Category 5 Labour Management (WA) Pty Ltd
Terms and Conditions
1.1 These Terms and Conditions constitute a binding agreement (“the Agreement”) as between Category 5 Labour Management (WA) Pty Ltd (ABN: 60 625 535 506) trading as Category 5 Labour Management (“the Business”), the Client named above and the Guarantor/s named above, pertaining to the introduction by the Business to the client of personnel and labour staff (“Candidates”) for employment or engagement on a permanent or temporary basis.
1.2 Any of the following actions undertaken by the Client shall constitute immediate acceptance of this Agreement by the Client and Guarantor/s:
- the receipt of a Candidate’s resume or CV;
- requesting an interview with a Candidate;
- requesting the engagement of a Candidate;
- passing to any other person or organisation personal information pertaining to a Candidate introduced by the Business; and/or
- any other instruction given to the Business by the Client, whether written or oral, to supply Candidates to the Client.
- PERMANENT PLACEMENTS
2.1 Supply of permanent staff
The Business may supply Candidates for hire, employment, reemployment, engagement or reengagement on a permanent basis to the Client.
2.2 Notification of acceptance
The Client must notify the Business immediately when a Candidate introduced by the Business accepts an offer of employment or engagement, and shall provide details of the Candidate’s commencement date and salary / remuneration.
2.3 Service fees
Where a Candidate accepts employment or engagement for any permanent position with the Client within twelve months (12) of the initial interview, the Client shall pay a service fee to the Business, equal to 10% of the Candidate’s annual base salary or remuneration.
2.4 Subsequent employment
(a) a Candidate introduced by the Business is initially rejected by the Client; or
(b) the Candidate initially rejects an offer of employment or engagement by the Client,
but, within twelve months (12) of the initial interview, that Candidate subsequently accepts employment or engagement for any permanent position with the Client, clauses 2.3 applies but clause 2.7 does not apply.
2.5 Conversion from temporary to permanent
Where the Client converts a temporary Candidate to a permanent Candidate within three (3) months of the Candidate’s commencement date:
- the Client must notify the Business immediately of the change in employment/engagement and shall provide details of the new salary / remuneration;
- clause 2.7 does not apply; and
- in addition to any service fees payable or already paid under clause 3.4, the Client must pay to the Business a percentage of the standard service fees calculated on the basis of the Candidate’s new (permanent) base salary / remuneration, as follows:
|Period between commencement date and conversion to permanent
|Percentage (%) of Service Fee payable
2.6 Third party engagement
Where, within twelve months (12) of an initial interview between a Client and Candidate:
(a) the Client refers the Candidate, originally introduced to the Client by the Business, to any third party; and
(b) the Candidate accepts employment or engagement for any permanent position with the third party,
clauses 2.3 and 2.4 apply but clause 2.7 does not apply.
2.7 Replacement Period
If, within three (3) months of the Candidate’s commencement date on a permanent basis:
(a) the Candidate’s employment or engagement is terminated or concludes for any reason (including resignation by the Candidate) other than redundancy, unfair dismissal or a material change by the Client to the terms of employment or engagement; and
(b) the Client notifies the Business in writing within seven (7) days of the termination or conclusion of the Candidate’s employment or engagement; and
(c) the Client has paid all service fees due and payable under this Agreement,
the Business will use its best reasonable endeavours to find a replacement Candidate for the Client at no additional cost on the same terms and conditions. If the Business is unable to find a replacement Candidate to the satisfaction of the Client within four (4) weeks, the Business shall be under no further obligation to seek a suitable replacement for the Client. For the avoidance of doubt, the Client shall not be entitled to any refund (whether full or partial) in relation to service fees paid to the Business.
- TEMPORARY PLACEMENTS
3.1 Supply of temporary staff
The Business may supply Candidates for hire, engagement or reengagement on a temporary (non-permanent) basis to the Client. A purchase order must accompany any request for supply of temporary staff.
3.2 Client acknowledgements
The Client acknowledges and agrees that:
- nothing in this Agreement gives rise to an obligation on the part of the Business to perform any services requested itself;
- the Business may suggest, for the Client’s consideration, Candidates which the Business considers may be suitable to perform the services requested;
- the Business makes no warranty or representation to the Client as to the suitability of any Candidates it proposes, either generally or for the services requested; and
- any decision to engage a Candidate is entirely in the discretion of the Client, irrespective of any representations made by the Business in relation to that Candidate, and the Client shall be solely responsible for conducting proper due diligence and making all necessary enquiries in relation to all Candidates.
3.3 Minimum engagement
A minimum period of four (4) hours engagement shall apply with respect to each separate engagement of a Candidate employed or engaged on a temporary basis.
3.4 Service Fees
Prior to the supply of suggested Candidates, the Business shall provide the Client with a pricing schedule in relation to any/all service fees payable in respect of the introduction of a Candidate for temporary employment or engagement. The pricing schedule shall form part of this Agreement. The Client acknowledges and agrees that it must pay the Business the service fees where it proceeds with the employment or engagement of a temporary Candidate.
3.5 Remuneration and timesheets
- The Business shall be solely responsible for the payment of any and all wages, remuneration, superannuation, taxation (including PAYG), and the completion of group certificates in relation to all Candidates.
- The Client must procure that all Candidates complete a weekly timesheet pertaining to the hours worked during that week, to be verified and signed by a duly authorised representative of the Client. The signature of the Client upon a timesheet of a Candidate constitutes an irrevocable written authority by the Client to pay the Candidate in accordance with the hours stated on that timesheet.
- All timesheets must be emailed by the Client to the Business by no later than 5:00pm every Monday afternoon.
3.6 Insurance and Occupational Health & Safety
- The Business shall procure a current workers compensation cover in respect of all Candidates.
- The Client shall be responsible for procuring any additional or special insurance cover required in relation to the services which the Candidate has been engaged to perform.
- The Client shall be solely liable for all work sites and environments at which a Candidate is engaged comply with occupational health and safety standards, including but not limited to:
- providing a safe working environment;
- provide Candidates with an appropriate site induction and relevant work instructions; and
- ensuring all working environments are adequately and properly supervised at all relevant times.
- PAYMENT OF SERVICE FEES
4.1 The Business shall render tax invoices in relation to the service fees payable by the Client under this Agreement. All invoices shall be payable within 7 days unless otherwise stated, and any processing fees or charges shall be borne by the Client.
4.2 Should the Client fail to pay any tax invoice by the date due:
(a) the Client immediately waives any rights it may have under clause 2.7 of this Agreement;
(b) the Business may charge interest on any overdue service fees or other monetary due under this Agreement at the rate of 12% per annum compounded daily, payable on demand by the Client; and
(c) the Business may, in its discretion, suspend or terminate the engagement of a Candidate with immediate effect or on such terms as it deems fit.
4.3 The Business reserves the right to withdraw credit facilities at its absolute discretion.
- LIABILITY AND INDEMNITY
To the maximum extent permitted by law:
- During the period in which the Candidate is engaged or employed by the Client, the Client shall be solely liable and responsible for any and all claims, losses, expenses, costs, liabilities, damages, injury or other losses of whatever nature or kind, including any special, direct, indirect, contributory or consequential losses however caused and irrespective of the actions of the Candidate or the Business (“Claims”).
- The Business shall use its best efforts to screen Candidates and provide accurate, relevant and up to date information on the Candidates, however the Business shall not be liable or responsible to the Client for any Claims arising out of or in relation to the accuracy of any information provided to the Client in relation to a Candidate, including any information expressly stated or omitted;
- The Client indemnifies and keeps indemnified the Business in relation to any Claims made, threatened or brought against the Business by any person or entity not a party to this Agreement, arising out of or in any way connected with the period in which the Candidate is engaged or employed by the Client.
- The Client indemnifies and keeps indemnified the Business in relation to any Claims arising out of or in any way connected with a breach of this Agreement by the Client.
- The Business accepts no responsibility for any Claims arising out of or in any way in connection with events outside its control, including but are not limited to war, riots, fire, flood, hurricane, typhoon, earthquake, lightning, explosion, strikes, lockouts, slowdowns, disasters, epidemics, acts of state or governmental action, or acts of God.
- PERSONAL GUARANTEE
- A reference in this clause to “Guarantor” is a reference to the person or persons stated in the schedule to this Agreement. Where there are more than one (1) Guarantors, this Agreement binds each of them separately and any two or more of them jointly.
- The Guarantor personally guarantees to the Business the due and punctual performance of all obligations under this Agreement, including the payment of all monetary sums due under it.
- As a separate and independent liability, the Guarantor indemnifies the Business and agrees to keep the Business indemnified against all Claims suffered or incurred by the Business by reason of any non-payment by the Client or Guarantor.
- The Business may make demand under this guarantee any time, without first having to make demand upon the Client.
- The obligations of the Guarantor under this Agreement are an irrevocable and continuing guarantee and indemnity, and the Guarantor will not be wholly or partially released from the obligations under this Agreement by any matter or thing including, but not limited to:
- the payment of money to the Business;
- any advances of credit by the Business;
- the performance and observance of any of the Client’s or Guarantor’s obligations under this Agreement;
- the granting of time or other indulgence or consideration by the Business to any person;
- a subsequent transaction or arrangement between the Business and any other person;
- the Business failing or neglecting to exercise any of its rights against the Client or the Guarantor;
- the amendment or variation of any document or agreement;
- an act or omission of the Business which would affect, release or discharge the liability of any person to the Business but for this provision;
- the death or incapacity, or notice to the Business of the death or incapacity, of any person;
- the bankruptcy or winding up of or the appointment of an official manager to any person, or the dissolution or change in the constitution of any partnership.
- CONFIDENTIALITY & PRIVACY
- Any and all information pertaining to a Candidate or the Business supplied to the Client is provided on a strictly confidential basis and shall remain the property of the Business at all times. The Client must not disclose any such information to any third party other than where:
- required by law to do so;
- the information to be disclosed is already in the public domain other than by a breach of this clause;
- to its financial or legal advisors;
- the Business has consented in writing to the disclosure.
- The Client authorises the Business to make any and all enquiries necessary to determine the Client’s creditworthiness, including by using, disclosing and collecting the Client’s personal information for the purpose of credit reference checks.
- DISPUTE RESOLUTION
- In the event either party to this Agreement alleges a breach of this Agreement, then before any legal proceedings or recovery action are instituted, the party alleging the breach (First Party) must first issue a written notice of dispute to the other party (Second Party) setting out the alleged breach, the amount (if any) in dispute, the action required, and the time within which the First Party requires the breach to be rectified (which must not be less than 7 days) (Dispute Notice).
- Subject to the parties complying with the requirement to give a Dispute Notice, the parties consent to all disputes arising out of or in connection with this contract (Dispute) being finally resolved or determined by the online dispute resolution service contained at judicate.co (Judicate) and the Rules governing the procedures of Judicate from time to time.
- To the extent that a party seeks to have a Dispute resolved or determined in a different forum, including but not limited to a Court, another party may apply to have that process or proceeding stayed and / or dismissed.
- Nothing in this clause prevents the parties from commencing proceedings for urgent interlocutory relief where appropriate.
- Entire Agreement:This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all other agreements or representations pertaining to the same.
- Variation:This Agreement may not be amended, modified, waived, discharged or terminated verbally nor by implication. No variation to this Agreement shall be valid unless in writing signed by each of the parties.
- Severability:If any provision of this Agreement is, or at any time becomes, prohibited by or unlawful under, any applicable law, regulation or other condition actually applied or otherwise becomes void or unenforceable, it will be severed and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement. The remaining provisions will, to the extent permitted by law, continue in full force and effect.
- Assignment:The Business may assign any of its rights or obligations under this Agreement without the consent of the Client. The Client must not assign any of its rights or obligations under this Agreement without the prior written consent of the Client.
- Jurisdiction:This Agreement is subject to the exclusive jurisdiction of the laws in force in Western Australia from time to time. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia and waive any rights for proceedings to be heard in any other jurisdiction.