NFF Contract Template Labour Hire

Transcription

1 NFF Contract Template Labour Hire Initial: Page 1 of 2

2 This template is for use with contractors who want to supply workers to your business. It is a standard form contract that you can use to help protect both your business from risk of non-compliance and overseas workers from exploitation. For more information, please refer to the NFF s Sustainable Employment Initiative, which includes these simple easy to use downloads: Sustainable Agricultural Employment Guiding Principles & Checklist Sustainable Labour Contracting Guiding Principles & Checklist This template contract is not intended to be used as a substitute for legal advice. You should seek legal advice to ensure that any contracts entered into are appropriate to the business to which they apply. National Farmers Federation 2016 Initial: Page 2 of 2

3 TEMPLATE CONTRACT TO SUPPLY LABOUR For use with contractors who will supply labour to your business DATED: 20 BETWEEN: AND 1. INTRODUCTION [INSERT BUSINESS NAME] ABN [INSERT ABN] of [INSERT ADDRESS], NEW SOUTH WALES, [POSTCODE], AUSTRALIA (the Business); [INSERT BUSINESS NAME] ABN [INSERT ABN] of [INSERT ADDRESS], NEW SOUTH WALES, [POSTCODE], AUSTRALIA (the Contractor) The Business is a business engaged in food and/or fibre production in Australia The Business wants to engage a contractor to perform the work described in Item 1 of Schedule One (the Contract Services) The Contractor conducts an independent labour supply service and is willing to perform the Contract Services on a non-exclusive basis The Contractor agrees to perform the Contract Services in accordance with this Agreement. 2. THE ENGAGEMENT 2.1. The Contractor will provide sufficient labour to perform the Contract Services during the period specified in Item 2 of Schedule One (the Contract Period) The Contractor is an independent contractor and no relationship of employment is to be implied The Contractor represents to the Business that it will provide the Contract Services to the standard reasonably required by the Business The Contract Services must be completed by the end of the Contract Period and time is of the essence under this Agreement This Agreement operates from the date specified in Item 5 of Schedule One (Commencement Date) and terminates at the end of the Contract Period unless terminated earlier in accordance with its terms. 3. PAYMENT FOR CONTRACT SERVICES 3.1. Unless otherwise expressly stated, the Business will pay the Contractor the sum (the Fee) set out in Item 3 in Schedule One within 14 days of receipt of: a valid tax invoice for the supply of the Contract Services; a completed Contractor Declaration Form (see Schedule Two) The Fee includes any applicable Goods and Services Tax (GST) If the Business does not pay the Fee when it becomes due for any reason, the Contractor may cease providing the Contract Services until all outstanding sums have been paid without breaching this Agreement The method of payment is set out in Item 4 of Schedule One. Initial: Page 1 of 10

4 4. CONTRACTOR OBLIGATIONS 4.1. The Contractor will serve the Business faithfully and well and use its best endeavours to promote the interests and goodwill of the Business at all times The Contractor must perform the Contract Services through a registered business with a valid Australian Business Number The Contractor must commit all necessary equipment and resources, financial or otherwise, and meet all necessary expenses associated with its obligations under this Agreement. The Business will not be liable to contribute to the maintenance, repair, insurance or any other outgoings associated with the provision of equipment and resources by the Contractor The Contractor must comply with all applicable legal obligations in relation to the employment and/or supply of labour under this Agreement, including under the Fair Work Act 2009 and associated regulations, work, health and safety (WHS) law and migration law. This includes ensuring that all persons engaged to perform the Contract Services have a legal right to work in Australia The Contractor is solely responsible for all direct and indirect employment costs incurred by the Contractor in connection with the Contract Services, whether under contract, legislation, modern award, enterprise agreement or otherwise. Such costs include (but are not limited to) employee entitlements, taxation, worker s compensation insurance, superannuation and administrative costs The Contractor will ensure that any accommodation provided or procured for persons engaged to perform the Contract Services is and remains clean, safe and fit for purpose during the Contract Period The Contractor must only deduct amounts from payments due to individuals in connection with this Agreement if the deductions are authorised by the individual concerned and are reasonable in the circumstances. Any charges for transport, accommodation or other benefits must be in accordance with the applicable modern award or enterprise agreement or otherwise at fair market rates The Contractor acknowledges responsibility for all liability under worker s compensation legislation in relation to persons engaged to perform the Contract Services under this Agreement The Contractor will ensure that all persons engaged to perform the Contract Services are provided with the following information before commencing work in connection with this Agreement: the name of a representative of the Contractor who can be contacted to assist with employment, WHS and/or visa concerns during the Contract Period; a Fair Work Information Statement; a Tax File Number declaration form; a Choice of Superannuation form; a letter of offer / contract of employment and piecework agreement if applicable; copies of, or ready access to, any policies applicable to work at locations where the Contract Services are to be performed; and where to access further information about workplace rights and entitlements including the Fair Work Ombudsman s website and the Fair Work Infoline Initial: Page 2 of 10

5 4.10 The Contractor must provide any information reasonably required by the Business for the purpose of demonstrating compliance with this Agreement. To the extent permissible by law, this includes making employee records available for inspection by the Business on 14 days written notice The Contractor must inform the Business as soon as practicable of any: enforcement action or legal proceedings taken against the Contractor, including but not limited to penalty infringement notices, compliance notices, statements of claim, writs, enforceable undertakings or proactive compliance deeds; court orders affecting the Contractor; and any remedial action that the Contractor is required to take, has taken or proposes to take as a result of any enforcement action, legal proceeding or court order; arising from any alleged or actual non-compliance with employment, WHS or migration laws during the Contract Period or in the 12 months prior to the Commencement Date The Contractor must actively and cooperatively participate in all compliance activities associated with its obligations under employment, WHS and/or migration law, including but not limited to participating in investigations of workplace complaints and audits undertaken by the Business, the Fair Work Ombudsman or other regulatory agencies The Contractor must notify the Business in the event of any material change to the information provided in connection with this Agreement or the Contract Services, including but not limited to information about compliance with its legal obligations and contract management practices The Contractor must not receive any sum in payment of any account due for the supply of goods or services on behalf of the Business. Any such payment will be given directly and immediately to the Business. 5. CONTRACTOR WARRANTIES 5.1. The Contractor agrees and warrants that the Fee is sufficient to cover all of the Contractors costs associated with the employment of labour in connection with the Contract Services (as envisaged by clause 4.3) as and when those costs become due and payable The Contractor warrants that all information provided to the Business during or in connection with the Contract Services is accurate, current and complete at the time at which it is provided, including but not limited to information about its workplace policies and practices and compliance with its obligations under this Agreement The Contractor warrants that it will comply with all industrial awards, enterprise agreements, applicable standards laws and regulations as well as government agency requirements in connection with the provision of Contract Services The Contractor warrants that it has obtained and will maintain all necessary licences, permits, consents and authorisations required to perform the Contract Services. During the Contract Period, the Contractor will ensure that all persons engaged to perform the Contract Services have obtained and will maintain all necessary licences, permits, consents and authorisations required to perform the Contract Services. 6. NON-SOLICITATION The Contractor will not, either during the Contract Period or for a period of 6 months after the termination of this Agreement, solicit, canvass or entice away any employee of the Business for any reason without the express prior agreement of the Business. Initial: Page 3 of 10

6 7. WORKPLACE HEALTH AND SAFETY 7.1. The Contractor must ensure that safe and proper procedures and practices are adopted in the provision of the Contract Services and that all workers are properly trained and supervised and observe all proper and safe practices. This includes a WHS induction upon commencement of work and ongoing WHS safety training and hazard identification as required The Contractor must work cooperatively with the Business in managing WHS risks at any workplace where the Contract Services are performed The Contractor is responsible for the provision of personal protective equipment unless otherwise expressly agreed in writing between the Contractor and the Business The Business and the Contractor agree to consult, cooperate and coordinate with each other to ensure that the Contract Services are performed in a workplace where WHS risks are eliminated or minimised as far as is reasonably practicable. 8. INSURANCE 8.1 The Contractor must at all times have current worker s compensation insurance covering all workers involved in the performance of Contract Services. 8.2 The Contractor must at all times have current public liability insurance with a minimum insured value of $20,000, The Contractor must provide Certificates of Currency to the Business in relation to each insurance held in connection with this Agreement before commencement of the Contract Services and thereafter at any time upon seven (7) days notice. 9. CAPACITY TO WORK 9.1. All persons engaged to perform the Contract Services in connection with this Agreement will be ready, willing and able to undertake the work required and will have the requisite level of skill, knowledge and competence All persons engaged to perform the Contract Services in connection with this Agreement will be free of influence from drugs and/or alcohol at all times during working hours. If prescription drugs are necessary and may affect a person s capacity to work under this Agreement, that person must immediately notify the Business prior to commencing work so that necessary safety measures can be put in place The Contractor must ensure that all persons engaged to perform the Contract Services have a legal right to work in Australia and comply with any applicable visa conditions The Contractor must immediately remove, or cause to be removed, any person who does not have a legal right to work in Australia from any involvement in the Contract Services The Contractor must notify the Business in each case where a person is removed from involvement in the Contract Services on the grounds that the person has no legal right to work in Australia The Contractor must provide evidence that it has taken all reasonable steps to ensure that it has complied, and is complying with, its obligations under this clause within 14 days of the Business s request For the avoidance of doubt, compliance with the Contractor s obligations under this clause does not give rise to an entitlement to claim any delay or otherwise excuse the Contractor from compliance with its obligations under this Contract. 10. TERMINATION 10.1 Breach by Contractor Initial: Page 4 of 10

7 If the Contractor breaches any of its contractual obligations under this Agreement and fails to remedy the breach within three (3) days of notification of the breach by the Business, the Business may terminate this Agreement by written notice to the Contractor. Upon termination of the Agreement for breach, the Business: is only obliged to pay the Contractor for the Contract Services actually provided, less any losses or costs incurred by the Business or as are reasonably estimated by the Business to have the remaining Contract Services completed; and may recover from the Contractor any loss or damage sustained as a consequence of the breach Breach by the Business If the Business breaches any of its contractual obligations under this Agreement and fails to remedy that breach within three (3) days of notification of the breach by the Business, the Contractor may terminate this Agreement by written notice to the Business. Upon termination of the Agreement, the Contractor has no obligation to perform any part of the Contract Services not already performed. The Contractor shall be entitled to claim as a debt owing any amount due to the Contractor, notwithstanding the termination of the Agreement Termination without cause Subject to the expiry of the Contract Period, either party may terminate this Agreement at any time without cause by giving to the other party thirty (30) days prior written notice. On the expiry of that period (the Termination Date) this Agreement will be at an end. The Contractor must be paid by the Business up to and including the Termination Date General The termination of this Agreement does not release the Contractor from any obligations imposed under this Agreement where the context implies that those obligations will continue notwithstanding termination. 11. ETHICAL EMPLOYMENT 11.1 The Contractor must ensure that persons engaged to perform the Contract Services are free to leave their engagement at any time on the giving of notice in accordance with the applicable law or contract The Contractor must not engage in any conduct which would have the effect of charging a fee to find or secure work for individuals in connection with this Agreement The Contractor must not require any person to lodge any deposit or identity papers with the Contractor in connection with this Agreement. 12. SUBCONTRACTING The Contractor may not use sub-contractors to provide any of the Contract Services unless expressly authorised in writing by the Business and in that case, only in accordance with any conditions imposed by the Business on such an arrangement The Contractor must ensure that all subcontracts impose obligations on sub-contractors equivalent to the Contractor obligations under clause 4 of this Agreement The Contractor must ensure that any subcontracting arrangements authorised in connection with this Agreement are genuine contracting arrangements and are not in contravention of the sham contracting provisions of the Fair Work Act Initial: Page 5 of 10

8 13. PRIVACY 13.1 The Contractor acknowledges that the Business may collect personal information about the Contractor, its officers, employees, contractors and assigns in the course of, and/or in connection with, this Agreement The Contractor must have a privacy policy that complies with the Australian Privacy Principles and deals with the collection, use and disclosure of personal information The Contractor must take all reasonable steps to ensure access by the Business to employee records under the Privacy Act 1988 (Cth) for the purpose of assessing compliance with this Agreement The Contractor acknowledges and agrees that the Business may access, preserve and disclose any information provided to the Business in connection with this Agreement if required to do so by law or in a good faith belief that the disclosure is reasonably necessary in its opinion. 14. CONFIDENTIALITY 14.1 The parties undertake to keep all confidential information acquired in connection with this Agreement strictly private and confidential. Neither party will disclose any confidential information to any person without the other s prior written consent. Any information so acquired must only be used for the proper purposes of performing the Contract Services and complying with the terms of this Agreement. Nothing in this clause prevents the Business from fully using and enjoying the Contract Services The Contractor will not, at any time either during or after the termination of this Agreement, reveal to any person any secret or confidential information, confidential operations, processes or dealings, or any other information, whether computerised or manual, concerning the Business, its business, its services, finances, transactions, or affairs of the Business or its clients except as required by law or for the purpose of performing its obligations under this Agreement. 15. INDEMNITY The Contractor indemnifies the Business in respect of any losses, damages, claims and expenses that may be suffered or incurred by the Business arising out of or in connection with: 15.1 the failure by the Contractor to perform any of its obligations in accordance with the terms of this Agreement; 15.2 any breach by the Contractor or its personnel of any provision of this Agreement; 15.3 any breach of warranty or negligence or other claim with respect to the Contract Services; 15.4 any loss of, damage to, or loss of use of any property caused by the act, omission or negligence of the Contractor or its personnel; 15.5 any negligent act or omission or wilful misconduct of the Contractor or its personnel in connection with this Agreement; or 15.6 any infringement by the Contractor or its personnel of any intellectual property right of the Business or any third party; except to the extent that the loss is directly attributable to the negligence or wrongful act or omission of the Business or its personnel 16. DISPUTE RESOLUTION PROCEDURE In the event of a dispute arising between the parties under or arising from this Agreement, the Initial: Page 6 of 10

9 following procedure will apply: 16.1 the parties will seek to resolve their differences directly by negotiation; 16.2 if the dispute cannot be resolved, the dispute will be referred to mediation, where the costs of mediation will be shared equally between the parties; 16.3 If the dispute is unable to be resolved by mediation, the parties may agree to refer the matter to private arbitration; 16.4 No legal proceedings will be instituted by either party against the other unless and until this procedure has been followed; 16.5 This clause does not prevent either party from seeking to commence legal proceedings once attempts to resolve the dispute in accordance with this Agreement have been exhausted. 17. WRITTEN NOTICES Unless expressly stated otherwise in this agreement, all notices, certificates, consents, approvals, waivers and other communications in connection with this agreement must be in writing, signed and either left at the address, sent by prepaid ordinary post or given in any other way permitted by law. They take effect from the time they are received unless a later time is specified. 18. WHOLE AGREEMENT This Agreement represents the whole agreement between the Business and the Contractor. All representations, understandings or prior agreements concerning the Contract Services are acknowledged as having been waived and of no force or effect whatsoever. SIGNATORIES SIGNED BY [INSERT BUSINESS NAME] ABN [INSERT ABN] in the presence of: Signature of witness:. Print Name:. SIGNED BY [INSERT BUSINESS NAME] Pty Ltd ABN [INSERT ABN] in the presence of: Signature of witness:. Print Name:. Director: Print name: Director/Secretary: Print name: Director: Print name: Director/Secretary: Print name: Initial: Page 7 of 10

10 SCHEDULE ONE Item Description Detail 1 Contract Services Insert description of services to be provided by the Contractor 2 Contract Period Either: Or: From / / to / / From the Commencement Date until all crops are harvested Or: From the Commencement Date until [describe the point when the task will be complete] Or: From the Commencement Date until terminated in accordance with this Agreement 3 Fee Describe the agreed fees, inclusive of GST 4 Payment terms Describe the agreed payment terms (e.g. 14 days after receipt of a valid tax invoice; on completion of specified milestones, etc) 5 Commencement date <Insert the date on which this Agreement will commence operating> This may be before the beginning of the Contract Period. Initial: Page 8 of 10

11 SCHEDULE TWO CONTRACTOR DECLARATION FORM To accompany tax invoices issued seeking payment for Contract Services Contractor Business Name:.. Period from / / to / / Worker entitlements All employees performing the Contract Services during the period above have a legal right to work in Australia All employees performing the Contract Services during the period above have received: Fair Work Information Statement Contact name and telephone number for queries about their employment, safety and/or visas Contract of employment; Written piecework agreement if applicable; Copies of any policies applicable to work at locations where the Contract Services have been performed; and Information about how to access further information including the Fair Work Ombudsman s website and the Fair Work Infoline All employees have been given their employment entitlements: under the National Employment Standards (leave entitlements, notice of termination, redundancy pay etc) under the modern award or enterprise agreement (wages, loadings, penalties, allowances etc) Date employee entitlements were last paid: Date employee entitlements are paid up to: Pay slips were provided to all employees within one working day of payment Pay slips include all information required by the Fair Work Act 2009 and regulations Any deductions from wages made during the period above were authorised by the individual concerned and are reasonable in the circumstances Regulatory compliance Employee records: are kept for at least seven (7) years; are legible, in English, and readily accessible for inspection; contain details required by the Fair Work Act 2009 and regulations The business is in a position to pay its debts as and when they fall due, including all employee entitlements and superannuation contributions Information about employee entitlements, including modern awards and the Fair Work Ombudsman s pay tools and award-specific pay guides to calculate minimum pay rates under relevant awards can be found on the Fair Work Ombudsman s website Initial: Page 9 of 10

12 Name: Position: Date: Initial: Page 10 of 10