Terms and Conditions: Marketplace Services and On-Hire Casual Employment
A. Introduction and Scope
A.1 These Terms and Conditions (“Terms”) govern your access to and use of the services and platform provided by Work Samurai Pty Ltd (ABN 92 154 210 800) (“Work Samurai”, “we”, “us”, or “our”). The platform, accessible via our mobile application, facilitates connections between independent service providers (“Samurais”) and individuals or entities seeking to obtain services (“Customers”) – collectively referred to as “Users”.
A.2 Work Samurai operates in two distinct modes, offering different types of services to cater for diverse user needs:
A.2.1 Marketplace Services: For Users seeking independent gig-based work, Work Samurai acts as a platform to connect Samurais and Customers. In this mode, Work Samurai is not a party to any agreement made between the Samurai and the Customer. Instead, Work Samurai facilitates these connections and any contractual relationship with respect to a task or gig is solely between the Samurai and the Customer. Work Samurai is not responsible for and disclaims all liability related to any and all tasks and services provided by Samurais in this mode.
A.2.2 Employment Services: For business entities requiring on-hire casual employment services, Work Samurai acts as an employment agency. In this mode, the Samurais are employees of Work Samurai and are hired out to work for these business entities. The specific terms and conditions of this mode of operation are also covered in this document, as mandated by the Fair Work Act 2009 (Cth), the National Employment Standards (NES), and relevant Australian Awards and Enterprise Agreements (“Employment Regulations”). In this mode, Work Samurai assumes all employment liabilities and responsibilities for the Samurais.
A.3 By accessing or using our platform and services, you confirm that you have read, understood, and agree to be bound by these Terms and Conditions and any updates posted on our platform or otherwise communicated to you. If you do not agree with these Terms, do not access or use the Work Samurai platform or services.
This Agreement is set out in the following manner.
Clause No. Subject Matter
2. Registration and Samurai Accounts
3. Obligations of Samurais
4. Terms of Employment
5. Work Health and Safety
6. Intellectual Property Rights
7. Payment Terms
8. Dispute Resolution and Mediation
10. Limitations and Disclaimers
12. Updates to the Terms
13. Contact Information
Act refers to Means the Fair Work Act 2009, as applicable.
Agreement refers to these Terms and Conditions and any other written agreements, annexures, schedules or amendments that may be incorporated by reference.
Work Samurai refers to Work Samurai Pty Ltd, the company that operates the platform and services covered by these Terms.
Platform refers to the online platform operated by Work Samurai, accessible through our mobile application or any other means we provide.
Services refers to the services provided by Work Samurai via the Platform, including Marketplace Services and Employment Services.
Users collectively refers to Samurais and Customers who register for an account and use our Platform and Services.
Samurais or Samurai refers to independent service providers who offer and provide services to Customers through the Platform.
Customers refers to individuals or entities who seek to obtain services from Samurais via the Platform.
Marketplace Services refers to the mode of operation in which Work Samurai acts as a platform to connect Samurais and Customers for independent gig-based work.
Employment Services refers to the mode of operation in which Work Samurai acts as an employment agency for on-hire casual employment services, hiring out Samurais to work for business entities.
Task Contract refers to the agreement between a Samurai and a Customer for the completion of a specific task or gig. This contract is facilitated through the Platform but is directly between the Users involved.
Content refers to all information, data, text, design, graphics, pictures, video, software, and other files, and their selection and arrangement, that a User posts, uploads, publishes, submits or transmits to be made available through the Platform.
Assignment/s refers to the project or the services to be performed for a customer of the Work Samurai as identified in a SAC.
NES refers to National Employment Standards
NMW refers to National Minimum Wage (for the purposes of the Fair Work Act’s transitional provisions and only if required by law, the NMW may also mean the pay scales under the Australian Pay and Classification Scales) that applies to the employee’s position.
Workplace Law refers toan award, modern award (and any individual flexibility agreement made under a modern award), registered industrial instrument, registered workplace agreement, enterprise agreement (and any individual flexibility arrangement made under an enterprise agreement), rule, order or legislative requirement which, but for this Agreement, would govern your employment.
Regulations refer to the Fair Work Act 2009 (C’th) Regulations, as applicable.
SAC refers to Summary of Assignment Conditions
You/your refers to the Samurai
2. REGISTRATION AND SAMURAI ACCOUNTS
2.1 Registration: To use the Services provided by Work Samurai, you must register for an account (“Samurai Account”) on the Platform. During the registration process, you will be required to provide certain information (such as identification or contact details) as part of our user verification process. You agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete.
2.2 Account Creation: In creating a Samurai Account, you must not use false identities or impersonate any other person or use a username or password that you are not authorized to use. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your Samurai Account, whether or not you have authorized such activities or actions.
2.3 Account Usage: Your Samurai Account gives you access to the Services and functionality that we may establish and maintain from time to time, at our discretion. Your use of the Platform and Services must comply with all applicable laws and regulations and with these Terms.
2.4 Minimum Age: The Platform and Services are not available to individuals under the age of 18. If you are under 18 years of age, you may not register for a Samurai Account or use the Platform and Services.
2.5 Suspension and Termination: We may, at our discretion, with or without prior notice, suspend, limit, or terminate your Samurai Account and access to our Services if you breach these Terms, at our discretion.
2.6 ABN: For Marketplace Services, Samurais must have a valid Australian Business Number (ABN) and be authorized to work in Australia.
2.7 Right to Refuse: Work Samurai reserves the right to accept or reject a request for account registration for any reason.
2.8 Work Rights: For Employment Services, Samurais must have valid work rights in Australia, and upon Work Samurai’s request, must provide proof of such rights.
3. OBLIGATIONS OF SAMURAIS
3.1 Comply with Laws and Regulations: As a Samurai, you must comply with all applicable laws and regulations in Australia. This includes, but is not limited to, relevant regulations relating to work health and safety, tax obligations, and Australian Consumer Law. For Samurais engaged in tasks involving dangerous goods like fireworks, you must comply with the relevant state or territory laws regarding the handling, transportation, and use of fireworks.
3.2 Skills and Expertise: By accepting a Task Contract, you represent and warrant that you have the necessary skills, qualifications, licences, and permits to perform the task to a professional standard. If the task involves specialist skills or certifications (e.g., electricians, plumbers, or pyrotechnicians), you must hold and maintain all necessary trade licences, registrations, or certifications required by law to perform the tasks.
3.3 Respectful Conduct: You must conduct yourself in a professional, courteous, and respectful manner when interacting with Customers and other Users. Harassment, offensive behaviour, or any form of discrimination will not be tolerated.
3.4 Accurate Representation: Your profile, offerings, and any other information you provide on the Platform must be truthful, accurate, and not misleading. You must only undertake work that you are competent to perform and in areas where you have sufficient expertise.
3.5 Insurance: It’s your responsibility to maintain appropriate insurance coverage for the marketplace tasks you perform. For certain tasks, you may be required to provide proof of adequate insurance coverage.
3.6 Communication: You must promptly respond to communication from Customers and from Work Samurai, and keep them updated about any changes or issues related to tasks you’ve undertaken.
3.7 Confidentiality: Any sensitive or private information that a Customer shares with you must be kept confidential, unless the Customer gives explicit permission for its disclosure, or if its disclosure is required by law.
3.8 Feedback: After the completion of a task, you are encouraged to leave honest, fair, and respectful feedback about your experience with the Customer.
3.9 Compliance with Platform Rules: You must comply with any rules, guidelines, or policies provided or made available by Work Samurai regarding the use of the Platform and Services.
Violation of these obligations may lead to sanctions, including temporary or permanent suspension from the Platform. These obligations are not exhaustive, and additional obligations may be detailed elsewhere in these Terms or in separate agreements related to specific tasks or services.
4. TERMS OF EMPLOYMENT
4.1 Employment Status: When providing Employment Services, the Samurai is engaged as an on-hire casual employee of Work Samurai, and not as an independent contractor. Work Samurai retains the right to manage and control how the services are performed, and the Samurai must comply with all reasonable instructions and directions given by Work Samurai.
4.2 Working Hours: The working hours for each Assignment will be determined by the requirements of the task and specified in the SAC. The Samurai must be available to work the hours as required by the Assignment.
4.3 Wages: The Samurai will be paid an hourly rate or piece rate, as specified in the SAC for each Assignment. This rate will be at least equal to the NMW or the minimum rate prescribed by any relevant Modern Award or Enterprise Agreement. This provision does not apply to Marketplace Services where the Samurai operates as an independent contractor and compensation is determined on a case-by-case basis by the agreement between the Samurai and the Customer.
4.4 Superannuation: Work Samurai will make superannuation contributions on behalf of the Samurai, in accordance with the Superannuation Guarantee (Administration) Act 1992. This provision does not apply to Marketplace Services where the Samurai operates as an independent contractor.
4.5 Leave Entitlements: As an on-hire casual employee, the Samurai is not entitled to paid annual leave, paid personal/carer’s leave, or paid compassionate leave. However, they are entitled to a casual loading to compensate for this, which is included in their hourly rate of pay.
4.6 Termination of Employment: Either Work Samurai or the Samurai may terminate the employment relationship by providing one hour’s notice. In certain circumstances, such as serious misconduct, Work Samurai may terminate the employment without notice.
For purposes of this Agreement, serious misconduct includes but is not limited to:
a) Willful or deliberate behavior by a Samurai that is inconsistent with the continuation of employment, including:
(ii) Fraud (including falsifying time records);
(iv) Attendance at the workplace under the effects of prohibited drugs or alcohol;
(v) Refusal to carry out Work Samurai’s lawful and reasonable instruction; or
(vi) Non-compliance with the policies and procedures of Work Samurai or Customer of Work Samurai.
b) Conduct that causes imminent and serious risk to:
(i) The health or safety of a person, including the Samurai; or
(ii) The reputation, viability or profitability of Work Samurai’s business.
This provision applies exclusively to Employment Services.
4.7 Abandonment of Employment: Samurais who are absent from work for a period of three shifts without the consent of Work Samurai and without notification to Work Samurai will be deemed to have terminated their employment through abandonment. This provision applies exclusively to Employment Services.
4.8 Rights under the NES: The Samurai has the right to request flexible working arrangements and to take unpaid leave in certain circumstances, as provided by the NES.
4.9 Other Employment: The Samurai is free to engage in other employment or independent contracting work, provided that it does not conflict or interfere with their obligations to Work Samurai.
These terms of employment are subject to change and may be superseded or amended by any relevant laws, regulations, Modern Awards, or Enterprise Agreements. The specific terms and conditions of each Assignment will be detailed in the SAC.
5. WORK HEALTH AND SAFETY
5.1 Safety Obligations: Samurais are responsible for maintaining a safe and healthy working environment at all times, in accordance with the Work Health and Safety Act 2011 (Cth) and any other applicable legislation or regulations.
5.2 Personal Protective Equipment (PPE): Samurais must ensure they have and correctly use all necessary Personal Protective Equipment for each Assignment. This includes equipment provided by the Customer or by Work Samurai.
5.3 Hazard Reporting: Samurais must immediately report any potential hazards, accidents or incidents that occur during an Assignment to Work Samurai. They should also report any conditions or practices that they consider unsafe.
5.4 Risk Assessments: Prior to commencing any Assignment, Samurais are required to conduct a risk assessment and ensure that all necessary safety precautions are in place.
5.5 Training: Samurais are required to complete any mandatory health and safety training provided by Work Samurai or required by law.
5.6 Refusal to Work: Samurais have the right to refuse to perform work or leave a work site if they reasonably believe there is an immediate and serious risk to their health or safety.
This provision applies to both Employment Services and Marketplace Services. For Marketplace Services, the Samurai and the Customer are jointly responsible for adhering to all applicable health and safety regulations.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Ownership of Intellectual Property: All intellectual property rights, including but not limited to patents, trademarks, designs, copyrights, and trade secrets in or related to any work created, developed, or delivered by a Samurai during the course of an Assignment (“Work Product”) shall belong to the Customer or the Work Samurai, as the case may be.
6.2 Transfer of Rights: The Samurai agrees that all Work Product created during an Assignment, if not already vested, shall be the sole property of the Customer or the Work Samurai, as the case may be, and the Samurai hereby assigns, transfers and conveys to the Customer or the Work Samurai all right, title, and interest in and to such Work Product.
6.3 Moral Rights: The Samurai also consents, and waives all rights, to the Customer or the Work Samurai, as the case may be, doing anything that, but for this consent, would infringe the Samurai’s moral rights in the Work Product.
6.4 Confidentiality: The Samurai agrees to keep confidential all non-public information and material received from Work Samurai and/or the Customer during the course of an Assignment, both during and after the term of the Assignment, unless disclosure is required by law or consented to in writing by Work Samurai and/or the Customer.
6.5 These provisions apply to both Employment Services and Marketplace Services. In the case of Marketplace Services, the Samurai and the Customer may agree otherwise in their Task Contract, but such agreement must be explicitly stated in writing.
This section is subject to the conditions and limitations in Australian law, including the Copyright Act 1968 (Cth) and the Patents Act 1990 (Cth).
7. PAYMENT TERMS
7.1 Marketplace Services Payment:
7.1.1 For tasks facilitated through the Marketplace Services, the Samurai agrees that payment for completed tasks will be made through the Work Samurai platform. The Samurai agrees to accept as full payment for a task the amount reflected in the platform.
7.1.2 Payments are typically released to the Samurai within 7 working days after the task has been marked as complete by the Customer. However, payment may be delayed or withheld by Work Samurai in case of a dispute between the Samurai and the Customer.
7.1.3 Samurais are solely responsible for all costs and expenses incurred in relation to the Marketplace Services they provide, unless expressly specified otherwise in the Task Contract.
7.2 Employment Services Payment:
7.2.1 For tasks performed under the Employment Services mode, the Samurai will be paid an hourly rate or piece rate, as specified in the Summary of Assignment Conditions (SAC) for each Assignment. This rate will be at least equal to the National Minimum Wage (NMW) or the minimum rate prescribed by any relevant Modern Award or Enterprise Agreement. Hourly rate of pay shall be inclusive of 25% casual loading which covers; annual / holiday & personal / carer’s leave, bereavement leave and redundancy pay which is for lack of notice should employment cease. You are also covered for worker’s compensation.
7.2.2 Payment will be made on a weekly basis, via bank transfer into the Samurai’s nominated bank account.
7.2.3 Work Samurai will make superannuation contributions on behalf of the Samurai in accordance with the Superannuation Guarantee (Administration) Act 1992, for tasks performed under Employment Services. The Samurai acknowledges that such contributions will not be made for tasks performed under the Marketplace Services mode.
7.2.4 Deductions for tax purposes will be made in accordance with applicable laws and regulations.
7.3 It is the responsibility of the Samurai to ensure that their bank details are correctly provided to Work Samurai for payment purposes. Work Samurai will not be liable for any payments made to incorrect bank accounts as a result of incorrect information provided by the Samurai.
7.4 Work Samurai reserves the right to modify the Payment Terms at any time and will provide notice of such changes to the Samurai. Continued use of the platform and Services after such notice constitutes acceptance of the modified Payment Terms.
8. DISPUTE RESOLUTION AND MEDIATION
8.1 Marketplace Services Dispute:
8.1.1 In case of any dispute arising between a Samurai and a Customer under a Task Contract facilitated through the Marketplace Services, the Users involved should attempt to resolve the dispute amicably through direct communication.
8.1.2 If the dispute cannot be resolved through direct communication, either party may escalate the dispute to Work Samurai for mediation. Work Samurai will attempt to facilitate resolution but is under no obligation to resolve such disputes.
8.1.3 Work Samurai’s decision regarding any dispute will be final and binding on the Users involved. Any decision made by Work Samurai is not to be considered as setting a precedent for future disputes.
8.2 Employment Services Dispute:
8.2.1 In case of any dispute arising between Work Samurai and a Samurai under the Employment Services mode, the parties will attempt to resolve the dispute amicably through direct communication.
8.2.2 If the dispute cannot be resolved through direct communication, either party may refer the dispute to a mutually agreed upon third-party mediator.
8.2.3 If the parties fail to reach a resolution through mediation, either party may seek resolution through the appropriate legal avenues.
8.3 Notwithstanding the above, nothing in these Terms shall prevent either party from seeking immediate judicial intervention if such intervention is necessary to protect their rights and interests.
9.1 Marketplace Services Termination:
9.1.1 The Samurai may terminate their use of the Marketplace Services at any time by deactivating their account through the Platform.
9.1.2 Work Samurai reserves the right to suspend or terminate the Samurai’s access to the Marketplace Services at any time if:
a) The Samurai breaches any terms of these Terms or the Task Contract;
b) Work Samurai is unable to verify or authenticate any information provided by the Samurai;
c) Work Samurai believes that the Samurai’s actions may cause legal liability for Work Samurai, other Users, or the Samurai themselves.
9.1.3 Upon termination for any reason, the Samurai must complete any outstanding Tasks they have agreed to perform unless the Customer agrees otherwise.
9.2 Employment Services Termination:
9.2.1 The employment relationship under the Employment Services mode can be terminated by either Work Samurai or the Samurai in accordance with the Fair Work Act 2009 and as specified in the SAC for each Assignment.
9.2.2 Work Samurai may terminate the employment relationship without notice where the Samurai is guilty of serious misconduct, as defined in Section 4.7 of these Terms.
9.2.3 Samurais who are absent from work for a period of three consecutive shifts without the consent of Work Samurai and without proper notification shall be deemed to have terminated their employment by abandonment.
9.2.4 Upon termination for any reason, the Samurai will be paid for all work performed up to the date of termination, including accrued leave entitlements, less any deductions permitted by law.
10. LIMITATIONS AND DISCLAIMERS
10.1 While we strive to provide a high-quality, secure and reliable platform, Work Samurai makes no guarantee as to the continuous availability of the Platform or any specific feature(s) of the Platform. The Platform and all content and services provided by Work Samurai are provided “as is” and “as available” without warranties of any kind, either expressed or implied.
10.2 To the maximum extent permitted by law, Work Samurai disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Work Samurai makes no warranty that the Platform will meet your requirements or be available on an uninterrupted, secure, or error-free basis.
10.3 Nothing in this agreement is intended to exclude, restrict or modify rights which you may have under any law (including the Australian Consumer Law) which may not be excluded, restricted or modified by agreement (Your Consumer Rights). Your Consumer Rights include statutory guarantees that any services supplied to you will be provided in a timely manner and with reasonable care and skill, and will be fit for any notified purpose.
11.1 Work Samurai respects the privacy of its Users and undertakes to protect it in all respects. Any information collected by Work Samurai, such as email addresses, and any other personal information is kept in strict confidence and will not be sold, reused, rented, disclosed, or loaned.
11.4 Work Samurai uses third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Platform. These entities may process or store personal data on behalf of Work Samurai.
12. UPDATES TO THE TERMS
12.1 Work Samurai reserves the right, in its sole discretion, to modify or replace these Terms at any time. If a revision is material, we will make reasonable efforts to provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.
12.2 When we change the Terms in a material manner, we will update the ‘last modified’ date at the bottom of this page. We encourage you to review these Terms periodically for any changes. Your continued use of the Platform following the posting of any changes to these Terms constitutes your acceptance of those changes.
12.3 If you do not agree to the revised Terms, you should discontinue your use of the Platform and Services. Your continued access and use of the Platform and Services following the notice of changes to the Terms constitutes your acknowledgment of such changes and agreement to be bound by the terms of such changes. If a change to these Terms materially modifies your rights or obligations, you may be required to accept the modified Terms in order to continue to use the Platform and Services.
12.4 If a change to these Terms materially modifies your rights or obligations, we may require your express consent to such changes. If you do not agree to the modified terms, you must stop using the Service. Your continued use of the Service after the effective date of the modified terms constitutes your acceptance of such modifications.
12.5 If you have any questions about these Terms, please contact us.
13. CONTACT INFORMATION
13.1 If you have any questions, concerns, or comments about these Terms or your experiences with the Platform or Services, you are invited to contact us and we will do our best to address and resolve any issues you may have.
13.2 You can reach out to us via email at email@example.com or by post at:
Work Samurai Pty Ltd
Level 17, 31 Queen Street
13.3 Please allow up to 48 hours for us to respond to your communication. We appreciate your patience and assure you that every inquiry is important to us.
13.4 Please note that communications made to discuss the nature of the services provided by the Samurais, or to make a complaint or report related to these services, will not be considered a part of these Terms.
13.5 Our customer service hours are Monday to Friday, from 9:00 AM to 5:00 PM (Australian Eastern Standard Time). We are closed on weekends and public holidays.
Last updated on: 31st July 2023