Guide 4 of 5 · The contractor path

Super for a contractor marketer: when the ATO says it’s payable

A contractor paid mainly for their own labour is an employee for super guarantee purposes, so super can be payable for them even though they hold an ABN and send invoices. From 1 July 2026 that super is at least 12% of what they are paid for their labour, and it follows the Payday Super timing.

General information, not tax or super advice, and not a view on any one contract. The official place to check is the ATO; for whether a worker is an employee under workplace law, the Fair Work Ombudsman.

The ATO’s three-part test

The ATO says to make super contributions for a contractor paid:

“under a verbal or written contract that is mainly for their labour (more than half the dollar value of the contract is for their labour)”
“for their personal labour and skills (payment isn’t dependent on achieving a specified result)”
“to perform the contract work (work cannot be delegated to someone else).”

Holding an ABN makes no difference to that answer. The ATO’s guide to employees and contractors puts the test in the law’s own words: a contract that is “wholly or principally for their labour”. The test is for super only: a contractor for other purposes can still be owed super.

Who falls outside it

A company, trust or partnership. When the contract is with one of these, the ATO says no super is payable by the hiring business for the person they employ to do the work.

A contract for a result. The ATO’s own example is a shop that pays a painting business to paint its premises. Because the shop paid to achieve a result, it has no super obligations for the painter, and the ATO says that holds even if the painting business is a sole trader doing the job personally.

Two marketing contracts, read against the test

An illustration, written for this guide

Contract one

A sole trader manages a business’s social accounts for 20 hours a week at an hourly rate, and the contract says they must do the work themselves.

Contract two

A marketing company is paid a fixed fee to deliver a finished launch campaign, and chooses which of its own staff do the work.

Contract one has the features of the ATO’s own example of a freelance administrative assistant: a contract wholly for her labour and skills, pay by the hour, and a requirement that she do the work herself. The ATO treats her as an employee for super guarantee purposes, ABN and weekly invoices notwithstanding. Contract two is with a company and pays for a result, the two situations the ATO places outside the test.

Real contracts are rarely this tidy; where one sits is for the ATO’s guidance or an accountant or tax agent.

How much, and on what

The super guarantee rate is still 12%. From 1 July 2026 it applies to the contractor’s qualifying earnings, which take in every payment for their labour, including overtime, whether or not it falls in ordinary hours. Left out are payments for materials, equipment or other non-labour items, and GST.

A contract covering both labour and other items should show the value of each separately. If it doesn’t, the ATO says a reasonable market value can be used to work out the labour part, and records of how it was worked out must be kept. For earnings in quarters ending on or before 30 June 2026, the base was ordinary time earnings, which for a contractor was generally the labour part of the contract payments.

When it is due: Payday Super

PaydayFrom 1 July 2026, super is paid for each payday instead of quarterly.
Within 7 business daysThe contribution must reach the fund, with enough information to allocate it. There are some exceptions, such as for new employees.
Within 3 business days of arrivingThe fund allocates or returns it.

Before 1 July 2026, contributions were due within 28 days of each quarter’s end. business.gov.au said the Small Business Superannuation Clearing House would close permanently on 1 July 2026, and that a business using it would need to change to a different provider.

The right fund, and a shortcut that doesn’t count

A contractor who is an employee for super purposes is generally eligible to choose their own fund, and must be offered that choice within 28 days of starting. If they don’t choose, the ATO says the business must request their stapled super fund details to avoid penalties.

Adding 12% to the contractor’s invoice payment is not a super contribution. The ATO says the contribution has to go to the contractor’s super fund by the deadline to avoid the super guarantee charge.

Where a business believes a worker is a contractor, the ATO says it can choose to pay them super anyway so it isn’t liable for the super guarantee charge, paying it to their chosen fund and including it in the contract.

If it is missed

From 1 July 2026 the super guarantee charge applies when super doesn’t reach the fund within 7 business days of payday, unless a longer period applies. The ATO assesses it, with interest compounding daily at the general interest charge rate and an administrative uplift amount, and penalties are 25% or 50% of the unpaid charge, depending on any earlier penalties.

A related ATO rule for paid promoters is in the influencer guide; employed marketers’ pay is in the pay guide.