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Paragraph 24(2A)(g) (g) when the veteran stopped undertaking his or her last paid work, the veteran: (i) if he or she was then working as an employee of another person-had been working for that person, or for that person and any predecessor or predecessors of that person; or (ii) if he or she was the working on his or her own account in any profession, trade, employment, vocation or calling-had been so working in that profession, trade, vocation or calling; for a continuous period of at least 10 years that began before the veteran turned 65; ...
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Paragraph (2A)(g) applies a 10 year rule to the veteran's last paid work. The veteran must have been working, in his or her last paid work, for the same employer (or the predecessor of that employer) both before and after he or she turned 65 years. The veteran must have been in that employment for a continuous period of at least 10 years.
If the veteran was not an employee, then he or she must have been working, in his or her last paid work, in the same field of work both before and after he or she turned 65 years, and have been doing so for at least 10 years.
The question as to whether a veteran was an employee or working on his or her own account is to be determined on the basis of the common law definition of employee. The main High Court authority is the decision in
Stevens & Gray v. Bodribb Sawmilling Co Pty Ltd where the Court examined the nature of the control which an employer would exercise or could exercise over the worker and said that this was not the sole consideration. Other factors were to be considered. These included:(a) whether it is the employer or the worker who provides the equipment or machinery - if it is the latter it tends to suggest the person is an independent contractor (ie, working on his or her own account);
(b) who determines working hours - if the workers determine their own working hours this would suggest an independent contractor relationship;
(c) the nature of payment - is the payment made by time or according to results? If payment is the latter it is more likely to be an independent contractor relationship. If payment is made according to a set number of hours worked per week, this is an indication that the worker is normally an employee;
(d) the extent to which actual work is guaranteed;
(e) the extent to which the workers can freely exercise their own skill and judgement in carrying out the work - the greater the freedom the more likely the worker is an independent contractor;
(f) the deduction of PAYE tax instalments from any payments made to the worker, suggesting the worker is an employee;
(g) whether the worker can delegate further the work to another person - if there is the power to delegate, this suggests the person is an independent contractor.
In
Re Courtney v. Repatriation Commission, the Administrative Appeals Tribunal held that:"... the 'continuous period of 10 years that began before a veteran turned 65 years' must be continuous 'when the veteran stopped undertaking his ... last paid work'. That is, the period of paid work, which must have been continuous - that is, uninterrupted - must have been for at least 10 years at the time a veteran last worked."