Film and TV Screenwriters – alleged unpaid superannuation by Australian Production Companies

By Ashleigh Hutton, AGS Secondee
In December 2024, the Australian Tax Office (ATO) made a ruling for the purposes of the Taxation Administration Act 1953 (TAA), about the term ‘employee’ for the purposes of section 12-35 of Schedule 1 to the TAA. The ruling aids understandings of both the ordinary and extended meanings of ‘employee’ under section 12 of the Superannuation Guarantee (Administration) Act 1992 (SGAA).
The effect of an individual being an employee is that the employer is obliged to contribute to the individual’s superannuation, which has not been occurring for some film and tv screenwriters.
Subsection 12(8) of the ruling refers to entertainers, artists, musicians, and sports persons. Subsection 12(8) provides further guidance for determining when a screenwriter is considered an employee and not a contractor, therefore entitling them to the rights an employee has. The following example is used at [119]:
For example, a person engaged to write a script is performing services but one who sells existing scripts is not – they are merely selling property.
Screenwriters for film and television are interpreting the ruling to the effect that they are employees and should be receiving superannuation contributions.
The Guardian reports (here) that the Australian Writers Guild (AWG) is relying on the determination to challenge Australian production companies, on the basis that they owe writers superannuation.
Section 12(8)(c) of the SGAA says the following about whether a person is an employee for the purposes of the SGAA:
… “a person who is paid to perform services in, or in connection with, the making of any film, tape or disc or of any television or radio broadcast is an employee of the person liable to make the payment”.
The AWG has contacted the ATO to tackle what it regards as systemic, or industry wide non-compliance, but to no avail, according to the Guardian.
The Screen Producers Australia (SPA) chief executive gave a statement to the Guardian saying: “While we can’t comment on any specific matter, nor has this issue been formally raised by the writer’s guild, we note that the industry framework agreements with the guild envisage writers being paid under different fee types depending on what has been contracted. Superannuation obligations are then determined in accordance with the relevant legislation.”
The AWG also raises concerns that companies appear to be negotiating on the basis this is a contract requirement, when it is legislation. However, we will have to await a formal challenge and decision by the ATO.