Department Cleaning Panel Agreement 2015
DEPARTMENT
O F EDUCATION
THIS AGREEMENT is -
BETWEEN:
AND TRAINING
THE STATE OF VICTORIA of the offices of the
Department of Education and Training of 2
Treasury Place Melbourne (“the Department”)
AND:
………………………………………………………..
INSERT CONTRACTOR’S NAME
(INDIVIDUAL OR COMPANY AS APPLICABLE)
(ABN……………………..……………………..)
of
………………………………………………………..
INSERT ADDRESS, Victoria ("the Contractor")
RECITALS
A.
The Contractor has made an Application to the Department.
B.
The Contractor and the Department wish to agree on terms for retention or
revocation of Panel Status if the Contractor is granted Panel Status.
C.
Agreement by the Contractor to execute and comply with this Department
Cleaning Panel Agreement is a condition of achieving Panel Status.
D.
In consideration of the mutual promises of the parties and of the granting of Panel
Status to the Contractor, the parties agree to the terms and conditions of this
Agreement.
THE PARTIES AGREE AS FOLLOWS:1.
INTERPRETATION
1.1
In this Agreement unless inconsistent with the context or subject matter“Applicant” means the Contractor wishing to gain Panel Status by submitting an
Application;
“Application” means the response by the Contractor seeking Panel Status in the
Victorian government school cleaning tender processes in accordance with the
Guide;
“Audit” means an assessment by the Department of the Contractor as described in
clause 9.1;
“Auditor” means the person(s) appointed by the Department to conduct the Audit;
“CCAC” means the Department’s Contract Cleaners Assessment Committee;
“Cleaning Contract Officer” means the officer or person named in clause 12 or that
person’s authorised delegate;
“Contract Term” means the period commencing on the date this Agreement is
executed by the Department, and ceasing upon termination of this Agreement;
“Contractor” means the Contractor named above;
Department Cleaning Panel Agreement 2015
page 2
“Department” means the State of Victoria;
“Department Cleaning Panel Agreement” means this Agreement;
“DET” or “Department” means the Department of Education and Training;
“Guide” or “the Guide” means the Application Form and Guide for School Cleaning
Panel Status
“Intellectual property rights” means all rights in relation to inventions, designs,
trade marks, trade names, circuit layouts, confidential information and copyright;
“Key Assessment Criteria” means each of the criteria required to be fulfilled by the
Contractor to gain Panel Status, as set out in the Guide;
“Panel” means the Panel of contract cleaners established by the Department which
is comprised of all Applicants that have successfully been given Panel Status by
the CCAC;
“Panel Status” means being on the Panel, or is a person who is on the Panel;
"person" and words importing persons includes bodies corporate;
“preselection” means the assessment process conducted by the CCAC for
appointment to the Panel, of all Applicants who are new cleaning contractors (i.e.
without an existing cleaning engagement with a school);
“qualification” means the assessment process conducted by the CCAC for
appointment to the Panel, of all Applicants who at the time they submit their
Application have an existing cleaning engagement with one or more schools;
“School Council Agreement for the Provision of Cleaning Services” means the
agreement that the Contractor with Panel Status has with a school, or would be
required to sign with an individual school council, if it is determined by that school
that it wishes to engage the Contractor;
“Services” means the services of the Contractor to clean schools in accordance
with any School Council Agreement for the Provision of Cleaning Services to which
it is a party;
“Specialist Cleaning Services” means persons providing, on an intermittent or
periodic basis, carpet, curtain or other fabric steam cleaning, window cleaning,
specialist toilet cleaning or steam or pressure cleaning by third parties of interior or
exterior school walls.
1.2
A reference to an Act or any section of an Act is a reference to the Act or section as
amended from time to time.
1.3
Where a word or phrase is given a particular meaning, other parts of speech and
grammatical forms of that word or phrase have corresponding meanings.
1.4
Each party includes the successor or successors of that party.
1.5
Words denoting the singular include the plural and vice versa.
1.6
Words denoting any gender include all genders.
1.7
Any marginal notes or headings are included for convenience and do not affect the
interpretation of this contract.
1.8
References to clauses are references to clauses of this Agreement.
Department Cleaning Panel Agreement 2015
2.
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GENERAL OBLIGATIONS OF CONTRACTOR
The Contractor shall:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
3.
honestly, accurately and diligently complete the Application;
at any time whilst the Contractor has Panel Status:
(i)
provide the Services; and
(ii)
satisfy the Key Assessment Criteria on an ongoing basis, to a
level which the Department considers appropriate;
comply with this Agreement;
follow all instructions of the Cleaning Contract Officer in respect of the
performance by the Contractor of its obligations under this Agreement and
cooperate fully with, and act in good faith towards, the Department;
comply with all laws;
only use any facilities provided by the Department for the purposes of this
Agreement; and
comply with the provisions of the Guide, and without limiting the foregoing,
comply with all obligations, assume all responsibilities and acknowledge all
rights and powers of the Department, as set out in the Guide.
CONFIDENTIALITY
Apart for the purpose of performing its obligations under this Agreement;
(i)
the Contractor shall treat as confidential all information which comes into its
possession pursuant to or as a result of or in the performance of this
Agreement, and
(ii)
the Contractor shall not, without the written permission of the Department,
disclose such information to a third party.
The operation of this clause shall survive the termination of this Agreement.
4.
INTELLECTUAL PROPERTY AND OWNERSHIP OF WORK
All intellectual property rights created, discovered or coming into existence as a
result of or arising out this contract shall be the property of and vested in the State
of Victoria. Intellectual property rights include any documentation produced by the
Contractor in providing the Services.
The operation of this clause shall survive the termination of this Agreement.
5.
CONTRACTOR’S CAPACITY
Nothing in this Agreement constitutes the Contractor as an employee, servant or
agent of the Department nor is the Contractor authorised to incur nor shall the
Contractor incur any debt or obligation on behalf of the Department without the
prior written consent of the Department.
6.
TERMINATION
6.1
Upon the date that the Contractor’s Panel Status has been or will be revoked:
(a)
(b)
(c)
as notified by the Department to the Contractor; or
as notified by the Contractor to the Department; or
as agreed by the parties,
this Agreement shall terminate.
Department Cleaning Panel Agreement 2015
6.2
page 4
The Contractor’s Panel Status may be revoked:
(a) At any time by agreement between the parties.
(b) At any time and without notice by the Department if the Contractor:(i)
becomes or takes any step towards becoming bankrupt or enters or
attempts to enter into any composition or arrangement with creditors or
being a company enters or takes any step towards entry into liquidation
whether voluntary or compulsory (save for the purposes of amalgamation
or reconstruction) or has a Receiver or Manager appointed to the whole or
any part of its undertaking; or
(ii) wholly suspends the performance of the Services; or
(iii) fails to proceed regularly and diligently with performance of the Services;
or
(iv) any servant, agent, employee, officer or shareholder of the Contractor:
 is, in the Department’s opinion, guilty of misconduct in relation to the
performance of the Services; or
 is charged with or convicted of any breach of the law for which you
can be imprisoned; or
 has engaged in conduct which in the opinion of the Department tends
to bring the Contractor or the Department into disrepute; or
 commits any serious breach of this Agreement; or
 seriously or willfully fails to comply with the Key Assessment Criteria;
or
 disobeys or neglects any lawful and reasonable order or direction of
the Department
(c) Pursuant to clause 11.1; or
(d) Pursuant to clause 6.4; or
(d) At any time and without cause, upon either party providing the other with 90
days’ notice.
6.3
If there is a 2 year period during which the Contractor is not engaged under any
School Council Agreement for the Provision of Cleaning Services, then upon
expiry of that 2 year period, the Contractor’s Panel Status shall automatically
revoke (unless the Contractor obtains written consent from the Department in
advance to the contrary). This shall not prevent the Contractor from then making
a new Application.
6.4
In making a decision on revocation of Panel Status pursuant only to clause
6.2(d):
(a)
The Department will consider:
(i)
(ii)
the seriousness of any non-compliance with this Agreement;
the number of instances of non-compliance with this Agreement;
(iii)
whether remedial measures are commensurate with the noncompliance and in the reasonable opinion of the Department, can
be reasonably expected to prevent such non-compliance from
recurring.
Department Cleaning Panel Agreement 2015
(b)
If, in the Department’s assessment, the Contractor’s acts or omissions are
unsatisfactory, before revocation of Panel Status occurs, the Contractor
will be provided with details of the non compliance and an opportunity of
14 days (or such longer period as the Department decides) to submit:
(i)
(ii)
(iii)
(c)
any additional information which in the opinion of the Contractor is
relevant, including the Contractor's grounds for any objection;
details of any information on which the non-compliance is based
which in the opinion of the Contractor is incorrect, incomplete or
otherwise unfairly prejudicial to the Contractor;
any existing or planned remedial measures which the Contractor
has taken or will be taking to prevent non-compliance similar to
the non-compliance notified by the Department.
Following the receipt of the information or expiration of the period
described in clause 6.4 (b), whichever comes first, the Department may,
in its discretion, do one or all of the following:
(i)
(ii)
(iii)
(d)
page 5
request the Contractor show cause as to why their Panel Status
should not be suspended or revoked with effect from 14 days (or
such longer period as the Department decides); and/or
suspend but not revoke Panel Status of the Contractor for a
specified period of up to 6 months with 14 days notice (or such
longer period of notice as the Department decides); and/or
revoke Panel Status upon 14 days notice (or such longer period
as the Department decides).
In exercising its discretion under clause 6.4 (c), the Department will take
into consideration:
(i)
whether the Contractor has taken or will take measures which, in the
reasonable opinion of the Department, are commensurate with the
non-compliance and which can be reasonably expected to prevent
such non-compliance from recurring; or
(ii)
whether the Department is otherwise satisfied that the Contractor has
shown good cause why Panel Status should not be suspended or
revoked.
The remedies under this sub-clause are in addition to and do not limit any
other rights or remedies of the Department under this document or
otherwise at law.
6.5
If the Contractor’s Panel Status is revoked by the Department, the Contractor will
immediately upon notice of loss of Panel Status be ineligible to tender for or
continue to work on any Victorian Government school cleaning contracts unless
or until Panel Status is again achieved.
Department Cleaning Panel Agreement 2015
7.
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COMPLETION OF SERVICES UPON TERMINATION
In the event this Agreement is terminated by the Department pursuant to clause
6.2(b), the Department may to the date of termination employ and pay one or more
other persons to carry out and complete the performance of the Services and in so
doing may use all or any materials produced, used or obtained by the Contractor in
performing the Services of the relevant School Council Agreement for the
Provision of Cleaning Services and all payments made to every other persons for
so doing may be deducted from any sum due or to become due to the Contractor
or recovered from the Contractor as and by way of damages.
8.
NO DAMAGES
The Contractor agrees that where the Department is alleged or found to have
breached any part or provision of this Agreement, the Department shall not be
liable for, and the Contractor shall not take action against the Department for
costs, expenses, damages or compensation of any kind whatsoever. This shall
not prevent the Contractor from seeking non monetary remedies, including for
example seeking from a Court or other legal body an order for specific
performance or temporary or permanent injunctive relief.
9.
AUDIT OF CONTRACTOR AND OTHER ACCESS TO CONTRACTOR’S
RECORDS
9.1
At any time during which the Contractor has Panel Status, the Department may
conduct Audits of the Contractor. An Audit may only be for the purpose of
checking:
9.2
(a)
(b)
the accuracy and completeness of the Application; and/or
ongoing compliance with this Agreement and with the Guide; and/or
(c)
that the Contractor continues to meet a level of compliance with the Key
Assessment Criteria which is satisfactory to the Department.
The Audit shall be conducted during ordinary business hours. The Contractor
being audited shall be informed of the Audit in writing by the Auditor. The written
notice shall be provided either prior to, or at the discretion of the Auditor, at the
time of the Audit. The Contractor shall upon being given notice of the Audit
provide the Auditor with the following:
(a)
entry and access to the office premises of the Contractor and to the
premises where any Services are undertaken by the Contractor;
(b)
access to any business related document of the Contractor (whether in
hardcopy or electronic form) for the purposes of reading and considering
such documents (and taking away the originals of any documents if
deemed necessary by the Auditor in the circumstances, whereupon they
shall be returned promptly to the Contractor when the Auditor has copied
them);
(c)
copies of any business related documents of the Contractor (whether the
original is in hardcopy or electronic form);
(d)
permission to seize such things used in the Contractor’s business which
the Auditor considers necessary for the purpose of conducting the Audit
(whereupon such things shall be returned to the Contractor as soon as
the Auditor has promptly done that which the Auditor needed to do with
the seized things as was reasonably necessary for the purposes of the
Audit);
(e)
answers (by the Contractor or by other officers or employees of the
Contractor) to questions asked by the Auditor in an interview. (The
Department Cleaning Panel Agreement 2015
page 7
Auditor is not required to record the interview, nor to provide their
questions in advance of the interview); and
(f)
the reasonable assistance of any subcontractor or agent of the
Contractor, in the Auditor carrying out the Audit (and the Contractor shall
take all reasonable steps to procure for the Auditor such assistance).
9.3
Any information provided, or to which an Auditor has access under this clause 9,
shall be treated by that person as confidential information and shall not be used
other than for the purposes in clause 9.1 above, nor be disclosed other than as
required at law or to meet any legitimate requirements of the Department.
9.4
The confidentiality obligations of the parties under this clause 9 shall not extend
to:
(a)
Information already in the public domain other than due to a breach of this
contract;
(b)
any disclosure required by law;
(c)
any disclosure reasonably required in order to comply with a request for
information made by the Auditor-General for Victoria; or
(d)
information reasonably required in order to publish appropriate and
comprehensive performance data relating to the Services under this
Agreement.
10.
ETHICAL EMPLOYMENT
10.1
Definitions
For the purpose of this clause, the following definitions apply.
Applicable Industrial Instruments and Legislation means all Applicable
Industrial Instruments and all Applicable Legislation.
Applicable Industrial Instrument means an industrial instrument (award or
enterprise agreement) that specifically applies to the employees of the Contractor
and is binding on it.
Applicable Legislation means:









Federal Awards (Uniform System) Act 2003 (Vic)
Outworkers (Improved Protection) Act 2003 (Vic)
Dangerous Goods Act 1985 (Vic)
Equipment (Public Safety) Act 1994 (Vic)
Occupational Health and Safety Act 2004 (Vic)
Workplace Relations Act 1996 (Cwlth)
Long Service Leave Act 1992 (Vic)
similar Acts in States and Territories other than Victoria
any other legislation designated as Applicable Legislation under the Ethical
Purchasing Policy from time to time published by the Victorian Government
purchasing Board on the following site - www.vgpb.vic.gov.au.
Assessment means an assessment by the Department pursuant to the Ethical
Purchasing Policy that, in the opinion of the Department, the Contractor does not
satisfy the Ethical Employment Standard.
Award means any award of the Australian Industrial Relations Commission or
any tribunal empowered to make industrial awards for Victorian employees or
employees in any other State or Territory.
Enterprise Agreement means any certified agreement of the Australian
Industrial Relations Commission or State industrial authority.
Department Cleaning Panel Agreement 2015
page 8
Ethical Employment Standard is the requirement for persons that supply or
propose to supply goods and services to the Victorian Government to
demonstrate to the reasonable satisfaction of the government buyer, and in
accordance with the requirements of the Ethical Purchasing Policy, that the
relevant contracting or tendering entity meets its obligations to its employees
under Applicable Industrial Instruments and Legislation at the time a contract is
awarded and continues to meet such obligations during the term of that contract.
Ethical Employment Reference Register has the meaning attributed to it in the
Ethical Purchasing Policy.
Ethical Employment Statement has the meaning attributed to it in the Ethical
Purchasing Policy.
Ethical Purchasing Policy means the Victorian Government's Ethical
Purchasing Policy supporting fair and safe workplaces, which is published on the
Victorian Government Purchasing Board web site at www.vgpb.vic.gov.au.
Law means the law in force in the jurisdiction in which the obligations under this
Agreement are to be performed including without limitation, common or
customary law, equity, judgment, legislation, orders, regulations, statutes, by-law,
ordinances or other legislative or regulatory measures and includes any
amendment, modification or re-enactment of them.
10.2
Supplier to satisfy the Ethical Employment Standard
Without limiting or derogating from the Contractor’s obligation to comply with any
Law, the Contractor must satisfy the Ethical Employment Standard at all times
during the Contract Term.
10.3
Satisfaction of the Ethical Employment Standard
The Department may make an Assessment if, at any time during the Contract
Term a court, tribunal, commission or board:
(a) makes a finding of a serious breach of an Applicable Industrial Instrument
against the Contractor or convicts the Contractor of a serious offence under
Applicable Legislation; or
(b) makes a finding of a breach of an Applicable Industrial Instrument against
the Contractor or convicts the Contractor of an offence under Applicable
Legislation that is part of a pattern of repeated or ongoing breaches or
offences.
10.4
Changes to the Ethical Purchasing Policy
All words, phrases or parts in or of this clause 10 and the following clause 11
shall be deemed to change automatically, in accordance with and at the same
time as any amendments to the Ethical Purchasing Policy are made public from
time to time by the Victorian Government.
11.
TERMINATION FOR FAILURE TO SATISFY ETHICAL EMPLOYMENT
STANDARD
11.1
Ethical Employment Standard Not Satisfied
(a)
If at any time during the term of the Contract, the Department notifies the
Contractor in writing that it has made an Assessment pursuant to clause
10.3, the Contractor must, within 14 days of receipt of such notice, or such
longer period agreed by the Department, provide a statutory declaration
from a partner, director or company secretary of the Contractor setting out:
Department Cleaning Panel Agreement 2015
(b)
(c)
page 9
(i)
any additional information which in the opinion of the Contractor is
relevant to the Assessment, including the Contractor's grounds for
any objection to the Assessment;
(ii)
details of any information on which the Assessment is based which in
the opinion of the Contractor is incorrect, incomplete or otherwise
unfairly prejudicial to the Contractor;
(iii)
any existing or planned remedial measures which the Contractor has
taken or will be taking to prevent a breach or offence similar to the
breach or offence on which the Assessment is based from recurring.
Following the receipt of the statutory declaration or expiration of the period
described in clause (a), whichever comes first, the Department may, in its
discretion, do one or all of the following:
(i)
request the Contractor show cause as to why its Panel Status should
not be suspended or revoked with effect from 14 days; and/or
(ii)
suspend the Contractors Panel Status for a specified period of up to 6
months with 14 days notice; and/or
(iii)
revoke the Contractor’s Panel Status upon 14 days notice.
In exercising its discretion under clause (b), the Department will take into
consideration:
(i)
whether the Contractor has taken or will take measures which, in the
reasonable opinion of the Department, are commensurate with the
breach or the offence on which the Assessment is based and can be
reasonably expected to prevent such breach or offence from
recurring; or
(ii)
whether the Department is otherwise satisfied that the Contractor has
shown good cause why its Panel Status should not be suspended or
revoked,
The remedies under this clause are in addition to and do not limit any
other rights or remedies of the Department under this document or
otherwise at law.
11.2
12.
Ethical Employment Reference Register
(a)
If the Contractor’s Panel Status is revoked pursuant to this clause, the
Contractor's name and details (including its Australian Business Number)
will be included in the Ethical Employment Reference Register for a period
of 24 months from the date termination takes effect.
(b)
Victorian Government departments will access the Ethical Employment
Reference Register for the purpose of applying the Ethical Purchasing
Policy.
(c)
Inclusion of any details in the Ethical Employment Reference Register will
not be used to determine whether the Contractor meets the Ethical
Employment Standard or to exclude the Contractor from participation in
other Tender Processes (subject to the Contractor having Panel Status if
the Tender is for school cleaning).
CLEANING CONTRACT OFFICER
The Cleaning Contract Officer is the person for the time being holding the
position in clause 13 under the heading “To the Department”.
Department Cleaning Panel Agreement 2015
13.
page 10
NOTICES
Any notice given or served by one party upon the other party pursuant to this
Agreement shall be in writing and may be given by email transmission, certified
mail or hand to that party at the address or addressed to the address, as the case
may be, set out below or by hand personally to any person named below as a
recipient for such party TO BE COMPLETED BY THE DEPARTMENT
To the Department
TO BE COMPLETED BY THE CONTRACTOR
To the Contractor
..................................................................
..........................................................
insert name
Cleaning Contract Officer
..................................................................
Department of Education and Training,
2 Treasury Place
Melbourne, Victoria 3000
email: cleaning@edumail.vic.gov.au
insert position
..................................................................
insert contractor’s name
(individual or companybusiness name, as applicable)
..................................................................
insert ABN
..................................................................
insert Address
..................................................................
insert email address:
14.
NEW NOTICE DETAILS
Where notice of a new address, new registered office address, new telephone
number or new email address has been given by notice by one party to the other
party the same shall for all purposes be deemed to have been substituted for the
previous address, registered office address, telephone number or email address
as the case may be of the party giving such notice as and from the date of
service of such notice and service of any notice thereafter by a party having
received such notice shall be made as if such substitution appeared herein in lieu
of the words and/or figures for which the same was substituted.
15.
GOVERNING LAW
This Agreement shall be construed according to the laws of the State of Victoria.
16.
VARIATIONS
No addition to or variation of this Agreement shall be of any force or effect unless
in writing signed by or on behalf of both parties.
17.
WAIVERS
The waiver by one party of a breach by another party of any provision of this
Agreement does not operate as a waiver of another or continuing breach by the
other party of the same or any other provision of this Agreement. No waiver by
either party shall be binding upon that party unless in writing.
18.
SEVERABILITY
If any provision of this Agreement is held invalid, unenforceable or illegal for any
reason, the remainder of this Agreement has full force apart from such provision
which shall be deemed deleted.
Department Cleaning Panel Agreement 2015
19.
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ACTING ON BEHALF OF DEPARTMENT
Any right, duty or power (including the right to issue a notice or give any consent)
of the Department under this Agreement may be exercised by the Cleaning
Contract Officer (or the person for the time holding or acting in that position) or
the Secretary to the Department or any other person authorised by the said
Secretary.
20.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes any communications or representations made in connection with the
subject matter herein.
21.
PRIVACY
21.1
The Contractor acknowledges that the Department is an organisation bound by
the provisions of the Information Privacy Act 2000 as amended from time to time
(hereinafter referred to as the IP Act).
21.2
The Contractor acknowledges and agrees to be bound by the Information Privacy
Principles under the IP Act and any applicable code of practice as referred to in
section 17 of the IP Act (including any applicable code of practice attached to this
agreement) with respect to any act done, or practice engaged in by the
Contractor for the purposes of this Agreement to the same extent as if the act
done, or practice engaged in had been directly done or engaged in by the
Department.
21.3
Without limiting the generality of subclauses 21.1 and 21.2, in relation to the
collection, management, holding, use, quality, accuracy, disclosure or transfer of
any information, the Contractor shall comply with (a)
the IP Act;
(b)
the Information Privacy Principles under the IP Act as amended from time
to time; and
(c)
any code of practice as referred to in section 17 of the IP Act that applies
to the Department or to which the Department is required to comply,
including any applicable code of practice attached to this Agreement.
22.
PUBLISHING CONTRACT INFORMATION
The Contractor consents to the Department publishing (on the internet or
otherwise) the name of the Contractor and the contract value together with
conditions of this and the School Council Agreement for the Provision of Cleaning
Services generally.
Department Cleaning Panel Agreement 2015
Executed as an Agreement.
SIGNED at MELBOURNE
on the ................day of ................................. 20….
by.................................................(print name)
with the authority of and for and on behalf of
the STATE OF VICTORIA in the presence of
).............................................(signed)
)
....................................................
(print witness name)
)........................................................
(witness signed)
[Where the Contractor is an incorporated body]
THE COMMON SEAL of the Contractor
was hereunto affixed on the
..........day of .......................20…….
in accordance with its Articles of Association
in the presence of:
)
)
)
............................................Director
.........................................Secretary
[Where the Contractor is not incorporated]
SIGNED
on the .........day of ......................20…….
by..........................................................
(print name & position with Contractor)
).......................................................
(signed on behalf of the Contractor)
in the presence of:
....................................................
(print witness name)
)..........................................................
(witness signed)