TERMS AND CONDITIONS
In this Agreement, unless a contrary intention appears herein:
“accrued employee entitlements” means the accrued annual leave, annual leave loading and personal/carer’s leave of the Apprentice/Trainee arising from the relevant industrial instrument and/or the Ten National Employment Standards under the Fair Work Act 2009 [Cth].
“industrial instrument” means a State or federal industrial award or enterprise agreement.
‘losses’ means all losses, liabilities, damages and claims (including taxes), and all related costs and expenses (including reasonable solicitor’s fees) and reasonable costs of investigation, litigation, settlement, judgment, interest and penalties against HTN and/or its personnel, and increases in insurance premiums.
“WH&S legislation” means the relevant Federal, State or Territory work, health and safety legislation (or any successor legislation): see Schedule 1 to this Agreement.
“personnel” of a party means officers, employees (including apprentices and trainees), agents and contractors of a party to this Agreement, but in the case of HTN, excludes the HOST.
“superannuation legislation” means the Superannuation Guarantee (Administration) Act 1992 [Cth] (or any successor legislation).
“worker’s compensation legislation” means the relevant State or Territory workers compensation legislation (or any successor legislation) listed in Schedule 2 to this Agreement.
1. The HOST Will:
1.1 Provide work, as an Agent for HTN (the employer of the Apprentice/Trainee), for a period as may be agreed with HTN (the "Work Period"), with not less than one- (1) month's notice being given to HTN for the completion of the Work Period (unless otherwise agreed to between HTN and the HOST).
1.2 Take all reasonable steps necessary to ensure that the Apprentice/Trainee is provided with on the job training commensurate with their experience and in accordance with the relevant industrial instrument.
1.3 Pay HTN:
a) for the cost of all wages, penalties/ loadings, public holiday entitlements and allowances under the relevant industrial instrument.
b) for the cost of all workers compensation premium payments (if any) in accordance with the workers compensation legislation.
c) for the cost of “accrued employee entitlements” (annual leave or personal/carer’s leave) less any leave taken by the Apprentice/Trainee during the relevant time period, as per clause 2.4 below.
d) for the cost of any TAFE fees.
e) for the cost of superannuation entitlements in accordance with the superannuation laws.
1.4. Where the placement of an apprentice/trainee with a HOST is (i) terminated prior to the completion of a year; and (ii) it had been agreed between the HOST and the apprentice/trainee an annualised salary under a modern award was to be paid, then the HOST shall pay HTN any shortfall in the employee’s wages. The shortfall is to be calculated in accordance with ‘annualised salary’ clause in the modern award.
1.5 Pay for any increase in minimum wages under the relevant industrial instrument resulting from an annual wage review by Fair Work Australia, or any successor authority. HTN undertakes to notify the HOST within a reasonable time period of any such increase as they arise (the “Incremental Employee Entitlement”).
1.6 a) Provide the Apprentice/Trainee with working conditions that comply with the directions and terms of the Apprenticeship and Traineeship Act 2001 including, but not limited to, providing all necessary facilities and opportunities for the apprentice or
trainee to acquire the competencies of the vocation and the correct supervision of apprentices and trainees while in on-the-job training.
b) Provide the Apprentice/Trainee with working conditions that comply with the directions and terms of the National Standards for Group Training Organisations.
1.7 Ensure the health, safety and welfare at work of the Apprentice/Trainee.
1.8 Indemnify HTN and its personnel against all Losses (whether incurred by or awarded against HTN and/or its personnel) or any other liabilities as may arise by reason of:
a) the HOST’s occupation of any premises where work is done in connection with this Agreement;
b) the conduct of the HOST and its personnel in relation to this Agreement;
c) any breach of the terms and conditions of this Agreement by the HOST and its personnel.
1.9 The HOST’s liability to indemnify HTN under this Agreement shall be reduced proportionately to the extent that the Losses arose by, or partly by, reason of the negligence of HTN and/or its personnel.
1.10 Maintain adequate public liability insurance (not less than $10,000,000 per event) and provide, upon request by representatives of HTN, a copy of the current policy.
1.11 Allow reasonable access to representatives as authorised by HTN to inspect the HOST's premises and assess, train, counsel or otherwise communicate with the Apprentice/Trainee on the job.
1.12 Appoint a nominated person to be the workplace supervisor for the Apprentice/Trainee and to ensure that person:
(i) assesses the Apprentice/Trainee's competency
according to the HTN Training Plan;
(ii) details that assessment in any Apprentice/Trainee
records, or books, supplied by HTN;
(iii) contributes to any assessment of the
Apprentice/Trainee by HTN when requested.
1.13 Immediately notify HTN of any work-related injuries or illnesses or problems reported by the Apprentice/ Trainee.
1.14 At all times act reasonably towards the Apprentice/ Trainee bearing in mind the age, experience and position of the Apprentice/ Trainee.
1.15 If the HOST separately employs the Apprentice/ Trainee, outside the terms of this Agreement, before completion of the training contract with HTN or within 6 months of the date of introduction of the Apprentice/Trainee to the HOST by HTN, then the HOST agrees to pay HTN the sum of $5,000 per Apprentice/ Trainee immediately upon demand by HTN.
1.16 The HOST agrees not to engage or directly employ any apprentice/trainee referred for interview or supplied by HTN to the HOST or canvass, solicit, induce or encourage any person who is an employee or apprentice/trainee of HTN at any time to leave HTN’s employment, or interfere in any way with the relationship between HTN and its apprentices/trainees, contractors, staff or suppliers. Any such breach attracts a penalty in the sum of $5,000, plus any legal fees and court costs incurred by HTN.
2. HTN Will:
2.1 Supply the services of, and monitor, counsel and assess the performance and behaviour of the Apprentice/Trainee on a regular basis.
2.2 Maintain regular contact with the HOST to ensure that any problems or issues raised by the HOST are attended to within an agreed time frame.
2.3 Maintain all documents required by law including; Training Contract records, wages and employment history, college reports, Apprentice/Trainee assessments.
2.4 Invoice the HOST at the conclusion of each week for the cost of all payments made or payable by HTN under clause 1.3 in respect of work done by the Apprentice Trainee for that week and including the weekly Service Fee for the management of the Apprentice/Trainee (the "Service Fee") in accordance with the current HOST Trainer Employee Entitlement Provisions Statement prepared by HTN, which form part of this Agreement.
2.5 Charge interest on unpaid weekly Invoices from the date those services were provided, at the rate of 12% per annum calculated on daily outstanding balances, where payment from the HOST for these services is not received by HTN within seven (7) days of the due date.
3.1 At the completion of each week or at an earlier time (as mutually agreed) the HOST shall confirm the days and hours worked by the Apprentice/Trainee in a manner to be agreed between the parties.
3.2 Invoices will be sent weekly to the HOST during the Work Period and will include the Service Fee and GST, which will be due and payable seven (7) days from the date of the Invoice.
3.3 HTN reserves the right to issue adjustment invoices and/or credit notes to rectify any discrepancy in billing discovered.
3.4 All payments for Invoices should be made directly to a current HTN Office and or withdrawn from a HOST’s elected account and or Direct Debited to HTN elected account.
3.5 In the event the HOST remunerates the Apprentice/Trainee with an over award hourly rate, the HOST agrees to pay HTN for the cost of any employee entitlements to which over award rates apply.
3.6The HOST recognises and understands that the payment of over award rates may entitle the Apprentice/Trainee to additional payments in respect to annual leave and annual leave loading, personal/carer’s leave, compassionate leave, community service leave (jury service), long service leave, public holidays, superannuation contributions, and workers compensation payments.
3.7 In the event the Apprentice/Trainee does not utilise their accrued employee entitlements during the Work Period, the HOST agrees that no claim will be made against HTN for the reimbursement of the value of the accrued employee entitlements.
4. HTN and the HOST acknowledge and agree that;
4.1 HTN is the employer of the Apprentice/Trainee with the exception that the HOST may be deemed “the employer” under relevant workplace legislation including:
a) WH&S legislation;
b) unfair dismissal provisions in the Fair Work Act
c) federal or state discrimination legislation, and
d) worker’s compensation legislation.
4.2 Service Fees are subject to change annually, in accordance with CPI increases. HTN will provide the HOST with notification of such changes, as is reasonably practicable in the circumstances.
4.3 HTN is entitled to immediately terminate this Agreement if the HOST fails to comply with or fulfill the obligations set out in this Agreement, or the HOST fails to pay HTN in accordance with the terms and conditions set out in this Agreement.
4.4 Either party is entitled to terminate this Agreement by giving the other party 30 days written notice of its intention to terminate.
4.5 Failure on the part of the HOST to observe the conditions of this Agreement may result in the services of the Apprentice/Trainee being withdrawn from the HOST and, if appropriate, lead to the institution of legal proceedings against the HOST and/or the Guarantor to recover any outstanding monies and/or documents which are owed to and/or are the property of HTN.
5. Work Health and Safety Requirements:
5.1 The HOST acknowledges and agrees that all Apprentice/Trainees are supplied on the basis that:
5.1.1 The Apprentice/ Trainee will work under the direct care and supervision of the HOST.
5.1.2 The HOST has a duty of care to the Apprentice/Trainee under relevant WH&S legislation, model Codes of Practice and Australian Standards to ensure that there Is provision of:
a) a safe workplace,
b) a safe work system,
c) adequate supervision and training,
d) an induction to site and equipment and system of work; and
e) consult the Apprentice/Trainee and HTN with regards to WH&S
risks and hazards.
5.1.3 The HOST is responsible for and accepts all risk in relation to all acts and omissions of the Apprentice/Trainee (whether willful, negligent or otherwise) during the term of the Work Period.
5.1.4 The HOST will during the term of the Work Period ensure that all actions of the HOST and the Apprentice/Trainee's work environment strictly comply with the WH&S legislation.
5.1.5 The HOST will immediately notify HTN of:
a) any change of workplace or tasks to be performed by
b) any injuries to Apprentice/Trainee; or
c) any injuries to other persons involving the Apprentice/Trainee.
5.1.6 Before the Apprentice/Trainee commence work the HOST will provide to the Apprentice/Trainee appropriate clothing, footwear, eye and ear protection or any other protective safety equipment and will ensure that the Apprentice/Trainee are wearing the appropriate clothing, footwear, eye and ear protection and any other correct protective safety equipment for the intended task.
5.1.7 Before the Apprentice/Trainee commences work a representative from HTN and the HOST will undertake an inspection of all areas where work is to be performed by the Apprentice/Trainee.
5.1.8 The HOST will permit HTN or its authorised representatives to undertake regular inspections of the areas where Apprentice/Trainee are to work and to inspect areas where the Apprentice/Trainee are or have worked at any time following the occurance of any injury to Apprentice/Trainee or where the supplier reasonably suspects any non-compliance with this Agreement or any WH&S legislation. Inspections may be undertaken without a HOST’s representative present provided HTN gives the HOST notice of its intention to do so.
5.2 The HOST agrees to provide HTN with all reasonable assistance to allow HTN to comply in full with its obligations under WH&S legislation and the Apprenticeship and Traineeship Act 2001 including, without limitation and where applicable:
a) releasing the Apprentice/Trainee to attend training and educative courses as and when required by any statutory or administrative body established under relevant legislation; and
b) complying with the terms of relevant training contracts, so far as those terms relate to the utilisation of the Apprentice/ Trainee by the Company.
5.3 This Agreement is governed by laws of the State or Territory in which the HOST and HTN execute this agreement. The laws of that State or Territory will continue to apply even if work is done by the Apprentice/Trainee at any other state to territory.