READYMIX HOLDINGS PTY LTD CONCRETE CARTAGE DETERMINATION
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Application by Readymix Holdings Pty Ltd.
(No. IRC 3944 of
2004)
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Before The Honourable Justice Marks
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20 August 2004
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AWARD
Clause No. Subject
Matter
1. Interpretation
1.1 Definitions
1.2 Interpretation
2. Appointment as independent contractor
2.1 Engagement
2.2 Carrier’s
Employees
2.3 Carrier
to Supply Concrete Truck
2.4 Level
of Earnings
3.(A) Date of Operation
3.(B) Cartage Contract Term
3.(C) Vehicles
4. Carrier’s payment entitlements
4.1 Summary
of Entitlements
4.2 Contents
of Schedule 2
4.3 Average
Fleet Productivity Review
4.4 Calculation
of Utilisation Cartage Rate
4.5 Variation
of Rates
5. Annual Safety Net Payments
5.1 Purpose
5.2 Calculation
5.3 Working
Week for Purpose of Calculation
5.4 Variation
of Safety Net
5.5 Recoupment
of Safety Net Payment
6. Additional Payments
6.1 Purpose
6.2 Mixing
in the Yard
6.3A A
Standby Time
6.3B Call
Out
6.4 Concrete
Produced on Sundays and Public Holidays
6.5 Adjacent
Transport
6.6 Living
Away From Home Allowance
6.7 Road
and Bridge Tolls
6.8 Special
Rates
6.9 Unloaded
Kilometres
6.10 Multiple
Discharge
6.11 Diverted
Loads
6.12 Returned
Concrete
6.13 Additional
Agitator rate
6.14 Waiting
Time
6.15 Outside
Normal Hours
7. Cartage Accounts and Payment
7.1 Readymix
to Prepare
7.2 Details
7.3 Total
at end of Accounting Period
7.4 Payment
7.5 Account
Discrepancies
7.6 Deductions
For Fuel Expenses
8. GST
9. Truck transfers
9.1 Home
Plant
9.2 Transfer
Within Operational Area
9.3 Home
Plant Transfer
9.4 Transfers
Outside Operational Area
9.5 Disputes
9.6 Carrier
Request
10. Statutory requirements and insurance
10.1 Warranties
10.2 Additional
Warranties
10.3 Insurance
10.4 Provision
to Readymix
10.5 Truck
Specification
11. Loading and rostering
11.1 Readymix
to Nominate Load
11.2 Carrier
to Carry Load
11.3 Rostering
11.4 Cyclic
Start Roster
11.5 Company
Owned Trucks
12. Fleet size
13. Availability and suitable truck
13.1 Obligation
13.2 Criteria
13.3 No
Loading
13.4A Repairs
13.4B Detention
Time
13.5 Notification
of Absence
13.6 Registration
13.7 Minimum
Capacity and Configuration
13.8 Warranty
13.9 Cleaning
of Truck
13.10 Parking
of Truck
13.11 Technology
14. Responsibility for load
14.1 Batching
14.2 No
Alteration to Specification Shown on Docket
14.3 Slump
14.4 Change
of Ingredients
14.5 Rejection
of Load
14.6 Additives
14.7 Agitator
Drum
14.8 Inspection
of Loads
14.9 Topped
up Loads
14.10 Practicable
Route
15. Obligations at delivery
15.1 Signatures
for Delivery
15.2 Payment
on Delivery
15.3 Job
Site Entry
15.4 Bogged
Vehicles
15.5 Damage
to Property or Vehicles
16. Site Cleaning
16.1 Carrier's
Obligation
16.2 Reimbursement
of Readymix
17. Breakdowns
18. Communication equipment
18.1 Readymix
to Install
18.2 Ownership
of Equipment
18.3 Operation
and Maintenance
18.4 Removal
19. Provision of Agitator
19.1 Provision
19.2 Fitting
of Agitator
19.3 Removal
of Agitator
19.4 Agitator
Provided by Carrier
19.5 Cleaning
of Agitator
19.6 Maintenance
of Readymix Supplied Agitator
19.7 Maintenance
of Carrier Supplied Agitator
20. Manning
20.1 Obligation
20.2 Leave
20.3 Approval
20.4 Nominated
Driver
20.5 Compliance
with Determination
20.6 Provision
of Documents
20.7 Immediate
Notification
21. Fuel and Oil
22. De-dagging
23. Painting and Sign Writing
23.1 Painting
of a New Truck
23.2 Painting
of Agitator
23.3 Finish
23.4 Repainting
24. Commitment to Training
24.1 Commitment
24.2 Cost
and Amount
24.3 Driver
Training
25. Occupational Health and Safety
25.1 Safety
Improvement Teams
25.2 Safety
Inductions
25.3 Determination
26. Drivers Room
27. Carrier's Equipment
27.1 Storage
27.2 Marking
27.3 No
Liability
28. Uniforms and Personal Protective
Equipment
28.1 Readymix
to Provide
28.2 Uniform
to be Worn
29. Emergencies and Incidents
29.1 Carrier
to Follow Readymix Procedures
29.2 Reporting
Incidents
29.3 Investigation
29.4 Reporting
Defects, Loss or Theft
30. Dealings with Customers
31. Compliance with Policies
31.1 Obligation
31.2 Operational
Procedures
32. Dispute Resolution
33. Termination of Contract
33.1 Termination
by Readymix without Compensation
33.2 Termination
by Readymix with Compensation
33.3 Termination
by Carrier
34. Assignment of Determination
34.1 Assignment
by Carrier
34.2 Deemed
Assignment
35. Deductions
Schedule 1 -
Surcharges
Schedule 2 -
Utilisation Cartage Rates and True Cost Formula
Schedule 3 - Details
of Insurance Requirements
Schedule 4 - Fairness
and Respect Statement
Schedule 5 - Waiting
Time Guidelines
Date
Parties
1. Readymix Holdings Pty Ltd (ABN 87 099 732 297)
carrying on business at 90-92 Phillip Street, Parramatta in the State of New
South Wales (Readymix)
2. The Transport Workers Union of New South Wales for and
on behalf of contract Carriers covered by the terms of this Determination.
This Determination is made pursuant to the provisions
of Chapter 6 Part 3 of the Industrial Relations Act 1996 (NSW) as
amended.
The parties hereto hereby agree as
follows:
1.
Interpretation
1.1 Definitions
In this document:
6 Wheeler means a Concrete
Truck with three (3) axles and six (6) wheel positions.
8 Wheeler means a Concrete
Truck with four (4) axles and eight (8) wheel positions.
Mini Truck means a Concrete
Truck with two (2) axles and four (4) wheel positions.
Accounting Period means a
calendar month unless varied by consent.
Additional Payments means
those payments specified in clause 6.
Agitator means the mixing
equipment necessary to mix concrete during transportation by a Concrete Truck.
It is also referred to herein as "the mixer".
Amenities means the Drivers'
lunch room at a Plant.
Annual Safety Net Payment
means the payment referred to, and calculated in accordance with, clause 0 and schedule 2(and "Safety Net" shall have
a corresponding meaning).
Average Fleet Productivity
means the average annual paid cubic metres carried by a group of Contractors in
a Utilisation Group.
Business Day means a day
which is not a Saturday, Sunday or bank or public holiday in the State.
Commencement Date means 16
January 2005.
Concrete means pre-mixed
concrete manufactured by Readymix and any other materials that can be delivered
in a Concrete Truck as may be designated by Readymix.
Concrete Truck means a
vehicle used to transport and deliver pre‑mixed concrete and, subject to
clause 0, to mix the concrete.
Continuous Pour shall mean
(a) A
slab and any walls, columns, stairs and the like provided they are an integral
part of the said slab and are poured at the same time; or
(b) Road
pavements; or
(c) Multiple
strip footings within a radius of one half (1/2) kilometre; or
(d) Tilt
up panels.
A continuous pour as defined cannot continue from one
calendar day to the next.
Configuration means the
classification of a Concrete Truck by reference to its Load Capacity as
follows:
(a) Mini
Truck;
(b) 6
Wheeler;
(c) 8
Wheeler; or
(d) Any
other classifications designated by Readymix from time to time.
"Carrier" or "Contractor" both mean
a Carrier as defined in the Industrial Relations Act 1996 who supplies a
Concrete Truck.
Cyclic Start Roster means a start of day roster
applicable to Concrete Trucks having the same Configuration at each Plant based
on a "first out yesterday, last out today" system with the effect
that each Concrete Truck of that Configuration will move through the cycle for
that Configuration from starting first to starting last and, on successive
days, all points in between (provided that this definition of Cyclic Start
Roster will vary in accordance with the provisions of clause 11.4).
Driver means a person employed or engaged by the
Carrier and nominated by the Carrier to operate a Concrete Truck for the
Carrier pursuant to clause 0 of this Determination.
Home Plant means the Plant designated by Readymix from
time to time as the Plant from which the Carrier’s Concrete Truck will, unless
transferred, operate from the start of each Working Day.
Insolvency Event means:
(a) a
person is or states that the person is unable to pay from the person's own
money all the person's debts as and when they become due and payable;
(b) a
person is taken or must be presumed to be insolvent or unable to pay its debts
under any applicable legislation;
(c) an
application or order is made for the winding up or dissolution or a resolution
is passed or any steps are taken to pass a resolution for the winding up or
dissolution of a corporation;
(d) an
administrator, provisional liquidator, liquidator or person having a similar or
analogous function under the laws of any relevant jurisdiction is appointed in
respect of a corporation or any action is taken to appoint any such person and
the action is not stayed, withdrawn or dismissed within seven days;
(e) a
receiver or receiver and manager is appointed in respect of any property of a
corporation;
(f) a
corporation is deregistered under the Corporations Act or notice of its
proposed deregistration is given to the corporation;
(g) a
distress, attachment or execution is levied or becomes enforceable against any
property of a person;
(h) a
person enters into or takes any action to enter into an arrangement (including
a scheme of arrangement or deed of company arrangement), composition or
compromise with, or assignment for the benefit of, all or any class of the
person's creditors or members, or a moratorium involving any of them;
(i) a
petition for the making of a sequestration order against the estate of a person
is presented and the petition is not stayed, withdrawn or dismissed within
seven days or a person presents a petition against himself or herself;
(j) a
person presents a declaration of intention under section 54A of the Bankruptcy
Act 1966; or
anything analogous to or of a similar effect to
anything described above under the law of any relevant jurisdiction occurs in
respect of a person.
Load Capacity means the lesser of:
(k) the
maximum legal carrying capacity of the Carrier’s Concrete Truck; and
(l) the
manufacturer’s nominated maximum capacity of the Agitator.
Minor Maintenance for the
purposes of clauses 19.6 (c) shall include replacement of globes and clearance
lights, all backup alarm maintenance, fitting of mud flaps, greasing of rollers
and any fluid inspections.
New Truck means a truck that
is less than three (3) years of age and is in the fleet at the commencement of
this agreement or in the case of trucks not in the fleet a brand new truck.
Operational Area means any
area within New South Wales designated by Readymix as a discrete area of
operation.
Operational Requirements
means all factors which may, in Readymix’s opinion, affect the operating
efficiency, volume or quality of concrete produced, profitability of one or
more Plants or otherwise affect in any way one or more Plants or any aspect of
Readymix’s business.
Carrier’s Service Obligations
means those of the Carrier’s obligations under this Determination which relate
to the loading, mixing, transportation and delivery of concrete and other
designated materials, and those relating to rostering, occupational health and
safety and information and documentation required in respect of deliveries of
concrete and other designated materials to customers.
Plant means a batching plant
where concrete and similar batched materials are manufactured for delivery in a
Concrete Truck.
Practicable Route means roads
open for use by vehicles with the Configuration of the Carrier’s Concrete
Truck.
Public Holiday means a day
declared and gazetted as such for the Operational Area.
Quarter means each three
month period ending on 31 March, 30 June, 30 September and 31 December each
year.
Readymix Officer means
Readymix's Chief Executive Officer, Chief Financial Officer or Chief Operating
Officer or an authorised Readymix General Manager.
Readymix's Normal Trading
Hours means 6:00 am to 6:00 pm Monday to Friday and from 6:00 am to 1:00 pm
Saturday.
Readymix Representative means
the Readymix Plant Manager or his/her delegate.
Rejected Concrete means
concrete that does not meet the product specification detailed on the delivery
docket and is unacceptable for delivery.
Returned Concrete means
concrete that is excess to a particular customer's requirements.
Roster Off means the period
during which the Carrier’s services are not required by Readymix for the
balance of a Working Day.
Slump means a measure of
consistency of concrete that can be determined visually and confirmed by the
test method detailed in the current edition of Australian Standard AS1012.
Term means the term of this
Determination determined in accordance with clause 0.
True Cost Formula means the
formula upon which Utilisation Cartage Rates may be varied due to the rise or
fall of predetermined indices.
Union means the Transport
Workers Union of New South Wales.
Utilisation Cartage Rates
means the cartage rates paid for various annualised levels of truck
productivity measured in cubic metres per truck per year (m3/truck/year) as set
out in schedule 2..
Utilisation Group means a
group of Concrete Trucks which includes the Carrier’s truck:
(m) having
the same Configuration as the Carrier’s Concrete Truck;
(n) operating
from the same Home Plant, Plants or Operational Area nominated by Readymix as
applicable to the Carrier; and
(o) which
may be varied by Readymix only once each 12 month period by the giving by
Readymix of three (3) months notice to the Carrier or Carriers affected.
Working Day means any day on
which Readymix requires a Carrier to provide services pursuant to this
Determination (and "Work Day" shall have a corresponding meaning).
1.2 Interpretation
Unless expressed to the
contrary, in this document:
(a) words
in the singular include the plural and vice versa;
(b) any
gender includes the other genders;
(c) if
a word or phrase is defined its other grammatical forms have corresponding
meanings;
(d) includes
means includes without limitation;
(e) no
rule of construction will apply to a clause to the disadvantage of a party
merely because that party put forward the clause or would otherwise benefit
from it;
(f) a
reference to:
(i) a
person includes a partnership, joint venture, unincorporated association,
corporation and a government or statutory body or authority;
(ii) any
legislation includes subordinate legislation under it and includes that
legislation and subordinate legislation as modified or replaced;
(iii) an obligation includes a warranty or representation and a
reference to a failure to comply with an obligation includes a breach of
warranty or representation;
(iv) a
right includes a benefit, remedy, discretion and power;
(v) time
is to local time in the Operational Area;
(vi) $
or "dollars" is a reference to Australian currency;
(vii) this or any other document includes the document as notated,
varied or replaced and despite any change in the identity of the parties;
(viii) a clause or schedule is to a clause or schedule of this
Determination;
(ix) writing
includes any mode of representing or reproducing words in tangible and
permanently visible form, and includes fax transmission; and
(x) this
document includes all schedules and annexures to it; and
(g) where
time is to be calculated by reference to a day or event, that day or the day of
that event is excluded.
2.
Appointment as Independent Contractor
2.1 Engagement
The Carrier acknowledges that
it is an independent contractor to Readymix for the purpose of delivering pre‑mixed
concrete and other designated materials to customers of Readymix.
2.2 Carrier’s Employees
The Carrier is at all times
and will remain, responsible for all employment costs including wages,
salaries, fees for service, sick leave, annual leave, long service leave,
superannuation, worker's compensation insurance and other entitlements of all
persons employed or otherwise engaged by the Carrier in connection with the
performance of this Determination and for all payroll and other taxes payable
in respect of those persons.
2.3 Carrier To Supply Concrete Truck
The Carrier is responsible
for providing the Concrete Truck necessary to provide the services required
pursuant to this Determination. Subject to clause 0, this obligation may include the obligation to
provide the Agitator for the Concrete Truck. The Carrier must own the Concrete
Truck and may use an appropriate financing mechanism if the Carrier so chooses.
2.4 Level Of Earnings
The Carrier acknowledges that
the Carrier’s level of earnings under this Determination is influenced by many
factors including:
(a) the
level of demand for Readymix concrete from Readymix's customers; and
(b) the
Carrier’s efficiency and availability.
The Carrier further acknowledges that the Carrier may
earn more or less than other Carriers.
3. (A) Date of Operation
This Determination will commence
on 16 January 2005 and remain in force for a period of three (3) years
thereafter.
Notation: The parties to this
Determination agree that it represents a ten (10) year commitment. Neither
party intends to change that commitment.
3. (B) Cartage Contract Term
3 (B)
1. Under
the provisions of this Determination each Carrier engaged by Readymix is hereby
granted a cartage contract on the terms and conditions contained in this
Determination and which cartage contract shall have the following period of
operation:
1. Category A
Contracts
Readymix shall nominate one hundred and six (106)
Carriers who will be granted a cartage contract of ten (10) years duration to
commence from the date the carrier introduces a new truck (as approved by
Readymix) to the fleet.
The introduction by the Carrier of a new truck must be
effected no later than 30 April 2006 and will be co-ordinated by the Carrier
and Readymix. For the period from the date of commencement of this
Determination to the date of introduction of the new truck the Carrier will
continue to be engaged by Readymix under the terms of this Determination.
2. Category B
Contracts
Readymix shall nominate forty (40) Carriers who will be
granted a cartage contract of two (2) years duration to commence from 16
January 2005.
During the two (2) year period of the cartage contract
Readymix will closely review the performance of each Carrier. If the
performance of a Carrier is found by Readymix to be satisfactory then that
Carrier will be offered a contract extension of eight (8) years which extension
will take effect from 16 January 2007 provided however, that in order to
qualify for the eight (8) year extension, the carrier must introduce a new
truck (as approved by Readymix) to the fleet prior to 16 January 2007.
3. Category C
Contracts
Readymix shall nominate six (6) carriers who shall be
granted cartage contracts of seven (7) years duration which contracts shall
commence operation on 16 January 2005. Readymix has the absolute discretion to
require these carriers to assign their contracts on the open market at any
time.
3(B)
2. When a
carrier introduces a new truck to the fleet in any circumstances the truck must
first be approved by Readymix in writing and must meet all the criteria
required by Readymix in this regard.
3(C) Vehicles
Readymix has the absolute right and discretion to
nominate the configuration of any vehicle introduced by a Carrier to the fleet.
In particular Readymix has the discretion to decide the number and location of
eight (8) wheeler and six (6) wheeler vehicles in the
fleet.
4.
Carrier’s Payment Entitlements
4.1 Summary Of Entitlements
Subject to the Carrier
complying with the provisions of this Determination, the Carrier will receive
from Readymix:
(a) payment
of a cartage rate for concrete carried along the shortest practicable route by
the Carrier’s Concrete Truck at the Utilisation Cartage Rates and in accordance
with the provisions of schedule 2;
(b) where
applicable, the Annual Safety Net Payment calculated in accordance with, and
subject to the provisions of, clause 0; and
(c) where
applicable, the Additional Payments.
Note: A three (3) metre and three (3) kilometre minimum
shall apply to all cartage except where otherwise specified.
Further Note: a four (4) metre minimum shall apply to
all cartage in excess of 25 kilometres.
4.2 Contents Of Schedule 2
The Parties acknowledge that
schedule 2 contains, amongst other matters:
(a) a
True Cost Formula which details the costs of labour, running costs (including
repair and service costs) and Return on Funds Employed necessary to operate a
Concrete Truck, which figures are subject to stated assumptions and subject to
increase in accordance with the provisions of schedule 2; and
(b) per
cubic metre volume incentives, running rates (i.e. per kilometre rate) and load
fees based on various levels of paid cubic metres per Concrete Truck per year.
4.3 Average Fleet Productivity Review
(a) On
or before the 15th day of the calendar month after the end of each Quarter,
Readymix will calculate the Average Fleet Productivity for the Carrier’s
Utilisation Group for the previous Quarter. The average fleet productivity
calculation will measure the average volume of paid carted quantities (other
than concrete produced on Sundays) for all Concrete Trucks of the same
Configuration in the relevant Utilisation Group to which the Carrier belonged.
All calculations under this clause will exclude the Company owned fleet or any
other fleet engaged by Readymix for the purpose of carting concrete.
(b) Where
a Carrier is transferred to a different Plant or Operational Area during a
Quarter, that Carrier’s paid cubic metres for that Quarter will be counted as
part of the Utilisation Group from which the Carrier was transferred, and the
Carrier’s cartage rate entitlement for that Quarter will be calculated on the
basis of the fleet productivity for the Utilisation Group from which the
Carrier was transferred. However, if the transfer extends, or will extend, for
longer than a Quarter, the Utilisation Group to which the Carrier was
transferred will become the relevant Utilisation Group from the beginning of
the new Quarter. In the case of any dispute as to the relevant Utilisation
Group for the purpose of determining the relevant Average Fleet Productivity,
Readymix's decision will be final but the dispute resolution process in clause 0 may be invoked.
(c) In
calculating the Average Fleet Productivity, Readymix will have regard to:
(i) the
paid metres carted during the relevant Quarter by all Carriers in the same
Utilisation Group;
(ii) the
number of Carriers’ Concrete Trucks in the Utilisation Group for the Quarter;
(iii) the number of Working Days for all Carriers in the Utilisation
Group in the Quarter after deduction of the unavailable days during the Quarter
as a result of authorised and unauthorised absence and vehicle breakdown.
4.4 Calculation Of Utilisation Cartage Rate
Subject to clause 0 and the provisions of schedule 2, the Carrier will be
paid a cartage rate based on the paid metres carted by the Carrier during the
relevant Quarter at the average fleet utilisation rate (as adjusted) calculated
on a Moving Annual Total basis i.e. the cartage rate paid in a quarter is based
on the previous four (4) quarters using the Moving Annual Total system.
4.5 Variation Of Rates
On March 15th each year the
cartage rates payable under this Determination will be reviewed pursuant to
schedule 2. If the rates are varied as a result of that review the varied rates
will take effect from 1 April. Another review pursuant to schedule 2 will be
carried out on September 15th of each year but rates will only vary if the
review shows a change in costs exceeding 3%. The variation (if effected) would
take effect from 1 October.
5. Annual Safety Net Payments
5.1 Purpose
An Annual Earnings Safety Net Payment as set out in
schedule 2 will apply to the Carrier during the term of this Determination. The
Safety Net is a guaranteed minimum amount payable to the Carrier for each year
of this Determination, paid Quarterly subject to the provisions of this clause 0 and schedule 2. The Carrier will not however receive
a payment under this clause 0 in respect of the period between the Commencement
Date and the completion of the Quarter in which the Commencement Date falls.
The Carrier’s entitlement to the Safety Net payment will also be subject to the
Carrier’s compliance with all its obligations under this Determination.
5.2 Calculation
The amount of the Annual Earnings Safety Net Payment is
specified in schedule 2. Readymix shall pay the Carrier an amount not exceeding
one quarter of the Annual Earnings Safety Net Payment per Quarter if the
Carrier has earned less than one quarter of the Annual Earnings Safety Net
Payment at the end of the relevant quarter. The amount payable shall be
calculated in accordance with the following formula:
Quarter Safety Net Payment = (ASN ¸
4) - Y
where:
ASN equals
Annual Earnings Safety Net Payment; and
Y equals the
actual total Carrier earnings during the relevant Quarter.
The Quarter
safety net payment shall be made in the pay period following the end of the
relevant Quarter.
5.3 Working
Week For Purpose Of Calculation
The normal working week for the purpose of calculation of
safety net payments is six (6) consecutive days, Monday to Saturday inclusive,
to a total of 268 days per annum. Any quarterly safety net payment payable to
the Carrier will be reduced by 4 ¸ 268ths per day for each day the Carrier is deemed to be
unavailable the Carrier will be deemed to be unavailable if:
(a) the Carrier
fails to provide services to Readymix as obliged by this Determination;
(b) the Carrier
is in persistent breach of an obligation under this Determination which the
Carrier has previously been notified of as a breach by Readymix; or
(c) the Carrier
is not having its Concrete Truck loaded with concrete by Readymix for any of
the reasons referred to in any of clauses 0, 0, 0 and 20.7.
Unavailability
will not arise if:
(d) the
nominated Plant is closed or unable to produce concrete;
(e) the Driver
is on approved annual leave.
(f) the
Carrier has previously been notified by Readymix that the Carrier is not
required to perform services on the relevant day; or
(g) force
majeure has occurred.
5.4 Variation
Of Safety Net
The value of the Annual Earnings Safety Net will be subject
to rise and fall as set out in schedule 2.
5.5 Recoupment
Of Safety Net Payment
Where Readymix has made a Quarterly safety net payment in
accordance with the provisions of this clause 0, and the Carrier in a subsequent Quarter earns more
than one quarter of the Annual Earnings Safety Net Payment, Readymix will have
the right to deduct from payments otherwise due to the Carrier in the future,
the amount of any previous sum paid by Readymix to the Carrier by way of a
Safety Net payment in accordance with this clause 0, until the full amount of all Annual Earnings Safety
Net Payments made by Readymix have been recouped by Readymix. If at the end of
this Determination Readymix has not recouped all of the Annual Safety Net
Payments made to the Carrier over the term of the Determination, the Carrier is
not obliged to refund the Annual Safety Net Payments made and not recouped.
6. Additional Payments
6.1 Purpose
This clause 6 sets out
payments and other benefits that will be made available to the Carrier in
addition to the payments due under clause 0.
6.2 Mixing In The Yard
A fee as set out in item A of
schedule 1 shall be paid to the Carrier where the Carrier is required by
Readymix to mix and discharge concrete into a customer's own vehicle for the customer
to transport away from the Plant. A two (2) metre minimum shall apply.
6.3A Standby Time
(a) The Carrier shall be entitled to a
standby time payment at the rate specified in item B of schedule 1 where
Readymix requests the Carrier to remain at a Plant for the purpose of taking a
delivery to a customer at a time outside Readymix's Normal Trading Hours. The
Carrier will be entitled to the standby time payment whether or not the
delivery is ultimately required.
(b) Despite
paragraph 0, the Carrier will not be entitled to the standby time
payment if the Carrier is required to wait for less than one hour outside
Readymix’s Normal Trading Hours.
Note: Standby payments shall
only be made where the Carrier is required to wait i.e. in situations where
night hours are required and no waiting on the part of the Carrier arises, then
no standby payment will be made.
6.3B Call Out
(a) A
Carrier called back outside Readymix’s Normal Trading Hours (as defined herein)
shall be entitled to a Call Out Fee as specified in Item C of schedule 1 to
this Determination provided however that the Call Out Fee will not apply where
the Carrier is given a load(s) of concrete to deliver and the total income
earned from the load(s) exceeds the Call Out Fee. If the income of the load(s)
is less than the Call Out Fee then the Carrier will be paid the difference
between the Call Out Fee and the load(s).
(b) The
Call Out Fee will apply in addition to rather than in substitution for the Standby
Time payment referred to in Clause 6.3A.
6.4 Concrete
Produced On Sundays And Public Holidays
Where the Carrier is required
to deliver concrete on a Sunday or Public Holiday, the Carrier shall be
entitled to a surcharge in addition to the normal cartage rate payable to the
Carrier as specified in either item L or M of schedule 1which shall be paid on
a cubic metre basis and on the assumption that each load is a minimum of 3
cubic metres.
6.5 Adjacent Transport
Where a Carrier is required
to cart concrete either:
(a) within
the confines of a Plant owned and or operated by Readymix; or
(b) to
a location immediately adjacent to and within a one (1) kilometre radius of a
Plant owned and or operated by Readymix.
then the Carrier shall only receive the load fee
specified in Item N of schedule 1.
A three (3) metre minimum shall apply.
6.6 Living Away From Home Allowance
Where a Carrier is required
by Readymix to work from a location which precludes the Driver from returning
to his normal place of residence each night, then Readymix will pay to the
Carrier the Driver's reasonable accommodation and breakfast costs at
accommodation nominated by Readymix and for a period of one week, or such
longer period as may be agreed. Following the expiration of the first week, if
the transfer is for a longer agreed period, the Carrier will be responsible for
locating the Driver's accommodation and meeting the cost of all accommodation
and meals.
6.7 Road And Bridge Tolls
(a) Where
payment of a road or bridge toll is required for either or both the outward and
return journeys by the shortest Practicable Route, Readymix will issue the
Carrier with a mutually agreed number of pre‑paid toll tickets,
electronic tag or equivalent cash money for that load, or a toll card free of
charge.
(b) Where
Readymix provides the Carrier with a toll pass or electronic tag, it will
remain the property of Readymix and must not be used by the Carrier for any
other use and will be returned to Readymix on termination or expiration of the
Determination.
6.8 Special Rates
(a) To
cater for special or unique circumstances, Readymix may propose to the Carriers
representatives that a special rate structure should apply.
(b) In
order to be effective, the special rate structure must be agreed by the elected
Readymix Carriers Committee and a representative of Readymix and will, to the
extent of any inconsistency, prevail over the cartage rates specified by this
Determination. Such agreement must be
evidenced in writing and a copy must be sent to the Union.
6.9 Unloaded Kilometres
Unloaded kilometres travelled
by the Carrier 's Concrete Truck at Readymix's request for operational needs
(e.g. daily transfers, workshop transfer etc) will attract a payment at the
rate specified in item H of schedule 1. This provision shall operate to cover
daily or weekly transfers as appropriate. For periodic transfers of a week or
more this provision shall not apply. Note: Where the Carriers Concrete Truck is
required to deliver a load and then transfer to another plant the Carrier shall
be paid for that distance travelled to the plant which is in excess of the
return distance from the original plant to the delivery location.
6.10 Multiple Discharge
(a) Where
a Carrier is required to deliver a load to the same customer at multiple
discharge points the Carrier will be paid for the total distance travelled from
the Plant to the final discharge point.
(b) The
payment for cartage of one load for delivery to more than one customer at
different discharge points will be treated for the payment of cartage as if
separate delivery had been made from the Plant where loaded to each delivery
point.
6.11 Diverted Loads
(a) Where
a load is diverted prior to discharge at a delivery site, the Carrier will be
paid a cartage rate covering the total distance travelled from initial
departure from the Plant where loaded, to the final delivery point of the load.
6.12 Returned Concrete
(a) All
concrete remains the property of Readymix.
Readymix may direct the Carrier as to where Returned Concrete is to be
taken or if and where it is to be dumped. The Carrier is to contact dispatch
for instructions as to where Returned Concrete is to be taken as soon as
possible after a customer advises that it does not require the Returned
Concrete.
(b) No
payment will be made to the Carrier when Returned Concrete is dumped within one
kilometre of the delivery site at which the concrete became Returned Concrete.
(c) Readymix
will meet all dump costs for concrete which is dumped at Readymix's direction.
(d) Where
one (1) or more metres of Returned Concrete are involved the Carrier will be
paid for the volume and kilometres involved in carting the Returned Concrete at
the running cost paid rate per Schedule 2 but the 3m³ minimum shall not apply.
6.13 Additional Agitator rate
Where the Carrier supplies
the Agitator, the Carrier will be paid a surcharge on each cubic metre loaded
which surcharge will be specifically negotiated and agreed between the parties.
6.14 Waiting Time
(a) The
Carrier acknowledges that Readymix will make reasonable attempts to pass on the
cost of Waiting Time to its customers. Readymix will on an as charged basis
make Waiting Time payments available to its Carriers. It is the obligation of
the Carrier to obtain a customer signature for Waiting Time on the delivery
docket or, if unable to get the signature, to obtain specific approval from the
Plant Manager for Waiting Time prior to leaving the site.
(b) Provided
the Carrier discharges its obligation as detailed above in sub clause (a), the
Carrier will be entitled to a Waiting Time payment as detailed in item G of
schedule 1 of this Determination.
(c) Where
the market undergoes a profound or material change with respect to the ability
of Readymix to charge waiting time to its customers then Readymix has the
absolute discretion to cease paying Waiting Time to its carriers. If this occurs then Readymix shall adjust
the cartage rates contained in schedule 2 by the addition of an amount which
will be calculated on the total amount of Waiting Time payments made for the
previous twelve (12) month period divided by the total number of metres of
concrete paid and then allocated on a per metre basis.
6.15 Outside Normal Hours
Cartage performed outside
Readymix Normal Trading Hours shall attract the surcharge in item D of schedule
1.
7.
Cartage Accounts and Payment
7.1 Readymix To Prepare
Readymix will prepare cartage
accounts forming part of a Recipient Created Tax Invoice (RCTI) in accordance
with dockets issued by Readymix to the Carrier when undertaking deliveries
during the course of the Accounting Period.
The RCTI will be submitted to the Carrier the self‑billing invoice
showing the full details of the delivery or other activity and the amounts to
which the Carrier shall be entitled.
7.2 Details
The cartage account and RCTI
prepared by Readymix will be itemised on a daily basis and will include the
following details:
(a) date;
(b) delivery
docket number;
(c) job
address;
(d) quantity
of load;
(e) kilometres
travelled;
(f) payment
amount per load;
(g) GST;
and
(h) Additional
Payments and deductions as referred to in clause 6, if applicable.
7.3 Total At End Of Accounting Period
All items on cartage accounts
will be totalled individually at the conclusion of the Accounting Period. The
gross cartage payment will be shown and any agreed deductions fully itemised.
The net amount payable for the Accounting Period will also be shown.
7.4 Payment
(a) Amounts
due to the Carrier in respect of the cartage accounts will be paid by
electronic transfer from Readymix to the Carrier's nominated bank account
within ten Business Days following the end of each Accounting Period.
(b) If Readymix overpays the Carrier by more
than One Thousand Dollars ($1,000), the Carrier must notify Readymix within forty five (45) days of the
overpayment. Failure to notify will mean that the Carrier is liable to pay
Readymix interest on the amount of the overpayment calculated at the 90 Day
Bank Bill rate plus 3% from the date of the overpayment.
(c) If
the Carrier fails to pay back to Readymix the amount of any overpayment and
interest in accordance with paragraph 0, Readymix can, in addition to any other rights it may
have in relation to the overpayment, deduct from the Carrier's future payments,
an amount equal to the overpayment plus interest at the 90 Day Bank Bill Rate
plus 3%.
7.5 Account Discrepancies
(a) Where
a Carrier is underpaid by an amount of Three Hundred Dollars ($300.00) or more
in one Accounting period then Readymix shall ensure that the appropriate
adjustment is made within fifteen (15) days of notification by the Carrier. If
Readymix fails to make the appropriate adjustment within fifteen (15) days of
notification by the Carrier then Readymix shall pay to the Carrier interest on
the amount of the adjustment calculated at the 90 Day Bank Bill Rate plus 3%
from the date the adjustment should have been paid.
(b) Where
the underpayment is less that Three Hundred Dollars ($300.00) then Readymix shall
ensure that the appropriate adjustment is made in the next Accounting Period
after notification by the Carrier.
(c) Where
any overpayment is made by Readymix then Readymix shall make the appropriate
adjustment immediately that it detects and confirms the overpayment.
7.6 Deductions For Fuel Expenses
If the Carrier purchases fuel
from time to time from Readymix, Readymix will deduct from the cartage payment
next due to the Carrier, an amount equal to the value of any fuel purchased
from Readymix or, where this Determination has terminated, the Carrier must
reimburse Readymix within thirty days of the date of purchase.
8. GST
(a) In
this clause:
(i) GST
Act means A New Tax System (Goods and Services Tax) Act 1999 and any related
legislation;
(ii) Representative
means a representative member of a GST group to which the relevant supplier
belongs; and
(iii) the expressions "adjustment note",
"consideration", "GST", "input tax credit",
"supply", "tax invoice", "recipient",
"recipient created tax invoice" and "taxable supply" have
the meaning given to those in the GST Act.
(b) Unless
otherwise expressly stated, all prices or other sums payable or consideration
to be provided under this Determination are exclusive of GST.
(c) Despite any other provision in this
Determination, if GST is imposed on any supply made under this Determination,
the recipient must pay to the supplier an amount equal to the GST payable on
the taxable supply.
(d) The
recipient must pay the amount referred to in clause 0 in addition to and at the same time as payment for
the taxable supply is required to be made under this Determination.
(e) If the amount of GST paid or payable by
the supplier on any supply made under this Determination differs from the
amount of GST paid by the recipient, because the Commissioner of Taxation
lawfully adjusts the value of the taxable supply for the purpose of calculating
GST, then the amount of GST paid by the recipient will be adjusted accordingly
by a further payment by the recipient to the supplier or the supplier to the
recipient, as the case may be.
(f) If
this Determination requires a party to reimburse or indemnify the other party
for any expense, loss or outgoings ("reimbursable expense") the amount
required to be reimbursed or indemnified by the first party will be the amount
of the reimbursable expenses net of input tax credits (if any) to which the
other party is entitled in respect of the reimbursable expense ("net
amount") provided that should the reimbursement or indemnity be subject to
GST, the net amount shall be increased in accordance with clause 0.
(g) Subject
to clause 0 a valid tax invoice or adjustment note must be
delivered by a supplier to the recipient before the supplier is entitled to
payment of an amount under clause 0. The recipient can withhold payment of the amount
until the supplier provides a valid tax invoice or adjustment note as
appropriate.
(h) Readymix
is authorised to withhold from payments to the Carrier, a Subcontractor or
other worker such amounts as are required under the Pay as You Go (PAYG)
system.
(i) If
this Determination requires the calculation of a price by the addition of a
percentage margin to another rate or price, the percentage shall be applied to
the rate or price exclusive of GST (or where the rate is expressed as being GST
inclusive, then less any input tax credit the supplier is entitled to claim in
respect of that item) provided that should the margin be subject to GST, the
net amount shall be increased in accordance with clause 0.
(j) In
the event that liability for payment of GST in respect of a supply under this
Determination is imposed upon a Representative of a supplier, this clause 0 shall nonetheless apply and any amounts to be
calculated pursuant to clauses 0 and 0 shall be calculated in all respects as if, the
supplier was liable for the GST imposed on such supply and entitled to input
tax credits properly allocated to the making of that supply.
(k) Readymix will issue recipient created
tax invoice in respect of any supply made by the Carrier to Readymix under this
Determination.
(l) The
Carrier will not issue tax invoices in respect of those supplies referred to in
clause 0.
(m) The
Carrier acknowledges that it is registered for GST at the time of the signing
of this Determination.
(n) The
Carrier will notify Readymix immediately it ceases to be registered for GST.
(o) Readymix
acknowledges that it is registered for GST and will notify the Carrier if it
ceases to be registered for GST or if it ceases to satisfy any one of the
requirements which enables it to issue a recipient created tax invoice.
9.
Truck Transfers
9.1 Home Plant
At the commencement of this
Determination and from time to time, Readymix may designate a Plant as the Home
Plant for a Concrete Truck supplied by the Carrier for the purposes of this
Determination.
9.2 Transfer Within Operational Area
Readymix shall maintain
transfer rosters in its concrete business which rosters will cover trucks of
the same configuration and will specify the order in which Readymix requires
the Concrete Trucks to transfer from one Plant to another Plant on a daily,
weekly or monthly basis.
The said transfer rosters
shall be cyclical and configuration based and shall include company owned
trucks and other fleet vehicles. Provided, however, that in plants that are
serviced only by company trucks the said transfer rosters shall not apply.
(Note: if a Carrier attends a transfer at a company only plant then by
definition the plant is no longer regarded as a company only plant for that day
and rosters will apply accordingly).
(Further Note: transfers
between Sydney, Newcastle and Wollongong areas are deemed to be covered by this
sub clause).
9.3 Home Plant Transfer
Readymix has the right to
transfer the Home Plant status of a Carrier where the needs of the business
require that step to be taken.
If Readymix decides to
transfer the Home Plant of a Carrier then it will apply the Home Plant Transfer
Policy as follows:
READYMIX POLICY ON INTER-PLANT CARRIER LONG - TERM TRANSFER
1. Readymix
will from time to time need to make long-term transfers of carriers to another
plant so as to:
(i) Meet
or anticipate market trends;
(ii) Enhance
customer service;
(iii) Ensure that the vehicle configuration in a particular plant is
the correct configuration for our market requirements.
2. To
ensure that there is a fair and transparent process for the selection of a
carrier to accept a long-term transfer Readymix will implement the following
procedure:
(1) Readymix
will identify the type of truck which is required to make the transfer (eg. 6
wheeler or 8 wheeler).
(2) Readymix
will then seek from the carriers volunteers who will accept the transfer.
(3) If
a satisfactory volunteer as determined by Readymix cannot be found Readymix
will then make a selection of carriers for the transfer based on the following
criteria:-
Home location of carrier relative
to target plant.
Impact on utilisation which
the transfer will have.
Number of previous transfers
(if any) which have been effected.
(4) Readymix
will then notify carriers who fit the criteria, again with a view to obtaining
a volunteer.
(5) If
no satisfactory volunteer as determined by Readymix is obtained Readymix will
make a random selection from those carriers who meet the criteria.
9.4 Transfers Outside Operational Area
If Readymix requires to
transfer a Concrete Truck from one Plant to another Plant outside that truck's
current Operational Area, Readymix:
(a) may
call for Carriers to volunteer to transfer their truck;
(b) may
select from any volunteers in its absolute discretion; and
(c) may,
in its absolute discretion, require the Carrier to transfer its Concrete Truck
and Driver to a Plant outside that truck's current Operational Area whether the
Carrier or any other Carriers volunteered to transfer or not, provided that if
it would be unreasonable for the usual Driver to drive home at the end of each
Working Day, due to the distance of that Plant from the Driver's home, the
Carrier is entitled to receive a living away from home allowance in accordance
with clause 0 to be paid to the Driver.
Where there are no volunteers Readymix has the right to
direct Carriers to transfer outside the Operational Area for no longer than
four (4) weeks.
Note: daily transfers between Sydney, Newcastle and
Wollongong areas are not covered by this sub clause.
9.5 Disputes
If the Carrier wishes to
dispute a proposed transfer the Carrier:
(a) must
transfer its Concrete Truck and Driver to the Plant nominated by Readymix in
accordance with this clause 0;
(b) may
dispute the transfer in accordance with the dispute resolution procedures set
out in this Determination provided that unless and until there is a resolution
of the dispute in the Carrier's favour the Concrete Truck and Driver continues
to operate from that nominated Plant.
9.6 Carrier Request
It is always the case that a
Carrier may request a transfer in order to obtain an opportunity to access
greater cartage opportunities. Readymix will consider any such request at the
time the request is made and shall determine its response to the request which
will be a matter for the discretion of Readymix.
10.
Statutory Requirements and Insurance
10.1 Warranties
The Carrier warrants that at
all times whilst delivering concrete and other designated materials pursuant to
this Determination, the Carrier and where applicable, any Driver engaged by the
Carrier, will comply with all laws and regulations relating to:
(a) the
licensing, driving, operation and maintenance of the Concrete Truck;
(b) the
medical condition of the Driver;
(c) payment
of all fees, licences and taxes, relating to ownership and operation of the
Concrete Truck;
(d) State
Occupational Health & Safety;
(e) State
Environmental and Pollution control;
(f) fatigue
management;
(g) all
other matters relevant to the provision of the services pursuant to this
Determination including, but not limited to, workers' compensation insurance
and superannuation contributions; and
(h) all
laws and regulations pertaining to the employment of persons be they State or
Federal laws.
10.2 Additional Warranties
The Carrier further warrants
on a continuing basis that:
(a) the
Concrete Truck shall be roadworthy in every respect.
(b) the
Carrier will comply with Readymix's requirements and directions in relation to
environmental and pollution issues;
(c) it
will, and shall procure that, the Driver shall be licensed to drive the
Concrete Truck and shall not drive whilst under the influence of drugs or
alcohol above the legally prescribed limit;
(d) it
will, and shall procure that, the Driver shall observe all speed limits and
road traffic directions, drive within prescribed driving hours and comply with
logbook requirements;
(e) the
Carrier is a duly established company existing under the laws of Australia and
has the power and authority to enter into and perform this Determination;
(f) the
Carrier has the necessary skill and resources to undertake all obligations
under this Determination;
(g) the
Carrier will not allow a trainee Driver or substitute Driver to operate the
Concrete Truck otherwise than under the supervision of the Driver ordinarily
employed or engaged by the Carrier, or if that Driver is unavailable, under the
supervision of some other suitably qualified and licensed person;
(h) the
Carrier will perform its obligations under this Determination in a professional
manner exercising due care, skill and attention; and
(i) has
provided and disclosed to Readymix all material information necessary for
Readymix to make an informed decision as to whether or not the Carrier is a fit
and proper entity for entering into this Determination, and that all the
information provided to Readymix prior to the execution of this Determination
is accurate and complete.
10.3 Insurance
The Carrier must take out and
maintain insurance as specified by Readymix from time to time and, as from the
Commencement Date must take out and maintain insurance cover for the matters
specified in schedule 3. The Carrier will ensure that Readymix's interest in
the mixer is noted on the insurance policies nominated in schedule 3.
10.4 Provision To Readymix
The Carrier will allow
Readymix to sight original copies of all insurance policies held and all
renewal notices in respect of the insurances to be held pursuant to this
Determination, and will allow Readymix to take copies of policies and renewal
notices for Readymix's records.
10.5 Truck Specification
On an annual basis Readymix
shall require each Carrier to provide a copy of a registered Weighbridge
certificate relating to the Concrete Truck. Readymix has the discretion to
require a Carrier to weigh the Concrete Truck under Readymix supervision if
Readymix has any concern about the Truck in question.
11.
Loading and Rostering
11.1 Readymix To Nominate Load
Readymix has the right to
nominate the load size for each load to be carried from a Plant.
11.2 Carrier To Carry Load
The Carrier must carry any
concrete load nominated by Readymix unless that load exceeds the Load Capacity
of the Carrier’s Concrete Truck.
11.3 Rostering
Readymix
shall determine:
(a) A
Cyclic Start Roster as detailed in clause 11.4. The Carrier must contact the
Readymix Representative at the Carrier's Rostered Plant at the end of each
Working Day to ascertain the Carrier's starting time for the following Working
Day in accordance with that Cyclic Start Roster;
(b) A
Roster Off roster listing Concrete Trucks of the same Configuration on a cyclic
basis so that Concrete Trucks not required at a particular Plant for particular
Working Days or part thereof may be rostered off by Readymix. However, it is
acknowledged that the Carrier may elect to have its Concrete Truck remain at a
Plant with the possibility of receiving further loads on a particular Working
Day even though Readymix has informed the Carrier that its Concrete Truck is
not required and is Rostered Off for that day.
11.4 Cyclic Start Roster
Readymix shall maintain a
Cyclic Start Roster which, for the first load of each working day, shall vary
according to the needs of the business i.e. trucks will be loaded for the first
load of the day on the basis of the configuration or type which best suits the
business. Thereafter, trucks will be loaded during the day in the order of
their respective time of return to the plant subject to the following
exclusions:
(a) The
purpose of meeting fatigue management requirements;
(b) Trucks
carrying returned concrete;
(c) Single
loads or messages which are greater than the capacity of the vehicle next in
line to be loaded;
(d) Mini
loads; and
(e) Specialist
vehicles (e.g. vehicles carrying a catalytic converter).
11.5 Company Owned Trucks
Vehicles owned by Readymix
shall participate on an equal basis in the rosters detailed above where
applicable i.e. in plants run as purely Company Truck Plants the rosters
detailed above shall not apply. (Note: if a Carrier transfers to a Company
Truck Plant then rosters will apply for that day).
12.
Fleet Size
Readymix shall have the absolute
discretion to vary the size and Configuration of the fleet of concrete delivery
vehicles in any manner and for any reason, including, without limitation, by
varying the number of Readymix owned vehicles (including the operation of any
plant utilising all company owned vehicles) or the carrying capacity or
Configuration of vehicles (whether owned by Readymix or by Contractors) that
Readymix uses to service its customers' requirements provided however that
nothing in this clause gives Readymix the right to direct a Carrier to change
the carrying capacity or configuration of the Carrier’s vehicle without the
consent of the Carrier.
It is acknowledged and agreed that
Readymix will operate a Company owned truck fleet and will operate that fleet
to maximise profitability at all times i.e. there will be times when the
utilisation of the Company Fleet exceeds that of the Carrier Fleet.
13.
Availability and Suitable Truck
13.1 Obligation
The Carrier is obliged to
provide a manned and serviceable Concrete Truck for the provision of cartage
services for Readymix in accordance with this Determination on each Working Day
during the term of the Determination. Readymix may in its discretion require a
Carrier or Carriers to have fitted a catalytic converter (or similar device)
for the purposes of servicing tunnel work. Such supply shall be at the expense
of Readymix. Readymix will supply the relevant converter and arrange for it to
be fitted provided however that where a fitting of a converter would have the
effect of voiding the warranty of the truck manufacturer then Readymix will not
proceed with fitting.
13.2 Criteria
(a) No
Concrete Truck or Agitator shall be brought into service by the Carrier for the
purposes of this Determination without the prior written consent of Readymix.
(b) Subject
to sub clause (c) hereof the Carrier's Concrete Truck must be capable of taking
and be adequately powered to take, a hydraulic Agitator powered from a rear
mounted power take-off unit. Where Readymix provides the Agitator, the
Carrier's responsibility under this clause will be to provide an accessible
bare power take-off shaft. However, any modification to the Concrete Truck to
accommodate the hydraulic drive connection to the Agitator shall be at the
Carrier's cost.
(c) Readymix
shall approve a Concrete Truck with a front PTO if the Truck is an existing
fleet vehicle. Any new or replacement truck must be capable of carrying a rear
PTO.
13.3 No Loading
(a) Without
liability to the Carrier, Readymix may refuse to load its Concrete Truck if
that Concrete Truck is unregistered, uninsured or, in Readymix's reasonable opinion,
defective so as to render its operation unsafe.
(b) Where
Readymix has relied on its right not to load a Concrete Truck on the basis that
it is defective, and the Concrete Track is subsequently shown not to be
defective to the satisfaction of the RTA, the Carrier will be paid by Readymix
demurrage in accordance with item I of schedule 1 together with any additional
statutory charges that the Carrier can establish it incurred.
13.4A Repairs
An unserviceable Concrete
Truck must, as soon as practicable, be repaired and returned to the Plant to
which the Concrete Truck is assigned. The Concrete Truck's place in the loading
order when it returns to the Plant fully repaired, will be in accordance with
clause 0 as if the Concrete Truck had returned from delivery
of a load of concrete.
13.4 B Detention Time
Where a Carrier is unable to
obtain a registration certificate from the RTA due to the fault of the agitator
supplied by Readymix, rather than the vehicle of the Carrier, then the Carrier
is entitled to be paid Detention Time in accordance with item E of schedule 1
and Unloaded Kilometres to and from the Carriers rostered plant in accordance
with item H of schedule 1.
13.5 Notification
Of Absence
(a) Where
the Carrier is unavailable to perform services under this Determination, it
will arrange for the Readymix Representatives at the Plant to which the
Concrete Truck is rostered to be informed at the earliest possible time of the
reason and the anticipated period of absence.
(b) If the Carrier's Concrete Truck is
available to perform services under this Determination less than 95% of the
Working Days over a Four Quarter period calculated on a Moving Annual Total
basis, then the Carrier will be in breach of this Determination and Readymix
has the right to take disciplinary action
which may include termination of cartage contract. Readymix will take into
account special and extraordinary circumstances (eg. Bereavement) when
determining what disciplinary action will be taken under this clause.
For the purposes of this
paragraph 0, the Carrier's Concrete Truck will be deemed to be
unavailable to perform services on a Working Day if the Concrete Truck is
unavailable to load and mix concrete at the starting time and Plant designated
by Readymix in accordance with the provisions of this Determination, or if the
Concrete Truck is not available for more than 2 hours once work has commenced
due to genuine breakdown or mechanical failure provided further that the
Carrier must have completed the first load of the day in order to have the
benefit of the 2 hour period.
Note: This clause will not
operate if the unavailability of the Concrete Truck arises by reason of the
breakdown of a mixer supplied by Readymix.
13.6 Registration
(a) The
Carrier must provide to Readymix's Representative at least two weeks' prior
notice of the date on which the Carrier's Concrete Track is to be inspected by
the relevant State Authority for registration.
(b) It
is the obligation of the Carrier to ensure that its vehicle is in valid
registration at all times.
13.7 Minimum Capacity And Configuration
The Carrier must provide a
suitable Concrete Truck having the Load Capacity of either 5.6m³ for a 6 wheel
vehicle or 7.0m³ for an 8 wheel vehicle. Readymix will provide the Carrier with
a Mixer with a rated mixing capacity of at least 6.0m³ for a 6 wheel vehicle
and at least 7.4m³ for an 8 wheel vehicle.
13.8 Warranty
The Carrier warrants and
agrees that it:
(a) Is
the registered proprietor of the Concrete Truck to be utilised for the purpose
of providing services pursuant' to this Determination.
(b) Is
entitled to possession and use of the Concrete Truck for the purposes of this
Determination; and
(c) Has
not modified its Concrete Truck so as to prevent equipment required by Readymix
being fitted or so as to invalidate any insurance.
13.9 Cleaning Of Truck
(a) The
Carrier must ensure that the Concrete Truck is kept clean and tidy to the
satisfaction of Readymix. Readymix will monitor the presentation and image of
the Concrete Truck to ensure that the appropriate standard is maintained.
(b) Where Readymix considers the
presentation of the Concrete Truck is not to an appropriate standard, the Carrier
will be notified that the Concrete Truck must be cleaned to a standard
acceptable to Readymix within four days of the date of notification. If after
the four day notice period the Concrete Track remains unacceptable in its
presentation to Readymix, then Readymix can refuse to load the Concrete Truck
until such time as its presentation becomes acceptable to Readymix. Any period
during which Readymix is loading the Carrier's Concrete Truck pursuant to this
clause 13.9(b), will be considered a period of unavailability for the purposes
of clauses 5.3 and 13.5b.
13.10 Parking Of Truck
A Carrier's Concrete Truck is
to be parked only in places approved by Readymix. The Carrier is responsible
for any loss of or damage to Readymix's communication equipment and any
Readymix supplied Agitator on the Concrete Truck. Where the Concrete Truck is
parked in a place approved by Readymix, the limit of the Carrier's liability
for damage to Readymix's Agitator and communication equipment will be that
covered by the insurance described in clause 10. Should the Carrier park the Concrete Truck at a place which is
not approved by Readymix, then the Carrier will be liable for any loss of or
damage to the truck or agitator.
13.11 Technology
Readymix may require that the
Carrier fit to the Concrete Truck a speed limiter, tachograph, GPS monitoring
or related technology. Such fitting and maintenance will be at the cost of
Readymix unless the equipment is deliberately or negligently damaged by the
Carrier.
14.
Responsibility for Load
14.1 Batching
Readymix will use its best
endeavours to ensure that each concrete load provided to the Carrier is batched
so that the quantity of water required to adjust the Slump does not exceed 10%
of the total water required to bring that load up to the specified Slump.
14.2 No Alteration To Specification Shown On
Docket
The specification of each
load of concrete shown on the concrete delivery docket issued by Readymix must
not be changed by the Carrier after batching.
14.3 Slump
Before leaving the Plant to
deliver a load, the Carrier will ensure that the load is properly mixed as
required by the written instructions provided by Readymix from time to time and
that, immediately prior to discharge, the Slump of the concrete is in
accordance with the current issue of Australian Standard AS1379 as varied or
replaced from time to time, or work instructions issued by Readymix.
For slump less than 60mm and
more than 150mm, Readymix may provide short term technical support at the
request of the Carrier to assist and train the Carrier in meeting the slump
requirement.
14.4 Change Of Ingredients
Readymix will post on notice
boards at the Plant, notice of any intended major changes to the source or type
of ingredients used in the concrete batched at the Plant that may change the
Slump characteristics of the concrete. If Readymix fails to provide such
notification of a change in ingredients, Readymix will assume responsibility
for Slump and the Carrier will be paid for all cartage at the full Utilisation
Cartage Rate, without penalty.
14.5 Rejection Of Load
(a) If
a load is rejected at a job site because the Slump of the concrete is outside
the nominated tolerance described in clause 14.3, or because the Carrier had
not complied with that clause, the Carrier will not be paid for the delivery of
the load and will be liable for the cost of the raw materials used in the load.
Note: If the delivery docket evidences instructions from the customer or
Readymix which have affected the slump, or if Readymix resells all of the
original load, the Carrier shall not be responsible for the cost of the raw
materials used in the load.
(b) However,
if Readymix has restricted the Carrier's ability to adjust the Slump of a load
on the job site and:
(i) the
Carrier is requested by a customer or a customer's representative to adjust the
Slump of the load; and
(ii) Readymix
approves such adjustment after discussion with the Carrier; and
the load is subsequently rejected on the basis of water
addition or non‑compliance with the nominated Slump tolerance, then
Readymix will pay the Carrier the cartage rate for the load as if the load had
not been rejected,
(c) if
the Carrier is requested by Readymix to adjust or maintain the Slump of a load
at a tolerance closer than that specified in the current issue of Australian
Standard AS1379 as varied or replaced from time to time, and the load is
rejected on the basis of non‑compliance, with the nominated Slump
tolerance, then Readymix will pay to the Carrier the Utilisation Cartage Rate
for the load as if the load had not been rejected.
(d) In
the case of Kerbmaker loads it is the responsibility of the Carrier to carry
the load as batched. If the load is out of slump it will not be the
responsibility of the Carrier unless the Carrier attempted to adjust the slump.
14.6 Additives
Where an additive is added to
the concrete by Readymix or at the customer's request, after the Carrier has
adjusted the Slump of the load, the Carrier will no longer be responsible for
the Slump of that load.
14.7 Agitator Drum
The Agitator drum must be
kept turning at all times when it contains concrete. Whilst being loaded and
whilst mixing concrete, the Carrier will maintain Agitator speed at 16
revolutions per minute or as specified by the manufacturer of the Agitator.
Agitator speed, whilst the Concrete Truck is in transit, with concrete on
board, will be operated by the Carrier at a minimum of one revolution per
minute.
14.8 Inspection Of Loads
(a) The
Carrier will procure that its Driver visually inspects each load prior to
leaving the Plant and will advise the Readymix Representative at the Plant of
any apparent unusual features of the load which may have occurred due to a
batching error, equipment failure, contamination or Carrier error.
(b) The
Carrier will not be responsible for irregularities of the load that cannot be
detected by visual inspection performed by the Carrier's Driver apart from
irregularities arising from non‑compliance with the obligations in clause
14.3.
14.9 Topped‑up Loads
(a) Notwithstanding
any other provision of this Determination, Readymix will assume responsibility
for the quality of a load of concrete where:
(i) Returned
Concrete is to be reused and is more than one and a half hours old by the time
it is delivered to a new customer; and
(ii) the
quantity of Returned Concrete is greater than 0.8 cubic metres; and
(iii) the load is topped up with fresh concrete by Readymix at the
Plant.
(b) The
Carrier will be responsible for any contravention of the legal load limits applicable
to the Concrete Truck in relation to topped‑up loads. Readymix will
provide the Carrier with the ability to dump any concrete from the topped‑up
load which would place the Carrier in breach of the legal load limit.
14.10 Practicable Route
In delivering concrete to
Readymix customers, the Carrier shall procure that its Driver takes the
shortest Practicable Route to and from the Plant. The Carrier shall also
procure that its Driver follows any directions provided by Readymix in relation
to the shortest Practicable Route to and from the Plant for particular
deliveries.
15.
Obligations at Delivery
15.1 Signatures For Delivery
(a) Readymix
will issue with each Load a delivery docket showing the details of the load to
be delivered by the Carrier and details to be completed by the Carrier at the
delivery site. The delivery docket will also have a place for the customer's
representative to sign confirming delivery of the Concrete.
(b) At
the job site to which the Carrier delivers a load of concrete, the Carrier
shall procure that its Driver will make every reasonable endeavour to obtain
all required signatures on the delivery docket for the load, waiting time,
surcharges and addition of water and it is the Carrier's responsibility to
ensure that each of its Drivers contact dispatch immediately by two‑way
radio when a problem arises with obtaining a signature from the customer as
required by Readymix.
(c) If
a signature or signatures from a specific person is or are required by
Readymix, Readymix will be responsible for ensuring that the nominated person
is available at the point of discharge at the time of completion of the
discharge of the load.
(d) If
a signature or signatures from the customer or its representative on site at
the delivery point cannot be obtained then the Carrier's Driver must sign the
docket and print his or her name in a legible manner in the appropriate section
of the delivery docket as verification that the concrete has been delivered.
Failure to complete this process will result in the Carrier not being paid the
cartage rate for the delivery.
(e) The
Carrier is required to return all delivery dockets correctly completed for
every load to the Plant from which the delivery was made, or the next Plant
from which the Carrier next loads, at the time of loading on every Work Day.
Failure to return all completed delivery dockets will result in the Carrier not
being paid the cartage rates for each delivery docket not received by the
Readymix Representative at the Plant.
(f) The Carrier will not knowingly falsify
any details on a delivery docket and in the event of falsification, this
Determination may be terminated for breach.
15.2 Payment
On Delivery
The Carrier will direct its
Driver to comply with the following requirements:
(a) The
Driver will ensure cash or cheques are collected from those customers
designated by Readymix as "cash/cheque on delivery" customers for all
concrete charges including waiting time, if applicable. All moneys collected
will be submitted in full to the Readymix Representative as soon as possible on
return to the Plant. The Readymix Representative will sign the Carrier's copy
of the delivery docket as recognition of receipt of money.
(b) The
Driver will immediately advise Readymix by two‑way radio when a cash on
delivery payment is not collected or a dispute arises between the Carrier and
the customer.
(c) The
Driver is not required to carry a float for the purposes of providing a change
facility.
(d) The
Driver shall take all due care of any money collected until the money is handed
to the Readymix Representative at the Plant.
(e) The
Driver is no longer held responsible for the moneys once the Readymix
Representative signs the Carrier's copy of the delivery docket recognising
receipt of moneys in respect of the relevant customer.
15.3 Job Site Entry
(a) Where
a site is reasonably considered to be unsafe or hazardous to enter then the
Carrier is not obliged to attempt delivery of the load.
(b) The
Carrier is expected to make an honest and professional assessment of the site
in question before the Carrier concludes that the site is unsafe or hazardous
to enter.
(c) In
the case of an unsafe or hazardous site the Carrier must contact the relevant
Readymix manager, who must attend the site and determine what action should be
taken.
(d) Providing
the Carrier has made an honest and professional assessment of the site the
Carrier will be paid cartage for the load in question.
15.4 Bogged Vehicles
(a) Where the Carrier enters a job site
beyond the road kerb line to complete a delivery and the Concrete Truck becomes
bogged or is otherwise rendered inoperative as a consequence of such attempted
delivery, Readymix will arrange the services of an experienced salvage
contractor to extricate the Concrete Truck as soon as possible and shall bear
all costs for those arrangements. It is
the responsibility of the Carrier to notify the plant immediately that the
truck becomes bogged.
(b) Readymix will ensure that the salvage
contractor selected is covered by the appropriate insurance policy to rectify
any damage that the salvage contractor may cause to the Concrete Truck during
the extraction process. If the Carrier
utilises its own salvage contractor then Readymix has no liability whatsoever.
Any damage arising will be the subject of the Carriers insurance.
(c) During
this process the Carrier will be entitled to be paid Waiting Time during the
normal trading hours (or as otherwise specifically directed by Readymix)
provided that the Carrier follows the process detailed in this clause.
(d) If
the Carriers Concrete Truck becomes bogged or inoperative as a direct result of
the Carrier's Driver's negligence or any wrongful act by the Driver any Waiting
Time will not be payable and all costs associated with the salvage or the loss
of concrete will be the responsibility of the Carrier.
15.5 Damage To Property Or Vehicles
(a) The
Carrier shall be responsible for any damage to property arising from or during
off-kerb deliveries. The responsibility of the Carrier can be removed if the
Carrier obtains from the customer in question a signed form of waiver (approved
by Readymix), however the carrier will remain liable at all times for any
failure to exercise due care and skill in delivering concrete.
(b) If
the third party property is damaged by the carrier during an off-kerb delivery
and the Carrier is responsible pursuant to Clause 15.5 (a) above, then the
Carrier must:
(i) make
good the damage; or
(ii) pay
appropriate compensation; or
(iii) supply a valid insurance claim number to Readymix within seven
(7) days of the damage occurring.
If the Carrier fails in its obligations under this
sub-clause then Readymix itself can choose to make good the damage or pay
appropriate compensation and deduct the reasonable cost thereof from the next
payment(s) due to the Carrier.
(c) The
Carrier shall be responsible at all times for any damage occurring to either
the vehicle or the agitator which occurs during the making of deliveries of
concrete.
16.
Site Cleaning
16.1 Carrier's Obligation
The Carrier shall at its own
cost, and to the satisfaction of Readymix:
(a) clean
up and remove from Readymix's premises, roadways, customers' sites and public
property, any concrete spillage occurring from the vehicle of the Carrier other
than spillage which occurs during the loading process;
(b) immediately
report to Readymix any spillage of concrete, any necessity to clean up a site
or public property and any damage caused by the concrete spillage.
Note: the obligations of the
Carrier under this clause are not intended to create cost and expense to the
Carrier in any spillage incident which is very clearly not the fault of the
Carrier.
16.2 Reimbursement Of Readymix
Where, in Readymix's
reasonable opinion, the Carrier:
(a) has
not cleaned up to a standard required by clause 0; or
(b) has
not effected the clean up in a timely manner;
then Readymix may itself undertake the clean up
provided it has first notified the Carrier of its intention to do so and
afforded the Carrier an opportunity to rectify the matter and Readymix may
deduct the reasonable costs of clean up from the next payment(s) due to the
Carrier. A Carrier shall not be deemed unavailable while cleaning up under this
clause.
17.
Breakdowns
Neither Readymix nor the Carrier
shall be responsible to each other for any loss resulting from Plant, Agitator
or Concrete Truck breakdowns.
18.
Communication Equipment
18.1 Readymix To Install
The Carrier will allow
installation by Readymix of a two‑way radio and such other communication
equipment in its Concrete Truck as required by Readymix. All equipment is to be
installed by a technician approved by Readymix and will be installed to a
professional standard. The installation will include all necessary equipment
and will be at no cost to the Carrier. Workshop transfer rates will be paid if
the Carrier is required to go to the Workshop.
18.2 Ownership Of Equipment
The two-way radio and other
communication equipment installed at Readymix's request in a Concrete Truck
remain at all times the property of Readymix. The Carrier will take due care to
ensure adequate protection of the equipment from damage and theft.
18.3 Operation
And Maintenance
All communication equipment
is to be carefully operated by the Carrier in accordance with procedures laid
down from time to time by Readymix. Readymix will be responsible for the
maintenance of the two‑way radio and any other communication equipment
which Readymix has installed in the Concrete Truck. The Carrier will make the
Concrete Truck and the communication equipment available for the provision of
maintenance services at times and places required by Readymix. However, any
damage to the communication equipment by the Carrier will be repaired by Readymix
at the Carrier's cost.
Readymix will provide to the
Carrier at no cost to the Carrier, any and all signage and instructions
required to properly operate the equipment installed in the Concrete Truck by
Readymix.
18.4 Removal
When the two-way radio and any
other communication equipment is removed from the Concrete Truck, Readymix will
make good any holes in bodywork to permit installation of the equipment. The
Carrier will make the Concrete Truck available to Readymix for removal of the
two-way radio and other communication equipment supplied by Readymix upon
termination or expiration of this Determination. This clause 0 will survive termination or expiration of the
Determination.
19.
Provision of Agitator
19.1 Provision
Readymix, will provide and
maintain the Agitator unless by mutual agreement the Carrier provides and
maintains the Agitator. In any event, the Agitator must meet the requirements
of section 3.4 of Australian Standard 1379 of 1997 as varied or replaced from
time to time.
19.2 Fitting Of Agitator
(a) Where
Readymix provides the Agitator, Readymix will ensure the safe and proper
initial fitting of the Agitator to the Concrete Truck and that it will be in
accordance with the specifications of the Concrete Truck and the manufacturer
of the Agitator.
(b) If
an Agitator is required by Readymix to be removed at any time for any reason,
the total cost of the Agitator's removal and replacement shall be borne by
Readymix. Provided it has gained prior approval of Readymix, a Carrier may
remove the Agitator and the costs of removal and replacement will be borne by
the Carrier.
(c) After
the initial fitting of the Agitator, the Carrier will be responsible for the
Agitator being properly secured to the Concrete Truck. If the agitator is not
properly secured the Carrier must inform Readymix immediately and Readymix will
then be responsible for making it secure. The Carrier will be responsible for
all minor maintenance as defined in clause 1.1 Definitions.
(d) The
Carrier will be responsible for meeting all costs associated with the repair or
replacement of the Agitator where it has been damaged. Repairs or replacement
must be carried out within a reasonable timeframe as required by Readymix, and
to the reasonable satisfaction of Readymix.
19.3 Removal Of Agitator
(a) Where
Readymix owns the Agitator, it remains the property of Readymix and on
termination or expiration of this Determination, will be removed by Readymix on
the day and at a location nominated by Readymix. If the removal is not
completed in one day the Carrier will be entitled to demurrage in accordance
with Item I of schedule 1.
(b) The Carrier
will be paid the amount specified in item H of schedule 1 to travel to the place nominated by Readymix for removal of the
Agitator.
(c) This
clause 0 shall survive termination or expiration of this
Determination.
19.4 Agitator Provided By Carrier
(a) The
provisions of this clause 19.4 apply where the Agitator has been supplied by
the Carrier.
(b) Unless
otherwise agreed, any Agitator supplied by the Carrier must at the time of
supply be new, unused and with the manufacturer's compliance plate dated not
earlier than six months prior to the Commencement Date.
(c) An
Agitator supplied by the Carrier will have a rated mixing capacity as
designated by Readymix and be strictly in accordance with the Readymix's
specification for Agitators issued from time to time. The Agitator shall be
securely fitted to the Concrete Truck in accordance with the Concrete Truck's
and the Agitator's manufacturer's specifications. The Carrier will meet all
costs associated with provision and fitting of the Agitator.
(d) After
giving reasonable notice to Readymix, the Carrier may, with Readymix's prior
consent, replace the Agitator with another Agitator of the same Configuration
which is new at the time of supply, unused and with a manufacturer's compliance
plate dated no earlier than six (6) months from the date of notice to Readymix
pursuant to this paragraph.
19.5 Cleaning Of Agitator
(a) The
Carrier will thoroughly wash out the Agitator and will keep all external
surfaces clean and treated as required by Readymix.
(b) All
cleaning materials and equipment necessary for cleaning of the Agitator will be
supplied by Readymix and Readymix will ensure compliance with any and all
statutory requirements and regulations relating to the use of these cleaning
materials.
(c) Where Readymix considers the
presentation of the Agitator not to be to an appropriate standard, the Carrier
will be notified in writing that the Carrier must within four days bring the
Agitator up to a standard acceptable to Readymix. If after four days' notice
the Agitator remains in a state that is unacceptable to Readymix, then Readymix
may refuse to load the Carrier's Concrete Truck until such time as the Agitator
becomes acceptable to Readymix. Any period during which Readymix is not loading
the Carrier's Concrete Truck pursuant to this clause 19.5(c), will be considered
a period of unavailability for the purposes of clauses 5.3 and 13.5(b).
19.6 Maintenance Of Readymix Supplied Agitator
(a) This
clause 0 applies in circumstances where Readymix has supplied
the Agitator.
(b) Readymix
will be responsible for all major maintenance to the Agitator, in accordance
with the Agitator's manufacturer's recommendations.
(c) The
Carrier shall report any and all apparent requirements for maintenance of the
Agitator to the Readymix Representative. The Carrier will be responsible for
all minor maintenance as defined and as described in written procedures
provided by Readymix to the Carrier from time to time. Subject to clause 0, all parts, tools, materials and equipment for
maintenance of the Agitator will be supplied by Readymix.
(d) When
required by Readymix, the Carrier will convey the Agitator to a workshop for
repairs and/or maintenance as requested by Readymix. All work will be completed
as soon as practicable provided however that if the work is not completed with
seven (7) calendar days then the Carrier shall be paid demurrage in accordance
with item I of schedule 1 for each additional day. Where the Carrier is
required to convey the Agitator to a workshop for repairs in accordance with
this clause, the Carrier will be paid an amount as specified in item H of
schedule 1. In such circumstances where
the Carrier is required to spend more than four hours at the workshop, Readymix
will also provide a means, at Readymix's cost, for conveying the Carrier's
Driver to his/her place of residence or the Plant whichever is the lesser
distance and returning him/her to the workshop as required.
19.7 Maintenance Of Carrier Supplied Agitator
(a) This
clause 0 applies where the Agitator has been supplied by the
Carrier.
(b) The
Carrier is responsible for all maintenance associated with the Agitator. All
maintenance shall be carried out strictly in accordance with the Agitator's
manufacturer's recommendations and programs, the requirements of Australian
Standard 1379 of 1997 (as varied or replaced), and to the absolute satisfaction
of Readymix provided that at all times Occupational Health and Safety laws shall
be observed.
(c) Readymix
shall have the sole right to instruct the Carrier to undertake any and all
repairs and/or maintenance of the Agitator to ensure Readymix's operational
standards as established from time to time are met. Such repairs and maintenance
shall be undertaken at the Carrier's cost without delay and within the
timeframe specified by Readymix.
(d) Readymix shall have the right to refuse
to load the Carrier's Concrete Truck where Readymix required repairs and
maintenance to the Agitator have not been completed by the time required by
Readymix. Any period during which Readymix is not loading the Carrier's
Concrete Truck pursuant to this clause 0, will be considered a period of unavailability for
the purposes of clauses 0 and 0.
20.
Manning
20.1 Obligation
The Carrier must supply a
Concrete Truck and Driver to mix, transport and deliver concrete for Readymix
as and when required by Readymix. Where Readymix becomes aware that the
requirements of its business may necessitate extended hours for delivery of
concrete or other designated material, it shall provide the Carrier with
reasonable notice of the extended hours so that the Carrier can ensure the
Carrier meets its obligations under fatigue management legislation.
20.2 Leave
Readymix may require the
Carrier to provide a substitute Driver during any period of leave. Any
substitute Driver must be approved by Readymix in accordance with clause 20.3.
Where Readymix requests that a Carrier supplies a substitute driver during a
leave period (eg. Christmas) then Readymix will pay the shortfall between the
labour cost component of the utilisation rate paid for cartage in the relevant
period and the labour cost of the substitute driver for the same period.
20.3 Approval
(a) The
Carrier must obtain Readymix's prior approval, for each substitute Driver
employed or engaged by the Carrier.
(b) In considering whether to give such
approval, Readymix shall take into account, without limitation, the following
matters:
(i) the
person's ability to competently operate all the equipment requested and
maintain good customer relations.
(ii) the
person's standard of efficiency in particular the ability to slump a load of
concrete.
(iii) proof that the substitute driver has a valid and appropriate
drivers licence.
(c) The
Carrier will be responsible for providing from its proposed Driver any form of
consent required by Readymix to receive and review personal information
relating to the Driver so as not to place either the Carrier or Readymix in
breach of relevant privacy legislation.
20.4 Nominated Driver
The Carrier's nominated
Driver will not be replaced without the prior written approval of Readymix. A
Driver's replacement during periods of absence from the Carrier's employment or
engagement must also satisfy Readymix in relation to the matters addressed in
clause 20.3 (b) and (c) unless otherwise agreed.
20.5 Compliance With Determination
(a) The
Carrier must procure that a Driver engaged or employed by the Carrier is made
aware of the Carrier's Service Obligations under this Determination, and of
Readymix's rights under this Determination, and that the Driver complies with
the Carrier's Service Obligations under this Determination, and respects
Readymix's rights, as if the Driver was the Carrier.
(b) For
the sake of clarity, where this Determination requires the Carrier to perform
some obligation or task that in practice is logically to be performed by the
Carrier's Driver (including Carrier Service Obligations), the Carrier will,
without diminishing the Carrier's primary responsibility for that obligation,
procure that the Driver performs the relevant obligation or task. Any failure
by the Driver to perform any such obligation or task shall be construed as a
failure by the Carrier.
20.6 Provision of
Documents
The Carrier will itself, and
will procure, that the Driver provides to Readymix on demand, or within such
period as may be nominated by Readymix, a true copy of:
(a) in
respect of the Driver, the Driver's current driving licence, from time to time;
(b) all
certificates of insurance required by this Determination to be held by the
Carrier;
(c) the
current registration and roadworthy certificates relating to the Concrete Truck
from time to time; and
(d) any
other documentation which is required by Readymix to meet State or Federal
legislation or required by Readymix to reduce Readymix’s liability under State
or Federal legislation.
Failure by the Carrier or the
Driver to comply with this clause will entitle Readymix to refuse to load the
Carrier's Concrete Truck until compliance occurs and, (for the purpose of
avoiding doubt) to treat the non‑compliance as a breach of this
Determination entitling Readymix to serve a notice of breach. Any period of non‑loading
in accordance with this clause shall be treated as a period of unavailability
for the purpose of clauses 5.3 and 13.5(b).
20.7 Immediate Notification
The Carrier and the Carrier's
Driver are to immediately notify Readymix if the Driver is disqualified from
driving the Concrete Truck or, if the Carrier's insurance policies required by
this Determination are not renewed.
21.
Fuel and Oil
(a) The Carrier is
responsible for providing the fuel to operate the Concrete Truck including the
Agitator.
(b) Where Readymix
provides the Agitator to the Carrier, Readymix is responsible for providing oil
and grease for operation and lubrication of the Agitator.
(c) Where the
Carrier provides the Agitator, the Carrier will be responsible for providing
oil and grease for operation and lubrication of the Agitator at its cost.
22.
De-Dagging
(a) It shall be
the responsibility of the Carrier to ensure that de-dagging is carried out
regularly so that the Agitator is always in a state which is satisfactory to
Readymix
(b) The Carrier
has the responsibility to ensure that de-dagging is only ever performed by a
licensed contractor or other suitably trained and qualified person and
performed in a safe manner at all times.
(c) Should the
Carrier wish to carry out de-dagging on Readymix property all Readymix
procedures and policies must be adherered to.
(d) Readymix shall
have the right to refuse to load a Concrete Truck where de‑dagging to the
satisfaction of Readymix has not been completed.
23.
Painting and Sign Writing
23.1 Painting
Of A New Truck
A New Truck supplied by the Carrier at the commencement
of this Determination and whenever replaced will be painted in Readymix's
corporate livery. The responsibility for painting the cab, chassis and wheels
of the Concrete Truck in the correct Readymix corporate livery is the
responsibility, and at the cost, of the Carrier at the point the Truck is
introduced to the fleet.
23.2 Painting
Of Agitator
Where the Carrier supplies the Agitator at the
commencement of this Determination or subsequently, the Carrier shall be
responsible for arranging and meeting the cost of painting the Agitator in
Readymix's corporate livery.
23.3 Finish
The painting required by this clause 0 is to be undertaken by a recognised truck painting
contractor approved in advance by Readymix, and the standard of finish is to be
not less than that provided by tradesmen specialising in this field.
23.4 Repainting
The Concrete Truck and any Readymix supplied agitator
are to be repainted at the cost of Readymix at a time deemed appropriate by
Readymix. The Carrier shall be responsible for the preparation of the chassis of
the truck prior to repainting (eg. sandblasting). The Carrier shall make the
truck available at the reasonable request of Readymix and at no cost to
Readymix for the repainting to be completed. If painting is not completed
within seven (7) calendar days then the Carrier shall be paid demurrage in
accordance with item I of schedule 1 for each additional day.
24.
Commitment to Training
24.1 Commitment
The Parties recognise the mutual benefits to be gained
through a greater commitment to safety and production training. Accordingly,
each Party commits itself to appropriate training programs in order to increase
the competitive performance and safety performance of Readymix and the Carrier.
24.2 Cost
And Amount
Readymix will have the right to require a representative
of the Carrier and the Carrier's Driver to attend training sessions each year
in matters determined as relevant by Readymix. The training will be at no cost
to Readymix and will be limited to twenty four (24) hours per annum provided
that if 24 hours is not reached in one year the unused balance may be added to
the next year but there shall be no further accumulation beyond that. The
training referred to in this clause 0 is in addition to the training referred to in clause 0.
24.3 Driver
Training
For drivers who are new to the company or in cases of
existing Drivers whose skill basis is considered by Readymix to be inadequate,
Readymix may require such Drivers to spend up to three weeks' training to
operate the Concrete Truck and in Slump control of concrete. This training will
include a period of up to three days in Readymix’s Quality Control Laboratory
under the supervision of a Readymix tester, and at least one day in Dispatch to
understand Dispatch status and communications requirements.
(a) Readymix will
provide appropriate personnel and equipment (excluding the Concrete Truck and a
Driver Trainer) for the purpose of providing the training. At the conclusion of
the three week training period, the relevant Drivers employed or engaged by the
Carrier will be assessed by Readymix in respect of the Driver's performance and
technical ability for the purposes of clause.20.3.
(b) Where a
Carrier attends training at a venue away from the Carrier’s rostered plant then
the Carrier will be entitled to be paid a kilometre based travel allowance for
the distance between the rostered plant and the training venue. The allowance
shall be the kilometre rate specified in Item J of schedule 1.
25.
Occupational Health and Safety
25.1 Safety Improvement Teams
Readymix will establish
Safety Improvement Teams consistent with Occupational Health & Safety
(OH&S) legislation and Readymix policies. A representative of the Carrier
will, and the Carrier's Driver(s) will participate fully in, and periodically
lead, the Safety Improvement Team in rotation with other representatives of
other Contractors and Readymix, and will also attend such other safety meetings
(eg. a Tool Box Meeting) specified by Readymix. Carriers involved in SIT
meetings will be paid at the rate specified in Item F of schedule 1.
25.2 Safety Inductions
The Carrier and its Driver(s)
will attend all appropriate Readymix and delivery site safety inductions and
safety training as required by Readymix and its customers and provide current
documentation required in this regard by Readymix or Readymix’s customer. Such
attendance will be at no cost to Readymix.
25.3 Determination
The parties agree that
Readymix, the Carrier and any Driver engaged by the Carrier will comply with:
(a) Relevant
OH&S legislation in relation to the provision of services pursuant to this
agreement;
(b) Readymix
Safety Health & Environment Policies issued from time to time by Readymix;
(c) Readymix
Safe Work Method Statements and Procedures; and
(d) The
requirement that all Readymix issued Personal Protective Equipment shall be
worn as required by Readymix whilst a Carrier is providing cartage services
under this Determination.
26.
Drivers Room
(a) The
Drivers Room provided by Readymix at Plants for use by the Carrier are to
comply with all relevant provisions of the State Workplace
Health & Safety legislation
(b) All
Carriers will participate equally in keeping Drivers Rooms clean and tidy at
all times.
27.
Carrier's Equipment
27.1 Storage
Subject to Readymix's prior
approval, Readymix will provide to the Carrier at the Plant from which the
Carrier operates from time to time, sufficient space for the storage of no more
than two (2) spare tyres for the Concrete Truck. No other equipment is to be
stored by the Carrier on Readymix premises without the written approval of
Readymix. Readymix can remove from its premises other Carrier equipment that
has not been approved and charge the Carrier for removal and disposal costs.
27.2 Marking
Any tyres stored by the
Carrier in accordance with this clause must be marked so identification will
match the tyres to a fleet number for the Carrier's Concrete Truck. If tyres or
other equipment belonging to the Carrier exceeds the quantity of Carrier
equipment for which Readymix has given approval for storage, or in
circumstances where Readymix cannot identify ownership of stored equipment,
Readymix has the right to remove the excess equipment and to dispose of it
appropriately. Readymix will give at least 48 hours notice where removal is
required.
27.3 No Liability
Readymix will not be liable
to the Carrier for any loss or damage to the Carrier's equipment stored at a
Plant or other Readymix premises.
28.
Uniforms and Personal Protective Equipment
28.1 Readymix To Provide
Readymix will provide
uniforms for each Carrier and will supply personal protective equipment (PPE)
that meet Readymix's specified uniform and clothing requirements and the relevant
Australian Standard for PPE. Changes to Readymix's policies regarding clothing
and PPE will be issued to the Carrier from time to time and the obligations in
this clause 0 relate to the latest version of the specifications
issued from time to time by Readymix.
28.2 Uniform To Be Worn
The Carrier will ensure that
the principal Driver wears the Readymix uniform and the relief Driver is
appropriately attired.
29.
Emergencies and Incidents
29.1 Carrier To Follow Readymix Procedures
The Carrier and its Driver
will comply with the emergency procedures specified by Readymix from time to
time.
29.2 Reporting Incidents
The Carrier shall immediately
advise Readymix of any incident, including any near miss, whether or not
involving injury to people or damage to property or the environment, or any
accident involving the delivery of concrete or the Concrete Truck, by
contacting the Readymix Representative at the Plant from which the Carrier is
working on the day of the incident.
29.3 Investigation
The Carrier will provide all
reasonable assistance to Readymix in relation to any Readymix investigation of
an incident of the kind referred to in clause 0.
29.4 Reporting Defects, Loss Or Theft
A Carrier will report to a
Readymix representative immediately any damage, defect, loss or theft relating
to the Carrier that is relevant to the performance of its obligations under
this Contract, Readymix, or the Plant or Readymix equipment at the Plant.
30.
Dealings with Customers
The Carrier acknowledges that Readymix's business and the
Carrier's income is directly related to the way in which the Carrier interacts
with customers of Readymix. Consequently, the Carrier will, and will ensure
that its Driver(s) will, always:
(a) interact with
customers in a courteous and helpful manner;
(b) report
immediately to Readymix any customer complaint made to the Carrier or its
Driver(s);
(c) wherever
possible, comply with reasonable and lawful customer requirements in relation
to delivery of concrete to the customer; and
(d) not do
anything which is likely to lead to dissatisfaction on the part of the customer
with the service provided by the Carrier or the quality of the concrete delivered.
31.
Compliance with Policies
31.1 Obligation
The Carrier will comply, and
will ensure that its Driver(s) complies with, the fairness and respect policy
set out in schedule 4 to this Determination. Failure to comply with schedule 4
may result in termination of this Determination for breach.
31.2 Operational Procedures
Readymix will provide the
Carrier with a written procedure relating to the delivery of concrete. The
procedure will comply with all requirements of relevant legislation including environment
protection legislation and associated local government environmental licence
conditions policies and guidelines. The Carrier will be responsible for
compliance with Readymix's written procedures by the Carrier and its Driver(s)
and the Carrier's duty of care as detailed in the relevant legislation.
32.
Dispute Resolution
(a) In
the event of a dispute relating to this Determination, the Carrier and the
Readymix Representative at the relevant Plant from which the Carrier is
operating at the time that the dispute arose, will, within 48 hours of the
dispute arising, meet to seek to resolve the dispute.
(b) If
the dispute is not resolved within the following five (5) Business Days (or
such longer period as may be agreed), a Director of the Carrier will, within a
further two (2) Business Days, meet with Readymix's General Manager for the
Relevant Operational Area to seek to resolve the dispute. The Carrier may seek
union representation at the discretion of the Carrier.
(c) If
the dispute is not resolved within the following five (5) Business Days, then
either Party has the right to refer the matter to the Industrial Relations
Commission of New South Wales. It shall be at the discretion of the Carrier as
to whether the Carrier seeks the assistance of the Transport Workers Union of
Australia New South Wales Branch.
(d) The
time frames contained in this procedure are intended as general guides rather
than literal requirements.
(e) It
is understood and accepted by all parties that work shall continue normally
during all aspects of this Disputes Procedure.
33.
Termination of Contract
33.1 Termination By Readymix Without Compensation
Readymix has the right to
terminate the Contract of a Carrier without compensation to the Carrier where:
(a) The
Carrier or its Driver has committed an act of serious misconduct (which shall
include but not be limited to theft, violence or violent threats, fraud, etc);
or
(b) Persistent
performance failures notified to the Carrier; or
(c) Serious
or persistent safety or environmental breaches by the Carrier or its driver and
notified to the Carrier.
33.2 Termination
By Readymix With Compensation
Readymix may terminate the
Contract of a Carrier without cause in the following manner, and subject to the
following conditions set out in this clause 0:
(a) Readymix can terminate this
Determination by providing to the Carrier written notice of termination as detailed in sub clause (b) hereof;
(b) In
the event of termination under this clause Readymix shall give to the Carrier
twelve (12) weeks notice which may be worked or paid wholly or partly in lieu.
At the end of the notice period (or upon payment of the in lieu portion)
Readymix shall pay to the Carrier the amount specified within the terms of the
following scale:
A. Category A and B
Contracts
|
Year of
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
8
|
9
|
10
|
|
Termination
|
|
|
|
|
|
|
|
|
|
|
|
$ Amount
|
$60K
|
$60K
|
$50K
|
$40K
|
$30K
|
$25K
|
$20K
|
$20K
|
$15K
|
$10K
|
|
Payable
|
|
|
|
|
|
|
|
|
|
|
B. Category C
Contracts
|
Year of
|
1
|
2
|
3
|
4
|
5
|
6
|
7
|
|
Termination
|
|
|
|
|
|
|
|
|
$ Amount
|
$40K
|
$30K
|
$25K
|
$20K
|
$20K
|
$15K
|
$10K
|
|
Payable
|
|
|
|
|
|
|
|
(c) The
Carrier and the TWU acknowledge and agree that the compensation provided under
this Determination is adequate and no action by the Carrier or the TWU will lie
under the Industrial Relations Act 1996 (NSW).
33.3 Termination By Carrier
At any time during the term
of this Determination the Carrier may terminate its contract by providing
Readymix with a minimum of twelve (12) weeks notice of termination.
34.
Assignment of Determination
34.1 Assignment By Carrier
(a) The Carrier may not assign its rights or
obligations under this Determination without the prior written consent of
Readymix.
(b) If
the Carrier wishes to assign the balance of the term of the cartage contract
granted under the provisions of this Determination at any time after the first
twelve (12) months from the Commencement Date, the following procedures shall
apply:
(i) The
Carrier shall first give notice in writing to Readymix of the Carrier's desire
to assign the balance of the term of the cartage contract;
(ii) If Readymix wishes to do so, Readymix
may acquire the balance of the term of the cartage contract, by providing to
the Carrier a written notice pursuant to this clause and tendering to the Carrier
payment in a sum equal to the amount that would be payable by Readymix to the
Carrier at the time of giving the notice under this clause as if Readymix were
terminating the cartage contract in accordance with the provisions of clause 0. The Carrier acknowledges that it is not entitled to
any payment for goodwill arising in relation to this Determination as a result
of any acquisition of the balance of the term of the cartage contract by
Readymix in accordance with this clause 0.
(iii) If Readymix does not serve the notice and tender the payment
in accordance with paragraph 0 within the 30 day period, the Carrier may assign the
balance of the term of the cartage contract to any other corporate entity
approved by Readymix, and which is prepared to execute a contract with Readymix
for the provision of the relevant services for the balance of the term of the
cartage contract with the Carrier.
(iv) In
seeking approval from Readymix to assign the balance of the term to another
entity, the Carrier will ensure that the proposed assignee provide such
information as Readymix may reasonably require in relation to the proposed
assignee. For the avoidance of doubt, it is acknowledged that Readymix may
refuse to approve a proposed assignment if it is not provided with the
information required in relation to the proposed assignee or if, having been
provided with information about the proposed assignee, Readymix is not
satisfied with the ability of the proposed assignee to provide services to the
standards required by Readymix.
(c) Carriers
with 12 or more years of service
A Carrier who has been
continuously contracted to Readymix (or
CSR Ltd) for a period of twelve (12) or more years as at the date of
commencement of this Determination has the right to seek to assign the balance
of the term of its cartage contract to any purchaser on the open market and in
such a case Readymix will forego its option to purchase the cartage contract
provided for in clause 34.2 (b) (ii) above if the Carrier concerned has a
demonstrated history of good performance with Readymix and its predecessor in
title. Provided however that it is agreed between the parties that the
operation of this clause will be restricted to the following maximum number of
Carriers:
|
First year of this
Determination:
|
twelve (12) Carriers.
|
|
|
|
|
Second year of this
Determination:
|
up to (12) Carriers subject to
the number of other
|
|
|
Carriers exiting the fleet in
that year.
|
|
|
|
|
Third year of this
Determination:
|
twelve (12) Carriers.
|
|
|
|
|
Fourth year of this
Determination:
|
six (6) Carriers
|
|
|
|
|
After the end of the fourth year
of this Determination this sub-clause (d) shall cease to operate.
|
34.2 Deemed Assignment
For the purposes of clause 0, a transaction that would involve a change in control
of the Carrier will be deemed to be an assignment of rights and obligations
under this Determination. For the purposes of this clause, a change in control
includes the power (whether it is legally enforceable or not) to control,
whether directly or indirectly, the composition of the Board of Directors of
the Carrier, the voting rights of the majority of the voting shares of the
Carrier, or the management of the affairs of the Carrier.
35.
Deductions
Where Readymix has
the right under this Determination to deduct any amount from monies it is
obliged to pay to a Carrier then such right shall not be exercised (except in
the case of a recovery of an overpayment) unless Readymix gives seventy two
(72) hours notice to the Carrier concerned. If the deduction is disputed by the
Carrier then the Disputes Procedure may be invoked in which case no deduction
shall be effected until the Disputes Procedure has been completed.
Schedule
1
SURCHARGES
Concrete Cartage Agreement
|
|
|
5500
|
6600
|
|
Symbol
|
Title
|
Rate
|
Rate
|
|
|
|
6 Wheel
|
8 Wheel
|
|
|
|
Truck
|
Truck
|
|
A
|
Mixing
in Yard Fee ($/m3)
|
$14.69
|
$13.40
|
|
|
= Load
fee only "O" at current MAT utilisation @ minimum 2m3
|
|
|
|
B
|
Standby
time ($ per half hour)
|
$17.12
|
$17.93
|
|
|
TI
Weekly casual rate divided by 38 per half hour
|
|
|
|
C
|
Call
out fee
|
$136.98
|
$143.45
|
|
|
= 8
times standby payment "B" ie. 4 hours standby
|
|
|
|
D
|
Delivery
outside normal hours ($/m3)
|
$4.28
|
$3.74
|
|
|
= TI
Weekly casual rate divided by 38 multiplied by 1.25 divided
|
|
|
|
|
by
average load
|
|
|
|
E
|
Detention
time ($/hr)
|
$36.36
|
$40.16
|
|
|
=
Demurrage "I" divided by 7.6, Maximum 7.6 hours per day
|
|
|
|
F
|
SIT
Payment
|
$14.47
|
$14.47
|
|
|
=
Grade 5 ME Weekly rate divided by 38
|
|
|
|
G
|
Waiting
time ($/minute)
|
$1.38
|
$1.55
|
|
|
=
Truck hire "K" divided by 60
|
|
|
|
H
|
Unloaded
kilometres ($/km)
|
$1.25
|
$1.44
|
|
|
=
Total running cost / total kilometres @ baseline utilisation
|
|
|
|
I
|
Demurrage
($/Day)
|
$276.34
|
$305.18
|
|
|
=
Total Fixed, Ownership & Overhead Cost divided by 268
|
|
|
|
|
(safety
net days)
|
|
|
|
J
|
Travel
cost rate (Personal Vehicle) ($/km)
|
$0.61
|
$0.61
|
|
|
=
Australia Taxation Office kilometre rate
|
|
|
|
K
|
Truck
hire ($/hour)
|
$83.07
|
$93.12
|
|
|
=Average
load @ average lead @ baseline productivity less 10%
|
|
|
|
L
|
Sunday
delivery ($/m3)
|
$6.85
|
$5.98
|
|
|
= TI
Weekly casual rate divided by 38 multiplied by 2 divided by
|
|
|
|
|
average
load
|
|
|
|
M
|
Public
holiday delivery ($/m3)
|
$8.56
|
$7.47
|
|
|
= TI
Weekly casual rate divided by 38 multiplied by 2.5 divided
|
|
|
|
|
by
average load
|
|
|
|
N
|
Adjacent
Transport Fee ($/m3)
|
$14.69
|
$13.40
|
|
|
= Load
fee only "O" at current MAT utilisation @ minimum 3m3
|
|
|
|
O
|
Load
Fee Only ($/m3) = Load fee at current MAT utilisation
|
$14.69
|
$13.40
|