Independent Contractor contract?

[dylanharbour]

Hey Guys and Gals

My little business venture is expanding and we need assistance with the work load. We've found a great person who is willing to work 15 hours a week with us for a fair price.

This would be a 6 month contract, at a fixed price. No renewal, no benefits, just 6 months of work and pay.

2 Questions:

1. Can I hire her as an independent contractor for 6 months, and not be liable for the typical employment issues (tax, BCEA, CCMA etc) and would this be a wise way to go?

2. Where can I find a decent contract to enter into with her? The one's I've found so far are for contracting out the Contractor to other companies which is not what I need. I'd prefer to find a generic one and not pay a lawyer to draw one up (although I have no idea how much a lawyer would charge?)

 

[noxibox]

You can as long as you understand what an independent contractor is. They promise to deliver some service by a certain time for a certain price. That's the extent of your hold over them. They can work when and where they want. If they decide to outsource the work to a peasant in China for 10% of their fee they can.

 

[dylanharbour]

You can as long as you understand what an independent contractor is. They promise to deliver some service by a certain time for a certain price. That's the extent of your hold over them. They can work when and where they want. If they decide to outsource the work to a peasant in China for 10% of their fee they can.

Thanks for the response. If there are clauses protecting you from them just sub contracting the work out (I saw those in some of the samples I found online), and if you write in a clause that they need to work on site for x many hours per week would it still be ok? Or am I venturing into the realm of the employment contract rather than an independent contracting contract?

 

[ToxicBunny]

Is she hot?

 

[dylanharbour]

Is she hot?

I'm looking for an employment contract, not a marriage contract.

 

[ToxicBunny]

Yussie.. that should be number 1 priority if you're hiring a female....

 

[IzZzy]

2 Questions:

1. Can I hire her as an independent contractor for 6 months, and not be liable for the typical employment issues (tax, BCEA, CCMA etc) and would this be a wise way to go?

Would VAT not come into play then?

2. Where can I find a decent contract to enter into with her? The one's I've found so far are for contracting out the Contractor to other companies which is not what I need. I'd prefer to find a generic one and not pay a lawyer to draw one up (although I have no idea how much a lawyer would charge?)

Decent =/ free.

 

[dylanharbour]

Would VAT not come into play then?



Decent =/ free.

1. No, small change boys. Small change. I'm pretty sure VAT wont come in.

2. True. Cheap will do, it doesnt have to be free. I just dont have the the big bucks. And by now I figured there should be some pretty decent ones out under a general public licence. Where are all the Open Source Lawyers

 

[noxibox]

Thanks for the response. If there are clauses protecting you from them just sub contracting the work out (I saw those in some of the samples I found online), and if you write in a clause that they need to work on site for x many hours per week would it still be ok? Or am I venturing into the realm of the employment contract rather than an independent contracting contract?

If you mandate them working on site that violates one of the tests for independence. The only time you can require working in a specific location is when there it is necessary in order to do the job. For example a builder can't build that extra room you need in his backyard. But I can't tell my accountant he must come do his work at my dining room table. Dictating how, when or where a contractor performs the serivce can similarly violate those independence tests. I can't tell my accountant what pen he may use or that he cannot pass some menial work onto a junior person. I can't tell the builder that he can't use workers to help him or that he must use my supplied tools. I also can't directly manage these people - I give them general instructions and they do it as they see fit. I can only dictate deliverables and quality.

I've had a look at one supposedly independent contractor allegedly South Africa applicable contract online and honestly any company that uses it would be setting themselves up for trouble, because the provisions in fact make the contractor a fixed term employee. The real danger is that you employ someone as what you think is an independent contractor and they're not because of the nature of the relationship. Just because the contract says they're independent doesn't mean they cannot bring a complaint for termination claiming they were in fact an employee. If the court finds they are an employee you would then have also broken the law in regard to mandatory deductions like UIF, in addition to having to pay penalties to the employee.

Why not save yourself the trouble and just go for a fixed term employment contract? You can specify a time period as well as a deliverable as terminating conditions. It's a much more clear cut situation and fairly safe as long as you comply with the required termination procedures, comply with leave requirements and don't get into a situation of endlessly renewing the contract (which will very likely turn the person into a permanent employee as far as the law is concerned).

If you want a proper contract for an independent contractor I wouldn't trust anything you happen across online. Go to an experienced lawyer and get a proper legally enforceable contract. Most companies are fairly clueless when it comes to contractors, so I wouldn't trust anything I find on web sites (unless they're verifiably experienced in labour law and drafting independent contractor contracts).

 

[dylanharbour]

If you mandate them working on site that violates one of the tests for independence. The only time you can require working in a specific location is when there it is necessary in order to do the job. For example a builder can't build that extra room you need in his backyard. But I can't tell my accountant he must come do his work at my dining room table. Dictating how, when or where a contractor performs the serivce can similarly violate those independence tests. I can't tell my accountant what pen he may use or that he cannot pass some menial work onto a junior person. I can't tell the builder that he can't use workers to help him or that he must use my supplied tools. I also can't directly manage these people - I give them general instructions and they do it as they see fit. I can only dictate deliverables and quality.

I've had a look at one supposedly independent contractor allegedly South Africa applicable contract online and honestly any company that uses it would be setting themselves up for trouble, because the provisions in fact make the contractor a fixed term employee. The real danger is that you employ someone as what you think is an independent contractor and they're not because of the nature of the relationship. Just because the contract says they're independent doesn't mean they cannot bring a complaint for termination claiming they were in fact an employee. If the court finds they are an employee you would then have also broken the law in regard to mandatory deductions like UIF, in addition to having to pay penalties to the employee.

Why not save yourself the trouble and just go for a fixed term employment contract? You can specify a time period as well as a deliverable as terminating conditions. It's a much more clear cut situation and fairly safe as long as you comply with the required termination procedures, comply with leave requirements and don't get into a situation of endlessly renewing the contract (which will very likely turn the person into a permanent employee as far as the law is concerned).

If you want a proper contract for an independent contractor I wouldn't trust anything you happen across online. Go to an experienced lawyer and get a proper legally enforceable contract. Most companies are fairly clueless when it comes to contractors, so I wouldn't trust anything I find on web sites (unless they're verifiably experienced in labour law and drafting independent contractor contracts).

Great. Its not the answer I wanted, but it makes sense. I'll probably do as you suggest and go the fixed term route.