iscover $17k in SGC payable after employer loses ‘independent contractor’ claim
BusinessAn employer has failed to dodge nearly $20,000 in SGC after the Administrative Review Tribunal affirmed a worker’s employee status for the purpose of superannuation guarantee owing.
The Administrative Review Tribunal has determined that a worker was an employee after an employer attempted to claim that the worker was an independent contractor and was thus not eligible for superannuation guarantee.
Dylan Marschke was employed by Matthew Kay to drive and operate a water truck owned by Kay’s company, which provides water truck, tipper hire and similar services.
It was accepted that Marschke would be paid $35 an hour, and he received weekly invoices for his work during his time with Kay’s company from mid to late 2019 until before mid-2023.
The Commissioner of Taxation “issued notices of assessment (the Assessments) for superannuation guarantee charge (SGC) to Mr Kay (the Applicant) for the periods from 1 July 2019 to 30 June 2023 (the Relevant Periods),” for superannuation guarantee allegedly owed to Marschke, and thus the applicant became liable to pay SGC.
“The Respondent (the commissioner) issued the Assessments and calculated the Applicant’s total liability as at that date as $16,543.51, inclusive of general interest charge. The Respondent also imposed administrative penalties but remitted the penalties in full.”
While Kay argued that Marschke was an independent contractor and not an employee, the Tribunal disagreed.
“The Tribunal believes that the (oral) contract between the Applicant and Mr Marschke was wholly or principally for the labour of Mr Marschke. The contract was for Mr Marschke to provide his labour in operating the water truck, that truck being owned and maintained by the Applicant within the Applicant’s water truck business,” the Tribunal said.
“It is clear that Mr Marschke worked under the contract with the Applicant. The amounts he was paid by the Applicant were in respect of that work,” it added.
“For the reasons given above the Tribunal finds that Mr Marschke was working under a contract with the Applicant which was wholly or principally for the labour of Mr Marschke, such that Mr Marschke was an employee of the Applicant,” the Tribunal said.
The case citation: Kay and Commissioner of Taxation (Taxation and business) [2026] ARTA 2310 (13 October 2026).
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