Metromix Pty Limited Maxi Concrete Cartage Contract
Determination
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Metromix Pty Ltd.
(Case No. 11000 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
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
5.1 Supply
and Suitability First 18 Months
5.2 Supply
and Suitability of New Prime Mover and New Agitator
5.3 Metromix Discretion to allow Extension of Time
5.4 Exception
5.5 Registration
5.6 Running
Expenses
5.7 Maintenance
and Repair
5.8 Cease
Using Prime Mover and/or Agitator
5.9 Painting
and Logo
5.10 Mass
Management
5.11 Maximum
Age for a Prime Mover and Agitator
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 Mandatory
Periodic Transfers
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 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. KATOOMBA
24.1 Operative
Provisions
25. ADDITIONAL
TERMS
25.1 Contract
Carrier’s who commenced before 1 October 2017
25.2 New
Contract Carriers
25.3 New
Contract Carriers - Plant Embargo
25.4 New
Contract Carriers - No ‘Gazumping’
26. NOTICES
26.1 Delivery
26.2 Receipt
26.3 Proper
Address
27. CONSULTATION
27.1 Committee
27.2 Meeting
27.3 Information
27.4 Payment
27.5 Annual
Verification
28. DELEGATES
28.1 Appointment
28.2 Opportunity
to Meet
28.3 Use
of Notice Board
28.4 Release
of Delegates
29. DICTIONARY
Schedule 1 - Cartage Rates
Schedule 2 - Utilisation Reviews
Schedule 3 - Surcharges
Schedule 4 - Insurances
Schedule 5 - 6 Wheeler Prime Mover
Specification
Schedule 6 - 8 Wheeler Prime Mover
Specification
Schedule 7 - 6.5m3 Agitator Specification
Schedule 8 - 7.5m3 Agitator Specification
Schedule 9 - Rise and Fall
Schedule 10 - Forms
Schedule 11 - Katoomba
Schedule 12 - Katoomba Rise and Fall
Schedule 13 - New Contract Carriers
Schedule 14 - 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 15 - Exception List
Schedule 16 - 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
(other than 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 Maxi 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 Maxi
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 9.
3.
Safety Net
3.1 Entitlement
Should a Contract Carrier’s earnings be less
than the Annual Earnings Safety Net 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 9.
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 minimum of
three (3) cubic meters and 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 Maxi 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
(1) 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 (1) 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 (1) 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 (1) 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 three
(3) cubic meters 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 11.5(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 cubic meter for a minimum of three (3)
cubic meters:
(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 30 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
11.5(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) and (c), 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 First 18 Months
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 on the same terms as operated before the
commencement of this Contract Determination.
(c) Further to clause 5.1(b), whilst Metromix provides a serviceable Agitator, Metromix must pay the Contract Carrier:
(i) 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 Agitator;
(ii) at the rate
specified in Schedule 3 for any Standby Time 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.
5.2 Supply and Suitability of New Prime Mover
and New Agitator
Subject
to clause 5.3 and 5.4, the Contract Carrier must supply a New Prime Mover and a
New Agitator no later than 18 months after the commencement of this Contract
Determination which must:
(a) meet the Prime
Mover and Agitator specifications;
(b) be accompanied
with a weighbridge certificate (obtained at the Contract Carrier’s own
expense); and
(c) 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 and Agitator if
there are exceptional unforeseen circumstances.
5.4 Exception
(a) Metromix has authorised a limited number of Contract
Carriers to delay the introduction of a New Prime Mover. Set out in Schedule 15 is a list of these Contract
Carriers.
(b) Metromix may approve a Contract Carrier to utilise an
Agitator that is not a New Agitator in circumstances where:
(i) Metromix has sold the Agitator to the Contract Carrier; and
(ii) the Agitator is no more than 2 years of age.
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 and Agitator.
5.7 Maintenance
and Repair
The
Contract Carrier must mechanically maintain and repair the Contract Carrier’s:
(a) Prime
Mover at its own expense and ensure the Vehicle is returned to service to
perform Cartage Work as soon as practicable; and
(b) (Subject to clause 5.1) Agitator at its
own expense and ensure the Vehicle is returned to service at the Plant it is
assigned to as soon as practicable.
5.8 Cease Using Prime Mover and/or Agitator
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 and Agitator 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; and
(ii) 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 and Agitator
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 and/or Agitator 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 Maxi 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.
8.
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 and Agitator 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.
9.
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; or
(b) for compliance
with clause 10.3; and
(c) 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 Mandatory Periodic Transfers
In the event any individual Plant’s average
monthly productivity volume is more than two hundred (200) cubic meters below
the average monthly Utilisation Group productivity volume, Metromix
will do the following:
(a) initiate
periodic transfers pursuant to clause 10.1 into higher productivity volume
Plant(s);
(b) monitor
productivity volumes on a monthly basis, and
(c) maintain
periodic transfers until such time the productivity volume of an individual
Plant(s) is less than two hundred (200) cubic meters 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;
(iv) Vehicles carrying Returned
Concrete; or
(v) Mini Vehicles.
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 Maxi 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; and
(b) obtain from the
customer’s the signatures required by Metromix.
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 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.
(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 (or Substitute Driver).
11.17 Return
After discharging the load the Contract
Carrier must report to whatever Plant Metromix
instructs.
11.18 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 (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 25.3, 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.
Katoomba
24.1 Operative
Provisions
Set
out in Schedule 11 of this Contract Determination are provisions specific to
Cartage Work performed from Metromix’s Katoomba
Plant. Clauses set out in Schedule 11 substitute for clauses set out in this
Contract Determination in the terms as stated in Schedule 11 of this Contract
Determination.
25. Additional
Terms
25.1 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 14.
(b) Schedule 14 shall apply to any permitted
assignee of the Contract Carrier.
25.2 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
13.
25.3 New
Contract Carriers - Plant Embargo
(a) Despite clause 7.1 and subject to clause
25.3 (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 16.
(b) Clause 25.3 (a) shall cease to operate
two years after the commencement date of this Contract Determination.
25.4 New
Contract Carriers - No ‘Gazumping’
If
a Contract Carrier issues Metromix with a notice
pursuant to clause 3 of Annexure A of Schedule 14, 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.
26. Notices
26.1 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.
26.2 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.
26.3 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.
27.
Consultation
27.1 Committee
Metromix shall convene a Consultative Committee made up of Metromix representatives and the members of the "Metromix LOD Committee".
27.2 Meeting
The
Consultative Committee shall meet as agreed or otherwise monthly to discuss:
(a) any agreed
matters; and/or
(b) Contract Carrier utilisation.
27.3 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 m3
carted, average loads, average leads but will not include earnings.
27.4 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.
27.5 Annual
Verification
Within
the first three months after the commencement of this Contract Determination
and thereafter every 12 months:
(a) Metromix shall
provide the Consultative Committee with a list of the Contract Carriers, their
Nominated Drivers and any Substitute Drivers;
(b) the Contract
Carrier representatives shall verify whether the list is correct; and
(c) 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.
28. Delegates
28.1 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.
28.2 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.
28.3 Use
of Notice Board
Accredited
delegates will be permitted to put notices on a notice board, signed or
countersigned by the representative posting it.
28.4 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.
29.
Dictionary
6 Wheeler means a Prime Mover with three (3) axles and
six (6) wheel positions.
8 Wheeler means a Prime Mover with four (4) axles and
eight (8) wheel positions.
10 Wheeler means a Prime Mover with five (5) axles and
ten (10) wheel positions.
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 cubic meters 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, 27.2 and 28.
CAR means a manual Cartage Adjustment Request Form.
Cartage
Adjustment Request Form means the form located in Schedule 8.
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) 6 Wheeler Truck;
(b) 8 Wheeler Truck;
(c) 10 Wheeler Truck 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 Maxi Cartage Contract to cart
pre-mixed Concrete in the Operational Area.
Contract Carriers Leave Application Form means the form
located in Schedule 8.
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.
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.
Maxi Cartage Contract means the contractual arrangement
under which the Contract Carrier is engaged by Metromix
to perform the Cartage Work.
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 - Metropolitan 8 Wheeler + Agitator; Metromix Concrete Cartage Cost Model - Katoomba 6 Wheeler +
Agitator.
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 Vehicles means a vehicle with a carrying capacity less
than a 6 Wheeler.
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 an 8 wheel Prime Mover or such other configuration as Metromix may determine.
New Agitator means a 7.6m3 Agitator that is less than
six (6) months of age from the year of manufacture which will be measured from
the date of manufacture as per the compliance plate affixed to the Agitator.
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 Kilometres 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 cubic meters
per Vehicle per year (m3/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, excluding
those at the Katoomba site.
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:
(a) (for a
Contract Carrier who has not yet introduced a New Prime Mover and Agitator in
accordance with clause 5 Prime Mover and Agitator) the Cartage Rates 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 and Agitator in
accordance with clause 5 Prime Mover and Agitator) ascertained from "RATE
SCH Prime Mover & Agitator" of the relevant "Metromix
Concrete Cartage Cost Model" (being one of the following: Metromix Concrete Cartage Cost Model - Metropolitan 8
Wheeler + Agitator or the Metromix Concrete Cartage
Cost Model - Katoomba 6 Wheeler + Agitator) 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
(a) 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".
(b) 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 & Agitator; and
(b) Prime Mover + Agi 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 Concrete 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 meters carted by Contract Carriers
in the Utilisation Group. This calculation will be rounded to the nearest 100
m3.
(c) In calculating
the "Volume" (Average Group Productivity), Metromix
will have regard to:
(i) the paid meters 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 meters 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 M3
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:
(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; or
(ii) Force Majeure
has occurred; or
(iii) 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 + Agi
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 and Agitator in
accordance with clause 5 Prime Mover and Agitator) 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 and Agitator in accordance with
clause 5 Prime Mover and Agitator) ascertained from "Prime Mover + Agi 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);
(h) solidification of Concrete insurance; and
(i) personal accident and sickness insurance.
SCHEDULE
5 - 6 WHEELER 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 9.
SCHEDULE 6 - 8 WHEELER 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 9.
SCHEDULE 7 - 6.5m3 AGITATOR
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 9.
SCHEDULE 8 - 7.5m3 AGITATOR 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 9.
SCHEDULE 9 - 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:
|
8 Wheeler Prime Mover RRP
|
The review occurring on 30
September 2018 and thereafter every 10 years.
|
|
|
|
|
8 Wheeler Agitator RRP
|
The review occurring on 30
September 2018 and thereafter every 10 years.
|
|
|
|
|
8 Wheeler Barrel No.1
|
On each occasion the fleet
average volume determined utilising the same principles
|
|
|
set out in Schedule 2 reaches
the input for "Barrel Life in m3" set out in the "Key
|
|
|
Variables & Price
Sheet" of the relevant "Metromix Concrete
Cartage Cost Model"
|
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 & Agitator; and
(b) Prime Mover + Agi 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 & Agitator; and
(b) Prime Mover + Agi 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 10 - FORMS
Such forms as Metromix reasonably
determine from time to time.
SCHEDULE 11 - KATOOMBA
The following clauses of this Contract Determination will be
substituted, replaced or deleted as follows:
|
Clause of Contract
Determination
|
|
|
10.3 - Mandatory Periodic Transfers
|
Delete Clause.
|
|
29 - Dictionary
|
New Prime Mover
|
|
|
Replace the definition with the following definition:
|
|
|
|
|
|
New Prime Mover means a Prime Mover that is
|
|
|
(a) less than five (5) years 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 6 wheel
Prime Mover.
|
|
|
|
|
|
New Agitator
|
|
|
Replace the definition with the following definition:
|
|
|
|
|
|
New Agitator means a 6.5m3 Agitator that is less than five
(5) years of age
|
|
|
from the year of manufacture which will be measured from
the date of
|
|
|
manufacture as per the compliance
plate affixed to the Agitator.
|
|
|
Utilisation Group
|
|
|
Delete the words, "excluding those at the Katoomba site".
After the words,
|
|
|
"a group of Concrete
Trucks" insert the words, "at the Katoomba site."
|
|
Schedule 1 - Cartage Rates
|
The Cartage Rates are ascertained from the "RATE SCH
Prime Mover &
|
|
|
Agitator" 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 3 - Surcharges
|
The Surcharges are ascertained from the "Prime Mover + Agi
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 9 - Rise and Fall
|
Schedule 12 - Katoomba Rise and Fall
|
SCHEDULE 12 - KATOOMBA 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:
|
6 Wheeler Prime Mover RRP
|
The review occurring on 30
September 2018 and thereafter every 10 years.
|
|
6 Wheeler Agitator RRP
|
The review occurring on 30
September 2018 and thereafter every 10 years.
|
|
6 Wheeler Barrel No.1
|
On each occasion the fleet
average volume determined utilising the same principles set out in
|
|
|
Schedule X reaches the input
for "Barrel Life in m3 "set out in the "Key Variables & Price
|
|
|
Sheet" of the relevant
"Metromix Concrete Cartage Cost Model".
|
1.2 Consultation on
Inputs
Metromix shall consult with
the Consultative Committee 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 those values for the blue inputs (refer to clause 1.1(d) of this
schedule) 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 "RATE SCH Prime Mover & Agitator" Sheet of the relevant
"Metromix Concrete Cartage Cost Model".
1.5 Operative Date
Any new cartage rates and surcharges arising from
clause 1.4, shall be operative from the first of
October following the Review.
2. Periodic Fuel
Review
2.1 Process
(a) Subject to
clause 2.1(b), 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;
(ii) 30 June;
(iii) 30 September;
and
(iv) 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".
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 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 "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 & Agitator; and
(b) Prime Mover + Agi 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 13 - 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
2.2 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 and/or agitator 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 and/or agitator 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
13, 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 14 - 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 14.
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 and/or agitator 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 14;
(e) except when
the Contract Carrier’s prime mover and/or agitator 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
14.
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 14, 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.
ANNEXURE A - ASSIGNMENT
1. Entitlement
Subject to clause 3 of this Schedule 14, 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 Maxi 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 14.
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 14) 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 Maxi
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 14 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.
"Maxi 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:
(a) Metromix engages the Incoming Contract Carrier as a
Contract Carrier to perform the Cartage Work instead of the Outgoing Contract
Carrier;
(b) the Incoming Contract Carrier agrees with Metromix to perform the Cartage Work on the terms and
conditions of the Maxi Cartage Contract; and
(c) the Incoming Contract Carrier becomes a party to the Maxi
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 Maxi 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:
(a) Metromix and the Outgoing Contract Carrier release each
other from performance of any obligation under the Maxi Cartage Contract and/or
Contract Determination falling due for performance after the Assignment Date;
and
(b) Metromix and the Outgoing Contract Carrier release each
other from any claim arising directly or indirectly under or in connection with
the Maxi 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 14 or clause 3 of Annexure A -
Schedule 14.
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 Maxi 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:
(a) During the ten
year period from the day upon which this Contract Determination commenced
operation:
$15,000 or, if greater, the amount calculated as:
$140,000 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.
(b) After the ten
year period from the day upon which this Contract Determination commenced
operation:
$15,000
SCHEDULE 15 - EXCEPTION LIST
1. New Prime Mover and
Agitator
1.1 List
For the purpose of clause 5.4(a), the Contract Carriers
identified in the table below are not required to introduce a New Prime Mover
and Agitator within 18 months of the commencement of this Contract
Determination but are instead required to do so by the date set out in the
table.
|
Contract
Carrier
|
Prime
Mover Configuration
|
Date
for the introduction of the
|
|
|
|
New
Prime Mover and Agitator
|
|
Polecrete
Pty Ltd
|
6
wheeler
|
1
September 2025
|
|
Darvic
Holdings Pty Ltd
|
8
wheeler
|
1
September 2022
|
|
Arawood
Pty Ltd
|
8
wheeler
|
1
September 2022
|
|
Perigo
Cartage Pty Ltd
|
6
wheeler
|
1
September 2022
|
|
Peak Empire Pty Ltd
|
8
wheeler
|
1
July 2019
|
|
Fraters Transport Pty Ltd
|
8
wheeler
|
1
July 2019
|
|
AK Koleski
Pty Ltd
|
6
wheeler
|
1
December 2020
|
|
Eastern Suburbs Sheetmetal Pty Ltd
|
6
wheeler
|
1
December 2019
|
|
N J Tait Pty Ltd
|
6
wheeler
|
1
October 2022
|
|
ABP Services Pty Ltd
|
6
wheeler
|
1
September 2020
|
|
Tony Kelly Pty Ltd
|
6
wheeler
|
1
September 2020
|
2. Cromer Plant
2.1 Plant Upgrade
Exception
A Contract Carrier whose Nominated Plant is the Cromer
Plant:
(a) must comply with
clause 5.2 if the Cromer Plant upgrade is completed within the 12 month period
following the commencement of this Contract Determination; or
(b) if the Cromer Plant upgrade is not completed in this period
the Contract Carrier must:
(i) within six months of the Cromer Plant upgrade being
completed, supply a New Prime Mover and a New Agitator which must:
A meet the Prime
Mover and Agitator specifications;
B be accompanied
with a weighbridge certificate (obtained at the Contract Carrier’s own expense);
and
C be approved in writing by Metromix.
SCHEDULE 16 - EMBARGO PLANT LIST
1. Embargo Plants
1.1 List
The Plants listed in the table below are the Plants for
the purposes of clause 25.3 (a).
|
Plant Name
|
Plant Address
|
|
Cromer
|
158 South Creek Rd Cromer
|
|
Seven Hills
|
34 Powers Rd Seven Hills
|
|
Silverwater
|
24 Stanley St Silverwater
|
|
Katoomba
|
19 Twynam St Katoomba
|
P. J. NEWALL, Commissioner
____________________
Printed by the authority of the Industrial Registrar.