VIC Contractor or Employee in a B2B Contract?

[Dawn Burdett]

We have a B2B contract with an IT service provider which states something along the lines of;
"you may not approach XXXXX employees to work directly for you".

We have had a person on site for 6 months as part of this contract with XXXXX. This person is working as a contractor for a 3rd party - BBBBB. Then BBBBB contracts him to XXXXX.

The person is not an employee or owner of BBBBB. BBBBB pay his superannuation and fees, etc.

We want to employ this person but XXXXX say he is an employee of XXXXX and want to charge us a fee.

Our view is that he contracts to BBBBB so is not an employee of XXXXX.

Where do we stand on this?

 

[DennisD]

Have you checked for any contract definition which may help to clarify the status of the worker?

Contracts of this sort often but not always define 'employee' or 'personnel' in a section with the heading 'defined terms' or 'definitions' which are commonly toward the front or end of the document

 

[Dawn Burdett]

Hi. No there is nothing of that ilk.

 

[DennisD]

You mention that the contract - ''... states something along the lines of; 'you may not approach XXXXX employees to work directly for you"'

The 'something along the lines' bit can be important. If there are surrounding words (as sometimes there are) which flesh out the concept of employee (such as for example ''persons otherwise engaged by XXXXX to perform the services under the contract''), that might help to resolve the ambiguity

 

[Dawn Burdett]

YYYY is prohibited from making any direct approaches to XXXX employees for direct or indirect employment with YYYY.