Readymix
Holdings Pty Ltd Country Concrete Carriers Contract Determination
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Application by Readymix
Holdings Pty Ltd.
(No. IRC 1233 of 2004)
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Before The Honourable
Justice Marks
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31 March 2004
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DETERMINATION
INDEX
Clause No. Subject Matter
1. Definitions
2. Area
Incidence and Duration
3. Term of
Contracts of Carriage
4. Cartage
Rates
5. Safety
Net
6. Cartage
Accounts
7. Living
Away from Home Allowance
8. Statutory
Requirements and Insurance
9. Loading
10. Hazardous
Approach to Job Site
11. Availability
of Suitable Vehicle
12. Responsibility
for Load
13. Breakdowns
14. Two-Way
Radio and Ultra Log Equipment
15. Provision
of Mixer
16. Mixer Care
and Maintenance
17. Painting
and Sign writing of the Mobile Unit
18. Union
Membership and Delegates
19. Manning
20. Uniforms
21. Amenities
22. Fleet Size
23. Commitment
to Training
24. Disputes
Procedure
25. Local
Rules and Conditions
26. Occupational
Health and Safety
27. Rostering
28. Concrete
Cartage in Alternate Vehicles
29. Plant
Stored Carriers Equipment
30. Termination
of Engagement
31. Compensation
upon Termination of Contracts
32. Assignment
of Contract of Carriage
33. Environment
Protection and Pollution Control
Schedule A Calculation
of the Utilisation Rate
Schedule B Extra
Charges Unit Rates
Schedule C Items
Included in the Utilisation Rate
Schedule D Determination
of Utilisation Level
Schedule E Safety
Net Example
Schedule F Insurance
Specification
This determination of the Industrial Relations Commission of
New South Wales shall apply to Readymix Holdings Pty Limited and the Transport
Workers Union of Australia New South Wales Branch.
1. Definitions
1.1. for the
Purpose of This Determination the Following Terms Shall Bear the Meaning:
The Act shall mean the Industrial Relations Act
1991.
Award shall mean the Transport Industry - Mixed
Enterprises (State) Award as varied from time to time.
Concrete shall mean a product whether mixed, blended or
batched, that contains, but not limited to, as a minimum: cement, aggregate,
sand and water; mortar containing cement, sand and water; grout containing
cement, sand and water; slurry containing cement and water; or binders
containing cement and sand. This
definition is not contingent on the method of production, laying or description
of the finished product.
Continuous Pours shall mean:
a) A slab and any
walls, columns, stairs and the like, provided they are in integral part of the
said slab and are poured at the same time;
b) Road pavements;
or
c) Multiple strip
footings within a radius of ½ kilometre.
All other work is excluded as a continuous pour.
Contract of Carriage shall mean as defined in the Act.
Contract Carrier or Carrier shall mean a single
operator owner driver trading as an incorporated body who carries out a
Contract of Carriage with the Principal Contractor.
Contractor shall mean Principal Contractor as defined
in the Act. The Principal Contractor in
this agreement is Readymix Holdings Pty Limited.
Cyclic roster shall mean:
d) a roster made
up of truck numbers which dictates the selection of a particular vehicle for a
function and is addressed from the first truck number to the last;
e) When the
roster has been fully addressed the roster then changes so that the truck
number that was first becomes last while the truck number that was previously
second then becomes first and each truck number is moved up one position in
turn, and so on; and
f) Each Carrier
shall start the day, when not rostered off, in order of a single cyclic roster
and thereafter in order of his return to plant.
Mini truck shall mean a truck with an agitator that has
a mixing capacity of 2.8m³ or less.
Mixer shall also mean Agitator and vice versa.
Country Area, for the purpose of this agreement,
includes concrete plants located at:
Billinudgel, Byron Bay, Salamander Bay, Teralba, Tighes
Hill, Unanderra, Albion Park, Bowral, Bathurst and Orange and such other plants
as the Contractor may from time to time decide.
Union shall mean the Transport Workers' Union of
Australia New South Wales Branch and such delegate or delegates from within
Readymix as are authorised by the union.
Written Authority shall mean any approved document that
bears the signature of the Carrier or the Contractor as the case may be.
1.2. Interpretation
Words importing the singular number shall include the
plural number and words importing the plural number shall include the singular
number.
The masculine gender shall include the feminine and
neuter genders.
2. Area Incidence and
Duration
2.1. This
determination sets out the rights and obligations of the Contractor and the
Carrier. This determination applies to
all Carriers engaged by Readymix Holdings Pty Limited in the Country Area (as
defined in Clause 1.1).
2.2. If a provision
of this determination is inconsistent with a provision of the Transport
Industry Concrete Haulage Contract Determination published 30 November 1990,
NSW Industrial Gazette, Vol.260 and all variations thereof ("the Contract
Determination) then the provisions of this determination shall prevail and the
provisions of the contract determination is to be considered to have been
varied to the extent necessary to remove the inconsistency.
2.3. This
determination shall take effect from 31 March 2004 and shall remain in force
until 1 January 2005 and shall have no effect thereafter.
3. Term of Contracts
of Carriage
3.1. Ready Mixed
Concrete Contract Carriers in the Country Area ("Country Carriers"):
a) The term of
the Contract of Carriage for a Country Carrier shall be two (2) years
commencing on 1st March 1996.
i) If the
Carrier, as at 2 years from commencement date, operates a vehicle capable of
legally carrying 5.0m³, subject to the provisions of Clause 11.3, then the term
shall be extended by six (6) years which total (ie. eight years) shall become
the term of the agreement.
ii) If the
Carrier, as at 2 years from commencement date, operates a vehicle capable of
legally carrying 5.4 m³, subject to the provisions of Clause 11.3, then the
term shall be extended by eight (8) years which total (ie. ten years) shall
become the term of the agreement.
b) The Contractor
shall have the sole option to renew the Contract of Carriage of a Country
Carrier for a further term, subject to the following:
i) Carriers
whose term has been extended by six (6) years under Clause 3.1 (a) may be
extended a further four (4) years.
ii) Carriers
whose term has been extended by eight (8) years under Clause 3.1 (a) may be
extended a further five (5) years.
c) The option to
renew shall be exercised by the Contractor serving upon the Carrier a written
notice thereof between the period commencing twelve (12) months and ending six
(6) months before the date of the term of the Contract of Carriage;
d) The renewed
Contract of Carriage shall be on the same terms and conditions as contained in
this agreement applicable to Country Carriers subject to the following
alterations:
i) Sub-clauses
3.1(a), (b), (c) shall be deemed to have been omitted; and
ii) The cartage
rates payable by the Contractor to the Carrier at the commencement of the
renewed Contract of Carriage shall be the same as the cartage payable pursuant
to this agreement immediately prior to the expiration of the term of this
agreement.
4. Cartage Rates
4.1. Cartage rates
payable to Country Carriers:
a) The Contractor
shall pay to a Country Carrier the Country Area utilisation cartage rates
("the utilisation rates") set out in Schedule A hereto. All surcharges, as described in schedule C,
are included in the rate as shown in Schedule A, except for the following :
i) transfers in
excess of 30km, as provided for under clause 7.4;
ii) waiting time
if a truck is bogged under Clause 10.2.
iii) Out of Hours
Penalty Rates for Sundays and Public Holidays.
b) Between 1st
March 1996 and 31st March 1996 the per annum utilisation rate specified in
Schedule A for the average M3 for the particular plant for the period 1st
January 1995 to 31st December 1995 shall be payable by the Contractor to the
Carrier.
c) On and from
1st April 1996 and on and from the 1st day of every subsequent quarter during
the term of the Contract of Carriage, the Country Carrier fleet average
utilisation rates (for each plant) as adjusted for the previous quarter
(calculated on a moving annual total basis in the applicable band as shown in
Schedule A) shall be payable by the Contractor to the Carrier, effective from
the commencement of the second cartage period in the month of review.
d) The
utilisation rates paid shall be based on the plant Carrier fleet average paid
m3 for the previous quarter at the plant carrier fleet availability determined
in accordance with Clause 4.19.
e) The cartage
rates shall be reviewed on 1st May 1996 and thereafter half-yearly based on
increases or decreases in the cost formula set out in Schedule A hereto.
In the event that agreement cannot be reached as a
result of the review referred to in this clause then the question of an
increase or decrease in the cost formula set out in Schedule A shall be
referred to the Arbitrator appointed pursuant to Clause 24 of this agreement.
4.2. Benefits
included in the cartage rates:
a) The following
are provided for in the rates payable to Carriers under this agreement:
i) All benefits
and entitlements under the Award; and
ii) Leave
entitlements as follows:
a) 20 days annual
leave and, in addition, the annual leave loading as prescribed in the Award;
b) 10 public
holidays - New Year's Day, Australia Day, Good Friday, Easter Monday, Anzac
Day, Queen's Birthday, Labour Day, Christmas Day, Boxing Day; Union Picnic Day
c) 34.8 hours of
long service leave per annum;
d) 64 hours sick
leave per annum;
e) 16 hours
bereavement leave;
f) RDO - 12 per
annum leave.
g) Superannuation
at the rate of 5%..
b) The leave
entitlements under Clause 4.2 (a) are provided for in the rate as described in
Schedule A. Each Carrier must take the
leave entitlements in accordance with the Award even though the services of the
Carrier’s truck are required by the Contractor. Should there be any variations to the entitlements under the
Award, the cartage rate shall be adjusted accordingly at the review date.
4.3. Manning When
On Leave
The Contractor may require the Carrier to man his
vehicle when on leave entitlements.
The Contractor shall pay to the Carrier the difference between the
labour cost component of the utilisation rate paid for cartage in the relevant
period and the labour cost of the Casual driver pursuant to the Award for a
Casual driver.
[Example: At the commencement of this agreement the
Labour cost at the 4,500m3 utilisation rate is $34,404 (Schedule A) or $7.65/m3
and the Casual labour cost is $540.00 per week(Schedule A). Say a Casual driver is engaged for five
days Monday through Friday inclusive, in normal time hours, then the cost to
the Carrier of the Casual driver is $540.00.
If, say, in that period the Carrier’s vehicle carts 50m3 and the Carrier
is therefore paid the equivalent of 50m3 cartage, then the labour cost
component of the cartage paid is $382.50 (ie. 50m3 x $7.65/m3). The Contractor then shall pay to the
Carrier the difference in labour cost and the labour cost component, in this
example: $540.00 - $382.50 = $157.50.]
4.4. Haulage Area
The Carrier shall haul concrete as required, from the
Contractor's plants. The Carrier shall
normally work for a period of time from a nominated plant, or other plants in
accordance with the requirements of the Contractor.
4.5. Cartage Zones
Cartage zones shall be based on a map displayed at each
plant, located to provide ready and reasonable access to the Carrier. The zones shall be used as a general guide
only.
Any dispute arising in relation to the actual zones to
be paid to the Carrier shall be resolved within twenty four (24) hours between
the Contractor's representative and the Carrier or his representative by
jointly measuring the actual distance travelled, in a mutually agreed vehicle,
by the Carrier from the loading point to the discharge point via the shortest
practicable route.
[Comment: for the purposes of this agreement
"practicable" shall mean open to heavy traffic.]
4.6. Minimum Load
A Carrier shall be guaranteed a minimum load of 3m³ or
a minimum payment on the basis of 3m³ for the first 3 km, or part thereof, that
the load is carried from the plant.
4.7. Mixing in the
Yard
A fee of "C" (Schedule B) per load shall be
paid to mix and discharge concrete into a customer's vehicle for transport from
the plant and subsequent placement outside the boundaries of the plant. Ex-plant mixes shall be limited to completed
orders not exceeding 3m³.
4.8. Long Distance
Rates
Where the load is required to be carried in excess of
twenty five (25) km then each additional km shall be paid on the basis of a 4
m3 minimum load.
4.9. Normal
Delivery Hours
Normal hours shall be 6.00 am to 6.00 pm Monday to
Friday and 6.00 am to 1.00 pm Saturday.
For the determinations made under Clauses 4.10, 4.11, 4.12, and 4.13
time shall be determined from the time of batching as recorded.
4.10. Standby Time
Where a Carrier is required by a Contractor to remain
at the plant to take a delivery to a job commencing outside Normal Delivery
Hours, for more than one hour, standby time shall be paid at a rate of
"E" (Schedule B) for each complete half hour following the expiration
of the initial hour.
Standby time is only applicable outside Normal Delivery
Hours before receiving a load and also between loads. After the expiration of one hour but only payable after each
additional complete half hour, a Carrier must be on standby for a minimum of
eighty nine (89) minutes before being entitled to a payment of "E"
(Schedule B).
4.11. Call-out Fee
a) A Carrier
called back outside Normal Delivery Hours shall be paid a Call-out Fee equal to
the difference between the total income earnt pursuant to the call-out and an
amount equal to 8 x "E" (Schedule B)
b) A Carrier
called back outside Normal Delivery Hours shall not be entitled to a Call-out
Fee where the total income earnt pursuant to the call-out sums to an amount
equal to or greater than 8 x "E" (Schedule B)
4.12. Out of Hours
Penalty Rates
a) Out of Hours
Penalty Rates will be payable pursuant to Clause 4.1 (a) (iii) herein
only. All other Out of Hours Penalty
Rates which may be inferred are included in the Rates as shown in Schedule A herein.
b) The Out of
Hours Penalty Rate deemed payable pursuant to Clause 4.1(a) (iii) shall be paid
at rate of "F" (Schedule B) per m³ based on a minimum of 3m³
4.13. Concrete
produced on Sunday
Where a Carrier is required to cart concrete on a Sunday,
then the loads so carted shall not be included in the determination of the
annualised utilisation rate.
4.14. Concrete
Produced for Contractor's Own Use
Where a Carrier is required to load concrete for the
Contractor's own use within the confines of the Contractor's concrete plant
where loaded, the Carrier shall be paid at the current utilisation rate load
fee per m3 with a minimum of 3 m3.
4.15. Multiple
Discharge Points
a) Same Customer
Payment for haulage covers the total distance travelled
to final discharge point. Unloading
time shall commence from the start of unloading at the first point and shall
continue until the final completion of unloading when drops are within one (1)
km. Over one km, the total of the
additional km travelled to final discharge point shall be added to the ticket
and paid as if the original load was carried for the entire distance.
b) Multiple
Customers
Each delivery shall be treated for the purpose of
payment of cartage as if a separate delivery had been made from the plant to
each delivery point.
4.16. Diverted Loads
a) Direct
Diversion
Where a load is diverted enroute a Carrier shall be
paid normal cartage rates covering the total distance travelled from initial
departure from the plant to the ultimate delivery point of the load.
b) Return to
Plant and Divert
It is thereafter treated as a new load.
c) Return to
Plant and Dumped
It shall be paid for as in clause 4.16 (a).
d) Return to
Plant and Subsequently Dumped Outside Plant
Where the Contractor directs ANY quantity of left-over
concrete that has been agitated in the yard to be taken to another site and
dumped, payment shall be made at the Country Area utilisation rate.
4.17. Left over
concrete
a) All concrete
remains the property of the Contractor and accordingly the Contractor reserves
the right to direct where concrete is to be taken or if and where it is to be
dumped. The Carrier shall contact the
plant for instructions as soon as possible.
b) When 3m³ or
more of concrete is left over from a job, return cartage shall be paid at the
rate of "B" (Schedule B) with a 3 km minimum
4.18. Road and Bridge
Tolls
Prior to the departure of a load, the Contractor shall
issue the Carrier with a mutually agreed number of prepaid toll tickets or
equivalent for that load, free of charge.
4.19. Utilisation
Level and Availability
a) Pursuant to
Clause 4.1 (d) the determination of Carrier availability shall be subject to
the provisions of Clause 5.6. For the
determination made under 4.19 (d) the exceptions listed under Clause 5.6 (c),
(d), and (e) shall not be applicable.
b) For the
determinations made under 4.19 (d) Saturdays shall be considered as 0.6 of a
day.
c) Company trucks
will not be included in the calculation of the quarterly utilisation level.
d) The quarterly
utilisation level shall be calculated in accordance with the formula: U = V / (
T - R ), where
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R = S / W =
calculated unavailable trucks
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(number of trucks)
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S = sum of the unavailable days
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(number of days)
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W = working days in the quarter
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(number of days)
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U = quarterly utilisation level
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(metres per truck)
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V = paid metres available for the period
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(metres)
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T = the base fleet number
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(number of trucks)
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(Example : see
Schedule D)
5. Safety Net
5.1. An earnings
safety net and guaranteed minimum earnings as described in Schedule A :
"Quarterly Safety Net", shall apply to the Carrier per quarter year
during the term of the Contract of Carriage.
The Safety Net will be administered on a cumulative basis, ie there will
be adjustments up or down from quarter to quarter, as appropriate during the
term of the contract.
5.2. The
"Quarterly Safety Net" (Schedule A) shall be subject to rise and fall
under the terms of this Contract.
5.3. The Contractor
shall pay to the Carrier an amount not exceeding the "Quarterly Safety
Net" (Schedule A) per quarter if the Carrier has earned less than the
"Quarterly Safety Net" (Schedule A) at the end of the relevant
quarter. The amount payable shall be
calculated in accordance with the following formula:
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Net Quarterly Payment
= QSN - A
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where:
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QSN =
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"Quarterly Safety Net" (Schedule A)
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A =
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the actual earnings of the Carrier during the relevant
period.
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The Net Quarterly Payment shall be made in the pay
period following the end of the relevant quarter. In any quarter when the
quarterly earnings exceed the quarterly Safety Net, any previous amount paid by
the Contractor to the Carrier as Safety Net shortfall will be recovered from
the Carrier’s quarterly earnings which exceed the quarterly Safety Net. (An example of the calculation method is
attached as SCHEDULE E.)
5.4. The Carrier is
deemed available pursuant to Clause 5.6.
The Carrier’s Quarterly Safety Net shall be reduced by 4/253 ths per day
for each day the Carrier is deemed unavailable.
5.5. The Contractor
and the Union shall mutually agree on a mechanism so that the Contractor is not
disadvantaged by causes beyond its control and the Carrier is not disadvantaged
by actions of the Contractor.
5.6. The normal
work week is six (6) consecutive days , Monday through Saturday inclusive to a
total of 253 days per annum as described in Schedule A. The Carrier shall report as directed by the
Contractor on each normal work week day and compliance with such direction
shall deem the Carrier available. Non-compliance
with the Contractors direction shall deem the Carrier unavailable subject to
the following exceptions :
a) The nominated
plant is closed or unable to produce;
b) The agitator
is unserviceable, except by accidental damage by the Carrier;
c) The Carrier is
on approved annual leave (two (2) weeks per annum);
d) The Carrier
takes approved sick leave under the Award (eight (8) days per annum);
e) The Carrier
has a roster day off (three days per annum);
f) The Carrier
is notified the prior day that that he is not required or is rostered off at
the direction of the Contractor.
6. Cartage Accounts
6.1.
a) The Contractor
shall prepare cartage accounts in accordance with dockets issued by the
Contractor to the Carrier during the course of the accounting period.
b) The Carrier's
accounts, as prepared by the Contractor, shall be itemised on a daily basis
which shall include data, docket numbers, quantity of loads, kilometres, extra
payments, amount per load and job address.
c) All the above
items shall be totalled individually at the conclusion of the accounting
period. The gross cartage figure should
be shown, and any agreed deductions, eg. income adjustments, fully itemised and
a net figure then shown.
d) The accounting
period shall be two equal periods during each calendar month.
e) Cartage
accounts shall be paid by electronic transfer between the Carrier and the
Contractor within 10 working days following the end of each accounting period.
f) Should the
Carrier not receive the due electronic transfer in his account for any reason
attributable to the Contractor or the Contractor’s Bank, then the
Contractor shall pay to the Carrier an
additional amount being the prevailing bank overdraft interest rate calculated
on a daily basis for each day the electronic transfer is overdue.
6.2.
a) Account
discrepancies relating to the immediately preceding pay period shall be settled
promptly and in no case later than fourteen (14) days from the date of
submission by the Carrier.
b) Account
discrepancies relating to other than the immediately preceding pay period shall
be settled within thirty (30) days from the date of submission of the
discrepancy.
c) Where,
following settlement of an account discrepancy, an adjustment to payments is
required such adjustment shall be made in the pay period following settlement.
6.3.
a) Where a
Carrier purchases any item other than fuel from time to time from the
Contractor, or where goods are purchased on the Carrier's behalf by the
Contractor, the Contractor may deduct from the Carrier's cartage payments an
amount equal to the value of the purchase provided the Contractor has written
authorisation to make such deduction.
b) The Contractor
may deduct from the Carrier's cartage payments an amount equal to the value of any
fuel purchased. The cost of the fuel
shall not be adjusted retrospectively.
c) When a Carrier
is overpaid, the Contractor shall submit an adjustment account to the Carrier
which shall be determined within 14 days from the date of submission for the immediately
preceding pay period or thirty (30) days for all other claims.
d) Following
determination the Carrier shall promptly provide written authorisation for the
adjustment to be deducted from his account and such deduction shall be from the
next cartage payment due.
7. Living Away from
Home Allowance
7.1. A Carrier
engaged in work which precludes him from reaching his usual place of residence
at night shall receive the benefits and conditions as detailed in the Award.
7.2. Where a
Carrier is required to transfer to a working area which precludes him from
returning to his normal place of residence each night, the Contractor wherever
possible shall provide the Carrier with at least twenty four (24) hours prior
notice of the request.
7.3. Where a Carrier
is transferred outside his normal working area, such transfer shall be for a
period not exceeding seven (7) days duration or longer by mutual agreement and
shall be done from a cyclic transfer roster.
7.4.
a) Payments for
transfers in excess of 30 km shall be paid at the rate of ("H") per
km or part thereof that the Carrier is required to travel to and from the
directed transfer location. The forward
and return journeys are considered to be separate transfers.
b) A transfer
docket must be issued by the Contractor to the Carrier prior to departure,
wherever possible, otherwise on arrival at the destination.
c) Should a
transfer be cancelled or redirected the relevant transfer docket shall be
adjusted by the Contractor immediately on the Carrier's return to the plant
from which he was originally transferred.
8. Statutory
Requirements and Insurance
8.1.
a) A Carrier
shall comply with the provisions of all current relevant statutes and
regulations made thereunder in relation to the use or operation of his motor
lorry and the Carrier shall ensure payment of all lawful fees, licences and
taxes in relation thereto.
b) Any variation
in statutory requirement shall be considered in the regular review of cartage
rates.
8.2. A Carrier
shall arrange insurance cover, as specified by the Contractor (Schedule F), and
keep current whilst working under this agreement in respect of:
a) Motor vehicle
comprehensive or third party property.
b) Motor vehicle
compulsory third party.
c) Worker's
compensation for all employees, including casuals of the Carrier’s Company.
d) Public
liability cover to the value of $5 million, with extensions to cover the
following:
i) Damage caused
by the agitator.
ii) Damage due to
incorrect product delivery.
e) Comprehensive
cover for damage to the agitator.
8.3.
a) All relevant
insurance policies, registration certificates and driver licences are to be
submitted to the Contractor for perusal and verification and return prior to
the commencement of the contract, thereafter upon demand within (14) days of
request.
b) The Carrier
shall not provide photocopies of any documentation but shall produce original
documents for sighting and verification only.
9. Loading
9.1. Size of Load
a) The Contractor
has the right to nominate the size of load provided the Carrier has the right
to refuse a load that is beyond the legal capacity of the vehicle or the rated
capacity of the mixer. The Carrier
shall carry any load so nominated provided it is within the legal carrying capacity of the truck and
there are no other adverse impacts.
b) Each Carrier
shall be loaded to his maximum legal capacity wherever possible except in the
case of a single load or message, where a subsequent load would result in less
than 3m3 being carried, or where the Contractor considers that 5m3 is
operationally appropriate in which case the Carrier shall be loaded to 5m3.
9.2. Loading Order
a) The initial
daily starting order shall be in accordance with a cyclic roster.
b) Thereafter all
trucks shall be loaded in order of their return to the plant with the exception
of:
i) Mini mix
loads (less than 3m3).
ii) Single load
or message greater than the mixer capacity or legal carrying capacity of the
truck next in line.
iii) Trucks with
returned concrete where it is impractical due to facility or time constraint to
transfer the returned concrete to the next truck in line.
c) The Contractor
may operate a fleet of vehicles driven by its employees.
d) The
Contractor's employee driven vehicles shall not be preferentially loaded.
e) The
Contractor’s employee driven vehicles shall participate in the cyclic roster as
defined under Clause 1.1 (d).
f) The initial
loading time and the initial plant from which such loading shall take place
shall be notified by the Contractor to each Carrier before the close of
business on the previous day.
10. Hazardous
Approach to Job Site
10.1. Hazardous
Approach
a) A Carrier
shall have the right to refuse to enter upon ground which he considers unsafe
or extraordinarily hazardous. If a
Carrier does refuse entry and the delivery is completed on that day by other
vehicles without the use of additional equipment then the Carrier that has
refused entry shall not be paid for the delivery or return cartage unless the
load has been diverted to another job in which case his delivery to the
alternate location shall be paid as if it were a new delivery from the plant
where batched to the alternate location.
b) If the Carrier
has notified the plant of the unsafe or hazardous job site and/or approach but
attempts unsuccessfully to enter, the Carrier shall be paid the utilisation
rate as if the delivery had been successful even if the delivery is ultimately
completed, as Clause 10.1 (a).
c) In all cases
if the Carrier refuses to enter and the delivery is not completed on that day
without the use of additional equipment the Carrier shall be paid the
utilisation rate as if the delivery had been successful. If the Contractor diverts the load is to an
alternate location the Carrier shall be paid pursuant to Clause 4.16 Diverted
Loads.
10.2. Bogged Vehicles
a) Where a
Carrier goes beyond the kerb to complete a delivery and his vehicle becomes
bogged or is otherwise rendered inoperative as a consequence of such attempted
delivery, the Contractor shall arrange the services of an experienced salvage
contractor to extricate the vehicle as soon as possible and shall bear all
costs for those arrangements.
b) The Contractor
shall 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 Carrier’s vehicle during the extrication process.
c) Waiting time
at a rate of "D" (Schedule B) per minute shall be paid to the Carrier
from the time the Carrier notifies the plant until the time of completion of
extrication.
d) Provided
further that the provisions of Clause 10.2 (a),(b), and (c) shall not apply
where the vehicle becomes inoperative as direct result of the Carriers
negligence or deliberate actions.
10.3. The Carrier
shall be responsible for damage to property or vehicle arising from off-kerb
delivery. Damage claims are to be
settled quickly.
11. Availability of a
Suitable Vehicle
11.1. It is the
obligation of the Carrier on each working day to personally supply, man,
operate, and keep serviceable, the vehicle.
Any variation to this obligation shall require agreement by both
parties.
11.2.
a) No vehicle
shall be brought into service without prior consent of the Contractor.
b) The Contractor
shall have the discretion to refuse to load a vehicle that is unregistered or
obviously defective.
c) Where the
vehicle is subsequently shown by the Roads & Traffic Authority not to be
defective the Carrier shall be paid by the Contractor a rate equivalent to the
daily average earnings at the applicable plant carrier fleet utilisation rate
for each day so detained, or part thereof, from the time the load was refused
until the contractor agrees to load the vehicle, together with any additional
statutory charges.
11.3. The legal
carrying capacity of a suitable vehicle for the determinations made under
Clause 3.1 (a) shall be based on;
a) The provision
by the Contractor of an agitator not weighing in excess of 3100 kgs plus an
allowance of 200 kgs for water and oil.; and
b) The nominal
mass of normal class 25MPa (N25 under AS1379) being 2300 kgs.; and
c) The RTA
registered mass of the vehicle.
11.4. An
unserviceable vehicle shall be repaired as soon as practicable.
11.5. Where a Carrier
is unable to report for work with his vehicle he shall arrange for the
Contractor to be informed at the earliest possible moment of the reason and the
anticipated period of absence.
11.6. When a Carrier
is required to submit his vehicle to the Roads & Traffic Authority for
annual inspection, he shall inform the Contractor 4 weeks prior to his
registration renewal date or on receipt of his inspection notification
whichever is the earlier.
If a re-inspection is required due solely to a
defective agitator, then a transfer fee of "G" (Schedule B) per km or
part thereof shall be paid by the Contractor to the Carrier for the distance
travelled to the nominated inspection station from the base plant plus any
inspection fees payable.
11.7.
a) All current
vehicles in the fleet are deemed to be approved vehicles for two (2) years in
the Country area.
b) When the
Contractor provides a hydraulic mixer, the Carrier’s vehicle must be capable of
and adequately powered to take an hydraulic mixer. Power take-off at front or rear is at the option of the Carrier.
The boundary of the Carrier's responsibility in this matter shall end at the
provision of an accessible bare power take-off drive shaft. However, any modification to the vehicle to
accommodate the hydraulic drive connection to the mixer shall be to the
Carrier’s cost. Where a front power
take-off is fitted, the Carrier will release the Contractor from liability for
any and all claims for damage which occur, either directly or indirectly, to
the Carriers’ vehicle as a result of the operation of the hydraulic mixer with
a front power take-off. In the event
that a front-power take off is fitted to the Carrier’s vehicle, the Carrier
will reimburse the Contractor for the total rectification of damage to the hydraulic pump and/or
ancillary equipment resulting from a vehicle front-end collision.
12. Responsibility
for Load
12.1. A Contractor
shall ensure that the load is batched, with the intent that the quantity of
water required to adjust the slump does not exceed 10% of the total water
required to bring that load up to specification.
12.2.
a) The Contractor
shall provide the Carrier wherever possible with notice, posted on the
appropriate notice board, of any intended major changes to the source of
concrete mix ingredients which may change the characteristics of the concrete.
b) Should the
Contractor change the concrete ingredients without said notification to the
Carrier prior to batching, the Contractor shall automatically assume the slump
responsibility of the concrete and the Carrier shall be paid for all cartage at
the full rate without penalty.
12.3.
a) A Carrier
shall ensure that the load is properly mixed as required by the Contractor's
written instructions and that the slump of the concrete shall be in accordance
with the following limits immediately prior to discharge:
i) Slump above
110 millimetres - a tolerance of plus or minus 30 millimetres.
ii) Slump greater
than 80 and less than 110 millimetres - a tolerance of plus or minus 20
millimetres.
iii) Slump greater
or equal to 30 millimetres and less than or equal to 80 millimetres, a
tolerance of plus or minus 15 millimetres.
b) The slump
requirements are based on the premise that the carrier has at all times from
the time of batching to the point of discharge, the ability to add water to
adjust the slump of the load to the specification under Clause 12.3 (a).
c) If the Carrier
is requested by the Contractor to adjust and/or maintain the slump of a load at
a tolerance closer than that described under Clause 12.3 (a), and the load is
rejected on the basis of non-compliance with the nominated slump tolerance,
then Contractor shall pay the Carrier the utilisation rate for the load as if
the load had not been rejected.
d) If the
Contractor has removed the Carriers right to adjust the slump of a load on the
job site, and the Carrier is requested by a third party to adjust the slump of
the load, and the Contractor approves such adjustment, and the load is rejected
on the basis of water addition and/or non-compliance with the nominated slump
tolerance, then Contractor shall pay the Carrier the utilisation rate for the
load as if the load had not been rejected.
e) The agitator
drum must be kept turning at all times when it contains concrete.
12.4.
a) A Carrier
shall visually inspect each load prior to leaving the plant and shall advise
the Contractor of any apparent unusual features of the load which may have
occurred due to batching error, plant failure, contamination or carrier error.
b) Any failure to
report any obvious unusual feature arising from a visual inspection shall be
dealt with in accordance with clause 24 Disputes Procedure hereof.
c) Subject to
Clause 12.5, the Carrier shall not be responsible or have his cartage payment
rejected or withheld due to undetected irregularities of the load save for
slump.
12.5. When a load is
rejected at a job site because the slump is outside the nominated tolerance
contained herein, or the Carrier has not visually inspected the load prior to
leaving the plant the Carrier shall not be paid for the cartage.
12.6.
a) At the job
site a Carrier shall make reasonable endeavour to obtain a signature for
delivery and it shall be the Carrier's responsibility to contact the plant
immediately by two-way radio when a problem arises to obtain a signature from
the customer as required by the Contractor.
b) If a nominated
signature is required by the Contractor it is the Contractor's responsibility
to ensure that the nominated person is available at the point of discharge at
the completion of the discharge of the load.
12.7. A Carrier shall
endeavour to collect money from COD customers for all concrete charges,
including waiting time. All monies
collected shall be submitted in full to the plant manager or allocator as soon
as possible on return to the plant, who shall issue the Carrier with a receipt.
12.8.
a) The Carrier
shall immediately advise the Contractor where practicable by two-way radio, or
telephone if immediately available where a two-way radio is not provided, when
a COD payment is not collected or a dispute arises between the Carrier and the
customer.
b) Public
Telephone costs are to be reimbursed by the Contractor to the Carrier.
c) Carriers are
not required to carry a float for the purposes of providing a change facility.
d) The Carrier shall
take all due care for any money collected.
12.9. Where a load is
dumped the Carrier shall not be liable to compensate the Contractor unless the
loss occurred as a direct result of the Carrier's negligence or misconduct.
12.10. In the case of a
delivery of concrete to a kerb making machine, the Carrier assumes no
responsibility for the slump of the load as it is delivered in an "as
batched" condition.
12.11. Where an
additive is added after batching, the Carrier is automatically absolved of any
responsibility for the slump.
12.12. The concrete
specification as shown on the cartage docket cannot be changed by any party
after batching.
12.13.
a) Where returned
concrete is re-used and is more than 1½ hours old, and the return cartage is
greater than 0.8m3 and topped up, the Contractor shall assume full
responsibility for the load, thus excluding the Carrier from his responsibility
for the slump of the load.
b) The Carrier
shall assume responsibility for any breaches in vehicle legal load limits in
relation to this matter as the Contractor has given the Carrier the discretion
to dump any concrete from that topped-up load that the Carrier may deem to
place him in breach of his vehicle's legal load limit.
12.14. Limit of
Carrier's Liability
a) Subject to
Clause 12.14 (b) and Clause 12.14 (c) the maximum limit for a Carrier's
liability under the Contract Determination and this agreement shall not exceed
the total invoiced value of the material for the respective individual load.
b) Subject to
Clause 12.14 (c), and subject to Clause 12.9 the maximum limit for a Carrier's
liability under the Contract Determination and this agreement, where an
individual load is rejected pursuant to Clause 12.5, shall not exceed the value
of the cartage payment.
c) The aforesaid
limitation of liability of a Carrier does not apply in respect of a Carrier
whose cover for any of the insurances referred to in Clause 8 hereof is voided.
12.15. The Carrier
shall at all times comply with the reasonable work methods and procedures
stipulated by the Contractor. If a
problem arises the disputes procedure will be applied.
13. Breakdowns
13.1. Neither the
Contractor or Carrier shall be responsible to each other for any loss resulting
from plant mixer and/or vehicle breakdowns.
13.2. Should a mixer
breakdown occur, the Carrier shall not be responsible for the removal of the
concrete. The Carrier is not obliged to participate in the removal of concrete
from the agitator save for the operation and positioning of the agitator to
assist in concrete removal. Waiting
time at a rate "D" (Schedule B) per minute shall be paid to the
Carrier from the time the Carrier notifies the plant until the time of
positioning of the agitator as directed.
14. Two-Way Radio and
Ultra Log Equipment
14.1. The Carrier
shall agree to the installation of two-way radio and ultra log equipment on his
vehicle. All equipment shall be
installed by the Contractor's approved technician and such installation shall
be of a professional standard. The
installation shall include all necessary equipment, and the complete
installation shall be undertaken at no cost to the Carrier.
14.2. When such
equipment is removed the Contractor shall make good the bodywork.
14.3. The Carrier
shall take due care to ensure adequate protection of the equipment.
14.4. The equipment
is to be operated and appropriate procedures are to be followed as laid down by
the Contractor.
14.5. The contractor
shall be responsible for the maintenance of the two-way radio and ultra-log
equipment.
14.6. The Contractor
shall provide to the Carrier at no cost to the Carrier, all stationery required
to properly operate the ultra-log equipment and any other monitoring equipment
installed in the vehicle as required by the Contractor.
15. Provision of Mixer
15.1.
a) The contractor
shall be responsible for the provision of a mixer with a mixing capacity of not
less than 5m3 and its safe and proper initial fitting to the Carrier's vehicle
in accordance with the specifications of the respective manufacturer's
including the supply of "U" bolts, clearance lights, mud flaps and a
protective chassis/agitator cover plate mutually acceptable to the Contractor
and the Carrier.
b) If an agitator
is required by the Contractor to be removed at any time for any reason, the
total cost of agitator removal and replacement shall be borne by the
Contractor.
c) If an agitator
is required by the Carrier to be removed to effect repairs than cannot be
otherwise effected without the removal of the agitator, then the total cost of
the agitator removal and replacement shall be borne by the Contractor provided
that such repairs are not for the purpose of inspection, sandblasting, or
modifying the truck chassis.
15.2. After the
initial fitting referred to in 15.1 (a) hereof the Carrier shall be responsible
for the mixer being properly secured to the vehicle. The Carrier shall be responsible for all maintenance and
replacement of clearance lights, globes and mud flaps. Mudflaps shall be supplied to the Carrier by
the Contractor free of charge.
15.3. The Carrier by
mutual agreement may have the U bolts adjusted by a qualified mechanic and the
costs incurred shall be paid by the Contractor provided that the Contractor's
workshop shall have the opportunity of undertaking the adjustments.
15.4. On the
termination of the contract the following shall apply:
a) The mixer
shall remain the property of the Contractor and on completion of its use at the
termination of this contract shall be removed by the Contractor at a location
nominated by the Contractor at a time mutually agreed between the Carrier and
the Contractor but in any event, within forty eight (48) hours.
b) The Contractor
shall pay to the Carrier a transfer at the rate of "G" (Schedule B)
per km or part thereof to and from the nominated location.
c) The Carrier
shall be paid at the rate of (3 x "K") (Schedule B) per hour by the
Contractor for such time involved in the removal of the agitator from the
Carrier’s vehicle where such time involved is for a period greater than four
(4) hours at the nominated location.
15.5. Hydraulic
Mixers
a) All
modification and fitting work is to be done expeditiously and in any case not
longer than five (5) working days. The
Contractor shall pay the Carrier a rate equivalent to the daily average
earnings at the applicable plant Carrier fleet utilisation rate for each day so
detained in excess of the five (5) working days limit.
b) The Contractor
shall provide regular maintenance in accordance with the mixer manufacturer's
recommendations at the Contractor’s cost.
16. Mixer Care and
Maintenance
16.1. A Contractor's
mixer is in the care of the Carrier who shall keep the unit clean and tidy to
the satisfaction of the Contractor and the Union.
16.2.
a) A Carrier
undertakes to exercise all reasonable care of the mixer. The mixer shall be thoroughly washed out and
cleaned down as required and surfaces treated in preparation for the next day's
work.
b) All cleaning
materials and equipment necessary for cleaning the agitator shall be supplied by
the Contractor and shall comply with any and all statutory requirements and
regulations.
16.3. The Carrier
shall report any and all apparent maintenance requirements to the Contractor.
16.4.
a) The Carrier
shall convey the mixer to the workshop for repairs or maintenance as requested
by the Contractor. All work shall be
completed as soon as possible and without delay.
b) The Carrier
shall be paid for transfers to and from the workshop at the rate of
"G" (Schedule B) per km or part thereof and the forward and return
journey shall be treated separately. A
means shall be provided by the Contractor at the Contractor's cost to convey
the Carrier to his place of residence or plant whichever is the lesser distance
and return him to the workshop as and when required.
16.5.
a) The Carrier
shall be responsible for minor maintenance as described below:
Greasing
Cleaning
Replacement of spark plugs
Changing oil, air and fuel filters
All maintenance and servicing of hydraulic components
on the mixers is the responsibility of
the contractor as in Clause 15.5.b.
b) Subject to the
provisions of clause 15 hereof, all parts, tools, materials and equipment shall
be provided by the Contractor.
16.6.
a) The Carrier
shall be responsible for the removal of hardened concrete build-up from the
inside of the agitator, a process commonly known as de-dagging.
b) All de-dagging
shall be carried out strictly in accordance with the agreed procedure and in
compliance with relevant Occupational Health and Safety regulations.
c) The limit of
the Carrier's responsibility in order that the de-dagging may take place shall
be limited to the provision of his labour only. All other personnel and/or equipment is to be provided by the
Contractor at the cost of the Contractor.
16.7. The Contractor
shall be responsible for all major maintenance.
16.8. The Carrier is
responsible for the provision of the fuel to run the truck and mixer.
16.9. The Contractor
is responsible for the provision of oil and grease for the mixer
16.10. The Contractor's
agitator is to be parked only in places approved by the Contractor. The Carrier is responsible for any loss or
damage to the Contractor's equipment.
Where the agitator is parked in a place approved by the Contractor, the
limit of the Carrier’s liability will be that covered by the insurance
described in Clause 8.2 herein. Should
the Carrier park the Contractor’s agitator other than described above, then the
Carrier will be liable to pay the Contractor the first $500 for each incidence
of loss or damage.
17. Painting and/or
Sign writing of the Mobile Unit
17.1. The Contractor
shall arrange for periodical painting and/or signwriting of the mobile unit.
17.2. All painting is
to be done expeditiously, weather permitting, in not more than 5 working days
using a quality of paint that is acid resistant and capable of withstanding the
arduous conditions of the industry for a period of not less than 4 years. The painting shall be undertaken by a
recognised truck painting contractor and the standard of finish shall be not
less than that provided by tradesmen specialising in this field.
17.3. All necessary
surface preparations and procedures recommended by the paint manufacturers
shall be strictly adhered to. The
Carrier shall be responsible for the provision of a sound painting surface of
the truck, including but not limited to the rectification of corrosion, prior
to presentation for painting.
17.4. The mobile
units shall be painted every 4 years or a longer or shorter period by mutual
agreement.
17.5. For the
purposes of this clause "mobile unit" shall mean the complete truck
and agitator including all their components and external surfaces without
exception.
17.6. In the event
that the paint finish of the mobile unit is of a standard unacceptable to the
Carrier, the Carrier shall advise the Contractor prior to the vehicle being
removed from the workshop.
17.7. For all times
in excess of five (5) working days or where a vehicle has to be returned for
repainting or painting repairs, the Carrier shall be paid by the Contractor a
rate equivalent to the daily average earnings at the applicable utilisation
rate for each day so detained
18. Union Membership
and Delegates
18.1. A Carrier
appointed as Yard Delegate shall upon notification thereof to the Contractor by
the Branch or Sub-Branch Secretary of the Union, be recognised as the
accredited representative of the Union.
18.2. The appointed
Union Delegate shall be provided with reasonable access to and use of a
telephone free of charge for Union matters, provided the site staff are
consulted.
19. Manning
19.1. A person shall
only become a Carrier after being given final written approval by the
Contractor. Such approval shall be
dependent upon the person's suitability and his standard of efficiency after
the required training period to the satisfaction of the Contractor. Suitability extends to pre-engagement
medicals for prospective Carriers.
19.2. A Carrier when
employing an alternate driver shall engage the driver under terms and
conditions of the Award and shall require the driver to observe the terms of
this agreement in the operation of the vehicle.
19.3. A Carrier shall
not permit any person to operate his vehicle without the prior written approval
of the Contractor.
19.4. A Carrier shall
be the permanent operator of the vehicle except on a period of absence approved
by the Contractor.
19.5. A Carrier
and/or driver shall act in the best interests of the Contractor at all
times. In the event of a dispute
arising in respect of this clause, the procedures in Clause 24 Disputes
Procedures shall be observed.
19.6.
a) A Carrier
shall ensure that the driver of the vehicle holds the appropriate class of
driver's licence as required by the Roads & Traffic Authority.
b) In the event
that the Carrier or his driver has his licence suspended or cancelled, the
Carrier must immediately inform the Contractor in writing of that fact.
20. Uniforms
20.1. A Carrier
and/or his driver shall maintain an acceptable standard of neatness of dress
and appearance.
20.2. Where a uniform
is required to be worn by the Carrier then such uniform shall be supplied free
of charge to the Carrier by the Contractor.
20.3. A satisfactory
quantity of clothing is to be supplied with a minimum of 4 days fresh apparel.
20.4. Clothing issues
to Carriers shall be on a points system per item. From the date of this agreement each Carrier shall be entitled
to receive uniforms totalling eight (8) points per year for a maximum of two
(2) years at which time future issues shall be limited to replacement on a
return of any previously issued item to a maximum of six (6) points per annum.
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Uniform item points are as follows:
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Two shirts (short or long)
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2 points
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Two trousers (short or long)
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2 points
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Four T-shirts
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4 points
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One winter jacket
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4 points
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20.5. New entrants
into the industry shall receive an initial double issue.
20.6. Wet weather and
safety gear, including overalls, are to be supplied as per Clause 29 of the
Award.
20.7. Replacement of
previously issued uniforms and items of safety gear shall be on the basis of
replacement on return of used items.
21. Amenities
All amenities are to comply with the Shops and Factories Act
and to be not less than those enjoyed by an employee under the Award. The appropriate facilities should be
maintained and kept thoroughly clean and hygienic at all times by the
Contractor. Carriers shall conduct
themselves in a tidy and appropriate manner.
22. Fleet Size
The Contractor shall have the absolute discretion to vary
its fleet size in any manner and for any reason subject to the terms of this
agreement.
23. Commitment to
Training
23.1. The parties to
this agreement recognise the mutual benefits to be gained through a greater
commitment to training and, accordingly, each party commits itself to attending
appropriate training programmes in order to increase the competitive
performance of the contractor and its Carriers.
23.2. When training
is undertaken at the request of the Contractor it shall be undertaken at no
cost to the Carrier and shall be limited to twenty four (24) hours per annum
for each Carrier.
23.3. Where a Carrier
is required to attend such training in excess of (24) hours per annum then the
Carrier shall be paid at the rate of "K" (Schedule B) per hour or
part thereof for each additional hour plus the Award penalty rate travelling
time, plus "L" (Schedule B) per km or part thereof that he is
required to travel from his base plant or place of residence whichever is the
lesser to and from the respective location requiring his presence.
23.4. A prospective
Carrier shall spend a minimum of 2 weeks training to operate the mixer, slump,
etc., including a training period of one day in the Contractor's Quality
Control Laboratory under the Contractor's supervision of the Contractor's
testers. This training is at no cost to
the Contractor except for the provision of appropriate personnel and equipment.
24. Disputes
Procedure
24.1. It is
understood and accepted by all parties to this agreement that work shall
continue normally during all negotiations and any necessary proceedings.
24.2. When there is a
disagreement, the Carrier shall attempt to resolve the matter by negotiating
with the Contractor or his representative on site.
24.3. Where the
matter is not resolved, the Yard Carrier Delegate shall attempt to resolve the
matter by negotiation with the Contractor or his representative on site.
24.4. If the matter
remains unresolved officials and/or representatives of the Union may at the
option of the Carrier be party to continued discussions/negotiations with the
relevant representatives of the Contractor.
24.5. In
circumstances where the matter remains unresolved the matter shall be referred
to the Arbitrator for determination, which determination shall be binding upon
the Contractor, the Carrier and the Union.
For the purpose of this clause the Contractor and the
Union shall agree upon a person to be appointed from time to time as
Arbitrator. In the event that
agreement cannot be reached as to the person to be appointed as Arbitrator then
the person to act as Arbitrator for the purpose of this clause shall be a
person nominated by the President on the Institute of Arbitrators. The Arbitrator shall nominate the procedure
to be adopted in respect of any matter referred to him and may, if he desires,
include in that procedure processes of conciliation, mediation and/or
arbitration.
25. Local Rules and
Conditions
25.1. Local rules and
conditions shall continue in force insofar as they do not conflict with the
provisions of this agreement and shall be limited to those contained on a list
mutually agreed by the Contractor and the Carrier.
25.2. The list of
Local Rules And Conditions shall have a fixed term.
26. Occupational
Health and Safety
26.1. The Contractor
shall establish Safety Improvement Teams consistent with it’s Building In
Safety program. Each Safety Improvement team so established may have one (1)
Carrier as a member of that team.
26.2. The Contractor
shall pay each Carrier member of the Safety Improvement Teams for any and all
time such Carrier spends in relation to their membership at the rate of
"K" (Schedule B) per hour.
26.3. Such Carrier
shall be paid promptly through their individual Cartage Account in the payment
period covering the time expended.
26.4. The Contractor
shall pay each Carrier member of the Safety Improvement Teams at the rate of
"K" (Schedule B) per hour or part thereof plus the Award penalty rate
travelling time to a maximum of 1/2 hour each way plus "L" (Schedule
B) per km or part thereof that he is required to travel from his base plant or
place of residence whichever is the lesser to and from the respective location
requiring his presence.
27. Rostering
27.1. The Contractor
undertakes that it shall operate a plant roster to ensure that all Carriers
shall be exposed to the full plant market and shall have the opportunity to
cart metres which are as close as commercially practicable to the average fleet
utilisation metreage applicable during the relevant period to a particular plant,
provided that the level of Customer Service set by the Contractor is achieved.
27.2. The Contractor
shall not roster-off a Carrier simply because he is earning in excess of the
average utilisation metreage applicable to a plant during the relevant period.
27.3. Those rosters
shall include:
a) Daily start
cyclic roster.
b) Roster-off
roster (where there are vehicles surplus to customer requirements, as
determined by the Contractor).
c) Daily transfer
roster.
d) Periodic
transfer roster.
28. Concrete Cartage
in Alternative Vehicles
Where concrete is transported other than in an agitator then
the cartage rate shall be negotiated between the Contractor and the Union at
the relevant time provided that the rate so negotiated is competitive with the
prevailing market rate for such cartage.
29. Plant Stored
Carrier's Equipment
The Contractor shall provide sufficient space where possible
for the safe storage of equipment that is reasonably necessary to assist in the
efficient and effective running of the Carrier's cartage business. The Contractor is not liable for loss or
damage to Carrier’s equipment so stored.
30. Termination of
Engagement
30.1. The Contractor
may terminate a Carrier's Contract of Carriage without compensation only in the
event of theft or serious and wilful misconduct by the respective Carrier
proven in a court of law or acknowledged and accepted by the Carrier.
30.2. If the
Contractor wishes to terminate a Carrier's Contract of Carriage other than
pursuant to the provisions of Clause 30.1 hereof, the Contractor shall:
a) Provide the
Carrier with a minimum of thirteen (13) weeks written notice of termination of
the Carrier's Contract of Carriage and if the Contractor provides shorter
notice than the said thirteen (13) weeks, then in addition to the compensation
payable pursuant to Clause 31 the Contractor shall pay to such Carrier an
amount equal to 20 x "J"(Schedule B) per week for the period less
than such thirteen (13) weeks of notice calculated on a reducing daily basis;
and
Pay to the Carrier compensation equal to and calculated
in accordance with the provisions of Clause 31 hereof.
31. Compensation Upon
Termination of Contracts of Carriage
31.1. Compensation
Payable to Country Carriers
The amount of compensation payable by the Contractor to
a Carrier upon termination of the Carriers Contract of Carriage shall in
addition to any amount payable under clause 30.2(a) be:
a) If the
Contract of Carriage is terminated within the first two (2 ) years of the
commencement of this agreement, an amount calculated in accordance with the
formula:
$80,000 x M/N, where:
M = the Consumer Price Index (Sydney All Group Index)
published by the Bureau of Statistics
applicable to the Quarter ending immediately prior to
the expiration if the notice of termination; and
N = the Consumer Price Index (Sydney All Group Index)
published by the Bureau of Statistics
applicable to the Quarter ending 30 September 1994.
b) If the
Contract of Carriage is terminated on a date two (2 ) years after the commencement
of this agreement, an amount calculated in accordance with the formula:
$64,000 x P / (Q - 24) x M/N, where:
M & N are as defined under Clause 31.1(a); and
P = number of whole months remaining between the date
of termination and the expiry date of
the Contract of Carriage allowing for any extensions of provided for under
clause 3.1(a) had notice of termination not been given; and
Q = total number of months of the term plus any
extensions of the Contract of Carriage provided for under clause 3.1(a).
[Example: A Contract of Carriage for 2 years plus a 6
year extension commenced on the 1st January 1996 and notice is later given of
termination to take place on 17th November 1999, and say the relevant CPI
"M" value is 121.0 and the CPI "N" value is 109.0 then the
amount of compensation payable would be:
$64,000 x 49 / (96 - 24) x 121.0/109.0 = $48,350 ]
32. Assignment of
Contract of Carriage
32.1. If at any time
or times during the term of the Contract of Carriage, the Carrier wishes to
sell and assign the balance of the term of the contract, the Contractor shall
have the right to purchase the same upon the following conditions:
a) The Carrier
shall first give notice in writing to the Contractor of the Carrier's desire to
sell the balance of the term of the Contract of Carriage for a price calculated
in accordance with the applicable formula set out in Clause 31 of this
agreement.
b) The
Contractor, if it desires to purchase the balance of the term of the contract,
shall within thirty (30) days after receipt of such notice, cause to be
delivered to the Carrier a written notice of acceptance of the offer. A cheque made payable to the Carrier in an
amount calculated as set out in Clause 31 shall be delivered to the Carrier on
the day of termination;
c) If the
Contractor does not, within the said period of thirty (30) days, accept the
Carrier's offer in the aforesaid manner, then the Carrier shall be at liberty
to sell and assign the balance of the term of the contract to any other person
approved by the Contractor and who is capable of carrying on the business of
the Carrier pursuant to this agreement, such approval not to be unreasonably
withheld.
32.2. The Contractor
covenants with the Carrier not to serve a notice of termination of the
Carrier's Contract of Carriage (except in the circumstances of Clause 30.1 -
theft or serious and wilful misconduct) following service upon the Contractor
of the notice of the Carrier's desire to sell the balance of the term of the
Contract pursuant to Clause 32.1(a) for a period of at least six (6) months
following the date of service upon it of the said notice of desire to sell.
32.3. For the purpose
of this clause, an assignment shall include an assignment or transfer of a
controlling interest in a company.
33. Environment
Protection and Pollution Control
33.1. Operational
Procedures
The Contractor shall provide the Carrier with a written
procedure relating to the delivery of concrete. It is the Contractor's responsibility to ensure that this
procedure complies with all requirements of the relevant Act with respect to
environment protection and pollution control.
It is the Carrier's responsibility to comply with the Contractor's
reasonable written procedures.
33.2. Contractor's/Carrier's
Liability
The Contractor shall indemnify the Carrier against all
claims for cost, damages and/or legal expenses and any further liabilities that
may arise whilst performing his duties as the Contractor's Carrier in
accordance with the Contractor's operational procedures, provided that such
claims for cost, damages and/or legal expenses and any further liabilities that
may arise are not as a direct result of the Carrier’s negligence or misconduct.