1. Parties
These Terms of Business are between deliberatepractice and its Client and apply each and every time deliberatepractice provides recruitment services to the Client.
2. Acceptance of the Terms of Business
The Client agrees to be bound by these Terms of Business by accepting details of personnel, viewing personnel or employing or engaging personnel introduced by deliberatepractice for a Permanent position offered by the Client, or for a Contract Assignment with the Client .
3. Variation to the Terms of Business
Any variation to the Terms of Business must be mutually agreed by both parties in writing.
4. Definitions
01. Candidate means any person who has sought or obtained placement by deliberatepractice in Permanent or fixed term employment with a Client of deliberatepractice, or by way of a Contract Assignment with a Client of deliberatepractice.
02. Client means any person or body to which deliberatepractice provides services and any Client Related Entity.
03. Client Related Entity means any entity connected with the Client including an entity with a common interest in an economic enterprise, for example, a related body corporate (as that term is defined in the Corporations Act 2001) or a joint venture partnership, or another government department or organisation within the public service sector.
04. Contract Assignment means the provision of either an Independent Contractor, or an On-Hire Employee to carry out a temporary or period of assignment for a Client of deliberatepractice.
05. deliberatepractice means deliberatepractice Pty Ltd (ABN 77 140 532 654) of Level 4, 410 Collins St Melbourne 3000, Nicemove Pty Ltd (ABN 63 603 139 813) and any deliberatepractice related entity.
06. deliberatepractice Related Entity means any entity connected with deliberatepractice by a common interest in an economic enterprise, for example, a related body corporate (as that term is defined in the Corporations Act 2001) or a joint venture partnership.
07. Salary Package means the on-target annual remuneration and benefits offered to employees to entice them to the position and company. This includes remuneration/salary, employer superannuation contributions (including compulsory contributions), allowances, inducement payments, guaranteed bonuses, anticipated commission and bonus earnings, non salary benefits, sign-on bonuses, short-term incentive plans, equity granted on commencement and any other incentive that has financial value excluding tools of trade. Where a Candidate is placed in a Permanent or Fixed Term role on a part-time basis the salary for calculating the placement fee will be on the basis of a full-time equivalent salary.
08. Fixed Term Placement means any person who has sought or obtained placement by deliberatepractice on a fixed term basis with a Client of deliberatepractice. A Fixed Term Placement is employed by the Client and the Client takes responsibility for payroll and all other legislative requirements.
09. Independent Contractors means any entity or its nominated representative engaged by deliberatepractice to carry out a temporary or contract assignment with a Client of deliberatepractice, who is engaged as an independent contractor and not as an On-Hire Employee. They are usually charged on an hourly, daily or project basis, which is dependent on the project and negotiated prior to commencement of each assignment or specific project.
10. On-Hire Employee means any person who has obtained placement by deliberatepractice on a temporary or contract assignment basis with a Client of deliberatepractice, who is employed or engaged by and pay-rolled by deliberatepractice. They are usually charged on an hourly, daily or project basis, which is dependent on the project and will be negotiated prior to commencement of each assignment or specific project.
11. Permanent means any person who has sought or obtained Permanent employment with a Client.
12. Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
13. Privacy Laws means the Privacy Act (Commonwealth) 1988 (and amendments including the Privacy Amendment (Private Sector) Act 2000 (Commonwealth).
14. Standard Fee Structure means the standard deliberatepractice fee structure as defined in Clause 5 or as varied from time to time by agreement in writing.
15. Floating means any person who’s details, resume/CV has been forwarded on to a client by deliberatepractice for the purpose of Permanent or fixed term employment, or by way of a Contract Assignment with a Client of deliberatepractice .
5. Fees
All fees are strictly payable within seven (7) days of the invoice date .
6. Fees for Permanent Assignments, Fixed Term Placements and Buy-Outs
01. Fees for Permanent Assignments, Fixed Term Placements and Buy-Outs:
a. Retained Assignment – The Client has requested an exclusive service to seek Candidates.
b. Advertised Search – This is a combination of advertised recruitment and utilisation of search in specific industries or areas.
c. Search – means the identification of potential Candidates by deliberatepractice and/or the Client and the targeting and direct approach of such Candidates by deliberatepractice.
02. The placement fee for (a) and (b) of the above is 22% of the Salary Package; The placement fee for is 28% of the Salary Package. All are payable as follows:
a. One-third of the total estimated fee upon acceptance of the assignment;
b. One-third of the total estimated fee upon presentation of the shortlisted Candidates;
c. The balance is payable upon successful completion of the assignment, which occurs as soon as an offer has been made and accepted by the successful Candidate.
03. The Client must pay for all work performed by deliberatepractice until the Client terminates the assignment.
04. Contingent Assignment – The Client is seeking candidates but is not necessarily seeking an exclusive approach. The fee upon confirmation of successful completion of the assignment, which occurs as soon as an offer has been made and accepted by the successful Candidate, will be 24% of permanent salary packages greater than or equal to $150,000, or 21% of permanent packages less than $150,000 .
05. Fixed Term Assignment – The placement fee for a Fixed Term Placement is as agreed in writing between the parties. Further fees will apply should the candidate extend beyond the initial contract period to a maximum of twelve (12) months. The fee will be 24% of the equivalent annualised salary package.
06. Buy-Out – Where an Independent Contractor and/or On-Hire Employee is transferred to a Permanent or other employment status, with the Client or any other person or body to which the client has introduced the Independent Contractor and/or On-Hire Employee, the client will be charged a fee equivalent to 24% of the Salary Package.
07. Invoicing for the final amount in relation to completion of a Contract Assignment, Fixed Term Placement or Buy-Out will take place as soon as the offer has been made and accepted by the successful candidate.
7. Fees for Contract Assignments
01. The fee will be negotiated prior to commencement of each Contract Assignment or specific project. The fee is based on the standard rate, overtime rates, shift penalties and allowances that would be paid to the On-Hire Employee or Independent Contractor, or their nominated representative. All payments to On-Hire Employees will be subject to PAYG withholding unless otherwise agreed in advance in accordance with deliberatepractice policies and the Australian Taxation Office guidelines.
02. deliberatepractice may vary the fee at any time without notice in light of the following:
a. Changes to CPI or market rates.
b. Variations to any award or agreement or rate of pay set by the Australian Fair Pay Commission applicable to the On-Hire Employee.
c. Any statutory charges, levies, taxes or other payments deliberatepractice is lawfully required to make or for which deliberatepractice may become liable in respect or providing an On-Hire Employee or Independent Contractor under these Terms of Business.
03. The Client must pay the fee to deliberatepractice according to the number of hours worked by the On- Hire Employee or Independent Contractor, or their nominated representative for the Client. Invoices are produced weekly based on the actual hours worked by the On-Hire Employee as evidenced by an authorised timesheet. These hours exclude unpaid meal breaks. The On-Hire Employee will be paid on terms to be negotiated prior to the commencement of the assignment.
04. The Client is responsible for paying deliberatepractice a fee equal to the reasonable business expenses incurred by an On-Hire Employee in performing an assignment and by Independent Contractors unless specifically agreed otherwise in writing. The Client must either (1) make all necessary arrangements with the On-Hire Employee or Independent Contractor for authorising and reimbursing expenses or (2) must review and authorise deliberatepractice to make such reimbursement in accordance with deliberatepractice policies and procedures and must pay deliberatepractice an additional fee. The additional fee will be calculated based on the costs incurred by deliberatepractice in making the reimbursement including any relevant taxes and on-costs less any input tax credits claimed by deliberatepractice plus GST on the additional fee when invoiced.
05. deliberatepractice requires original tax invoices from the On-Hire Employee to support On-Hire Employee expense claims. If the Client would prefer to pay an allowance or per day expense claim without providing supporting tax invoices, then the Client should notify deliberatepractice in advance to confirm the alternative documentation required and confirm amounts that may be paid tax-free.
06. It is the Client’s responsibility to review expense claim reimbursements and supporting documentary evidence of the On-Hire Employee and Independent Contractor before reimbursement is made or authorised. In no event shall the Client either authorise deliberatepractice to pay expenses or pay expenses directly to or for an On-Hire Employee which are of a private nature or for amounts in excess of Australian Taxation Office expense guidelines. If such payments are made in contravention of these Terms of Business, then the Client must accept an additional fee from deliberatepractice equal to the Fringe Benefits Tax and other payroll on- costs associated with provision of the taxable benefit to the On-Hire Employee.
8. Permanent Placements – General Provisions
01. Replacement Guarantee
a. If the requirements set out in this clause are met, deliberatepractice shall extend a replacement guarantee for Candidates recruited and placed as Permanent employees with the Client.
b. This guarantee means that if the successful candidate ceases employment with the client within three (3) months of commencement of such employment at the full fee rate) (the “Guarantee Period”) and the requirement set forth below are met, deliberatepractice will endeavour to find a replacement Candidate for the position without charging additional placement fees.
c. In circumstances where the fee is paid on acceptance of offer by the Candidate, and a Candidate withdraws their acceptance of an offer of employment from the Client prior to commencing such employment, the replacement guarantee may also apply, subject to the terms set out below:
d. The replacement guarantee only applies if:
i. All fees, charges and expenses owing by the Client in respect of the placement of the original Candidate have been paid in full in accordance with payment terms set forth in these Terms of Business, and the Client has no other amounts outstanding to deliberatepractice;
ii. The request to replace the Candidate is given exclusively to deliberatepractice;
iii. deliberatepractice is notified as soon as practicable that the client wishes to invoke the guarantee, and in any event thin the Guarantee Period;
iv. The original job description and assignment specification does not alter; and
v. There is not an unreasonable delay by the Client in instructing deliberatepractice to source the replacement Candidate.
e. The replacement guarantee does not apply:
i. If the Candidate employment ceases for reasons beyond deliberatepractice’s control including but not limited to matters such as redundancy, restructuring, economic circumstances, company closure, change of management, or substantial change from original job description; or
ii. If the Candidate is engaged by the Client in an On-Hire Employee capacity through deliberatepractice immediately prior to the acceptance of a Permanent position; or
iii. To replacement Candidates provided under this Clause.
f. The replacement guarantee is not transferable to other placements or recruitment services, and the Client is not entitled to any creditor refund for replacement guarantees that the Client does not wish to pursue or which are undertaken by deliberatepractice but not completed.
g. Any additional advertising costs are not included in this replacement guarantee.
h. If the remuneration package of the replacement Candidate increases from the original Candidate, the invoices amount will be adjusted appropriately.
02. Responsibilities After Permanent Placement
a. Once a Candidate is placed as an employee with a Client, the Client is the Candidate’s employer and has sole responsibility for the employee. deliberatepractice has no liability or obligations in respect of the termination of employment of the employee for any reason by the Client. This also applies to Fixed Term and Part Time Placements.
9. Contract Assignments
01. General Provisions
a. deliberatepractice can provide On-Hire Employees and Independent Contractors as required by the Client to provide services in accordance with these Terms of Business and the verbal or written job specifications given by the Client for a particular assignment.
b. On-Hire Employees and Independent Contractors are available for assignments of varying duration to suit the needs of the Client. However, with respect to Candidates engaged on a temporary basis, there is a minimum booking for each temporary of four (4) or more consecutive hours, and if the On-Hire Employee or Independent Contractor is engaged for less than four (4) hours the minimum of four (4) hours will be billed.
02. deliberatepractice Responsibilities in Relation to On-Hire Employees
a. If the need arises, deliberatepractice may substitute one On-Hire Employee for another.
b. deliberatepractice has the following responsibilities in relation to On-Hire Employees (where applicable):
i. Payment of remuneration;
ii. Deduction of all appropriate taxation required by the Australian Taxation Office;
iii. Workers’ compensation payments;
iv. Superannuation guarantee charges; and
v. Payroll tax.
03. Client’s Responsibilities in Relation to Contract Assignments
a. The Client has direct supervision and management of the On-Hire Employee of the Independent Contractor in the performance of each Contract Assignment for the Client. The Client directly controls the conditions under which the assignment is performed, and the outcome of the On- Hire Employee or Independent Contractor.
b. The Client is responsible for ensuring the health and safety of the On-Hire Employee or Independent Contractor while the On-Hire Employee or the Independent Contractors provides services to the Client at the Client’s premises, and must satisfy all its obligations in relation to the On-Hire Employee or Independent Contractor under applicable occupation health and safely and discrimination legislation. This includes, but is not limited to, the following:
i. Providing all necessary induction and other training and issuing all necessary policies, procedures, and directions;
ii. Immediately notifying deliberatepractice of any misconduct or performance related issues, any occupational health and safety risks or discrimination or harassment issues in connection with the provision of services by the On-Hire Employee or Independent Contractor and retain and provide deliberatepractice with documentation in relation to any of these matters;
iii. Requiring the On-Hire Employee or Independent Contractor to perform only those tasks that the On-Hire Employee / Independent Contractor is skilled and trained to perform; and
iv. Immediately notifying deliberatepractice if there are any changes in the tasks that the On-Hire Employee or Independent Contractor is assigned to perform for the Client.
v. The responsibility for protecting the Client’s confidential information and intellectual property lies solely with the Client. deliberatepractice shall not be held liable for any claim howsoever arising from the Client’s confidential information or intellectual property.
vi. The Client is responsible for ensuring that the On-Hire Employee or Independent Contractor is adequately covered by any insurance policy held by the Client in respect of the Client’s business. For example, if the On-Hire Employee or Independent Contractor is required by the Client to handle valuables such as cash, operate machinery or equipment, drive vehicles or handle documentation.
04. Cancellation of Contract Assignment
a. If the Client wishes to cancel a Contract Assignment prior to the scheduled commencement of the assignment, the Client must notify deliberatepractice in sufficient time for deliberatepractice to advise the On-Hire Employee or Independent Contractor of the cancellation.
b. If deliberatepractice is unable to advise the On-Hire Employee or Independent Contractor prior to the scheduled commencement of the assignment, the Client must pay deliberatepractice for the minimum booking of four (4) hours.
05. Termination of Contract Assignment
a. The Client may immediately terminate a Contract Assignment by giving verbal notice to deliberatepractice.
b. The Client must pay the fee for all hours worked by the On-Hire Employee or Independent Contractor up to the time that the On-Hire Employee or Independent Contractor leaves the Contract Assignment.
06. Approaches to On-Hire Employees or Independent Contractors
a. The Client must not discuss the On-Hire Employee or Independent Contractor fees, or any change to the On-Hire Employee or Independent Contractor fee, with an On-Hire Employee of Independent Contractor.
b. If a Client makes an offer of Permanent employment to an On-Hire Employee or Independent Contractor who is performing an assignment for the Client (or who has performed an assignment for the Client during the previous twelve (12) months) which the On-Hire Employee or Independent Contractor accepts, the Client must pay to deliberatepractice the normal Permanent placement fee in respect of the On-Hire Employee / Independent Contractor in accordance with deliberatepractice’s Standard Fee Structure.
c. The Fees payable under this clause are due and payable within seven (7) days of the On-Hire Employee or Independent Contractor commencing employment of the new assignment.
10. General Terms
01. Introduction of Candidates
a. deliberatepractice treats the introduction of Candidates and their details as strictly confidential, and therefore expects the Client to do the same.
b. If a Candidate or his or her details are introduced to or passed on to the Client (including the transfer of a candidate’s details to the Client’s database), and that introduction or transfer results in the Permanent employment or engagement on a contract basis of the Candidate, the Client must pay deliberatepractice the appropriate fee in accordance with these Terms of Business.
c. If a Candidate introduces another Candidate to the Client and that introduction results in Permanent employment or engagement on a contract basis of that Candidate, the Client must pay deliberatepractice the appropriate fee in accordance with these Terms of Business.
02. Non-Solicitation of deliberatepractice employees
a. The Client shall not solicit deliberatepractice employees.
b. In the event that a Client places a deliberatepractice employee in a role with the Client or any other person or body to whom the Client has introduced the employee, the Client will be charged a fee based on these Terms of Business.
03. Liability and Indemnities
a. deliberatepractice makes every effort to maintain a high standard of Candidates and to provide proper details of their qualifications and experience. However, as these details are based on information provided to deliberatepractice by the Candidate, their referees, and other third party organisations as relevant, deliberatepractice is not liable for any errors, omissions, inaccuracies or incorrect conclusions. Clients are responsible for the final recruitment decision and must satisfy themselves as to the suitability of the Candidate.
b. deliberatepractice is not liable for any loss, damage, costs or compensation (whether direct or indirect) which may be suffered by the Client, or for which the Client may become liable, arising from:
i. The introduction by deliberatepractice of Candidates (or delay in any such introduction); or
ii. The failure of a Candidate to accept an offer of employment or Contract Assignment.
c. The Client indemnifies deliberatepractice (and keeps deliberatepractice indemnified) on a full indemnity basis in respect of all losses, liabilities, costs or claims arising from or related to:
i. The actions or omissions of a Candidate, performing an assignment for the Client, whether wilful or negligent and whether or not occurring at the Client’s premises or the place where the assignment is performed.
ii. Any failure or alleged failure of a Candidate, to duly perform his or her obligations;
iii. Personal injury or death of a Candidate, or any other person howsoever arising from, or related to the performance by a Candidate of his or her obligations; and
iv. Damage to any property arising from, or related to the performance by a Candidate, of his or her obligations.
d. The Client further indemnifies deliberatepractice (and keeps indemnified) on a full indemnity basis in respect of all claims actions suits proceedings and hearings related to the Candidates assignment with the Client, including but not limited to termination of the assignment by the Client.
04. Goods and Services Tax (GST)
a. All fees payable under these terms of business are exclusive of GST.
b. GST will be added to the fee at the prevailing rate unless it is assessed by deliberatepractice to be GST exempt.
c. Out of pocket expenses, when applicable, will be calculated and charged as the amount incurred by deliberatepractice (net of input tax credit to which deliberatepractice is entitled) plus GST as applicable.
05. Privacy
The Client agrees to comply with the terms of the Privacy Laws regarding Personal Information and not to use Personal Information except for the purpose of engaging or considering a Candidate, On-Hire Employee or Independent Contractor to provide services to the Client. The Client must ensure that before disclosing any Personal Information to deliberatepractice the Client is entitled to disclose that information and without taking any further steps as required by the Privacy Laws deliberatepractice may use and disclose such information for the purpose of performing these Terms of Business. If the Client becomes aware of any breach or alleged breach of Privacy Laws concerning information disclosed by deliberatepractice to the Client or by the Client to deliberatepractice, then the Client must notify deliberatepractice immediately and comply with any reasonable directions of deliberatepractice with respect to such breach (or alleged breach).
06. Expenses
a. Couriers, interstate or overseas phone calls and facsimiles will be billed to the Client at a fixed rate.
b. Display advertising costs will be discussed and agreed with the Client in advance and billed at the applicable rate.
c. Out of pocket expenses which may be included (such as accommodation, meals and travel) will be agreed with the Client in advance.
d. All advertising expenses, couriers, interstate or overseas phone calls and facsimiles and out of pocket expenses will be separately invoiced immediately after those expenses are incurred. Such invoices are strictly payable within seven (7) days of the invoice date.
07. Payment for Work Performed
The Client shall make payment to deliberatepractice for all work performed, including where the client materially changes its specifications and deliberatepractice performs additional work.
08. Other Client Obligations
a. The Client is requested to refer all direct applications and internal applications to deliberatepractice.
b. The Client must notify deliberatepractice as soon as the Client makes an offer of employment to a Candidate introduced to the Client by deliberatepractice and must provide details of the offer.
c. If the Client defers a hiring decision in respect of a recruitment assignment performed by deliberatepractice and a Candidate is hired within twelve (12) months of the date of the initial introduction by deliberatepractice, the Client must pay to deliberatepractice the normal Permanent placement fee in accordance with these Terms of Business.
d. By agreeing to engage a Candidate introduced by deliberatepractice, within a twelve (12) month period from the date of the first introduction, the Client agrees to be bound by these Terms of Business and will be liable for the appropriate fee.
e. A mutually agreed fee will be charged to a Client where Candidates on deliberatepractice’s database are transferred to a Clients database. This fee is in addition to any other fee charged under this Agreement.
09. Governing Law
This Agreement is law of the State of Victoria and the parties submit to the non-exclusive jurisdiction of the courts of that State.
10. Interpretation
a. In the Interpretation of this Agreement:
b. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments issued under the legislation;
c. Words denoting the singular include the plural and vice versa; words denoting individuals or persons include body corporate and vice versa; references to documents or agreements also mean those documents or agreement as changed, novated or replaced, and words denoting one gender include all genders;
d. Grammatical forms of defined words or phrases have corresponding meanings;
e. Parties must perform their obligations on the dates and times fixed by reference to Victoria;
f. Reference to an amount is a reference to the amount in the lawful currency of the Commonwealth of Australia;
g. If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
h. References to a party are intended to bind their executors, administrators and permitted transferees;
i. Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
11. Assignment
The rights of the Client pursuant to this Agreement are restricted solely to the Client and shall not be assigned or transferred, without the written authorisation of deliberatepractice. Any attempted assignment will be void and of no effect.
