ESM2340 - Agency and temporary workers: overarching contracts of employment - the contract

In most cases when reviewing a written contract it will be relatively straightforward to identify those provisions within the contract which are relevant to control being exercised and to the other provisions which are consistent with there being a contract of employment.

It may however be more difficult to identify those provisions in the contract which relate to mutual obligations in the gaps between assignments and which are essential for the contract to be an overarching contract of employment.

Each contract will need to be reviewed on the basis of its own particular facts. Whether particular terms of a contract are sufficient to create continuing mutual obligations between assignments, will be a question of fact and degree in each case.

A definitive list cannot be provided as to what would suffice in relation to mutual obligations in the gaps between assignments. Some examples of provisions which may be present in a contract to support continuing obligations on the part of both the employer and the worker are:

• an obligation by the worker to accept and do work and an obligation on the employer to pay a retainer during such periods when work was not offered;
• the guarantee by the employer of a minimum number of hours work over a 12 month period would likely provide an obligation on the part of the employer (see ESM2350);
• a promise by the worker to work exclusively for the employer during the duration of the contract i.e. the worker can not work for anyone else, would be an obligation on the part of the worker;
• the requirement for the worker to work when required by the employer would be an obligation on the part of the worker;
• the requirement for the worker to accept any assignments given would be an obligation on the part of the worker;
• the requirement for the worker to work at any location as directed would be an obligation on the part of the worker.

This is not an exhaustive list and other scenarios or examples may be presented in support of the view that there is continuing mutual obligations in the gaps between assignments.

Some contracts may include provisions where obligations in the gaps between assignments are either only on the part of the worker or only on the part of the employer. One sided obligations are not sufficient. There must be subsisting mutual obligations present in the gaps between assignments on the part of both the worker and the employer.