Free tool

Does my agency owe me super?

A 5-question walkthrough of s12(3) SGAA for locum contractors. Answer honestly; the tool returns likely-owed, likely-not-owed, or needs-advice.

Who pays you?

Look at the bank line on your latest remittance. If it says the agency (or labour-hire firm) name, pick 'agency'. If it says the host practice, pick 'host practice'.

Is the contract primarily for your labour and time?

Are you paid to turn up and deliver clinical hours, or to produce a specific output (a report, a procedure, a fixed-price project)? Clinical shifts are almost always labour.

Can you send a substitute in your place?

If you cannot do a scheduled shift, are you allowed to send another qualified practitioner to cover, without agency approval?

Who supplies the tools and workspace?

For clinical shifts: the clinic. For imaging: usually clinic equipment. For telehealth from home: you. Pick whichever applies to most of your work under this contract.

How are you paid?

Per-day, per-shift, per-hour is 'by time'. Per-report, per-project, fixed-fee is 'by deliverable'. Percentage-of-billings sits in between; pick whichever is closer.

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Related for AU locum contractors

Common questions

What is s12(3) SGAA?

Section 12(3) of the Superannuation Guarantee (Administration) Act 1992 extends the definition of "employee" for super purposes to contractors who work "wholly or principally" for the labour of an individual. If s12(3) applies, the payer (the agency, usually) owes 12% super on top of the headline rate. This is on top of PAYG obligations if they apply.

Does this apply if I work through my own Pty Ltd?

The High Court in Jamsek and Personnel Contracting confirmed that s12(3) can still apply where the contracting entity is a Pty Ltd or a trust, as long as the substance of the engagement is the labour of an individual. Interposing an entity does not automatically defeat s12(3). The ATO ruling SGR 2005/1 provides the indicators.

What about the "results test" I hear about for PSI?

The results test is a PSI concept (personal services income under Part 2-42 of the ITAA 1997), not a super test. The super test looks at whether the contract is "wholly or principally" for labour. The tests often give similar answers, but they are different legal regimes. A locum can fail the results test for PSI (agency work almost always does) and still have s12(3) SGAA engaged.

If the agency owes me super but has not paid it, what do I do?

Check Sessional's super-guarantee tracker first to confirm the amount. If the agency genuinely has not paid, you can lodge an Unpaid Super enquiry with the ATO via myGov. The ATO will recover from the agency if the SGR 2005/1 indicators are met. Time limits apply (typically the later of 5 years from the due date, or the SG audit window), so lodge sooner rather than later.

Is the host practice liable instead of the agency?

Usually no, under a standard labour-hire arrangement. The payer is the agency; the agency is the "employer" for s12(3) purposes. The exception is arrangements where the agency is a bare introducer and the host is the de-facto payer; those are rare and usually involve direct contractual relationships between you and the host.

Does this tool give legal or tax advice?

No. It walks through the main SGR 2005/1 indicators. A super dispute will ultimately turn on the specific facts. Use the result as a starting point for a conversation with the agency, an industry accountant, or the ATO Unpaid Super line.