Reporting of Taxable Payments to Contractors in the Building and Construction Industry. Consultation Paper

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1 Reporting of Taxable Payments to Contractors in the Building and Construction Industry Consultation Paper The Department of Treasury Australian Government Submission of The Recruitment and Consulting Services Association (RCSA) And The Information Technology Contract and Recruitment Association Ltd (ITCRA) July 2011 Joint RCSA & ITCRA Submission 1

2 The Recruitment and Consulting Services Association (RCSA) The RCSA is the peak body for the recruitment and on-hire workers services industries throughout Australia and New Zealand. It is a not-for-profit Association that is managed by a Board of Directors. The principal focus of the RCSA is to represent and serve the interests of Members for the increased profile and professionalism of the industry. The RCSA has more than 3200 Members in Australia and New Zealand comprising multi-national companies, single consultancies, and individual practitioners operating within a recruitment consultancy. The Association is instrumental in setting the professional standards, educating and developing Member skills, monitoring industry participant performance and working with legislators to formulate the future. Members are kept up-to-date on information regarding best practice techniques, resources and technological innovation, along with legislative changes impacting on employment. The RCSA also acts as a lobbying voice, representing its Members on issues that impact upon the industry. It has a strong relationship with the public and private sector. Members of the RCSA provide an extensive range of employment services including on-hire employee services ( labour hire employees ), contracting services ( including labour hire independent contractors ), recruitment services (agency/placement only), Job Services Australia services and consulting services. Approximately 17% of RCSA Corporate Members list construction and trade services in their top seven service specialisations with a significant number specialising in the building and construction industry. Every year the industry places millions of individuals in on hired employment and on-hire independent contracting in an increasingly broad range of sectors from building, construction and engineering to secretarial placements, call centres and accounting. The method of engagement may vary within occupational type and industry, with the majority of on-hire independent contracting amongst the RCSA Membership occurring within professional, scientific and technical occupations. The RCSA is instrumental in setting standards in the on-hire worker services industry. Furthermore, maintaining and raising standards in financial compliance, work safety, workplace relations and work law are at the top of the Association s agenda. RCSA Code for Professional Practice The RCSA has a Code for Professional Practice, authorised by the ACCC, which can be viewed at In conjunction with the RCSA Constitution and By Laws, the Code sets the standards for relationships between Members, best practice with clients and candidates and general good order with respect to business management, including compliance. Acceptance of, and adherence to, the Code is a pre-requisite of Membership. The Code is supported by a Joint RCSA & ITCRA Submission 2

3 comprehensive resource and education program and the process is overseen by the Professional Practice Council, appointed by the RCSA Board. The Ethics Registrar manages the complaint process and procedures with the support of a volunteer Ethics panel mentored by RCSA's Professional Practice barrister. RCSA s objective is to promote the utilisation of the Code to achieve self-regulation of the on-hire worker services sector, wherever possible and effective, rather than see the introduction of additional legislative regulation. The Information Technology Contract and Recruitment Association Ltd (ITCRA) ITCRA is the pre-eminent Association for recruitment companies who provide ICT recruitment and contract solutions to clients throughout Australia and New Zealand. It is a company limited by guarantee, managed by a voluntary Board of Directors, and has a CEO and Secretariat located in Melbourne. The Association s Membership is governed by a Code of Conduct, Constitution, Rules & Guidelines and has a robust Dispute Resolution Procedure that, collectively, articulate a standard of conduct that ITCRA considers is becoming of ITCRA Members and in the interests of ITCRA. It does so by stating general commitments to ethical and professional practice which all classes of ITCRA Member must agree to before admission to the Association. These commitments are in regard to three key relationships: other Members; Workseekers; and Clients. The ITCRA Code is intended to provide one framework within which the ITCRA Board, ITCRA Members, and members of the public with whom they have dealings, may have confidence that ITCRA Members operate their ICT contract and recruitment businesses in an ethical and professional manner but also takes into account any other relevant statement of ethical, moral or legal principle to which effect may lawfully be given. ITCRA s key purpose is to set the direction for the ICT recruitment sector by influencing Member s business and professional standards and best practice while providing a voice and advocacy to address stakeholder issues. ITCRA has 100 registered Member companies in Australia comprising divisions of and stand alone multi-national companies, Australia wide ICT recruitment organisations as well as multi state and single consultancies. ITCRA has a strong professional consultant base working within Member and non Member companies. The Association delivers a number of unique services to the employment landscape that assist everyone in the employment cycle: SkillsMatch a real time easily accessible dataset of ICT placements occurring in Australia at any given point in time this data is crucial to understanding the style of workforce and the skills needs in the Australian ICT market. This program is licenced by a Joint RCSA & ITCRA Submission 3

4 number of Government agencies and forms the basis of the newly developed ICT Skills Dashboard and Trends Report. IT2, the unique niche job board for ICT vacancies complements SkillsMatch and provides a strong overview of the roles advertised by ICT recruitment companies and sought by business in Australia. ITCRA is also is focussed on monitoring business and professional standards through its Centres of Excellence and Business Diagnostic programs and uses these Member review tools to educate and inform Members to ensure their understanding of the required compliance with all regulatory regimes: taxation, workplace health and safety and workplace relations. ITCRA s Voice program acts to represent Members on issues that impact upon their business and the industry generally. ITCRA works closely with other ICT and employment representative bodies on matters of mutual interest. RCSA Member Service Categories and Terminology RCSA believe that the absence of precise terminology is contributing to the confusion and lack accountability amongst any non-compliant element of the industry. RCSA has been instrumental in developing and promoting the following categories of service and terminology, with a view to identifying the various forms of third party employment and contracting services. Put simply, the term labour hire is now used to describe most a-typical forms of employment and is no longer descriptive of genuine on-hire employee services, which results in misinformation, misrepresentation and ultimately harbours both intended and unintended non-compliance. See attached diagram for RCSA definitions and service categories along with additional information, which provides some context around on-hire worker services. Joint RCSA & ITCRA Submission 4

5 Joint RCSA & ITCRA Submission 5

6 On-Hire Worker Services in Context The on-hire worker services industry is a significant contributor to the Australian economy Research completed by the Australian Bureau of Statistics in 2002 indicated that the on-hire services industry contributes $10 billion to the Australian economy, more than that of accounting services and more than that of legal services. The annual revenue of the industry is $16 billion, according to both Recruitment Super and RCSA Member Research. Most on-hire workers engaged by RCSA Members are either skilled or professional workers RMIT University research 1 found the 61% of RCSA on-hire employees are skilled or professional workers with the remaining 39% being semi-skilled or unskilled. Many on-hire employees are employed on a permanent basis RMIT University research found that 16% of on-hire employees are now employed on a permanent basis. Where on-hire employees are employed on a casual basis they have improved opportunities for ongoing work as they are supplied to alternative workplaces RMIT University research found that half of all on-hire casual employees employed by RCSA Members are immediately placed in another assignment following the completion of their initial assignment that is, they enjoy back to back assignments without having to search for new work like those engaged in direct hire casual employment. An overwhelming majority of people choose to work as an on-hire workers and the reasons for this choice are not what you may expect RMIT University research found that 67% of on-hire employees chose to work as an on-hire employee and 34% prefer this form of work over permanent employment. The most important reasons for choosing on-hire employment are diversity of work, to screen potential employers, recognition of contribution and the payment of overtime worked. 1 Brennan, L. Valos, M. and Hindle, K. (2003) On-hired Workers in Australia: Motivations and Outcomes RMIT Occasional Research Report. School of Applied Communication, RMIT University, Design and Social Context Portfolio Melbourne Australia RCSA Submission ABCC Sham Contracting Inquiry 6

7 Business uses on-hire employees to help with recruitment and urgent labour requirements, not to reduce cost or pay. RMIT University research found that the main reason that organisations use on-hire employee services is to resource extra staff (30%), cover in-house employee absences (17%), reduce the administrative burden of employment (17%) and overcome skills shortage issues (9%). Only 2% of organisations surveyed indicated that the primary reason for using on-hire employees was related to pay. Business is more productive and competitive because of the use of on-hire workers RMIT University research found that 76% of organisations using on-hire workers were more productive and competitive as a result. On-hire employment creates jobs and doesn t necessarily replace direct hire employment opportunities RMIT University research found that 51% of organisations using on-hire employees would not necessarily employ an equivalent number of employees directly if they were unable to use on-hire employees. In fact 19% of organisations said they would rarely do so. Furthermore, 19% of RCSA Member on-hire employees eventually become permanent employees of the host organisation they are assigned to work for, according to RMIT University research. RCSA and ITCRA Joint Submission Introduction RCSA and ITCRA are particularly concerned with ensuring that work arrangements within Australia promote fair and decent work opportunities however, it is equally important for all stakeholders to recognise that the way Australians want to work has changed considerably over the past 30 years. Methods of engagement and forms of work are responding to economic, environmental, business and lifestyle considerations more than ever in Australia s working history. RCSA AND ITCRA believe the sustainability of the Australian Government income stream and the promotion of superannuation savings for an ageing population is critical and, with this and other factors in mind, RCSA and ITCRA recently established a joint Independent Contracting Working Group. This Working Group s first meeting was with senior representatives of the RCSA Submission ABCC Sham Contracting Inquiry 7

8 Australian Taxation Office to achieve and promote greater education and compliance within the recruitment and on-hire worker services sector. Submission General Submission Our general submission is that the reporting regime should be restricted to individuals it is highly unlikely that companies, partnerships or trusts bearing ABN s are likely to be quoting false ABN s. Although this is likely to occur on rare occasions, the compliance costs to be imposed on business owners and managers in having to record this information and to report on it is unlikely to be matched by the tax to be picked up from the revenue derived by the rogue entities. The compliance imposts would place an unfair burden on business. The legislation currently requires quarterly reporting. The discussion paper does say that the Commissioner will exercise discretion to require annual reporting. If the reporting is to be introduced, the legislation should be amended to require annual reporting. Businesses require certainty and should not have to rely on an exercise of discretion. If the scheme is successful, the Commissioner almost certainly will change his mind and require quarterly reporting. There are likely to be significant costs for business in purchasing, updating and populating software and databases to comply with the new reporting requirements. This should be a further reason to assess the cost benefit ratio in relation to the scheme. On-Hire Worker Services Specific Submission RCSA and ITCRA support a level playing field amongst on-hire firms within Australia and support efforts to achieve this outcome however, RCSA and ITCRA do not support regulation for regulation s sake. On-hire worker services play an extremely important role within the Australian economy and provide the building and constructions sectors with the capacity and flexibility to respond to a dynamic and often volatile market. On-hire worker services provide many of the labour solutions faced by building and construction industry operators and do so as professional workforce managers. RCSA Members providing on-hire independent contractors are almost wholly categorised as labour hire for the purpose of Australian taxation law and, as a result, are obliged to withhold PAYG income tax from payments being made to unincorporated independent contractors. Therefore, RCSA and ITCRA submit that there should be no taxable payment reporting RCSA Submission ABCC Sham Contracting Inquiry 8

9 requirements upon on-hire worker services as building and construction services, if the scheme is introduced. Whilst on-hire worker services are unlikely to be categorised as organisations engaged in the supply of building and construction services, in the select circumstances where they may fall within the new definition outlined on page 10 of the discussion paper, they should be exempt where they are obliged under taxation law to withhold PAYG income tax from independent contractors. Such exemption should be specifically provided for within the scheme legislation. Question 1 of Discussion Paper In answer to question 1 of the discussion paper, RCSA and ITCRA would support a principled approach with specific exemptions. Question 4 of Discussion Paper In answer to question 4 of the discussion paper, RCSA and ITCRA submit that the on-hire of independent contracting services, principally for labour, should be exempt. Question 6 of Discussion Paper RCSA and ITCRA strongly oppose the incorporation of businesses not predominantly in the BCI, but are sufficiently connected to the BCI. The regime will introduce an additional compliance cost to business. RCSA and ITCRA are very concerned that this scheme is mere data gathering at business cost. Data gathering of this nature should be obtained by the government using its resources via proper and sustained audit activity if it is intent on targeting this industry. It already has the infrastructure in place to deal with this via tax office staff. To require business to undertake this is shifting a burden which is, in the opinion of RCSA and ITCRA, properly the responsibility and job of the Australian Taxation office. Question 7 of Discussion Paper As above End of Submission RCSA Submission ABCC Sham Contracting Inquiry 9

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