07/07/2026
UPDATED INFORMATION - 10 July 2026.
This is an update on Information provided in the post of 7 July below.
Response from ATO Tax Counsel Network today as follows:
"SGR 2026/D1 does not specifically deal with subsection 12-8 of the SGAA and tripartite working relationships. Rather, it deals with tripartite working relationships in the context of subsections 12-1 and 12-3 of the SGAA. As such, the principles relied upon in the Ruling have limited application to subsection 12-8. This is because subsections 12-1 and 12-3 focus on the contract between the parties in determining the nature of the relationship, whereas subsection 12-8 focuses on the payment made. Because of this, I want to ensure that your submission is made in the appropriate forum, as I do not want you to make a submission that we ultimately determine is outside the scope of SGR 2016/D1, resulting in your queries not being addressed.
We will be publishing additional guidance on the application of subsection 12-8 relatively soon, and we intend for that guidance to address situations involving the application of subsection 12-8 where intermediaries are involved. ... it may be more appropriate for you to make any submission relating to subsection 12-8 in response to that additional guidance. ... I cannot provide a specific timeframe for when that guidance will be published".
Comment:
That makes below post stated position changed but doesn't provide clarity for moving forward, other than to say advice on 12-8 is coming ... "relatively soon". It implies that submissions may open for 12-8 when they deliver their guidance, but it's not a given. Still it does mean their intent is to give industry guidance for deemed employees under 12-8.
We have been invited to request an ABA (Administratively Binding Advice) or to speak to ATO Technical Advice Team if we require an interim measure. We assume the former means a Private Ruling.
We cannot see that SGR 2026/D1 limits submissions to 12-1 and 12-3 but the written advice from ATO this morning is that this is where the focus is, at least until such time as they provide guidance for 12-8.
(ATO have done this in the past for Entertainment. "SGD 93/14 When are entertainers employees for Superannuation Guarantee purposes?" was in force from 1993 till it's withdrawal in 2006. It is no longer in operation).
As such, we will still provide a submission based on the tripartite arrangement of DR2026/1 (as we see it as very relevant to 12-8), and invite them to also consider it for 12-8 deliberations by the Tax Counsel Network and their future proposed guidance.
We will update again if any further news arrives.
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Note - Below post is now superseded.
The Accrual is back. We like this guy. Wish we could represent him.
The Peak Agency position with regard to who is "the person liable to make the payment" is that it cannot be answered with confidence until such time as ATO finalise their draft Superannuation Guarantee Ruling SGR 2026/D1 - Superannuation guarantee: work arranged by intermediaries.
Reference: https://www.ato.gov.au/law/view/document?DocID=DSG/SGR2026D1/NAT/ATO/00001&PiT=99991231235958
As per previous post SGAA 12-8 is law, and has been since 1992. It is not for discussion.
Draft Ruling was issued on 17 June. Public submissions are open until 31 July. We have asked ATO Public Advice and Guidance Centre for advice on how long after that their Ruling would be permanent, but have not had an answer (it may not be answerable).
Note the DR at 5 ... "When finalised, this draft Ruling is proposed to apply both before and after date of issue".
We believe that all interested parties and stakeholders who have comment should and must do so prior to July 31. The more music industry comments they receive the more they will listen.
What isn't up for discussion or comment?
The Independent Contractor angle is dead for deemed workers participating presenting or performing in a music presentation.
Has been since 1992 in reality.
What is up for discussion or comment?
The workings and interface of intermediaries handling payments in the live music industry (LMI). The flow of funds.
The Ruling indicates the court cases that ATO is relying on for it's decisions. It goes to the question of "who is liable?".
What might be up for comment? (low confidence)
Because of it's interactions with other Tax Rulings it's possible ATO will take comment regarding ... what you think is the correct determination for the labour/skills component that intermediaries should use.
They probably won't welcome it, and not include it in their deliberations, but we expect it will find it's way (hopefully) to a universal percentage or workable context.
The Peak Agency operates and contracts with clients within the framework of the Entertainment Industry Act NSW 2013. We are not legally allowed to operate outside that legislation in NSW.
The construct of contracts in tripartite arrangements must reflect that legislation.
The flow of payments must be in strict accordance with the legislation.
The thrust of our submission to ATO can be found in that Act. We believe the mere intermediary position is self evident.
Hirer - Performer / Venue Representative (agents) - Performer obligations are very clear.
We also believe it universally reflects how the rest of the nation operates, though our understanding is that NSW is the only State which has gazetted legislation for the entertainment industry.
So, until the Draft ruling becomes final, we are not able to give confident guidance to parties handling payments.
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One question that needs to be considered:
Are the Band Leaders of Duo Trio Bands that operate in an equal split situation (albeit usually after an agreed admin is allowanced to the band leader, and whoever sets up PA) considered to be the employer of their band mates for Superannuation purposes?
Or are they "mere intermediaries" for the flow of funds of their band mates? (in other words, the final eft of funds should not determine the employer).
I'm sure you have an opinion on that and you may choose to make a submission based on that.
If you are considering a submission you may find the below internet attainable focus useful.
The Draft Ruling link includes information on whom to send your submission to (at 104).
If you want to discuss this post feel free to share to your own FB presence and open comments.
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The Australian Taxation Office (ATO) published Draft Superannuation Guarantee Ruling SGR 2026/D1 on 17 June 2026. It provides crucial guidance on identifying the true employer in multi-party (tripartite) working arrangements—such as those involving labour hire firms, recruitment agencies, intermediaries, and end-users.
When finalized, SGR 2026/D1 will officially replace the outdated SGR 2005/2 (Superannuation guarantee: work arranged by intermediaries).
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Core Purpose of SGR 2026/D1
The draft ruling defines which entity is legally responsible for paying the minimum Superannuation Guarantee (SG) to avoid liability for the Superannuation Guarantee Charge (SGC) (penalty tax).
Tripartite structures typically feature:
• An end-user needing labour or services.
• An intermediary firm (e.g., service or recruitment firm) arranging the workforce.
• A worker executing the actual service or labour.
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Key Framework & Steps to Identify the Employer
The ATO aligns this ruling with Taxation Ruling TR 2023/4 and recent High Court decisions on the meaning of 'employee'. The employer is identified using a three-step evaluation process:
1. Check for a Valid Contract: Determine if a binding contract exists for the performance of work or supply of labour.
2. Identify the Parties: Establish exactly who is party to the contract. Note that the end-user cannot be the employer if there is no direct contract between the worker and the end-user.
3. Assess the Relationship: Evaluate whether an employment relationship exists under common law or via the expanded definition of an "employee" under section 12 of the Superannuation Guarantee (Administration) Act 1992 (SGAA).
4.
Crucial Interpretations Confirmed in the Draft
• Right to Control Rules: The person or entity holding the legal contract right to control the worker (e.g., directing who they work for) determines the employer. Day-to-day on-site management or supervision by an end-user does not automatically make them the employer.
• Intermediary as Employer: A contract between an intermediary and a worker can legally form an employment relationship, even if the end-user receives 100% of the immediate work benefits.
• Intermediary as a Mere Agent: If an intermediary functions solely as an agent to connect a worker and an end-user into a direct contract, the intermediary is not the employer.
• Interposed Entities (Companies/Trusts): If a worker is engaged via their own corporate entity, trust, or partnership instead of a personal contract, neither the intermediary nor the end-user qualifies as the employer. The worker may instead be an employee of that interposed entity.
Broader 2026 Context
SGR 2026/D1 lands alongside major statutory changes commencing on 1 July 2026, including the shift to Payday Super (supported by the separate Law Companion Rulings suite LCR 2026/D1 through D4). While Payday Super rewrites contribution timelines, SGR 2026/D1 clarifies exactly which balance sheet must fulfill those rapid payment obligations in complex hiring systems
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(Edit: And AI commentary or guidance ...)
The Australian Taxation Office (ATO) is seeking specific industry feedback on Draft Superannuation Guarantee Ruling SGR 2026/D1. Because this draft directly overrides a 20-year-old framework (SGR 2005/2), the ATO is using this public consultation window to target practical and structural anomalies in modern work agreements.
The key issues the ATO is seeking feedback on include:
1. Alignment with Modern Case Law
• High Court Precedent Check: The ATO wants feedback on whether its proposed evaluation model accurately reflects the landmark High Court rulings (such as Personnel Bay and ZG Operations).
• Contractual vs. Conduct Realities: Industry bodies are asked to evaluate if the draft strikes the right balance by prioritizing the written contract over day-to-day workplace conduct, as mandated by the courts.
2. Clarity of the 3-Step Evaluation Framework
• Operability of Steps: The ATO needs confirmation that the specific sequential steps—identifying the contract, establishing the exact signing parties, and assessing common law/extended employee definitions—are clear and easy for HR departments to implement.
• Boundary Ambiguities: Feedback is requested on whether the lines separating an "intermediary acting as an employer" from an "intermediary acting merely as an agent" are sharply enough defined to avoid legal confusion.
3. Impact of Interposed Entities
• Corporate and Trust Intermediaries: The ruling establishes that if a worker uses their own corporate entity or family trust to contract with a labour-hire firm, neither the labour firm nor the end-user is the employer. The ATO is seeking feedback on whether this creates unexpected loopholes or administrative bottlenecks for businesses trying to confirm SG compliance.
4. Practicality of the Provided Examples
• Industry Representation: The draft includes several practical scenarios detailing common tripartite arrangements. The ATO is asking stakeholders if these examples are representative of modern hiring practices (such as the gig economy, digital platform structures, and complex subcontractor arrangements) or if more distinct scenarios need to be added before finalization.
5. Intersection with Payday Super Transition
• Administrative Harmonization: With Payday Super launching on 1 July 2026, the ATO wants to ensure that the definition of an "employer" in SGR 2026/D1 fits seamlessly with the new rapid payment timelines laid out in LCR 2026/D1 through D4. They are looking to catch any structural mismatches where an intermediary might inadvertently be hit with a late penalty due to unclear employer identification
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Good luck.
(meanwhile we will deliberate the conundrum of representing The Accrual's gigs for a State legislated 10% commission to be hit with a 12% superannuation guarantee requirement. You, the reader, may now see one of the points where the "final payer" route doesn't hold).
Our Submission will be completed soon and sent to ATO.
The Peak Agency
