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Metromix Pty Limted Mini Concrete Contract Determination
  
Date06/22/2018
Volume383
Part1
Page No.240
DescriptionCD - Contract Determination
Publication No.C8788
CategoryContract Determination
Award Code 1770  
Date Posted06/22/2018

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(1770)

SERIAL C8788

 

Metromix Pty LimIted Mini Concrete Contract Determination

 

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

 

Application by Metromix Pty Ltd.

 

(Case No. 10996 of 2017)

 

Before Commissioner Newall

6 December 2017

 

CONTRACT DETERMINATION

 

Clause No.         Subject Matter

 

1.         AREA INCIDENCE AND DURATION

1.1       Application

1.2       Stand Alone

1.3       Commencement and Nominal Term

 

2.         CARTAGE WORK AND RATES

2.1       General

2.2       Payment

2.3       GST

2.4       Method of Payment

2.5       Account Discrepancies - Potential Underpayment

2.6       Account Discrepancies - Potential Overpayment

2.7       Review of Rates

 

3.         SAFETY NET

3.1       Entitlement

3.2       Calculation

3.3       Working Week for Purpose of Calculation  9

 

4.         SURCHARGES

4.1       Standby Time outside Normal Trading Hours

4.2       Standby Time within Normal Trading Hours

4.3       Delivery within Yard

4.4       Living Away from Home Allowance

4.5       Road and Bridge Tolls

4.6       Unloaded Kilometres

4.7       Multiple Discharge Points

4.8       Diverted Loads

4.9       Returned and Dumped Concrete

4.10    Delivery outside Normal Hours

4.11    Call Back

4.12    Waiting Time

4.13    Transport Materials other than Concrete

4.14    Night Shift, Sundays and Public Holidays

 

5.         PRIME MOVER AND AGITATOR

5.1       Supply and Suitability

5.2       Supply and Suitability of New Prime Mover and New Agitator

5.3       Metromix Discretion to Allow Extension of Time

5.4       Agitator Repair or Removal

5.5       Registration

5.6       Running Expenses

5.7       Maintenance and Repair

5.8       Cease using Prime Mover

5.9       Painting and Logo

5.10    Mass Management

5.11    Maximum Age for a Prime Mover

 

6.         COMMUNICATION EQUIPMENT

6.1       Provision and Operation

6.2       Payment

6.3       Communication Equipment - Custody

6.4       Communication Equipment - Damage or Loss

6.5       Cease using Communication Equipment

6.6       Return of Communication Equipment

 

7.         NOMINATED DRIVER

7.1       Nominated Plant

7.2       No One else to Drive Vehicle

7.3       Substitute Driver

7.4       Procurement of Consent

7.5       Valid Driving License and Permits

7.6       Change of Address

7.7       Medicals and Fitness

7.8       Compliance with Employment Law

7.9       Notification of Absence

7.10    Leave Entitlements

7.11    Leave

 

8.         USE OF THE VEHICLE

8.1       Operating Condition

8.2       Driving of Vehicle

8.3       Cleaning of Vehicle

8.4       Fines

8.5       Salvage Rights

8.6       Inspections and Tests

8.7       Road Worthiness and Fit for Purpose

8.8       Tare Weight

 

9.         ROSTERING

9.1       Rosters

9.2       Own Fleet etc.

9.3       Notification for Next Day

9.4       Variation and Compliance and Consultation

 

10.       VEHICLE TRANSFERS

10.1    Periodic Transfer

10.2    Daily Transfer

10.3    Voluntary Productivity Transfer

 

11.       LOADING AND DELIVERY OF CONCRETE

11.1    Plant

11.2    Metromix to Nominate Load

11.3    Loading Order

11.4    No Loading

11.5    No Alteration to Docket

11.6    Slump

11.7    Shortest Practicable Route

11.8    Change of Ingredients

11.9    Rejection of Load

11.10  Additives

11.11  Mixing and Transit

11.12  Job Site Entry

11.13  Unloading

11.14  Unsafe Unloading

11.15  Signatures for Delivery

11.16  Bogged Vehicles

11.17  Return 

11.18  Cash on Delivery

11.19  Damage On Site

 

12.       SITE CLEANING

12.1    Contract Carrier Obligations

12.2    Metromix’s Obligation

 

13.       SUPERVISION

13.1    The Contract Carrier must Supervise its Personnel

 

14.       TRAINING

14.1    Cost and Amount

14.2    Driver Training

 

15.       CONTRACTOR MANAGEMENT SYSTEM

15.1    Provision of Documents and Inductions

 

16.       CONTRACT CARRIER'S SPARE TYRES

16.1    Storage

16.2    No Liability

 

17.       WORKPLACE HEALTH AND SAFETY

17.1    Safety Meetings

17.2    Safety Inductions

 

18.       UNIFORMS AND PERSONAL PROTECTIVE EQUIPMENT

18.1    Uniform Supply

18.2    Personal Protective Equipment

18.3    Replacement

 

19.       EMERGENCIES AND INCIDENTS

19.1    Contract Carrier to follow Metromix Procedures

19.2    Reporting Incidents

19.3    Investigation

19.4    Reporting Defects, Loss or Theft

 

20.       INSURANCE, WARRANTY AND INDEMNITY

20.1    Vehicle, Workers Compensation

20.2    Insurance Policies

20.3    Premiums

20.4    Not to Prejudice Insurance

20.5    Payment of Excess

20.6    No Guarantee

20.7    Implied Warranties

20.8    Indemnity

20.9    Not Liable

 

21.       CONTRACTOR FLEET SIZE

21.1    Right to Increase Contractor Numbers

21.2    Right to Decrease Contractor Numbers

 

22.       USE OF OTHER VEHICLES

22.1    Right

22.2    No Improper Conduct

 

23.       DISPUTES Procedure

23.1    Application of Procedure

23.2    Appointment of Representative

23.3    Procedure

23.4    Notification to Commission

23.5    Continue to Perform Cartage Work

 

24.       Additional terms

24.1    Contract Carrier’s who commenced before 1 October 2017

24.2    New Contract Carriers

24.3    New Contract Carriers - Plant Embargo

24.4    New Contract Carriers - No ‘Gazumping

 

25.       NOTICES

25.1    Delivery

25.2    Receipt

25.3    Proper Address

 

26.       Consultation

26.1    Committee

26.2    Meeting

26.3    Information

26.4    Payment

26.5    Annual Verification

 

27.       Delegates

27.1    Appointment

27.2    Opportunity to Meet

27.3    Use of Notice Board

27.4    Release of Delegates

 

28.       DICTIONARY

 

Schedule 1 - Cartage rates

Schedule 2 - Utilisation Reviews

Schedule 3 - Surcharges

Schedule 4 - Insurances

Schedule 5 - 1.0m3 Mover Specification

Schedule 6 - 2.0m3 Prime Mover Specification

Schedule 7 - 3.0m3 Prime Mover Specification

Schedule 8 - Rise and Fall

Schedule 9 - Forms

Schedule 10 - New Contract Carriers

Schedule 11 - Contract Carriers and their Permitted Assignees who commenced before 1 October 2017

 

Annexure A - Assignment

Annexure B - Deed of Assignment

Annexure C - Termination Payment

Schedule 12 - Embargo Plant List

 

1.  Area Incidence and Duration

 

1.1       Application

 

This Contract Determination will operate with respect to contracts of carriage between Metromix and its Contract Carriers operating a Mini Vehicle engaged at Concrete Plants in New South Wales.

 

1.2       Stand Alone

 

This Contract Determination applies to the exclusion of any other Contract Determination whether made before or after this Contract Determination is made.

 

1.3       Commencement and Nominal Term

 

This Contract Determination:

 

(a)        rescinds and replaces the Transport Industry - Metromix Concrete Haulage Contract Determination published 8 April 2005 (349 I.G. 1025); and

 

(b)        operates in accordance with its terms from 1 January 2018 and has a nominal term of three (3) years.

 

Notation: This Contract Determination has been negotiated to be read alongside a Mini Cartage Contract.

 

Notation: If required by the Union, the parties to this Contract Determination shall meet every 6 months during the nominal term to discuss any issues associated with the implementation of this Contract Determination.

 

Should any issue arise that requires the assistance of the NSW Industrial Relations Commission, either party may apply to the NSW Industrial Relations Commission to as they see fit.

 

2.  Cartage Work and Rates

 

2.1       General

 

The Contract Carrier shall perform the Cartage Work and do everything connected with it:

 

(a)        in accordance with this Contract Determination;

 

(b)        with due care and skill and in a proper, co-operative and professional manner;

 

(c)        safely, and in accordance with Metromix's safety requirements;

 

(d)        in accordance with the day to day operational directions given by Metromix;

 

(e)        in accordance with any direction, policy, procedure or specifications provided by Metromix;

 

(f)        using best efforts to promote Metromix's business;

 

(g)        in good faith and without jeopardising or damaging Metromix's business; and

 

(h)        in compliance with all relevant laws.

 

2.2       Payment

 

Subject to this Contract Determination, Metromix must:

 

(a)        pay the Contract Carrier by the 10th day of the next month  for the Cartage Work performed in the month in accordance with the Cartage Rates set out in Schedule 1 and the surcharges set out in Schedule 3; and 

 

(b)        provide the Contract Carrier with a statement itemising the payments made to the Contract Carrier.

 

2.3       GST

 

(a)        Metromix will issue recipient created tax invoices in respect of the Cartage Work. 

 

(b)        The Contract Carrier must not issue Metromix with tax invoices in respect of the Cartage Work.

 

(c)        The Contract Carrier must be registered for GST and must notify Metromix of the date of the effect of any cancellation of GST registration.

 

(d)        All amounts referred to in this Contract Determination are exclusive of GST unless expressly stated otherwise.

 

2.4       Method of Payment

 

Metromix will pay the Contract Carrier by electronic funds transfer to the Contract Carrier’s nominated account from a recognised financial institution.

 

2.5       Account Discrepancies - Potential Underpayment

 

(a)        Where the Contract Carrier forms the view that the calculation of payments paid to the Contract Carrier for an Accounting Period contains an error, the Contract Carrier must advise Metromix in accordance with clause 2.5(b) of the nature of the error and the value of the error within thirty (30) days of receipt of the payment. 

 

(b)        The Contract Carrier must submit details of the alleged error on a Cartage Adjustment Request Form (CAR).

 

(c)        If the alleged error relates to missing payments such as but not limited to, Returned Concrete and Waiting Time, the Contract Carrier must provide a copy of any relevant delivery docket and the relevant docket(s) must be properly signed and completed.

 

(d)        Metromix and the Contract Carrier must use their best endeavours to resolve the issue within thirty (30) days from the date of notification of the alleged error.

 

(e)        If Metromix and the Contract Carrier agree that an additional payment is due to the Contract Carrier, that payment will be made in the next Accounting Period immediately following the date on which the error is rectified.

 

(f)        Despite clause 2.5(e) if the additional payment is in excess of $250.00, Metromix will endeavour to pay the Contract Carrier within five (5) working days from the date Metromix and the Contract Carrier agree that the additional payment is due.

 

2.6       Account Discrepancies - Potential Overpayment

 

(a)        Where Metromix reasonably determines that the Contract Carrier has been overpaid, the amount of overpayment will be deducted from the next payment due for the Accounting Period to the Contract Carrier.

 

(b)        Where the Contract Carrier’s Mini Cartage Contract has been terminated, the Contract Carrier must reimburse Metromix within thirty (30) days of the date of notification of the overpayment.

 

2.7       Review of Rates

 

Metromix must review the Cartage Rates and Surcharges in accordance with Schedule 2 and Schedule 8.

 

3.  Safety Net

 

3.1       Entitlement

 

Should a Contract Carrier’s earnings be less than the Annual Earnings Safety Net payment at the completion of the last Quarter of the calendar year, Metromix must pay the Contract Carrier the difference between the Contract Carriers actual earnings and the Annual Earnings Safety Net.

 

3.2       Calculation

 

The Annual Earnings Safety Net payment is specified in Schedule 1 and is subject to variation in accordance with Schedule 2 and 8.

 

3.3       Working Week for Purpose of Calculation

 

(a)        The normal working week for the purpose of calculation of Annual Earnings Safety Net payment is six (6) consecutive days, Monday to Saturday inclusive, to a total of 268 days per annum. Any Annual Earnings Safety Net payment payable to the Contract Carrier will be reduced by 268ths per day for each day the Contract Carrier is deemed to be unavailable. The Contract Carrier will be deemed to be unavailable if:

 

(i)         the Contract Carrier fails to provide services to Metromix as obliged by this Contract Determination;

 

(ii)        the Contract Carrier is in persistent breach of an obligation under this Contract Determination which the Contract Carrier has previously been notified of as a breach by Metromix; or

 

(iii)       the Contract Carrier is not having its Vehicle loaded with Concrete by Metromix for any of the reasons referred to in any of clauses 5.8, 8.3(d), 11.4 or 15.1.

 

(b)        Unavailability will not arise if:

 

(i)         the Contract Carrier has previously been notified by Metromix that the Contract Carrier is not required to perform Cartage Work on the relevant day;

 

(ii)        Force Majeure has occurred; or

 

(iii)       The Nominated Driver is otherwise on a period of Authorised Absence.

 

4.  Surcharges

 

4.1       Standby Time outside Normal Trading Hours

 

(a)        Subject to clause 4.1(b), the Contract Carrier is entitled to a standby time payment at the rate specified in Schedule 3 where Metromix requests the Contract Carrier to remain at a Plant for the purpose of taking a delivery to a customer at a time outside Metromix’s Normal Trading Hours. The Contract Carrier will be entitled to the standby time payment whether or not the delivery is ultimately required.

 

(b)        The Contract Carrier will not be entitled to a standby time payment if the Contract Carrier is required to wait for less than one (1) hour outside Metromix's Normal Trading Hours.

 

4.2       Standby Time within Normal Trading Hours

 

(a)        Subject to clause 4.2(b), the Contract Carrier is entitled to a standby time payment at the rate specified in Schedule 3.

 

(b)        The Contract Carrier will not be entitled to a standby time payment if the Contract Carrier is required to wait for less than one (1) hour.

 

4.3       Delivery within Yard

 

Where a Contract Carrier is required to cart Concrete or materials other than Concrete within the confines of a Plant owned and/or operated by Metromix then the Contract Carrier must be paid the Cartage Rate specified in Schedule 1 for the load size, calculated with a maximum distance of three (3) kilometres.

 

4.4       Living Away from Home Allowance

 

Where a Contract Carrier is required by Metromix to work from a location, which precludes the Driver from returning to his normal place of residence:

 

(a)        Metromix will pay to the Contract Carrier, the Driver's reasonable costs for accommodation, breakfast and dinner as nominated by Metromix for each night required; and

 

(b)        the period shall be no more than one (1) week or such longer period as may be agreed.

 

4.5       Road and Bridge Tolls

 

(a)        Where payment of a road or bridge toll is required for either or both the outward and return journeys, Metromix will issue the Contract Carrier with an electronic tag or equivalent cash money or a toll card.

 

(b)        Any electronic tag or equivalent cash money or a toll card issued by Metromix to the Contract Carrier, remains the property of Metromix and must only be used by the Contract Carrier whilst performing the Cartage work.

 

(c)        Any electronic tag or equivalent cash money or a toll card issued must be returned to Metromix on termination or expiration of the Contract Carrier’s Mini Cartage Contract (or earlier upon request by Metromix).

 

4.6       Unloaded Kilometres

 

(a)        Unloaded kilometres travelled by the Contract Carrier's Vehicle at Metromix’s request to relocate from the one Plant to another Plant to load will attract a payment at the rate specified in Schedule 3. The forward and return journeys are to be considered as separate journeys.

 

(b)        In the case of a journey where a load has been dispatched to a customer’s site and the Contract Carrier is directed to return to another Plant to load, the Contract Carrier will only be entitled to a payment at the rate specified in Schedule 3 for the kilometres in excess of the kilometres that are already paid for the delivery of the Concrete to the original customer’s site.

 

4.7       Multiple Discharge Points

 

(a)        Should the Contract Carrier make multiple discharge points for the same customer the Contract Carrier will be paid a Cartage Rate for the total distance travelled from the Plant where loaded to the final discharge point for that customer.

 

(b)        Should the Contract Carrier make deliveries to multiple customers from one (1) load of Concrete the Contract Carrier will be issued a separated delivery docket for each customer.

 

4.8       Diverted Loads

 

(a)        Where a load is diverted on route to a customer’s site, the Contract Carrier will be paid a Cartage Rate covering the total distance travelled from initial departure from the Plant where loaded, to the final delivery point.

 

(b)        Where a load is diverted by having the Vehicle return to a Plant before being dispatched to another delivery site, the Contract Carrier will be paid a Cartage Rate covering the total distance travelled from initial departure from the Plant where loaded, to the final delivery point.

 

(c)        Where a load is diverted on route to an external dump site the Contract Carrier will be paid a Cartage Rate covering the total distance from the initial departure from the Plant where loaded to the dump site.

 

4.9       Returned and Dumped Concrete

 

(a)        All Returned Concrete remains the property of Metromix. The Contract Carrier is to contact Dispatch for instructions as to where Returned Concrete is to be taken prior to or immediately after leaving a customer’s site.

 

(b)        Where Returned Concrete less than one half (0.5) cubic meter is directed to another Plant or customer’s site or an external dump site, the Contract Carrier will be paid the Kilometre Running Rate for the returned quantity designated on the delivery docket for the distance travelled in excess of the kilometres already paid for the delivery.

 

(c)        Where Returned Concrete of one half (0.5) cubic meter or more is directed to another Plant or customer’s site or an external dump site by Metromix the Contract Carrier will be paid the Kilometre Running Rate for the returned quantity designated on the delivery docket for the distance travelled in addition to the distance already paid for the delivery.

 

(d)        Where Returned Concrete of one half (0.5) cubic meter or more is returned to the plant at which the Concrete was batched the Contract Carrier will be paid the Kilometre Running Rate for the returned quantity designated on the delivery docket for the kilometres already paid for the delivery.

 

(e)        No payment will be made to the Contract Carrier when Returned Concrete is dumped within one (1) kilometre of the delivery site at which the Concrete became Returned Concrete or Returned Concrete less than one half (0.5) cubic meter is returned to the Plant at which the Concrete was batched.

 

(f)        If the Contract Carrier is instructed by Metromix to return to a Plant with Returned Concrete and then after returning to the Plant the Contract Carrier is directed by Metromix to an external dump site the Contract Carrier will be paid the Kilometre Running Rate for the returned quantity designated on the delivery docket for the distance travelled in addition to the distance already paid for the delivery.

 

(g)        Metromix will meet all dump costs for Concrete, which is dumped at Metromix's direction.

 

(h)        For the purpose of this clause 4.9(b),(c)(d) and (f) a minimum quantity of one (1) cubic meter is payable.

 

(i)         The Contract Carrier must be paid the Waiting Time rate in Schedule 3 for time spent onsite at an external dump site in excess of the time that must be allowed for the delivery of that load. Time spent travelling to and from an external dump site must not be counted as time spent onsite.

 

(j)         The Contract Carrier must ensure that all workings for Returned Concrete:

 

(i)         are completed in full in the appropriate section of the delivery docket; and

 

(ii)        appear on all copies.

 

(k)        Where a customer’s signature and printed name is not obtainable, the Contract Carrier must contact Dispatch prior to or immediately after leaving the customer’s site to obtain a control number and this must be written in the appropriate section of the docket and appear on all copies.

 

(l)         Despite this clause 4.9, a Contract Carrier shall not be paid for Returned Concrete if a Contract Carrier fails to adhere to clause 4.9(j) or 4.9(k) or clause 11.15(a) to 11.15(e).

 

4.10     Delivery outside Normal Hours

 

Where a load is ticketed outside Metromix’s Normal Trading Hours then the Contract Carrier will be entitled to the relevant Surcharge, in addition to the normal Cartage Rate payable to the Contract Carrier, as specified in Schedule 3 which must be paid per load:

 

(a)        Surcharge 2

 

(i)         between 5pm - 6am Monday - Friday.

 

(b)        Surcharge 3

 

(i)         between 1pm Saturday through to 6am Monday; and

 

(ii)        Night Shift.

 

(c)        Surcharge 4

 

(i)         Public Holidays.

 

4.11     Call Back

 

(a)        A Contract Carrier having finished performing Cartage Work and having left the Plant and then called back to perform Cartage Work outside Metromix’s Normal Trading Hours is entitled to a call back fee as specified in Schedule 3.

 

(b)        The call back fee surcharge shall not apply if the rostered work is cancelled no later than 1.00pm on the day (or the day prior) it is to commence.

 

4.12     Waiting Time

 

(a)        Subject to this clause, Metromix shall pay a Contract Carrier Waiting Time in accordance with Schedule 3 for time spent on-site to unload (calculated from the time of arrival on-site to the time the Vehicle finishes discharging the entire load or is released by the customer) in excess of the period calculated as 7 minutes per cubic meter or part thereof or a minimum of 20 minutes whichever is the greater.

 

(b)        The Contract Carrier must ensure that all workings for Waiting Time:

 

(i)         are completed in full in the appropriate section of the delivery docket; and

 

(ii)        appear on all copies.

 

(c)        Where a customer’s signature and printed name is not obtainable the Contract Carrier must contact Dispatch prior to or immediately after leaving the customer’s site to obtain a control number and this must be written in the appropriate section of the docket and appear on all copies.

 

(d)        Despite clause 4.12(a), a Contract Carrier shall not be paid for Waiting Time if a Contract Carrier fails to adhere to clause 4.12(b) or 4.12(c) or clause 11.15(a) to 11.15(e).

 

(e)        All Waiting Time charged by the Contract Carrier will be subject to verification by Metromix via the use of the GPS status data or similar technology transmitted by the Contract Carrier’s Vehicle. Should any discrepancies arise the Contract Carrier will only be entitled to a Waiting Time payment for excess time onsite in accordance with clause 4.12(a) as verified by GPS status data or similar technology.

 

4.13     Transport Materials Other Than Concrete

 

Where the Contract Carrier’s Vehicle is required to cart materials other than Concrete the Cartage Rates as outlined in Schedule 1 will apply. The equivalent Concrete volumes will be converted by using the following conversion rates:

 

(a)        Aggregate - 1.5 tonne = 1m3 Concrete

 

(b)        Sand - 1.7 tonne = 1m3 Concrete

 

(c)        Slurry/Water - 1000 litres = 1m3 Concrete

 

4.14     Night Shift, Sundays and Public Holidays

 

(a)        Subject to clause 4.14(b) when a Contract Carrier is rostered to work a Night Shift, Sunday or Public Holiday the Contract Carrier must be paid no less than the Night Shift, Sunday and Public Holiday Minimum Surcharge in Schedule 3 for the Night Shift, Sunday or Public Holiday irrespective of the Cartage Work performed.

 

(b)        The Night Shift, Sunday and Public Holiday Minimum Surcharge will not apply if:

 

(i)         the Night, Sunday or Public Holiday Shift is cancelled the day prior to its commencement; or

 

(ii)        the Night Shift is cancelled by 1:00pm on the day it is to commence.

 

(c)        A Contract Carrier shall only receive one Minimum Surcharge for any continuous period of work or shift.

 

5.  Prime Mover and Agitator

 

5.1       Supply and Suitability

 

Subject to clause 5.2:

 

(a)        the Contract Carrier must supply the Prime Mover which must be approved in writing by Metromix; and

 

(b)        Metromix will continue to provide a serviceable Agitator for use with the Prime Mover.

 

5.2       Supply and Suitability of New Prime Mover and New Agitator

 

(a)        Subject to clause 5.2(b) , the Contract Carrier must:

 

(i)         (if their Prime Mover is more than 10 years of age) supply a New Prime Mover no later than 18 months after the commencement of this Contract Determination; or

 

(ii)        (if their Prime Mover is 10 years of age or less) supply a New Prime Mover no later than 18 months after their existing Prime Mover reaches 10 years of age; and

 

(iii)       the age of a Prime Mover must be evidenced from the manufacturers plate.

 

(b)        Any New Prime Mover must:

 

(i)         meet the Prime Mover specifications; and

 

(ii)        be of the same configuration as the Contract Carriers current vehicle or such configuration as mutually agreed by both parties;

 

(iii)       subject to clause 5.2(b)(ii) any Contract Carrier who currently has a 1.0m3 Prime Mover must upgrade to a minimum 2.0m3 Prime Mover or such configuration as mutually agreed by both parties;

 

(iv)      be accompanied with a weighbridge certificate (obtained at the Contract Carrier’s own expense); and

 

(v)       be approved in writing by Metromix.

 

5.3       Metromix Discretion to Allow Extension of Time

 

Metromix (acting reasonably) may allow a Contract Carrier a period in excess of 18 months to provide a New Prime Mover if there are exceptional unforeseen circumstances.

 

5.4       Agitator Repair or Removal

 

(a)        Metromix must pay the Contract Carrier:

 

(i)         at the rate specified in Schedule 3 for any Unloaded Kilometers travelled to a location (as directed by Metromix) for the installation, repair or removal of the Agitator;

 

(ii)        a standby payment at the rate specified in Schedule 3 for time spent in excess of 1 hour whilst awaiting installation, repair or removal of the Agitator; and

 

(iii)       a Demurrage payment at the rate specified in Schedule 3 should any repairs, installation or removal exceed 5.5 working days; and

 

(b)        Metromix must:

 

(i)         pay for any expenses associated with fitting or removing the Agitator to the Contract Carriers Prime Mover; and

 

(ii)        at its own expense, mechanically maintain and repair the Agitator; and

 

(iii)       at its own expense, de-dag the Agitator drum once a year.

 

(c)        The Contract Carrier must:

 

(i)         assume full responsibility for the safe custody of the Agitator; and

 

(ii)        not add to, alter or modify the Agitator; and

 

(iii)       grease and lubricate the Agitator (grease and lubricants must be supplied by Metromix); and

 

(iv)      thoroughly wash out the Agitator drum daily or as directed by Metromix; and

 

(v)       with exception to clause 5.4 (b)(iii), pay for any additional de-dagging ( except for extenuating circumstances); and

 

(vi)      pay for any installation, removal or repair to the Agitator because of damage that the Contract Carrier is at fault.

 

5.5       Registration

 

The Contract Carrier must at their own expense register the Contract Carrier’s Prime Mover.

 

5.6       Running Expenses

 

The Contract Carrier must pay all of the running costs associated with the Contract Carrier’s Prime Mover.

 

5.7       Maintenance and Repair

 

The Contract Carrier must mechanically maintain and repair the Contract Carrier’s Prime Mover at its own expense and ensure the Vehicle is returned to service to perform Cartage Work as soon as practicable.

 

5.8       Cease using Prime Mover

 

The Contract Carrier must stop using the Contract Carrier’s Prime Mover (or any part of it) and/or Agitator (or any part of it) if Metromix so directs because in Metromix's opinion that is appropriate pending the carrying out of any repairs, maintenance, inspection or testing.

 

5.9       Painting and Logo

 

(a)        The Contract Carrier must paint the Contract Carrier’s New Prime Mover in colours approved by Metromix in a quality of paint to Metromix's specification.

 

(b)        The Contract Carrier must reasonably maintain the colours and paints as specified by Metromix in a satisfactory condition.

 

(c)        Subject to the Contract Carrier complying with clause 5.9 (b), if Metromix requires the Prime Mover and/or Agitator to be painted, Metromix will:

 

(i)         undertake the painting at its expense;

 

(ii)        if Metromix determines to remove the Agitator for repairs or replacement, Metromix must inspect the Prime Mover chassis rails and if Metromix deems it necessary sandblast and paint the Contract Carriers chassis rails at Metromix’s expense; and

 

(iii)       pay the Contract Carrier a Demurrage payment at the rate specified in Schedule 3 for the period during which the Prime Mover is unavailable to perform the Cartage Work unless Metromix provide the Contract Carrier a reasonable replacement Prime Mover at no cost.

 

(d)        The Contract Carrier shall properly maintain Metromix's mud flaps and logos on the Contract Carrier’s Prime Mover.

 

(e)        Metromix must provide, install and remove, at its expense, all mud flaps and logos.

 

5.10     Mass Management

 

(a)        Subject to clause 5.10(c), the Contract Carrier must meet any relevant regulatory or maintenance requirements to achieve the maximum GVM legally allowed for their Vehicle.

 

(b)        Subject to clause 5.10(c) and 5.10(d), the Contract Carrier must do all things required and necessary to be accredited and remain accredited under Metromix’s NHVAS mass management scheme (or any scheme replacing this).

 

(c)        Metromix may alter the requirements set out in clause 5.10 (a) and/or (b) above by direction to the Contract Carrier if any State or national guideline, regulation or law change and affect the GVM or carrying capacity of the Contract Carrier’s Vehicle.

 

(d)        Metromix, at its expense will register the Contract Carrier’s Vehicle under Metromix’s NHVAS mass management scheme.

 

5.11     Maximum Age for A Prime Mover

 

Despite anything else in this Contract Determination, at any time 18 months after the commencement of this Contract Determination, or such longer period as is determined in accordance with clause 5.3 above, a Contract Carrier’s Prime Mover must not be older than 12 years of age (evidenced from the manufacturer's plate).

 

6.  Communication Equipment

 

6.1       Provision and Operation

 

Metromix must supply, install and maintain in the Contract Carrier’s Prime Mover the Communication Equipment required by Metromix and the Contract Carrier must operate it efficiently.

 

6.2       Payment

 

Unless the installation, repair or removal arises because of damage or theft that the Contract Carrier is at fault for, Metromix must pay the Contract Carrier:

 

(a)        at the rate specified in Schedule 3 for any Unloaded Kilometres travelled to a location (as directed by Metromix) for the installation, repair or removal of the Communication Equipment; and

 

(b)        at the rate specified in Schedule 3 for standby time for time spent in excess of 1 hour whilst awaiting installation, repair or removal of the Communication Equipment.

 

6.3       Communication Equipment - Custody

 

The Contract Carrier has full responsibility for the safe custody of the Communication Equipment.  The Contract Carrier must:

 

(a)        not add to, alter, modify, or disconnect the Communication Equipment; and

 

(b)        not, without the prior written permission of Metromix, use the Communication Equipment for anything but the Cartage Work.

 

6.4       Communication Equipment - Damage or Loss

 

Except in circumstances where the Contract Carrier’s Vehicle is at a Metromix Plant or a location approved by Metromix, where the Communication Equipment is damaged or lost and the Contract Carrier is at fault for the damage or loss, the Contract Carrier must:

 

(a)        repair at the Contract Carrier’s cost any damage to the Communication Equipment; and

 

(b)        replace at the Contract Carrier’s cost lost Communication Equipment.

 

6.5       Cease Using Communication Equipment

 

The Contract Carrier must stop using the Communication Equipment (or any part of it) if Metromix so directs because in Metromix's opinion that is appropriate pending the carrying out of any repairs, maintenance, inspection or testing.

 

6.6       Return of Communication Equipment

 

Immediately upon the ending or termination of a Contract Carrier’s Mini Cartage Contract they must return the Communication Equipment to Metromix in good order and condition, fair wear and tear only excepted and Metromix will make good any damage caused by the instillation or removal of the Communication Equipment.

 

7.  Nominated Driver

 

7.1       Nominated Plant

 

(a)        A Contract Carrier shall normally work from a Nominated Plant provided that Metromix may change a Contract Carrier’s Nominated Plant to meet its business needs by giving them 14 days notice of the change having:

 

(i)         first attempted to meet those needs on a voluntary basis; and then

 

(ii)        changed the Nominated Plant of all other Contract Carrier’s (in a Contract Carrier’s Nominated Plant and with the same Configuration Vehicle) who have been at that Nominated Plant for a shorter period of time.

 

7.2       No One Else to Drive Vehicle

 

Except as expressly provided in this Contract Determination the Contract Carrier must:

 

(a)        only use a Nominated Driver who is approved (such approval not to be unreasonably withheld) by Metromix having satisfactorily undertaken any pre-engagement assessment to determine their suitability to be a Nominated Driver; and

 

(b)        make sure that no one except the Nominated Driver drives the Contract Carrier’s Vehicle for the Cartage Work or operates the Agitator.

 

7.3       Substitute Driver

 

If the Nominated Driver cannot drive because of illness or for other good reason, the Contract Carrier must provide a Substitute Driver but the Contract Carrier must:

 

(a)        first obtain Metromix's approval for (such approval not to be unreasonably withheld) the Substitute Driver;

 

(b)        comply with any condition Metromix sees fit to impose including the length of time for use of the Substitute Driver; and

 

(c)        make sure that before commencing work the Substitute Driver satisfactorily undergoes any pre-engagement training at the Contract Carrier’s own expense provided that the Contract Carrier must not be charged for the cost of any test or assessment.

 

7.4       Procurement of Consent

 

The Contract Carrier must procure from its proposed Nominated Driver (and any Substitute Driver) any form of consent required by Metromix to receive and review personal information relating to the proposed Nominated Driver (and any Substitute Driver) so as not to place either the Contract Carrier or Metromix in breach of any relevant privacy legislation.

 

7.5       Valid Driving License and Permits

 

The Contract Carrier must:

 

(a)        make sure that the Nominated Driver (and any Substitute Driver) is at all times the holder of a:

 

(i)         current and active driver's licence appropriately endorsed or issued in respect of the Contract Carrier Vehicle; and

 

(ii)        licence or permit of any other kind needed from time to time; and

 

(b)        immediately notify Metromix if a licence or permit is cancelled or suspended for any reason; and

 

(c)        present any such license or permit to Metromix upon request.

 

7.6       Change of Address

 

The Contract Carrier must notify Metromix in writing immediately of any change in the Contract Carrier address or in the address of the Nominated Driver (and any Substitute Driver).

 

7.7       Medicals and Fitness

 

(a)        The Contract Carrier must:

 

(i)         ensure that the Nominated Driver (and any Substitute Driver) is at all times medically fit to perform the Cartage Work;

 

(ii)        if requested, supply Metromix with a medical report confirming that the Nominated Driver (and any Substitute Driver) is medically fit to perform the Cartage Work; and

 

(iii)       be reimbursed for the cost of any such medical report after producing evidence of a paid invoice.

 

(b)        Metromix may nominate the medical practitioner for the purposes of this clause, provided that they pay the costs for the medical consultation and any medical report.

 

7.8       Compliance with Employment Law

 

The Contract Carrier must:

 

(a)        comply with the provisions of any relevant law (including but not limited to) concerning income tax, workers’ compensation, annual leave, long service leave or any award, order, determination or agreement of a competent industrial tribunal; and

 

(b)        indemnify Metromix and keep Metromix indemnified against any claims made by any of the Contract Carrier employees in respect of any such legislation, award, order, determination or agreement with which the Contract Carrier are required to comply.

 

7.9       Notification of Absence

 

Where the Contract Carrier’s Vehicle is unavailable to perform the Cartage Work under this Contract Determination, the Contract Carrier must notify Dispatch at the earliest possible time of the reason and the anticipated period of absence.

 

7.10     Leave Entitlements

 

Contract Carriers are entitled to leave consisting of the following:

 

(a)        12 days leave where a Substitute Driver is required to operate the Vehicle;

 

(b)        10 days leave where the Contract Carrier is not required to provide the Vehicle to perform the Cartage Work; and

 

(c)        Subject to prior written approval from Metromix such other period of leave provided that the Contact Carrier provides a Substitute Driver in accordance with clause 7.3.

 

7.11     Leave

 

(a)        If the Contract Carrier's Nominated Driver wishes to take leave, they must apply to Metromix. The leave may be taken subject to Metromix's approval.

 

(b)        Metromix may require the Contract Carrier to provide a Substitute Driver during any period of leave for the Nominated Driver.

 

(c)        The Contract Carrier must provide Metromix with at least two (2) weeks’ notice of the date on which the Nominated Driver is intending to take leave, which in Metromix’s absolute discretion may or may not be approved, and this must be submitted to Metromix in writing via the Contract Carriers Leave Application Form.

 

12.  Use of the Vehicle

 

8.1       Operating Condition

 

The Contract Carrier must use the Vehicle for the Cartage Work strictly in accordance with the terms and conditions of this Contract Determination.

 

8.2       Driving of Vehicle

 

The Contract Carrier must:

 

(a)        not overload the Vehicle;

 

(b)        not use or operate the Vehicle in a careless, reckless or dangerous manner; and

 

(c)        make sure that the Vehicle is not driven by any person under the influence of alcohol, prohibited drug or of a drug which might adversely affect driving performance.

 

8.3       Cleaning of Vehicle

 

(a)        Cleaning brushes, detergents, Concrete de-scaler and buckets necessary for cleaning the exterior surfaces of the Vehicle will be supplied by Metromix.

 

(b)        The Contract Carrier must ensure the Vehicle is kept clean and tidy to the satisfaction of Metromix.

 

(c)        Where Metromix considers the presentation of the Vehicle is not to an appropriate standard, the Contract Carrier will be notified in writing that the Vehicle must be cleaned to a standard acceptable to Metromix within four (4) days of the date of the notice.

 

(d)        If after the four-day notice period Metromix deems the Vehicle’s presentation unacceptable, Metromix may refuse to load the Vehicle until such time as its presentation becomes acceptable to Metromix.

 

8.4       Fines

 

The Contract Carrier is responsible for any fines or other penalties imposed on the Contract Carrier:

 

(a)        if the maximum legal pay load carried with the Contract Carrier Vehicle is exceeded at any time; or

 

(b)        for any breach of any relevant laws. 

 

8.5       Salvage Rights

 

If there is a breakdown or accident the Contract Carrier must take all available and reasonable steps to assist Metromix to deliver the load or remove the load from the Agitator.

 

8.6       Inspections and Tests

 

The Contract Carrier must make the Vehicle available for inspection or testing as and when reasonably required by Metromix.

 

8.7       Road Worthiness and Fit For Purpose

 

(a)        The Contract Carrier must provide to Metromix at least two (2) weeks’ notice of the date on which their Vehicle is to be inspected by the relevant State Authority or approved inspection centre for road worthiness. This must be submitted to Metromix in writing via the Contract Carriers Leave Application Form.

 

(b)        The Contract Carrier must provide to Metromix quarterly a copy of the service and maintenance history for the Prime Mover in accordance with OEM requirements.

 

(c)        The Contract Carrier must at its own expense, obtain and supply to Metromix an annual roadworthy certificate for their Vehicle.

 

8.8       Tare Weight

 

(a)        Provided that Metromix reimburse the Contract Carrier, on a bi-annual basis or as required by Metromix, the Contract Carrier must provide Metromix with a copy of a registered weighbridge certificate for the Vehicle.

 

(b)        The Vehicle must be weighed with the Nominated Driver in the driver’s seat with fuel, oil and water tanks filled to full capacity and all Agitator chutes attached.

 

(c)        Despite clause 8.8 (a), Metromix may require the Contract Carrier to weigh their Vehicle at any time and under Metromix’s supervision, as part of any program which Metromix has in place for the purposes of ensuring statutory compliance.

 

Rostering

 

9.1       Rosters

 

Subject to this clause 9, Metromix may establish and operate a:

 

(a)        Cyclic Start Roster;

 

(b)        Roster Off Roster (subject to operational requirements);

 

(c)        Periodic Transfer Roster;

 

(d)        Daily Transfer Roster;

 

(e)        a voluntary Night Shift Roster; and

 

(f)        such other rosters as required by Metromix to operate its business.

 

9.2       Own Fleet Etc.

 

(a)        Metromix owned Vehicles will form part of all rosters and will not be rostered in any way to unfairly disadvantage either Metromix or its Contract Carriers.

 

(b)        Any Fleet Owner Vehicle may form part of a roster and if so will not be rostered in any way to unfairly disadvantage either Metromix or its Contract Carriers.

 

9.3       Notification for Next Day

 

It is the responsibility of the Contract Carrier to contact Dispatch to ascertain the initial time and Plant to which they are to load. Metromix will make available starting times and locations by 3pm Monday to Friday and by 11am Saturday for the next Working Day.

 

9.4       Variation and Compliance and Consultation

 

(a)        Metromix may determine or vary any roster, in its opinion, to meet Customer Service Levels or Operational Requirements;

 

(b)        the Contract Carrier must comply with all rosters determined or varied by Metromix; and

 

(c)        Metromix will not make any significant change to any roster or introduce any new roster without first consulting with the Contract Carrier’s affected.

 

10.  Vehicle Transfers

 

All transfer rosters will be based on a Cyclic Start Roster to ensure all Vehicles are made subject to all transfers.

 

10.1     Periodic Transfer

 

Metromix may transfer the Contract Carrier’s Vehicle from one Plant to another Plant:

 

(a)        for satisfaction of Customer Service Levels or Operational Requirements; and

 

(b)        for a period of two (2) weeks or for such other period as Metromix determines appropriate in a Periodic Transfer Roster.

 

10.2     Daily Transfer

 

Metromix may transfer the Contract Carrier’s Vehicle from one Plant to another Plant:

 

(a)        for satisfaction of Customer Service Levels or Operational Requirements; and

 

(b)        for up to one (1) Working Day in a Daily Transfer Roster.

 

10.3     Voluntary Productivity Transfer

 

In the event any individual Plant(s) Individual Utilisation Group(s) average monthly productivity volume is more than 75 loads below the average monthly Utilisation Group productivity volume, Metromix will do the following:

 

(a)        On a voluntary basis initiate periodic transfers pursuant to clause 10.1 into higher productivity volume Plant(s);

 

(b)        monitor productivity volumes on a monthly basis, and

 

maintain periodic transfers until such time the individual Utilisation Group(s) productivity volume of an individual Plant(s) is less than 75 loads below the average monthly Utilisation Group productivity volume.

 

11.  Loading and Delivery of Concrete

 

11.1     Plant

 

Subject to this Contract Determination, the Contract Carrier must report available for Cartage Work with their Vehicle and be ready to load at the times and Plants that Metromix directs.

 

11.2     Metromix to Nominate Load

 

Metromix may nominate the load size for each load to be carried from a Plant.

 

11.3     Loading Order

 

(a)        Metromix must use its reasonable endeavours to load Vehicles including Vehicles owned or engaged by Metromix having regard to the following:

 

(i)         at the start of each Working Day, in accordance with the Cyclic Start Roster; and

 

(ii)        during the Working Day, after each Vehicle has received its initial load, in accordance with the order of return to that Plant.

 

(b)        Metromix may change the loading order at each Plant by varying the Cyclic Start Roster or loading order for reasons including but not limited to:

 

(i)         to satisfy Customer Service Levels or Operational Requirements;

 

(ii)        if the next load (or loads) required to be taken is (or are) greater than the Load Capacity of the Vehicle next in line;

 

(iii)       to comply with Chain of Responsibility obligations; or

 

(iv)      Vehicles carrying Returned Concrete.

 

11.4     No Loading

 

Metromix may refuse to load the Contract Carrier’s Vehicle if:

 

(a)        it is unregistered;

 

(b)        if it is uninsured;

 

(c)        the Nominated Driver (and any Substitute Driver) does not hold a valid and active drivers licence;

 

(d)        the Nominated Driver (and any Substitute Driver) fails to sign in daily;

 

(e)        in Metromix's reasonable opinion, the Contract Carriers Vehicle is defective so as to render its operation unsafe;

 

(f)        the Contract Carriers is suspected of being in breach of its obligations under this Contract Determination or a Mini Cartage Contract; or

 

(g)        for any of the reasons referred to in any of 5.8, 8.3(d) or 15.1.

 

11.5     No Alteration to Docket

 

The specification of each load of Concrete shown on the Concrete delivery docket issued by Metromix must not be changed by the Contract Carrier after batching.

 

11.6     Slump

 

(a)        Before leaving the Plant to deliver a load, the Contract Carrier must:

 

(i)         ensure the load is properly mixed in accordance with the written instructions provided by Metromix, which may be varied from time to time; and

 

(ii)        ensure that immediately prior to discharge, the Slump of the Concrete complies/conforms with the latest issue of Australian Standard and any Cartage Work instructions issued by Metromix.

 

(b)        Metromix will endeavour to batch each load with the intent that it is batched to within 10% of the total batch water required for the load to meet the relevant slump specification.

 

(c)        The Contract Carrier must notify the batcher of the quantity of water added at the slump stand and batch water will be adjusted upon continuing feedback from the Contract Carrier.

 

(d)        If the customer requests the addition of an amount of water that takes the Slump of the load outside the specified Slump tolerance, the Contract Carrier must:

 

(i)         note the quantity of water added and the estimated final Slump of the load; and

 

(ii)        obtain the name and signature of the customer or their nominated representative on all copies of the delivery docket.

 

11.7     Shortest Practicable Route

 

The Contract Carrier must take the shortest practicable route whilst performing the Cartage Work given the time of day.

 

11.8     Change of Ingredients

 

Metromix must provide the Contract Carrier, whenever practicable, with advice of any major changes to the source of Concrete mix ingredients which are likely to affect the visual assessment of the Slump.

 

11.9     Rejection of Load

 

(a)        If a Contract Carrier makes an addition of water to a load without the signed consent of the customer or their nominated representative, and the load is rejected because the Slump of the Concrete is outside the nominated tolerance as specified in clause 11.6, or because the Contract Carrier had not complied with that clause, the Contract Carrier will;

 

(i)         not be paid for the delivery of the load or any applicable Surcharge/s; and

 

(ii)        (if the load cannot be salvaged) have deducted from their next month’s cartage payment the sum calculated to be 50% of the cost of all ingredient materials in the load to a maximum of $500.

 

(b)        However, if Metromix has restricted the Contract Carrier's ability to adjust the Slump of a load on the job site and:

 

(i)         the Contract Carrier is requested by a customer or a customer's representative to add water to the load;

 

(ii)        Metromix approves such adjustment after discussion with the Contract Carrier; and

 

(iii)       the load is subsequently rejected on the basis of water addition or non-compliance with the nominated tolerance,

 

then Metromix will pay the Contract Carrier the Cartage Rate for the load as if the load had not been rejected and any applicable Surcharges.

 

(c)        Where the Contract Carrier is requested by Metromix to adjust or maintain the Slump of a load at a tolerance closer than that specified in the current issue of Australian Standard and the load is rejected on the basis of non‑compliance with the nominated tolerance, then Metromix will pay the Contract Carrier the Cartage Rate for the load as if the load had not been rejected and any applicable Surcharges.

 

(d)        In the case of a delivery of Kerb-Maker, it is the responsibility of the Contract Carrier to carry the load in an "as batched" condition. The Contract Carrier will not be responsible for the Slump unless the Contract Carrier has attempted to adjust the Slump either at the Plant or onsite pursuant to clause 11.9(a), in which case clause 11.9(a)(i) and 11.9(a)(ii) shall apply.

 

(e)        In the case of delivery of a load of Wet Piling Grout the Contract Carrier must:

 

(i)         ensure the load is completely mixed;

 

(ii)        adjust the water to the load at the Slump stand so it visually represents Wet Piling Grout; and

 

(iii)       immediately notify the batcher of any unusual features of the load which may lead to non-conformity including lack of or excessive water.

 

(f)        Provided the Contract Carrier has complied with clause 11.9(e) then the Contract Carrier will no longer be responsible for the consistency should the load be subject to a Flow Cone Test.

 

11.10  Additives

 

(a)        Subject to the Contract Carrier’s compliance with clause 11.10(b), where Metromix adds an additive to the Concrete after the Contract Carrier has adjusted the Slump of the load, or where an additive is added at the customer's request, the Contract Carrier will no longer be responsible for the Slump of that load.

 

(b)        The Contract Carrier and the Nominated Driver (and any Substitute Driver) are not permitted to add any additives to the Concrete.

 

11.11  Mixing and Transit

 

The Contract Carrier must take reasonable care of the Slump after the Vehicle has left the plant.  Except where Metromix has notified the Contract Carrier that the customer has instructed that no water is to be added after leaving the plant, the Contract Carrier may add water to the Concrete as the Contract Carrier think fit but the Contract Carrier must:

 

(a)        keep the Agitator drum turning at all times when it contains Concrete at a minimum of two (2) revolutions per minute; and

 

(b)        mix the Concrete for at least the minimum mixing time for mixing Concrete under the current Australian Standard which is:

 

(i)         4 minutes at the mixer manufacturers rated mixing speed (approximately 16 revolutions per minute) at the Plant; and

 

(ii)        a minimum re-mix of 1 minute at the rated mixing speed (approximately 16 revolutions per minute) after addition of water or additives or to customers’ requirements before discharging on site.

 

11.12  Job Site Entry

 

(a)        The Contract Carrier must comply with any job site entry procedure determined by Metromix from time to time.

 

(b)        The Contract Carrier has the right to refuse to enter a job site, which it reasonably considers unsafe.

 

(c)        The Contract Carrier must notify the Metromix Representative at the Plant of the unsafe or hazardous job site and of the Contract Carrier's unsuccessful attempt to enter the site. The Representative will attend the site as soon as practical after notification in order to determine the action to be taken.

 

(d)        If the Metromix Representative assesses the site access to be unsafe or hazardous, the Contract Carrier will be paid the Cartage Rate as if the delivery had been successful and any applicable Surcharges.

 

(e)        Despite anything else in this clause, the Nominated Driver (or any Substitute Driver) may refuse to enter a job site if it  would cause serious and imminent risk to their health or safety and the Contract Carrier will be paid the Cartage Rate as if the delivery had been successful and any applicable Surcharges. 

 

11.13  Unloading

 

The Contract Carrier must discharge the Concrete at the delivery site in the manner and position reasonably directed by the customer.  The Contract Carrier must use every reasonable effort at the delivery site to:

 

(a)        obtain directions from the customer concerning the manner and position to discharge the Concrete;

 

(b)        obtain from the customer’s the signatures required by Metromix; and

 

(c)        collect money from cash on delivery customers for all Concrete discharged.

 

11.14  Unsafe Unloading

 

(a)        If the unloading of the Concrete at any delivery site is unsafe for any reason, the Contract Carrier must immediately notify Metromix prior to unloading the Concrete to obtain directions.

 

(b)        If, in complying with Metromix’s directions, the Contract Carrier Vehicle becomes bogged or causes damage to the site (unless the bogging or damage is caused by the Contract Carrier negligence or a breach of this Contract Determination) Metromix must:

 

(i)         pay all reasonable costs to remove the Contract Carriers Vehicle and effect any repairs caused by the bogging or removal; and

 

(ii)        indemnify the Contract Carrier for any damage or claims caused on the site.

 

11.15  Signatures for Delivery

 

(a)        The Contract Carrier must:

 

(i)         use their reasonable endeavours to obtain a customer signature and printed name for the delivery of a load and any additional Surcharges or the addition of water; and

 

(ii)        obtain any information ascertained in accordance with clause 11.18(d).

 

(b)        The Contract Carrier must sign and print their name on the delivery docket and record their time of arrival and departure at site.

 

(c)        All signatures, printed names or other required information must be in the appropriate section of the delivery docket and appear on all copies.

 

(d)        The Contract Carrier must not surrender the customer copy of the delivery docket until discharge is complete or released by the customer.

 

(e)        The Contract Carrier must return the completed delivery docket to the Plant or otherwise as directed upon return after each load.

 

(f)        Where Waiting Time, Returned Concrete or any other Surcharges are applicable the Contract Carrier, prior to leaving site, must contact Dispatch to obtain the Surcharge amount and new total to be collected and ensure this appears on all copies of the delivery docket. 

 

(g)        Despite anything else in this Contract Determination, if the provisions of this clause are not complied with Metromix is not required to pay the Contract Carrier for the relevant load.

 

11.16  Bogged Vehicles

 

(a)        Where the Contract Carrier enters a job site beyond the road kerb line to complete a delivery and the Vehicle becomes bogged or is otherwise rendered inoperative as a consequence of such attempted delivery, Metromix will arrange the services of an experienced salvage contractor to extract the Vehicle as soon as possible and must bear all costs for those arrangements.

 

(b)        The Contract Carrier is to notify the Metromix Representative at the Plant as soon as the Vehicle becomes bogged or inoperative and await instruction from Metromix.

 

(c)        Metromix will ensure that the salvage contractor selected is covered by the appropriate insurance policy to rectify any damage that the salvage contractor may cause to the Vehicle during the extraction process.

 

(d)        Metromix accepts no liability for damage or loss caused where the Contract Carrier utilises its own salvage contractor or means for the extraction.

 

(e)        Clauses 11.16(a) and (c) will not apply where the Vehicle becomes bogged or inoperative as a direct result of the Contract Carrier's or its Nominated Driver’s (or Substitute Driver’s) negligence or any deliberate act by the Contract Carrier’s Nominated Driver’s (or Substitute Driver’s).

 

11.17  Return

 

After discharging the load the Contract Carrier must report to whatever Plant Metromix instructs.

 

11.18  Cash on Delivery

 

(a)        The Contract Carrier will ensure all payments are collected from those customers designated by Metromix as cash on delivery for all Concrete charges including Waiting Time and/or Returned Concrete.

 

(b)        The Contract Carrier is only responsible for collecting cash amounts no greater than the invoiced total plus any surcharge amounts for that particular load.

 

(c)        The Contract Carrier must take reasonable care of any money collected and submit in full to the Metromix Representative as soon as possible on return to the Plant. The Metromix Representative will sign the Contract Carrier's copy of the delivery docket as recognition of receipt of money at which point the Contract Carrier will be no longer responsible for the moneys.

 

(d)        Where Waiting Time, Returned Concrete or any other Surcharges are applicable the Contract Carrier, prior to leaving site must contact Dispatch to obtain the Surcharge amount and new total to be collected. 

 

(e)        The Contract Carrier will immediately advise Metromix if the collection of cash is not able to be obtained prior to leaving site and await Metromix’s direction.

 

11.19  Damage On Site

 

Subject to this clause 11, the Contract Carrier must pay for any damage caused by the Contract Carrier whilst entering on or exiting the site provided that Metromix has undertaken an investigation of the matter.

 

12.  Site Cleaning

 

12.1     Contract Carrier Obligations

 

(a)        The Contract Carrier must immediately report to Metromix any Concrete or Vehicle spillage.

 

(b)        Subject to clause 12.2(b), the Contract Carrier must pay for:

 

(i)         any costs associated with the clean-up of any spillage; and

 

(ii)        the removal of any Concrete or Vehicle spillage.

 

(c)        The Contract Carrier must pay for any fines associated with any spillage.

 

12.2     Metromix’s Obligation

 

(a)        Metromix must arrange for the clean-up of any Concrete or Vehicle spillage.

 

(b)        Metromix must pay for the removal of any Concrete or Vehicle spillage for one (1) clean-up activity per calendar year for a Contract Carrier to a maximum cost of $500.

 

13.  Supervision

 

13.1     The Contract Carrier Must Supervise its Personnel

 

The Contract Carrier must ensure that the Nominated Driver (and any Substitute Driver):

 

(a)        performs the Cartage Work and does everything connected with it as is required of the Contract Carrier by this Contract Determination; and

 

(b)        does not do or omit anything that gives rise to a breach by the Contract Carrier of this Contract Determination.

 

14.  Training

 

14.1     Cost and Amount

 

(a)        Metromix may require the Contract Carrier or their Nominated Driver (and any Substitute Driver) to attend training sessions each year in relation to any topic deemed relevant by Metromix provided that the Contract Carrier must not be charged for the cost of providing the training.

 

(b)        The Contract Carrier or their Nominated Driver (and any Substitute Driver)’s attendance will be at no cost to Metromix and will be limited to twelve (12) hours per annum. 

 

(c)        Any training the Contract Carrier or their Nominated Driver (and any Substitute Driver) attends which exceeds twelve (12) hours per annum will be entitled to a standby time payment as specified in Schedule 3 for each half hour or part thereof the Contract Carrier or their Nominated Driver (and any Substitute Driver) attends.

 

14.2     Driver Training

 

(a)        All existing approved Nominated Drivers (and any Substitute Driver) are required to undertake an annual (or as deemed appropriate by Metromix) driver and Agitator operational assessment carried out by a qualified driver trainer and Agitator operational assessor nominated by Metromix. Any associated cost of this will be the responsibility of Metromix.

 

(b)        Each new Nominated Driver employed by the Contract Carrier, is required to spend a minimum of two (2) weeks' training in how to operate the Vehicle and in managing Slump control of Concrete.

 

(c)        This training will include a period of at least one (1) day in Metromix’s nominated Quality Control Laboratory under the supervision of a Metromix nominated tester, and at least one (1) day in Dispatch to understand Dispatch requirements.

 

(d)        Metromix will provide appropriate equipment (excluding the Vehicle) for the purpose of providing the training.

 

(e)        At the conclusion of the two (2) week training period, the Nominated Driver will be required to undertake a driver and Agitator operational assessment carried out by a qualified driver and Agitator operational trainer nominated by Metromix in respect of the Nominated Driver’s performance and technical ability. Any costs for the driver trainer will be the responsibility of Metromix.

 

15.  Contractor Management System

 

15.1     Provision of Documents and Inductions

 

(a)        The Contract Carrier must maintain and keep up to date any documentation and inductions required by Metromix’s contractor management system.

 

(b)        Metromix must ensure that such documentation is securely held and not used for any improper purpose by an employee or officer of Metromix.

 

(c)        Metromix may at times request the originals or copies of documents.

 

(d)        The Contract Carrier will allow Metromix to take copies of these documents if required.

 

(e)        Should the Contract Carrier not be able to sign in due to out of date documentation or inductions, the Contract Carriers Vehicle will not be available to load until such time as the out of date documentation and induction is renewed and verified.

 

16.  Contract Carrier's Spare Tyres

 

16.1     Storage

 

(a)        Subject to Metromix's prior approval and availability of space at the Nominated Plant, Metromix will provide to the Contract Carrier at their Nominated Plant space for the storage of up to two (2) spare usable tyres for their Vehicle.

 

(b)        Any stored tyres must be marked with the fleet number of the Contract Carrier's Vehicle.

 

(c)        In circumstances where Metromix cannot identify ownership of stored tyres, Metromix reserves the right to remove the unidentified equipment and to dispose of it appropriately.

 

(d)        No other equipment is to be stored by the Contract Carrier on Metromix premises.

 

16.2     No Liability

 

Despite clause 16.1, Metromix will not be liable to the Contract Carrier for any loss or damage to anything stored by the Contract Carrier at a Plant or other Metromix premises.

 

17.  Workplace Health and Safety

 

17.1     Safety Meetings

 

(a)        The Contract Carrier or their Nominated Driver must attend and constructively participate in each safety meeting or "tool box talk" as required by Metromix.

 

(b)        The Contract Carrier or their Nominated Driver is not obliged to attend if they are on approved leave or not able to attend work for that entire day.

 

(c)        Attendance to the abovementioned meetings will be at no cost to Metromix.

 

17.2     Safety Inductions

 

The Contract Carrier or their Nominated Driver (and any Substitute Driver) must attend safety inductions and safety training as required by Metromix. Attendance will be in accordance with clause 14.

 

18.  Uniforms and Personal Protective Equipment

 

18.1     Uniform Supply

 

Metromix must supply a Nominated Driver and any Substitute Driver with a uniform in accordance with Metromix’s uniform policy and the uniform must be worn.

 

18.2     Personal Protective Equipment

 

Metromix must supply a Nominated Driver and any Substitute Driver with personal protective equipment in accordance with Metromix’s personal protective equipment policy and the personal protective equipment must be worn. The Contract Carrier is responsible for supplying any Substitute Driver with approved safety footwear.

 

18.3     Replacement

 

Replacement of uniforms and personal protective equipment will be at the discretion of Metromix on the basis of return of used items.

 

19.  Emergencies and Incidents

 

19.1     Contract Carrier to Follow Metromix Procedures

 

The Contract Carrier must comply with any emergency procedures specified by Metromix.

 

19.2     Reporting Incidents

 

(a)        The Contract Carrier must immediately advise the Metromix Representative at the Plant of any incident, near misses, safety observations or hazards.

 

(b)        All incidents must be entered in to Metromix’s online register as soon as practicable.

 

19.3     Investigation

 

The Contract Carrier must provide all necessary assistance to Metromix in relation to any Metromix investigation.

 

19.4     Reporting Defects, Loss or Theft

 

A Contract Carrier must report to Metromix immediately any damage, defect, loss or theft that has occurred.

 

20.  Insurance Warranty and Indemnity

 

20.1     Vehicle, Workers Compensation

 

The Contract Carrier must obtain the insurances set out in Schedule 4 and maintain them at the Contract Carrier’s expense at all times.

 

20.2     Insurance Policies

 

The Contract Carrier must make sure that:

 

(a)        each insurance policy is placed with an insurer approved by Metromix (who must not unreasonably withhold its approval) and is for such amounts and covers such risks and contains such conditions, endorsements and exclusions as are reasonably acceptable to or reasonably required by Metromix;  and

 

(b)        despite clause 20.2(a), unless Metromix agrees otherwise or unless any relevant law precludes this each policy must be endorsed to:

 

(i)         extend to provide indemnity to Metromix as principal; and

 

(ii)        contain a cross liability clause.

 

20.3     Premiums

 

The Contract Carrier must punctually pay all premiums for policies and renewals of policies and must provide on request at any time proof of payment and renewal to Metromix’s satisfaction.

 

20.4     Not to Prejudice Insurance

 

The Contract Carrier must not do, permit or omit any act, matter or thing which might prejudice any insurance or make it void or voidable.

 

20.5     Payment of Excess

 

The Contract Carrier must pay any deductible or excess applying to any claim made by Metromix as principal against any insurance policy held by the Contract Carrier.

 

20.6     No Guarantee

 

Except as expressly provided for in this Contract Determination, Metromix makes or gives no representation, warranty or guarantee as to the quantity, quality, regularity or profitability of the Cartage Work.

 

20.7     Implied Warranties

 

Any warranty, condition, term or provision on the part of Metromix which might be implied by the general law is expressly excluded, and to the extent permitted by law, all statutory implied warranties on the part of Metromix are excluded altogether or (if complete exclusion is prohibited by law) limited to the payment of:

 

(a)        in the case of goods, the lesser of the cost of having the goods repaired and the cost of replacing the goods or of acquiring equivalent goods; or

 

(b)        in the case of services, the cost of having the services supplied again.

 

20.8     Indemnity

 

(a)        The Contract Carrier shall indemnify Metromix, and keep Metromix indemnified from and against any loss or claim in connection with any death or injury to any person or any loss of or damage to property directly or indirectly caused by or in connection with or arising from:

 

(i)         the Cartage Work;

 

(ii)        their operations or business;

 

(iii)       the use of any Vehicles, plant or equipment (including without limitation the Vehicle) used or to be used in connection with their operations or business; or

 

(iv)      any breach by them of this Contract Determination.

 

(b)        To avoid any doubt, it is expressly noted that the indemnities given by a Contract Carrier in clauses 20.8(a)(i) to 20.8(a)(iv) excludes circumstances where the loss or claim in connection with any death or injury to any person or any loss of or damage to property is directly or indirectly caused by negligent or unlawful acts by Metromix in performing its obligations under this Contract Determination.

 

20.9     Not Liable

 

Metromix is not liable to the Contract Carrier for any loss or claim:

 

(a)        for consequential loss or loss of use or loss of profit; or

 

(b)        arising out of wet weather, accident, breakdown, or delay.

 

21.  Contractor Fleet Size

 

21.1     Right to Increase Contractor Numbers

 

Metromix may at any time engage more Contract Carrier Vehicles to perform the Cartage Work to meet its business needs.

 

21.2     Right to Decrease Contractor Numbers

 

Metromix may at any time reduce the number of Contract Carriers engaged to perform the Cartage Work to meet its business needs.

 

22.  Use of Other Vehicles

 

22.1     Right

 

Subject to clause 24.3, and to avoid any doubt, Metromix may utilise:

 

(a)        its own Vehicles; or

 

(b)        Vehicles from a Fleet Owner,

 

for the Cartage Work to meet its business needs. 

 

22.2     No Improper Conduct

 

To avoid any doubt, Metromix may exercise its rights to utilise its own Vehicles or Vehicles from a Fleet Owner as it sees fit in its own commercial interest, but must not abuse the right to obtain an improper collateral benefit or objective.

 

23.  Disputes Procedure

 

23.1     Application of Procedure

 

Any dispute that arises between a Contract Carrier and Metromix shall be dealt with in accordance with this clause.

 

23.2     Appointment of Representative

 

A Contract Carrier who is a party to a dispute may appoint a representative for the purposes of this clause which may include the Union.

 

23.3     Procedure

 

In the first instance, the parties to the dispute must try to resolve the dispute at the workplace level.

 

23.4     Notification to Commission

 

If the dispute remains unresolved it may be referred to the Industrial Relations Commission of NSW.

 

23.5     Continue to Perform Cartage Work

 

Whilst the parties are trying to resolve the dispute using the procedure set out in this clause:

 

(a)        a Contract Carrier must continue to perform Cartage Work as they normally would do unless the Nominated Driver (or any Substitute Driver) hold a reasonable concern about an imminent risk to their health or safety; and

 

(b)        a Contract Carrier must comply with a direction given by Metromix to perform other available Cartage Work, unless:

 

(i)         the Cartage Work is not safe; or

 

(ii)        applicable workplace health and safety legislation would not permit the Cartage Work to be performed; or

 

(iii)       the Cartage Work is not appropriate for the Contract Carrier to perform; or

 

(iv)      there are other reasonable grounds for the Contract Carrier to refuse to comply with the direction.

 

24.  Additional Terms

 

24.1     Contract Carrier’s who commenced before 1 October 2017

 

(a)        A Contract Carrier who commenced being engaged by Metromix before 1 October 2017 shall be engaged and perform the Cartage Work and anything connected with it under the terms set out in Schedule 11.

 

(b)        Schedule 11 shall apply to any permitted assignee of the Contract Carrier.   

 

24.2     New Contract Carriers

 

Despite anything in this clause, if Metromix introduces a new Contract Carrier into its fleet then they shall be engaged and perform the Cartage Work and anything connected with it under the terms set out in Schedule 10.

 

24.3     New Contract Carriers - Plant Embargo

 

(a)        Despite clause 7.1 and subject to clause 24.3(b), Metromix shall not designate a Plant to be the Nominated Plant of a new Contract Carrier if that Plant is set out in Schedule 12.

 

(b)        Clause 24.3(a) shall cease to operate two years after the commencement date of this Contract Determination.

 

24.4     New Contract Carriers - No ‘Gazumping’

 

If a Contract Carrier issues Metromix with a notice pursuant to clause 3 of Annexure A of Schedule 11, Metromix must not offer the company that the Contract Carrier proposes to assign their contractual arrangement to an opportunity to become a new Contract Carrier to prevent them completing the proposed assignment.

 

25.  Notices

 

25.1     Delivery

 

If either Metromix or the Contract Carrier gives a notice, consent, approval or other communication (each a "notice") under this Contract Determination it shall be signed by them or on their behalf, addressed to the other party and:

 

(a)        delivered to the other party's address;

 

(b)        sent by pre-paid mail to the other party's address;

 

(c)        transmitted by facsimile to the other party's address; or

 

(d)        transmitted by email to the other party's email address.

 

25.2     Receipt

 

A notice given in accordance with this clause is treated as having been given and received:

 

(a)        if delivered to the other party’s address, on the day of delivery if a Working Day, otherwise on the next Working Day;

 

(b)        if sent by pre-paid mail, on the third Working Day after posting;

 

(c)        if transmitted by facsimile and a correct and complete transmission report is received, on the day of transmission if a Working Day, otherwise on the next Working Day; or

 

(d)        if transmitted by email and a correct and complete receipt reply email is received, on the day of transmission if a Working Day, otherwise on the next Working Day.

 

25.3     Proper Address

 

For the purpose of this clause the addresses are the addresses which from time to time a party gives notice of to the other party.

 

26.  Consultation

 

26.1     Committee

 

Metromix shall convene a Consultative Committee made up of Metromix representatives and the members of the "Metromix LOD Committee".

 

26.2     Meeting

 

The Consultative Committee shall meet as agreed or otherwise monthly to discuss:

 

(a)        any agreed matters; and/or

 

(b)        Contract Carrier utilisation.

 

26.3     Information

 

(a)        Metromix shall provide the Contract Carrier members relevant Contract Carrier utilisation data at least 2 Working Days prior to the relevant Consultative Committee meeting.

 

(b)        The utilisation data is to be treated as commercial in confidence by the recipient and is not to be copied or shared in any manner and with any person without the express written consent of Metromix.

 

(c)        The utilisation data will include loads carted and average leads but will not include earnings.

 

26.4     Payment

 

Metromix will pay the Contract Carrier a Demurrage payment at the rate specified in Schedule 3 for the time one hour prior to and then attending a Consultative Committee meeting up to the Contract Carrier’s rostered finish time for that day.

 

26.5     Annual Verification

 

(a)        Within the first three months after the commencement of this Contract Determination and thereafter every 12 months:

 

(b)        Metromix shall provide the Consultative Committee with a list of the Contract Carriers, their Nominated Drivers and any Substitute Drivers;

 

(c)        the Contract Carrier representatives shall verify whether the list is correct; and

 

if the list is not correct Metromix shall make such inquiries and take such actions as are appropriate to ensure they hold a correct and verified list.

 

27.  Delegates

 

27.1     Appointment

 

A Contract Carrier appointed as a Delegate in a yard in which they are a Contract Carrier will, upon notification to Metromix be recognised as the accredited representative:

 

(a)        for that Yard; and

 

(b)        (if the Contract Carrier is a member of the Union) of the Union for that Yard.

 

27.2     Opportunity to Meet

 

An accredited delegate will be allowed a reasonable opportunity to meet the relevant Metromix manager and Contract Carriers to discuss matters affecting Contract Carriers whom they represent.

 

27.3     Use of Notice Board

 

Accredited delegates will be permitted to put notices on a notice board, signed or countersigned by the representative posting it.

 

27.4     Release of Delegates

 

A yard delegate will be released by Metromix on a reasonable basis to attend authorised (lawful) Union activity provided that Metromix is provided reasonable notice of the absence.

 

28.  Dictionary

 

1.0m3 Vehicle means a Vehicle with a nominal loading capacity of 1.2m3.

 

2.0m3 Vehicle means a Vehicle with a nominal loading capacity of 2.4 m3.

 

3.0m3 Vehicle means a Vehicle with a nominal loading capacity of 3.0 m3.

 

Accounting Period means a calendar month unless varied by notice from Metromix.

 

Act means the Industrial Relations Act 1996 (NSW).

 

Agitator means the mixing equipment necessary to mix and transport Concrete by a Prime Mover. 

 

Annual Earnings Safety Net means the payment referred to, and calculated in accordance with, clause 3.2, 3.3 and Schedule 1.

 

Average Group Productivity means the moving annual total paid loads carried by a group of Contract Carriers in an Utilisation Group.

 

Australian Standard means any relevant Australian Standard as applies from time to time.

 

Authorised Absence means any absence expressly authorised by this Contract Determination including but not limited to those outlined in clause 3.3(b), 7.10, 26.2, and 27.

 

CAR means a manual Cartage Adjustment Request Form.

 

Cartage Adjustment Request Form means the form located in Schedule 9.

 

Cartage Rates means the rates located in Schedule 1.

 

Cartage Work means the cartage of Concrete as and when required by Metromix.

 

Communication Equipment means equipment such as but not limited to global positioning systems (GPS), two way radio, safety cameras etc.

 

Contract Determination means this contract determination as varied or replaced from time to time.

 

Concrete means pre‑mixed Concrete manufactured by Metromix and any other materials that can be delivered in a Vehicle as may be designated by Metromix.

 

Configuration means the classification of a Vehicle by reference to its Load Capacity as follows:

 

(a)        1.0m3 Vehicle;

 

(b)        2.0m3 Vehicle;

 

(c)        3.0m3 Vehicle; or

 

(d)        any other classifications designated by Metromix from time to time.

 

Consultative Committee means the committee structure in operation prior to the commencement of this Contract Determination.

 

Contract Carrier means a Contract Carrier engaged by Metromix pursuant to a Mini Cartage Contract to cart pre-mixed Concrete in the Operational Area.

 

Contract Carriers Leave Application Form means the form located in Schedule 9.

 

Control Number means a sequence of number or letters or both given solely by Dispatch.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Customer Service Levels means the provision of efficient, timely and competitive service to meet customers’ expectations and requirements.

 

Cyclic Start Roster means a start of day roster based on a "first out yesterday, second out today" system with the effect that each Vehicle will move through the cycle from starting first to starting last and, on successive days, all points in between, subject but not limited to Customer Service requirements.

 

Daily Transfer Roster means the roster determined in accordance with clause 10.2.

 

Demurrage means the rate specified in Schedule 3.

 

Dispatch means the Customer Service Centre or in the event the Customer Service Centre is closed or unavailable, the Plant.

 

Driver means the Nominated Driver or a Substitute Driver.

 

Fleet Owner means a provider of transport services other than a Contract Carrier.

 

Flow Cone Test means a flow cone test in accordance with Australian Standards.

 

Force Majeure means an act, omission or circumstance beyond a party’s control, including:

 

(e)        acts of God;

 

(f)        fire, flood, storm, earthquake, explosion or accident;

 

(g)        hostile or warlike action in time of peace or war; or

 

(h)        insurrection, rebellion, revolution, civil war, sabotage, civil disobedience, usurped power or action taken by government authority in hindering, combating or defending against such occurrence, but only to the extent that the act, omission or circumstance could not have been avoided or foreseen through the exercise of reasonable skill and care that a diligent person in the position of the affected party would have exercised.

 

Kerb-Maker means a Concrete mix "nil Slump" used specifically for the construction of kerb and gutter.

 

Kilometre Running Rate means the rate paid per kilometre as itemised in Schedule 1.

 

Load Capacity means the lesser of:

 

(a)        the maximum legal carrying capacity of the Contract Carrier’s Vehicle; and

 

(b)        the manufacturer’s nominated maximum capacity of the Agitator.

 

MAT means moving annual total.

 

Metromix means Metromix Pty. Limited of Level 4, 107 Phillip St Parramatta, NSW, 2150.

 

Metromix Concrete Cartage Cost Model means one of the following excel models: Metromix Concrete Cartage Cost Model - 3.0m3 Able Prime Mover Only; Metromix Concrete Cartage Cost Model - 2.0m3 Able Prime Mover Only; Metromix Concrete Cartage Cost Model - 1.0m3 Able Prime Mover Only.

 

Metromix's Normal Trading Hours means 6:00 am to 5:00 pm Monday to Friday and from 6:00 am to 1:00 pm Saturday or as otherwise varied by Metromix.

 

Metromix Representative means the Metromix Plant Manager or his/her delegate.

 

Mini Cartage Contract means the contractual arrangement under which the Contract Carrier is engaged by Metromix to perform the Cartage Work.

 

Mini Vehicles means a vehicle with a nominal carrying capacity of 3.0m3 or less.

 

New Prime Mover means a Prime Mover that is (a) less than one (1) year of age from the year of manufacture which will be measured from the date of manufacture as per the compliance plate affixed to the Vehicle and (b) is a 3.0m3, 2.0m3 or 1.0m3 Prime Mover or such other configuration as Metromix may determine.

 

Night Shift means a shift where a Contract Carrier is rostered to work outside Metromix’s Normal Trading Hours and has been given prior notice of the shift (to avoid any doubt this does not include an early start or late finish outside of Metromix’s Normal Trading Hours).

 

Night Shift Minimum means the rates set out in Schedule 3.

 

Nominated Driver means the person nominated by the Contract Carrier and approved by Metromix as such.

 

Nominated Plant means the plant that a Contract Carrier will normally be based at, as directed by Metromix.

 

Operational Requirements means all factors which may, in Metromix’s opinion, affect the operating efficiency, volume or quality of Concrete produced, profitability of one or more Plants or otherwise affect in any way one or more Plants or any aspect of Metromix’s Concrete and related businesses.

 

Periodic Transfer Roster means the roster determined in accordance with clause 10.1.

 

Plant means a batching plant where Concrete and similar batched materials are manufactured for delivery in a Vehicle.

 

Prime Mover means the prime mover supplied by the Contract Carrier to perform the Cartage Work.

 

Public Holiday means a day declared and gazetted as such for the Operational Area.

 

Quality Control Laboratory means Metromix’ quality control laboratory.

 

Quarter means each three-month period ending on 31 March, 30 June, 30 September and 31 December each year.

 

Rejected Concrete means Concrete that does not meet the product specification detailed on the delivery docket and is unacceptable for delivery.

 

Returned Concrete means Concrete that is excess to a particular customer's requirements.

 

Roster Off Roster means the period during which the Contract Carrier's services are not required by Metromix.

 

Slump means a measure of consistency of Concrete as determined in accordance with Australian Standard.

 

State Authority means the RMS or such other agency that is authorised to inspect the Vehicle.

 

Substitute Driver means any driver of the Vehicle authorised as such in accordance with clause 7.3 of this Contract Determination.

 

Surcharge/s means those payments specified in Schedule 3.

 

Unloaded Kilometers is given the definition in clause 4.6.

 

Utilisation Cartage Rates means the Cartage Rates paid for various annualised levels of Vehicle productivity measured in loads per Vehicle per year (loads/Vehicle/year) as set out in Schedule 1.

 

Unavailable Day(s) means any day(s) other than that of a Working Day.

 

Unauthorised Absence means any absence not expressly authorised by this Contract Determination.

 

Union means the Transport Workers Union, New South Wales.

 

Utilisation Group means a group of Concrete Trucks of the same Configuration including the Contract Carrier’s Vehicle.

 

Vehicle means a Prime Mover and Agitator used to transport and deliver pre‑mixed Concrete.

 

Waiting Time is given the meaning in clause 4.12.

 

Wet Piling Grout means a Concrete mix used for the construction of piles or piers.

 

Working Day means a day which is not a Sunday or Bank or Public Holiday.

 

SCHEDULE 1 - CARTAGE RATES

 

1.  Cartage Rates

 

1.1       The Cartage Rates are:

 

(for a Contract Carrier who has not yet introduced a New Prime Mover in accordance with clause 5 Prime Mover) the Cartage Rates subject to the Utilisation and Rise and Fall reviews that operated immediately prior to this Contract Determination commencing; and

 

(for a Contract Carrier who has introduced a New Prime Mover in accordance with clause 5 Prime Mover) ascertained from "RATE SCH Prime Mover Only" of the relevant "Metromix Concrete Cartage Cost Model" (being one of the following: Metromix Concrete Cartage Cost Model - 3.0m3 Able Prime Mover Only; Metromix Concrete Cartage Cost Model - 2.0m3 Able Prime Mover Only; Metromix Concrete Cartage Cost Model - 1.0m3 Able Prime Mover Only) as at the date this Contract Determination commences to operate and then as varied from time to time in accordance with this Contract Determination.

 

SCHEDULE 2 - UTILISATION REVIEWS

 

1.  Utilisation Review

 

1.1       Process

 

On a quarterly basis, Metromix will undertake a utilisation review in accordance with this Schedule to determine the value for the red inputs "Volume, Average Load (where present in the model) and Average Lead" in the "Key Variables & Price Sheet" of the "Metromix Concrete Cartage Cost Model".

 

(a)        The review must determine the value for the inputs referred to in clause 1.1 as at:

 

(i)         31 March;

 

(ii)        30 June;

 

(iii)       30 September; and

 

(iv)      31 December.

 

Notation: The 30 September utilisation review is undertaken with relevant rise and fall reviews.

 

1.2       Adjustment of Model

 

(a)        Having determined the value for the input "Volume, Average Load (where present in the model) and Average Lead" Metromix shall enter it into the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".

 

(b)        Having undertaken the step in clause 1.2 (a), Metromix shall refresh the Model.

 

1.3       New Rates

 

Following the process in clause 1.2, the new cartage rates and surcharges shall be the cartage rates and surcharges ascertained from the following sheets of the relevant "Metromix Concrete Cartage Cost Model":

 

(a)        RATE SCH Prime Mover Only; and

 

(b)        Prime Mover Only Surcharges.

 

1.4       Operative Date

 

Any new Cartage Rates and Surcharges arising from clause 1.3 shall be operative as of:

 

(a)        1 May;

 

(b)        1 August;

 

(c)        1 November; and

 

(d)        1 February.

 

1.5       Volume (Average Group Productivity)

 

(a)        This clause sets out how the value for the red input "Volume: in the relevant "Metromix Conrete Cartage Cost Model" is determined.

 

(b)        The "Volume" (Average Group Productivity) calculated on a MAT basis (using the relevant Metromix MAT model), will measure the annual average volume of adjusted paid loads carted by Contract Carriers in the Utilisation Group. This calculation will be rounded to the nearest 50 loads.

 

(c)        In calculating the "Volume" (Average Group Productivity), Metromix will have regard to:

 

(i)         the paid loads carted per month during the relevant Quarter by all Contract Carriers in the Utilisation Group;

 

(ii)        the number of Contract Carriers' Vehicles in the Utilisation Group per month during the relevant Quarter;

 

(iii)       the number of Working Days for the month;

 

(iv)      the number of Unavailable Days as a result of Authorised and Unauthorised Absence for all Contract Carriers in the Utilisation Group per month during the relevant Quarter; and

 

(v)       the MAT of adjusted paid loads carted per month for the relevant Quarter.

 

(d)        The following formula must be used to calculate adjusted paid meters carted per month:

 

M3/(N - (U/W)) = ADJUSTED LOADS PAID PER MONTH PER TRUCK

 

Where:

 

N = Number of Vehicles in the Utilisation Group

 

U =  Unavailable Days per Month

 

W = Working Days per Month

 

M3 = Total paid meters per month for Vehicles in a Utilisation Group

 

(e)        Unavailability will not arise where:

 

(vi)       the Contract Carrier has previously been notified by Metromix that the Contract Carrier is not required to perform Cartage Work on the relevant day;

 

(vii)      Force Majeure has occurred; or

 

(viii)     The Nominated Driver is otherwise on a period of Authorised Absence.

 

1.6       Utilisation Groups

 

All Utilisation Groups will be determined by Metromix, having regard to the needs of the business. There will be no changes to a Utilisation Group once determined, without prior consultation with the Consultative Committee.   

 

1.7       Consultation

 

Prior to undertaking the steps in clause 1.3 of this schedule, the Consultative Committee shall meet to consult on the adjusted model arising from clause 1.2 of this schedule.

 

SCHEDULE 3 - SURCHARGES

 

1.  Surcharges

 

1.1       The Surcharges are ascertained from the "Prime Mover Only Surcharges" of the relevant "Metromix Concrete Cartage Cost Model" as at the date this Contract Determination commences to operate and then as varied from time to time in accordance with this Contract Determination.

 

2.1       The Surcharges are:

 

(a)        (for a Contract Carrier who has not yet introduced a New Prime Mover in accordance with clause 5 Prime Mover) the Surcharges subject to the Utilisation and Rise and Fall reviews that operated immediately prior to this Contract Determination commencing; and

 

(b)        (for a Contract Carrier who has introduced a New Prime Mover in accordance with clause 5 Prime Mover) ascertained from "Prime Mover Only Surcharges" of the relevant "Metromix Concrete Cartage Cost Model" as at the date this Contract Determination commences to operate and then as varied from time to time in accordance with this Contract Determination.

 

SCHEDULE 4 - INSURANCES

 

The Contract Carrier must obtain the following insurance and maintain them at the Contract Carrier expense at all times:

 

(a)        compulsory third party insurance for the Vehicle as required by any relevant law;

 

(b)        comprehensive motor Vehicle insurance covering personal injury and property damage arising from the use of the Vehicle for $10,000,000 (or such higher sum as Metromix requires from time to time) for each claim or occurrence;

 

(c)        public and products liability covering legal liability to any third party for personal injury and/or property damage arising from the Contract Carrier business, this Contract Determination or the Contract Carrier breach of this Contract Determination for $20,000,000 (or such higher sum as Metromix requires from time to time) for each claim or occurrence with extension to cover:

 

(d)        wrongful delivery of Concrete;

 

(e)        workers’ compensation insurance as required by any relevant law;

 

(f)        insurance covering the Agitator (transit mixer and barrel);

 

(g)        solidification of Concrete insurance; and

 

(h)        personal accident and sickness insurance.

 

SCHEDULE 5 - 1.0m3 MOVER SPECIFICATION

 

1.  Specification

 

1.1       Subject to this Schedule, Metromix may determine the specification from time to time.

 

1.2       If Metromix change a specification it must:

 

(a)        consult with the Consultative Committee; and

 

(b)        provide each Contract Carrier with a copy of the specification.

 

1.3       Unless the specification is for a New Vehicle, if Metromix change a specification and in so doing the Contract Carrier is required to retro fit their Vehicle, Metromix must:

 

(a)        pay for the retro fit; or

 

(b)        adjust the relevant "Metromix Concrete Cartage Cost Model" to reflect to cost of the retro fit.

 

1.4       Any adjustment arising from 1.3 shall be operative from the next review (after the adjustment) arising from Schedule 8.

 

SCHEDULE 6 - 2.0m3 PRIME MOVER SPECIFICATION

 

1.  Specification

 

1.1       Subject to this Schedule, Metromix may determine the specification from time to time.

 

1.2       If Metromix change a specification it must:

 

(a)        consult with the Consultative Committee; and

 

(b)        provide each Contract Carrier with a copy of the specification.

 

1.3       Unless the specification is for a New Vehicle, if Metromix change a specification and in so doing the Contract Carrier is required to retro fit their Vehicle, Metromix must:

 

(a)        pay for the retro fit; or

 

(b)        adjust the relevant "Metromix Concrete Cartage Cost Model" to reflect to cost of the retro fit.

 

1.4       Any adjustment arising from 1.3 shall be operative from the next review (after the adjustment) arising from Schedule 8.

 

SCHEDULE 7 - 3.0m3 PRIME MOVER SPECIFICATION

 

1.  Specification

 

1.1       Subject to this Schedule, Metromix may determine the specification from time to time.

 

1.2       If Metromix change a specification it must:

 

(a)        consult with the Consultative Committee; and

 

(b)        provide each Contract Carrier with a copy of the specification.

 

1.3       Unless the specification is for a New Agitator, if Metromix change a specification and in so doing the Contract Carrier is required to retro fit their Vehicle, Metromix must:

 

(a)        pay for the retro fit; or

 

(b)        adjust the relevant "Metromix Concrete Cartage Cost Model" to reflect to cost of the retro fit.

 

1.4       Any adjustment arising from 1.3 shall be operative from the next review (after the adjustment) arising from Schedule 8.

 

SCHEDULE 8 - RISE AND FALL

 

1.  Annual Cost Model Review

 

1.1       Review Process

 

(a)        Subject to clause 1.1 (d), each year, Metromix shall review the green inputs set out in the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".

 

(b)        The review must determine the value for the green inputs as at 30 September in that year.

 

(c)        The value is to be determined by Metromix from enquiries of the sources and methodology used (and if not available a reasonable like source and methodology) to build the relevant "Metromix Concrete Cartage Cost Model".

 

(d)        Despite clause 1.1(a), the inputs set out in the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model" in the left hand column set out in the table below shall only be subject of review in accordance with period set out in the right hand column set out in the table below:

 

1.0m3 Prime Mover RRP

The review occurring on 30 September 2018

2.0m3 Prime Mover RRP

and thereafter every 10 years.

3.0m3 Prime Mover RRP

 

 

1.2       Consultation on Inputs

 

Metromix shall consult with the Consultative Committee (refer to clause 27 of this Contract Determination) about the outcome of the review before finalising the values referred to in clause 1.1.

 

1.3       Adjustment of Model

 

(a)        Having determined the values of the green inputs set out in the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model", Metromix shall enter any changes to the values for the blue inputs (refer to clause 1.1((d)) into the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".

 

(b)        Having undertaken the step in clause 1.3 (a), Metromix shall refresh the Model.

 

1.4       New Rates

 

Following the process in clause 1.3, the new cartage rates and surcharges shall be the cartage rates and surcharges ascertained from the following Sheets of the relevant "Metromix Concrete Cartage Cost Model":

 

(a)        RATE SCH Prime Mover Only; and

 

(b)        Prime Mover Only Surcharges.

 

1.5       Operative Date

 

Any new Cartage Rates and Surcharges arising from clause 1.4, shall be operative from the first of November following the Review.

 

2.  Periodic Fuel Review

 

2.1       Process

 

(a)        Subject to clause 2.1(b), each year Metromix shall review the red inputs for "Fuel - Exc GST, Diesel Fuel Rebate - Off Road Use, Diesel Fuel Rebate - On Public Road and Fuel Additive set out in the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".

 

(b)        The review must determine the value for the inputs referred to in clause 2.1 (a) as at:

 

(i)         31 March;

 

(i)         30 June;

 

(ii)        30 September; and

 

(iii)       31 December.

 

Notation: The 30 September review of fuel is undertaken in conjunction with the Annual Cost Model Review set out in clause 1 of this Schedule.

 

(c)        The value is to be determined by Metromix from enquiries of the sources and methodology used (and if not available a reasonable like source and methodology) to build the relevant "Metromix Concrete Cartage Cost Model".

 

2.2       Consultation on Inputs

 

Metromix shall consult with the Consultative Committee (refer to clause 27 of this Contract Determination) about the outcome of the review before finalising the values referred to in clause 2.1.

 

2.3       Adjustment of Model

 

(a)        Having determined the values for the red inputs "Fuel - Exc GST, Diesel Fuel Rebate - Off Road Use, Diesel Fuel Rebate - On Public Road and Fuel Additive set out in the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model", Metromix shall enter those values into the "Key Variables & Price Sheet" of the relevant "Metromix Concrete Cartage Cost Model".

 

(b)        Having undertaken the step in clause 2.3 (a), Metromix shall refresh the Model.

 

2.4       New Rates

 

Following the process in clause 2.3, the new cartage rates and surcharges shall be the cartage rates and surcharges ascertained from the following Sheets of the relevant "Metromix Concrete Cartage Cost Model":

 

(a)        RATE SCH Prime Mover Only; and

 

(b)        Prime Mover Only Surcharges.

 

2.5       Operative Date

 

Any new Cartage Rates and Surcharges arising from clause 2.4 shall be operative as of:

 

(a)        1 May;

 

(b)        1 August;

 

(c)        1 November; and

 

(d)        1 February.

 

SCHEDULE 9 - FORMS

 

Such forms as Metromix reasonably determine from time to time.

 

SCHEDULE 10 - NEW CONTRACT CARRIERS

 

1.  Assignment

 

1.1       The Contract Carrier must not Assign or Dispose of, or purport to Assign or Dispose of the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work or any rights under it.

 

2.  Termination without Compensation and Notice

 

2.1       Metromix may terminate the Contract Carrier’s engagement immediately and without compensation to the Contract Carrier if:

 

(a)        the Contract Carrier does not pay within one month of demand any monies payable to Metromix;

 

(b)        Metromix gives the Contract Carrier a notice requiring repairs to the Contract Carrier’s prime mover within a time which is reasonable having regard to the required repairs and the Contract Carrier does not comply with that notice;

 

(c)        the Contract Carrier does not comply with any provision of the Contract Determination, and the Contract Carrier fails to remedy (and keep remedied) that default within fourteen (14) days (or such other period as may be agreed in writing) of written notice from Metromix requiring the default to be remedied;

 

(d)        the Contract Carrier Assigns or Disposes of, or purports to Assign or Dispose of the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work or any rights under it;

 

(e)        except when the Contract Carrier’s prime mover is undergoing required repairs within a time which is reasonable having regard to the required repairs (proof of such reasonableness shall lie with the Contract Carrier) the Contract Carrier’s Vehicle is unavailable to perform the Cartage Work without Metromix's authorisation; or

 

(f)        the Nominated Driver commits an act that were they an employee of Metromix the act would constitute serious misconduct.

 

3.  Termination without Compensation but with Notice

 

3.1       Despite clause 2, Metromix may terminate the Contract Carrier’s engagement without cause and without compensation, upon 3 months’ written notice to the Contract Carrier.

 

Notation: In some circumstances the Transport Industry - Redundancy (State) Contract Determination might apply.

 

4.  Termination by Contract Carrier

 

4.1       The Contract Carrier may terminate their engagement by providing Metromix with three (3) months’ written notice.

 

5.  Dictionary

 

5.1       In this Schedule 10, words have the meaning given to them in clause 29 of this Contract Determination and in this dictionary unless the context requires otherwise.

 

Assign or

 

Dispose of  includes:

 

(a)        cause or permit a Change in Control of the Contract Carrier;

 

(b)        subcontract to another person performance of some or all of the Cartage Work;

 

(c)        let or part with possession of the Vehicle, except as a consequence of the purchase of a new Vehicle; or

 

(d)        cause or permit the Nominated Driver to be directly or indirectly employed by a person other than the Contract Carrier in relation to the Cartage Work.

 

Change in Control (without limitation) is taken to have occurred in relation to the Contract Carrier if without Metromix’s prior written consent:

 

(a)        a person who is not a director of the Contract Carrier becomes such a director;

 

(b)        a person ceases to be, or becomes, the natural person who directly or indirectly controls the Contract Carrier;

 

(c)        a person ceases to hold, or to own beneficially, or becomes the holder or the beneficial owner of, a majority of the voting shares (as defined in the Corporations Law) in the Contract Carrier;

 

(d)        a person ceases to have, or commences to have, the capacity to appoint a majority of the directors of the Contract Carrier; or

 

(e)        a person who is a director of the Contract Carrier ceases to be such a director; or

 

(f)        in relation to any trust entitled to any income flowing from, or to any shares in, the Contract Carrier;

 

(i)         a person ceases to be, or becomes, a beneficiary or discretionary object of the trust;

 

(ii)        a distribution of, or an appointment of, such income under the trust is made in favour of a person who has not previously been the subject of a distribution or appointment of such income; or

 

(iii)       any such share is included in property the subject of a distribution or appointment of capital from or under the trust.

 

Claims includes actions, causes of action, potential causes of action, investigations, prosecutions, suits, legal proceedings, disputes, differences, rights, duties, obligations, liabilities, responsibilities, accounts, interests, costs (whether or not the subject of a court order) and demands.

 

Confidential Information means all information and materials in any form concerning Metromix, its customers or suppliers, and includes without limitation, information regarding Metromix’s business or financial activities, pricing or quoting structures or any other information which Metromix indicates to be Confidential Information, but does not include materials which are in the public domain other than by way of unauthorised disclosure.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Insolvency Event means:

 

(a)        a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they become due and payable;

 

(b)        a person is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;

 

(c)        an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;

 

(d)        an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) days;

 

(e)        a receiver or receiver and manager is appointed in respect of any property of a corporation;

 

(f)        a corporation is deregistered under the Corporations Act or notice of its proposed deregistration is given to the corporation;

 

(g)        a distress, attachment or execution is levied or becomes enforceable against any property of a person;

 

(h)        a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members, or a moratorium involving any of them;

 

(i)         a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven (7) days or a person presents a petition against himself or herself;

 

(j)         a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth); or

 

(k)        anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

 

SCHEDULE 11 - CONTRACT CARRIERS AND THIER PERMITTED

 

ASSIGNEES WHO COMMENCED BEFORE 1 OCTOBER 2017

 

1.  Assignment

 

1.1       The Contract Carrier must not Assign or Dispose of, or purport to Assign or Dispose of the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work or any rights under it except in accordance with Annexure A to this Schedule 11.

 

2.  Termination without Compensation and Notice

 

2.1       Metromix may terminate the Contract Carrier’s engagement immediately and without compensation to the Contract Carrier if:

 

(a)        the Contract Carrier does not pay within one month of demand any monies payable to Metromix;

 

(b)        Metromix gives the Contract Carrier a notice requiring repairs to the Contract Carrier’s prime mover within a time which is reasonable having regard to the required repairs and the Contract Carrier does not comply with that notice;

 

(c)        the Contract Carrier does not comply with any provision of the Contract Determination, and the Contract Carrier fails to remedy (and keep remedied) that default within fourteen (14) days (or such other period as may be agreed in writing) of written notice from Metromix requiring the default to be remedied;

 

(d)        the Contract Carrier Assigns or Disposes of, or purports to Assign or Dispose of the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work or any rights under it except in accordance with Annexure A to this Schedule 11;

 

(e)        except when the Contract Carrier’s prime mover is undergoing required repairs within a time which is reasonable having regard to the required repairs (proof of such reasonableness shall lie with the Contract Carrier) the Contract Carrier’s Vehicle is unavailable to perform the Cartage Work without Metromix's authorisation; or

 

(f)        the Nominated Driver commits an act that were they an employee of Metromix the act would constitute serious misconduct.

 

3.  Termination with Compensation and Notice

 

3.1       Despite clause 2, Metromix may terminate the Contract Carrier’s engagement without cause by providing:

 

(a)        3 months’ written notice to the Contract Carrier; and

 

(b)        a payment (if any is required) of the Termination Payment set out in Annexure C to this Schedule 11.

 

4.  Termination by Contract Carrier

 

4.1       The Contract Carrier may terminate their engagement by providing Metromix with three (3) months’ written notice.

 

5.  Dictionary

 

5.1       In this Schedule 11, words have the meaning given to them in clause 29 of this Contract Determination and in this dictionary unless the context requires otherwise.

 

Assign or

 

Dispose of includes:

 

(a)        cause or permit a Change in Control of the Contract Carrier;

 

(b)        sub contract to another person performance of some or all of the Cartage Work;

 

(c)        let or part with possession of the Vehicle, except as a consequence of the purchase of a new Vehicle; or

 

(d)        cause or permit the Nominated Driver to be directly or indirectly employed by a person other than the Contract Carrier in relation to the Cartage Work.

 

Change in Control

 

(without limitation) is taken to have occurred in relation to the Contract Carrier if without Metromix’s prior written consent:

 

(a)        a person who is not a director of the Contract Carrier becomes such a director;

 

(b)        a person ceases to be, or becomes, the natural person who directly or indirectly controls the Contract Carrier;

 

(c)        a person ceases to hold, or to own beneficially, or becomes the holder or the beneficial owner of, a majority of the voting shares (as defined in the Corporations Law) in the Contract Carrier;

 

(d)        a person ceases to have, or commences to have, the capacity to appoint a majority of the directors of the Contract Carrier; or

 

(e)        a person who is a director of the Contract Carrier ceases to be such a director; or

 

(f)        in relation to any trust entitled to any income flowing from, or to any shares in, the Contract Carrier;

 

(i)         a person ceases to be, or becomes, a beneficiary or discretionary object of the trust;

 

(ii)        a distribution of, or an appointment of, such income under the trust is made in favour of a person who has not previously been the subject of a distribution or appointment of such income; or

 

(iii)       any such share is included in property the subject of a distribution or appointment of capital from or under the trust.

 

Claims includes actions, causes of action, potential causes of action, investigations, prosecutions, suits, legal proceedings, disputes, differences, rights, duties, obligations, liabilities, responsibilities, accounts, interests, costs (whether or not the subject of a court order) and demands.

 

Confidential Information means all information and materials in any form concerning Metromix, its customers or suppliers, and includes without limitation, information regarding Metromix’s business or financial activities, pricing or quoting structures or any other information which Metromix indicates to be Confidential Information, but does not include materials which are in the public domain other than by way of unauthorised disclosure.

 

Corporations Act means the Corporations Act 2001 (Cth).

 

Insolvency Event means:

 

(a)        a person is or states that the person is unable to pay from the person's own money all the person's debts as and when they become due and payable;

 

(b)        a person is taken or must be presumed to be insolvent or unable to pay its debts under any applicable legislation;

 

(c)        an application or order is made for the winding up or dissolution or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a corporation;

 

(d)        an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of a corporation or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within seven (7) days;

 

(e)        a receiver or receiver and manager is appointed in respect of any property of a corporation;

 

(f)        a corporation is deregistered under the Corporations Act or notice of its proposed deregistration is given to the corporation;

 

(g)        a distress, attachment or execution is levied or becomes enforceable against any property of a person;

 

(h)        a person enters into or takes any action to enter into an arrangement (including a scheme of arrangement or deed of company arrangement), composition or compromise with, or assignment for the benefit of, all or any class of the person's creditors or members, or a moratorium involving any of them;

 

(i)         a petition for the making of a sequestration order against the estate of a person is presented and the petition is not stayed, withdrawn or dismissed within seven (7) days or a person presents a petition against himself or herself;

 

(j)         a person presents a declaration of intention under section 54A of the Bankruptcy Act 1966 (Cth); or

 

(k)        anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of a person.

 

ANNEXURE A - ASSIGNMENT

 

1.  Entitlement

 

Subject to clause 3 of this Schedule 11, the Contract Carrier may assign the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work to a company:

 

(a)        which provides a driver whom:

 

(i)         possesses an appropriate current driver's licence; and

 

(ii)        before commencing work, satisfactorily undergoes Metromix's then current pre-engagement criteria and attends and satisfactorily completes any training program (to be held at Metromix’s closest available facility) relevant to the performance of the Cartage Work that Metromix reasonably requires; and

 

(b)        proved by the Contract Carrier to Metromix's reasonable satisfaction that they have a prime mover suitable for the Cartage Work without any modifications or rebuilding (unless those modifications or rebuilding are carried out at the Contract Carrier’s expense); and

 

(c)        approved by Metromix in writing (such approval not to be unreasonably withheld) after and only after:

 

(i)         Metromix has interviewed the principal(s) of the said company and explained:

 

A         the contents and operation of our Mini Cartage Contract;

 

B         the content and meaning of the Deed of Assignment (Annexure B); and

 

C         generally the operation of Metromix's business as it relates to contract carriers; and

 

(ii)        the company has confirmed in writing which if require by Metromix shall be in a Statutory Declaration) to Metromix's reasonable satisfaction its understanding of the representations made at the interview; and

 

(iii)       executed a Certificate of Financial Advice and a Certificate of Legal Advice.

 

2.  Deed of Assignment

 

The approved assignee shall execute (no sooner than seven days and no later than 21 days after being approved in writing in accordance with clause 1(c) of this Annexure) a  Deed of Assignment in the form (and only in the form) set out Annexure B to Schedule 11.

 

3.  Notice to Assign and First Option

 

(a)        Whenever the Contract Carrier intends to assign the contractual arrangement under which they are engaged by Metromix to perform the Cartage Work in accordance with this Annexure, they must first notify Metromix in writing of their intention.

 

(b)        Despite anything else in this Annexure A (or Schedule 11) Metromix and the Contract Carrier may agree on an arrangement (on such terms as the parties in their absolute discretion determine) to terminate the contractual arrangement rather than proceed with any assignment.

 

ANNEXURE B - DEED OF ASSIGNMENT

 

Deed of Assignment

 

DEED OF ASSIGNMENT made the __________ of ______________ 20___ in _________________

 

(the "Deed of Assignment")

 

BETWEEN:

 

(1)        METROMIX PTY LIMITED of ..........................................., NSW ("Metromix"); and

 

(2)        insert Company executing this Deed of Assignment as an Assignor Contract Carrier] (the "Outgoing Contract Carrier"); and

 

(3)        [insert Company executing this Deed as an Assignee Contract Carrier] (the "Incoming Contract Carrier").

 

RECITALS:

 

A.         Metromix carries on the business of the manufacture and sale of Concrete in New South Wales.

 

B.         The Outgoing Contract Carrier desires to assign to the Incoming Contract Carrier the Mini Cartage Contract and all its rights and other obligations under it.

 

THE PARTIES AGREE AND DECLARE as follows:

 

1.  Interpretation

 

1.1       In this Deed of Assignment, expressions used or defined in clause 29 and Schedule 11 of the Contract Determination have the same meaning in this Deed and in addition:

 

"Assignment Date" means the day upon which this Deed of Assignment is executed.

 

"Mini Cartage Contract" means the contractual arrangement under which the Outgoing Contract Carrier is engaged by Metromix to perform the Cartage Work a true copy of which is annexed to this Deed of Assignment.

 

2.  Assignment

 

2.1       With effect from the Assignment Date:

 

Metromix engages the Incoming Contract Carrier as a Contract Carrier to perform the Cartage Work instead of the Outgoing Contract Carrier;

 

the Incoming Contract Carrier agrees with Metromix to perform the Cartage Work on the terms and conditions of the Mini Cartage Contract; and

 

the Incoming Contract Carrier becomes a party to the Mini Cartage Contract.

 

3.  Release

 

3.1       Metromix and the Outgoing Contract Carrier confirm their obligations to make payments arising from the performance of their obligations under the Mini Cartage Contract and/or Contract Determination up to and including the Assignment Date which they now agree to be set out in the Schedule attached to this Deed of Assignment.

 

3.2       Except as provided in clause 3.1, with effect from the Assignment Date:

 

Metromix and the Outgoing Contract Carrier release each other from performance of any obligation under the Mini Cartage Contract and/or Contract Determination falling due for performance after the Assignment Date; and

 

Metromix and the Outgoing Contract Carrier release each other from any claim arising directly or indirectly under or in connection with the Mini Cartage Contract and/or Contract Determination.

 

4.  Acknowledgement by Incoming Contract Carrier

 

4.1       The Incoming Contract Carrier acknowledges that:

 

(a)        they were not required by Metromix to pay any goodwill, premium, fee paid for introductions to work or other similar consideration however termed and further Metromix does not request or desire such payment to be made when engaging the Incoming Contract Carrier; and

 

(b)        the Contract Carrier’s engagement may be terminated in accordance with clause 2, 3, 4 of Schedule 11 or clause 3 of Annexure A - Schedule 11.

 

EXECUTED as a Deed on the date hereinbefore mentioned

 

EXECUTION BY METROMIX OF THE DEED OF ASSIGNMENT:

 

SIGNED, SEALED AND DELIVERED                                               )

 

FOR AND ON BEHALF OF                                                                   )

 

METROMIX PTY LIMITED                                                                )

 

By its duly authorised officer                                                                )

 

.......................................................           ...................................................

 

Name:                                                                                        Witness:

 

EXECUTION BY THE OUTGOING CONTRACT CARRIER OF THE DEED OF ASSIGNMENT:

 

SIGNED, SEALED AND DELIVERED                                               )

 

for and on behalf of                                                                                )

 

[insert Outgoing Contract Carrier]                                                        )

 

..................................................             ......................................................

 

by its authorised officer in                                   Authorised Officer

 

the presence of:                                                     Name (printed):

 

..................................................

 

Witness

 

Name (printed):

 

EXECUTION BY THE INCOMING CONTRACT CARRIER OF THE DEED OF ASSIGNMENT:

 

SIGNED, SEALED AND DELIVERED                                               )

 

for and on behalf of                                                                                )

 

[insert Incoming Contract Carrier]                                                       )

 

..................................................             .......................................................

 

by its authorised officer in                                   Authorised Officer

 

the presence of:                                                     Name (printed):

 

..................................................

 

Witness

 

Name (printed):

 

Schedule - Payment Details

 

Notation: In accordance with clause 3.1, insert here any outstanding payments to be made to the Outgoing Contract Carrier

 

Annexure - True Copy of the Mini Cartage Contract Being Assigned

 

Attach True Copy

 

ANNEXURE C - TERMINATION PAYMENT

 

1.  Termination Payment

 

1.1       The Termination Payment is an amount calculated from the formula below less:

 

(a)        any amount that Metromix is required to pay the Contractor in accordance with the Transport Industry Redundancy (State) Contract Determination as varied or replaced from time to time; and/or

 

(b)        any other termination or severance payment required to be paid to the Contractor in accordance with another contract determination made by the Industrial Relations Commission of NSW from time to time.

 

1.2       The formula is:

 

During the ten year period from the day upon which this Contract Determination commenced operation:

 

$7,500 or, if greater, the amount calculated as:

 

$70,000 x (A/B)

 

A = The number of whole months between the termination date and the day that falls 10 years after the day upon which this Contract Determination commenced operation.

 

B = 120.

 

After the ten year period from the day upon which this Contract Determination commenced operation:

 

$7,500

 

SCHEDULE 12 - EMBARGO PLANT LIST

 

1.  Embargo Plants

 

1.1       List

 

The Plants listed in the table below are the Plants for the purposes of clause 24.3(a).

 

Plant Name

Plant Address

Able Hornsby

11 Salisbury Rd Hornsby

 

 

 

P. J.  NEWALL, Commissioner

 

 

____________________

 

 

Printed by the authority of the Industrial Registrar.

 

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