Updated Template

July 2019

This month, the Simply-Docs casual worker contract has been updated with additional clauses reinforcing the flexibility of the agreement and referencing the individual’s status as a worker rather than an employee.

Employers use zero hours and casual contracts to retain the maximum amount of flexibility and to remain competitive. In this context, most employers prefer to engage casual staff as workers rather than employees in order to retain maximum flexibility and to avoid the possibility that they will be entitled to the additional rights available to employees, such as the right to claim unfair dismissal on termination of employment’. Provided that the employer engages individuals on an ad hoc basis to help out during staff shortages or at busy times of the year and the employer accepts that they may or may not be available when the company needs them, they are unlikely to be employees.

In the Simply-Docs casual worker contract, there is no obligation on the employer to offer work to the individual and, crucially, no obligation on the individual to accept work that is offered. The contract sets out the arrangements between the parties for when work is carried out by the individual worker, but makes it clear that there is no guarantee of work and that the individual is free to accept or turn down offers of work made by the employer. The intention here is that mutuality of obligation, one of the key factors in creating an employment relationship, does not arise.

Employers should be aware that, even when a contract is drafted with the express intention that it does not create an employment relationship, these contractual terms may be overridden if they do not properly reflect the reality of the nature of the relationship between the employer and worker. Additionally, it should be noted that, whatever the contract might say, a casual worker who has worked for the same employer for 12 consecutive weeks will automatically have identical rights to those of a permanent employee.

The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.

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