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NSW Is Document Legally Binding Under Employment Law?

Discussion in 'Employment Law Forum' started by Michael Kachyckyj, 12 August 2016.

  1. Michael Kachyckyj

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    Hi.

    I was wondering if this document was legally binding under Employment Law, and if not what I could do to make it legally binding.


    "This agreement (the "Agreement") is entered into by ___________________ ("Contributor"),
    and __________________________ ("Creep-Score").

    In consideration of the mutual covenants made herein, the parties agree as follows:

    Parties.

    Contributor is engaged in the business of writing articles and other materials on a freelance basis. Creep-Score is engaged in the business of publishing articles and other materials.


    Relationship.

    The parties expressly agree and acknowledge that the relationship created by this Agreement is one of Independent Contractor. Creep-Score is not the employer of Contributor, and Contributor is not, and will not be treated as, an employee of Creep-Score for tax purposes, or any other purposes


    Contract Period.

    This agreement will begin on the date set forth below and shall continue
    until terminated as provided by either party. If either party violates a term of this
    Agreement, then the other party (the "Non-breaching Party") may terminate this Agreement,
    effective immediately upon delivery of written notice of termination by the Non-breaching
    Party. Notwithstanding the foregoing, either party may terminate this Agreement at any
    time for any or no reason, effective upon thirty (30) days written notice.

    Services to be Provided by Contributor.

    Contributor agrees to submit, on his or her sole initiative, written articles and other materials to Creep-Score. The manner and method of producing these Articles and other materials is to adhere to Creep-Score’s Review Scale, Review Structure (INSERT RELEVANT DOCUMENTS HERE). Contributor will submit Articles and other materials in accordance with the schedule of copy deadlines being used by the Creep-Score.



    Representations and Warranties of Writer.

    By submitting Articles and other materials to Creep-Score, Contributor represents and warrants that the Article and other materials become the Intellectual Property of Creep-Score once they are published on any official Creep-Score media such as but not limited too the Creep-Score Website or YouTube channel, that the Articles and other materials are accurate, that the Articles and other Materials have not been obtained by unlawful means, that the Article and/or review has not been previously published in any manner or medium, specifically including, but not limited to, print or electronic means, and that publication of the article by Newspaper will not violate any copyright or other intellectual property right of any third party, that the Articles and other materials have not been written with influences taken from any other means of publication except that of the contributor.

    Assignment and Ownership of Intellectual Property.

    Writer hereby understands and agrees that all Articles submitted to, and published by, Creep-Score under this Agreement shall be considered the intellectual property of Creep-Score and. Writer hereby assigns to Newspaper all rights to publish the Articles and other materials in any tangible medium of expression, now known or later developed, from which it can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device, without limitation the rights to archive, republish, edit, repackage or revise any Article in any manner as Newspaper sees fit. The rights conferred upon Creep-Score by this agreement shall be exclusive to Newspaper for a period of 7 years after the first date Creep-Score initially publishes the Article.
     
  2. Matthew Lynch

    Matthew Lynch Lawyer

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    One thing that is odd about the contract is that it doesn't appear to provide for payment or what the Contributor gets in exchange for providing articles. I would recommend that be placed into the contract or it might fail for lack of consideration.

    Secondly, if you are mainly concerned about the contributor not being classified as an employee under the Fair Work Act and accordingly entitlements for tax, superannuation and workers compensation applying then you need to ensure that your relationship has the elements of an independent contractor relationship, such as the Contributor only working for you when he/she agrees to and being able to work for other entities.

    If it looks like an employee and quacks like an employee (and you quack like an employer) then the Fair Work Commission will likely find that it is an employee relationship rather than an independent contractor relationship, regardless of what your agreement states. It is more important that the conduct is that of an independent contractor relationship.

    Let me know if you would like me to adjust the contract and give you some help to ensure you make the relationship clear.
     
  3. Michael Kachyckyj

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    Hi Matthew.

    Any assistance you could provide would be awesome.
     
  4. Matthew Lynch

    Matthew Lynch Lawyer

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