What operators need to know about the latest amendments to the Residential Tenancies Regulations
The new Aged Care Act 2024 (Cth) (Aged Care Act) commenced on 1 November 2025. The new legislation clarifies the role of third party providers (contractors) and registered providers’ obligations with respect to managing them, introducing the new term “associated provider”. While there has been a lot of discussion in the sector about who would and would not be considered an associated provider, registered providers must be aware that engaging third party providers, whether they are classified as associated providers or not, may have implications under the Superannuation Guarantee (Administration) Act 1992 (SGA Act).
Superannuation obligations
Whether a contracted third party is an associated provider or an aged care worker under the Aged Care Act is somewhat irrelevant to whether superannuation must be paid. An employer’s liability to pay superannuation contributions to a worker is provided under the SGA Act. The new Aged Care Act does not impact upon this obligation. The Superannuation Act provides that workers are entitled to superannuation based on their earnings and provides two relevant definitions. In our experience this obligation is not always fully understood, in particular, in relation to the extended meaning of employee.
The ordinary meaning of employee
An employer has an obligation to pay superannuation contributions to employees. This means that if a worker falls within the ordinary common law meaning of employee, superannuation will be payable to the worker. The ordinary common law meaning of employee requires the parties to assess the totality of the relationship, by engaging in a ‘multifactorial assessment’ that is limited to the written terms of the agreement and the rights and obligations these create.
While it is important to consider the totality of the relationship with an associated provider, generally speaking, a worker of a third party contractor (or associated provider) will not be considered an employee within the ordinary common law meaning under the SGA Act.
The extended meaning of employee
However, even if a worker of a third party contractor (or associated provider) is not an employee within the ordinary common law meaning, the definition of employee is extended by section 12(3) of the SGA Act to cover individuals who work under a contract that is “wholly or principally” for their labour.
A contract will not be “wholly or principally” for the labour of a person if certain exceptions apply that make the contract not for the individual’s personal exertion. In determining whether an exception applies to s 12(3) of the SGA Act, it is necessary to consider what the worker is being engaged for, and the manner in which they are engaged. For example, if a worker is being engaged to produce a specific result, rather than for their personal service, it is likely that the worker is not being engaged “wholly or principally” for their labour and the extended meaning of employee may not apply.
Practical implications for aged care providers
If a third party contracted worker falls within the extended definition of employee set out in s 12(3) of the SGA Act, aged care providers will need to ensure they are paying superannuation contributions into their nominated super fund.
If an employer fails to make superannuation contributions, it is required to report the amount of this shortfall to the Australian Taxation Office, with penalties applying to the late payment of superannuation contributions.
How can we help?
If registered providers are unsure whether a particular third party or associated provider falls within the ordinary common law or extended meaning of employee under the SGA Act, it is important to seek legal advice on a case by case basis.
Russell Kennedy is experienced in providing this advice, we can also advise on how to better engage associated providers in light of the above considerations, and provide template agreements which address this issue.
Please contact Libby Pallot, Anita Courtney, Kelly Ralph, Johanna Heaven, or another member of Russell Kennedy's Aged Care or Workplace Relations and Employment Teams if you have any questions.
Disclaimer
The information contained in this Alert is intended as general commentary only and should not be regarded as legal advice. Should you require specific advice on the topics discussed, please contact the firm directly.