Virtual Assistant Agreement (Independent Contractor)

A Virtual Assistant Agreement is a contract between a virtual assistant and their client. Using this agreement, the client can hire the virtual assistant as an independent contractor.

There are important legal differences between independent contractors and employees (see the "Contractor v Employee" section below). If the parties intend for the virtual assistant to be an employee rather than a contractor, then they should consider using our Remote Work Agreement.

In the age of the internet, many businesses and individuals are choosing to use online assistant services, instead of spending the money and resources on an in-office or physically present assistant. Virtual assistants can assist with almost everything an in-person assistant can. In fact, many virtual assistants now have freelance businesses entirely online.

In this Virtual Assistant Agreement, the parties agree to the terms of the relationship between them, including what work the virtual assistant will actually be doing for the client. Additional information, such as required hours and payment terms can also be included.

In an agreement like this, standard contractual clauses are also included, such as choice of law and venue.

For contractors that are going to be providing services other than as a Virtual Assistant, consider using our Service Agreement or our Freelance Agreement.

Contractor v Employee

People or businesses using this document may need to consider the differences between a contractor and an employee. These differences are discussed in detail in our legal guide What's the Difference Between an Employee and an Independent Contractor?

This Virtual Assistant Agreement enables a virtual assistant to be hired as a contractor. This is different from an employment contract, which would enable the virtual assistant to be hired as an employee.

The difference between an employee and a contractor is based on many factors, and no single factor is determinative. Simply using this Virtual Assistant Agreement is not enough to convert an employee into a contractor. Instead, the courts will look at the entire arrangement, and decide whether the virtual assistant is working within the business, as part of the business (like an employee) or whether the contractor is running their own business (like a contractor). Some common considerations include:

• whether the worker can subcontract/delegate the work
• whether the worker provides their own tools and equipment
• whether the worker is paid for the time worked, or based on a quote for the result achieved (eg a quote for the painting of a room)
• the amount of control that the worker has - whether the worker can choose their own hours or location of work, and what sort of control the business has over how the work is performed
• who is responsible for mistakes in the work - whether the worker has to rectify mistakes at the worker's own cost, or whether the business is responsible for any mistakes in the work

It is against the law for a business to incorrectly treat a worker as a contractor when they should be treated as an employee. In doing this, the business will be neglecting its various obligations such as payment of superannuation and employee entitlements. There can be significant penalties associated with this.

Further information is available through the Australian Taxation Office, the Fair Work Ombudsman or business.gov.au. Please also see the "Applicable Law" section below, and consider getting legal advice if further information is required.

If the virtual assistant is going to be hired as an employee rather than as a contractor, then the parties should consider using our Remote Work Agreement.

Amendments to the Competition and Consumer Act 2010 (Cth) - 13 September 2019

Starting on 13 September 2019, some amendments to the Competition and Consumer Act 2010 (Cth) ("CCA") may impact many intellectual property arrangements in Australia. In particular, the CCA prohibits some conduct which is considered "anti competitive" or "cartel conduct". This could impact the parties if they are dealing with intellectual property under this Virtual Assistant Agreement - for example, if the virtual assistant is going to do things such as designing a logo or developing some software.

If the parties have any concerns at all about whether or not they are going to be affected by these laws, they should strongly consider obtaining legal advice.

By way of general explanation, prior to 13 September 2019, section 51(3) of the CCA provided an exemption for some matters involving licensing or assignment of intellectual property. This meant, for example, that conduct involving licensing or assignment of intellectual property, which might otherwise be considered "anti competitive", might have been permitted.

However, starting on 13 September 2019, with the repeal of section 51(3), those matters involving licensing or assignment of intellectual property may no longer be permitted.

The legislation places significant obligations on the parties, and its implications may be quite broad. There is also potential for this legislation to affect some conditions which may be common in many traditional intellectual property arrangements.

The penalties for breach of these laws are also very high.

Therefore, if the parties have any concerns at all about whether or not they are going to be affected by these laws, they should strongly consider obtaining legal advice.

This agreement is only designed for use among parties which are not engaging in anti competitive or cartel conduct.

Further information about the changes is available on the website of the Australian Competition and Consumer Commission.

How to Use This Document

This Virtual Assistant Agreement can be set up to deal with either an ongoing arrangement for provision of services, or a one off project.

In either case, the more details that can be provided regarding the various details of the arrangement, the more likely it is that disputes will be prevented. Some important details to be considered include:

- description of the work to be performed
- how it will be determined that the work is complete
- when payment will be released
- how the agreement may be terminated
- what parties should do in the case of disagreement

Virtual Assistants should provide a new Virtual Assistant Agreement every time they undertake a new project, although a "project" may be ongoing indefinitely, (eg on call maintenance work). A separate Virtual Assistant Agreement will also need to be provided to every different client.

The Virtual Assistant Agreement will be legally binding when it has been signed by both the virtual assistant and the client, and has been dated. Both the virtual assistant and the client should keep a signed copy of the Virtual Assistant Agreement. In order to do this, two different copies can be signed, or one copy can be photocopied and then distributed between the parties.

Applicable Law

The Fair Work Act 2009 deals with the question of whether a worker is a contractor or an employee. Further information is also available via the website of the Fair Work Ombudsman.

The Independent Contractors Act 2006 deals with independent contractors. It deals with issues such as unfair contract terms.

If virtual assistants are providing services directly to the public, then the Australian Consumer Law may also be relevant.

In some industries, additional legislation may apply. For example, virtual assistants who work in the building industry may need to consider industry specific legislation that addresses such issues as licensing and staging payments. Likewise, contractors who work for a franchise may need to consider specific franchising legislation.

In addition, general principles of contract law, as provided by the common law, will also apply.

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