Metromix Pty LimIted Mini Concrete Contract
Determination
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Metromix Pty Ltd.
(Case No. 10996 of 2017)
|
Before Commissioner Newall
|
6 December 2017
|
CONTRACT DETERMINATION
Clause No. Subject
Matter
1. AREA
INCIDENCE AND DURATION
1.1 Application
1.2 Stand
Alone
1.3 Commencement
and Nominal Term
2. CARTAGE
WORK AND RATES
2.1 General
2.2 Payment
2.3 GST
2.4 Method
of Payment
2.5 Account
Discrepancies - Potential Underpayment
2.6 Account
Discrepancies - Potential Overpayment
2.7 Review
of Rates
3. SAFETY
NET
3.1 Entitlement
3.2 Calculation
3.3 Working
Week for Purpose of Calculation 9
4. SURCHARGES
4.1 Standby
Time outside Normal Trading Hours
4.2 Standby
Time within Normal Trading Hours
4.3 Delivery
within Yard
4.4 Living
Away from Home Allowance
4.5 Road
and Bridge Tolls
4.6 Unloaded
Kilometres
4.7 Multiple
Discharge Points
4.8 Diverted
Loads
4.9 Returned
and Dumped Concrete
4.10 Delivery
outside Normal Hours
4.11 Call
Back
4.12 Waiting
Time
4.13 Transport
Materials other than Concrete
4.14 Night
Shift, Sundays and Public Holidays
5. PRIME
MOVER AND AGITATOR
5.1 Supply
and Suitability
5.2 Supply
and Suitability of New Prime Mover and New Agitator
5.3 Metromix Discretion to Allow Extension of Time
5.4 Agitator
Repair or Removal
5.5 Registration
5.6 Running
Expenses
5.7 Maintenance
and Repair
5.8 Cease
using Prime Mover
5.9 Painting
and Logo
5.10 Mass
Management
5.11 Maximum
Age for a Prime Mover
6. COMMUNICATION
EQUIPMENT
6.1 Provision
and Operation
6.2 Payment
6.3 Communication
Equipment - Custody
6.4 Communication
Equipment - Damage or Loss
6.5 Cease
using Communication Equipment
6.6 Return
of Communication Equipment
7. NOMINATED
DRIVER
7.1 Nominated
Plant
7.2 No
One else to Drive Vehicle
7.3 Substitute
Driver
7.4 Procurement
of Consent
7.5 Valid
Driving License and Permits
7.6 Change
of Address
7.7 Medicals
and Fitness
7.8 Compliance
with Employment Law
7.9 Notification
of Absence
7.10 Leave
Entitlements
7.11 Leave
8. USE
OF THE VEHICLE
8.1 Operating
Condition
8.2 Driving
of Vehicle
8.3 Cleaning
of Vehicle
8.4 Fines
8.5 Salvage
Rights
8.6 Inspections
and Tests
8.7 Road
Worthiness and Fit for Purpose
8.8 Tare
Weight
9. ROSTERING
9.1 Rosters
9.2 Own
Fleet etc.
9.3 Notification
for Next Day
9.4 Variation
and Compliance and Consultation
10. VEHICLE
TRANSFERS
10.1 Periodic
Transfer
10.2 Daily
Transfer
10.3 Voluntary
Productivity Transfer
11. LOADING
AND DELIVERY OF CONCRETE
11.1 Plant
11.2 Metromix to Nominate Load
11.3 Loading
Order
11.4 No
Loading
11.5 No
Alteration to Docket
11.6 Slump
11.7 Shortest
Practicable Route
11.8 Change
of Ingredients
11.9 Rejection
of Load
11.10 Additives
11.11 Mixing
and Transit
11.12 Job
Site Entry
11.13 Unloading
11.14 Unsafe
Unloading
11.15 Signatures
for Delivery
11.16 Bogged
Vehicles
11.17 Return
11.18 Cash
on Delivery
11.19 Damage
On Site
12. SITE
CLEANING
12.1 Contract
Carrier Obligations
12.2 Metromix’s Obligation
13. SUPERVISION
13.1 The
Contract Carrier must Supervise its Personnel
14. TRAINING
14.1 Cost
and Amount
14.2 Driver
Training
15. CONTRACTOR
MANAGEMENT SYSTEM
15.1 Provision
of Documents and Inductions
16. CONTRACT
CARRIER'S SPARE TYRES
16.1 Storage
16.2 No
Liability
17. WORKPLACE
HEALTH AND SAFETY
17.1 Safety
Meetings
17.2 Safety
Inductions
18. UNIFORMS
AND PERSONAL PROTECTIVE EQUIPMENT
18.1 Uniform
Supply
18.2 Personal
Protective Equipment
18.3 Replacement
19. EMERGENCIES
AND INCIDENTS
19.1 Contract
Carrier to follow Metromix Procedures
19.2 Reporting
Incidents
19.3 Investigation
19.4 Reporting
Defects, Loss or Theft
20. INSURANCE,
WARRANTY AND INDEMNITY
20.1 Vehicle,
Workers Compensation
20.2 Insurance
Policies
20.3 Premiums
20.4 Not
to Prejudice Insurance
20.5 Payment
of Excess
20.6 No
Guarantee
20.7 Implied
Warranties
20.8 Indemnity
20.9 Not
Liable
21. CONTRACTOR
FLEET SIZE
21.1 Right
to Increase Contractor Numbers
21.2 Right
to Decrease Contractor Numbers
22. USE
OF OTHER VEHICLES
22.1 Right
22.2 No
Improper Conduct
23. DISPUTES
Procedure
23.1 Application
of Procedure
23.2 Appointment
of Representative
23.3 Procedure
23.4 Notification
to Commission
23.5 Continue
to Perform Cartage Work
24. Additional
terms
24.1 Contract
Carrier’s who commenced before 1 October 2017
24.2 New
Contract Carriers
24.3 New
Contract Carriers - Plant Embargo
24.4 New
Contract Carriers - No ‘Gazumping
25. NOTICES
25.1 Delivery
25.2 Receipt
25.3 Proper
Address
26. Consultation
26.1 Committee
26.2 Meeting
26.3 Information
26.4 Payment
26.5 Annual
Verification
27. Delegates
27.1 Appointment
27.2 Opportunity
to Meet
27.3 Use
of Notice Board
27.4 Release
of Delegates
28. DICTIONARY
Schedule 1 - Cartage rates
Schedule 2 - Utilisation Reviews
Schedule 3 - Surcharges
Schedule 4 - Insurances
Schedule 5 - 1.0m3 Mover Specification
Schedule 6 - 2.0m3 Prime Mover
Specification
Schedule 7 - 3.0m3 Prime Mover
Specification
Schedule 8 - Rise and Fall
Schedule 9 - Forms
Schedule 10 - New Contract Carriers
Schedule 11 - Contract Carriers and their
Permitted Assignees who commenced before 1 October 2017
Annexure A - Assignment
Annexure B - Deed of Assignment
Annexure C - Termination Payment
Schedule 12 - Embargo Plant List
1. Area Incidence and Duration
1.1 Application
This
Contract Determination will operate with respect to contracts of carriage
between Metromix and its Contract Carriers operating
a Mini Vehicle engaged at Concrete Plants in New South Wales.
1.2 Stand Alone
This
Contract Determination applies to the exclusion of any
other Contract Determination whether made before or after this Contract
Determination is made.
1.3 Commencement
and Nominal Term
This
Contract Determination:
(a) rescinds and
replaces the Transport Industry - Metromix Concrete
Haulage Contract Determination published 8 April 2005 (349 I.G. 1025); and
(b) operates in
accordance with its terms from 1 January 2018 and has a nominal term of three
(3) years.
Notation: This Contract Determination has been
negotiated to be read alongside a Mini Cartage Contract.
Notation: If required by the Union, the parties to this
Contract Determination shall meet every 6 months during the nominal term to
discuss any issues associated with the implementation of this Contract
Determination.
Should any issue arise that requires the assistance of
the NSW Industrial Relations Commission, either party may apply to the NSW
Industrial Relations Commission to as they see fit.
2. Cartage Work and Rates
2.1 General
The Contract Carrier shall perform the
Cartage Work and do everything connected with it:
(a) in accordance with this Contract
Determination;
(b) with due care and skill and in a proper, co-operative and
professional manner;
(c) safely, and in accordance with Metromix's
safety requirements;
(d) in accordance with the day to day operational directions
given by Metromix;
(e) in accordance with any direction, policy, procedure or
specifications provided by Metromix;
(f) using best efforts to promote Metromix's
business;
(g) in good faith and without jeopardising or damaging Metromix's business; and
(h) in compliance with all relevant laws.
2.2 Payment
Subject to this Contract Determination, Metromix must:
(a) pay the Contract Carrier by the 10th day
of the next month for the Cartage Work
performed in the month in accordance with the Cartage Rates set out in Schedule
1 and the surcharges set out in Schedule 3; and
(b) provide the
Contract Carrier with a statement itemising the payments made to the Contract
Carrier.
2.3 GST
(a) Metromix will issue recipient created tax invoices in
respect of the Cartage Work.
(b) The
Contract Carrier must not issue Metromix with tax
invoices in respect of the Cartage Work.
(c) The
Contract Carrier must be registered for GST and must notify Metromix
of the date of the effect of any cancellation of GST registration.
(d) All
amounts referred to in this Contract Determination are exclusive of GST unless
expressly stated otherwise.
2.4 Method of Payment
Metromix will pay
the Contract Carrier by electronic funds transfer to the Contract Carrier’s
nominated account from a recognised financial institution.
2.5 Account Discrepancies - Potential
Underpayment
(a) Where
the Contract Carrier forms the view that the calculation of payments paid to
the Contract Carrier for an Accounting Period contains an error, the Contract
Carrier must advise Metromix in accordance with
clause 2.5(b) of the nature of the error and the value of the error within
thirty (30) days of receipt of the payment.
(b) The Contract Carrier must submit details
of the alleged error on a Cartage Adjustment Request Form (CAR).
(c) If
the alleged error relates to missing payments such as but not limited to,
Returned Concrete and Waiting Time, the Contract Carrier must provide a copy of
any relevant delivery docket and the relevant docket(s) must be properly signed
and completed.
(d) Metromix and the Contract Carrier must use their best
endeavours to resolve the issue within thirty (30) days from the date of
notification of the alleged error.
(e) If Metromix
and the Contract Carrier agree that an additional payment is due to the
Contract Carrier, that payment will be made in the next Accounting Period
immediately following the date on which the error is rectified.
(f) Despite clause
2.5(e) if the additional payment is in excess of $250.00, Metromix
will endeavour to pay the Contract Carrier within five (5) working days from
the date Metromix and the Contract Carrier agree that
the additional payment is due.
2.6 Account Discrepancies - Potential
Overpayment
(a) Where
Metromix reasonably determines that the Contract
Carrier has been overpaid, the amount of overpayment
will be deducted from the next payment due for the Accounting Period to the
Contract Carrier.
(b) Where the Contract Carrier’s Mini
Cartage Contract has been terminated, the Contract Carrier must reimburse Metromix within thirty (30) days of the date of
notification of the overpayment.
2.7 Review
of Rates
Metromix must review the Cartage Rates and Surcharges in
accordance with Schedule 2 and Schedule 8.
3.
Safety Net
3.1 Entitlement
Should a Contract Carrier’s earnings be less
than the Annual Earnings Safety Net payment at the completion of the last
Quarter of the calendar year, Metromix must pay the
Contract Carrier the difference between the Contract Carriers actual earnings
and the Annual Earnings Safety Net.
3.2 Calculation
The Annual Earnings Safety Net payment is
specified in Schedule 1 and is subject to variation in accordance with Schedule
2 and 8.
3.3 Working
Week for Purpose of Calculation
(a) The normal working week for the purpose
of calculation of Annual Earnings Safety Net payment is six (6) consecutive
days, Monday to Saturday inclusive, to a total of 268 days per annum. Any
Annual Earnings Safety Net payment payable to the Contract Carrier will be
reduced by 268ths per day for each day the Contract Carrier is deemed to be
unavailable. The Contract Carrier will be deemed to be unavailable if:
(i) the Contract
Carrier fails to provide services to Metromix as
obliged by this Contract Determination;
(ii) the Contract Carrier is in persistent breach of an
obligation under this Contract Determination which the Contract Carrier has
previously been notified of as a breach by Metromix;
or
(iii) the Contract Carrier is not having its Vehicle loaded with
Concrete by Metromix for any of the reasons referred
to in any of clauses 5.8, 8.3(d), 11.4 or 15.1.
(b) Unavailability
will not arise if:
(i) the Contract
Carrier has previously been notified by Metromix that
the Contract Carrier is not required to perform Cartage Work on the relevant
day;
(ii) Force
Majeure has occurred; or
(iii) The
Nominated Driver is otherwise on a period of Authorised Absence.
4.
Surcharges
4.1 Standby Time outside Normal Trading Hours
(a) Subject to clause 4.1(b), the Contract
Carrier is entitled to a standby time payment at the rate specified in Schedule
3 where Metromix requests the Contract Carrier to
remain at a Plant for the purpose of taking a delivery to a customer at a time
outside Metromix’s Normal Trading Hours. The Contract
Carrier will be entitled to the standby time payment whether or not the
delivery is ultimately required.
(b) The Contract Carrier will
not be entitled to a standby time payment if the Contract Carrier is required
to wait for less than one (1) hour outside Metromix's
Normal Trading Hours.
4.2 Standby
Time within Normal Trading Hours
(a) Subject to
clause 4.2(b), the Contract Carrier is entitled to a standby time payment at
the rate specified in Schedule 3.
(b) The Contract Carrier will not be
entitled to a standby time payment if the Contract Carrier is required to wait
for less than one (1) hour.
4.3 Delivery
within Yard
Where
a Contract Carrier is required to cart Concrete or materials other than
Concrete within the confines of a Plant owned and/or operated by Metromix then the Contract Carrier must be paid the Cartage
Rate specified in Schedule 1 for the load size, calculated with a maximum
distance of three (3) kilometres.
4.4 Living Away from Home Allowance
Where
a Contract Carrier is required by Metromix to work
from a location, which precludes the Driver from returning to his normal place
of residence:
(a) Metromix will
pay to the Contract Carrier, the Driver's reasonable costs for accommodation,
breakfast and dinner as nominated by Metromix for
each night required; and
(b) the period
shall be no more than one (1) week or such longer period as may be agreed.
4.5 Road and Bridge Tolls
(a) Where
payment of a road or bridge toll is required for either or both the outward and
return journeys, Metromix will issue the Contract
Carrier with an electronic tag or equivalent cash money or a toll card.
(b) Any
electronic tag or equivalent cash money or a toll card issued by Metromix to the Contract Carrier, remains the property of Metromix and must only be used by the Contract Carrier
whilst performing the Cartage work.
(c) Any
electronic tag or equivalent cash money or a toll card issued must be returned
to Metromix on termination or expiration of the
Contract Carrier’s Mini Cartage Contract (or earlier upon request by Metromix).
4.6 Unloaded Kilometres
(a) Unloaded kilometres travelled by the
Contract Carrier's Vehicle at Metromix’s request to
relocate from the one Plant to another Plant to load will attract a payment at
the rate specified in Schedule 3. The forward and return journeys are to be
considered as separate journeys.
(b) In
the case of a journey where a load has been dispatched to a customer’s site and
the Contract Carrier is directed to return to another Plant to load, the
Contract Carrier will only be entitled to a payment at the rate specified in
Schedule 3 for the kilometres in excess of the kilometres that are already paid
for the delivery of the Concrete to the original customer’s site.
4.7 Multiple Discharge Points
(a) Should the Contract Carrier make
multiple discharge points for the same customer the Contract Carrier will be
paid a Cartage Rate for the total distance travelled from the Plant where
loaded to the final discharge point for that customer.
(b) Should
the Contract Carrier make deliveries to multiple customers from one (1) load of
Concrete the Contract Carrier will be issued a separated delivery docket for
each customer.
4.8 Diverted Loads
(a) Where
a load is diverted on route to a customer’s site, the Contract 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.
(b) Where
a load is diverted by having the Vehicle return to a Plant before being
dispatched to another delivery site, the Contract 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.
(c) Where
a load is diverted on route to an external dump site the Contract Carrier will
be paid a Cartage Rate covering the total distance from the initial departure
from the Plant where loaded to the dump site.
4.9 Returned
and Dumped Concrete
(a) All
Returned Concrete remains the property of Metromix.
The Contract Carrier is to contact Dispatch for instructions as to where
Returned Concrete is to be taken prior to or immediately after leaving a
customer’s site.
(b) Where Returned Concrete less than one
half (0.5) cubic meter is directed to another Plant or customer’s site or an
external dump site, the Contract Carrier will be paid the Kilometre Running
Rate for the returned quantity designated on the delivery docket for the
distance travelled in excess of the kilometres already paid for the delivery.
(c) Where
Returned Concrete of one half (0.5) cubic meter or more is directed to another
Plant or customer’s site or an external dump site by Metromix
the Contract Carrier will be paid the Kilometre Running Rate for the returned
quantity designated on the delivery docket for the distance travelled in
addition to the distance already paid for the delivery.
(d) Where
Returned Concrete of one half (0.5) cubic meter or more is returned to the
plant at which the Concrete was batched the Contract Carrier will be paid the
Kilometre Running Rate for the returned quantity designated on the delivery
docket for the kilometres already paid for the delivery.
(e) No payment will be made to the Contract
Carrier when Returned Concrete is dumped within one (1) kilometre of the
delivery site at which the Concrete became Returned Concrete or Returned
Concrete less than one half (0.5) cubic meter is returned to the Plant at which
the Concrete was batched.
(f) If the Contract Carrier is instructed by
Metromix to return to a Plant with Returned Concrete
and then after returning to the Plant the Contract Carrier is directed by Metromix to an external dump site the Contract Carrier will
be paid the Kilometre Running Rate for the returned quantity designated on the
delivery docket for the distance travelled in addition to the distance already
paid for the delivery.
(g) Metromix will
meet all dump costs for Concrete, which is dumped at Metromix's
direction.
(h) For
the purpose of this clause 4.9(b),(c)(d) and (f) a
minimum quantity of one (1) cubic meter is payable.
(i) The
Contract Carrier must be paid the Waiting Time rate in Schedule 3 for time
spent onsite at an external dump site in excess of the time that must be
allowed for the delivery of that load. Time spent travelling to and from an
external dump site must not be counted as time spent onsite.
(j) The
Contract Carrier must ensure that all workings for Returned Concrete:
(i) are completed in full in the appropriate section of the
delivery docket; and
(ii) appear on all copies.
(k) Where a customer’s signature and printed
name is not obtainable, the Contract Carrier must contact Dispatch prior to or
immediately after leaving the customer’s site to obtain a control number and
this must be written in the appropriate section of the docket and appear on all
copies.
(l) Despite
this clause 4.9, a Contract Carrier shall not be paid for Returned Concrete if
a Contract Carrier fails to adhere to clause 4.9(j) or 4.9(k) or clause
11.15(a) to 11.15(e).
4.10 Delivery outside Normal Hours
Where
a load is ticketed outside Metromix’s Normal Trading
Hours then the Contract Carrier will be entitled to the relevant Surcharge, in addition
to the normal Cartage Rate payable to the Contract Carrier, as specified in
Schedule 3 which must be paid per load:
(a) Surcharge 2
(i) between 5pm - 6am Monday - Friday.
(b) Surcharge 3
(i) between 1pm Saturday through to 6am Monday; and
(ii) Night Shift.
(c) Surcharge 4
(i) Public
Holidays.
4.11 Call
Back
(a) A
Contract Carrier having finished performing Cartage Work and having left the
Plant and then called back to perform Cartage Work outside Metromix’s
Normal Trading Hours is entitled to a call back fee as specified in Schedule 3.
(b) The call back
fee surcharge shall not apply if the rostered work is cancelled no later than
1.00pm on the day (or the day prior) it is to commence.
4.12 Waiting
Time
(a) Subject to this clause, Metromix shall pay a Contract Carrier Waiting Time in
accordance with Schedule 3 for time spent on-site to unload (calculated from
the time of arrival on-site to the time the Vehicle finishes discharging the
entire load or is released by the customer) in excess of the period calculated
as 7 minutes per cubic meter or part thereof or a minimum of 20 minutes
whichever is the greater.
(b) The Contract Carrier must ensure that
all workings for Waiting Time:
(i) are completed in full in the appropriate section of the
delivery docket; and
(ii) appear on all copies.
(c) Where a customer’s signature and printed
name is not obtainable the Contract Carrier must contact Dispatch prior to or
immediately after leaving the customer’s site to obtain a control number and
this must be written in the appropriate section of the docket and appear on all
copies.
(d) Despite clause
4.12(a), a Contract Carrier shall not be paid for Waiting Time if a Contract
Carrier fails to adhere to clause 4.12(b) or 4.12(c) or clause 11.15(a) to
11.15(e).
(e) All
Waiting Time charged by the Contract Carrier will be subject to verification by
Metromix via the use of the GPS status data or
similar technology transmitted by the Contract Carrier’s Vehicle. Should any
discrepancies arise the Contract Carrier will only be entitled to a Waiting
Time payment for excess time onsite in accordance with clause 4.12(a) as
verified by GPS status data or similar technology.
4.13 Transport Materials Other Than Concrete
Where
the Contract Carrier’s Vehicle is required to cart materials other than
Concrete the Cartage Rates as outlined in Schedule 1 will apply. The equivalent
Concrete volumes will be converted by using the following conversion rates:
(a) Aggregate - 1.5 tonne = 1m3 Concrete
(b) Sand - 1.7 tonne = 1m3 Concrete
(c) Slurry/Water - 1000 litres = 1m3 Concrete
4.14 Night
Shift, Sundays and Public Holidays
(a) Subject
to clause 4.14(b) when a Contract Carrier is rostered to work a Night Shift,
Sunday or Public Holiday the Contract Carrier must be paid no less than the
Night Shift, Sunday and Public Holiday Minimum Surcharge in Schedule 3 for the
Night Shift, Sunday or Public Holiday irrespective of the Cartage Work
performed.
(b) The
Night Shift, Sunday and Public Holiday Minimum Surcharge will not apply if:
(i) the Night,
Sunday or Public Holiday Shift is cancelled the day prior to its commencement;
or
(ii) the Night Shift is cancelled by 1:00pm on the day it is to
commence.
(c) A
Contract Carrier shall only receive one Minimum Surcharge for any continuous
period of work or shift.
5.
Prime Mover and Agitator
5.1 Supply and Suitability
Subject
to clause 5.2:
(a) the Contract
Carrier must supply the Prime Mover which must be approved in writing by Metromix; and
(b) Metromix will continue to provide a serviceable Agitator
for use with the Prime Mover.
5.2 Supply
and Suitability of New Prime Mover and New Agitator
(a) Subject
to clause 5.2(b) , the Contract Carrier must:
(i) (if their
Prime Mover is more than 10 years of age) supply a New Prime Mover no later
than 18 months after the commencement of this Contract Determination; or
(ii) (if their Prime Mover is 10 years of age
or less) supply a New Prime Mover no later than 18 months after their existing
Prime Mover reaches 10 years of age; and
(iii) the age of a
Prime Mover must be evidenced from the manufacturers plate.
(b) Any
New Prime Mover must:
(i) meet the Prime Mover specifications; and
(ii) be of the same configuration
as the Contract Carriers current vehicle or such configuration as mutually
agreed by both parties;
(iii) subject to clause 5.2(b)(ii) any Contract
Carrier who currently has a 1.0m3 Prime Mover must upgrade to a minimum 2.0m3
Prime Mover or such configuration as mutually agreed by both parties;
(iv) be accompanied
with a weighbridge certificate (obtained at the Contract Carrier’s own
expense); and
(v) be approved in
writing by Metromix.
5.3 Metromix Discretion to Allow Extension of Time
Metromix (acting reasonably) may allow a Contract Carrier a
period in excess of 18 months to provide a New Prime Mover if there are
exceptional unforeseen circumstances.
5.4 Agitator Repair or Removal
(a) Metromix must
pay the Contract Carrier:
(i) at the rate specified in Schedule 3 for any Unloaded Kilometers travelled to a location (as directed by Metromix) for the installation, repair or removal of the
Agitator;
(ii) a
standby payment at the rate specified in Schedule 3 for time spent in excess of
1 hour whilst awaiting installation, repair or removal of the Agitator; and
(iii) a Demurrage payment at the rate specified
in Schedule 3 should any repairs, installation or removal exceed 5.5 working
days; and
(b) Metromix must:
(i) pay for any expenses associated with fitting or removing the
Agitator to the Contract Carriers Prime Mover; and
(ii) at its own
expense, mechanically maintain and repair the Agitator; and
(iii) at its own expense, de-dag the Agitator drum once a year.
(c) The
Contract Carrier must:
(i) assume full responsibility for the safe custody of the
Agitator; and
(ii) not add to,
alter or modify the Agitator; and
(iii) grease and
lubricate the Agitator (grease and lubricants must be supplied by Metromix); and
(iv) thoroughly wash
out the Agitator drum daily or as directed by Metromix;
and
(v) with exception
to clause 5.4 (b)(iii), pay for any additional de-dagging ( except for
extenuating circumstances); and
(vi) pay for any
installation, removal or repair to the Agitator because of damage that the
Contract Carrier is at fault.
5.5 Registration
The
Contract Carrier must at their own expense register
the Contract Carrier’s Prime Mover.
5.6 Running
Expenses
The
Contract Carrier must pay all of the running costs associated with the Contract
Carrier’s Prime Mover.
5.7 Maintenance
and Repair
The
Contract Carrier must mechanically maintain and repair the Contract Carrier’s Prime Mover at its own expense and ensure
the Vehicle is returned to service to perform Cartage Work as soon as
practicable.
5.8 Cease using Prime Mover
The
Contract Carrier must stop using the Contract Carrier’s Prime Mover (or any
part of it) and/or Agitator (or any part of it) if Metromix
so directs because in Metromix's opinion that is appropriate
pending the carrying out of any repairs, maintenance, inspection or testing.
5.9 Painting
and Logo
(a) The
Contract Carrier must paint the Contract Carrier’s New Prime Mover in colours approved
by Metromix in a quality of paint to Metromix's specification.
(b) The Contract Carrier must reasonably
maintain the colours and paints as specified by Metromix
in a satisfactory condition.
(c) Subject to the Contract Carrier
complying with clause 5.9 (b), if Metromix requires
the Prime Mover and/or Agitator to be painted, Metromix
will:
(i) undertake
the painting at its expense;
(ii) if Metromix
determines to remove the Agitator for repairs or replacement, Metromix must inspect the Prime Mover chassis rails and if Metromix deems it necessary sandblast and paint the
Contract Carriers chassis rails at Metromix’s
expense; and
(iii) pay the Contract
Carrier a Demurrage payment at the rate specified in Schedule 3 for the period
during which the Prime Mover is unavailable to perform the Cartage Work unless Metromix provide the Contract Carrier a reasonable
replacement Prime Mover at no cost.
(d) The Contract Carrier shall properly maintain Metromix's mud flaps and logos on the Contract
Carrier’s Prime Mover.
(e) Metromix must provide, install and remove, at its expense,
all mud flaps and logos.
5.10 Mass
Management
(a) Subject to clause 5.10(c), the Contract
Carrier must meet any relevant regulatory or maintenance requirements to
achieve the maximum GVM legally allowed for their Vehicle.
(b) Subject to clause 5.10(c) and 5.10(d),
the Contract Carrier must do all things required and necessary to be accredited
and remain accredited under Metromix’s NHVAS mass
management scheme (or any scheme replacing this).
(c) Metromix may alter
the requirements set out in clause 5.10 (a) and/or (b) above by direction to
the Contract Carrier if any State or national guideline, regulation or law
change and affect the GVM or carrying capacity of the Contract Carrier’s
Vehicle.
(d) Metromix, at
its expense will register the Contract Carrier’s Vehicle under Metromix’s NHVAS mass management scheme.
5.11 Maximum Age for A
Prime Mover
Despite anything else in this Contract Determination,
at any time 18 months after the commencement of this Contract Determination, or
such longer period as is determined in accordance with clause 5.3 above, a
Contract Carrier’s Prime Mover must not be older than 12 years of age
(evidenced from the manufacturer's plate).
6. Communication Equipment
6.1 Provision
and Operation
Metromix must supply, install and maintain in the Contract
Carrier’s Prime Mover the Communication Equipment required by Metromix and the Contract Carrier must operate it
efficiently.
6.2 Payment
Unless the installation, repair or removal
arises because of damage or theft that the Contract Carrier is at fault for, Metromix must pay the Contract Carrier:
(a) at the rate specified in Schedule 3 for
any Unloaded Kilometres travelled to a location (as directed by Metromix) for the installation, repair or removal of the
Communication Equipment; and
(b) at the rate specified in Schedule 3 for standby time for
time spent in excess of 1 hour whilst awaiting installation, repair or removal
of the Communication Equipment.
6.3 Communication
Equipment - Custody
The
Contract Carrier has full responsibility for the safe custody of the
Communication Equipment. The Contract
Carrier must:
(a) not add to,
alter, modify, or disconnect the Communication Equipment; and
(b) not, without the
prior written permission of Metromix, use the
Communication Equipment for anything but the Cartage Work.
6.4 Communication Equipment - Damage or Loss
Except
in circumstances where the Contract Carrier’s Vehicle is at a Metromix Plant or a location approved by Metromix, where the Communication Equipment is damaged or
lost and the Contract Carrier is at fault for the damage or loss, the Contract
Carrier must:
(a) repair at the Contract Carrier’s cost
any damage to the Communication Equipment; and
(b) replace at the
Contract Carrier’s cost lost Communication Equipment.
6.5 Cease
Using Communication Equipment
The
Contract Carrier must stop using the Communication Equipment (or any part of
it) if Metromix so directs because in Metromix's opinion that is appropriate pending the carrying
out of any repairs, maintenance, inspection or testing.
6.6 Return
of Communication Equipment
Immediately
upon the ending or termination of a Contract Carrier’s Mini Cartage Contract
they must return the Communication Equipment to Metromix
in good order and condition, fair wear and tear only excepted and Metromix will make good any damage caused by the
instillation or removal of the Communication Equipment.
7. Nominated Driver
7.1 Nominated Plant
(a) A
Contract Carrier shall normally work from a Nominated Plant provided that Metromix may change a Contract Carrier’s Nominated Plant to
meet its business needs by giving them 14 days notice
of the change having:
(i) first
attempted to meet those needs on a voluntary basis; and then
(ii) changed the Nominated Plant of all other
Contract Carrier’s (in a Contract Carrier’s Nominated Plant and with the same
Configuration Vehicle) who have been at that Nominated Plant for a shorter
period of time.
7.2 No
One Else to Drive Vehicle
Except
as expressly provided in this Contract Determination the Contract Carrier must:
(a) only use a
Nominated Driver who is approved (such approval not to be unreasonably
withheld) by Metromix having satisfactorily
undertaken any pre-engagement assessment to determine their suitability to be a
Nominated Driver; and
(b) make sure that
no one except the Nominated Driver drives the Contract Carrier’s Vehicle for
the Cartage Work or operates the Agitator.
7.3 Substitute
Driver
If
the Nominated Driver cannot drive because of illness or for other good reason,
the Contract Carrier must provide a Substitute Driver but the Contract Carrier
must:
(a) first obtain Metromix's approval for (such approval not to be
unreasonably withheld) the Substitute Driver;
(b) comply with any
condition Metromix sees fit to impose including the
length of time for use of the Substitute Driver; and
(c) make sure that
before commencing work the Substitute Driver satisfactorily undergoes any
pre-engagement training at the Contract Carrier’s own expense provided that the
Contract Carrier must not be charged for the cost of any test or assessment.
7.4 Procurement
of Consent
The
Contract Carrier must procure from its proposed Nominated Driver (and any Substitute
Driver) any form of consent required by Metromix to
receive and review personal information relating to the proposed Nominated
Driver (and any Substitute Driver) so as not to place either the Contract
Carrier or Metromix in breach of any relevant privacy
legislation.
7.5 Valid
Driving License and Permits
The
Contract Carrier must:
(a) make sure that
the Nominated Driver (and any Substitute Driver) is at all times the holder of
a:
(i) current and active driver's licence appropriately endorsed or
issued in respect of the Contract Carrier Vehicle; and
(ii) licence or permit of any other kind needed from time to
time; and
(b) immediately
notify Metromix if a licence or permit is cancelled or suspended for any reason; and
(c) present any
such license or permit to Metromix upon request.
7.6 Change
of Address
The
Contract Carrier must notify Metromix in writing
immediately of any change in the Contract Carrier address or in the address of
the Nominated Driver (and any Substitute Driver).
7.7 Medicals
and Fitness
(a) The Contract Carrier must:
(i) ensure
that the Nominated Driver (and any Substitute Driver) is at all times medically
fit to perform the Cartage Work;
(ii) if requested, supply Metromix
with a medical report confirming that the Nominated Driver (and any Substitute
Driver) is medically fit to perform the Cartage Work; and
(iii) be reimbursed for the cost of any such medical report after
producing evidence of a paid invoice.
(b) Metromix may nominate the medical practitioner for the
purposes of this clause, provided that they pay the costs for the medical
consultation and any medical report.
7.8 Compliance
with Employment Law
The
Contract Carrier must:
(a) comply with the provisions of any relevant
law (including but not limited to) concerning income tax, workers’
compensation, annual leave, long service leave or any award, order,
determination or agreement of a competent industrial tribunal; and
(b) indemnify Metromix
and keep Metromix indemnified against any claims made
by any of the Contract Carrier employees in respect of any such legislation,
award, order, determination or agreement with which the Contract Carrier are
required to comply.
7.9 Notification of Absence
Where
the Contract Carrier’s Vehicle is unavailable to perform the Cartage Work under
this Contract Determination, the Contract Carrier must notify Dispatch at the
earliest possible time of the reason and the anticipated period of absence.
7.10 Leave Entitlements
Contract
Carriers are entitled to leave consisting of the following:
(a) 12
days leave where a Substitute Driver is required to operate the Vehicle;
(b) 10
days leave where the Contract Carrier is not required to provide the Vehicle to
perform the Cartage Work; and
(c) Subject
to prior written approval from Metromix such other
period of leave provided that the Contact Carrier provides a Substitute Driver
in accordance with clause 7.3.
7.11 Leave
(a) If the Contract Carrier's Nominated
Driver wishes to take leave, they must apply to Metromix.
The leave may be taken subject to Metromix's
approval.
(b) Metromix may
require the Contract Carrier to provide a Substitute Driver during any period
of leave for the Nominated Driver.
(c) The Contract Carrier must provide Metromix with at least two (2) weeks’ notice of the date on
which the Nominated Driver is intending to take leave, which in Metromix’s absolute discretion may or may not be approved,
and this must be submitted to Metromix in writing via
the Contract Carriers Leave Application Form.
12.
Use of the Vehicle
8.1 Operating Condition
The
Contract Carrier must use the Vehicle for the Cartage Work strictly in
accordance with the terms and conditions of this Contract Determination.
8.2 Driving of Vehicle
The
Contract Carrier must:
(a) not overload the Vehicle;
(b) not use or operate the Vehicle in a careless, reckless or
dangerous manner; and
(c) make sure that the Vehicle is not driven by any person under
the influence of alcohol, prohibited drug or of a drug which might adversely
affect driving performance.
8.3 Cleaning of Vehicle
(a) Cleaning brushes, detergents, Concrete
de-scaler and buckets necessary for cleaning the
exterior surfaces of the Vehicle will be supplied by Metromix.
(b) The Contract Carrier must ensure the
Vehicle is kept clean and tidy to the satisfaction of Metromix.
(c) Where
Metromix considers the presentation of the Vehicle is
not to an appropriate standard, the Contract Carrier will be notified in
writing that the Vehicle must be cleaned to a standard acceptable to Metromix within four (4) days of the date of the notice.
(d) If after the four-day notice period Metromix deems the Vehicle’s presentation unacceptable, Metromix may refuse to load the Vehicle until such time as
its presentation becomes acceptable to Metromix.
8.4 Fines
The
Contract Carrier is responsible for any fines or other penalties imposed on the
Contract Carrier:
(a) if the maximum legal pay load carried with the Contract Carrier
Vehicle is exceeded at any time; or
(b) for any breach of any relevant laws.
8.5 Salvage Rights
If
there is a breakdown or accident the Contract Carrier must take all available
and reasonable steps to assist Metromix to deliver
the load or remove the load from the Agitator.
8.6 Inspections and Tests
The
Contract Carrier must make the Vehicle available for inspection or testing as
and when reasonably required by Metromix.
8.7 Road Worthiness
and Fit For Purpose
(a) The Contract Carrier must provide to Metromix at least two (2) weeks’ notice of the date on
which their Vehicle is to be inspected by the relevant State Authority or
approved inspection centre for road worthiness. This must be submitted to Metromix in writing via the Contract Carriers Leave
Application Form.
(b) The Contract Carrier must provide to Metromix quarterly a copy of the service and maintenance
history for the Prime Mover in accordance with OEM requirements.
(c) The Contract Carrier must at its own
expense, obtain and supply to Metromix an annual
roadworthy certificate for their Vehicle.
8.8 Tare Weight
(a) Provided that Metromix
reimburse the Contract Carrier, on a bi-annual basis or as required by Metromix, the Contract Carrier must provide Metromix with a copy of a registered weighbridge
certificate for the Vehicle.
(b) The
Vehicle must be weighed with the Nominated Driver in the driver’s seat with
fuel, oil and water tanks filled to full capacity and all Agitator chutes
attached.
(c) Despite
clause 8.8 (a), Metromix may require the Contract
Carrier to weigh their Vehicle at any time and under Metromix’s
supervision, as part of any program which Metromix
has in place for the purposes of ensuring statutory compliance.
Rostering
9.1 Rosters
Subject
to this clause 9, Metromix may establish and operate
a:
(a) Cyclic Start Roster;
(b) Roster Off Roster (subject to
operational requirements);
(c) Periodic Transfer Roster;
(d) Daily Transfer Roster;
(e) a voluntary Night Shift Roster; and
(f) such other rosters as required by Metromix
to operate its business.
9.2 Own
Fleet Etc.
(a) Metromix owned Vehicles will form part of all rosters and
will not be rostered in any way to unfairly disadvantage either Metromix or its Contract Carriers.
(b) Any
Fleet Owner Vehicle may form part of a roster and if so will not be rostered in
any way to unfairly disadvantage either Metromix or
its Contract Carriers.
9.3 Notification
for Next Day
It is the responsibility of the Contract
Carrier to contact Dispatch to ascertain the initial time and Plant to which
they are to load. Metromix will
make available starting times and locations by 3pm Monday to Friday and by 11am Saturday for the next Working Day.
9.4 Variation and Compliance
and Consultation
(a) Metromix may determine or vary any roster, in its opinion,
to meet Customer Service Levels or Operational Requirements;
(b) the Contract Carrier must comply with all rosters determined
or varied by Metromix; and
(c) Metromix will not make any significant change to any roster
or introduce any new roster without first consulting with the Contract
Carrier’s affected.
10. Vehicle Transfers
All
transfer rosters will be based on a Cyclic Start Roster to ensure all Vehicles
are made subject to all transfers.
10.1 Periodic Transfer
Metromix may
transfer the Contract Carrier’s Vehicle from one Plant to another Plant:
(a) for
satisfaction of Customer Service Levels or Operational Requirements; and
(b) for a period of
two (2) weeks or for such other period as Metromix determines
appropriate in a Periodic Transfer Roster.
10.2 Daily Transfer
Metromix may
transfer the Contract Carrier’s Vehicle from one Plant to another Plant:
(a) for satisfaction of Customer Service Levels or Operational
Requirements; and
(b) for up to one (1) Working Day in a Daily Transfer Roster.
10.3 Voluntary Productivity Transfer
In the event any individual Plant(s)
Individual Utilisation Group(s) average monthly productivity volume is more than
75 loads below the average monthly Utilisation Group productivity volume, Metromix will do the following:
(a) On a voluntary basis initiate periodic
transfers pursuant to clause 10.1 into higher productivity volume Plant(s);
(b) monitor
productivity volumes on a monthly basis, and
maintain periodic
transfers until such time the individual Utilisation Group(s) productivity
volume of an individual Plant(s) is less than 75 loads below the average
monthly Utilisation Group productivity volume.
11.
Loading and Delivery of Concrete
11.1 Plant
Subject to this Contract Determination, the
Contract Carrier must report available for Cartage Work with their Vehicle and
be ready to load at the times and Plants that Metromix
directs.
11.2 Metromix to Nominate Load
Metromix may nominate the load size for each load to be
carried from a Plant.
11.3 Loading
Order
(a) Metromix must
use its reasonable endeavours to load Vehicles including Vehicles owned or
engaged by Metromix having regard to the following:
(i) at the start
of each Working Day, in accordance with the Cyclic Start Roster; and
(ii) during the
Working Day, after each Vehicle has received its initial load, in accordance
with the order of return to that Plant.
(b) Metromix may change
the loading order at each Plant by varying the Cyclic Start Roster or loading
order for reasons including but not limited to:
(i) to satisfy
Customer Service Levels or Operational Requirements;
(ii) if the next
load (or loads) required to be taken is (or are) greater than the Load Capacity of the Vehicle next in line;
(iii) to comply with
Chain of Responsibility obligations; or
(iv) Vehicles carrying Returned Concrete.
11.4 No Loading
Metromix may
refuse to load the Contract Carrier’s Vehicle if:
(a) it is
unregistered;
(b) if it is
uninsured;
(c) the Nominated
Driver (and any Substitute Driver) does not hold a valid and active drivers
licence;
(d) the Nominated
Driver (and any Substitute Driver) fails to sign in daily;
(e) in Metromix's reasonable opinion, the Contract Carriers
Vehicle is defective so as to render its operation unsafe;
(f) the Contract
Carriers is suspected of being in breach of its obligations
under this Contract Determination or a Mini Cartage Contract; or
(g) for any of the
reasons referred to in any of 5.8, 8.3(d) or 15.1.
11.5 No Alteration to Docket
The
specification of each load of Concrete shown on the Concrete delivery docket
issued by Metromix must not be changed by the
Contract Carrier after batching.
11.6 Slump
(a) Before leaving the Plant to deliver a
load, the Contract Carrier must:
(i) ensure the
load is properly mixed in accordance with the written instructions provided by Metromix, which may be varied from time to time; and
(ii) ensure that immediately prior to discharge, the Slump of the
Concrete complies/conforms with the latest issue of Australian Standard and any
Cartage Work instructions issued by Metromix.
(b) Metromix will
endeavour to batch each load with the intent that it is batched to within 10%
of the total batch water required for the load to meet the relevant slump
specification.
(c) The Contract Carrier must notify the
batcher of the quantity of water added at the slump stand and batch water will
be adjusted upon continuing feedback from the Contract Carrier.
(d) If
the customer requests the addition of an amount of water that takes the Slump
of the load outside the specified Slump tolerance, the Contract Carrier must:
(i) note the quantity of water added and the estimated final
Slump of the load; and
(ii) obtain the name
and signature of the customer or their nominated representative on all copies
of the delivery docket.
11.7 Shortest
Practicable Route
The Contract Carrier must take the shortest
practicable route whilst performing the Cartage Work given the time of day.
11.8 Change
of Ingredients
Metromix must provide the Contract Carrier, whenever
practicable, with advice of any major changes to the source of Concrete mix
ingredients which are likely to affect the visual assessment of the Slump.
11.9 Rejection of Load
(a) If a Contract Carrier makes an addition
of water to a load without the signed consent of the customer or their
nominated representative, and the load is rejected because the Slump of the
Concrete is outside the nominated tolerance as specified in clause 11.6, or
because the Contract Carrier had not complied with that clause, the Contract
Carrier will;
(i) not be paid for the delivery of the load or any applicable Surcharge/s;
and
(ii) (if the load
cannot be salvaged) have deducted from their next month’s cartage payment the
sum calculated to be 50% of the cost of all ingredient materials in the load to
a maximum of $500.
(b) However, if Metromix
has restricted the Contract Carrier's ability to adjust the Slump of a load on
the job site and:
(i) the Contract
Carrier is requested by a customer or a customer's representative to add water
to the load;
(ii) Metromix approves such adjustment after discussion with the
Contract Carrier; and
(iii) the load is subsequently rejected on the basis of water
addition or non-compliance with the nominated tolerance,
then Metromix will pay the
Contract Carrier the Cartage Rate for the load as if the load had not been
rejected and any applicable Surcharges.
(c) Where the Contract Carrier is requested
by Metromix to adjust or maintain the Slump of a load
at a tolerance closer than that specified in the current issue of Australian
Standard and the load is rejected on the basis of non‑compliance with the
nominated tolerance, then Metromix will pay the
Contract Carrier the Cartage Rate for the load as if the load had not been
rejected and any applicable Surcharges.
(d) In the case of a delivery of Kerb-Maker,
it is the responsibility of the Contract Carrier to carry the load in an
"as batched" condition. The Contract Carrier will not be responsible
for the Slump unless the Contract Carrier has attempted to adjust the Slump
either at the Plant or onsite pursuant to clause 11.9(a), in which case clause
11.9(a)(i) and 11.9(a)(ii)
shall apply.
(e) In
the case of delivery of a load of Wet Piling Grout the Contract Carrier must:
(i) ensure the load is completely mixed;
(ii) adjust the water to the load at the Slump stand so it
visually represents Wet Piling Grout; and
(iii) immediately notify the batcher of any unusual features of
the load which may lead to non-conformity including lack of or excessive water.
(f) Provided the Contract Carrier has
complied with clause 11.9(e) then the Contract Carrier will no longer be
responsible for the consistency should the load be subject to a Flow Cone Test.
11.10 Additives
(a) Subject
to the Contract Carrier’s compliance with clause 11.10(b), where Metromix adds an additive to the Concrete after the
Contract Carrier has adjusted the Slump of the load, or where an additive is
added at the customer's request, the Contract Carrier will no longer be
responsible for the Slump of that load.
(b) The
Contract Carrier and the Nominated Driver (and any Substitute Driver) are not
permitted to add any additives to the Concrete.
11.11 Mixing and Transit
The
Contract Carrier must take reasonable care of the Slump after the Vehicle has
left the plant. Except where Metromix has notified the Contract Carrier that the
customer has instructed that no water is to be added after leaving the plant,
the Contract Carrier may add water to the Concrete as the Contract Carrier
think fit but the Contract Carrier must:
(a) keep
the Agitator drum turning at all times when it contains Concrete at a minimum
of two (2) revolutions per minute; and
(b) mix the Concrete for at least the minimum mixing time for
mixing Concrete under the current Australian Standard which is:
(i) 4 minutes
at the mixer manufacturers rated mixing speed (approximately 16 revolutions per
minute) at the Plant; and
(ii) a minimum
re-mix of 1 minute at the rated mixing speed
(approximately 16 revolutions per minute) after addition of water or additives
or to customers’ requirements before discharging on site.
11.12 Job Site Entry
(a) The
Contract Carrier must comply with any job site entry procedure determined by Metromix from time to time.
(b) The
Contract Carrier has the right to refuse to enter a job site, which it
reasonably considers unsafe.
(c) The
Contract Carrier must notify the Metromix
Representative at the Plant of the unsafe or hazardous job site and of the
Contract Carrier's unsuccessful attempt to enter the site. The Representative
will attend the site as soon as practical after notification in order to
determine the action to be taken.
(d) If
the Metromix Representative assesses the site access
to be unsafe or hazardous, the Contract Carrier will be paid the Cartage Rate
as if the delivery had been successful and any applicable Surcharges.
(e) Despite
anything else in this clause, the Nominated Driver (or any Substitute Driver)
may refuse to enter a job site if it would cause serious and imminent risk
to their health or safety and the Contract Carrier will be paid the Cartage
Rate as if the delivery had been successful and any applicable Surcharges.
11.13 Unloading
The Contract Carrier must discharge the
Concrete at the delivery site in the manner and position reasonably directed by
the customer. The Contract Carrier must
use every reasonable effort at the delivery site to:
(a) obtain
directions from the customer concerning the manner and position to discharge
the Concrete;
(b) obtain from the
customer’s the signatures required by Metromix; and
(c) collect money from cash on delivery customers for all
Concrete discharged.
11.14 Unsafe
Unloading
(a) If
the unloading of the Concrete at any delivery site is unsafe for any reason,
the Contract Carrier must immediately notify Metromix
prior to unloading the Concrete to obtain directions.
(b) If,
in complying with Metromix’s directions, the Contract
Carrier Vehicle becomes bogged or causes damage to the site (unless the bogging
or damage is caused by the Contract Carrier negligence or a breach of this
Contract Determination) Metromix must:
(i) pay all
reasonable costs to remove the Contract Carriers Vehicle and effect any repairs
caused by the bogging or removal; and
(ii) indemnify the
Contract Carrier for any damage or claims caused on the site.
11.15 Signatures
for Delivery
(a) The Contract Carrier must:
(i) use their reasonable endeavours to obtain a customer
signature and printed name for the delivery of a load and any additional
Surcharges or the addition of water; and
(ii) obtain any information ascertained in accordance with clause
11.18(d).
(b) The Contract Carrier must sign and print
their name on the delivery docket and record their time of arrival and
departure at site.
(c) All signatures, printed names or other
required information must be in the appropriate section of the delivery docket
and appear on all copies.
(d) The Contract Carrier must not surrender
the customer copy of the delivery docket until discharge is complete or
released by the customer.
(e) The Contract
Carrier must return the completed delivery docket to the Plant or otherwise as
directed upon return after each load.
(f) Where Waiting
Time, Returned Concrete or any other Surcharges are applicable the Contract
Carrier, prior to leaving site, must contact Dispatch to obtain the Surcharge
amount and new total to be collected and ensure this appears on all copies of
the delivery docket.
(g) Despite
anything else in this Contract Determination, if the provisions of this clause
are not complied with Metromix is not required to pay
the Contract Carrier for the relevant load.
11.16 Bogged Vehicles
(a) Where the Contract Carrier enters a job
site beyond the road kerb line to complete a delivery and the Vehicle becomes
bogged or is otherwise rendered inoperative as a consequence of such attempted
delivery, Metromix will arrange the services of an
experienced salvage contractor to extract the Vehicle as soon as possible and
must bear all costs for those arrangements.
(b) The
Contract Carrier is to notify the Metromix
Representative at the Plant as soon as the Vehicle becomes bogged or
inoperative and await instruction from Metromix.
(c) Metromix 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 Vehicle during the extraction process.
(d) Metromix accepts no liability for damage or loss caused
where the Contract Carrier utilises its own salvage contractor or means for the
extraction.
(e) Clauses
11.16(a) and (c) will not apply where the Vehicle becomes bogged or inoperative
as a direct result of the Contract Carrier's or its Nominated Driver’s (or
Substitute Driver’s) negligence or any deliberate act by the Contract Carrier’s
Nominated Driver’s (or Substitute Driver’s).
11.17 Return
After discharging the load the Contract
Carrier must report to whatever Plant Metromix
instructs.
11.18 Cash on Delivery
(a) The
Contract Carrier will ensure all payments are collected from those customers
designated by Metromix as cash on delivery for all
Concrete charges including Waiting Time and/or Returned Concrete.
(b) The Contract
Carrier is only responsible for collecting cash amounts no greater than the
invoiced total plus any surcharge amounts for that particular load.
(c) The
Contract Carrier must take reasonable care of any money collected and submit in
full to the Metromix Representative as soon as
possible on return to the Plant. The Metromix
Representative will sign the Contract Carrier's copy of the delivery docket as
recognition of receipt of money at which point the Contract Carrier will be no
longer responsible for the moneys.
(d) Where Waiting Time, Returned Concrete or
any other Surcharges are applicable the Contract Carrier, prior to leaving site
must contact Dispatch to obtain the Surcharge amount and new total to be
collected.
(e) The
Contract Carrier will immediately advise Metromix if
the collection of cash is not able to be obtained prior to leaving site and
await Metromix’s direction.
11.19 Damage
On Site
Subject to this clause 11, the Contract
Carrier must pay for any damage caused by the Contract Carrier whilst entering
on or exiting the site provided that Metromix has
undertaken an investigation of the matter.
12.
Site Cleaning
12.1 Contract
Carrier Obligations
(a) The Contract Carrier must immediately
report to Metromix any Concrete or Vehicle spillage.
(b) Subject to clause 12.2(b), the Contract
Carrier must pay for:
(i) any costs associated with the clean-up of any spillage; and
(ii) the removal of
any Concrete or Vehicle spillage.
(c) The Contract Carrier must pay for any
fines associated with any spillage.
12.2 Metromix’s Obligation
(a) Metromix must arrange for the clean-up of any Concrete or
Vehicle spillage.
(b) Metromix must pay for the removal of any Concrete or
Vehicle spillage for one (1) clean-up activity per calendar year for a Contract
Carrier to a maximum cost of $500.
13. Supervision
13.1 The
Contract Carrier Must Supervise its Personnel
The Contract Carrier must ensure that the
Nominated Driver (and any Substitute Driver):
(a) performs the Cartage Work and does
everything connected with it as is required of the Contract Carrier by this
Contract Determination; and
(b) does not do or
omit anything that gives rise to a breach by the Contract Carrier of this
Contract Determination.
14. Training
14.1 Cost
and Amount
(a) Metromix may require
the Contract Carrier or their Nominated Driver (and any Substitute Driver) to
attend training sessions each year in relation to any topic deemed relevant by Metromix provided that the Contract Carrier must not be
charged for the cost of providing the training.
(b) The Contract Carrier or their Nominated
Driver (and any Substitute Driver)’s attendance will be at no cost to Metromix and will be limited to twelve (12) hours per
annum.
(c) Any training the Contract Carrier or
their Nominated Driver (and any Substitute Driver) attends which exceeds twelve
(12) hours per annum will be entitled to a standby time payment as specified in
Schedule 3 for each half hour or part thereof the Contract Carrier or their
Nominated Driver (and any Substitute Driver) attends.
14.2 Driver Training
(a) All
existing approved Nominated Drivers (and any Substitute Driver) are required to
undertake an annual (or as deemed appropriate by Metromix)
driver and Agitator operational assessment carried out by a qualified driver
trainer and Agitator operational assessor nominated by Metromix.
Any associated cost of this will be the responsibility of Metromix.
(b) Each
new Nominated Driver employed by the Contract Carrier, is required to spend a
minimum of two (2) weeks' training in how to operate the Vehicle and in
managing Slump control of Concrete.
(c) This
training will include a period of at least one (1) day in Metromix’s
nominated Quality Control Laboratory under the supervision of a Metromix nominated tester, and at least one (1) day in
Dispatch to understand Dispatch requirements.
(d) Metromix will provide appropriate equipment (excluding the
Vehicle) for the purpose of providing the training.
(e) At
the conclusion of the two (2) week training period, the Nominated Driver will
be required to undertake a driver and Agitator operational assessment carried
out by a qualified driver and Agitator operational trainer nominated by Metromix in respect of the Nominated Driver’s performance
and technical ability. Any costs for the driver trainer will be the responsibility
of Metromix.
15. Contractor Management System
15.1 Provision of Documents and Inductions
(a) The
Contract Carrier must maintain and keep up to date any documentation and
inductions required by Metromix’s contractor
management system.
(b) Metromix must ensure that such documentation is securely
held and not used for any improper purpose by an employee or officer of Metromix.
(c) Metromix may at times request the originals or copies of
documents.
(d) The
Contract Carrier will allow Metromix to take copies
of these documents if required.
(e) Should
the Contract Carrier not be able to sign in due to out of date documentation or
inductions, the Contract Carriers Vehicle will not be available to load until such time as the out of date
documentation and induction is renewed and verified.
16.
Contract Carrier's Spare Tyres
16.1 Storage
(a) Subject
to Metromix's prior approval and availability of
space at the Nominated Plant, Metromix will provide
to the Contract Carrier at their Nominated Plant space for the storage of up to
two (2) spare usable tyres for their Vehicle.
(b) Any
stored tyres must be marked with the fleet number of the Contract Carrier's
Vehicle.
(c) In
circumstances where Metromix cannot identify
ownership of stored tyres, Metromix reserves the
right to remove the unidentified equipment and to dispose of it appropriately.
(d) No
other equipment is to be stored by the Contract Carrier on Metromix
premises.
16.2 No Liability
Despite clause 16.1, Metromix
will not be liable to the Contract Carrier for any loss or damage to anything
stored by the Contract Carrier at a Plant or other Metromix
premises.
17.
Workplace Health and Safety
17.1 Safety
Meetings
(a) The
Contract Carrier or their Nominated Driver must attend and constructively
participate in each safety meeting or "tool box talk" as required by Metromix.
(b) The
Contract Carrier or their Nominated Driver is not obliged to attend if they are
on approved leave or not able to attend work for that entire day.
(c) Attendance
to the abovementioned meetings will be at no cost to Metromix.
17.2 Safety Inductions
The Contract Carrier or their Nominated
Driver (and any Substitute Driver) must attend safety inductions and safety
training as required by Metromix. Attendance will be
in accordance with clause 14.
18. Uniforms and Personal Protective Equipment
18.1 Uniform
Supply
Metromix must
supply a Nominated Driver and any Substitute Driver with a uniform in
accordance with Metromix’s uniform policy and the
uniform must be worn.
18.2 Personal
Protective Equipment
Metromix must supply a Nominated Driver and any Substitute
Driver with personal protective equipment in accordance with Metromix’s personal protective equipment policy and the
personal protective equipment must be worn. The Contract Carrier is responsible for supplying any
Substitute Driver with approved safety footwear.
18.3 Replacement
Replacement of uniforms and personal
protective equipment will be at the discretion of Metromix
on the basis of return of used items.
19.
Emergencies and Incidents
19.1 Contract Carrier to Follow Metromix Procedures
The Contract Carrier must comply with any
emergency procedures specified by Metromix.
19.2 Reporting
Incidents
(a) The
Contract Carrier must immediately advise the Metromix
Representative at the Plant of any incident, near misses, safety observations
or hazards.
(b) All
incidents must be entered in to Metromix’s online register
as soon as practicable.
19.3 Investigation
The Contract Carrier must provide all
necessary assistance to Metromix in relation to any Metromix investigation.
19.4 Reporting Defects, Loss or Theft
A Contract Carrier must report to Metromix immediately any damage, defect, loss or theft that
has occurred.
20. Insurance Warranty and Indemnity
20.1 Vehicle,
Workers Compensation
The Contract Carrier must obtain the
insurances set out in Schedule 4 and maintain them at the Contract Carrier’s
expense at all times.
20.2 Insurance
Policies
The Contract Carrier must make sure that:
(a) each
insurance policy is placed with an insurer approved by Metromix
(who must not unreasonably withhold its approval) and is for such amounts and
covers such risks and contains such conditions, endorsements and exclusions as
are reasonably acceptable to or reasonably required by Metromix; and
(b) despite clause
20.2(a), unless Metromix agrees otherwise or unless
any relevant law precludes this each policy must be endorsed to:
(i) extend to provide indemnity to Metromix
as principal; and
(ii) contain a cross liability clause.
20.3 Premiums
The Contract Carrier must punctually pay all
premiums for policies and renewals of policies and must provide on request at any
time proof of payment and renewal to Metromix’s
satisfaction.
20.4 Not
to Prejudice Insurance
The Contract Carrier must not do, permit or
omit any act, matter or thing which might prejudice any insurance or make it
void or voidable.
20.5 Payment
of Excess
The Contract Carrier must pay any deductible
or excess applying to any claim made by Metromix as
principal against any insurance policy held by the Contract Carrier.
20.6 No Guarantee
Except as expressly provided for in this
Contract Determination, Metromix makes or gives no
representation, warranty or guarantee as to the quantity, quality, regularity
or profitability of the Cartage Work.
20.7 Implied Warranties
Any warranty, condition, term or provision
on the part of Metromix which might be implied by the
general law is expressly excluded, and to the extent permitted by law, all
statutory implied warranties on the part of Metromix
are excluded altogether or (if complete exclusion is prohibited by law) limited
to the payment of:
(a) in the case of goods, the lesser of the cost of having the
goods repaired and the cost of replacing the goods or of acquiring equivalent
goods; or
(b) in the case of services, the cost of having the services
supplied again.
20.8 Indemnity
(a) The
Contract Carrier shall indemnify Metromix, and keep Metromix indemnified from and against any loss or claim in
connection with any death or injury to any person or any loss of or damage to
property directly or indirectly caused by or in connection with or arising
from:
(i) the Cartage Work;
(ii) their operations or business;
(iii) the use of any Vehicles, plant or equipment (including
without limitation the Vehicle) used or to be used in connection with their
operations or business; or
(iv) any breach by them of this Contract Determination.
(b) To avoid any
doubt, it is expressly noted that the indemnities given by a Contract Carrier
in clauses 20.8(a)(i) to
20.8(a)(iv) excludes circumstances where the loss or claim in connection with
any death or injury to any person or any loss of or damage to property is
directly or indirectly caused by negligent or unlawful acts by Metromix in performing its obligations under this Contract
Determination.
20.9 Not Liable
Metromix is not liable to the
Contract Carrier for any loss or claim:
(a) for consequential loss or loss of use or loss of profit; or
(b) arising out of wet weather, accident, breakdown, or delay.
21. Contractor Fleet Size
21.1 Right
to Increase Contractor Numbers
Metromix may at
any time engage more Contract Carrier Vehicles to perform the Cartage Work to
meet its business needs.
21.2 Right
to Decrease Contractor Numbers
Metromix may at any time reduce the number of Contract Carriers
engaged to perform the Cartage Work to meet its business needs.
22. Use of Other Vehicles
22.1 Right
Subject
to clause 24.3, and to avoid any doubt, Metromix may
utilise:
(a) its own
Vehicles; or
(b) Vehicles from a Fleet Owner,
for the Cartage Work to meet
its business needs.
22.2 No Improper Conduct
To
avoid any doubt, Metromix may exercise its rights to
utilise its own Vehicles or Vehicles from a Fleet Owner as it sees fit in its
own commercial interest, but must not abuse the right to obtain an improper
collateral benefit or objective.
23. Disputes Procedure
23.1 Application of Procedure
Any dispute that arises between a Contract
Carrier and Metromix shall be dealt with in
accordance with this clause.
23.2 Appointment of Representative
A Contract Carrier who is a party to a
dispute may appoint a representative for the purposes of this clause which may
include the Union.
23.3 Procedure
In the first instance, the parties to the dispute
must try to resolve the dispute at the workplace level.
23.4 Notification to Commission
If the dispute remains unresolved it may be
referred to the Industrial Relations Commission of NSW.
23.5 Continue to Perform Cartage Work
Whilst the parties are trying to resolve the
dispute using the procedure set out in this clause:
(a) a
Contract Carrier must continue to perform Cartage Work as they normally would
do unless the Nominated Driver (or any Substitute Driver) hold a reasonable
concern about an imminent risk to their health or safety; and
(b) a Contract Carrier must comply with a direction given by Metromix to perform other available Cartage Work, unless:
(i) the Cartage Work is not safe; or
(ii) applicable
workplace health and safety legislation would not permit the Cartage Work to be
performed; or
(iii) the Cartage Work
is not appropriate for the Contract Carrier to perform; or
(iv) there are other
reasonable grounds for the Contract Carrier to refuse to comply with the
direction.
24. Additional
Terms
24.1 Contract
Carrier’s who commenced before 1 October 2017
(a) A Contract Carrier who commenced being
engaged by Metromix before 1 October 2017 shall be
engaged and perform the Cartage Work and anything connected with it under the terms
set out in Schedule 11.
(b) Schedule 11 shall apply to any permitted
assignee of the Contract Carrier.
24.2 New
Contract Carriers
Despite
anything in this clause, if Metromix introduces a new
Contract Carrier into its fleet then they shall be engaged and perform the
Cartage Work and anything connected with it under the terms set out in Schedule
10.
24.3 New
Contract Carriers - Plant Embargo
(a) Despite clause 7.1 and subject to clause
24.3(b), Metromix shall not designate a Plant to be
the Nominated Plant of a new Contract Carrier if that Plant is set out in
Schedule 12.
(b) Clause
24.3(a) shall cease to operate two years after the commencement date of this
Contract Determination.
24.4 New
Contract Carriers - No ‘Gazumping’
If
a Contract Carrier issues Metromix with a notice
pursuant to clause 3 of Annexure A of Schedule 11, Metromix
must not offer the company that the Contract Carrier proposes to assign their
contractual arrangement to an opportunity to become a new Contract Carrier to
prevent them completing the proposed assignment.
25. Notices
25.1 Delivery
If
either Metromix or the Contract Carrier gives a
notice, consent, approval or other communication (each a "notice")
under this Contract Determination it shall be signed by them or on their
behalf, addressed to the other party and:
(a) delivered to
the other party's address;
(b) sent by
pre-paid mail to the other party's address;
(c) transmitted by
facsimile to the other party's address; or
(d) transmitted by email
to the other party's email address.
25.2 Receipt
A
notice given in accordance with this clause is treated as having been given and
received:
(a) if delivered to
the other party’s address, on the day of delivery if a Working Day, otherwise
on the next Working Day;
(b) if sent by
pre-paid mail, on the third Working Day after posting;
(c) if transmitted
by facsimile and a correct and complete transmission report is received, on the
day of transmission if a Working Day, otherwise on the next Working Day; or
(d) if transmitted
by email and a correct and complete receipt reply email is received, on the day
of transmission if a Working Day, otherwise on the next Working Day.
25.3 Proper
Address
For
the purpose of this clause the addresses are the addresses which from time to
time a party gives notice of to the other party.
26. Consultation
26.1 Committee
Metromix shall convene a Consultative Committee made up of Metromix representatives and the members of the "Metromix LOD Committee".
26.2 Meeting
The
Consultative Committee shall meet as agreed or otherwise monthly to discuss:
(a) any agreed
matters; and/or
(b) Contract Carrier utilisation.
26.3 Information
(a) Metromix shall
provide the Contract Carrier members relevant Contract Carrier utilisation data
at least 2 Working Days prior to the relevant Consultative Committee meeting.
(b) The utilisation data is to be treated as
commercial in confidence by the recipient and is not to be copied or shared in
any manner and with any person without the express written consent of Metromix.
(c) The utilisation data will include loads
carted and average leads but will not include earnings.
26.4 Payment
Metromix will pay the Contract Carrier a Demurrage payment
at the rate specified in Schedule 3 for the time one hour prior to and then
attending a Consultative Committee meeting up to the Contract Carrier’s
rostered finish time for that day.
26.5 Annual
Verification
(a) Within the first three months after the
commencement of this Contract Determination and thereafter every 12 months:
(b) Metromix shall
provide the Consultative Committee with a list of the Contract Carriers, their
Nominated Drivers and any Substitute Drivers;
(c) the Contract
Carrier representatives shall verify whether the list is correct; and
if the list is not correct Metromix
shall make such inquiries and take such actions as are appropriate to ensure
they hold a correct and verified list.
27.
Delegates
27.1 Appointment
A Contract
Carrier appointed as a Delegate in a yard in which they are a Contract Carrier
will, upon notification to Metromix be recognised as
the accredited representative:
(a) for that Yard;
and
(b) (if the
Contract Carrier is a member of the Union) of the Union for that Yard.
27.2 Opportunity
to Meet
An
accredited delegate will be allowed a reasonable opportunity to meet the
relevant Metromix manager and Contract Carriers to
discuss matters affecting Contract Carriers whom they represent.
27.3 Use
of Notice Board
Accredited
delegates will be permitted to put notices on a notice board, signed or
countersigned by the representative posting it.
27.4 Release
of Delegates
A
yard delegate will be released by Metromix on a
reasonable basis to attend authorised (lawful) Union activity provided that Metromix is provided reasonable notice of the absence.
28. Dictionary
1.0m3 Vehicle means a Vehicle with a nominal
loading capacity of 1.2m3.
2.0m3 Vehicle means a Vehicle with a nominal
loading capacity of 2.4 m3.
3.0m3 Vehicle means a Vehicle with a nominal
loading capacity of 3.0 m3.
Accounting Period means a calendar month unless varied
by notice from Metromix.
Act means the Industrial
Relations Act 1996 (NSW).
Agitator means the mixing equipment necessary to mix
and transport Concrete by a Prime Mover.
Annual Earnings Safety Net means the payment referred
to, and calculated in accordance with, clause 3.2, 3.3 and Schedule 1.
Average Group Productivity means the moving annual total
paid loads carried by a group of Contract Carriers in an Utilisation Group.
Australian Standard means any relevant Australian
Standard as applies from time to time.
Authorised Absence means any absence expressly
authorised by this Contract Determination including but not limited to those
outlined in clause 3.3(b), 7.10, 26.2, and 27.
CAR means a manual Cartage Adjustment Request Form.
Cartage
Adjustment Request Form means the form located in Schedule 9.
Cartage Rates
means the rates located in Schedule 1.
Cartage Work
means the cartage of Concrete as and when required by Metromix.
Communication
Equipment means equipment such as but not limited to global positioning systems
(GPS), two way radio, safety cameras etc.
Contract Determination means this contract
determination as varied or replaced from time to time.
Concrete means pre‑mixed Concrete manufactured by
Metromix and any other materials that can be
delivered in a Vehicle as may be designated by Metromix.
Configuration means the classification of a Vehicle by
reference to its Load Capacity as follows:
(a) 1.0m3 Vehicle;
(b) 2.0m3 Vehicle;
(c) 3.0m3 Vehicle; or
(d) any other
classifications designated by Metromix from time to
time.
Consultative Committee means the committee structure in
operation prior to the commencement of this Contract Determination.
Contract Carrier means a Contract Carrier engaged by Metromix pursuant to a Mini Cartage Contract to cart
pre-mixed Concrete in the Operational Area.
Contract Carriers Leave Application Form means the form
located in Schedule 9.
Control Number means a sequence of number or letters or
both given solely by Dispatch.
Corporations Act means the Corporations Act 2001 (Cth).
Customer Service Levels means the provision of
efficient, timely and competitive service to meet customers’ expectations and
requirements.
Cyclic Start Roster means a start of day roster based
on a "first out yesterday, second out today" system with the effect
that each Vehicle will move through the cycle from starting first to starting
last and, on successive days, all points in between, subject but not limited to
Customer Service requirements.
Daily Transfer Roster means the roster determined in
accordance with clause 10.2.
Demurrage means the rate specified in Schedule 3.
Dispatch means the Customer Service Centre or in the
event the Customer Service Centre is closed or unavailable, the Plant.
Driver means the Nominated Driver or a Substitute
Driver.
Fleet Owner means a provider of transport services
other than a Contract Carrier.
Flow Cone Test means a flow cone test in accordance
with Australian Standards.
Force Majeure means an act, omission or circumstance
beyond a party’s control, including:
(e) acts of God;
(f) fire, flood,
storm, earthquake, explosion or accident;
(g) hostile or
warlike action in time of peace or war; or
(h) insurrection, rebellion, revolution,
civil war, sabotage, civil disobedience, usurped power or action taken by
government authority in hindering, combating or defending against such
occurrence, but only to the extent that the
act, omission or circumstance could not have been avoided or foreseen through
the exercise of reasonable skill and care that a diligent person in the
position of the affected party would have exercised.
Kerb-Maker means a Concrete mix "nil Slump" used specifically for the construction of kerb
and gutter.
Kilometre Running Rate means the rate paid per
kilometre as itemised in Schedule 1.
Load Capacity means the lesser of:
(a) the maximum
legal carrying capacity of the Contract Carrier’s Vehicle; and
(b) the
manufacturer’s nominated maximum capacity of the Agitator.
MAT means moving annual total.
Metromix means Metromix Pty. Limited of Level 4, 107 Phillip St Parramatta,
NSW, 2150.
Metromix Concrete Cartage
Cost Model means one of the following excel models: Metromix
Concrete Cartage Cost Model - 3.0m3 Able Prime Mover Only; Metromix
Concrete Cartage Cost Model - 2.0m3 Able Prime Mover Only; Metromix
Concrete Cartage Cost Model - 1.0m3 Able Prime Mover Only.
Metromix's Normal Trading
Hours means 6:00 am to 5:00 pm Monday to Friday and from 6:00 am to 1:00 pm
Saturday or as otherwise varied by Metromix.
Metromix Representative means
the Metromix Plant Manager or his/her delegate.
Mini Cartage Contract means the contractual arrangement
under which the Contract Carrier is engaged by Metromix
to perform the Cartage Work.
Mini Vehicles means a vehicle with a nominal carrying
capacity of 3.0m3 or less.
New Prime Mover means a Prime Mover that is (a) less
than one (1) year of age from the year of manufacture which will be measured
from the date of manufacture as per the compliance plate affixed to the Vehicle
and (b) is a 3.0m3, 2.0m3 or 1.0m3 Prime Mover or such other configuration as Metromix may determine.
Night Shift means a shift where a Contract Carrier is
rostered to work outside Metromix’s Normal Trading
Hours and has been given prior notice of the shift (to avoid any doubt this
does not include an early start or late finish outside of Metromix’s
Normal Trading Hours).
Night Shift Minimum means the rates set out in Schedule
3.
Nominated Driver means the person nominated by the
Contract Carrier and approved by Metromix as such.
Nominated Plant means the plant that a Contract Carrier
will normally be based at, as directed by Metromix.
Operational Requirements means all factors which may,
in Metromix’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 Metromix’s Concrete and related businesses.
Periodic Transfer Roster means the roster determined in
accordance with clause 10.1.
Plant means a batching plant where Concrete
and similar batched materials are manufactured for delivery in a Vehicle.
Prime Mover means the prime mover supplied by the
Contract Carrier to perform the Cartage Work.
Public Holiday means a day declared and gazetted as
such for the Operational Area.
Quality Control Laboratory means Metromix’ quality control laboratory.
Quarter means each three-month period ending on 31
March, 30 June, 30 September and 31 December each year.
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 Roster means the
period during which the Contract Carrier's services are not required by Metromix.
Slump means a measure of consistency of Concrete as
determined in accordance with Australian Standard.
State Authority means the RMS or such other agency that
is authorised to inspect the Vehicle.
Substitute Driver means any driver of the Vehicle
authorised as such in accordance with clause 7.3 of this Contract
Determination.
Surcharge/s means those payments specified in Schedule
3.
Unloaded Kilometers is given
the definition in clause 4.6.
Utilisation Cartage Rates means the Cartage Rates paid
for various annualised levels of Vehicle productivity measured in loads per
Vehicle per year (loads/Vehicle/year) as set out in Schedule 1.
Unavailable Day(s) means any day(s) other than that of
a Working Day.
Unauthorised Absence means any absence not expressly
authorised by this Contract Determination.
Union means the Transport Workers Union, New South
Wales.
Utilisation Group means a group of Concrete Trucks of
the same Configuration including the Contract Carrier’s Vehicle.
Vehicle means a Prime Mover and Agitator used to
transport and deliver pre‑mixed Concrete.
Waiting Time is given the meaning in clause 4.12.
Wet Piling Grout means a Concrete mix used for the
construction of piles or piers.
Working Day means a day which is not a Sunday or Bank
or Public Holiday.
SCHEDULE 1 - CARTAGE
RATES
1. Cartage Rates
1.1 The Cartage
Rates are:
(for a Contract Carrier who has not yet introduced a
New Prime Mover in accordance with clause 5 Prime Mover) the Cartage Rates
subject to the Utilisation and Rise and Fall reviews that operated immediately
prior to this Contract Determination commencing; and
(for a Contract Carrier who has introduced a New Prime
Mover in accordance with clause 5 Prime Mover) ascertained from "RATE SCH
Prime Mover Only" of the relevant "Metromix
Concrete Cartage Cost Model" (being one of the following: Metromix Concrete Cartage Cost Model - 3.0m3 Able Prime
Mover Only; Metromix Concrete Cartage Cost Model -
2.0m3 Able Prime Mover Only; Metromix Concrete
Cartage Cost Model - 1.0m3 Able Prime Mover Only) as at the date this Contract
Determination commences to operate and then as varied from time to time in
accordance with this Contract Determination.
SCHEDULE 2 - UTILISATION REVIEWS
1. Utilisation Review
1.1 Process
On a quarterly basis, Metromix
will undertake a utilisation review in accordance with
this Schedule to determine the value for the red inputs "Volume, Average
Load (where present in the model) and Average Lead" in the "Key
Variables & Price Sheet" of the "Metromix
Concrete Cartage Cost Model".
(a) The review
must determine the value for the inputs referred to in clause 1.1 as at:
(i) 31
March;
(ii) 30 June;
(iii) 30 September;
and
(iv) 31 December.
Notation: The 30 September utilisation review is
undertaken with relevant rise and fall reviews.
1.2 Adjustment of
Model
(a) Having
determined the value for the input "Volume, Average Load (where present in
the model) and Average Lead" Metromix shall
enter it into the "Key Variables & Price Sheet" of the relevant
"Metromix Concrete Cartage Cost Model".
(b) Having
undertaken the step in clause 1.2 (a), Metromix shall
refresh the Model.
1.3 New Rates
Following the process in clause 1.2, the new cartage
rates and surcharges shall be the cartage rates and surcharges ascertained from
the following sheets of the relevant "Metromix
Concrete Cartage Cost Model":
(a) RATE SCH Prime
Mover Only; and
(b) Prime Mover
Only Surcharges.
1.4 Operative Date
Any new Cartage Rates and Surcharges arising from
clause 1.3 shall be operative as of:
(a) 1 May;
(b) 1 August;
(c) 1 November;
and
(d) 1 February.
1.5 Volume (Average Group Productivity)
(a) This clause
sets out how the value for the red input "Volume: in the relevant "Metromix Conrete Cartage Cost
Model" is determined.
(b) The
"Volume" (Average Group Productivity) calculated on a MAT basis
(using the relevant Metromix MAT model), will measure
the annual average volume of adjusted paid loads carted by Contract Carriers in
the Utilisation Group. This calculation will be rounded to the nearest 50
loads.
(c) In calculating
the "Volume" (Average Group Productivity), Metromix
will have regard to:
(i) the paid loads carted per month during the relevant Quarter
by all Contract Carriers in the Utilisation Group;
(ii) the number of Contract Carriers' Vehicles in the Utilisation
Group per month during the relevant Quarter;
(iii) the number of Working Days for the month;
(iv) the number of Unavailable
Days as a result of Authorised and Unauthorised Absence for all Contract
Carriers in the Utilisation Group per month during the relevant Quarter; and
(v) the MAT of adjusted paid loads carted per month for the
relevant Quarter.
(d) The following
formula must be used to calculate adjusted paid meters carted per month:
M3/(N - (U/W)) = ADJUSTED LOADS PAID PER MONTH PER
TRUCK
Where:
N = Number of Vehicles in the Utilisation Group
U =
Unavailable Days per Month
W = Working Days per Month
M3 = Total paid meters per month for Vehicles in a
Utilisation Group
(e) Unavailability will not arise where:
(vi) the Contract Carrier has previously been notified by Metromix that the Contract Carrier is not required to
perform Cartage Work on the relevant day;
(vii) Force Majeure
has occurred; or
(viii) The Nominated
Driver is otherwise on a period of Authorised Absence.
1.6 Utilisation
Groups
All Utilisation Groups will be determined by Metromix, having
regard to the needs of the business. There will be no changes to a Utilisation Group once determined, without prior
consultation with the Consultative Committee.
1.7 Consultation
Prior to undertaking the steps in clause 1.3 of this
schedule, the Consultative Committee shall meet to consult on the adjusted
model arising from clause 1.2 of this schedule.
SCHEDULE 3 - SURCHARGES
1. Surcharges
1.1 The Surcharges
are ascertained from the "Prime Mover Only Surcharges" of the
relevant "Metromix Concrete Cartage Cost
Model" as at the date this Contract Determination commences to operate and
then as varied from time to time in accordance with this Contract
Determination.
2.1 The Surcharges
are:
(a) (for a
Contract Carrier who has not yet introduced a New Prime Mover in accordance
with clause 5 Prime Mover) the Surcharges subject to the Utilisation and Rise
and Fall reviews that operated immediately prior to this Contract Determination
commencing; and
(b) (for a
Contract Carrier who has introduced a New Prime Mover in accordance with clause
5 Prime Mover) ascertained from "Prime Mover Only Surcharges" of the
relevant "Metromix Concrete Cartage Cost
Model" as at the date this Contract Determination commences to operate and
then as varied from time to time in accordance with this Contract
Determination.
SCHEDULE 4 - INSURANCES
The Contract Carrier must obtain the following
insurance and maintain them at the Contract Carrier expense at all times:
(a) compulsory third party insurance for the Vehicle as required
by any relevant law;
(b) comprehensive
motor Vehicle insurance covering personal injury and property damage arising
from the use of the Vehicle for $10,000,000 (or such higher sum as Metromix requires from time to time) for each claim or
occurrence;
(c) public and
products liability covering legal liability to any third party for personal
injury and/or property damage arising from the Contract Carrier business, this
Contract Determination or the Contract Carrier breach of this Contract Determination
for $20,000,000 (or such higher sum as Metromix
requires from time to time) for each claim or occurrence with extension to
cover:
(d) wrongful delivery of Concrete;
(e) workers’ compensation insurance as required by any relevant
law;
(f) insurance covering the Agitator (transit mixer and barrel);
(g) solidification of Concrete insurance; and
(h) personal accident and sickness insurance.
SCHEDULE 5 - 1.0m3
MOVER SPECIFICATION
1. Specification
1.1 Subject to this Schedule, Metromix may determine the specification from time to time.
1.2 If Metromix
change a specification it must:
(a) consult with
the Consultative Committee; and
(b) provide each
Contract Carrier with a copy of the specification.
1.3 Unless the specification is for a New
Vehicle, if Metromix change a specification and in so
doing the Contract Carrier is required to retro fit their Vehicle, Metromix must:
(a) pay for the
retro fit; or
(b) adjust the
relevant "Metromix Concrete Cartage Cost
Model" to reflect to cost of the retro fit.
1.4 Any adjustment arising from 1.3 shall be
operative from the next review (after the adjustment) arising from Schedule 8.
SCHEDULE
6 - 2.0m3 PRIME MOVER SPECIFICATION
1.
Specification
1.1 Subject
to this Schedule, Metromix may determine the
specification from time to time.
1.2 If
Metromix change a specification it must:
(a) consult with the Consultative Committee; and
(b) provide each Contract Carrier with a copy of the
specification.
1.3 Unless
the specification is for a New Vehicle, if Metromix
change a specification and in so doing the Contract Carrier is required to
retro fit their Vehicle, Metromix must:
(a) pay for the retro fit; or
(b) adjust the relevant "Metromix
Concrete Cartage Cost Model" to reflect to cost of the retro fit.
1.4 Any
adjustment arising from 1.3 shall be operative from the next review (after the
adjustment) arising from Schedule 8.
SCHEDULE 7 - 3.0m3
PRIME MOVER SPECIFICATION
1. Specification
1.1 Subject to this Schedule, Metromix may determine the specification from time to time.
1.2 If Metromix
change a specification it must:
(a) consult with
the Consultative Committee; and
(b) provide each
Contract Carrier with a copy of the specification.
1.3 Unless the specification is for a New
Agitator, if Metromix change a specification and in
so doing the Contract Carrier is required to retro fit their Vehicle, Metromix must:
(a) pay for the
retro fit; or
(b) adjust the
relevant "Metromix Concrete Cartage Cost
Model" to reflect to cost of the retro fit.
1.4 Any adjustment arising from 1.3 shall be
operative from the next review (after the adjustment) arising from Schedule 8.
SCHEDULE
8 - RISE AND FALL
1. Annual Cost
Model Review
1.1 Review Process
(a) Subject to
clause 1.1 (d), each year, Metromix shall review the
green inputs set out in the "Key Variables & Price Sheet" of the
relevant "Metromix Concrete Cartage Cost
Model".
(b) The review
must determine the value for the green inputs as at 30 September in that year.
(c) The value is
to be determined by Metromix from enquiries of the
sources and methodology used (and if not available a reasonable like source and
methodology) to build the relevant "Metromix
Concrete Cartage Cost Model".
(d) Despite clause
1.1(a), the inputs set out in the "Key Variables & Price Sheet"
of the relevant "Metromix Concrete Cartage Cost
Model" in the left hand column set out in the table below shall only be
subject of review in accordance with period set out in the right hand column
set out in the table below:
|
1.0m3 Prime Mover RRP
|
The review occurring on 30 September 2018
|
|
2.0m3 Prime Mover RRP
|
and thereafter every 10 years.
|
|
3.0m3 Prime Mover RRP
|
|
1.2 Consultation on
Inputs
Metromix shall consult with the
Consultative Committee (refer to clause 27 of this Contract Determination)
about the outcome of the review before finalising the values referred to in
clause 1.1.
1.3 Adjustment of
Model
(a) Having
determined the values of the green inputs set out in the "Key Variables
& Price Sheet" of the relevant "Metromix
Concrete Cartage Cost Model", Metromix shall
enter any changes to the values for the blue inputs (refer to clause 1.1((d))
into the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".
(b) Having
undertaken the step in clause 1.3 (a), Metromix shall
refresh the Model.
1.4 New Rates
Following the process in clause 1.3, the new cartage
rates and surcharges shall be the cartage rates and surcharges ascertained from
the following Sheets of the relevant "Metromix
Concrete Cartage Cost Model":
(a) RATE SCH Prime
Mover Only; and
(b) Prime Mover
Only Surcharges.
1.5 Operative Date
Any new Cartage Rates and Surcharges arising from
clause 1.4, shall be operative from the first of
November following the Review.
2. Periodic Fuel
Review
2.1 Process
(a) Subject to
clause 2.1(b), each year Metromix shall review the
red inputs for "Fuel - Exc GST, Diesel Fuel Rebate - Off Road Use, Diesel Fuel
Rebate - On Public Road and Fuel Additive set out in the "Key Variables
& Price Sheet" of the relevant "Metromix
Concrete Cartage Cost Model".
(b) The review
must determine the value for the inputs referred to in clause 2.1 (a) as at:
(i) 31
March;
(i) 30
June;
(ii) 30 September;
and
(iii) 31 December.
Notation: The 30 September review of fuel is undertaken
in conjunction with the Annual Cost Model Review set out in clause 1 of this
Schedule.
(c) The value is
to be determined by Metromix from enquiries of the
sources and methodology used (and if not available a reasonable like source and
methodology) to build the relevant "Metromix
Concrete Cartage Cost Model".
2.2 Consultation on
Inputs
Metromix shall consult with
the Consultative Committee (refer to clause 27 of this Contract Determination)
about the outcome of the review before finalising the values referred to in
clause 2.1.
2.3 Adjustment of
Model
(a) Having
determined the values for the red inputs "Fuel - Exc GST, Diesel Fuel
Rebate - Off Road Use, Diesel Fuel Rebate - On Public Road and Fuel Additive
set out in the "Key Variables & Price Sheet" of the relevant
"Metromix Concrete Cartage Cost Model", Metromix shall enter those values into the "Key
Variables & Price Sheet" of the relevant "Metromix
Concrete Cartage Cost Model".
(b) Having
undertaken the step in clause 2.3 (a), Metromix shall
refresh the Model.
2.4 New Rates
Following the process in clause 2.3, the new cartage rates
and surcharges shall be the cartage rates and surcharges ascertained from the
following Sheets of the relevant "Metromix
Concrete Cartage Cost Model":
(a) RATE SCH Prime
Mover Only; and
(b) Prime Mover
Only Surcharges.
2.5 Operative Date
Any new Cartage Rates and Surcharges arising from
clause 2.4 shall be operative as of:
(a) 1 May;
(b) 1 August;
(c) 1 November;
and
(d) 1 February.
SCHEDULE 9 - FORMS
Such forms as Metromix
reasonably determine from time to time.
SCHEDULE 10 - NEW CONTRACT CARRIERS
1. Assignment
1.1 The Contract
Carrier must not Assign or Dispose of, or purport to Assign or Dispose of the
contractual arrangement under which they are engaged by Metromix to
perform the Cartage Work or any rights under it.
2. Termination without
Compensation and Notice
2.1 Metromix
may terminate the Contract Carrier’s engagement immediately and without
compensation to the Contract Carrier if:
(a) the Contract Carrier does not pay within one month of demand
any monies payable to Metromix;
(b) Metromix gives the Contract Carrier a notice requiring
repairs to the Contract Carrier’s prime mover within a time which is reasonable
having regard to the required repairs and the Contract Carrier does not comply
with that notice;
(c) the
Contract Carrier does not comply with any provision of the Contract
Determination, and the Contract Carrier fails to remedy (and keep remedied)
that default within fourteen (14) days (or such other period as may be agreed
in writing) of written notice from Metromix requiring
the default to be remedied;
(d) the
Contract Carrier Assigns or Disposes of, or purports to Assign or Dispose of
the contractual arrangement under which they are engaged by Metromix
to perform the Cartage Work or any rights under it;
(e) except
when the Contract Carrier’s prime mover is undergoing required repairs within a
time which is reasonable having regard to the required repairs (proof of such
reasonableness shall lie with the Contract Carrier) the Contract Carrier’s
Vehicle is unavailable to perform the Cartage Work without Metromix's
authorisation; or
(f) the Nominated Driver commits an act that were they an
employee of Metromix the act would constitute serious
misconduct.
3. Termination without
Compensation but with Notice
3.1 Despite clause 2,
Metromix
may terminate the Contract Carrier’s engagement without cause and without compensation, upon 3 months’ written
notice to the Contract Carrier.
Notation: In some circumstances the Transport Industry
- Redundancy (State) Contract Determination might apply.
4.
Termination by Contract Carrier
4.1 The
Contract Carrier may terminate their engagement by providing Metromix
with three (3) months’ written notice.
5. Dictionary
5.1 In this Schedule 10,
words have the meaning given to them in clause 29 of this Contract
Determination and in this dictionary unless the context requires otherwise.
Assign or
Dispose of includes:
(a) cause or permit a Change in Control of the Contract Carrier;
(b) subcontract to another person performance of some or all of
the Cartage Work;
(c) let or part with possession of the Vehicle, except as a
consequence of the purchase of a new Vehicle; or
(d) cause or permit the Nominated Driver to be directly or
indirectly employed by a person other than the Contract Carrier in relation to
the Cartage Work.
Change in Control (without limitation) is taken to have
occurred in relation to the Contract Carrier if without Metromix’s
prior written consent:
(a) a person who is not a director of the Contract Carrier
becomes such a director;
(b) a person ceases to be, or becomes, the natural person who
directly or indirectly controls the Contract Carrier;
(c) a person ceases to hold, or to own beneficially, or becomes
the holder or the beneficial owner of, a majority of the voting shares (as
defined in the Corporations Law) in the Contract Carrier;
(d) a person ceases to have, or commences to have, the capacity
to appoint a majority of the directors of the Contract Carrier; or
(e) a person who is a director of the Contract Carrier ceases to
be such a director; or
(f) in relation to any trust entitled to any income flowing
from, or to any shares in, the Contract Carrier;
(i) a person ceases to be, or becomes, a beneficiary or discretionary
object of the trust;
(ii) a distribution of, or an appointment of, such income under
the trust is made in favour of a person who has not previously been the subject
of a distribution or appointment of such income; or
(iii) any such share is included in property the subject of a
distribution or appointment of capital from or under the trust.
Claims includes actions, causes of action, potential
causes of action, investigations, prosecutions, suits, legal proceedings,
disputes, differences, rights, duties, obligations, liabilities,
responsibilities, accounts, interests, costs (whether or not the subject of a
court order) and demands.
Confidential Information means all information and
materials in any form concerning Metromix, its
customers or suppliers, and includes without limitation, information regarding Metromix’s business or financial activities, pricing or
quoting structures or any other information which Metromix
indicates to be Confidential Information, but does not include materials which
are in the public domain other than by way of unauthorised disclosure.
Corporations Act means the Corporations Act 2001 (Cth).
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 (7) 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 (7) 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 (Cth); or
(k) 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.
SCHEDULE 11 - CONTRACT CARRIERS AND THIER
PERMITTED
ASSIGNEES WHO COMMENCED BEFORE 1 OCTOBER
2017
1. Assignment
1.1 The
Contract Carrier must not Assign or Dispose of, or purport to Assign or Dispose
of the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work or any rights
under it except in accordance with Annexure A to this Schedule 11.
2. Termination without
Compensation and Notice
2.1 Metromix may terminate the Contract Carrier’s
engagement immediately and without compensation to the Contract Carrier if:
(a) the Contract Carrier does not pay within one month of demand
any monies payable to Metromix;
(b) Metromix gives the Contract Carrier a notice requiring
repairs to the Contract Carrier’s prime mover within a time which is reasonable
having regard to the required repairs and the Contract Carrier does not comply
with that notice;
(c) the Contract
Carrier does not comply with any provision of the Contract Determination, and the
Contract Carrier fails to remedy (and keep remedied) that default within
fourteen (14) days (or such other period as may be agreed in writing) of
written notice from Metromix requiring the default to
be remedied;
(d) the Contract
Carrier Assigns or Disposes of, or purports to Assign or Dispose of the
contractual arrangement under which they are engaged by Metromix
to perform the Cartage Work or any rights under it except in accordance with
Annexure A to this Schedule 11;
(e) except when
the Contract Carrier’s prime mover is undergoing required repairs within a time
which is reasonable having regard to the required repairs (proof of such
reasonableness shall lie with the Contract Carrier) the Contract Carrier’s
Vehicle is unavailable to perform the Cartage Work without Metromix's
authorisation; or
(f) the Nominated Driver commits an act that were they an
employee of Metromix the act would constitute serious
misconduct.
3. Termination with
Compensation and Notice
3.1 Despite
clause 2, Metromix
may terminate the Contract Carrier’s engagement without cause by providing:
(a) 3 months’
written notice to the Contract Carrier; and
(b) a payment (if any is required) of the Termination Payment
set out in Annexure C to this Schedule 11.
4. Termination by Contract
Carrier
4.1 The
Contract Carrier may terminate their engagement by providing Metromix with three (3) months’ written notice.
5.
Dictionary
5.1 In
this Schedule 11, words have the meaning given to them in clause 29 of this
Contract Determination and in this dictionary unless the context requires
otherwise.
Assign or
Dispose of includes:
(a) cause or permit a Change in Control of the Contract Carrier;
(b) sub contract to another person performance of some or all of
the Cartage Work;
(c) let or part with possession of the Vehicle, except as a
consequence of the purchase of a new Vehicle; or
(d) cause or permit the Nominated Driver to be directly or
indirectly employed by a person other than the Contract Carrier in relation to
the Cartage Work.
Change in Control
(without limitation) is taken
to have occurred in relation to the Contract Carrier if without Metromix’s prior written consent:
(a) a person who is not a director of the Contract Carrier
becomes such a director;
(b) a person ceases to be, or becomes, the natural person who
directly or indirectly controls the Contract Carrier;
(c) a person ceases to hold, or to own beneficially, or becomes
the holder or the beneficial owner of, a majority of the voting shares (as
defined in the Corporations Law) in the Contract Carrier;
(d) a person ceases to have, or commences to have, the capacity
to appoint a majority of the directors of the Contract Carrier; or
(e) a person who is a director of the Contract Carrier ceases to
be such a director; or
(f) in relation to any trust entitled to any income flowing
from, or to any shares in, the Contract Carrier;
(i) a person ceases to be, or becomes, a beneficiary or
discretionary object of the trust;
(ii) a distribution of, or an appointment of, such income under
the trust is made in favour of a person who has not previously been the subject
of a distribution or appointment of such income; or
(iii) any such share is included in property the subject of a distribution
or appointment of capital from or under the trust.
Claims includes actions, causes of action, potential
causes of action, investigations, prosecutions, suits, legal proceedings,
disputes, differences, rights, duties, obligations, liabilities,
responsibilities, accounts, interests, costs (whether or not the subject of a
court order) and demands.
Confidential Information means all information and
materials in any form concerning Metromix, its
customers or suppliers, and includes without limitation, information regarding Metromix’s business or financial activities, pricing or
quoting structures or any other information which Metromix
indicates to be Confidential Information, but does not include materials which
are in the public domain other than by way of unauthorised disclosure.
Corporations Act means the Corporations Act 2001 (Cth).
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 (7) 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 (7) 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 (Cth); or
(k) 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.
ANNEXURE A - ASSIGNMENT
1. Entitlement
Subject to clause 3 of this Schedule 11, the
Contract Carrier may assign the contractual arrangement under which they are
engaged by Metromix to
perform the Cartage Work to a company:
(a) which provides a driver whom:
(i) possesses an appropriate current driver's licence; and
(ii) before
commencing work, satisfactorily undergoes Metromix's
then current pre-engagement criteria and attends and satisfactorily completes
any training program (to be held at Metromix’s closest
available facility) relevant to the performance of the Cartage Work that Metromix reasonably requires; and
(b) proved by the
Contract Carrier to Metromix's reasonable
satisfaction that they have a prime mover suitable for the Cartage Work without
any modifications or rebuilding (unless those modifications or rebuilding are
carried out at the Contract Carrier’s expense); and
(c) approved by Metromix in writing
(such approval not to be unreasonably withheld) after and only after:
(i) Metromix has interviewed the principal(s) of the said
company and explained:
A the contents
and operation of our Mini Cartage Contract;
B the content and
meaning of the Deed of Assignment (Annexure B); and
C generally the
operation of Metromix's business as it relates to contract
carriers; and
(ii) the
company has confirmed in writing which if require by Metromix
shall be in a Statutory Declaration) to Metromix's
reasonable satisfaction its understanding of the representations made at the
interview; and
(iii) executed a Certificate of Financial Advice and a Certificate
of Legal Advice.
2. Deed of Assignment
The approved assignee shall execute (no sooner than seven
days and no later than 21 days after being approved in writing in accordance
with clause 1(c) of this Annexure) a
Deed of Assignment in the form (and only in the form) set out Annexure B
to Schedule 11.
3. Notice to Assign
and First Option
(a) Whenever the
Contract Carrier intends to assign the contractual arrangement under which they
are engaged by Metromix to perform the Cartage Work
in accordance with this Annexure, they must first notify Metromix
in writing of their intention.
(b) Despite
anything else in this Annexure A (or Schedule 11) Metromix
and the Contract Carrier may agree on an arrangement (on such terms as the
parties in their absolute discretion determine) to terminate the contractual
arrangement rather than proceed with any assignment.
ANNEXURE B - DEED OF ASSIGNMENT
Deed of Assignment
DEED OF ASSIGNMENT made the __________ of ______________
20___ in _________________
(the "Deed of
Assignment")
BETWEEN:
(1) METROMIX PTY
LIMITED of ..........................................., NSW ("Metromix"); and
(2) insert Company executing this Deed of Assignment as an
Assignor Contract Carrier] (the "Outgoing Contract Carrier"); and
(3) [insert Company executing this Deed as an Assignee Contract
Carrier] (the "Incoming Contract Carrier").
RECITALS:
A. Metromix carries on the business of the manufacture and
sale of Concrete in New South Wales.
B. The Outgoing
Contract Carrier desires to assign to the Incoming Contract Carrier the Mini
Cartage Contract and all its rights and other obligations under it.
THE PARTIES AGREE AND DECLARE as follows:
1. Interpretation
1.1 In this Deed of
Assignment, expressions used or defined in clause 29 and Schedule 11 of the
Contract Determination have the same meaning in this Deed and in addition:
"Assignment Date" means the day upon which
this Deed of Assignment is executed.
"Mini Cartage Contract" means the contractual
arrangement under which the Outgoing Contract Carrier is engaged by Metromix to perform the Cartage Work a true copy of which
is annexed to this Deed of Assignment.
2. Assignment
2.1 With effect
from the Assignment Date:
Metromix engages the Incoming
Contract Carrier as a Contract Carrier to perform the Cartage Work instead of
the Outgoing Contract Carrier;
the Incoming Contract Carrier
agrees with Metromix to perform the Cartage Work on
the terms and conditions of the Mini Cartage Contract; and
the Incoming Contract Carrier
becomes a party to the Mini Cartage Contract.
3. Release
3.1 Metromix
and the Outgoing Contract Carrier confirm their obligations to make payments arising
from the performance of their obligations under the Mini Cartage Contract
and/or Contract Determination up to and including the Assignment Date which
they now agree to be set out in the Schedule attached to this Deed of
Assignment.
3.2 Except as provided in clause 3.1, with effect from the
Assignment Date:
Metromix and the Outgoing
Contract Carrier release each other from performance of any obligation under
the Mini Cartage Contract and/or Contract Determination falling due for
performance after the Assignment Date; and
Metromix and the Outgoing
Contract Carrier release each other from any claim arising directly or
indirectly under or in connection with the Mini Cartage Contract and/or
Contract Determination.
4. Acknowledgement by
Incoming Contract Carrier
4.1 The Incoming
Contract Carrier acknowledges that:
(a) they were not
required by Metromix to pay any goodwill, premium,
fee paid for introductions to work or other similar consideration however
termed and further Metromix does not request or
desire such payment to be made when engaging the Incoming Contract Carrier; and
(b) the Contract Carrier’s engagement may be terminated in
accordance with clause 2, 3, 4 of Schedule 11 or clause 3 of Annexure A -
Schedule 11.
EXECUTED as a Deed on the date hereinbefore mentioned
EXECUTION BY METROMIX OF THE DEED OF ASSIGNMENT:
SIGNED, SEALED AND DELIVERED )
FOR AND ON BEHALF OF )
METROMIX PTY LIMITED )
By its duly authorised
officer )
....................................................... ...................................................
Name: Witness:
EXECUTION BY THE OUTGOING CONTRACT CARRIER OF THE DEED
OF ASSIGNMENT:
SIGNED, SEALED AND DELIVERED )
for
and on behalf of )
[insert
Outgoing Contract Carrier] )
.................................................. ......................................................
by
its authorised officer in Authorised
Officer
the
presence of: Name
(printed):
..................................................
Witness
Name (printed):
EXECUTION BY THE INCOMING CONTRACT CARRIER OF THE DEED
OF ASSIGNMENT:
SIGNED, SEALED AND DELIVERED )
for
and on behalf of )
[insert
Incoming Contract Carrier] )
.................................................. .......................................................
by
its authorised officer in Authorised
Officer
the
presence of: Name
(printed):
..................................................
Witness
Name (printed):
Schedule - Payment Details
Notation: In accordance with clause 3.1, insert here
any outstanding payments to be made to the Outgoing Contract Carrier
Annexure - True Copy of the Mini Cartage Contract Being
Assigned
Attach True Copy
ANNEXURE C - TERMINATION PAYMENT
1. Termination Payment
1.1 The Termination Payment
is an amount calculated from the formula below less:
(a) any amount
that Metromix is required to pay the Contractor in
accordance with the Transport Industry Redundancy (State) Contract
Determination as varied or replaced from time to time; and/or
(b) any other termination or severance payment required to be
paid to the Contractor in accordance with another contract determination made
by the Industrial Relations Commission of NSW from time to time.
1.2 The formula is:
During the ten year period from the day upon which this
Contract Determination commenced operation:
$7,500 or, if greater, the amount calculated as:
$70,000 x (A/B)
A = The number of whole months between the termination
date and the day that falls 10 years after the day upon which this Contract
Determination commenced operation.
B = 120.
After the ten year period from the day upon which this
Contract Determination commenced operation:
$7,500
SCHEDULE 12 - EMBARGO PLANT LIST
1. Embargo Plants
1.1 List
The Plants listed in the table below are the Plants for
the purposes of clause 24.3(a).
|
Plant Name
|
Plant Address
|
|
Able Hornsby
|
11 Salisbury Rd Hornsby
|
P. J. NEWALL,
Commissioner
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Printed by the authority of the Industrial Registrar.