Employee or independent contractor? How performing artists are classified in Australia.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship.

Whether a performing artist is an employee or an independent contractor is decided by the substance of the working relationship, not the label on the contract. Since 26 August 2024, the Fair Work Act 2009 (Cth) has set the test in section 15AA. The ordinary meaning of employee and employer is worked out by reference to the real substance, practical reality and true nature of the whole relationship, not just the terms written on the page.

This matters because employees and contractors sit under different rules. An employee is usually covered by the Live Performance Award 2020 and the National Employment Standards, accrues leave, and has superannuation and PAYG tax handled by the engager. An independent contractor invoices for their services, manages their own tax, and carries their own insurance. Classify a worker wrongly and a producer or venue can face claims for back-pay, penalties, unpaid superannuation and leave.

What changed on 26 August 2024?

For a period, the High Court had said the rights and duties in a written contract were the main guide to whether a person was an employee or a contractor. That came from Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2.

Section 15AA of the Fair Work Act now displaces that approach for the purposes of that Act. The question is the real substance and practical reality of the relationship, assessed across the whole of the arrangement, including how it works day to day and not only what the contract says. A written contract still matters, but it is one part of a wider picture.

One point often missed: section 15AA governs the meaning of employee for the Fair Work Act. Other statutes have their own tests. Superannuation, in particular, uses a broader definition, which is covered below.

How the relationship is actually assessed

No single factor decides the question. A court or the Fair Work Commission looks at the overall picture, weighing indicators such as these:

Control: how much say the engager has over how, when and where the work is done. A performer told exactly when to arrive, what to wear and how to perform looks more like an employee. Independence points to a contractor.

Whether the person runs their own business: do they have an ABN, advertise their services, work for several clients, quote for jobs and carry business risk, or are they simply working in someone else's business?

Delegation: a genuine right to send a substitute to do the work points to a contractor. Employees must do the work themselves.

Tools and equipment, financial risk, hours, exclusivity and how the person is paid all feed into the assessment. A regular wage suggests employment; payment on invoice for a result suggests contracting.

Common performing-arts scenarios

The ensemble member in a season

A performer or company dancer engaged for a season of a production, rehearsing and performing under the direction of the company, is very often an employee covered by the Live Performance Award 2020. That brings minimum pay, penalty rates, allowances and leave. Calling the person a contractor in the paperwork does not change the substance.

The independent musician playing venues

A solo musician or band that books its own gigs, sets its own set list, supplies its own gear and plays across many venues is often running a business and contracting with each venue. The position is not automatic and depends on the facts of each engagement.

The freelance director, choreographer or designer

A creative engaged for a defined piece of work, quoting a fee and delivering a result, will often be a contractor. Where the company controls the day-to-day work over a long period, the line can move toward employment.

Superannuation: the trap that catches genuine contractors

Even where a performer is a contractor for general purposes, the Superannuation Guarantee (Administration) Act 1992 (Cth) has its own extended definition. Under section 12(3), a person engaged under a contract that is wholly or principally for their labour is treated as an employee for superannuation. Many solo performers and freelance crew are engaged for their personal labour, so a producer can owe superannuation even where the contract calls the person a contractor. This is one of the most common and costly mistakes in the sector.

The high-income contractor and the right to choose

The 2024 reforms also introduced a pathway for genuine independent contractors above a contractor high income threshold to notify that they wish to keep contractor status. This is a narrow mechanism, not a way to relabel an ordinary working relationship. The substance still governs.

Why classification matters for your production

Section 357 of the Fair Work Act prohibits sham contracting, that is, telling a worker they are a contractor when the relationship is really employment. Contraventions carry civil penalties. On top of that, a misclassified worker can recover unpaid award entitlements and leave, the engager can owe unpaid superannuation with interest and charges, and there are flow-on effects for workers compensation and payroll tax.

The safe course is to look past the label, assess the real relationship before the engagement starts, and paper it consistently with what is actually happening on the ground.

Frequently asked.

Can I just write ‘independent contractor’ in the contract to avoid employee entitlements?

No. Since 26 August 2024, section 15AA of the Fair Work Act 2009 (Cth) requires the real substance and true nature of the whole relationship to be considered. A label that does not match the reality will not protect the engager, and misrepresenting employment as contracting can breach the sham contracting provisions in section 357.

Does a performer with an ABN automatically count as a contractor?

No. Having an ABN is one indicator, not the answer. The overall relationship is assessed. A person can hold an ABN and still be an employee in substance.

Do I have to pay superannuation to a contractor musician?

Possibly yes. Under section 12(3) of the Superannuation Guarantee (Administration) Act 1992 (Cth), a person engaged under a contract wholly or principally for their labour is treated as an employee for superannuation, even if they are a contractor for other purposes.

Which award covers live performers?

The main modern award is the Live Performance Award 2020 (MA000081), which covers many employees in the live performance industry. Some organisations also have registered enterprise agreements negotiated with the Media, Entertainment and Arts Alliance.

What are the risks of getting classification wrong?

Back-payment of award wages and leave, unpaid superannuation with interest and charges, civil penalties for sham contracting, and exposure under workers compensation and payroll tax laws.

If you are a performer, producer, venue, or independent practitioner and this raises a question about your own situation, Aaron Kernaghan and the team at Brady & Associates Lawyers can give you tailored guidance. Call 0421 717 019 or contact the firm.

This article is for informational purposes and general commentary only. It does not constitute legal advice and does not create a solicitor-client relationship. It reflects the law in Australia as at 13 September 2026, with a focus on Commonwealth law and New South Wales and ACT practice. The law changes and applies differently to every set of facts. Written by Aaron Kernaghan, Brady & Associates Lawyers.

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