Probin and Commissioner of Taxation (Taxation)

This matter concerned an appeal by Mr Probin against a decision by the Commissioner of Taxation regarding the imposition of a superannuation guarantee charge. The central dispute was whether Mr Miastkowski, who performed work for Mr Probin, was an employee or an independent contractor for the purposes of the *Superannuation Guarantee (Administration) Act 1992* (SGAA). The case was heard by Member D K Grigg of the Administrative Appeals Tribunal.

The legal issue before the Tribunal was to determine whether Mr Miastkowski was an "employee" as defined by section 12 of the SGAA. This required an assessment of the substance and nature of the relationship between Mr Probin and Mr Miastkowski, considering both the ordinary meaning of "employee" and the specific provisions of the Act, particularly section 12(3) which expands the definition to include individuals working under a contract wholly or principally for their labour.

The Tribunal applied the principles established in *On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation (No 3)*, which directs an objective assessment of the relationship. This involves considering whether the individual is an entrepreneur operating their own business and working in and for that business, rather than for the business receiving the work. The Tribunal noted that a genuine independent contractor typically demonstrates autonomy, financial self-reliance, and a pursuit of profit beyond mere remuneration for time and effort. In this instance, the Tribunal found that Mr Miastkowski was an employee, and it was unnecessary to consider the application of section 12(3) of the SGAA.

The Tribunal affirmed the Commissioner's decision under review.