workforce and subcontractors
3.3.4.1
Employment conditions
The Project Company must comply with a series of condi- tions concerning its own employees, the employees of the Facilities Manager, the employees of any other operations- phase “subcontractors” it appoints to provide its services, under arrangements summarised in section 3.3.4.2 below, and the employees of these subcontractors’ “sub-subcontrac- tors”. (The term “employee” includes anyone engaged in the project, including independent contractors.)
Under these conditions,
· All employees must be appropriately qualified, skilled and experienced for their assigned tasks
· The Project Company must comply with any DET requirements, policies and procedures for staff conduct, ensure its officers, employees, agents, subcontractors and sub-subcontractors do likewise and take disciplinary action against any employee who breaches the DET’s requirements, policies and procedures, notifying the State’s Project Director in writing
· All employees must:
¤ Satisfy all relevant requirements of the Child Pro-
tection (Prohibited Employment Act (NSW), the Child Protection (Offenders Registration) Act (NSW), the Commission for Children and Young People Act (NSW) and the Education Act (NSW), including their training requirements
¤ Successfully complete a “working with children”
check, and
¤ Comply with any other legal and DET require-
ments, policies and procedures for employees in child-related employment
· The Project Company must investigate the criminal, medical and employment histories of all prospective
employees and make the findings of these investigations available to the State’s Project Director before job offers are made, undertaking further investigations and providing further information if he or she directs it to do so
· The Project Director may direct the Project Company, within 20 business days, to deny employment if the Project Company’s investigation(s) indicate a prospec- tive employee would not be an appropriate employee at a school
· The Project Director may carry out his or her own investigations, including police and security checks, with the consent of the prospective employee(s), and require the dismissal of employees from the project if they have not complied or do not comply with the requirements described above or are unsuitable or unqualified
· The Project Company and its subcontractors and sub-subcontractors must establish and comply with “human resources” and industrial relations policies, provide healthy and safe working conditions and comply with employment laws
· The Project Company must regularly inform the Project Director about any industrial action that might affect the services and promptly inform him or her if indus- trial action causes a suspension or cessation of the services, providing information about the actions it has taken or proposes to take to overcome or minimise the effects, and
· The Project Company and its subcontractors and sub- subcontractors will otherwise be entirely responsible for the employment and conditions of their employees.
3.3.4.2
Subcontracting
In addition to the Project Company’s Facilities Management Contract with the Facilities Manager, the Project Company may enter into contracts with other “subcontractors” for the performance of any of its services.
If it does so, the Project Company must:
· Ensure the subcontractor and any sub-subcontractor(s) are reputable, have (or have access to) sufficient experi- ence and expertise to perform their obligations to the standards required by the Project Deed and take out workers’ compensation, public liability and professional indemnity insurance consistent with the Project Company’s own insurance obligations under the Project Deed (see section 3.4.2.1), as applicable to the relevant services
· Comply with its obligations under the subcontract and ensure the subcontractor does likewise, both under the subcontract and under any sub-subcontract(s)
· Obtain the State’s prior written consent if the total con- tract sum, or the aggregate value of all the project con- tracts with the same subcontractor or sub-subcontractor and its related corporations, will exceed $250,000 per year (indexed to the CPI from the December quarter of 2005), if the term of the subcontract will exceed five years or if the State’s Project Director nominates the relevant services as “critical” during the term of the Project Deed or “important” to the operation of one or more of the school facilities after 31 December 2035 or any earlier termination of the Project Deed (the Project Deed calls these operations-phase subcontracts and sub- subcontracts “material subcontracts”)
· In the case of “material subcontracts”,
¤ Promptly give the State’s Project Director a copy
of each proposed or executed subcontract or sub- subcontract
¤ Ensure the subcontractor executes a Collateral War-
ranty Deed, in favour of the State, on terms set out in a schedule to the Project Deed and equivalent to those already executed by the current Facilities Manager under the existing Facilities Manager Collateral Warranty Deed
¤ Obtain the Project Director’s prior written con-
sent if any departure from or variation, amend- ment, assignment, replacement or termination of the subcontract or any compromise or waiver of the Project Company’s rights under the subcon- tract might affect the rights of the State or the ability of the Project Company to satisfy its obliga- tions under the project’s contracts, and
¤ Immediately notify the Project Director of any term-
ination or material amendment of the subcontract
· Ensure the State obtains the benefit of any warranties and guarantees offered by the subcontractor and any suppliers, and
· Provide monthly reports to the Project Director on its payments to the subcontractor and any formal disputes with the subcontractor.
These Project Company obligations also apply in the case of the existing Facilities Management Contract, which is a “material subcontract”. If the new subcontractor is replacing the current Facilities Manager, the Project Company must also ensure the new subcontractor executes a Facilities Management Side Deed with the State on terms set out in a schedule to the Project Deed and equivalent to those already executed by the current Facilities Manager under the existing Facilities Management Side Deed.