THIS AGREEMENT is made the date specified in the Schedule
MEGT (AUSTRALIA) LTD
A.C.N. 006 266 280
of 29 Ringwood Street, Ringwood in the State of Victoria
The party named and described as the Host Employer in the Schedule
(“the Host Employer”)
A. MEGT is in the business of employing Apprentices and Trainees under an Apprenticeship/Traineeship, and then placing the Apprentices and Trainees with Host Employers. B. The Host Employer agrees to host Apprentices and/or Trainees from time to time in accordance with the terms and conditions set out in this Agreement. C. This Agreement is made in accordance with standard 1.5 of the National Standards for Group Training Organisations which requires that all Group Training Organisations have, and comply with, a written agreement with each Host Employer that hosts an Apprentice or Trainee employed by a Group Training Organisation.
IT IS AGREED:
1.1 MEGT shall be and remain at all times the employer of any Apprentice/Trainee placed with the Host Employer under an Apprenticeship/Traineeship.
1.2 MEGT will make an Apprentice/Trainee available to the Host Employer on request and subject to availability.
1.3 The Host Employer agrees to host any Apprentice/Trainee from time to time provided by MEGT.
1.4 The Host Employer accepts and agrees that MEGT makes no warranty or representation as to the experience, skill or capacity of any Apprentice/Trainee placed with the Host Employer.
2. Obligations of MEGT
2.1 shall provide to the Host Employer a document known as a “Hassle Free” for each type of Apprentice or Trainee it places, detailing the Charge Out Rates and Allowances payable by the Host Employer to MEGT and other particulars related to the placement. The Hassle Free shall be incorporated into the Agreement.
2.2 remains responsible for the payment of the wages and Charges in respect of any Apprentice/Trainee placed with the Host Employer.
2.3 remains responsible for the observance of employer obligations under the terms and conditions of the Apprentice/Trainee’s employment.
2.4 will ensure that the Apprentice/Trainee receives employment conditions in accordance with the award, enterprise agreement or site agreement applicable to the Host Employer or the site.
2.5 will advise the Host Employer on the observance of employer obligations and employment conditions under the terms and conditions of the Apprentice/Trainees’ employment.
2.6 will outfit each Apprentice/Trainee with basic personal protection equipment to the maximum value as included in the Charge Out Rate and as incorporated in the Hassle Free.
3. Host Employer Obligations
3.1 The Host Employer agrees to host the Apprentice/Trainee for the minimum period of one month.
3.2 MEGT will provide a Tax Invoice on a weekly basis to the Host Employer for payment of the Host Fee for the Apprentices/Trainees it hosts. The Tax Invoice will set out the Charge Out Rate, Allowances, overtime, penalties and hours worked in respect of services provided by each Apprentice/Trainee over the period of the Tax Invoice.
3.3 MEGT may vary the Charge Out Rate and Allowances payable by the Host Employer for each Apprentice/Trainee it hosts without notice, and retrospectively, if necessary, to cover cost increases imposed on MEGT as a result of award, enterprise agreement, site agreement and levy variations or other factors that may affect the Charge Out Rate and Allowances and costs borne by MEGT.
3.4 If the Apprentice/Trainee completes their duties prior to the completion of a full day, MEGT is entitled to invoice the Host Employer for a full day.
3.5 The Host Employer must pay MEGT by direct debit from a bank account or credit card the full amount due under the Tax Invoice within 30 calendar days in full and without deduction.
3.6 The Host Employer will remit additional amounts to MEGT representing the GST payable for the supply of any Apprentice/Trainee placed with the Host Employer upon receipt of a valid Tax Invoice.
3.7 If the Host Employer fails to pay an amount on the due date for payment, the Host Employer must pay MEGT interest at the interest rate for the time being fixed under Section 2 of the Penalty Interest Rate Act (Vic) 1983 on that amount, calculated and payable daily, computed from the due date until the amount including interest is paid in full.
3.8 In the event that the Host Employer fails to pay in full the monies due to MEGT within the said period then:
(a) MEGT shall charge penalty interest on the outstanding monies in accordance with Clause 3.7; and
(b) MEGT may at its absolute discretion withdraw the Apprentice/Trainee.
3.9 If any additional costs, fees and expenses [including but not limited to banking, debt collection, legal (including solicitor/client costs) or otherwise] are incurred in recovering any outstanding monies, these additional costs, fees and expenses shall be fully payable by the Host Employer.
3.10 If for any reason the Host Employer decides to terminate this Agreement prior to the placement of the Apprentice/Trainee, all costs, fees and expenses incurred in the recruitment of the Apprentice/Trainee by MEGT shall be payable by the Host Employer.
3.11 The Host Employer must ensure any Apprentice/Trainee it hosts accurately completes time sheets and shall check and countersign time sheets submitted by any Apprentice/or Trainee that it hosts.
3.12 The Host Employer agrees that a timesheet signed by an Apprentice/Trainee shall be conclusive evidence of the matters stated in the timesheet and in particular the hours and charges in any Tax Invoice rendered by MEGT.
3.13 The Host Employer must not “on lease”, assign, loan, hire or sub-contract any Apprentice/Trainee to a third party.
3.14 The Host Employer must assist MEGT in preparing appraisals, assessments and reports on any Apprentice/Trainee that it hosts.
3.15 The Host Employer must allow representatives of MEGT access to interview any Apprentice/Trainee that it hosts at the premises of the Host Employer or any other place elected by MEGT from time to time.
3.16 The Host Employer must comply with all equal opportunity, anti-discrimination, occupational health and safety, workers compensation and any other applicable legislation, regulations, awards and codes of practice.
3.17 The Host Employer must notify MEGT if any enterprise agreements or other site agreements exist and of any variations made to such.
3.18 The Host Employer must comply with the Privacy Act 1988 as if it were an “organisation” and ignoring any exemption or concessions in relation to the operation of “small businesses”.
3.19 The Host Employer must comply at all times with MEGT policies and procedures and all lawful directions made by MEGT.
3.20 The Host Employer must provide constant supervision and instruction to any Apprentice/Trainee that it hosts to allow the Apprentice/Trainee to be trained in a safe, healthy and harassment free environment.
3.21 The Host Employer must provide such workplace training and instruction as would reasonably be required for the purpose of assisting any Apprentice/Trainee it hosts to gain the relevant trade qualification.
3.22 The Host Employer must release any Apprentice/Trainee it hosts to attend all training sessions as scheduled by the Group Training Organisation.
3.23 The Host Employer must not provide any Apprentice/Trainee it hosts with work which is unsuitable, unsafe or beyond the knowledge, skill or ability of the Apprentice/Trainee.
3.24 The Host Employer must outfit each Apprentice with any items of protective equipment and clothing required for personal protection in that particular location or work in addition to the basic personal protection equipment provided by MEGT pursuant to Clause 2.6. All items of personal protective equipment provided by the Host Employer must be sufficient to meet the duty of care owed by the Host Employer to the Apprentice/Trainee, comply with and conform to relevant safety standards and codes of practice, be in good working order and be of correct fit to the individual required to use same.
3.25 The Host Employer must ensure personal protective equipment and clothing are satisfactorily used or worn when required by any Apprentice/Trainee it hosts.
3.26 The Host Employer must provide any Apprentice/Trainee that it hosts with alternative work in the event of conditions that prevent a job from being completed.
3.27 Notwithstanding Clause 1, the Host Employer must comply with and abide by all applicable State and Federal occupational health and safety legislation on the basis that the Host Employer is the deemed employer of the Apprentice/Trainee and the Apprentice/Trainee is the deemed employee of the Host Employer for the purposes of the applicable State and Federal occupational health and safety legislation, including but not limited to:
(a) providing and maintaining a working environment that is safe and without risk to the health and welfare of any Apprentice/Trainee it hosts;
(b) providing and maintaining a work environment that is free of any acts of harassment (including but not limited to sexual harassment, bullying and violence);
(c) providing and maintaining safe plant and safe systems of work;
(d) providing adequate work facilities;
(e) ensuring any Apprentice/Trainee it hosts has adequate information, instruction, training and supervision to work in a safe and healthy manner; and
(f) assisting MEGT in undertaking a workplace hazard inspection before it hosts any Apprentice/Trainee.
3.28 In the event of any injury or illness suffered by any Apprentice/ Trainee that it hosts or any incident at the workplace which may expose risk to the Apprentice/Trainee’s health, safety and welfare:
(a) all workers compensation requirements, administration and claims are carried out by MEGT;
(b) the Host Employer must report immediately to MEGT any such injury illness or incident; and
(c) the Host Employer must ensure any injured Apprentice/Trainee placed with the Host Employer completes a report of injury or incident and forwards the report to MEGT as soon as possible.
3.29 If medical attention is required by any injured Apprentice/Trainee placed with the Host Employer, such Apprentice/ Trainee or Host Employer is to inform the medical provider that MEGT is their employer. MEGT is to be stated as “the employer” on any workers compensation claim completed by an injured Apprentice/Trainee placed with the Host Employer.
(a) The Host Employer will effect, maintain and keep current at all times public liability insurance cover for the minimum amount of $10 million (or such other amount as MEGT may from time to time require) against any loss, damage or injury to any third party caused by any Apprentice/Trainee that it hosts, and which arises out of or in the course of its hosting of the Apprentice/Trainee.
(b) The Host Employer must produce on request to MEGT satisfactory evidence of insurance cover and must pay all premiums before they became due for payment.
4.1 The Host Employer accepts and agrees that MEGT will use its best endeavours to ensure attendance by the Apprentice/Trainee or where the Apprentice/Trainee abandons the placement to provide a suitable replacement. The Host Employer agrees and accepts that the Host Employer shall not make any claim, suit, action, demand or proceedings of whatsoever nature against MEGT for the failure to attend by the Apprentice/Trainee or the inability of MEGT to provide a suitable replacement.
5.1 MEGT may terminate the placement of any Apprentice/Trainee placed with the Host Employer immediately without notice if:
(a) the Host Employer fails to pay any amount due to MEGT;
(b) the Host Employer breaches any obligations set out in this Agreement;
(c) either party terminates this Agreement pursuant to clause 6 (Non-solicitation); or
(d) the Host Employer commits or is involved in any act of insolvency including bankruptcy, liquidation, receivership, administration, scheme of arrangement or the like.
5.2 MEGT or the Host Employer may terminate the placement of any Apprentice/Trainee immediately without notice in the event of serious misconduct whether on the part of the Apprentice/Trainee or the Host Employer.
5.3 MEGT or the Host Employer may terminate the placement of any Apprentice/Trainee after the expiry of the initial period set by Clause 3.1 by giving not less than 14 days’ notice in writing or by mutual consent. If the Host Employer terminates the placement of the Apprentice/Trainee without the required 14 days notice, MEGT will invoice the Host Employer for a full 2 weeks of work at ordinary hours in lieu of notice.
5.4 MEGT or the Host Employer may terminate this Agreement after the expiry of the initial period set by Clause 3.1 by giving not less than 14 days’ notice in writing.
6.1 The Host Employer must not offer direct employment to any Apprentice/Trainee that it hosts, prior to the completion of the Apprenticeship/Traineeship with MEGT, by way of employment, indenture or training agreement without the prior written approval of MEGT.
6.2 If the Host Employer, prior to the completion of the Apprenticeship/Traineeship and with the prior written approval of MEGT, offers direct employment to any Apprentice/Trainee it hosts by way of employment, indenture or training agreement and such Apprentice/Trainee accepts that offer, the Host Employer must pay to MEGT the sum equivalent to 15% of the gross annual salary of the Apprentice/Trainee. The Host Employer then becomes the employer of the Apprentice/Trainee and becomes responsible for payment of all employment remuneration and entitlements in respect of the Apprentice/Trainee.
The Host Employer agrees that this Agreement is governed by the laws of the State of Victoria and the Host Employer agrees to submit to the exclusive jurisdiction of the courts of the State of Victoria.
8.1 A notice required or permitted to be given by one party to another under this Agreement shall be in writing and shall be treated as being duly given and received if it is:
(a) delivered personally to that other party;
(b) left at that other party's address;
(c) sent by pre-paid mail to that other party's address;
(d) sent by electronic mail to the electronic mail address of that other party; or
(e) transmitted by facsimile to that other party.
A notice given to a party shall be duly given and received:
(f) when delivered (in the case of it being delivered personally or left at that party's address);
(g) on the second Business Day after posting (in the case of it being sent by pre-paid mail); or
(h) on the day of transmission (if given by facsimile or electronic mail and no intimation having been received that the notice has not been received, whether that intimation comes from that party or from the operation of facsimile machine, computer or otherwise) provided that a notice transmitted after 5.00 pm on any day or on a day which is not a Business Day shall be treated as having been duly given and received at 9.00 am on the next Business Day. For the purposes of this clause, the address of a party is the address set out in this Agreement.
8.2 Each party shall promptly at its own cost do all things necessary (including signing and delivery of all documents) and shall procure that each of its officers, employees and agents do all things necessary (including signing and delivery of all documents) by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under this Agreement.
8.3 The rights and obligations of the parties in respect of agreements, indemnities, covenants and warranties contained in this Agreement shall remain in full force and effect, be continuing agreements, indemnities, covenants and warranties and not be merged or extinguished by or upon termination of or completion of any obligations under this Agreement.
8.4 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous communications, representations, inducements, undertakings, agreements or arrangements between the parties or their respective officers, employees or agents.
8.5 The failure, delay, relaxation or indulgence on the part of a party in exercising any power, right or remedy conferred upon that party by this Agreement shall not operate as a waiver of that power, right or remedy, nor shall the exercise of any single or partial exercise of any power, right or remedy preclude any other or further exercise of such power, right or remedy or the exercise of any other power, right or remedy under this Agreement.
8.6 Any waiver of a breach of this Agreement shall be in writing signed by the party granting the waiver and shall be effective only to the extent specifically set out in that waiver. 8.7 If any provision of this Agreement is invalid, illegal, void or not enforceable, it is to be read down, if possible, so as to be valid and enforceable and shall otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of that provision. 8.8 The Host Employer shall not, at law or in equity, assign, transfer or otherwise deal with any of its rights or obligations under this Agreement without the prior written consent of MEGT, which consent shall not be unreasonably withheld.
8.9 Time is of the essence of this Agreement.
9. Definitions and Interpretation
In this Agreement:
“Allowances” means such allowances as are payable in respect of work carried out for the Host Employer by any Apprentice/Trainee that it hosts from time to time based on the relevant legislation, industrial awards, enterprise agreement and site agreements;
“Apprentice” means a person whom MEGT has undertaken to train under a training agreement;
“Apprentice/Trainee” means an apprentice or a trainee as the case may be.
“Apprenticeship/Traineeship” means a form of structured entry level training which consists of training delivered under a formal training agreement in accordance with a mutually agreed training plan involving structured on the job training and may involve structured off the job training as well;
“Business Day” means any day other than a Saturday, Sunday or Public Holiday in the State that the Host Employer is located within;
“Charge Out Rate” means the Charge Out Rate specified in the Hassle Free form and as varied from time to time; “Charges” means income tax (PAYG withholding) payments, superannuation, worker’s compensation, TAFE fees, leave entitlements and the costs of provision of ATO payment summary;
“Group Training Organisation” means an organisation providing a group training service to apprentices, trainees and employers;
“GST” means Goods and Services Tax imposed by the A New Tax System (Goods and Services Tax) Act 1999;
“Hassle Free” means a document detailing the Charge Out Rates and Allowances payable by the Host Employer to MEGT;
“Host” means the placement of any Apprentice/Trainee with the Host Employer;
“Host Employer” means the person named and described as the Host Employer in the Schedule and includes all related and associate persons within the meaning of the Corporations Act 2001(Cwth);. “Host Fee” means such fee as is invoiced by MEGT to the Host Employer based on the time sheets delivered to MEGT from time to time and includes the Charge Out Rates, Allowances, overtime and penalties;
“Legislation” includes any requirement of any statute, rule, regulation, proclamation, order in council, ordinance or by law whether commonwealth, state, territory or local; “MEGT” means MEGT (Australia) Ltd, A.C.N.006 266 280, of 29 Ringwood Street, Ringwood in the State of Victoria;
“State” includes reference to a Territory where applicable;
“Tax Invoice” has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999;
“Trainee” means a person whom MEGT has undertaken to train under a training agreement.
9.2 In this Agreement:
(a) headings are inserted for convenience only and do not affect the interpretation of the Agreement; or unless the context otherwise requires:
(b) words importing the singular include the plural and vice versa;
(c) a word importing a gender includes the other gender;
(d) a reference to a person includes an individual, a partnership, a body corporate, a joint venture, an association (whether incorporated or not), an organisation, a government and a government authority or agency;
(e) a reference to a party or a person includes the party’s or the person’s executors, legal personal representatives, successors, transferees and assigns;
(f) a reference to a part, clause or party is a reference to a part or clause of, or a party to, this Agreement;
(g) a reference to this Agreement includes any schedules, annexures, exhibits or attachments to this Agreement;
(h) a reference to legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under such legislation;
(i) if the day on which anything is to be done is not a Business Day it shall be done on the next Business Day; and
(j) a reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars.