DRIVER AGREEMENT
Contract of Bailment
Between Bailee Taxi Driver and Bailor Taxi Operator
And
Passenger Transport Vehicle Driver and Passenger Transport
Vehicle Operator
Having the Effect of an Employment Relationship
Operating in NSW under Chapter 6 of the NSW Industrial
Relations Act, 1996, and elsewhere in Australia under the Fair Work Act, 2009
Preamble
Taxi-cabs and Hire Cars operate as Passenger Transport
Vehicles utilizing an accredited operator’s registered vehicle driven by an
authorised driver plying for reward or hire with various conditions attached.
Consideration for its use is by way of a Bailment Fee, agreed generally as a percentage
share of fares or as a set amount per shift. The motor vehicle, a chattel, is
the subject of a Contract of Bailment between the Bailor / Operator and the
Bailee / Driver. That contract
establishes the relationship at law of Principal and Agent, operating in a
Joint Venture. The general condition requiring the vehicle to be returned in
original and good order is varied by Regulatory requirements for the operator
to hold and maintain Insurance Policies which fully indemnify the bailee driver,
in the event of an accident, or other event involving damage to the vehicle.
To the extent that Regulatory requirements, having the
effect of deeming the driver to be an employee, and the degree of control and
direction thereby exercised over the bailee by the bailor and his Agents, go
beyond the established relationship of Principal and Agent, to effect a relationship
of Employer and Employee, there is also established a Contract for and of
Service within the Contract of Bailment. It is an express condition of this
Agreement that such an Employment Relationship is created and exists between
Bailor and Bailee.
Signed and dated at …………………………..on ………………………
Baillee / Driver (
Authority No.)
…………………………………………………
Bailor / Operator( Accreditation No.) ……………………………………………..
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Arrangement Clause No.
Subject Matter 1. Minimum Conditions to be Observed 2. Definitions 3. Method of Payment 4. Meter, Log and Daily Worksheet 5. Payment for Fuel 6. Unintentional Errors & Fare Evasions 7. Inspection of Taxi Cab and Worksheets 8. Permission to Drive 9. Transportation of Passengers and
Luggage 10. Right to Terminate Bailment 11. Observance of Acts, etc. 12. Fitness to Drive 13. Prohibition of Drugs & Alcohol 14. Driving & Accident Records 15. Notification of Accidents 16. Insurances 17. Operation Outside Licensed Area 18. Department of Transport Inspection 19. Failure to Report for Duty 20. Safety Regulations 21. Roadworthiness of Taxi 22. Provision of Uniforms 23. Annual Leave 24. Sick Leave 25. Deductions and Bonds 26. Long Service Leave 27. Payment for Down Time 28. Downtime Rate 29. Drivers' Delegate 30. Notice Board |
31. Right of
Entry 32. General 33. Disputes
Procedure 34. Invoice and
Record Keeping Procedures 35. Area,
Incidence and Duration 36. Jury Duty 37. Electronic
Accessories 38. E-tags Not
Supplied by Bailor 39. Third Party
Credit Facilities 40. Superannuation 41. Mutual
Obligations 42. Surveillance 43. Surveillance
Reports 44. Rostering 45. Fatigue
Management 46. Maternity and
Paternity Leave 47. Leave for
License Disqualification 48. Continuing
Responsibilities of Bailor. 49. Variation & Additional Terms 50. Driver Worksheets Schedule I. Election Form - Method of Payment for Taxi
Drivers Schedule 11. MONETARY RATES Driver's Log Book |
1.
Minimum Conditions
to be Observed:
The operating bailor
shall bail and the driver bailee shall take on bailment such duly registered
and licensed taxi cabs or hire cars or other registered Public Passenger
Vehicles, as during the term of this Agreement the operating bailor may make
available from time to time to the driver bailee, together with the equipment
belonging thereto, on the terms and conditions hereinafter appearing.
2.
Definitions
a) Permanent or Full Time Employed Bailee - A Permanent Employed Driver Bailee is a bailee who regularly takes a registered vehicle on bailment, from the one bailor, for four day shifts per week, or at a rate which would achieve 188 day shifts per year, or a driver bailee who regularly takes a registered vehicle on bailment, from the one bailor, for three night shifts per week, or at a rate of night shifts per week which would achieve 141 night shifts per year.
Notation : For the purposes of this definition absences occasioned by illness, annual leave, public holidays, jury duty, or other authorised leave shall be counted as shifts in determining whether a bailee is permanent.
b) Casual Bailee or Part Time - A Casual or Part Time Employed Driver Bailee means a bailee who is not a Permanent Bailee, and is employed for less than four day shifts or three night shifts per week.
Notation: A casual driver bailee is not entitled to any sick, annual or other leave or entitlements. The casual bailee's percentage, and hourly rate, under Method I includes compensation to him for not having sick, annual or other leave payments or entitlements, or Superannuation contributions. The casual bailee's set pay-in under Method II includes compensation to him for not having sick, annual or other leave payments or entitlements, or Superannuation contributions
c) Commissionable Fares - Commissionable fares, Chargeable Fares and Nett Fares, for the purposes of this contract, means all revenue earned by reason of the driver bailee's use of a taxi-cab in a shift including fares for multiple hirings, non-passenger hirings, radio hirings, contract hirings or other bookings and offers, and excluding any gratuities or tariff surcharges. The booking fees, tariff surcharges, documented fare evasions, and charges for tolls or extras, are excluded from the chargeable or commissionable fares for the purpose of calculating pay-ins.
d) Gross fares – Gross fares include all revenue actually received from all fares, other than credit or debit card surcharges imposed by a credit provider. Fare evasions are not received revenue. Evidence of gross fares shall be by way of the meter print-out or record obtained from the meter.
e) Fares for a Hire Car, or for a taxi-cab where by contractual arrangement between Operator and Passenger the meter is not engaged, are considered to be the Gross Revenue received as payment for all services rendered by the driver, and paid to either driver or operator.
f) Day Shift - Day Shift means the usage of a taxi cab by a driver bailee for a period as agreed between the bailor and the bailee of at least 9 hours but not exceeding 12 hours at least 75 per cent of which hours are between 3 a.m. and 3 p.m.
g) Night Shift - Night shift means the usage of a taxi cab by a driver bailee for a period as agreed between the bailor and the bailee of at least 9 hours but not exceeding 12 hours at least 75 per cent of which hours are between 3 p.m. and 3 a.m.
h) Peak Shift – Peak Shift means the usage of a taxi cab by a driver bailee for a period as agreed between the bailor and the bailee of at least 9 hours but not exceeding 12 hours at least 75 per cent of which hours are between 12.00 noon and 5 a.m. For the purposes of this contract, Peak Shifts will be counted as Night Shifts.
Notations : Bailee Drivers cannot be rostered for consecutive shifts.
: A period of nine hours is the minimum for a rostered shift
i) Excess Kilometre Fee –
(a)Part B of this Agreement refers to any excess of the number of kilometres travelled by the cab in the shift over the number of kilometres specified for that shift.
b). Notation: No averaging of kilometres will be permitted.
j) GST legislation — refers to A New Tax System (Goods & Services Tax) Act 1999 (Cth.) and associated legislation.
k) The use of words “taxi”, “taxi-cab”, “cab”, “hire car”; “PBO”, and “Public Passenger Vehicle” are interchangeable, and have the same meaning and intent.
3. Method of Payment
(i) Driver to Choose Method of Payment
(a) A bailee shall choose whether to operate under Method I ( Commission) as set out in subclause (ii) of this clause or Method II ( Set Pay-in) as set out in subclause (iii) of this clause.
(b) A bailee commencing a new contract of bailment may exercise this right of choice as to the method of payment after engagement by the bailor, but before commencing the first shift; and again within 30 days from the date of the first bailment with the operator.
(c) A bailee under a contract of bailment may also again exercise the right of choice once only in each twelve months of bailment.
(d) A bailor must give to any bailee who has a right of choice as specified in paragraphs (a), (b) or (c) of this subclause, an election form as set out in Schedule I, Election Form Method of Payment for Taxi Drivers, of Appendix I of this determination.
The bailee must complete and sign the election form and return it to the bailor, and the bailor must give the bailee a receipted copy.
(ii)
Method I - Commission
(a) A bailee who operates on Method I shall be entitled to receive and retain from the Commissionable Fares, the amount of the bailee’s percentage, which is exclusive of booking fees, tolls and extras, fare evasions, and tariff surcharges.
(b) Where a driver’s log book is supplied by the bailor, the bailee shall record the following information on that log, if required by the Operator :
Meter readings, as prescribed in the driver’s log book, or,
Trip details, including pick up and drop points. times and chargeable fares
Notation : Electronic recordings and print –outs may be used
c) The bailee shall be entitled to retain from Commissionable Fares a minimum hourly rate of wages payable as a safety net or floor base wage, for each completed hour, or portion thereof, at a rate related to the hourly rate of a Grade Two Driver under Fair Work Australia for the Passenger Transport Vehicle Award. ( currently $17.65 ph), in the event that, for any one shift the bailees percentage, in total dollar terms , is less than the summed total of the shift’s hourly rates, for that shift.
(iii) Method II – Bailment Charges / Public
Passenger Vehicle Usage Fee / Set Pay-in
(a) A bailee shall be entitled to receive and retain from the gross amount of fares, the balance left after deducting the amounts set out in Table 1, of Part B, Monetary Rates, of this determination, and verifiable deductions for Fuel, Wash and other expenses, including fare evasions, incurred on behalf of the bailor.
(b) A bailor and bailee may agree on lesser amounts than those specified in Table 1 Wages, of Part B, Monetary Rates, of this determination, provided that such an agreement shall not operate to relieve the bailor of the obligation to comply with any other requirement of this determination. Such Agreement shall be in writing and a copy thereof supplied to the bailee. Variations to the agreed amounts payable shall be by mutual consent, and in writing, save for exceptions in the nature of Downtime, or special occasion rates.
(c ) Variations that may require such mutual consent are significant external cost increases imposed upon the bailor, general fare increases, or changes to vehicle types being rostered to the bailee, such as WATS or Premium or Standard vehicles.
(iv) Pay-in to Bailor
(a)The bailee shall not later than the first occasion the bailee again attends for work in normal business hours pay to the operator that part of the fares which the bailee is not entitled to receive and retain.
(b) The bailor shall give to the bailee a dated and signed receipt for all such payments not later than the first working day of the following month in which the bailee again attends for work in normal business hours after the payment has been made.
(c) It shall be the bailor’s responsibility to ensure a secure method of payment and receipt.
(d) Payment shall be in Cash, by way of Authorised Dockets and Vouchers, by Bank Transfers to a nominated account of the Bailor, or by way of transfers of non cash fare payments directly to the Operators account with a taxi network or other nominated account.
(e) Where payment has not been made in accordance with this Clause, it shall be at the bailors’ discretion to terminate the contract and refuse to bail out a vehicle for any further shifts.
(f) Electronic transfers with appropriate transmission and recording of details are permitted.
(g) Payments made to the bailor in excess of the required shift amounts shall be accumulated in the bailee’s account and a net re-imbursement be made on a weekly basis.
(vi) Bailee Not to be Victimised
(a) A bailor shall allow a bailee the right to exercise the right of choice as to method of payment available under subclause (i) of this clause, freely and voluntarily without pressure of any kind.
It shall be a breach of this Agreement for a bailee to be victimised or terminated because of the choice of method of payment that the bailee has made.
(b) A bailor may however terminate a
bailment on Method I where after reasonable counselling the bailee has
continuously made bailment pay-ins which are significantly below what is reasonable
in all the circumstances. Where any
dispute arises about this, the disputes procedure shall be followed and as a
first resolution require that bailment under Method II be commenced on a trial
basis.
4. Meter, Log and Daily Worksheet
a)
The bailee of a
taxi cab shall not carry any person or any goods in the cab without setting and
maintaining the meter in motion and the bailee shall not interfere with the operation
of the meter in any way.
b)
Where the hiring is
a contract hiring with an agreed fare between passenger and driver, operator or
taxi network, the details of that trip and fare are to be recorded and used for
purposes of calculating the actual pay-in.
c)
The bailee of a
Hire Car, in which a meter is not fitted, shall at all times and /or if
required by the bailor so to do, keep and maintain accurately, in duplicate, a
log recording sequentially the pick-up and drop points and agreed fares, if
known to the driver, for each trip made in the hire car during the shift.
d)
A bailee who elects
to operate under method I specified in clause 3, Method of Payment, of this determination
shall, if required by the bailor so to do, produce, and retain a duplicate, of
a printout or manual recording of the taxi-cab shift report as available from
the meter, and shall give the original of the report to the bailor forthwith at
the conclusion of each shift. The information so recorded shall be in addition
to that in the daily worksheet to be completed by the bailee for the purpose of
State Passenger Transport Regulations.
e)
f)
If, forthwith,
after the conclusion of the shift the bailee requests the bailor and supplies
the bailor or his authorised agent with a duplicate of the Daily Worksheet
completed in respect of the shift by the bailee for the purposes of State
Passenger Transport Regulations, the bailor or his authorised agent shall as
soon as practicable sign the duplicate and return it to the bailee.
5. Payment for Fuel
and Expenses
The bailor shall
pay for all fuel, oil, maintenance, registration and licence
fees in respect of the operation of the taxi cab.
In this respect the
bailor reserves the right to nominate the points for the purchase of fuel, oil
and other such commodities. The bailee shall produce to the bailor, at the
conclusion of each shift, or on the next occasion of producing taxi cab worksheets and pay-in
records, those receipts for the purchase of such items and shall thereby vouch
for their validity.
Traffic
Infringements other than relating to Vehicle standards and equipment are the
responsibility of the Bailee.
6.
Unintentional Errors in Recording
It is acknowledged
that from time an unintentional error in the operation of the taxi meter or
recording may occur, such that the meter is not started, or not stopped
immediately on a trip. It is agreed that
appropriate adjustments to the chargeable fares will be permitted.
Fare evasions
occurring in the course of a shift which have or can be satisfactorily
documented are to be discounted from Commissionable Fares.
7.
Inspection of Taxi
Cab and Worksheets
The bailee shall
permit the bailor, by the bailor's officers,
employees or agents at all times during the continuance of the bailment
contract to inspect the worksheets, and to inspect and to have access to the
taxi cab, and inspect and/or test the condition thereof, and the bailor shall
at all times have the right to require the bailee, personally, to return the
taxi cab to his garage or depot for inspection or testing as aforesaid, or for
the repair or maintenance thereof, or for any other reason whatsoever that the
bailor may deem fit.
Time off the shift
shall be re-imbursed as “Downtime” payable by the
Bailor.
8.
Permission to Drive
The bailee shall
not permit or suffer any other person to drive the said cab for the purposes of
plying for hire, without the express or written permission of the bailor or his
agent.
9. Transportation of Passengers and Luggage
Subject always to
the provisions of this agreement, the bailee must use the taxi cab only for the
transportation of fare-paying passengers and luggage only, in accordance with
any acts, regulations or by-laws relating to taxi cabs.
10. Right to Terminate Bailment
(i) Permanent Bailees –
(a) A bailor shall
not terminate the engagement of a permanent bailee without reason and by giving
one week’s notice and / or paying an amount equal to one week’s average of
chargeable fares retained by the driver based upon the total chargeable fares
retained by the driver during the 12 month period immediately prior to his or
her termination or such lesser period if the bailment has not been in existence
for 12 months, in lieu of notice, except in the case of a substantial breach by
the driver of this determination or serious, negligent or willful misconduct.
(b) For the
purposes of paragraph (a) of this subclause, serious
and willful misconduct shall include where a bailee dishonestly receives and
retains significantly more than the bailee’s
percentage of chargeable fares.
(c) Where a bailee is in arrears of payment of
the bailment fee, it shall be at the discretion of the bailor to refuse any
further shifts or use of the vehicle.
(ii) Casual Bailees - A bailor can terminate the engagement of a casual
bailee at any time without notice, saving only that it be for a reasonable
cause, including the unavailability of a vehicle.
(iii) The bailee’s
general driving record, records of passenger complaints and compliments,
history of infringements and accidents , both At Fault
and Not at Fault, shall be matters to be considered in the event of termination
or suspension.
11. Observance of
Acts, etc.
The bailee shall at
all times during the bailment –
(a)
Comply, to the best
of his ability and skill, with all Acts, Regulations, By-Laws, Ordinances and
all legislative provisions for the time being in force in regard to motor
vehicles, motor traffic and taxi cabs; and
(b)
Exercise proper
care for and control of the taxi cab, to the best of his abilities; and
(c)
Comply, to the best
of his abilities, with all reasonable rules and by-laws of any co-operative, or
network or depot in association with which the taxi cab is operated or any
company or other group associated with the co-operative, network or depot; and
(d)
At the conclusion of each shift or the earlier
termination of the bailment, the bailee shall return the taxi cab to the garage
or depot then being used by the bailor.
12. Fitness to Drive
The bailee
expressly warrants that there are no physical, medical, mental or legal
impediments to his driving a Public Passenger Vehicle, and that he undertakes
to advise the bailor forthwith of any such impediment as may arise during the
course of his employment.
13. Prohibition of
Alcohol and Drugs
The bailee shall
not partake of any intoxicating liquors or drugs or be under the influence of he same whilst in charge of the taxi cab.
14. Driving &
Accident Records :
The bailor may
require a new or intending bailee to produce and confirm records of Driving,
Demerit Points and Accidents, both At Fault and Not At
Fault, for the previous three years in order to consider his or her employment
as a bailee taxi driver. Failure to supply or make available, such records, or
having knowingly supplied false records shall be sufficient cause for
termination, or for a refusal to enter into an employment relationship. At the
commencement of this Agreement such records may reasonably be required of
existing drivers.
15. Notification of
Accidents
The bailee shall
forthwith notify the bailor of any accident or happening of any loss or damage
of or relating to the taxi cab and its equipment, and shall without delay give
full information to the bailor as may be then, or thereafter, available as to the
circumstances of such accident, loss or damage, and of all claims which may be
made and/or threatened and where possible, the names and addresses of
witnesses.
The bailor shall
Endeavour to take or obtain photographs of all damages to all vehicles or property
involved in any accident, such as identifies the vehicles and records the
contemporaneous damage, and shall pass such photographs on to the bailor or his
Insurer.
The bailee shall
not, except a his own risk and expense, negotiate, pay, settle, admit or
repudiate any claim made by any person arising out such accident, loss or
damage and the bailee shall do all things reasonably necessary to assist the
bailor in the prosecution, by the bailor, of any proceedings to enforce the bailor's rights to recover compensation for such accident,
loss or damage.
Any reasonable and
verifiable cost to the bailee, or of costs incurred by legal action or threat
thereof on the bailee, involved in such actions shall be paid by the bailor.
Any and all legal
costs arising from such action shall be paid by the bailor, including costs
that may arise from the bailor exercising his choice to not proceed with a
claim or other action.
Where notification
of an accident, known by the driver to have occurred, does not take place as
soon as practical and / or prior to the commencement of the next shift the
bailee will be in breach of this Contract and may be liable for payment, wholly,
or in part, of any excess payable, or arising, as a result of delays incurred.
16. Insurances
The bailor is
required to have and maintain all statutory required insurance policies in
relation to the Registered Vehicle, including but not limited to Comprehensive,
Third Party Insurance, Workers Compensation ( Work Cover)
Insurance, and Public Liability. In the event of any accident, the bailee is
specifically authorised to make a claim on a related policy, in the event of
the bailor electing to not raise a claim. Subject to Clause 13 the bailee is to
be fully indemnified against all costs, claims, legal expenses, interest,
demurrage and excess amounts payable.
Notation : This Contract of Bailment operates to
require that the bailor fully indemnifies the bailee against any and all costs
, including legal costs that may arise from an accident to, or caused by, the
taxi under bailment, or of any other vehicle not otherwise at fault in an
accident.
17. Operation Outside
of Licensed Area
The bailee may not
take any taxi cab outside the area for which it is licensed to operate unless
permission is obtained from the bailor, his agent (or the Network Radio Room Supervisor)
and if he does, the bailor may, without restricting the generality of clause
10, Right to Terminate Bailment, of this Determination cancel the contract of
bailment forthwith and the bailee shall be deemed to have used the vehicle
illegally.
18. Departments of Transport, Transport NSW, or other
Governmental Body Inspection
Where, by agreement
with the bailor, the bailee undertakes to clean, prepare or drive and present
the taxi cab to a Department of Transport for quarterly or other inspections
required by that Department, the bailor shall forthwith pay to the driver, as
recompense for all times so spent by the bailee, in accordance with clause 27,
Payment for Down Time, of this determination.
19. Failure to Report for Duty
:
If a bailee fails
to attend to take a taxi cab on bailment at a time and place previously rostered or agreed to, and fails to report to the bailor at
least 2 hours prior to such time his inability to attend, the bailor shall not,
after the expiration of 30 minutes from the agreed commencement time of the rostered shift, be under any obligation to keep a Registered
Vehicle available for the bailee for that rostered
shift. If the bailee fails, within a further 24 hours, to notify the bailor of
satisfactory reasons for his failure to attend at the rostered
time, the bailor may terminate the bailment contract forthwith and without notice, but without in any way
restricting the generality of clause 10, Right to Terminate Bailment, of this
determination.
20. Safety
Regulations
The bailor shall
comply with all government regulations in relation to safety measures. No bailee shall be obliged to accept a taxi
cab which does not comply with all relevant government regulations in relation
to safety measures. Any infringements incurred by the bailee with monetary
penalty, on account of safety breaches of the taxi, shall be met by the bailor,
and action will be taken to accept demerit points if incurred.
21. Roadworthiness of Vehicle
The bailor shall
comply with all government regulations in relation to roadworthiness, and
public passenger vehicle standards. No
bailee shall be obliged to accept a taxi cab which does not comply with all
relevant government regulations in relation to roadworthiness, or Standards. Any infringements incurred by the bailee with
monetary penalty, on account of safety breaches of the taxi, shall be met by
the bailor, and action will be taken to accept demerit points if incurred.
22. Provisions of
Uniforms
Where the bailor , Network or Governmental Instrumentality requires the bailee to wear a distinctive dress or uniform, it shall be provided by the bailor and laundered free of cost to the bailee. At all times the bailee shall present him / herself for work in dress to comply with Network or Roads and Maritime Services Regulations.
Uniforms provided shall be as or greater in quantity than that stipulated by the relevant Network Regulations or the following list. Uniforms shall be provided for each Network sub brand.
A Laundry Allowance of $2.00 per day shift and $2.00 per night shift shall be payable by the bailor to the bailee. On request of the bailee the bailor shall, at the end of each calendar month, transfer those monies due to a bank account nominated by the bailee, or make payment in cash and obtain a signed receipt from the bailee.
Uniforms Permanent Drivers Casual Drivers
Trousers 2 1
Shorts or Skirt 2 1
Shirts or Blouses 5 3
Jacket ( Showerproof) 1 1
Pullover 1 1
Vest 1 1
Socks 5 3
Epaulettes 1 1
Note Appropriate footwear for driving shall be provided by the Driver, to be reimbursed by the Bailor.
Note All the above items are to be supplied once each twelve months.
23.
Annual Leave
(a) Method I -
(i) A permanent bailee who has taken taxi cabs on bailment as a permanent bailee from the one bailor for a period of 12 months under Method I during which time he has completed a minimum of 188 day shifts or 141 night shifts shall be entitled to 5 weeks' annual leave, exclusive of any public holidays occurring during that period.
Payment in total for such annual leave shall be equal to 5/47 of the bailee's total entitlement from the chargeable fares during those twelve months, plus an Annual Leave Loading of 25%
(ii) A permanent bailee who has taken the cabs on bailment, as a permanent bailee, from the one bailor, for a period of at least 3 months but less than 12 months, under Method I, shall, on the termination of his contract of bailment with that bailor, be entitled to be paid an amount for holiday pay equal to 4/48 of the bailee's total entitlement from the chargeable fares during the period for which leave is taken.
(b) Method II -
(i) A permanent bailee who has taken taxi cabs on bailment, as a permanent bailee, from the one bailor for a period of 12 months under Method II, during which time he has driven a minimum of 188 day shifts or 141 night shifts, shall be entitled to 5 weeks' annual leave, exclusive of any public holidays occurring during that period.
Payment in total for such annual leave shall be equal to 5/47 of the bailee's total of pay ins during those twelve months, plus an Annual Leave Loading of 25%
(ii) A permanent bailee who has taken taxi cabs on bailment, as a permanent bailee, from the one bailor for a period of at least 3 months but less than 12 months, under Method I or Method II, shall, on the termination of his contract of bailment with the bailor, be entitled to be paid an amount for holiday pay at the rate equal to 4/48 of the bailee's total of pay ins during the period
( c) Annual Leave Loading –
A loading of 25% shall be payable on Annual Leave payments as noted above.
24. Sick Leave
a)Permanent bailees shall be entitled to five days' sick leave during
the first year of bailment, subject to credits of such leave not being
available until the completion of 55 shifts in a three months period, and that
subsequent credits be made available on a pro rata basis. During the second and
subsequent years, a permanent bailee shall be entitled to eight days' sick
leave. The rights and entitlements to sick leave under this clause shall
accumulate.
b) All payments for
sick leave shall be paid at a daily rate based on the average earnings per
shift if the bailee operates under method I and at the rate set out in Item 4
of Table 2 if the bailee operates under method II. Average earnings per shift
shall be calculated over the preceding three months period. Provided that a
permanent bailee shall not be entitled in any 12 months period as a permanent
bailee in the industry, with one or more bailors, to
total sick leave in excess of that stipulated above.
25. Deductions and
Bonds
(a) A bailor shall
be entitled to deduct from any moneys payable by the bailor to the bailee under
clause 3, Method of Payment, of this determination, any moneys due to the
bailor from the bailee. A bailee may, at
the bailor's discretion, be required to deposit a
bond as set out in Item 5 of Table 2 prior to the commencement of any contract
of bailment.
(b) This agreement expressly excludes any fees,
charges, depot fees, insurance levies or charges having the effect of reducing
the net earnings of the bailee.
26. Long Service
Leave
Permanent bailees, who have served continuously with one bailor for a
period of not less than five years, commencing on or after 1 February 1972,
shall be entitled to long service leave.
The conditions of
eligibility for leave, and the quantification thereof, and all other conditions
pertaining thereto, shall be by reference to the NSW Long Service Leave Act
1955, or the relevant Acts of other States, as it would have applied, if the
bailee was an employee of the bailor, during the period of service.
Service, for the
purpose of this clause, shall mean a continuous period, during which the
permanent bailee has taken a taxi cab on bailment, as a permanent bailee, from
the one bailor, subject to the provisions of Clause 48. For the purposes of this clause the
calculation of the rate per week of such leave shall be equivalent to the rate
per week provided in clause 23, Annual Leave, of this determination.
27. Payment for
Down Time
In the event of the rostered vehicle not being
available at the start of a shift, and there being no replacement vehicle
available, or in the event of a breakdown in the course of a shift, or for
whatsoever vehicle defect causes the termination of a shift, then a “Downtime
Fee” shall apply to that shift or to the balance of that shift.
(a) In the event of
a permanent bailee being rostered for duty, and
because of reasons beyond the control of the bailor, an alternate vehicle
cannot be acquired for him, resulting in his being unable to start or complete
his shift, the bailee shall be entitled to the following arrangements:
(i)
Where no vehicle is
available to commence shift, and where at least two hours' notice is not able
to be given prior to normal commencement time, an appropriate payment will be
made.
(ii)
Where, arising from
a breakdown, part of a shift is completed, the bailee shall be required to pay
in for that portion of the shift, but shall be entitled to reimbursement as set
out in Item 6 of Table 2, for the incompleted portion
of his shift, subject to his complying with any reasonable requirement by the
bailor up to the completion of his normal shift.
(b) Whilst the
conditions outlined above guarantee remuneration for the bailee in relation to
the non-availability of a vehicle, it is further expressed that where a
permanent bailee does not give the owner notification of his inability to
attend on time for a rostered shift earlier than two
hours prior to the commencement of the shift the conditions provided for in
this clause shall not apply.
28. Downtime Rate
The hourly Downtime
Rate is expressed differently for Day and Night Shifts and by day of the Week.
It reflects the Award Rate for Grade Two Drivers under the PTVA of FWA and the
incremental entitlements for extended work hours and shifts. It also is
consistent with historical
assessment of the NSW Contract Determination. It forms the basis
of calculations of rates of pay.
29. Drivers'
Delegate
(a) A bailee driver
appointed in accordance with the rules of the Transport Workers Union or of the
Australian Taxi Drivers Association or of the Professional Drivers Association,
from time to time as drivers' delegate shall be recognised
as the accredited representative of the TWU or the ATDA or the PDA.
(b) Any matter arising
affecting industrial matters may be investigated by the delegate and discussed
with the bailor or his representative. The delegate shall, at his request, be
allowed a reasonable opportunity to carry out such duties at a time reasonable
convenient to himself and the bailor.
30. Notice Board
(a) A bailor who
regularly bails taxi cabs to more than 10 bailees at
the one time shall supply a notice board, of reasonable dimensions, to be
erected or placed and maintained in a prominent position in his yard, upon
which accredited representatives of the driver associations shall be permitted
to post formal association notices signed by the representative or representatives,
or similar such notices of the Driver Associations.
(b) A copy of this
Driver Agreement shall be displayed on the Notice Board.
31. Right of Entry
See section 129A of
the NSW Industrial Arbitration Act 1990, and appropriate Fair Work Australia
Act.
32. General
It is noted that it
is expressly agreed that all matters herein contained shall create or be deemed
to create, the relationship of employer and employee, and in extension to that
of Principal and Agent between the bailor and bailee; and that the intention of
the parties hereto is that the bailee shall take the taxi cab on bailment from
the bailor and shall not have or acquire any proprietary interests herein,
other than as an employee of the bailor.
33. Disputes Procedure
Any question,
dispute or difficulty which relates to the operation of this determination or
which arises out of a contract of bailment shall be dealt with according to the
following procedure:
(i) The matter shall be discussed between the bailee and the
bailor.
(ii) If agreement
is not reached, either party may seek the involvement in further discussions of
the Transport Workers Union or the Australian Taxi Drivers Association or the
Professional Drivers Association.
(iii) If agreement
is not reached, the matter shall be referred to the Industrial Relations
Commission of New South Wales, or to Fair Work Australia.
34. Invoice and
Record Keeping Procedures
(i) The bailor shall provide, or must have previously
provided, the bailee with the name of the legal entity and the ABN of the
bailor and the Accreditation Number of the Taxi operator, by not later than the
commencement of each shift.
(ii) The bailor shall
provide the bailee with a tax invoice which complies with the GST legislation
by no later than the first day of the month following the completion of each
shift. Tax invoices may include more than one shift. The tax invoice shall
contain the following information:
(a) The name of the
legal entity of the bailor;
(b) The Australian
Business Number (ABN) of the bailor;
(c) The name of the
bailee; and
(d) The Accreditation Details of the Bailor
(e) for each shift, the date of the shift and the following
amounts shall be specified —
• the pay-in; and
• the total paid to the bailor by the bailee (including GST).
(iii) The bailor
shall give to the bailee a dated and signed receipt for payments made by the
bailee to the bailor no later than the first day of the following month.
(iv) For bailees
operating under method I, a completed log book may constitute a tax invoice
when signed by the bailor.
(v) The bailor
shall generate and maintain copies of the following records for a period of six
(6) years:
(a) The invoices
referred to in subclause 34(ii);
(b) records
relating to the calculation and payment of annual leave, sick leave, long
service leave and payment for down time entitlements of bailees;
(c) Records
relating to any monies deducted by the bailor or bonds deposited with the
bailor by the bailee;
(d) All Schedule I
elections forms;
(e) All Schedule II
Driver Log Books forms (as completed by the bailee); and
(f) Receipts
provided pursuant to subclause 34(iii).
35. Area, Incidence
and Duration
(a) This Agreement
shall apply to a Contract of Bailment of a taxi cab (within the meaning of the
Industrial Relations Act 1996 in New South Wales.
(b) This Agreement shall apply to a Contract of
Bailment of a taxi cab within the meaning of the Fair Work Australia Act 2009
in all other States of Australia
36. Jury
Duty
Where a Bailee is required to attend for Jury Duty, such period of time as he is unable to attend for driving or such shifts as he does not drive shall be counted towards his requirements for Permanency and Annual Leave and Long Service Leave.
37 .
Electronic Accessories
The
supply, installation and maintenance and operational status of all electronic
equipment or accessories required for the operation of the Taxi Cab shall be
the responsibility of the Operator / Bailor. Information that may affect the
privacy or financial interests or security of the bailee shall not be recorded
by or transmitted to or by any third party other than to authorized persons,
for the sole purpose of establishing the identity of the driver whilst driving
the taxi cab.
Any tolls or fees that
may be electronically charged to the taxi cab shall be recordable by the
driver, and, if such toll or fee that has been paid by the bailor, and recorded
as a part of the fare paid, shall be reimbursed to the bailor as an additional
item to the bailment charges.
Any tolls or charges
that do not form part of the chargeable fares shall be a deductible expense
against bailment charges.
The bailor shall
ensure that any electronic tag or device supplied and subject to charges or deductions is
appropriately funded, and any penalties or charges resultant from the
reasonable use of an unfunded tag will be payable by the bailor. Any expense
that accrues to the driver resultant from the failure of any electronic device
shall be recoverable by the bailee driver from the bailor.
38. E-Tags not Supplied by Bailor
Where an e-tag is not
provided and supplied by the bailor, the bailee is required to supply , maintain, and keep in adequate credit balance his
or her own e-tag. Any tolls or charges that do not form part of the chargeable
fares shall be a deductible expense against bailment charges.
Tolls recorded as part
of the fare on the bailee’s own e-tag are not part of
the chargeable fare for the purposes of bailment under this Contract.
39. Third Party Credit Facilities
Where the Bailor has
provided and installed electronic devices that process credit and debit cards,
or has entered into an arrangement with any third party to accept dockets,
tickets or vouchers, encoded or imprinted, as payment for taxi services, then :
The bailor expressly
warrants that all such credit facilities legitimately passed on to a passenger
making a taxi trip will be guaranteed by the bailor and monies due will be
reimbursed to the bailee driver.
Such facilities
include the in-cab eftpos system Cabcharge encoded dockets, tickets and
vouchers and "green emergency dockets" [if verified by a recorded
form of identification or by Radio Room authorization, for trips above the
floor limit], and Transport Subsidy Scheme M40 / M50 dockets / cards.
40
Superannuation
A Superannuation Contribution of a designated
amount for the Superannuation of all drivers, that amount determined in Schedule
II, shall be payable as payment by the bailor into an Approved Superannuation
Fund.
Documentation shall be
supplied to the bailee of the status of his or her Superannuation Account on a
monthly basis, verified by the Approved Fund. Records shall be maintained by
the bailor on a shift-by-shift basis of all monies paid, and such records will
be made available to the bailee on request, and may form part of a monthly tax
invoice record.
An Annual adjustment
shall be made to reconcile the Drivers Superannuation account to a total
equivalent to the current National Superannuation Rate, calculated to include
all monies paid as pay-ins to the bailor plus Annual Leave Entitlements and
Sick Pay.
41. Mutual Obligations
Bailor and bailee will act in a reasonable way
and help each other comply with their obligations. Information provided to each other will be updated
when changes occur.
42. Surveillance
The bailee consents to the use of surveillance devices installed in
the taxi by the Operator and/or the Accredited Network, as required or
permitted by Regulation. This will include a taxi safety camera, or cameras, global
positioning system and emergency warning device, and recording of metered fare
transactions. Recordings may be continuous and capable of being externally
monitored and retained.
The bailee hereby consents to the viewing and recording of information by the bailor, for the purposes of validating and verifying the use of the taxi by the bailee plying for hire, and in the normal course of employment.
43. Surveillance Reports
a) The Bailor Operator will make available surveillance footage from the security cameras and audio systems to the bailee driver to the extent permitted by law, and for the purposes of defending the driver from charges, infringements, allegations and complaints made or in process against the driver and prosecuted or initiated by Police or Governmental Authorities.
a) The Bailor Operator will make available surveillance footage from the security cameras and audio systems to the bailee driver to the extent permitted by law, and for the purposes of assisting the driver in matters relating to Accidents and Insurance Claims and / or the recovery of Fare Evasions.
b) Such reports as provided may be charged to the driver at a commercially sustainable cost.
44. Rostering
From time to time the bailee driver will advise preferred shifts availability and the bailor operator will confirm, within reasonable practicality, rostered regular shift allocation. Variations will be permitted by mutual and reasonable agreement.
45. Fatigue Management
Drivers and Operators are required to develop and observe a Fatigue Management Procedure such that a driver will take regular breaks within the shift, and will not generally drive for longer than six hours without a break of at least a half hour. Such breaks are within the context of paid and rostered shift hours.
46. Maternity and
Paternity Leave
Unpaid leave taken as Maternity or Paternity leave shall be taken as a permitted break in employment, and shall not be included in calculations for Annual or Long Service Leave.
47. Break in Service due
to License Disqualification.
Unpaid leave taken as due to License Disqualification shall be taken as a permitted break in employment, and shall not be included in calculations for Annual or Long Service Leave.
48. Continuing
Responsibilities of Bailor.
Entitlements accruing to a bailee are a liability of the business entity conducted by the bailor notwithstanding multiple accreditations and or taxis operated by the one individual or corporation, and passing beyond any transfer of ownership or management of operations.
49. Variations and
Additional Terms
This bailment agreement can only be varied in writing signed by both of us. Any additional terms must be written and initialed by both parties within this document. Any additional terms must not be inconsistent with the terms of this bailment agreement.
50. Supply of Worksheets
The Bailor shall supply approved worksheets in either printed or electronic format to the bailee on commencement of each shift. The Safety check-off verifying the condition of the vehicle shall be completed and signed by the bailor or his accredited and qualified representative.
Appendix A Schedule I
As a taxi driver, you have the legal right to choose the method of payment for bailment charges. You cannot be victimised or terminated merely because of the choice you make.
You have 2 methods of payment to choose from:
Method
I — Commission : -
Bailment
You keep a
percentage of all Commissionable Fares taken, including GST. You retain tariff surcharges, tips, tolls, and extras. You deduct costs of all fuel and car
wash. You pay the rest to the operator
of the taxi. You will need to keep a
shift record meter readings of the fares you take in addition to filling out
your normal worksheet, if required by the operator. Your pay-in is inclusive of GST.
Casual Driver’s Percentage 65%
Permanent Driver’s Percentage 50 %
In the event of the total Driver Retention being less than the gross of hourly rates as per Schedule II, then the driver shall retain from Gross Fares the amounts noted as hourly Downtime times hours worked.
Method
II — Cab Usage Fees //
Set Pay-In : – Bailment
You pay the
operator of the taxi the fixed amounts set out in Schedule II, or a lesser
amount, if the operator and you agree. The operator pays for all fuel and car
wash. You keep the rest of the revenue from Gross Fares. You do not need to keep a log of the fares
you take, but you must fill out your normal worksheet. Your pay-in is inclusive
of GST
1. On either method, you have entitlements to annual leave, sick leave, long service leave and Superannuation, if you are a permanent driver. If you are a Casual Driver the amounts in the Schedules reflect a proportionately lower rate of Pay-In, or a higher percentage to be retained.
Now make your choice. Tick the box for the method you prefer:
METHOD I — COMMISSION Print your name
METHOD II — CAB USAGE FEE Signed / Date
Acknowledgement of receipt Operator’s signature / date
Schedule
II
MONETARY RATES of BAILMENT CHARGES OR CAB
USAGE FEE
Table 1 – Bailment Charges: From January 1st 2014
Method I: Bailee's percentage of the Commissionable Fares
Permanent Driver — 50%
Casual Driver --- 65%
Hourly Base Rate per hour or part thereof is
as the Downtime Rate of this Schedule
Method II: Cab Usage Fee [Maximum Fixed Fee] [ Including GST]
|
|
Maximum Pay In Including GST Casual Driver |
Maximum
Pay-In including GST |
|
Av
Hours of Shift |
Excess per km |
Downtime
Rate Per
Hour Full Time |
Downtime
Rate Per Hour Casual |
|
Day shifts — Weekdays |
$130.00 |
$150.00 |
260 |
9.5 |
0.50 |
$18.00 |
$22.50 |
|
Day Shifts – Weekends |
$135.00 |
$180.00 |
350 |
10 |
0.50 |
$22.50 |
$30.00 |
|
Night shifts — Monday |
$135.00 |
$180.00 |
300 |
10 |
0.50 |
$22.50 |
$30.00 |
|
Night shifts — Tuesday |
$135.00 |
$180.00 |
320 |
10 |
0.50 |
$22.50 |
$30.00 |
|
Night shifts — Wednesday |
$135.00 |
$180.00 |
320 |
10 |
0.50 |
$22.50 |
$30.00 |
|
Night shifts — Thursday |
$150.00 |
$200.00 |
350 |
11 |
0.50 |
$30.00 |
$40.00 |
|
Night shifts — Friday |
$170.00 |
$230.00 |
400 |
12 |
0.50 |
$30.00 |
$40.00 |
|
Night shifts — Saturday |
$170.00 |
$230.00 |
400 |
12 |
0.50 |
$30.00 |
$40.00 |
|
Night shifts — Sunday |
$130.00 |
$150.00 |
320 |
9.5 |
0.50 |
$30.00 |
$40.00 |
Notation : Fuel and Wash costs to be deducted from pay-ins to Bailor for both Methods of Pay-in
: Weekend day rates to apply only where Tariff II applies to a shift Table 2 — Other Rates and Allowances Note: The entitlements payable by the bailor to the bailee pursuant to this Determination are exclusive of GST. |
Item
No. |
Clause
No. |
Brief
Description |
Amount |
|
1 |
2(i) |
Excess fee amount per kilometer |
0.50 |
|
2 |
23(b)(i) |
Annual leave pay |
5/47
x total pay ins Plus
25% Loading |
|
3 |
23(b)(ii) |
Annual leave pay |
4/48
x total pay ins |
|
4 |
24 |
Sick leave ( per day // six days per year) |
$160.00
- day driver $250.00
– night driver |
|
5 |
25 |
Maximum Bond ( Payable by bailee on demand from bailor) |
$250 |
|
6 |
28 |
Downtime
– Permanent Driver Casual Driver |
As
Table 1 |
|
7 |
22 |
Laundry Allowance – Per shift
|
$2.00
|
|
8 |
40 |
Superannuation – Designated amount per shift with an Annual or Termination Adjustment to 9.25 % of Total Pay-ins plus Annual Leave Payments. |
$15.00
|
Method I : Bailee Driver Records The Driver / Bailee is to record and supply to the Operator / Bailor the following information for each shift. This may be produced in part as a print-out or as manual record of the meter details at the end of a shift. It is a requirement of taxi-cab Regulations that the meter be engaged for every trip. Variations to the totals obtained may be noted separately to verify payments due. Method I : Driver Shift Report Taxi # Date |
|||||
Finish Kilometres |
|
Fuel $ |
|
Total Money |
|
Start Kilometres |
|
Fuel $ II |
|
Less Surcharge |
|
Total Kilometres |
|
Fuel Litres |
|
Less Extras / Bookings |
|
Paid Kilometres |
|
Fuel Litres II |
|
Less Tolls |
|
|
|
Wash $ |
|
|
|
Start Time |
|
|
|
Chargeable Fares |
|
Finish Time |
|
Other Expenses |
|
50% Split |
|
|
|
|
|
Less Expenses |
|
Number of Trips |
|
Total Expenses |
|
|
|
|
|
|
|
Payment to Bailor |
|
|
|
|
|
|
|
|
I CERTIFY THAT THE PARTICULARS
ABOVE ARE TRUE AND CORRECT AND AN ACCURATE RECORD OF ALL FARES TAKEN |
|
Driver's Signature |
Operators
Signature |