Standard terms to the agreement for registered training organisations to deliver training and assessment in NSW
These Standard Terms are incorporated by reference into the agreement [ ] between the Regulator and the RTO in addition to:
- The Agreement, including the Particulars and the Detailed RTO Activities Proposal (DRAP)
- The Conditions - being both the General Conditions and the Specific Conditions that apply
per WHS Authorisation Regime
- Any other documents agreed by the parties
1. Definitions and interpretation
In the Agreement the terms below have the following meaning:
|Agreement||The agreement, executed by the Regulator and the RTO that incorporates these Standard Terms and the Conditions.|
|Approved Training Course (ATC)||As at the Commencement Date, each of the specified VET courses and/or other approved courses listed as “approved” in the Particulars.|
|ASQA||The Australian Skills Quality Authority or any equivalent national regulator for vocational education and training (VET).|
|ASQA Standards||The Standards for Registered Training Organisations (RTOs) 2015.|
|Audit charge||The reasonable costs applicable under clause 21.4.|
|Authorisation card||The authorisation document (includes licence document) issued to a person to lawfully carry out the work which the person is authorised by the Regulator to carry out.|
|Authorisation card charge||The amount set out in the Particulars (including GST) or such other amount specified by the Regulator from time to time, payable by the RTO to the Regulator for administration of the authorisation to carry out the work in accordance with clause 26 and paid in accordance with clause 26.|
|Authorised Officer (AO)||
A party nominated by the RTO in the Particulars or any other person nominated by the RTO under clause 5 who is:
|Business Day||Any day other than a Saturday, Sunday or public holiday in New South Wales.|
|Candidate||A person who is trained and assessed by the RTO in an Approved Training Course.|
|Certificate of competency||The certificate issued by the RTO to a Candidate that certifies the Candidate has successfully completed the relevant Approved Training Course, either in the form of a Statement of Attainment or as otherwise specified.|
|Commencement Date||The date stated in the Particulars.|
|Conditions||Both the General Conditions and the Specific Conditions for RTOs delivering services in NSW, issued by the Regulator under the Regulation or Agreement (available at XXXX|
|Confidential information||All information, in any medium, designated by a disclosing party as confidential information, or which a recipient party ought reasonably to have known is confidential information of the disclosing party, including any documents specified in the Particulars.|
|DRAP||The RTO plan for the delivery of the Services, set out in Schedule 2 Detailed RTO Activities Plan of the Agreement.|
|Extension term||The extension term/s set out in the Particulars.|
|General conditions||The conditions that apply to all RTOs delivering services in NSW (available at [insert SafeWork NSW webpage link).|
|Training and assessment delivered by the RTO for the purposes of Part 6.5 of the Regulation.|
|High Risk Work (HRW)||The scheduled work as described in Schedule 3 of the Regulation, High risk work licences and classes of high risk work.|
|High Risk Work Licence (HRWL)||The HRW licence classes listed in Schedule 4 of the Regulation.|
|HRWL Assessment||An assessment conducted to the national requirements by a high risk work licence (HRWL) Assessor to determine a Candidate’s competency to be granted a licence in a class of high risk work.|
|HRWL Assessor||A person accredited by the Regulator under Part 4.5 of the Regulation to conduct high risk work licence assessments in the HRW class or classes for which that person is accredited.|
|HRW Training||The specified VET course training and assessment delivered by the RTO for the purposes of Part 4.5 of the Regulation, High Risk Work (HRW).|
Means, in respect of the RTO, being in liquidation or provisional liquidation, receivership, bankruptcy (protective or otherwise) or under enforced administration, being unable to pay its debts as and when they fall due or otherwise insolvent, entering into a compromise or arrangement with, or assignment
for the benefit of, any of its members or creditors or any analogous event. However, an Insolvency Event expressly excludes where the RTO: |
1. enters into voluntary administration, or
2. a managing controller (which includes a receiver and manager) is appointed over the whole or substantially the whole of the RTOs property, or
3. publicly announces that it will be making an application to enter into a scheme of arrangement for the purpose of avoiding being wound up in insolvency.
|Intellectual Property Rights||All intellectual property rights, whether or not now existing, both registered and unregistered, protected by statute, common law or equity in Australia or elsewhere in the world, including copyright, trademarks, designs, patents, patentable information and circuit layouts, licences and other rights to possess and use the works and other subject matter of intellectual property rights.|
|Key Performance Indicators (KPIs)||The RTO obligations and the Key Performance Indicators (KPIs) set out in the Particulars.|
|Loss||All losses, liabilities, damages, fines, costs and expenses (including reasonable legal fees on a solicitor/client basis and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) whether in contract, tort (including without limitation negligence), in equity or under statute.|
Notice of |
|The certification provided by a HRWL Assessor to a Candidate who has successfully completed a HRWL Assessment and which is used by the Candidate to apply for a HRWL in the licence class assessed.|
|Online Environment (OLE)||The online portal that RTOs must access and use to manage the scheduling and notification and/or lodgement of their Approved Training Courses and/or assessments.|
|Particulars||The additional contractual details and requirements of the parties set out in Schedule 1 Particulars of the Agreement.|
|Personal information||Has the same meaning in the Privacy Laws.|
1.in respect of the Regulator, its officers, employees, agents and contractors other than the RTO and RTO Personnel; and
2.in respect of the RTO, its officers, including Authorised Officer/s, employees, agents, Trainers, contractors and contractor officers, employees, agents and contractors.
1. the Privacy and Personal Information Protection Act 1998 (NSW)
2. the Privacy Act 1988 (Cwth)
3. the Health Records and Information Privacy Act 2002
4. any applicable codes of conduct or directions issued under the Privacy and Personal
Information. Protection Act 1998 (NSW), the Privacy Act 1988 (Cwth), or the Health Records and Information Privacy Act 2002, and
5. all other applicable laws relating to Personal Information.
|Reassessment||A further assessment of a Candidate that has previously been deemed ‘not yet competent’.|
|Registered Training Organisation (RTO)||
An organisation that:
|Regulation||The Work Health and Safety Regulation 2017 [NSW], including any amendments.|
|Regulator||SafeWork NSW or any equivalent NSW regulator for work health and safety (WHS), including the Regulator’s representatives.|
|Representative||The representative of a party nominated in the Particulars or any other person appointed by a party under clause 5.|
|Services||The delivery to Candidates of learning activities, being both training and assessment, for each of the Approved Training Courses.|
1.as at the Commencement Date, the site(s) listed in the Particulars, and
2.any other site(s) notified in writing by the RTO to the Regulator and approved by the Regulator from time to time, at which the Services will be delivered by the RTO, at the RTO’s expense.
|Specific Conditions||The conditions for RTOs delivering services in NSW for a specified WHS authorisation regime (available at [insert SafeWork NSW webpage link).|
|Standard Terms||The Standard Terms that apply to all RTOs delivering services in NSW and which form part of the Agreement.|
|Statement of |
|The Nationally Recognised Training statement issued to a person by the RTO that certifies the person has satisfied the requirements of the unit/s of competency specified in the statement.|
|Statement of Completion (SOC)||A document provided by the RTO to a Traffic Control Work Training Candidate to confirm that the Candidate has completed the training and achieved the competency level required to carry out the work, which the Candidate has been trained to undertake, under workplace supervision but has not completed the Workplace Assessment.|
|Statement of Training (SOT)||Certification provided by the RTO to a General Construction Induction Training Candidate to confirm that the Candidate has successfully completed the training and achieved the competency level required.|
|Term||The Agreement period set out in the Particulars as may be extended under clause 3.2.|
|Traffic Control Work Training (TCWT)||Training and assessment delivered by the RTO for the purposes of the Work Health and Safety Regulation Amendment (Traffic Control Training) 2019 [NSW].|
|Traffic Control Worker||An individual who has carried out, is carrying out, or is about to carry out, traffic control work.|
|Trainer||RTO Personnel who:|
1.as at the Commencement Date, are listed as a Trainer in the Particulars, and
2.are nominated to and approved as a Trainer in writing by the Regulator, from time to time during the Term in accordance with clause 11, are engaged by the RTO to deliver the Services (either training or assessment or both).
|Training||The training and assessment delivered by an RTO to enable a Candidate to be trained and assessed against a unit or units of competency and, if determined to be competent:|
1.be issued a Certificate of Competency, or
2.in the case of high risk work, undertake a HRWL Assessment.
|Training materials||The materials provided in the DRAP by the RTO to deliver the Services, as amended from time to time.|
|Trigger event||Any of the following:|
1.the RTO incurs a penalty for a breach of the Regulation
2.ASQA cancels or suspends the RTO’s registration as an RTO
3.the RTO proposes to, or any step is taken by any person to, sell all or a substantial part of its business
4.the RTO proposes to, or any step is taken by any person to, relocate its business from the Site, or
5.the RTO otherwise wishes to close down its business.
|VET Standards||ASQA’s Vocational Education and Training (VET) Standards.|
|WHS Laws||All applicable work health and safety and occupational health and safety related Laws including, but not limited to the Regulation and:|
1.Work Health and Safety Act 2011 (NSW)
2.Acts, regulations, codes of practice, Australian Standards or compliance codes, and
3.directions, guidance notes or notices issued by any relevant Government authority or agency responsible for administering the Laws.
|Work Health and Safety Incident||Any work health and safety related incident that is notifiable under the WHS Laws.|
In this Agreement:
- words importing the singular include the plural and vice versa
- clause headings are for convenient reference only and have no effect in limiting or extending the language to which they refer
- where any word or phrase has been given a defined meaning, any other part of speech or their grammatical form in respect of that word, has a corresponding meaning
- the words ‘includes’ and ‘including’ do not imply any limitations
- a reference to a document or agreement, including this Agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time
- a reference to ‘A$’, ‘$A’, ‘dollar’ or ‘$’ is a reference to Australian currency
- references to clauses, parties, attachments, annexures and schedules are references to clauses of, and parties, attachments, annexures and schedules to, this Agreement
- a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute, and
- a reference to writing includes any method of representing or reproducing words, figures or symbols in a permanent and visible form, but it does not include electronic form unless expressly stated to include electronic form.
2. The regulator's objectives
2.1 The Regulator’s objectives in entering into this Agreement are:
- to provide a framework to deliver training and assessment to enable:
- Candidates to be deemed competent to carry out the work for which they may be authorised by the Regulator;
- authorised Candidates to understand and comply with their obligations under NSW law; and
- all parties to comply with their authorised or approved roles and obligations under relevant Commonwealth and NSW law; and
- to put in place an agreement under which:
- the Regulator authorises the RTO to deliver the Services to Candidates;
- the Regulator can verify whether the Services are delivered in accordance with the required standards;
- the Regulator and the RTO agree the fees payable by the RTO to the Regulator in connection with the provision of the Services to Candidates by the RTO; and
- Authorisation may be provided to Candidates by the Regulator.
3.1 This Agreement commences on the Commencement Date and continues for the Term unless terminated earlier in accordance with its terms and conditions or at law.
3.2 The Regulator may extend the Term by the Extension Term/s stated in the Particulars by notifying the RTO in writing.
3.3 Each Extension Term will operate on the same terms and conditions as set out in this Agreement but excluding any right to an Extension Term that has already been exercised.
4.1 The Regulator approves the RTO to provide, and the RTO agrees to deliver the Services in accordance with the terms and conditions of this Agreement.
5.1 The Representatives for each party have the legal power to bind that party in respect of any matter arising in connection with the Services.
5.2 Each party may nominate an alternative Representative by notice in writing to the other party.
6.1 The RTO must:
- comply with the Regulation
- for the Term, be certified by ASQA as a registered training organisation able to deliver all Approved Training Courses
- deliver the Services and require that any RTO Trainers and HRWL Assessors deliver the Services:
1. in good faith, without delay and with due care and competence
2. to the standard expected of an expert training provider accredited with ASQA and authorised or approved by the Regulator;
3. to meet or exceed the standards set out in the KPIs, and
4. in accordance with the DRAP.
- comply with the National Vocational Education and Training Regulator Act 2011 (the NVR Act), including the fit and proper person requirements in that Act, the ASQA Standards and any other obligations under applicable laws;
- attend briefings, orientation, training or assessment programs as reasonably required by the Regulator;
- regularly consult with the Regulator during the delivery of the Services to remain informed of the Regulator’s requirements;
- comply with the reasonable instructions and directions of the Regulator;
- maintain at the RTO’s own expense all equipment and supplies necessary to deliver the Services;
- obtain the Regulator’s prior approval for incurring expenses or disbursements on behalf of the Regulator;
- assist the Regulator to comply and co-operate with ASQA in relation to any audit, inspection or investigation ASQA may undertake in relation to the Services; and
- comply with any additional conditions imposed by ASQA as a result of an ASQA audit.
6.2 The RTO must not without the prior written approval of the Regulator:
- assign, subcontract or novate this Agreement or any part of the Services
- make any representations or warranties, incur any liability or assume any obligation on behalf of, or otherwise bind, the Regulator
- sell, encumber or otherwise part with possession, custody or control of any goods or property of the Regulator or
- alter any goods or property of the Regulator in any way.
6.3 The RTO must not:
- engage in any false, misleading, deceptive, indecent, defamatory, corrupt or unlawful conduct
- do anything that may cause the Regulator to breach its obligations under any agreement, regulation or law, or
- issue or purport to issue an Authorisation to carry out authorised work to any person, including a Candidate, excepting when specifically approved to do so by the Regulator.
7. RTO responsibility to notify
7.1 The RTO must notify the Regulator of any events which may compromise, or impact upon, the RTO’s ability to deliver the Services to the required standard.
7.2 The RTO must immediately notify the Regulator:
- if the RTO ceases or intends to cease to deliver the Services
- if the RTO ceases or intends to cease business
- if the RTO suffers any Insolvency Event
- if the RTO’s approval as a registered training organisation with ASQA or with any equivalent Australian state or territory authority is cancelled or suspended
- of any action taken or required to be taken by ASAQ for the RTO to comply with the NVR Act
- if the RTO, its directors or Authorised Officers have or has had an approval to deliver WHS/ occupational health and safety (OHS) authorisation services suspended, terminated or cancelled in another Australian jurisdiction
- of any Trainer who is identified as being suspended or cancelled as a WHS/OHS and/or VET services provider in any Australian jurisdiction
- of any court conviction against the RTO, its directors, Authorised Officers or Trainers in Australia for a WHS/OHS offence
- of any criminal offence of the RTO, its directors, Authorised Officers or Trainers
- of any suspected fraudulent or corrupt behaviour associated with the Services as well as any reasonable suspicion or belief that the training and assessment process may be compromised by a Trainer, HRWL Assessor or Candidate.
- of any attempted bribe or offer of a gift by any party in the delivery of the Services
- of any identified breach of this Agreement by the RTO, its directors, Authorised Officers or Trainers.
7.3 The RTO must notify the Regulator in writing within 14 days of:
- any change of RTO address, contact details and/or registered name
- any change of Authorised Officer(s), or
- any RTO Personnel who is no longer approved by the RTO to use the OLE.
8. The online environment (OLE)
8.1 The RTO must use the Regulator’s OLE, or any replacement digital management system.
8.2 The RTO must comply with the OLE user guide requirements and any terms and conditions of access.
8.3 The RTO must provide sufficient training and instruction in the use of the OLE to all RTO Personnel issued with a user identification (login).
8.4 The RTO must maintain secure access to the OLE and protect the integrity of the RTO’s access and user identifications.
8.5 The RTO must enter all data is accurately and in a timely manner to minimise any impacts on authorisations arising, including due to missing notification deadlines and data entry errors.
9.1 The RTO warrants that:
- all information submitted by the RTO to obtain the Regulator’s authorisation or approval under the Regulation to deliver the Services was true and correct at the date of the submission
- it has obtained all licences, authorisations, and approvals required for entering into and giving effect to this Agreement and to deliver the Services
- at the Commencement Date, the DRAP and the Training Materials therein comply with the VET Standards, and the RTO will amend the DRAP and the Training Materials from time to time (in accordance with clause 12.2) to ensure compliance with the VET Standards
- it has not relied on any representation or warranty made by or on behalf of the Regulator which is not set out in this Agreement
- no conflict of interest exists or is likely to arise in the performance of the RTO’s obligations under this Agreement
- if the RTO becomes aware of an actual or potential conflict of interest, it will notify the Regulator immediately of becoming so aware, and
- it shall only issue a Certificate of Competency to Candidates where evidence of proper assessment by the RTO of the relevant competency exists and can be produced to the Regulator at any time upon the Regulator’s request.
10.1 The RTO must deliver the Services at the Site or any other notified site.
10.2 The Site or any other notified site must be suitable for the delivery of services of the nature of the Services.
11.1 The RTO:
- must seek the written approval of the Regulator for a person to be a Trainer;
- must only use a Trainer approved by the Regulator to deliver the Services;
- must notify the Regulator in writing within 14 days of:
- any Trainer who is no longer authorised by the RTO to deliver the Services; and
- any change to a Trainer’s contact details;
- must ensure that all Trainers, at all relevant times satisfy all requirements set out in this Agreement; and
- is liable for all acts or omissions of the Trainer(s) as if they were the acts or omissions of the RTO.
11.2 The Regulator may, at any time and at its absolute discretion, withdraw its approval for any person to be a Trainer under this Agreement by notification in writing to the RTO.
12.1 The RTO must deliver the Services to Candidates in accordance with the DRAP.
12.2 The RTO:
- acknowledges that the DRAP may require updating and refining throughout the execution of the Services:
- to reflect the tasks or other things to be done or provided to deliver the Services in accordance with this Agreement; and
- to comply with VET Standards, the Conditions and the Regulation; and
- on account of the addition or removal of training courses as Approved Training Courses;
- must update and refine the DRAP as required at its own cost; and
- must obtain the Regulator’s written approval of the revised DRAP prior to implementation.
13. Training materials
13.1 The RTO must prepare and provide Training Materials that are of a standard to meet the obligations of the RTO under this Agreement for the delivery of the Services.
13.2 The RTO or its licensors own all Intellectual Property Rights in the Training Materials and the benefit of all existing and future goodwill in the Training Materials inures solely to the RTO or its licensors as applicable.
13.3 The RTO grants and must ensure that its licensors grant to the Regulator a royalty free, non-transferable licence for the Term to access and use the Training Materials for the purposes of this Agreement.
14. Withdrawal of approved training course
14.1 The Regulator may withdraw its approval for the RTO to deliver an Approved Training Course under this Agreement or amend the status of a training course so that it is no longer an Approved Training Course by providing at least 2 months prior notification in writing to the RTO.
14.2 Any exercise by the Regulator of its powers under clause 14.1 is without liability to the RTO, is not a suspension or termination of this Agreement and does not prevent the Regulator from exercising other rights under this Agreement.
15. Subcontracting, assignment and novation
15.1 The RTO must seek the written approval of the Regulator to assign, subcontract or novate this Agreement or any part of the Services to a third party, which the Regulator may give or refuse in its absolute discretion.
15.2 The RTO must include provisions in any arrangement entered into with an approved third party for the purpose of fulfilling its obligations under this Agreement that require the third party to comply with the same obligations as the RTO has under this Agreement in relation to the Services, including requirements in relation to subcontracts.
15.3 The RTO is liable for all acts or omissions of any approved third parties as if they were the acts or omissions of the RTO.
15.4 A change in the shareholding or ownership of the RTO which alters the effective control of the RTO (including the ability to determine decisions concerning its financial or operating policies):
- is an assignment; and
- if not approved by the Regulator, is a breach of this Agreement.
15.5 The Regulator may novate this Agreement without seeking the RTO’s prior consent, including as a result of machinery of government changes.
16.1 The RTO must comply with any advertising requirements specified by the Regulator, including any requirements set out in the Conditions.
16.2 The RTO agrees that the following terms may be used in any advertising or publicity undertaken in relation to the Services, but only on the following basis:
- if the RTO has the Regulator’s approval and entered into an agreement to deliver the Services in NSW under the Regulation, excepting for Traffic Control Work Training;
- if the Regulator, ‘SafeWork NSW’, is identified as the approving authority;
- this term must not be used by or to refer to any Regulator approved third parties delivering services on behalf of the RTO; and
- this term must not be used to refer to any Regulator approved Trainer.
- if the RTO is authorised by the Regulator and has entered into an agreement to deliver Traffic Control Work Training Services in NSW under the Regulation; and
- if the Regulator, ‘SafeWork NSW’, is identified as the authorising authority.
- this term must not be used in reference to the RTO, any Regulator Approved Training Course or the training itself; and
- this term must not be used in reference to a Regulator approved Trainer.
17.1 The RTO must provide reports to the Regulator in an electronic format:
- as required in the Particulars
- as required by the Conditions
- as required by the OLE, and
- as notified by the Regulator from time to time.
18. Work Health and Safety (WHS)
18.1 The RTO must at all times:
- ensure, so far as is reasonably practicable, that at all times all Services are provided in a manner that does not put the health and safety of any person at risk;
- comply with its duties under WHS Laws;
- develop, implement and maintain WHS policies and procedures;
- consult, co-operate and co-ordinate with the Regulator regarding WHS matters relevant to the Services; and
- following any WHS Incident that requires notification to a WHS regulator under WHS Laws in connection with the Services:
- comply with any notification obligations under the WHS Laws;
- immediately upon becoming aware of the incident, notify the Regulator’s Representative of that incident; and
- maintain any records relating to the Work Health and Safety Incident
19. Statement of completion or training
19.1 The RTO may order a book of Statements of Completion or Training from the Regulator at any time with the charge calculated at the rate and paid via the payment method set out in the Particulars.
19.2 The RTO must:
- ensure it has a sufficient stock of Statements of Completion or Training to comply with its obligations under clause 19.2(b).
- issue a Statement of Completion or Training to a Candidate if and when the RTO forms the view that a Candidate has obtained the competency level required to carry out the work which the Candidate has been trained to undertake.
20. Authorisation card
20.1 The RTO must:
- provide to the Regulator any materials requested by the Regulator, including training and assessment evidence, for review when considering an application for an Authorisation Card.
- accurately upload the required Candidate details into the Regulator’s OLE for the Regulator to process Authorisation Card applications, which may include:
- full name and birth date;
- residential and mailing address;
- reason for attending training;
- details of training undertaken (including the Approved Training Course(s) completed);
- results of assessment(s) undertaken; and
- RTO and Trainer identification numbers.
- Subject to any review undertaken by the Regulator under clause 20.1(a), the Regulator will issue the relevant Candidate an Authorisation Card with the relevant Authorisation(s).
20.2 The RTO will bear the cost of any additional Authorisation Card(s) required to be issued to a Candidate by the Regulator as a result of RTO OLE data entry error.
21. Auditing and verification
21.1 The RTO acknowledges and agrees that at least annually and at any other time after giving reasonable prior notice, the Regulator may, during the RTO’s business hours:
- inspect records, information, correspondence or other material relating to the Services including attending the Site, attending training, accessing digital training delivery systems, and observing the RTO deliver the Services;
- carry out audits on:
- the RTO’s quality management system; and
- a quality and probity basis, including:
- checking Trainer competency, sufficiency of the Site and other relevant factors;
- reviewing and verifying training systems and materials;
- auditing assessment papers or logbooks or both, as relevant;
- inspections after the RTO has provided the Services;
- random spot or “mystery shopper” inspections;
- viewing fixed and mobile camera footage (if available) at the Site; and
- inspecting reports prepared by the RTO in accordance with this Agreement.
- The Regulator’s Personnel may attend and undertake training and assessment with the RTO in the role of a Candidate to:
- verify training is provided in accordance with this Agreement;
- check Trainer competency, the adequacy of training materials and facilities at the Site and other relevant factors;
- verify assessments are completed in accordance with this Agreement; and
- inspect assessment papers.
- the RTO must:
- provide such access to the Site and any digital services delivery systems to enable the Regulator’s Personnel to carry out any such audit;
- co-operate with and provide all assistance requested by the Regulator’s Personnel when carrying out any such audit; and
- ensure that its Trainers do the same;
- the Regulator may apply additional conditions arising from the results of an audit, to be notified to the RTO in writing; and
- the results of any audit undertaken by the Regulator may be provided to ASQA by the Regulator.
21.2 The RTO must assist the Regulator, as may be required, so that the Regulator can effectively undertake and complete HRWL assessment verifications to confirm that assessments are undertaken as required by RTO affiliated HRWL assessors.
21.3 The Regulator will be entitled to take copies of or extracts from any accounts, records, information, correspondence or other material that are directly related to the Services.
21.4 Costs in connection with auditing and verification under this clause 20.2 are the Regulator’s responsibility except where the audit results from or reveals a failure of the RTO to comply with this Agreement in which case the Audit Charge shall be payable by the RTO based on the reasonable costs directly incurred by the Regulator in conducting the audit and invoiced as set out in the particulars.
22.1 A recipient of Confidential Information may only use or reproduce the Confidential Information of the disclosing party for the purpose of performing the recipient’s obligations or exercising the recipient’s rights under this Agreement.
22.2 A recipient must:
- not disclose the Confidential Information of the disclosing party to any person, except employees of the recipient or other parties requiring access to the information for the purposes expressly permitted by this Agreement;
- not make, assist or permit any person (including its representatives) to make any unauthorised use, disclosure or reproduction of the disclosing party’s Confidential Information; and
- take reasonable steps to safeguard the Confidential Information of the disclosing party, including co-operating with the disclosing party in any action which it may take to protect the confidentiality of its Confidential Information.
22.3 A disclosure may only be made provided that the person to whom the Confidential Information is disclosed is specifically made aware of the confidential nature of the information.
22.4 The obligations contained in this clause survive the termination or expiry of this Agreement.
23.1 Notwithstanding any permitted handling of Confidential Information under this Agreement, the RTO must:
- not do any act or engage in any practice:
- that would breach any of its obligations; or
- which if done or engaged in by the Regulator, would breach any of the Regulator’s obligations, under any Privacy Laws;
- ensure that it uses, accesses, retains and discloses any Personal Information, obtained either directly or indirectly as a consequence of this Agreement only as allowed in this Agreement;
- when collecting Personal Information about any Candidate, obtain the Candidate’s authority to disclose that Personal Information to the Regulator for all purposes related to this Agreement;
- notify the Regulator immediately upon:
- becoming aware of a breach or possible breach of any of the obligations contained in or referred to in this clause 23, by the RTO or any of the RTO’s Personnel; or
- receiving a complaint relating to privacy; or
- receiving a request from an individual for access to, alteration, amendment or correction of Personal Information used by the Regulator in connection with this Agreement;
- comply with all reasonable directions of the Regulator in relation to the care, protection of, access to, and disposal of, Personal Information held in connection with this Agreement; and
- ensure that any of the RTO’s Personnel who may be handling Personal Information in connection with this Agreement, comply with this clause 23 as if they were the RTO.
24.1 The RTO must take out and maintain the following insurance:
a. public liability insurance for the amount set out in the Particulars, such insurance to be maintained during the term of this Agreement with the Regulator;
b. professional indemnity insurance for the amount set out in the Particulars, such insurance to be maintained during the term of this Agreement with the Regulator and for at least 7 years after expiry or termination of this Agreement; and
c. all workers’ compensation insurance required by applicable law.
24.2 The RTO must produce, on demand, evidence of the insurance maintained in accordance with this clause 24.
25. No payment for services
25.1 For the avoidance of doubt, the RTO is not entitled to claim any payment from the Regulator and the Regulator is not obliged to pay the RTO any amount under this Agreement for the Services.
25.2 Except as provided under this Agreement, the Regulator does not have any claim over the fees charged by the RTO to Candidates for the provision of the Services.
26. Fees and charges
26.1 The RTO must not claim that any administration or training fees are charged for and/or on behalf of the Regulator.
26.2 The RTO must:
- only collect any required Authorisation Card Charge from the Candidate per authorisation for the purpose of payment to the Regulator for the processing and issuing an Authorisation Card to the Candidate;
- not collect any other fees or payments from the Candidate under the auspices of the Regulator; and
- remit any Authorisation Card Charges collected to the Regulator as required.
26.3 Any Audit Charges incurred by the RTO will be invoiced the month following the audit in which the Audit Charges are incurred (Audit Charges Invoice Amount).
26.4 The RTO must pay the Audit Charges Invoice Amount within the number of Business Days set out in the invoice from the date of the relevant invoice.
The parties agree:
- unless otherwise stated, all dollar amounts referred to in this Agreement are GST exclusive;
- except where an amount is stated to be GST inclusive, if either party (Supplier) is or becomes liable to pay GST arising out of or in connection with this Agreement, the Supplier will, in addition to any amount it may be entitled to recover for the relevant supply (consideration), also be entitled to recover the amount of any GST liability incurred as a result of the supply;
- where a party is entitled to any adjustment to any fees or charges or otherwise to the payment of money and such adjustment is based on the reasonable or actual cost to the party of performing any work, any input tax credits available to the party in performing such work will be deemed to reduce the cost of such work;
- the Supplier must as a condition precedent to payment under this Agreement provide the other party with a valid tax invoice in respect of the supply; and
- in this clause 27:
- GST means the tax payable on taxable supplies under GST Law;
- GST Law means A New Tax System (Goods & Services Tax) Act 1999 (Cwth); and
- terms defined in the GST Law have the meaning provided by GST Law.
- Subject to clauses 27.1(a) to (e), the RTO must pay all taxes, duties, levies, imposts and charges arising out of or in connection with the Services.
28. Liability and indemnity
28.1 A party will not be liable to the other party for any indirect or consequential Loss, or any loss of profit, revenue, business or goodwill.
28.2 The RTO must indemnify and keep indemnified the Regulator against any:
- negligence or breach of this Agreement by the RTO or by a Trainer;
- claims against the Regulator by a Candidate;
- loss of or damage to property of the Regulator;
- claims by any person against the Regulator in respect of personal injury or death or loss of or damage to property; and
- claims by any person against the Regulator in respect of any fraud, wilful misconduct or criminal conduct by the RTO or any of its employees, servants or agents, arising out of or in connection with this Agreement or the Services.
28.3 The liability of a party for any Losses incurred by the other party will be reduced proportionately to the extent that:
- any negligent act or omission of the party that incurred the Loss (or of its subcontractors or Personnel); or
- any failure by the party that incurred the Loss to comply with its obligations and responsibilities under this Agreement, contributed to those Losses, regardless of whether proceedings are brought by either party for negligence or breach of contract.
29. RTO default
29.1 The following is an RTO Default:
- the RTO or any Trainer or other Personnel or party it engages to deliver the Services has failed to comply with an obligation it has under this Agreement, including as applicable:
- any failure to deliver the Services and any other of its obligations in accordance with this Agreement;
- any failure to deliver an Approved Training Course in accordance with the DRAP;
- breaching a warranty in clause 9;
- failing to provide evidence of insurances obtained in accordance with clause 24; and
- failing to pay the Authorisation Card Charges or Audit Charges in accordance with clause 26.
- the RTO or any of its Trainers or HRWL Assessors, engages in conduct that the Regulator reasonably determines to be corrupt or is in breach of clause 6.3(a), whether in relation to this Agreement, or otherwise;
- there is a material change in the financial condition or business assets of the RTO, or any event or circumstance occurs or comes into existence, which in the opinion of the Regulator would have a materially adverse effect on the ability of the RTO to perform its obligations under this Agreement;
- a Trigger Event has occurred or is proposed to occur.
29.2 If an RTO Default occurs, the Regulator may give the RTO a notice (Default Notice):
- stating that it is a notice under this clause 29;
- specifying the nature of the RTO Default which has occurred; and
- if the RTO Default is capable of being remedied, specifying a remedy, including any additional conditions, and a period in which the RTO Default must be remedied (Remediation Period).
29.3 If an RTO Default occurs, the RTO must:
- whether or not a Default Notice has been issued by the Regulator, immediately commence and diligently pursue any action required to remedy the RTO Default; and
- if a Default Notice has not been issued by the Regulator, immediately notify the Regulator of the RTO Default.
Remediation and prevention plan
29.4 If the Regulator issues a Default Notice and the RTO Default is capable of being remedied, the RTO must:
- comply with the Default Notice;
- unless the Remediation Period is less than 5 Business Days (in which case no Remediation and Prevention Plan is required), prepare and submit to the Regulator a draft Remediation and Prevention Plan (R&P Plan) describing the actions and measures which the RTO will diligently pursue to remedy the RTO Default and prevent it from recurring;
- consult with the Regulator to agree to the terms of the draft R&P Plan (including any amendments to the draft plan requested by the Regulator). The Regulator shall include in the draft R&P Plan any audit requirements to measure the implementation of the R&P Plan including any R&P Plan Audit Charges as may be relevant; and
- following agreement of the draft R&P Plan by the parties or, failing agreement, determination of the R&P Plan by the Regulator, the RTO will implement the R&P Plan.
30. Suspension and termination of agreement
30.1 Each of the following is a Termination Event:
- the RTO has failed to:
- comply with a R&P Plan to the reasonable satisfaction of the Regulator, or
- remedy a RTO Default within the applicable Remediation Period
- the RTO commits a material breach of this Agreement, which is not capable of remedy
- the Regulator exercises its rights to cancel an authorisation or approval, or disqualifies the RTO from applying for an authorisation or approval
- an Insolvency Event occurs in relation to the RTO
- the RTO ceases or threatens to cease to carry on business or undertake any of its obligations under this Agreement
- if, in the Regulator’s opinion, there is a change of control or subcontract, assignment or novation without approval in accordance with clause 15.1; or
- a Trigger Event has occurred which has not been remedied to the reasonable satisfaction of the Regulator.
Termination and suspension
30.2 If a Termination Event occurs, the Regulator may:
- immediately terminate this Agreement by notifying the RTO in writing;
- immediately terminate its approval for one or more Approved Training Courses by notifying the RTO in writing; or
- without limiting clauses 30.2(a) or (b), instruct the RTO in writing to do any one or more of the following:
- immediately suspend the delivery, or any part, of the Services;
- co-operate with the Regulator as and when required by the Regulator;
- provide additional or alternative services or other Services; or
- take, or procure that its Personnel take, such other steps as the Regulator determines are necessary or desirable in order to:
- continue the delivery of the Services; or
- minimise the risk to:
- the health or safety of persons;
- the Site, as appropriate;
- any property; and
- the safe and correct performance of this Agreement,
- On suspension of this Agreement for any reason, without limiting any other rights the Regulator may have, the RTO must immediately cease providing the Services and advise the Regulator of future commitments made and unable to be fulfilled under this Agreement as a result.
- On termination or expiry of this Agreement for any reason, without limiting any other rights the Regulator may have, the RTO must:
- immediately, cease providing the Services; and
- within seven days, return to the Regulator all property, documents and other materials provided by the Regulator to the RTO.
- Termination of this Agreement will not prejudice any right of action or remedy which the Regulator may have accrued prior to termination of this Agreement.
Costs of additional services
30.3 The RTO will bear the cost of any additional, alternative, or other Services required or steps to be taken by the RTO as a result of instruction by the Regulator due to a Termination Event.
30.4 The RTO must not make, and the Regulator and the Regulator’s Personnel will not be liable upon, any claim in connection with the Regulator giving an instruction as a result of a Termination Event.
30.5 The Regulator may issue a notice under clause 30.2(a) notwithstanding that it has not issued a notice under clause 29.230.2.
Termination without cause by the regulator
30.6 Without limiting or otherwise restricting clause 30.1, the Regulator may at any time terminate this Agreement for convenience by giving the RTO not less than 2 months’ notice in writing.
30.7 The Regulator will have no liability to the RTO as a result of or in connection with termination under clause 30.6.
30.8 Upon termination of this Agreement under clause 30.6 the delivery of the Services must cease from the time and date specified in the notice under clause 30.6, or if no time and date is stated, within two months of receipt by the RTO of the notice.
30.9 The RTO must hand over to the Regulator all materials provided by the Regulator and confirm deletion of any electronic files containing copies of or extracts from those materials.
Termination deemed void
30.10 If a court determines that a termination of this Agreement by the Regulator under clause 30.2 was wrongful, such termination will be deemed a termination under clauses 30.6 to 30.9 and the RTO’s entitlements on such termination will be limited in accordance with clause 30.7.
31. Suspension or cancellation of TCWT authorisation
31.1 The suspension or termination of an RTO agreement will suspend or cancel an RTO Traffic Control Work Training authorisation.
31.2 Where an RTO Traffic Control Work Training authorisation is suspended or cancelled, the RTO may seek a review, as advised by the Regulator, as provided for by clause 676 of the Regulation.
32. RTO cancellation
32.1 The RTO may request the cancellation of this Agreement by notifying the Regulator in writing. The notification must be signed by the RTO’s Authorised Officer.
32.2 This Agreement will be cancelled if the Regulator notifies the RTO in writing that the Regulator accepts the RTO’s request to cancel.
32.3 The Regulator’s acceptance of an RTOs request to cancel an Agreement will also cancel an RTO Traffic Control Work Training authorisation.
33. Dispute resolution
33.1 Regulator’s powers and functions under the Regulation.
33.2 The parties agree that if any dispute arises between them, they will make a genuine effort to resolve it without resorting to litigation.
33.3 If they are unable to resolve the difference within 30 days, then the dispute or difference will be referred to Senior Management of the parties as set out in the Particulars.
33.4 If Senior Management cannot resolve within a further 30 days then the dispute or difference will be referred to mediation of a mediator to be agreed by them (and if they cannot agree on a mediator within a further 10 Business Days then the appointment of a mediator shall vest in the President of the Law Society of New South Wales or his/her nominee) with such mediation to be conducted in accordance with the rules laid down by the Lawyers Engaged in Alternative Dispute Resolution (LEADR) in Australia.
33.5 Nothing in this clause will prevent either party from seeking urgent interlocutory relief from any competent court.
33.6 Each party must continue to perform its obligations under this Agreement notwithstanding the existence of a dispute.
34.1 No Waiver
Failure by the Regulator to enforce any term of this Agreement does not constitute a waiver of that term and does not impair the right of the Regulator to enforce it at a later time or to pursue remedies it may have for any subsequent breach of that term.
If at any time a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, this will not affect or impair:
- the legality, validity or enforceability in that jurisdiction of any other provision of this Agreement; or
- the legality, validity or enforceability under any other jurisdiction of that or any other provision of this Agreement.
34.3 Costs and Expenses
Each party must pay its own costs and expenses in respect of the negotiation, preparation, execution, delivery, stamping and registration of this Agreement.
The Regulator and the RTO are independent parties. Nothing in this Agreement is to be treated as creating any relationship of employer or employee, principal and agent, agency, partnership or joint venture between the Regulator and the RTO, or between the Regulator and any Regulator approved RTO Personnel.
If any part of this Agreement is for any reason declared invalid or unenforceable, the validity of the remaining portion is not to be affected and the remaining portion is to remain in full effect as if this Agreement had been signed with the invalid portion eliminated.
34.6 Further Assurances
Each party must perform all such other acts or matters as may be necessary to implement the provisions of this Agreement so as to give effect to the intentions of the parties as expressed in this Agreement.
34.7 Entire Agreement
This Agreement records the entire agreement between the parties and supersedes all previous negotiations, understandings, representations and arrangements in relation to the subject matter of this document.
Any variations to this Agreement must be mutually agreed in writing.
34.9 Governing Law
This Agreement is governed by the laws of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales.
35.1 Any notice given or made under this Agreement must be:
- in legible writing
- signed by the party giving or making it (or signed on behalf of such party by its duly authorised representative), and
- sent by email to the email address of the recipient party as set out in the Particulars, or another email address as may be notified by the recipient party to the notifying party for the purpose of service of notices.
Proof of sending of email to the recipient’s email address at the time indicated in the time and date stamp of the email, is proof of receipt.