What’s emerging? ATO updates guidance on superannuation for certain contractors, including those engaged in promotional activities

If your organisation engages performers, film makes, individuals involved in promotions and advertising, amongst other activities, you may have a Superannuation Guarantee (SG) obligation even where the individual is a genuine independent contractor. The ATO has updated its website guidance, setting out the Commissioner of Taxation's views on how the extended definition of "employee" in section 12(8) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) applies. 

The updated guidance substantially elevates the previous guidance in TR2023/4, providing detailed worked examples, expressly identifying emerging categories of workers, addressing intermediary arrangements (see also SGR 2026/D1) and revenue-sharing structures. 

The guidance is particularly relevant to the engagement of workers in promotions, advertising, entertainment, events and sports, where engagements are often irregular and payments are frequently processed outside payroll. The Payday Super reforms from 1 July 2026 have only increased the importance of correctly identifying SG obligations for such engagements. 

The extended definition of employee under sections 12(8)

Section 12(8) of the SGAA deems certain individuals to be "employees" for SG purposes regardless of how the engagement is described, capturing three broad categories: 

• individuals paid to perform, present, or participate in music, a play, dance, entertainment, sport, a display, promotional activity, or a similar activity involving intellectual, artistic, musical, physical or other personal skills (paragraph 12(8)(a)); 
• individuals paid to provide services in connection with any of those activities, being services required for the performance to occur (paragraph 12(8)(b)); and
• individuals paid to perform services in, or in connection with, the making of a film, tape or disc, or a television or radio broadcast (paragraph 12(8)(c)). 

The ATO’s latest guidance now provides specific examples. For instance, for paragraph 12(8)(a), these include traditional categories (singers, actors, athletes) alongside emerging areas of promotion and advertising — such as fashion models, social media influencers, live streamers and guest speakers. Similarly, for paragraph 12(8)(b), using promotion/advertising activities as an example, the guidance lists stagehands, sound/lighting/audio engineers, technicians, make-up artists and stage assembly workers.  Security, advertising, and management or agency services fall outside section 12(8)(b), although the guidance flags that those engagements may still be covered by section 12(3) which applies to a person who works under a contract that is wholly or principally for their labour.  

The deemed employer is the person legally liable to make the payment, assessed on a payment-by-payment basis. The fact that a worker has an Australian Business Number (ABN), issues invoices, or describes themselves as an independent contractor does not determine the SG outcome; the relevant question is whether the payment meets the requirements of section 12(8). 

Who bears the SG obligation — agents, intermediaries or the principal? 

The guidance makes it clear that the SG obligation falls on the entity legally liable to make the payment. It draws a clear distinction between an intermediary acting as an agent and one acting in its own right. The guidance notes that, if acting as an agent, even if the agent pays the relevant contractor, “the principal is considered to have the liability for that payment. This means the principal is responsible for any super guarantee for the performer, even though the agent transfers the money." 

Whether an intermediary is acting as an agent (or in its own right) depends on the legal rights and obligations of the parties, consistent with the principles in SGR 2026/D1 (currently in draft) and the case law canvassed therein (Odco, Drake, Swift Placements), as well as Commissioner of Taxation v Racing Queensland Board [2019] FCAFC 224 and Australian Turf Club Ltd v FC of T [2024] AATA 2728. 

Intermediaries and single payment/multiple individuals and exceptions 

Where a single individual is paid for services performed by multiple individuals, the SG outcome depends on whether the individual is an agent for the group or acting in its own right – in the latter scenario, the principal’s obligation is limited to the one individual contracted, where in the former, an SG obligation is retained for each individual performer. The ATO illustrates this through examples of multiple musicians being engaged, although the principal makes a single payment to one individual. 

This concept also extends to whether the SG exceptions apply. The guidance flags that a contractor can be a section 12(8) “employee” even “if they are a hobbyist” – however, an exception may exist if the “type of payer (means that) the performance is of a private or domestic nature”. The ATO illustrates this with the example of an entertainment agency engaged to supply a DJ for a private wedding. Had the couple engaged the DJ directly for less than 30 hours in the week, the payment could fall within the domestic or private exception. However, where the agency contracts with the DJ in its own right and is in the business of sourcing entertainment, the domestic or private nature of the event is no longer relevant. 

Calculating the portion subject to SG 

SG applies only to the component of the payment that relates to the individual's work. Non-service components — equipment hire, freight, travel, accommodation, etc. — may be excluded from the SG base where separately itemised, or apportioned using reasonable market values where an invoice is not itemised. However, the ATO cautions that "ordinarily you would not expect the whole of a payment to a performer, support service provider, or film or broadcasting service provider to be attributable to items and services other than their work". 

Revenue-sharing arrangements 

Revenue-sharing arrangements may fall outside the SG regime. The ATO illustrates this with a comedian and a venue entering into a written contract whereby the venue collects ticket sales, deducts its costs and agreed share and pays the balance to the comedian - the venue has no SG obligation because the parties are operating a commercial joint venture together, rather than a payment-for-performance arrangement. 

Contribution timing under Payday Super 

Under Payday Super, which has applied since 1 July 2026, contributions must be able to be allocated by the individual's superannuation fund within seven business days after payday, with an extended 20 business days for first-time contributions. For organisations that engage section 12(8) individuals on an irregular or ad-hoc basis, this creates a compliance challenge – contractor analysis must be able to identify SG obligations in time for contributions to be paid within the applicable timeframe. 

The ATO’s guidance is a meaningful step forward, providing substantially more practical detail on the types of individuals covered, intermediary arrangements, and SG calculations. Particular attention should be given to: 

• Classification of workers - the express identification of emerging categories (e.g. social media influencers, live streamers) means organisations engaging in advertising, marketing and digital content should review their contractor populations, in addition to the more obvious sports, entertainment and media sectors. 
• Intermediary arrangements - the identity of the entity legally liable for the payment may not be immediately clear, particularly where booking agents, promoters or entertainment agencies are involved. Organisations should establish the legal structure at the outset. 
• Hobby and recreational participants – community sporting officials and referees receiving modest fees may consider their involvement hobbyist, but the SG rules operate under a separate framework. and the extended definition of "employee" does not expressly exclude hobby or recreational activities. 
• Revenue-sharing arrangements - the critical question is whether the parties are operating a genuine commercial venture, or whether one party is simply paying the other for their performance. 

Organisations should ensure their contracting, invoicing and payment processes identify the relevant SG position at the time of engagement, including the entity liable for payment and the amount subject to SG, and allow enough time to contribute within the applicable Payday Super timeframe. 

Should you have any questions regarding SG obligations for contractors within your workforce, or want to further discuss your organisation’s SG obligations, please reach out to one of our PwC Employment Taxes Specialists.