Terms of Business
1. How these Terms apply
1.1 In these Terms:
a. we, us, our or Industrious People means Industrious People Pty Ltd ABN 28 627 931 300; and
b. you, your or Client refers to the party named in the Schedule as the 'Client' and any of its Related Entities that procure Services from us.
1.2 These Terms become binding when you sign them, or after having received a copy of them:
a. you or your representative provide an email confirming acceptance of these Terms and/or requesting we provide Services; or
b. accept an Introduction of a Candidate or a Casual Worker (which includes opening and/or viewing any information we provide); or
c. Engage a Casual Worker.
1.3 These Terms supersede any previous terms and conditions for Services and are the parties' entire agreement.
1.4 Each accepted request for Services is a separate contract that incorporates these Terms. If your Related Entity procures Services from us, you will be liable to us at all times as if you procured those Services directly.
2. Key definitions
2.1 Assignment means the specified work and tasks of a Casual Worker under your care, supervision, direction or control.
2.2 Assignment Details means the document we provide to you setting out the details of an Assignment.
2.3 Candidate means a person we Introduce to you by any means.
2.4 Engage, Engaged and Engagement means i) for Candidates and under clauses 4.19 and 5.15, to employ, procure or engage under a contract of service or a contract for services either directly or indirectly, including an engagement that involves an interposed company or one for trial or probation purposes; and ii) for Casual Workers, to use as an on-hired resource for the purposes of workforce augmentation.
2.5 Introduce, Introduced and Introduction means we arrange for you to interview a Candidate, or provide you with a curriculum vitae, report or other information about a Candidate or a Casual Worker (such as their name, work history, qualifications and credentials), whether orally or in writing and regardless of whether the Candidate or Casual Worker was introduced in response to a specific request.
2.6 Rate means our hourly, daily or weekly rate for a Casual Worker that may include the hourly base rate, casual loading, shift penalties, overtime rates, bonuses, and meal, vehicle, travel or other allowances, superannuation contributions, workers compensation and other insurances premiums, applicable payroll tax and any withholding taxes, and any other applicable statutory entitlements (other than those referred to in clause 4.13).
2.7 Related Entity and Related Body Corporate have the meaning given to them in the Corporations Act 2001 (Cth).
2.8 Services means permanent and fixed term placement services (section 3) and temporary worker services (section 4), as the context requires.
2.9 Schedule means the Schedule attached to these Terms as may be substituted by agreement.
2.10 Special Condition means a special condition specified in the Schedule.
2.11 Casual Worker means an employee or independent contractor (including their employees, agents and sub-contractors) of ours or one of our Related Bodies Corporate.
2.12 Terms means these terms of business, the Schedule, any relevant Assignment Details and any other document provided by us in the provision of Services.
2.13 Total Remuneration means the anticipated first year annual gross remuneration package including gross annual salary, superannuation, commission, bonuses, allowances, joining inducements and any other contractual benefits which form part of the total remuneration package. Where a car or car allowance is provided, the minimum value of the benefit included in the Total Remuneration will be $17,500 (where the benefit is not stated in the Candidate's offer letter).
3. Permanent and fixed term placement services
Our permanent and fixed term placement services
3.1 When you Engage a Candidate on a full time, part time or fixed term basis, you agree to pay us the placement fees specified in this section 3 and the Schedule. All Introductions are confidential, including the fact that a Candidate may be looking for work.
Introduction and Engagement of Candidates
3.2 You will pay a placement fee if, within 12 months of our Introduction of a Candidate you or your Related Entity:
a. Engage the Candidate for any position; or
b. pass on the Candidate's details to a third party who Engages the Candidate for any position or supplies the Candidate to you for any position.
3.3 If you withdraw an offer of Engagement after the Candidate accepts it (other than if the Candidate is directly at fault), you will pay 50% of the placement fee calculated under clauses 3.7 to 3.15.
3.4 Clause 3.2 applies to any Candidate that is subsequently introduced to you by another business.
3.5 Unless otherwise agreed in writing, you will be responsible for arranging a Candidate's medical examinations, police checks, social media checks and other investigations, and obtaining their visas or other required work permits.
3.6 We will undertake two reference checks. These will be limited to seeking factual information about a Candidate's prior work experience and objective role performance. We provide limited summaries to enable you to assess the veracity, appropriateness or reliability of the information, and it is at all times subject to clauses 3.25 and 3.26.
Calculation of placement fees
3.7 A placement fee is calculated in accordance with the table in the Schedule as a percentage of the Candidate's Total Remuneration.
3.8 If you do not confirm the Candidate's final Total Remuneration, we will calculate the placement fee using the highest value in the salary range you provided. If there is no salary range, we are entitled to rely on industry benchmarking data to apply the highest salary applicable to the role (or its equivalent).
Fees for part time roles
3.9 For part time Engagements our placement fee will be calculated on the equivalent full time Total Remuneration. For the avoidance of doubt, our placement fee for part time Engagements will not be reduced or prorated.
Fees for fixed term contract roles
3.10 For fixed term contract Engagements of 6 months or less, the placement fee will be the greater of $5,000 or 50% of the fee otherwise payable on the equivalent full time Total Remuneration for a permanent Engagement under clauses 3.7 to 3.8.
3.11 For fixed term contract Engagements of more than 6 months and less than 12 months, we will pro rata the placement fee otherwise payable on the equivalent full time Total Remuneration for a permanent Engagement under clauses 3.7 to 3.8.
3.12 If:
a. a Candidate's fixed term Engagement of less than 12 months is extended or rolled over (including under a new contract); or
b. a Candidate is re-Engaged by you for another fixed term within 12 months of their last fixed term Engagement,
you will incur the pro-rata portion of the placement fee until you have paid the equivalent full placement fee for a permanent Engagement under clauses 3.7 to 3.8.
3.13 If a Candidate is Engaged permanently by you during a fixed term Engagement or within 12 months after their last fixed term Engagement with you, you will incur the balance (if any) of the placement fee calculated under these Terms. A fixed term Candidate you Engage permanently will not be replaced.
3.14 Clauses 3.10 to 3.13 apply to any Engagement by you, your Related Entity or any third party to whom you or a Related Entity refer a Candidate.
Minimum Fees
3.15 A minimum placement fee of $5,000 applies to all Engagements.
Expenses
3.16 You agree to reimburse us for all costs that we incur when performing permanent and fixed term placement services for you. This includes advertising costs, we have agreed with you in writing upfront, police checks, license checks and qualification and social media checks, and regardless of whether you Engage a Candidate.
This clause also applies to any replacement Candidates presented under clause 3.21.
Payment and invoicing
3.17 Our placement fees are immediately due and payable as follows:
a. (Retained Search):
i. one third of the estimated placement fee will be invoiced when you authorise us to start the search (search fee); and
ii. one third of the estimated placement fee will be invoiced upon acceptance of a shortlist (shortlist fee); and
iii. the balance of the placement fee will be invoiced when a Candidate has signed an offer of employment or has otherwise agreed in writing to be Engaged.
b. (Exclusive or Contingent Search): for all other searches, our placement fee will be invoiced when a Candidate commences employment.
c. (all other Engagements): for all other Engagements for which a placement fee is payable under these Terms when we become aware of the Engagement.
3.18 All invoices issued under this section 3 must be paid within 7 days of the date of invoice.
Cancelling a search
3.19 If you withdraw the request for a Retained Search at any time, no refunds will be made, and you will incur all fees due under clause 3.17a.
3.20 We may terminate a search, including a search under clause 3.21 at any time where we believe that you have requested us to act in a manner that is or could be unlawful or has the potential to damage our reputation in any way. We will have no liability to you where we exercise our right of termination under this clause 3.20.
Replacing a Candidate
3.21 If a Candidate Introduced by us and Engaged by you on a permanent basis resigns or is terminated within 3 months of their first date of Engagement with you, we will endeavour to identify a replacement Candidate based on the same role specification (once only), provided:
a. termination of the Candidate:
i. was not unlawful; or
ii. was not due to redundancy, a restructure or a change in the original role specification provided to us; or
iii. was not due to your false or misleading conduct or representation during the recruitment process; and
b. you requested a replacement Candidate within 48 hours of the original Candidate's resignation or termination date; and
c. you have paid us all of the applicable fees for the original Candidate by their due date; and
d. no other fees or expenses payable to us under these Terms are overdue; and
e. you gave us a reasonable opportunity to address any issues; and
f. we are given 3 months exclusivity from the date you inform us the Candidate has resigned or been terminated, to find a suitable replacement Candidate; and
g. the Candidate is not someone you re-Engaged under clause 3.24; and
h. the Engagement was not due to your retention of a Casual Worker under clause 4.19; and
i. the Candidate was not provided as a replacement for another Candidate under this clause 3.21; and
j. the Candidate was not Engaged on a fixed term basis.
3.22 Subject to clauses 3.20 and 3.21, if:
a. you do not require a replacement Candidate; or
b. we do not identify a suitable replacement Candidate within the 3 month exclusivity period under clause 3.21f (meaning you have not sought another candidate other than through us),
you will be eligible for a discount off a future permanent or fixed term placement services up to the value of 50% of the placement fee paid for the original Candidate. Any eligible discount not applied by you will automatically expire after 6 months from the original Candidate's departure date. We do not provide credit notes or refunds in any circumstances.
3.23 If you Engage a replacement Candidate we identify, and the Total Remuneration offered to the replacement Candidate is greater than that of the original Candidate, an invoice will be issued for the difference in the placement fee.
Re-Engaging a Candidate
3.24 The full placement fee will again be payable if during, or within 12 months of the end of their Engagement, you or a Related Entity re-Engage a Candidate that has been replaced under clause 3.21.
Liability
3.25 The final decision about the suitability and employability of a Candidate rests with you, and we are not liable for any liability for loss, expense or damage arising from a Candidate's work, negligence, fraud, dishonesty or lack of skills or qualifications.
3.26 We are not liable for any loss, expense or damage arising from Candidate information provided to us and then provided to you, or from us seeking, Introducing or not Introducing a Candidate.
4. Casual Worker services
Our Services and Engagement of Casual Workers
4.1 When you Engage a Casual Worker to perform an Assignment for you, you agree to pay the Rate and any applicable expenses described in this section 4 and any Assignment Details.
4.2 You agree to tell us the tasks to be performed by a Casual Worker and the qualifications, licences, skills and experience required of the relevant Casual Worker.
4.3 We will endeavour to confirm your request for a Casual Worker in writing, including by issuing you Assignment Details.
4.4 We will pay a Casual Worker's wages, superannuation and workers compensation premiums where required under applicable legislation.
Fees, payment and invoicing
4.5 Prior to an Assignment commencing, we will agree with you the hours to be worked by, and the Rate for, the Casual Worker. The Rate may specify all applicable components individually or be expressed as a single Rate.
4.6 A minimum charge of 4 hours per day applies to each Assignment. This includes where a Casual Worker relies on clause 4.35.
4.7 Subject to clauses 4.10, 4.13, 4.16 and 4.18 we invoice weekly for Assignments.
4.8 All invoices under this section 4 must be paid within 7 days of the date of invoice.
4.9 We calculate our Casual Worker fees by applying the Rate to the hours or days (or part thereof) shown on a Casual Worker's timesheet (including standby and travel time as agreed). Failure by you to authorise a timesheet does not alter your liability to pay our fees.
Other costs, and variations to Fees
4.10 If you ask us to incur any expenses in performing Services including the provision of personal protective equipment, police or medical checks, social media checks or licence or qualification checks, we will provide you with a quote in writing upfront for your approval. We will invoice these costs as we incur them.
4.11 We may vary a Rate by notice to you to reflect any of the following:
a. variation in an award, wage rate or statutory charge, industrial instrument, or law or tax that increases a component of a Rate; or
b. the impost of additional or new statutory charges, levies or taxes which we are lawfully required to remit.
4.12 If you require a Casual Worker to work overtime or outside ordinary hours, you will be liable for any subsequent increase in Rates, including applicable penalty rates.
4.13 If a Casual Worker has to be compensated for entitlements under the National Employment Standards in the Fair Work Act 2009 (Cth), we will use the applicable Rate for invoicing you in respect of any statutory entitlements as they arise, including due to a decision or ruling of the Fair Work Commission or any other court or tribunal.
We remove a Casual Worker/terminate an Assignment
4.14 We may immediately remove a Casual Worker and terminate an Assignment if:
a. you remain overdue in paying any amount 3 days after notice from us; or
b. you fail to meet your obligations under clauses 4.28 to 4.36; or
c. we believe you or any of your officers, employees, agents or contractors have engaged in misconduct including sexual harassment, bullying or discrimination.
4.15 We may terminate an Assignment for any reason without liability to you by giving either 24 hours' notice or notice equal to the Casual Worker's applicable notice period (agreed or statutory), including where we need to change our working arrangements with a Casual Worker.
4.16 All amounts due to us at the time we remove a Casual Worker or terminate an Assignment are immediately due and payable.
You cancel, postpone, suspend or terminate an Assignment
4.17 If you cancel, postpone, suspend or terminate an Assignment (regardless of whether it has commenced) you will incur the agreed notice period or a notice period which is the greater of 4 working hours (applying the Rate) and any other amount we are required to pay to a Casual Worker under any applicable industrial instrument or law.
4.18 All amounts due to us at the time you cancel, postpone, suspend or terminate an Assignment are immediately due and payable.
Retention of a Casual Worker
4.19 In recognition of the business goodwill attached to our Casual Workers, if you or any of your Related Entities:
a. Engage a Casual Worker; or
b. refer a Casual Worker to a third party who Engages that Casual Worker (including another recruitment agency or contractor management services business),
either during an Assignment or within 12 months of the last day the Casual Worker was on Assignment with you, this will be treated as a full time permanent placement, and you will be charged a fee calculated under clauses 3.7 to 3.8 (Conversion Fee).
4.20 If the Total Remuneration is not known, the Conversion Fee will be calculated using the Casual Worker's last applied hourly base rate multiplied by 1976. For day or weekly Rates, we will divide a working day by 7.8 to determine the applicable hourly base rate.
4.21 If you Engage a Casual Worker while they are on Assignment with you, we will reduce the full Conversion Fee in accordance with the table in the Schedule.
4.22 Clauses 3.25 and 3.26 apply to a Casual Worker Engaged under clause 4.19.
Supervision and management of our Casual Workers
4.23 You acknowledge that you are responsible for the day-to-day care, direction, supervision and control of a Casual Worker, the conditions under which an Assignment is performed and the outcome of the tasks performed for you by a Casual Worker.
4.24 You agree not to discuss fees and associated Engagement or Assignment conditions with a Casual Worker.
4.25 You agree to report any performance issues to us in relation to a Casual Worker and that only we may direct a Casual Worker to:
a. discontinue work; or
b. be removed from the workplace.
4.26 You cannot change the hours or location of work, or the actual or anticipated duties or tasks carried out by a Casual Worker without our prior written approval.
4.27 You agree to use your best endeavours to provide a Casual Worker with a return to work program where that Casual Worker has suffered an occupational injury/illness on your site.
Health, safety and wellbeing of Casual Workers
4.28 Other than, steel capped safety footwear and prescription safety glasses, you are responsible for the provision of Personal Protective Equipment to Casual Workers, unless otherwise specified.
4.29 You acknowledge that you have a duty of care to provide Casual Workers and our other employees, agents and contractors with:
a. a safe workplace and work systems that eliminate hazards and control risks to health and safety; and
b. an induction to each site attended, and each piece of equipment used, by a Casual Worker; and
c. site and task specific safety equipment; and
d. adequate supervision and training; and
e. all relevant policies, procedures and directions.
4.30 You must not:
a. on-hire or resupply our Casual Workers to any other person or organisation; or
b. request a Casual Worker to perform or participate in any work with which they are unfamiliar, or use any equipment they are unqualified to use or have not received adequate training to use.
4.31 The parties will establish open communication and consultation methods in relation to health and safety matters, including points of contact.
4.32 You must provide us with reasonable access to the workplace and any relevant safety documentation prior to, and during an Assignment.
4.33 You agree to promptly rectify any deficiency in the provision of a safe work environment or safe systems of work that we determine, as far as is reasonably practicable, may pose a threat to the safety of a Casual Worker or any other person.
4.34 You must notify us immediately if there is any actual or anticipated change to the tasks, work systems or risks associated with an Assignment.
4.35 A Casual Worker may refuse to undertake any task they believe may place them or others at risk, or they have not been trained to perform.
4.36 If a Casual Worker suffers an injury or is involved in an incident that must be notified to a regulatory authority, you must inform us immediately. In all other cases of injuries, safety incidents or near misses involving one of our Casual Workers, you must inform us as soon as practicably possible for follow up. An incident and near miss form must be completed and supplied to us.
Liability
4.37 You agree that work and tasks performed by a Casual Worker for you are not our Services. To the extent permitted by law, you indemnify us and keep us indemnified against loss, expense, damage, delay, costs or compensation of any kind (including legal costs) that we pay, suffer or incur in connection with or arising from the death of or personal injury to a Casual Worker, from an Assignment or from a Casual Worker's:
a. acts, errors or omissions that cause damage to any property, including motor vehicles; or
b. handling of cash, valuables, merchandise or any other property of value, or performance of payroll or finance-related activities; or
c. breach of confidence or intellectual property rights; or
d. breach of professional duty; or
e. acts, errors or omissions that cause death or personal injury to any person.
4.38 You indemnify and keep us indemnified for the amounts you are liable to pay us under clause 4.13 and against loss, expense, damage, delay, costs or compensation of any kind we suffer or incur because you take action or direct that we take action against a Casual Worker that is discriminatory, unfair or unlawful.
4.39 Clauses 4.37 and 4.38 do not apply to the extent our negligent provision of Services contributes to the loss or damage.
5. General
5.1 This document may be executed by or on behalf of the Client by affixing an electronic signature to this document, including using digital signing software. An electronic executed copy of this document will be taken to be an original.
5.2 A party may terminate these Terms by giving 30 days' written notice to the other party. Termination of these Terms will not prejudice a party's pre-existing or accrued rights or obligations, including our right to fees.
5.3 If you dispute an amount in an invoice, you must notify us in writing within 7 days setting out reasons for the dispute and the amount in dispute. We reserve the right to charge you interest daily at an annualised rate of 10% on any overdue payments from the day after the payment is due. You indemnify us for all costs and expenses (including legal expenses and other third-party costs) we incur in recovering unpaid amounts.
5.4 We may issue a schedule from time to time to update or replace an existing Schedule. The revised Schedule will apply from the date it is issued to you.
5.5 Agreed Special Conditions form part of, and are incorporated into these Terms and are the only way these Terms will be varied.
5.6 The following order of precedence applies if there is any inconsistency between documents that form these Terms - (a) Special Conditions; (b) clauses in the terms of business; (c) a Schedule; (d) the relevant Assignment Details or Confirmed Search Brief; and (e) any other document or annexure.
5.7 If any part of these Terms is unlawful, unenforceable or invalid that part will be treated as removed from these Terms, but the rest of these Terms are not affected.
5.8 All amounts referred to in these Terms do not include GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)). We will add the prevailing rate of GST onto the consideration for any taxable supplies, including fees and expenses, we make in connection with these Terms. You agree to pay that GST.
5.9 Unless the law provides something greater, our aggregate liability for any loss, damage, liability, cost, charge or expense (Liability) in connection with or arising from the Services and these Terms (including as a result of negligence, misconduct or any warranty implied by law including for breach of a consumer guarantee under the Competition and Consumer Act 2010 (Cth)) is limited, at our option:
a. to the cost of re-supplying the Services giving rise to the Liability; or
b. the payment of the cost of re-supplying the Services giving rise to the Liability.
5.10 Nothing in clause 5.9 operates to exclude consumer guarantees under the Competition and Consumer Act 2010 (Cth).
5.11 A party is not liable for any loss of profit, data, savings, contract or goodwill, or for any other special, incidental or punitive damages, or for loss or damage arising from special circumstances that are outside the ordinary course of things.
5.12 Both parties and their respective personnel must comply with the Privacy Act 1988 (Cth) in respect of all 'personal information' that is collected, held, used, disclosed and otherwise handled by them in connection with these Terms.
5.13 Details of Casual Workers and Candidates remain confidential at all times, including fees and Rates.
5.14 These Terms will be governed by and construed in accordance with the laws of the State or Territory in which Services are primarily provided by us to you.
5.15 You agree to all of the following:
a. you will not Engage an Industrious People employee or contractor (Industrious People Personnel), or refer them to a Related Entity or third party who Engages them, within 12 months of them being directly or indirectly involved in the provision of services to you; and
b. where an Industrious People Personnel accepts an Engagement due to a breach of clause 5.15a, you will be liable to pay us a fee calculated as 20% of that employee's previous 12 months' Total Remuneration and
c. we will invoice the fee payable under clause 5.15b on and from the time the Industrious People Personnel accepts your offer of Engagement and it will be payable within 7 days of the date of invoice; and
d. the above restraint is reasonable in the circumstances and necessary to protect our legitimate business interests.