Independent Contractor Agreement [Australia]

Australian Capital Territory
New South Wales
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Powerful Protection when engaging Contractors in Australia

Our Independent Contractor Agreement is a powerful tool that protects you when engaging staff as contractors in Australia.

As an alternative to an Employment Contract, this Independent Contractor Agreement enables you to engage staff through more flexible arrangements.

Our fully customisable legal document allows for the selection of multiple options, including details regarding the scope of services, fees, invoicing and payment structures.

This legal document usually favours the recipient of the services and some of its significant features include:

1️⃣ The ability to incorporate provisions such as confidentiality, IP, insurance, and more;

2️⃣ The ability to include a detailed description of the services with optional phases and out-of-scope work;

3️⃣ Highly customisable and detailed fee options including fixed rates and hourly rates;

4️⃣ Invoicing and payment options, including periodic or non-periodic payments;

5️⃣ Non-solicitation and non-compete obligations and termination provisions.

Employee or Independent Contractor?

➲ The High Court's Radical Change to the Rules [Current Law]

Introducing Certainty into the Categorisation of Employment Status

As a result of two recent High Court of Australia decisions it is now much easier to engage workers as independent contractors by using a well drafted written contract even if:

⚓️ Under the longstanding old rules for determining employment status they would have been clearly categorised as employees; and

⚓️ Have no business of their own.

Traditionally the substance of the working arrangement took precedence over the agreed contractual terms such that the substance or reality of the working arrangement could override the contractual arrangements.

From now on, the majority of the High Court have effectively flipped the old rules on their head, at least where there is a written contract.

The written contract is now the governor of employment status, not the substance of the working arrangement.

This is regardless of whether the worker has their own business or was in a weaker bargaining position at the time the contract was executed.

Consequently, what may have previously been held to an employee working arrangement is likely to be upheld as a valid independent contractor agreement.

Importantly, this radical change provides certainty around this previously grey area of worker contracting where an employer had to be conservative out of necessity as they could have been found at anytime to have been retrospectively engaging workers as employees, with potentially devastating financial consequences ensuing if the reclassification was applied retrospectively across their entire workforce.

Further reading: Australian Employment Law Bulletin [2023] ➲ 7 Cherry-Picked Changes (Some Radical)

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General FAQ

Employee or Contractor: Are we breaking the law?

We recommend you download + study in detail our Free PDF Explainer Guide

Employee or Contractor: Are you Breaking the Law?

To help you determine whether or not the arrangements need to be made via an:

 Employment Contract; or an

➲ Independent Contractor Agreement.

What is a Force Majeure clause?

What is a Force Majeure clause?

A force majeure clause is a method of allocating the risk of a disruptive event. It is a broad catch-all provision whereby the parties list categories or specific instances of otherwise frustrating events, together with the party or parties to bear the risk of the event occurring.

The clause can also grant options to vary, suspend or terminate the contract to one or more of the parties. [1]

Force majeure clauses form part of a contract’s express terms, subject to the conventional methods of construction.

Absent a force majeure clause, it is unlikely a contract’s commercial purpose would suggest that such a provision is so apparent that it goes without saying [2], meaning a court is likely to refuse to imply it.

Further Reading:

For a more detailed discussion please refer to our blog article “Force Majeure Clauses & Frustration: Why the COVID-19 Pandemic is a Wake-Up Call" by Shakvaan Wijetunga | Virtual Intern at Blue Ocean Law Group℠.

Footnotes:

[1] Eg., Yara Nipro P/L v Interfert Australia P/L [2010] QCA 128, [26].

[2] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

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Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.