We’re thrilled you’ve invested in this template, which is made specifically for Australian recruitment agencies.

We’ve brought in all our experience working with agencies across Australia to create a friendly, easy-to-use template just for you.

If you like to work hard to complete documents and feel like the effort equals the investment, you might be in shock! We deliberately don’t want this to be hard to complete so you can get on with the business of matching people with your clients.

So, while it might seem too good to be true, trust us, that’s exactly the point.

We’ve put in the hours, so you don’t have to. This means that in minutes, you will have an awesome, recruiter-made document.

However, our philosophy at Ready Set Recruit Legal is that the best legal document in the world is no good if you don’t know how to use it.

This User Guide provides more information about this template before you customise it so you can be confident in rolling it out.

You will see fill-the-blank sections called ‘Custom.’ We have provided some guidance notes to help you fill these in and more detailed instructions for some sections (see the Completion Checklist).

To replace a ‘Custom’ prompt, simply click on it and insert your text.

These Terms are ‘umbrella’ terms that the client signs once. Therefore, you don’t need to send these TOBs each time the same client wants you to provide a worker.

We have included two additional templates:

1. a confirmation to send to a client for a casual assignment

2. a confirmation to send to a client for an ABN assignment

We know how annoying and, frankly, dangerous it can be to start mucking around with the clauses in your TOBs.

This is how mistakes happen! We provide a table in Annexure A for 'Special Conditions’ so you can easily capture changes to your standard terms in one spot.

Here are some examples of how to write a special condition:

Replacing a whole clause

● Clause XX is replaced by: [insert new clause in a new paragraph]

Adding words to a clause

● Clause XX is amended by adding ['insert all new words inside quotation marks'] after ['insert existing words that will follow the new words']

Deleting words in a clause

● Clause XX is amended by deleting these words ['insert all words being deleted inside quotation marks']

Replacing words in a clause

● Clause XX is amended by deleting these words ['insert all words being deleted inside quotation marks'] and replacing them with ['insert all replacement words inside quotation marks']

Adding a new clause

● The following additional clause is added:

[insert new clause in a new paragraph]

Deleting a clause

● Clause X is deleted entirely.

These TOBs refer to on-hire workers as ‘Associates’ to cover on-hire workers who are casual employees and those who are an ABN ‘Pty Ltd’ contractor. You can change this term if you prefer, e.g. ‘Worker.’ We don’t recommend using ‘Contractor’ if you supply casual on-hire workers.

These TOBs have been written to best meet the requirements of unfair contract terms laws. Given the significant penalties that apply to unfair contract terms, we do not recommend one-sided terms commonly found in agency TOBs.

Clear, reasonable terms also make good business sense and build customer trust and confidence.

When reviewing and completing your TOBs, keep in mind that an unfair contract term is one that:

1. Creates a significant imbalance in the parties’ rights and obligations under the terms.

2. Is not reasonably necessary to protect the legitimate interests of the advantaged party.

3. Would cause detriment to the disadvantaged party if it were applied or relied on.

If you supply Associates (i.e. temporary labour-hire workers) to host organisations, you and the host organisation both have duties to ensure their health and safety while performing an assignment.

These TOBs contain a set of client-specific health and safety obligations in Annexure A.

If you’re unfamiliar with your OHS obligations, we recommend you get in touch with your State/Territory safety authority or industry body like RCSA or APSCo (members of RCSA or APSCo can access lots of helpful information) and/or seek out expert help from a staffing expert like www.riskcollective.com.au

Overview

Your new TOBs set out a different approach to the typical ‘temp to perm’ found in most agency terms.

That’s because we know that the old temp-to-perm method is legally risky. Courts do not like temp-to-perm fees that act like a restraint of trade and/or impose exorbitant fees that are unrelated to the type of role the Associate is transitioning into.

Your new Terms

Our terms do away with this old approach to provide a client with a ‘transition service’ for which they will pay you a fee if they choose:

1. to transition an Associate directly; or

2. to refer an Associate to someone else to transition.

Calculating Fees

A Transition Fee is calculated like a permanent placement fee, i.e. as a % of the remuneration to be paid to transitioning Associate, based on salary bands you complete in clause 8.4.

You can adjust the definition of ‘Remuneration Package’ in clause 8.3(a) as needed. We have also enabled you to calculate the Associate’s equivalent annual Remuneration Package by using their base hourly rate plus superannuation – see clause 8.3(b). The reference to ‘1976’ is the equivalent to 38 hours/week for 52 weeks.

In clause 8.4, you can complete your salary bands and % in Custom 6 – 12 (add or delete rows as needed).

This transition service does not provide a reduced fee based on the length of the Associate and this is stated after the table in clause 8.4

Non-permanent engagements

Clause 8.5 allows you to reduce your transition fee if the Associate is taken on as a casual employee or independent contractor. This is to reflect that these remain flexible engagements for the client and, therefore, less critical to it versus a permanent transition, while still ensuring you are fairly compensated for the transition (some clients may argue that a full fee is unreasonable for a ‘temp to temp’ transition).

If you wish to use this clause, see the checklist below for information on setting this reduced fee %.

This User Guide is general in nature and cannot be relied upon as legal advice as it does not take into consideration your exact business circumstances or any individual client engagement or worker placement. You should ensure the risk allocation in these Terms is suitable for your agency and its operations.

Overview

Any commercial transaction may give rise to legal liability, including for breach of contract, negligence, misrepresentation and breach of statutory duty. In the absence of a limitation clause, there is no financial limit on the losses for which a party can seek to recover damages.

These TOBs have been written to best meet the requirements of unfair contract terms laws, and so balance your agency’s ability to limit its liability with the need to remain reasonable with regard to your services and what you can control.

This means both parties have the benefit of a liability cap equal to the fees paid to your agency in the previous 12 months.

However, where the client is a ‘Small Business’ under unfair contract terms laws, you can increase the liability cap to better meet the requirements of unfair contract terms. A client is a ‘Small Business’ if it employs less than 100 persons or has an annual turnover of less than AUD$10 million.

Liability and fairness

We have drafted these clauses to reflect the following key indicators of whether a liability limitation may be considered unfair:

• A limitation clause should benefit both parties equally (in other words, avoid one-sided limitations of liability) and not cause a significant imbalance in the parties' rights.

• A limitation should not be excessive or unreasonable, having regard to the nature of the contract and the rights and obligations of the parties.

• A limitation should not exclude rights that cannot be excluded by law (for example, generally, the consumer guarantees cannot be excluded) or mislead the other party about such rights.

• A limitation should be transparent and use clear language.

The clauses

Clause 12.1 delineates between your recruitment services and the work and tasks of Associates performed under the supervision and direction of the client.

Clause 12.2: while each party benefits from a liability cap, there are also uncapped liabilities in (a) to (c), which will apply to all clients. These uncapped liabilities similarly reflect unfair contract terms and what is often seen in client recruitment contracts.

You should check with your insurer to confirm these clauses are suitable for your individual business needs.

Clause 12.3: this clause sets the larger liability cap where the client is a ‘Small Business’.

Clause 12.4: indirect and consequential losses are excluded for both parties.

Clause 12.4: the Australian consumer guarantees are not excluded (they cannot be), but your agency limits, to the extent it can, any breaches of these guarantees to the supplying of the services again; or the payment of the cost of having the services resupplied (these limitations are allowed in B2B terms).

Once you are ready to use your new TOBs, you should make sure your insurer approves them for use. Your broker can assist with this process.