LINDORES PERSONNEL – STANDARD TERMS AND CONDITIONS
T&C 609 Revision 4 Date 16/05/2023
- Background – In these standard terms and conditions (Standard Terms):
(a) ‘us’, ‘we’, ‘our’ or ‘Lindores Personnel’ means Lindores Personnel No.1 Pty Ltd ACN 140 837 976; Lindores Personnel No.2 Pty Ltd ACN 140 837 903; Lindores Personnel No.3 Pty Ltd ACN 609 727 611; and Lindores Personnel No.4 Pty Ltd ACN 631 844 767;
(b) ‘you’ or ‘your’ means the counterparty to Lindores Personnel that is subject to these Standard Terms in accordance with clause 2;
(c) ‘Employees’ means all employees of Lindores Personnel either assigned or on hire to you or engaged by you under these Standard Terms (except under clause 18);
(d) ‘Personnel’ means:
(i) in respect of us, our officers, employees, consultants, contractors, agents, advisers, representatives and, for the avoidance of doubt, includes the Employees; and
(ii) in respect of you, means your officers, employees, consultants, contractors, agents, advisers and representatives, that are not Employees; and
(e) unless otherwise expressly defined, any capitalised term in these Standard Terms refers to the corresponding term in the document (Schedule of Rates) which sets out the Hourly Charge Rates, Allowances and Conditions of Hire. - Acceptance of Standard Terms – You will be deemed to have accepted these Standard Terms and be bound by them immediately upon the earlier of:
(a) you or your authorised representative signing the Schedule of Rates or these Standard Terms;
(b) you notifying us that you accept these Standard Terms;
(c) one or more of our Personnel becoming assigned to you; or
(d) you interviewing or engaging one of our Personnel for the purposes of being assigned to you - Term – These Standard Terms will commence on the date these Standard Terms are accepted under clause 2 and will continue with effect until they are terminated in accordance with these Standard Terms.
- Allowances and Special Rates – Subject to clause 5, Allowances and other Special Rates which are not stated in the Schedule of Rates are not included in the Hourly Charge Rates and will be calculated in accordance with the relevant modern award (Award) or enterprise bargaining agreement (EBA). Such amounts will be shown separately and invoiced to you at cost plus margin.
- Entitlements included in the Placement Fee – Despite clause 4, superannuation, redundancy payments, annual leave and leave loading, sick leave, carer’s leave, parental leave, public holiday adjustments, workers compensation, commissions, public liability and other insurances, payroll tax and basic personal protective equipment are included in the Hourly Charge Rates.
- Meal and Crib Allowance – If we pay the Employees a Meal Allowance and/or Crib Allowance, such amounts will be charged to you at cost plus margin in accordance with the Schedule of Rates.
- Travel and Tool Allowance – If we pay the Employees a Travel Allowance or a Tool Allowance, such amounts will be charged to you at cost plus margin in accordance with the Schedule of Rates.
- Inclement Weather – In the event of Inclement Weather, a minimum of eight (8) hours will be charged to you. If an Employee is required to perform work in Inclement Weather, all such work will be charged to you at Double Time.
- Other Allowances – any other Allowances provided by us to the Employees will be charged to you at cost plus margin in accordance with the Schedule of Rates.
- Cessation of Hire – You must provide us and the relevant Employee with a minimum of eight (8) hours’ notice if that Employee is no longer required to work for any period for which they have been notified under clause 14.
- Emergency Call-Ins – If you require an Employee to work and sufficient notice has not been provided under clause 14, you will be charged as follows:
(a) a minimum of eight (8) hours for the period the Employee commences work until their rostered finishing time; and
(b) for any work done thereafter, at the employee’s overtime rate as specified in the relevant Award or EBA. - Amenities – You must provide the Employees with reasonable amenities during their working hours, including adequate bathroom facilities.
- Health & Safety of Lindores Personnel Employees
13.1 General
You agree:
(a) to provide us with full and accurate information about the job requirements relevant to each of the Employees that are hired to you (Assignment Description);
(b) not to allocate tasks or responsibilities to the Employees or require the Employees to perform or participate in work, other than in accordance with the relevant Assignment Description, unless you obtain our express prior consent;
(c) not to request the Employees to perform or participate in any work or use any equipment with which the Employees, or their agents, are unfamiliar or in respect of which they are unqualified or have not received adequate training or whereby the work or equipment has not received a safety certification as required by clause 13.4;
(d) not to on-hire or resupply the Employees to any other body corporate, entity, organisation or person;
(e) to comply with your obligations to the Employees in accordance with any applicable laws, regulations and codes of practice, including legislation regarding workplace or occupational health and safety, discrimination and harassment;
(f) to maintain a safe work environment and safe systems of work;
(g) to establish safe work practices;
(h) to communicate safe work procedures to each of the Employees;
(i) to comply with all applicable safety standards.
13.2 Supervision and Training
You agree:
(a) to supervise through relevantly competent and experienced persons, instruct and direct the Employees and your own Personnel properly at all times; and
(b) to provide induction, training and safety consumables to the Employees where appropriate.
13.3 Dispute as to services
(a) You must give written notice to us of any performance issues in relation to an Employee or any dispute or any other claim relating to the services provided by the Employees (Dispute) within 14 days after the performance issue arises or the services in dispute are performed.
(b) We will be given reasonable opportunity to review the performance of the Employee or provision of the services (as applicable) where notice of the Dispute is validly given under clause 13.3(a).
(c) The failure to give notice of the dispute in accordance with clause 13.3(a) will be conclusive evidence that the Employee’s performance and the performed services are in all respects
satisfactory, comply with the agreement between us and you, and are accepted by you (Accepted Services).
(d) You will have no genuine dispute or right to a set-off, withholding, counterclaim or deduction in relation to Accepted Services.
13.4 Plant & Equipment
You agree to maintain plant and equipment and in particular:
(a) regularly and at least on a monthly basis, have a qualified person assess that the plant to be used by the Employees is safe and meets legal requirements;
(b) if the plant is safe, have the qualified person provide a written certification that he or she has inspected the plant and it is safe and meets legal requirements and provide us with a copy of that certification upon request;
(c) if the plant is not safe, immediately instruct the Employees not to use that plant and notify us of the plant that is found to be unsafe.
13.5 Miscellaneous – You agree:
You agree:
(a) to promptly inform both us and the Employees of any unusual workplace risk or practice or of any change in site or safety conditions that may present a hazard to the Employees;
(b) to comply with our reasonable requests to ensure the workplace health and safety of the Employees and to promptly rectify any deficiency in the provision of a safe work environment or safe systems of work, that in our reasonable opinion would pose a threat to the safety of one of the Employees or to any other person who may attend a place at which work is or may be performed by one of the Employees under the assignment;
(c) to identify and rectify any gaps between your Safe Work Method Statements (SWMS) and our SWMS by providing the appropriate induction and training to the Employees in the areas to which the gap relates and promptly notify us of the same;
(d) to notify us immediately of any event that may give rise to a claim under any insurance policy, statutory indemnity or self insurance arrangement that relates to the Employees whether such policy, indemnity or arrangement be held or established by you or by us;
(e) to promptly forward to us a written notification of any workplace incident that may give rise to a claim by, against or involving one or more of the Employees;
(f) to abide by all applicable laws, regulations, directions and orders that cast upon you any obligation to do, or refrain from doing, any thing, or to make or pay any payment, deduction, premium, levy, allowance, compensation, damages, interest or costs in respect of or in connection with the engagement of the Employees under these conditions of assignment or any work done by them whilst on assignment to you;
(g) that if one of the Employees suffers an injury that is compensable under any law relating to workers compensation or occupational health and safety you will assist with the rehabilitation of the Employee by way of providing the Employee, through us, with suitable work (including light duties) once the Employee is able to return to work. In the event that such work is provided, and is of a lesser value, classification or remuneration than the work principally contracted for under the assignment, we will discount the Hourly Charge Rate;
(h) that the Employees may lawfully refuse an instruction to perform any duty for which the Employee was not engaged and where we have not consented under clause 13.1(b) or where the instruction is not permitted under clause 13.1(c). - Notice of work – You must provide each Employee and us with at least one (1) weeks’ notice outlining the days and hours on which the Employee will be required to work. The notice must specify if they are required to work at a location or site that is not their ordinary location or site for work.
- Timesheets
(a) You will submit a timesheet to us for each Employee for each pay period, which must contain the following particulars:
(i) the name of the Employee;
(ii) the Classification of the Employee;
(iii) the days and number of hours for each given day the Employee worked during the pay period;
(iv) the Hourly Charge Rate applicable to each hour the Employee worked during the pay period; and
(v) if any Conditions of Hire applied during the pay period, sufficient particulars of those Conditions of Hire.
(b) Your submission of the timesheet is a representation by you that you have complied with your obligations under these Standard Terms during the pay period to which the timesheet relates. - Invoicing
(a) Following you submitting a timesheet to us in accordance with clause 15, we will issue you an invoice setting out the total Hourly Charge Rates payable by you in respect of the relevant pay period (Invoice). You must pay each Invoice within 14 days from the date of issue unless we agree otherwise.
(b) If you give notice that you dispute an Invoice, you must still pay any and all amounts not in genuine dispute. - Interest on unpaid Invoices – Lindores Personnel reserves the right to charge interest on any amount that is not paid in accordance with clause 16. Interest on overdue Invoices shall accrue daily form the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Lindores Personnel’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement delivered in respect of the Invoice.
- Employing our employees
(a) Subject to the provisions of this clause 18, you are permitted to employ any Employee that is or has previously been assigned to you under these Standard Terms.
(b) You must obtain our written consent prior to exercising your right under clause 18(a).
(c) Prior to any Employee commencing their employment with you, you must pay us the greater of:
(i) $4,750 plus GST;
(ii) an amount equal to the following applicable percentage of the Employee’s gross annualised remuneration package (plus GST), which will be taken to include base salary and all other benefits or allowances which represent remuneration in other forms, such as superannuation and commissions (Gross Salary):
(A) Gross Salary up to and including $30,000 – 12% plus GST;
(B) Gross Salary from $30,001 up to and including $50,000 – 14% plus GST;
(C) Gross Salary from 50,001 up to and including $80,000 – 16% plus GST;
(D) Gross Salary from $80,001 up to and including $130,000 – 18% plus GST; or
(E) Gross Salary from $130,001 – 20% plus GST;
(iii) if the Employee’s Gross Salary is not calculable, an amount equal to the Employee’s most recent Hourly Charge Rate invoiced to you multiplied by 1,800. - Suitability of personnel – Whilst we will make every reasonable effort to ensure the suitability of our Personnel as Employees, we do not accept any responsibility or liability whatsoever for any loss, expense, damage or delay caused by or as a result of any act or omission of any Employee (whether in negligence, tort, breach of contract, breach of statute or otherwise). You will need to satisfy yourself as to each Employee’s integrity, qualifications, suitability and medical condition in respect of the relevant position to be held by the Employee. You are wholly responsible for determining whether one or more of our personnel will be assigned to you.
- Termination
(a) These Standard Terms may be terminated:
(i) without cause, by either party providing the other party with 30 days’ written notice;
(ii) immediately by the mutual agreement of the parties; or
(iii) immediately in accordance with clause 28(f).
(b) We may terminate these Standard Terms immediately if:
(i) one or more of the events in clause 21 occurs;
(ii) you fail to pay any amount owed to us under these Standard Terms when it falls due and payable;
(iii) you or your Personnel cause any harm, loss, personal injury or death to any of the Employees; or
(iv) you otherwise breach any clause of these Standard Terms.
(c) If these Standard Terms are terminated in accordance with clause 20:
(i) subject to clause 20(d), you must return to us all documents and materials (and any copies) containing any Personal Information of the Employees (including those previously assigned to you) and erase such Personal Information from your computer systems (to the greatest extent possible);
(ii) each party must return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;
(iii) each party must erase all the other party’s Confidential Information from its computer systems (to the greatest extent possible); and
(iv) any amounts owed by you to us will become immediately due and payable without demand, set-off, withholding, counterclaim or deduction.
(d) Your obligations under clause 20(c)(i) will not apply in respect of Personal Information relating to any Employee which you have employed under clause 18. - Monies immediately due and payable (default) – If you fail to pay any amounts owed to us by the applicable due date or otherwise breach any provision of these Standard Terms:
(a) the balance of any moneys owing by you to us will immediately become due and payable without demand, set-off, withholding, counterclaim or deduction;
(b) we may suspend any credit to you;
(c) we may withhold the delivery of services already ordered;
(d) you are liable for all costs which will be recoverable as a liquidated debt, including but not limited to:
(i) legal costs (on a solicitor/own client basis);
(ii) mercantile agents’ fees; and
(iii) any other costs and expenses incurred by us in exercising or attempting to exercise our rights under these Standard Terms. - Monies immediately due and payable (insolvency) – All moneys owing by you to us will be immediately due and payable to us if:
(a) any information supplied by you in an application for credit facilities is incorrect or misleading;
(b) there is a material adverse change in the financial position or credit worthiness of you or of any guarantor specified in an application for credit facilities (Guarantor);
(c) any judgement, execution or other process of any court is issued against or levied upon you or any Guarantor and that judgement, execution or other process is not dismissed, or withdrawn within seven days from the date of the judgement, or issue or levy of the execution or other process;
(d) you are insolvent as defined under section 95A of the Corporations Act 2001 (Cth) (Corporations Act) as disclosed in your accounts or otherwise, state that you are insolvent, are presumed to be insolvent under an applicable law or you otherwise are, or state that you are unable to pay all of your debts as and when they become due and payable;
(e) you fail to comply with a statutory demand under section 495F(1) of the Corporations Act;
(f) you are or you take any step that results or may result in you becoming a Chapter 5 body corporate or an insolvent under administration (as applicable), as defined in section 9 of the Corporations Act;
(g) any step is taken to enter into an arrangement or composition with one or more of your creditors, or an assignment for the benefit of one or more of your creditors;
(h) any step is taken to appoint or a controller, voluntary administrator, provisional liquidator, liquidator or trustee in bankruptcy is appointed to you or to any Guarantor;
(i) any application is made to the court for an order that you or any Guarantor be made bankrupt, deregistered or be wound up; or
(j) anything having a substantially similar effect to any of the events specified in clauses 22(a) to 22(i). - Releases and limitation of liability – To the maximum extent permitted by law, you agree:
(a) to waive and release us from any and all claims which you or any other person claiming through you now have, has or might have in the future in respect of our liability for any damage, loss or injury to or death of the Employees or any other person (whether in negligence, tort, breach of contract, breach of statute or otherwise), to the extent that our liability is not required by law to be covered by insurance or other suitable and permissible statutory indemnity or self insurance arrangement, or if not so required is not covered thereby;
(b) that neither us nor our Personnel will be liable whatsoever for any error made by or negligent, fraudulent or reckless act or omission of an Employee;
(c) arrangement or understanding between you and us (whether written or verbal in whole or in part) that casts upon us any obligation to hold you harmless or to indemnify you, or others claiming through you, in respect of any damage, loss or injury of whatsoever nature or kind caused or contributed to (including in negligence, tort, breach of contract, breach of statute or otherwise) by us or by the Employees is hereby expressly negatived to the effect that we are released from all of our obligations hereunder. - Indemnities – In addition to any other express indemnities contained in these Standard Terms, you indemnify and keep indemnified us, our related bodies corporate and our Personnel and hold each of them harmless from and against all claims and losses (whether direct, consequential or economic, including legal costs on an indemnity basis) incurred, suffered or expended in respect of:
(a) any breach of these Standard Terms by you;
(b) any and all third party claims, including claims made or brought by your Personnel;
(c) where the Employees are accessing any site or location in respect of performing their work under these Standard Terms:
(i) any loss of or damage to the real and personal property of you, your Personnel or any other third party; and
(ii) harm, personal injury, disease or death to Your Personnel or any other third party;
(d) a failure by you or your Personnel to sufficiently train or supervise the Employees in accordance with these Standard Terms
(e) a failure by you or your Personnel to maintain the plant and equipment in accordance with these Standard Terms. - Confidentiality
(a) Each party (Recipient) must keep secret and confidential and not disclose any information relating to another party or its business (which is or has been disclosed to the Recipient by the other party, its representatives or advisers), these Standard Terms or its terms (including the Schedule of Rates) (Confidential Information), except: (i) where the information is in the public domain as at the date of these Standard Terms are accepted (or subsequently becomes in the public domain other than by breach of any obligation of confidentiality binding on the Recipient); (ii) if the Recipient is required to disclose the information by applicable law or the rules of any recognised stock exchange or other document with statutory content requirements, provided that the Recipient has consulted with the provider of the information as to the form and content of the disclosure; (iii) where the disclosure is expressly permitted under these Standard Terms; (iv) where the disclosure is required for use in legal proceedings regarding these Standard Terms; or (v) if the party to whom the information relates has consented in writing before the disclosure. (b) The rights and obligations under this clause 23 continue after the termination of these Standard Terms. - Privacy
(a) The parties acknowledge that we may disclose to you our Personnel’s personal information (Personal Information), as that term is defined in the Privacy Act 1988 (Cth) (Privacy Act).
(b) In respect of our Personnel’s Personal Information, you must:
(i) comply with all of your obligations under the Privacy Act (if any) and any other applicable privacy law of any jurisdiction relating to our Personnel’s Personal Information;
(ii) ensure that the Personal Information is protected against any misuse, interference or loss or unauthorised access, use, modification or disclosure of Personal Information (Data Breach);
(iii) immediately notify us if you or your Personnel become aware of any actual or suspected Data Breach; and
(iv) promptly and fully cooperate with us to:
(A) assess any actual or suspected Data Breach;
(B) notify any affected persons or the appropriate regulatory authority of any Data Breach in the manner that we direct (if we reasonably determine that notification is required in the circumstances); and
(C) respond to and resolve any complaint in respect of your handling of Personal Information. - Relationship between the parties – the parties agree that:
(a) nothing in these Standard Terms constitutes or will be deemed to constitute a partnership, joint venture or relationship of principal and agent, trustee and beneficiary or employer and employee between the parties;
(b) no contractual relationship will exist between you and the Employees and the Employees will have no right or authority to bind, assume or create any obligations for on our behalf or make any representations or warranties for or on our behalf. - Force Majeure
(a) For the purposes of these Standard Terms, any event circumstance or cause not in a party’s reasonable control, including each of the following without limitation: (Force Majeure Event):
(i) acts of God, flood, drought, earthquake or other natural disaster;
(ii) epidemic, pandemic or public health emergency (including COVID-19), and any resulting governmental action including work stoppages, mandatory business, service or workplace closures, full or partial lockdown of affected areas, quarantines, border closures and travel restrictions, to the extent that there has been a material change in the impacts of the relevant event or circumstance on a party after the date of an Order;
(iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations;
(vi) nuclear, chemical or biological contamination, or sonic boom;
(v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(vi) collapse of buildings, fire, explosion or accident;
(vii) cybercrime, cyber incidents and data breaches;
(vii) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); or
(viii) interruption or failure of a utility service,
but does not include Inclement Weather.
(b) Neither party is in breach of these Standard Terms or is liable to the other party for any loss incurred by that party as a direct result of a party (Affected Party) failing or being prevented, hindered or delayed in the performance of its obligations (other than an obligation to pay money) under these Standard Terms where such prevention, hindrance or delay results from a Force Majeure Event.
(c) If a Force Majeure Event occurs, the Affected Party must take all reasonable steps to minimise the effect of the Force Majeure Event and must notify the other party (Non-affected Party) in writing as soon as practicable and that notice must state the particulars of the Force Majeure Event and the anticipated delay.
(d) On providing the notice in clause 28(b), the Affected Party will be entitled to a reasonable extension of time for performing its obligations under the Agreement, however, the Affected Party must continue to use all reasonable endeavours to perform those obligations.
(e) The performance of the affected obligations must be resumed as soon as practicable after such Force Majeure Event is removed or has ceased.
(f) If the delay due to the Force Majeure Event continues for 3 months, the Non-affected Party may terminate these Standard Terms immediately on providing written notice to the Affected Party. - Governing law and jurisdiction – These Standard Terms will be governed by the law in force in Queensland and you irrevocably submit to the exclusive jurisdiction of the Courts of Queensland.
- Application of monies – We are entitled to apply or appropriate any money received from or on behalf or you towards the satisfaction of any liability or obligation of you on any account including appropriating any payment or part of it between accounts and/or to a more recent liability instead of an older liability of you and/or applying any payment or part of it first in satisfaction of any liability or obligation of you not covered by these Standard Terms.
- Notices
(a) Any notice or Court document we may wish to give to you may be hand delivered, left at, mailed to or sent by facsimile or other electronic facility to any address, facsimile number or electronic address of you shown in the application for credit facilities or to any place of business, address for correspondence, registered office, facsimile number, electronic address or residence of you, known to us.
(b) A notice if:
(i) served by hand or left at the address for service will be deemed delivered at the time it is served or left (as applicable);
(ii) posted will be deemed served three days after posting; (iii) sent by facsimile transmission will be deemed served upon the completion of the transmission; or (iv) sent by email will be deemed delivered at the time and on the date that it is sent, unless the sender receives notification that the email did not reach the recipient’s server, in which case the email will not be deemed to have been delivered. - Severability – If any provision of these Standard Terms is unenforceable, the provision will be ineffective to the extent of the unenforceability, but will not invalidate the remainder of the Standard Terms, which will continue to have full force and effect.
- Subject to Change – any rates, fees and conditions contained in these Standard Terms (including the Hourly Charge Rates and Allowances) are subject to change in accordance with changes to the applicable laws, including Awards or EBAs, government regulations, conditions, directions or rulings or occupational health and safety legislation.
- GST
(a) Unless expressly stated otherwise, the consideration payable by you under or in connection with these Standard Terms does not include GST (as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act)).
(b) If GST is or becomes payable on a Taxable Supply (as defined in the GST Act) made under or in connection with these Standard Terms, the party providing consideration for that Taxable Supply must pay an additional amount equal to the GST payable on the Taxable Supply. The additional amount must be paid at the same time as the consideration for the Taxable Supply. - Amendment – No amendment or variation can be made to these Standard Terms unless such is agreed between the parties in writing and consented to by a director or senior manager of Lindores Personnel.
- Waiver – The failure of a party to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor of a waiver of the right of the party at a later time to enforce the provision.
- Entire Agreement – These Standard Terms represent the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings between the parties.
- Joint and several – An obligation of two or more persons under these Standard Terms binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of these Standard Terms will take effect for the benefit of those persons jointly and severally.
- Interpretation – In these Standard Terms:
(a) words in the singular include the plural and vice versa;
(b) words indicating any gender indicate the appropriate gender;
(c) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(d) a reference to a person is to be construed as a reference to an individual, body corporate, unincorporated association, partnership, joint venture or government body;
(e) references to any document (including these Standard Terms) include references to the document as amended, consolidated, supplemented, novated or replaced;
(f) a reference to a statute includes a reference to all enactments amending or consolidating the statute and to an enactment substituted for the statute and any subordinate legislation, including regulations;
(g) monetary references are references to Australian currency;
(h) headings are included for convenience only and do not affect interpretation of these Standard Terms; and
(i) no provision will be construed adversely to a party solely on the grounds that the party was responsible for the preparation of these Standard Terms or that provision.