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