SUB-CONTRACTING AND ASSIGNMENT 18.1 Subject to clause 18.3, neither party shall assign, novate, subcontract or otherwise dispose of any or all of its rights and obligations under this agreement without the prior written consent of the other party, neither may the Supplier sub-contract the whole or any part of its obligations under this agreement except with the express prior written consent of the Authority, such consent not to be unreasonably withheld.
18.2 In the event that the Supplier enters into any Sub-Contract in connection with this agreement it shall:
(a) remain responsible to the Authority for the performance of its obligations under the agreement notwithstanding the appointment of any Sub-Contractor and be responsible for the acts omissions and neglects of its Sub-Contractors;
(b) impose obligations on its Sub-Contractor in the same terms as those imposed on it pursuant to this agreement and shall procure that the Sub-Contractor complies with such terms; and
(c) provide a copy, at no charge to the Authority, of any such Sub-Contract on receipt of a request for such by the Authority’s Authorised Representative.
18.3 The Authority shall be entitled to novate (and the Supplier shall be deemed to consent to any such novation) the agreement to any other body which substantially performs any of the functions that previously had been performed by the Authority.
Subcontracting and Assignment The School Bus Operator shall not sub-contract, transfer or assign this Contract or any part of this Parent Agreement without the prior written consent of the School. The School Bus Operator shall be responsible for the acts, defaults, neglects or omissions of any assignee or subcontractor, their agents, servants or workmen as fully as if they were the acts, defaults, neglects or omissions of the School Bus Operator.
SERVICES BY CONTRACTOR'S OWN STAFF 8.1. The services to be performed hereunder shall be performed by CONTRACTOR's own staff, unless otherwise authorized in writing by the OWNER. The employment of, contract with, or use of the services of any other person or firm by CONTRACTOR, as independent contractor or otherwise, shall be subject to the prior written approval of the OWNER. No provision of this Agreement shall, however, be construed as constituting an agreement between the OWNER and any such other person or firm. Nor shall anything contained herein be deemed to give any such party or any third party any claim or right of action against the OWNER beyond such as may otherwise exist without regard to this Agreement.
TERM AND SCOPE OF THE CIA A. The period of the compliance obligations assumed by Progenity under this CIA shall be five years from the effective date of this CIA. The “Effective Date” shall be the date on which the final signatory of this CIA executes this CIA. Each one-year period, beginning with the one-year period following the Effective Date, shall be referred to as a “Reporting Period.”
B. Sections VII, X, and XI shall expire no later than 120 days after OIG’s receipt of: (1) Progenity’s final annual report; or (2) any additional materials submitted by Progenity pursuant to OIG’s request, whichever is later.
C. The scope of this CIA shall be governed by the following definitions:
SUB-LETTING This Rental Agreement shall not be assigned nor shall the premises be sub-let without written consent of the Landlord.
SCOPE OF THE CONTRACT The Contractor shall perform the Services set out [in Schedule 1] [below2] in accordance with the Contract. [The Contractor’s key personnel assigned to perform the Services are: [provide a list] During the provision of the Services, if substitution of Contractor’s [key personnel] [experts] is necessary, the Contractor shall propose other experts or at least the same level of qualifications for approval by the Fund. [The Contractor shall obtain the Fund’s prior approval in writing before entering into a subcontract for engaging a subconsultant for the performance of any part of the Services.]
SUB-CONTRACTING 31.1. The Authority approves the appointment of the sub-contractors specified in Schedule 10 (Approved Sub-contractors) in respect of the obligations specified in that Schedule.
31.2. The Contractor may not sub-contract its obligations under the Framework Agreement to other sub-contractors without the prior written consent of the Authority. Sub-contracting of any part of the Framework Agreement shall not relieve the Contractor of any obligation or duty attributable to the Contractor under the Framework Agreement. The Contractor shall be responsible for the acts and omissions of its sub-contractors as though they are its own.
31.3. Where the Contractor enters into a sub-contract the Contractor must ensure that a provision is included which:
31.3.1. requires payment to be made of all sums due by the Contractor to the sub- contractor within a specified period not exceeding 30 days from the receipt of a valid invoice as defined by the sub-contract requirements and provides that, where the Authority has made payment to the Contractor in respect of Services and the sub-contractor’s invoice relates to such Services then, to that extent, the invoice must be treated as valid and, provided the Contractor is not exercising a right of retention or set-off in respect of a breach of contract by the sub-contractor or in respect of a sum otherwise due by the sub-contractor to the Contractor, payment must be made to the sub-contractor without deduction;
31.3.2. notifies the sub-contractor that the sub-contract forms part of a larger contract for the benefit of the Authority and that should the sub-contractor have any difficulty in securing the timely payment of an invoice, that matter may be referred by the sub- contractor to the Authority;
31.3.3. requires that all contracts with subcontractors and suppliers which the subcontractor intends to procure, and which the subcontractor has not before the date of this Framework Agreement, already planned to award to a particular supplier are advertised through the Public Contracts Scotland procurement portal (xxx.xxxxxxxxxxxxxxxxxxxxxxx.xxx.xx) and awarded following a fair, open, transparent and competitive process proportionate to the nature and value of the contract; and
31.3.4. is in the same terms as that set out in this clause 31.3 (including for the avoidance of doubt this clause 31.3.4) subject only to modification to refer to the correct designation of the equivalent party as the Contractor and sub-contractor as the case may be.
31.4. The Contractor shall include in every sub-contract:
31.4.1 a right for the Contractor to terminate that sub-contract if the relevant sub- contractor fails to comply in the performance of its contract with legal obligations in the fields of environmental, social or employment law or if any of the termination events (involving substantial modification of the Contract, contract award despite the existence of exclusion grounds or a serious infringement of EU legal obligations) specified in clause 42.4 occur; and
31.4.2 a requirement that the sub-contractor includes a provision having the same effect as 31.4.1 in any sub-contract which it awards. In this Clause 31.4, ‘sub-contract’ means any contract between two or more contractors, at any stage of remoteness from the Authority in a sub-contracting chain, made wholly or substantially for the purpose of performing (or contributing to the performanace of) the whole or any part of this Framework Agreement.
31.5. Where requested by the Authority, copies of any sub-contract must be sent by the Contractor to the Authority as soon as reasonably practicable.
31.6. Where the Contractor proposes to enter into a sub-contract it must:
31.6.1 advertise its intention to do so in at least one trade journal, and the Public Contracts Scotland Portal; and
31.6.2 follow a procedure leading to the selection of the sub-contractor which ensures reasonable competition following principles of equal treatment, non-discrimination and transparency and which ensures that such procedure is accessible by small and medium enterprises.
TRANSFER AND SUB-CONTRACTING 31.1 This Framework Agreement is personal to the Supplier and the Supplier shall not assign, novate or otherwise dispose of or create any trust in relation to any or all rights and obligations under this Framework Agreement or any part thereof without the Approval.
31.2 Notwithstanding the provisions of Clause 31.1 above, the Supplier shall be entitled to Sub-Contract its obligations to supply the Services to those Sub-Contractors listed in Framework Agreement Schedule 2 (Sub-Contractors). The Supplier shall ensure that terms are included in any Sub-Contract permitted under this Framework Agreement which:
31.2.1 require the Supplier to pay any undisputed sum due to the relevant Sub-Contractor within a specified period that does not exceed thirty (30) calendar days from the date the Supplier receives the Sub-Contractor's invoice; and
31.2.2 prohibit the Sub-Contractor from further sub-contracting any element of the service provided to the Supplier without Approval.
31.3 The Supplier shall not substitute or remove a Sub-Contractor or appoint an additional sub-contractor without Approval, such Approval not be unreasonably withheld or delayed. Such consent shall not constitute approval or endorsement of such substitute or additional sub-contractor and the Supplier shall remain responsible for the provision of the Ordered Services at all times.
31.4 The Authority may require the Supplier to terminate a Sub-Contract where it considers that:
31.4.1 the Sub-Contractor may prejudice the provision of the Services or may be acting contrary to the interests of the Authority;
31.4.2 the Sub-Contractor is considered to be unreliable and/or has not provided reasonable services to its other customers; and/or
31.4.3 the Sub-Contractor employs unfit persons;
31.5 In the event that the Authority exercises its right pursuant to Clause 31.4 above, the Supplier shall remain responsible for maintaining the provision of the Services.
31.6 Despite any permitted Sub-Contract pursuant to this Clause 31, the Supplier at all times shall remain responsible for all acts and omissions of its Sub-Contractors and the acts and omissions of those employed or engaged by the Sub-Contractors as if they were its own. An obligation on the Supplier to do, or refrain from doing, any act or thing shall include an obligation upon the Supplier to procure that its employees, staff, agents and the Sub-Contractors', employees, staff and agents also do, or refrain from doing, such act or thing.
31.7 The Authority shall be entitled to:
31.7.1 assign, novate or otherwise dispose of its rights and obligations under this Framework Agreement or any part thereof to any Other Contracting Body; or
31.7.2 novate, transfer or otherwise dispose of its rights and obligations under this Framework Agreement to any other body (including any private sector body) which substantially performs any of the functions that previously had been performed by the Authority.
31.8 The Supplier shall enter into such agreement and/or deed as the Authority shall reasonably require so as to give effect to any assignment, novation, transfer or disposal made pursuant to Clause 31.7 above.
SHAM CONTRACTING 49.1 Sham Contracting occurs when an Employer engages an individual to perform building work under a contract for services where the true character of the engagement or proposed engagement is that of employment.
49.2 The Employer agrees they will not engage in Sham Contracting and recognises that the practice of sham contracting is unlawful and undermines the job security of the Employees covered by this Agreement.
49.3 The Employer will not enter into a contract with another person (“the Contractor”) under which services in the nature of building work are to be provided to the employer, if:
(a) the services are to be performed by an individual (who is not the Contractor); and the individual has any ownership in, or is an officer or trustee of, the contractor; and
(b) if the contract were entered into with the individual, the contract would be a contract of employment.
49.4 The Employer will maintain records about any Contractors that it has engaged in the preceding month which will include:
(a) the name of the Contractor;
(b) the owner(s) of the Contractor;
(c) the works that the Contractor was engaged to perform;
(d) basis on which the Contractor was paid for the work e.g. lump sum/fixed price, daily rate, other; and
49.5 The Employer will, within 7 days of receiving a written request from the Union, provide a copy of the records which it is required to keep pursuant to the previous subclause. Nothing in this subclause requires the Employer to provide information in a manner that is inconsistent with the Privacy Act 1988 (Cth).
49.6 Where in breach of this clause a sham contract was in place, such that that Contractor was in fact an Employee under this Agreement, the calculation for back pay will be calculated on the basis of the difference between what they were paid under sham contract arrangement and:
(a) 175% of the applicable hourly rate contained in this Agreement; and
(b) the Site Allowance (if applicable); and
(c) the multi-story allowance (if applicable); and
(d) Superannuation (BUSSQ), XXXX, CIPQ and BEWT.
TRAINING AND RELATED MATTERS The parties recognise that in order to increase the efficiency and productivity of the company a significant commitment to structured training and skill development is required. Accordingly the parties commit themselves to:
a) The parties to this Agreement recognise the importance of the apprenticeship system to the construction industry. It is agreed that every employer party to this Agreement who employs five (5) or more tradespersons in any one classification shall undertake to employ at least one (1) apprentice or make arrangements to host an apprentice from an agreed group apprenticeship scheme. Where an employer does not currently have an apprentice as per this provision, reasonable time shall be allowed to enable the employer to comply with this clause. Further, the parties are committed to a strong ratio of apprentices in the industry. Apprenticeship levels on a specific project may be discussed at the Project Pre-Commencement Conference (refer Clause 16).
b) Providing employees with the opportunity to acquire additional skills within relevant career path structures through appropriate structured training based on nationally endorsed (i.e. Construction Training Australia endorsed) competency standards and curriculum;
c) Actively encouraging employees to seek formal recognition of their skills (i.e. recognition of prior learning); and
d) Using training providers accredited and acceptable to the parties. The CFMEU, MBAV and other employer associations are legitimately engaged in providing training to industry and it is hereby agreed that all parties will properly recognise and accept the validity of nationally accredited training as provided by the other parties.
e) The parties will consult on the development of training programs which are consistent with the following: • Training provided will be consistent with the company’s business requirements, relevant to the work of the employees, consistent with the skills development of each employee and with applicable national competency standards. • Training may be taken either on or off the job with all reasonable steps being taken to conduct training in normal working hours. • If an approved training activity is undertaken during ordinary working hours, the employee/s concerned shall not suffer any loss of pay. • Approved training activities undertaken outside of ordinary hours will be paid at single time or will, at the employee’s option, be taken as time off in lieu of payment. Provided that the scheduling of time off must be consistent with the needs of the business and be by agreement with the company. • Training costs of courses approved by the company will be met by the company. • The company will not be asked to meet the costs of training undertaken by employees which was not approved by the company. • Leave of absence granted pursuant to this clause shall count as service for all purposes of the award and this agreement. • Accredited members of the union will be allowed up to 5 days per year, without loss of pay, to attend trade union educational courses conducted or approved by the union. (see appendix H)
f) The parties to this Agreement recognise the importance of the role that Apprentices/Trainees fulfill within the industry and, more importantly, a role that they will fulfill as trades persons following the conclusion of the indentures. To this end the Victorian Building Industry Consultative Committee will investigate ways of enhancing employment prospects for Apprentice/Trainees. In addition it is agreed that, where appropriate, employers will use their best endeavours to employ Apprentices/Trainees in order to ensure appropriate trade persons levels for the future.
