If you pay someone to perform, the ATO usually treats that person as your employee for super purposes. That is true even when they have an ABN, send you an invoice, call themselves a contractor, only play for you once, or are retired. The rule is set out on the ATO page Super for sportspeople, performers, film makers and related activities, and it is the source for everything on this page.
Who counts as a performer
The ATO's list is wider than most bandleaders expect. It covers singers, instrumentalists, band members, DJs, actors, dancers, comedians, magicians, party performers, presenters and hosts, circus performers, fashion models, influencers, guest speakers, esports competitors, live streamers, live art demonstrators, and fitness, Pilates and yoga instructors who demonstrate.
It also covers the people whose work is required to support the performance, before, during or after it:
- Stagehands, stage crew and props people.
- Sound, lighting and audio engineers and technicians, and guitar techs.
- Accompanists, repetiteurs and conductors.
- Make-up artists, choreographers, directors and coaches.
- Stage build and bump-out crew, and live-stream moderators.
Anyone paid to make a film, tape or disc, to record content for streaming, or to work on a television or radio broadcast is covered as well, along with the people whose services that work requires.
Three groups are not required support services: security, advertising, and management, representative or agency services. A labour-only contract with any of those can still attract super under the general contractor rule, so ask your accountant about those specific engagements.
Source: ATO, Super for sportspeople, performers, film makers and related activities (QC107606)
When you owe nothing
Six situations mean no super is owed by you. Work through them in order and stop at the first that applies. Record which one applied, because your ledger has to show why nothing was paid.
- You are paying a partnership that has its own ABN. The partners look after their own contributions. (ATO example 1.)
- You are paying a company, a trust or an incorporated association. That entity is responsible for super for its own people. This is the common one: a keys player who invoices through a Pty Ltd.
- You are a private individual or household engaging someone for something wholly or principally private or domestic, and they work 30 hours a week or less for you. A couple hiring a harpist for their own wedding is the ATO's example. (ATO example 8.)
- The person is under 18 and works 30 hours a week or less for you. It stops applying on their 18th birthday.
- The arrangement is a genuine revenue share or door deal. You are passing on their share of a joint venture rather than paying a fee for a performance. The paperwork has to reflect that in substance, not just in name. (ATO example 14.)
- The role is one of the three that are not covered: security, advertising, or pure agency and management services.
Being a business, a community group, a not-for-profit or a one-off event organiser makes no difference. The only exclusion that turns on who is paying is the private and domestic one, and it is only available to a private household.
Source: ATO, Super for sportspeople, performers, film makers and related activities (QC107606)
What part of the fee attracts super
Super applies to the part of the payment that is for the person's work. If the invoice itemises other things, those parts are left out of the calculation:
- Rehearsal studio hire and equipment hire.
- Freight, travel and accommodation.
- Amounts for other people the player engages themselves.
- Use or purchase of intellectual property.
- Use of equipment the player owns, such as a backline or PA line.
In the ATO's example a videographer invoices $6,950, of which $5,000 is the filming fee and the rest is hire, wages and travel. Super applies to the $5,000 only. If a player sends you a single lump sum with no breakdown, the whole amount is treated as work, so ask them to itemise.
GST never forms part of the super base. A GST-registered player who charges you $400 plus $40 GST is owed super on the $400.
Source: ATO, Super for sportspeople, performers, film makers and related activities (QC107606)
Inclusive or on top
You and the player agree whether the fee includes super or sits underneath it. Both are legal, and the difference is who is out of pocket.
The same $400, two agreements
- On top: fee to the player
- 400.00
- On top: super to the fund
- 48.00
- On top: costs you
- 448.00
- Inclusive: fee to the player
- 357.14
- Inclusive: super to the fund
- 42.86
- Inclusive: costs you
- 400.00
One thing you cannot do, even under an inclusive agreement, is hand the super to the player instead of their fund. The contribution has to reach the fund.
When it has to be paid
The contribution has to be received by the player's fund within 7 business days of the day you pay their fee. The first contribution you ever make for a particular player gets 20 business days instead. Business days exclude weekends and public holidays counted nationally: a holiday observed across any state or territory stops the clock for everyone, wherever the gig was, which is the ATO's published reading.
If a deadline is missed, the shortfall becomes a Super Guarantee Charge, which is paid to the ATO rather than the fund and is not deductible. Working out the date on the day you pay the fee is the way to avoid it.
Source: ATO, Super for sportspeople, performers, film makers and related activities (QC107606)