By Greg Allan, tradesman and creator of Data First Coaching
Why do concreters get this wrong so often?
A concreter often runs a core crew for excavation, base preparation, formwork and reo, then brings in extra hands for a pour day, a pump truck operator, or a finishing specialist for exposed aggregate or decorative work. Many of those extra hands invoice on their own ABN and get called subcontractors, while the business still sets the site, the mix, the start time and the order of the pour, because the ready-mix and the pump truck are booked around a weather window that will not wait.
The paperwork says subcontractor. The way the day actually runs can say something else, and that gap is where many concreters get the classification wrong without realising it. It is rarely deliberate. It is a crew that grew job by job, with each new finishing hand brought on the same way as the last, and nobody going back to check whether the arrangement still matches the paperwork.
What does the ATO look at to decide if your concreter is an employee or a contractor?
According to the ATO, the written or oral agreement between you and the worker is the starting point, but the ATO says you need to review the whole working arrangement, not just the contract, to work out whether someone pouring or finishing concrete for you is an employee or an independent contractor for tax and super purposes.
The ATO's guide to working it out sets out the main things to weigh: can the worker delegate or subcontract the job to someone else, how is the payment worked out, who supplies the tools and plant, who carries the commercial risk if the slab or the driveway has to be redone, and who controls how and when the work is done. The ATO's explainer on employee or independent contractor lists the same factors, and says an apprentice, a labourer or a trainee on your crew will always be an employee for tax and super purposes, no matter what the paperwork calls them.
The ATO's ruling TR 2023/4 makes the point that this is not a checklist to be ticked off in order. It is a judgement about whether the worker is really working in their own business or in yours, built on the words of the contract and how the job actually runs. The ATO also treats a company, trust or partnership you engage, for example a finishing crew trading through a Pty Ltd, as a contracting relationship in its own right, even if the people doing the work are directors or employees of that company.
How does the building and construction example about pouring concrete apply to your crew?
The ATO's own building and construction example is built around a worker named Darren pouring concrete, which is worth reading against your own crew because it is the exact job you run, not a generic trade comparison.
In the ATO's building and construction industry examples, Darren pours concrete as a core function of the business, which the ATO treats as him being integrated into that business rather than operating independently of it. Darren must personally perform the work and cannot send someone else in his place, which the ATO treats as an employee characteristic because there is no ability to delegate. And Darren is contractually paid an agreed amount for each hour he works, not a price for finishing the slab or the footpath, which the ATO again treats as leaning towards employee rather than contractor.
None of that means every concreter paid by the hour is automatically an employee. It shows what the ATO is actually looking at on a real pour: can the person send someone else to finish the exposed aggregate in their place, and are they paid for the job or for the time.
Does the test change depending on how your concreting business is set up?
Yes. The Fair Work Ombudsman uses one test for some businesses and a different test for others, and which one applies to your concreting business depends on how it is structured and where it operates.
Since a set date in twenty twenty four, the Fair Work Ombudsman's guide for independent contractors says certain businesses must use what it calls the whole of relationship test, which looks at the real substance, practical reality and true nature of the relationship over the whole engagement, rather than just at the start. Sole traders, partnerships and other businesses based in New South Wales, South Australia, Queensland, Victoria and Tasmania, described as state referred national system businesses, use a start of relationship test for work done before that date.
The Fair Work Ombudsman's page on contractors in building and construction adds that a company, usually with Pty Ltd or Ltd in the name, or a sole trader or partnership based in the Australian Capital Territory or the Northern Territory, must use the newer test. It also knocks down a common myth directly: calling someone a contractor in a written agreement does not make them one if the real relationship meets the test for employment.
If your concreting business also takes on work outside Australia, for example in New Zealand, the test and the regulator are different again, and it depends on your own situation, so check with the right body or a qualified adviser rather than assuming the Australian tests apply.
Do you have to pay super for your subcontractors, and what keeps you covered if you're ever asked?
Often, yes. According to the ATO, if you pay an independent contractor mainly for their own labour, they count as an employee for superannuation guarantee purposes, regardless of whether they hold an ABN, so paying a finishing specialist or a formwork subbie by invoice does not automatically take you out of a super obligation.
The ATO's page on super for independent contractors says this applies whether the contract is written or just agreed on site. The ATO's payday super guidance adds detail: it looks at whether more than half the dollar value of the contract is for labour, whether the person is paid for their own skills rather than for achieving a result, and whether the work can be delegated to someone else.
This is general information, not legal, tax or employment advice. Check your own situation with the body named here or a qualified adviser.
For a concreter running several pours a week, each with a different mix of crew, subbies and finishing specialists, working this out from memory at the end of the quarter is how mistakes happen. The number that actually holds the answer is not a feeling about who seems like a contractor, it is your own job by job record: who was on each pour day, what they were paid for, who booked the pump truck, and whose name is on each invoice. Data first, this is where the real answer lives, not in a conversation someone half remembers months later.
This is also the kind of paperwork AI agents can take off your plate. An AI agent is software that does a job the way you would, with your own wording and your own rules, so it can hold a consistent, dated record of who worked which pour, what they invoiced for, and how that pattern sits against the factors above, week after week, rather than you trying to reconstruct it later from memory. AI agents don't decide the classification for you, but they can keep the evidence current instead of letting it go stale between invoices.
Where can you check the current rules?
- Difference between employees and independent contractors, the ATO's starting point on reviewing the whole working arrangement.
- Building and construction industry examples, the ATO's worked example using a concreter.
- Independent contractors, the Fair Work Ombudsman's whole of relationship and start of relationship tests.
- Contractors in building and construction, which test applies to which business structure.
- Employee or independent contractor, what's the difference, the ATO's plain summary of the main factors.
- TR 2023/4, the ATO's full ruling on how the factors are weighed.
- Super for independent contractors, when super guarantee applies to a contractor.
- Payday Super for employers, how the labour test is applied for super purposes.
How does Data First Coaching approach this?
When a concreting business is unsure whether its subbies are really contractors, Data First Coaching starts by looking at the owner's own job and pay data through the Trade Business Intelligence, not by guessing from memory. It checks who was actually paid for each pour, who controlled the crew on site, and how that pattern sits against the factors the ATO and Fair Work Ombudsman use, because the real answer is often different from what the paperwork says. From there, Greg Allan's approach looks at where the risk actually starts in the business, not just the symptom sitting in one invoice. The how, building the records and the agents that keep them current, is worked through inside the Academy, with members, because the Trade Business Intelligence is powered by every member who joins it.
Looking for a business coach who starts from your numbers? Concreter Business Coach or every answer for concreters.
