleaning work means the work of cleaning any building or a part of a building (including the windows of a building or the surrounds of a building); industrial agreement means— (a) an enterprise agreement within the meaning of the Fair Work Act 1994; or (b) an enterprise agreement under the Fair Work Act 2009 of the Commonwealth; or (c) an agreement given continuing effect under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 of the Commonwealth; licensed jockey means a jockey, an interstate jockey, or an apprentice jockey, licensed by TRSA; licensed trainer means a trainer licensed by TRSA; outworker has the meaning given by the Fair Work Act 1994; thoroughbred riding work means mounting, dismounting or riding a thoroughbred horse— (a) in the course of a race meeting conducted and controlled by TRSA; or (b) in the course of a barrier trial conducted and controlled by TRSA; or (c) in the course of a training session conducted and controlled by a licensed trainer; TRSA means— (a) Thoroughbred Racing SA Ltd (ACN 094 475 939); or (b) if a body other than Thoroughbred Racing SA Ltd is designated under section 6 of the Authorised Betting Operations Act 2000 as the racing controlling authority for horse racing—that body; wall or floor tiling means any work performed within the wall and floor tiling trade (including any ancillary building work of a minor nature only); window cleaning work means the work of cleaning any window of a building or a part of a building. 6—Exclusions (section 4 of Act) (1) For the purposes of section 4(5) of the Act, the following persons are excluded from the application of the Act: (a) a minister ministering within The Anglican Church of Australia in South Australia; (b) a priest or other member of a religious order ministering within the Catholic Church of South Australia; (c) a pastor ministering within the Lutheran Church of Australia South Australia District Inc; (d) an ordained minister, deaconess or lay pastor of The Uniting Church in Australia ministering in South Australia in an approved placement under the "Classification of Ministers" of that Church. (2) For the purposes of section 4(5) of the Act, but subject to subregulation (3), a worker who is employed by an employer to participate as a contestant in a sporting or athletic activity (and to engage in training or preparation with a view to such participation, and other associated activities) is, in relation to that employment, excluded from the application of the Act. (3) Subregulation (2) does not apply to— (a) a person authorised or permitted by a racing controlling authority within the meaning of the Authorised Betting Operations Act 2000 to ride or drive in a race within the meaning of that Act; or (b) a boxer or wrestler employed or engaged for a fee to take part in a boxing or wrestling match. (4) For the purposes of section 4(5) of the Act, a person (the driver) who is employed or engaged by another (the principal) to transport goods or materials (including money) by motor vehicle in the course of or for the purposes of a trade or business carried on by the principal is excluded from the application of the Act if— (a) the motor vehicle is a commercial motor vehicle; and (b) the motor vehicle is owned, leased or hired by the driver; and (c) the motor vehicle is not owned by, leased from or hired out by, or otherwise supplied by (directly or indirectly)— (i) the principal; or (ii) a third person who is related to the principal; and (d) the goods or materials are not owned (and have not been previously owned) by the driver or by the principal. (5) For the purposes of subregulation (4), a principal and another person will be taken to be related if— (a) they are employer and employee; or (b) the other person is accustomed or under an obligation (whether formal or informal) to control the use of the relevant motor vehicle in accordance with the directions or determinations of the principal. (6) For the purposes of section 4(5) of the Act, a person to whom the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies is excluded from the application of the Act. 7—Federal minimum wage (1) For the purposes of section 4(8) of the Act, the national minimum wage for the category of work that the worker performs is prescribed as the wage applying under a national minimum wage order under Part 2‑6 of the Fair Work Act 2009 of the Commonwealth. (2) For the purposes of section 5(15)(b) of the Act, in the case of a worker who was working at the relevant date on a part‑time basis, the Federal minimum wage will be adjusted by— (a) calculating the number of hours per week being worked by the worker as a percentage of the number of hours per week that constitute full‑time employment under section 5(16)(b) of the Act in relation to the worker (calculated to 1 decimal point); and (b) multiplying the Federal minimum wage by the percentage calculated under paragraph (a). 8—Indexation (section 4 of Act) An amount adjusted in accordance with section 4(17) of the Act is to be rounded up to the nearest dollar. 9—Average weekly earnings (section 5 of Act) (1) For the purposes of section 5(13)(b) of the Act, each of the following is prescribed as a class of non‑cash benefit: (a) access to a discounted rate of interest on a loan; (b) payment of school fees; (c) payment of health insurance premiums; (d) payment of medical benefits; (e) a computer for personal use; (f) access to the Internet; (g) accommodation; (h) payment of, or towards, housing costs; (i) a motor vehicle and payment of costs associated with running or maintaining the vehicle; (j) a telephone and payment of costs associated with using or maintaining the telephone; (k) a staff discount program; (l) a credit card. (2) For the purposes of the definition of prescribed dust/fibre disease in section 5(18) of the Act, the following conditions are prescribed: (e) pneumoconiosis (including silicosis) and other conditions in so far as they are caused by exposure to crystalline silica. 9A—Extension of section 9(2)(a) to prescribed injuries and types of work For the purposes of section 9(4) of the Act, the operation of section 9(2)(a) is extended to the following prescribed injuries and types of work: