The below terms and conditions apply to permanent placement and temporary worker services provided by Talentpath Pty Ltd ABN 68 145 957 286.
Where you wish to engage us for services we will either:
Provide a copy of these terms and conditions which will include the final Placement Fee bands applicable to permanent placement services; or
Confirm our applicable Placement Fees via email prior to providing services. In this case, the below terms and conditions apply to that supply of services.
If you do not agree to any of the below terms and conditions, please let us know so we can discuss and seek agreement prior to providing services.
You should otherwise note clause 1.2 below which sets out how these terms and conditions will become binding on you.
1.Introduction
1.1 These Terms comprise the agreement for the provision of Services between the client specified above (you, your, Client) and Talentpath Pty Ltd ABN 68 145 957 286 (we, us, our).
1.2 These Terms become immediately binding on both parties and apply to all Services we provide (and take priority over any other terms provided by you) when:
(a) you advise us that you accept these Terms, including via email; or
(b) you interview or Engage a Candidate we have Introduced to you or accept a Temporary Worker on Assignment; or
(c) after receiving a copy of these Terms you request Services from us.
1.3 If we provide Services to your Associated Entity, you agree you are liable to us as if you received those Services directly, and references to you will be references to your Associated Entity as the context requires.
1.4 Any Agreed Changes specified above will apply to these Terms and will be binding on the parties. Any other variations to these Terms or a variation to an Assignment Confirmation must be in writing and agreed to by the parties.
1.5 You will find the key definitions used in these Terms in Section 6.
2. Permanent placement services
The recruitment process
2.1 We agree to:
(a) assess potential Candidates against any lawful and reasonable express requirements you provide to us;
(b) use our best endeavours to interview each Candidate before submitting them to you (by telephone, video or in person);
(c) use our best endeavours to Introduce you to Candidates we assess as suitable for the relevant role; and
(d) coordinate the recruitment process for you.
2.2 You agree to:
(a) provide sufficient information about the role and Candidate requirements;
(b) arrange and coordinate all medical, police and other background checks unless otherwise agreed; and
(c) confirm and arrange all required visas and other working rights requirements.
2.3 The final decision about the character, qualifications, capacity and ability of a Candidate to perform the inherent requirements of the role rests with you (including the enforceability of any applicable post-employment obligations), as does the obligation to meet all working rights requirements and pay, manage and direct the Candidate once you Engage them.
Retained Search Services
2.4 If you engage us to provide retained search services, we will agree with you on any additional terms and conditions that apply to the retained search campaign. Unless we agree otherwise, we will invoice our Placement Fee for a Candidate you Engage as part of Retained Search Services as follows:
(a) Commencement Payment: one-third (33.33%) of the estimated Placement Fee (determined by us acting reasonably) when you appoint us to perform Services;
(b) Shortlist Payment: A further one-third (33.33%) of the estimated Placement Fee when we present a shortlist; and
(c) Completion Payment: The balance of the Placement Fee (based on the actual Total Remuneration offered to the Candidate) when the Candidate accepts your offer in writing.
The Placement Fee is therefore incurred on a milestone basis, and each milestone payment is in consideration of our Services and the dedication of expertise, resources and time, including the Commencement Payment.
2.5 To avoid doubt, for each subsequent Candidate for whom a Placement Fee is payable under these Terms, the Placement Fee is incurred when the Candidate accepts your offer in writing and will be invoiced in total, not as milestone payments.
For example, if you Engage two Candidates:
Candidate 1 – we will invoice the Placement Fee as 3 payments
Candidate 2 – we will invoice the Placement Fee as one sum
How we calculate Placement Fees
2.6 To calculate a Placement Fee, we multiply the Candidate's applicable Total Remuneration by the corresponding percentage.
2.7 If we do not know the Candidate's final Total Remuneration, we will calculate the Placement Fee using the highest value in the provided salary range. If there is no salary range, we will, acting reasonably, rely on industry benchmarking data to apply the highest salary applicable to the role (or its equivalent).
2.8 A minimum Placement Fee of $6,000.00 (excluding GST) applies per Candidate you Engage under these Terms.
2.9 Without limiting clause 2.10, if we provide a shortlist of one or more Candidates and you subsequently fill the role internally, or the role is withdrawn or significantly altered, we reserve the right to charge you a services fee of $6,000.00 (excluding GST) in consideration of the Services we have provided. If you then Engage a Candidate from a shortlist, we will deduct the services fee from the applicable Placement Fee. Each subsequent Candidate you Engage from the same shortlist will incur a full Placement Fee.
Invoicing and payment of Placement Fees
2.10 You agree you will incur the applicable Placement Fee specified in these Terms per Candidate if within nine months of our Introduction:
(a) you Engage a single or multiple Candidates in any role(s); or
(b) you refer an Introduced Candidate to another party and they Engage that Candidate in any role (including to supply the Candidate(s) to you in any role).
2.11 We will issue invoices for our Placement Fees when the Candidate accepts your offer of Engagement. If we are not made aware of a Candidate Engagement and clause 2.10(a) or 2.10(b) applies, we will issue our invoice for our Placement Fee immediately after we become aware of the Engagement.
2.12 You agree to pay our invoices for permanent placement services and expenses within seven days from the invoice date.
Placement Fees for part-time roles and contract roles
2.13 Our Placement Fees for part-time, fixed term contract and maximum term contract roles will be calculated on the equivalent full-time Total Remuneration and not reduced.
Expenses
2.14 You agree to reimburse us for all pre-approved costs we incur in performing Services, regardless of whether you Engage a Candidate. This clause also applies to any replacement Candidates we present under these Terms.
Replacement Candidate search
2.15 If an Engaged Candidate elects not to commence, resigns, or is terminated within 12 weeks, we will search for a replacement Candidate for the same role based on the original search brief. We only provide this service for an original Candidate, not for any Candidate you subsequently Engage as a replacement Candidate. This separate obligation of ours does not discharge your obligation to pay us a Placement Fee under these Terms for the original Candidate and is not a guarantee that a replacement Candidate will be successfully Engaged by you.
2.16 Our obligation to undertake a search for a replacement Candidate under clause 2.15 is subject to all of the following conditions:
(a) Our obligation does not apply to Candidates you referred to us.
(b) Our obligation to search for a replacement Candidate expires on the earlier of a replacement Candidate accepting your offer to be Engaged and six months after the original Candidate’s last day with you.
(c) You must have paid all Placement Fees and expenses for the original Candidate on time, and no other amounts are more than 14 days overdue under these Terms.
(d) The Candidate was not unlawfully terminated or termination was not due to redundancy, or a restructuring, reorganisation or business closure, or a change in the original role specification provided to us.
(e) The original Candidate does not provide reasonable evidence (1) of bullying, discrimination or other misconduct within your workplace; (2) that they were misled during the recruitment process; or (3) that you changed or failed to implement the original role specification provided to us.
(f) We do not undertake replacement searches for an internal Candidate you Engage or where a Temporary Worker has been Engaged pursuant to clause 3.21.
2.17 If a replacement Candidate’s Total Remuneration is higher than the original Candidate's, we reserve the right to invoice you for the difference in the Placement Fee once they have commenced with you.
Re-Engaging a Candidate
2.18 A full Placement Fee is again payable if you or an Associated Entity re-Engage a Candidate we have replaced under these Terms within 12 months of their last day with you.
3. Temporary services
Our Services and Engagement of Temporary Workers
3.1 When we supply a Temporary Worker to perform an Assignment for you, we will confirm this via an Assignment Confirmation, including the Rate(s). You agree to pay the Rates and any expenses in accordance with these Terms and an accepted Assignment Confirmation. An Assignment Confirmation incorporates these Terms. If you accept a Temporary Worker on Assignment after receiving the Assignment Confirmation, this will be deemed acceptance of the Assignment Confirmation.
3.2 You agree to tell us the tasks to be performed by a Temporary Worker, their required qualifications, licences, skills and experience, and any pre-checks you need to complete. We will complete one reference check for a Temporary Worker.
3.3 Our Services do not include a Temporary Worker’s performance of work and tasks for you. You agree we do not possess the skills or expertise required to perform an Assignment, and we do not have any express or implied control over how an Assignment is performed or how a Temporary Worker’s work and tasks are delivered to you.
3.4 We will pay Temporary Workers and remit their PAYG withholdings and superannuation, and remit payroll tax and provide workers compensation insurance for Temporary Workers as required by law.
Payment and invoicing
3.5 We will calculate the total charges by applying the Rate to the hours or days (or part thereof) shown on a Temporary Worker's timesheet. Our invoices will be based on submitted timesheets, which we are entitled to rely on as evidence of the hours worked performed by the Temporary Worker.
3.6 A minimum charge of four hours per day worked on Assignment applies.
3.7 We invoice weekly for Assignments.
3.8 You agree to pay our invoices for temporary services and expenses within seven days from the invoice date.
Other costs and variations in Fees
3.9 You agree to reimburse us for the costs of a Temporary Worker's police, medical, licence and qualification checks and other pre-approved costs we incur at your request. You also agree to reimburse us for authorised expenses incurred by a Temporary Worker while on Assignment with you that we reimburse to the Temporary Worker (as well as any applicable taxes).
3.10 You agree we may increase a Rate (and apply increases to backpay as required by law) from the date any of the following take effect:
(a) an increase in minimum superannuation contributions or our workers compensation premiums;
(b) a variation in an award, wage rate, statutory charge, industrial instrument, law or tax;
(c) an additional or new statutory charge, levy or tax; or
(d) a change in a Worker’s duties or location at your request,
provided that we will endeavour to provide you with reasonable written notice of a proposed Rate increase.
3.11 You also agree we may pass through any statutory entitlement (using the Rate) we are required to pay a Temporary Worker while on Assignment that has not been included in the Rate. To avoid doubt, we will only invoice you for entitlements that are taken or that have fallen due.
3.12 You agree to immediately inform us in writing if you become aware that a party intends under s 306E(1) of the Fair Work Act to apply to Fair Work Commission (FWC) to make a regulated labour hire arrangement (RLHA) of which the host employer is the “regulated host” and which potentially covers current or future Talentpath casual or temporary workers. This information will be provided to us whether or not the application to FWC directly references Talentpath. You will also advise us in writing of any RLHAs in place with other labour hire agencies that relate to any work that is potentially to be outsourced or has been outsourced to Talentpath casual or temporary workers.
3.13 If you require a Temporary Worker to work overtime or outside ordinary hours, we will increase the Rate to pass through any increased charges, including shift allowances and penalty rates.
3.14 If during a Temporary Worker’s ongoing Assignment with you, we cannot rely on a defence of reasonable business grounds and must by law convert a willing Temporary Worker to permanent employment, you agree to consider a request from us to Engage them as your permanent employee.
Ending Assignments
3.15 We may immediately remove a Temporary Worker and end an Assignment if:
(a) you remain overdue in paying any undisputed amount under these Terms two days after notice from us; or
(b) you fail to meet your health and safety obligations under these Terms; or
(c) we reasonably believe you or any of your officers, employees, agents or contractors have engaged in misconduct, including sexual harassment, bullying or discrimination.
3.16 If you are not satisfied with one of our Temporary Workers or wish to end an Assignment, you must speak to us directly and not communicate anything to our Temporary Worker that indicates that their Assignment will be cancelled or modified.
3.17 If you wish to end a Temporary Worker’s Assignment that has been regular and systematic for six months or more, you agree to provide us with at least seven days’ notice of the proposed Assignment termination date, the reasons for the termination and to allow us to address any underperformance issues (where applicable).
3.18 You indemnify and keep us indemnified against compensation we are required to pay a Temporary Worker to the extent a Court, commission or tribunal determines that you acted against a Temporary Worker in a manner that is determined to be discriminatory, adverse, unfair or unlawful. Your indemnity obligation will not apply to the extent we are negligent in providing our Services, our liability cannot be limited or excluded by applicable law, or a non-delegable duty applies to us.
3.19 Acting reasonably, we may terminate an Assignment for any reason by giving no less than seven days notice.
3.20 In all cases of cancellation, termination or postponement of a Worker’s Assignment you agree to pay the Worker’s applicable notice period (including all or part in lieu).
3.21 All amounts due to us at the time an Assignment ends will be invoiced, including any unworked part of the Worker’s applicable notice period.
Engaging a Temporary Worker other than through us
3.22 In recognition of the business goodwill attached to our Temporary Workers, if you or any of your Associated Entities:
(a) Engage a Temporary Worker in any role; or
(b) refer a Temporary Worker to a third party who Engages that Temporary Worker in any role (including another recruitment agency, or payroll or contractor management services business),
either (1) within six months after our Introduction (but we do not supply them to you); (2) during an Assignment; or (3) within 12 months of the last day the Temporary Worker was on Assignment with you, you will incur a full Placement Fee calculated under clause 2.6 (Conversion Fee).
3.23 Where we do not know the Total Remuneration, we will calculate the Conversion Fee:
(a) using the Temporary Worker's last applicable hourly base rate of pay multiplied by 1976 (being 52 weeks x 38 hours); or
(b) if you Engage a Temporary Worker after our Introduction but before we supply them to you, by relying on industry benchmarking data (acting reasonably).
Supervision and management of our Temporary Workers
3.24 You are responsible for the conditions under which a Temporary Worker performs an Assignment and the outcomes of the work and services they perform for you.
3.25 Without limiting your role in providing day-to-day direction to a Temporary Worker to enable them to perform an Assignment in accordance with your requirements, you agree that where we are the employer, you must not independently conduct formal Temporary Worker performance reviews or manage their underperformance.
3.26 You agree you will not change the Assignment description, a Temporary Worker’s hours or location of work, or their actual or anticipated duties or tasks without notifying us first. This includes interstate or overseas travel.
3.27 Unless the law imposes a mandatory obligation on you to provide a return-to-work program, you agree to use your best endeavours to provide an employee Temporary Worker with a return-to-work program where they have suffered an occupational injury/illness in your workplace.
Health, safety and well-being of Temporary Workers
3.28 You acknowledge that you are responsible, in conjunction with us and others (in accordance with the parties’ statutory responsibilities), for the work health and safety of our Temporary Workers while they are on Assignment to you.
3.29 You will consult, co-operate and co-ordinate activities, in good faith, with us and any other person who has a duty in relation to the same matter, in relation to the work, health and safety of our Temporary Workers, in accordance with any law relating to health and safety in the workplace, and any relevant work health and safety Code of Practice or interpretative guideline.
3.30 You agree to:
(a) identify hazards associated with the Assignment and assess and control risks;
(b) identify the skills and knowledge that a Temporary Worker needs to conduct their work safely and verify the Temporary Workers’ understanding of your work health and safety requirements;
(c) conduct workplace inductions for every Temporary Worker before that Temporary Worker commences their Assignment and for each of your sites or workplaces they visit;
(d) provide each Temporary Worker with safe work procedures, and provide training and safety information to a Temporary Worker to enable them to perform their work safely;
(e) maintain a safe work environment and safe systems of work and establish safe work practices;
(f) maintain plant and equipment;
(g) promptly inform a Temporary Worker, and us, of:
(i) any unusual workplace risk or practice; or
(ii) any change in site or safety conditions that may present a hazard to that Temporary Worker;
(h) allow us access to the workplace and relevant documents to enable us to perform a workplace site inspection;
(i) provide us with details of the party, or parties, that have control or influence over aspects of:
(i) the work; or
(ii) the environment in which the work is carried out;
(j) promptly rectify any deficiency in the provision of a safe work environment or safe systems of work, which, in our reasonable opinion, pose a threat to the safety of one of our Temporary Workers, or to any other person who may attend a place at which work is or may be performed by one of our Temporary Workers while under Assignment; and
(k) comply with our reasonable requests to ensure the workplace health and safety of our Temporary Workers.
3.31 You agree you will not:
(a) allocate tasks or responsibilities to our Temporary Workers other than in accordance with the relevant Assignment Confirmation;
(b) not require our Temporary Workers to perform or participate in work other than in accordance with the relevant Assignment Confirmation;
(c) on-hire or re-supply a Temporary Worker to an Associated Entity or other person or organisation without our consent; or
(d) request a Temporary Worker to perform or participate in any work with which they are unfamiliar or use equipment for which they are unqualified or untrained.
3.32 A Temporary Worker may refuse to undertake any task they believe may place them or others at risk or for which they are untrained.
3.33 A party agrees to notify the other party (1) immediately when it becomes aware that a Temporary Worker suffers a notifiable injury or is involved in a notifiable incident, or (2) as soon as possible of an injury to, or safety incident or ’near miss’ involving a Temporary Worker.
4. Liability
4.1. Limitations: Subject to the remainder of this clause 4, and without limiting the Client’s obligation to pay undisputed amounts under these Terms, a party’s maximum aggregate liability to the other party under these Terms is limited to the value of the actual charges paid by the Client under these Terms in the 12-month period preceding the matter or event giving rise to the claim (Liability Limit), other than liability:
(a) for death or personal injury caused by a party’s negligence (or that of its employees that arises vicariously), or fraud, which liability is unlimited;
(b) arising from a party’s wilful misconduct conduct that it knew would involve negligence or a breach of a duty of care on its part, which liability will be limited to five times the Liability Limit;
(c) that cannot be limited or excluded by applicable law; or
(d) that arises from a non-delegable duty.
4.2. Supervision of Temporary Workers: You acknowledge we do not supervise or direct Temporary Workers in respect of the services they perform for the benefit of your business and undertaking. Therefore you agree we are not liable for claims, losses, expenses, damages, delay, costs or compensation of any kind arising from a Temporary Worker’s acts or omissions while that Temporary Worker is performing services for you under an Assignment, including any damage to the property of the Client or a third party, other than to the extent we are negligent in providing our Services, or clause 4.1(c) or clause 4.1(d) applies.
4.3. Third-party information: Where we obtain information from Candidates and third parties (including referees and professional bodies), we rely on the accuracy of the information provided to us. To the extent permitted by law, we will not be liable for any errors or inaccuracies in any information provided to you if we have acted with reasonable skill and care in performing our Services.
4.4. Indirect and consequential losses: A party is not liable for any loss of profit, data, savings, contract, goodwill or production, or economic loss, or for any special, incidental or punitive damages, or for any loss, damage, demand, liability, cost, charge or expense of any kind arising from special circumstances or that does not occur naturally and according to the usual course of things.
4.5. Australian consumer guarantees: Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)) (ACL), or the exercise of a right conferred by such a provision, or any liability of in relation to a failure by us to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of services.
4.6. If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, to the extent permitted by the ACL our total liability to you for that failure is limited to, at our option:
(a) to resupplying the applicable Services; or
(b) the payment of the cost of having the applicable Services resupplied.
5. General
5.1 A party may terminate these Terms by giving 30 days written notice to the other party without prejudice to a party’s pre-existing or accrued rights or obligations. Termination or expiry of these Terms will not affect a provision which is expressly or by implication intended to come into force or continue on or after the termination or expiry.
5.2 These Terms supersede any previous terms and conditions for Services and are the parties’ entire agreement.
5.3 We reserve the right to charge you interest daily at an annual rate of 5% on any undisputed overdue amount. An overdue amount means an amount (or part thereof) that has been outstanding for more than 14 days from the due date of the correctly rendered invoice. You indemnify us for all reasonable costs and expenses (including legal costs and any other third-party costs) we incur in seeking to recover undisputed overdue amounts.
5.4 The following order of precedence applies if there is any inconsistency between documents - (1) Agreed Changes; (2) any terms and conditions agreed under clause 2.4; (3) these terms and conditions and (4) any other document or annexure.
5.5 If any part of these Terms is unlawful, unenforceable or invalid, that part will be treated as removed from these Terms, but the rest of these Terms are not affected.
5.6 We will add the prevailing rate of GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) onto the consideration for any taxable supplies, including fees and expenses, we make in connection with these Terms. You agree to pay that GST at the same time as the consideration for those taxable supplies.
5.7 Both parties and their personnel must comply with the Privacy Act 1988 (Cth) regarding all personal information collected, held, used, disclosed, and otherwise handled by them in connection with these Terms. Details of Temporary Workers and Candidates remain confidential at all times, including fees and Rates.
5.8 If a dispute arises under these Terms and the parties cannot resolve it by good faith negotiations, the parties must endeavour to settle it by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation will be conducted under the then-current ADC Guidelines for Commercial Mediation.
5.9 The laws of Queensland govern these Terms.
6. Key definitions
6.1 Agreed Changes means the agreed variations, deletions and additions to these terms and conditions (if any).
6.2 Assignment means the performance of work and tasks by a Temporary Worker for you in accordance with your requirements.
6.3 Assignment Confirmation means a document or email specifying the details of an Assignment.
6.4 Associated Entity has the meaning given in section 50AAA of the Corporations Act 2001 (Cth).
6.5 Candidate means someone we Introduce to you in connection with our permanent placement services.
6.6 Engage, Engaged and Engagement means to engage under a contract of service or a contract for services, including an engagement via an interposed company or for trial or probation purposes, or to use as an on-hired resource.
6.7 Introduce, Introduced and Introduction means you interview a Candidate or a Temporary Worker, or we provide you with a CV or other written or verbal information that identifies a Candidate or Temporary Worker.
6.8 Placement Fee means a fee for permanent placement services (as may be varied by agreement between the parties for a specific search campaign or campaigns).
6.9 Rate and Rates mean the applicable hourly, daily or weekly rate for a Temporary Worker that as a minimum, includes all amounts the Temporary Worker is entitled to by law for ordinary working hours and statutory on-costs. Our service fee will be included in a Rate unless we notify you otherwise.
6.10 Services means our permanent placement services and our temporary services provided to you under these Terms (as the context requires).
6.11 Temporary Worker means our on-hire employee or independent contractor (or their employees, agents and sub-contractors where the context requires).
6.12 Terms means these terms and conditions, Agreed Changes, any terms and conditions agreed under clause 2.4 and any other document we provide in connection with Services.
6.13 Total Remuneration means the anticipated first-year annual gross remuneration package, including gross yearly salary, superannuation, allowances, anticipated bonuses, sign-on inducements (cash or non-cash) and other non-cash benefits such as health insurance, equity or a motor vehicle. A motor vehicle (including a tool of trade vehicle that includes personal use) or car allowance will be valued at a greater of $15,000 and the value of the allowance or motor vehicle.