Project AgreementCommonwealth of Australia represented by theDepartment of Jobs and Small Business

and

Organisation

TRAINING, WORK EXPERIENCE, MENTORING, EMPLOYMENT

PROJECT AGREEMENTPARTIESThis Agreement is made between and binds the following Parties:

Commonwealth of Australia (‘Commonwealth’), represented by and acting through the Department of Jobs and Small Business, identified in Item 1 (‘Department’), and

the organisation identified in Item 2 (‘Organisation’).

CONTEXTA. The Department administers the Launch into Work Program.

B. The Organisation has offered to conduct the Project for the purposes of the Launch into

Work Program in which the Organisation will provide Participants with Training, Mentoring

and Work Experience and guarantee employment for Participants who successfully complete

the Project.

C. The Department agrees to support the Organisation’s Project, subject to the terms and

conditions of this Agreement

D. The Organisation has agreed, with the Department, to conduct the Project under the terms

and conditions of this Agreement.

AGREEMENT1. Definitions

1.1. Interpretation

In this Agreement, unless the contrary intention appears:

(a) all capitalised terms have the meaning given to them in clause 1.2;

(b) where a term is given a defined meaning, any other part of speech or other grammatical form of that term has a corresponding meaning; and

(c) all other words have their natural and ordinary meaning.

1.2. General Definitions

‘Adjustment Note’ has the meaning given in section 195-1 of the GST Act.

‘Agreement’ means this document, as varied or extended by the Parties from time to time in accordance with this Agreement, and includes the Schedule and any documents incorporated by reference.

‘Agreement Material’ means all Material:

(a) developed or created or required to be developed or created as part of, or for the purpose of, performing this Agreement;

(b) incorporated in, supplied or required to be supplied along with the Material referred to in paragraph (a) above; or

(c) copied or derived from Material referred to in paragraphs (a) or (b); and includes all Reports.

‘Business Day’ means in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place.

‘Child’ means a person under the age of 18 years, and ‘Children’ has a corresponding meaning.

‘Commencement Date’ means the date specified in Item 3.

‘Commonwealth Material’ means any Material provided by the Department to the Organisation for the purposes of this Agreement and Material which is copied or derived from Material so provided, and includes Commonwealth Records.

‘Commonwealth Records’ means any Records provided by the Department to the Organisation for the purposes of this Agreement, and includes Records which are copied or derived from Records so provided.

‘Completion Date’ means the date specified in Item 4.

‘Department’ means the Commonwealth Department of Jobs and Small Business described in Item 1, and where the context so admits, includes the Commonwealth’s relevant officers, delegates, employees and agents.

‘Documentary Evidence’ means any Record of the Organisation that evidences that the Organisation provided the Project as required under this Agreement and/or that the Organisation is entitled to a Payment.

‘Existing Material’ means all Material, except Commonwealth Material, in existence prior to the Commencement Date:

(a) incorporated in;

(b) supplied with, or as part of; or

(c) required to be supplied with, or as part of,

(d) the Agreement Material.

‘Financial Year’ means a period from 1 July in one year to 30 June in the following year.

‘Group’ means a group of two or more entities, however constituted, other than a partnership, which have entered into an arrangement for the purposes of jointly delivering the Project, and which have appointed a Lead Member of the Group with authority to act on behalf of all members of the Group for the purposes of this Agreement, as specified in Item 11.

‘GST’ has the same meaning as given in section 195-1 of the GST Act.

‘GST Act’ means the A New Tax System (Goods and Project Tax) Act 1999 (Cth).

‘Input Tax Credit’ has the meaning given in Section 195-1 of the GST Act.

‘Intellectual Property Rights’ includes:

(a) all copyright (including rights in relation to phonograms and broadcasts);

(b) all rights in relation to inventions (including patent rights), plant varieties, trademarks (including service marks), designs, circuit layouts; and

(c) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields,

but does not include:

(d) Moral Rights;

(e) the non-proprietary rights of performers; or

(f) rights in relation to confidential information.

‘Item’ means an item of the Schedule.

‘Launch into Work Program’ means the Department’s pilot program of that name, which trials innovative pre-employment projects that provide:

(a) for each Participant:

(i) accredited and non-accredited training, tailored to a specific job within the organisation or industry

(ii) work experience, tailored to a specific job and organisation; and(iii) mentoring; and

(b) for Participants who successfully complete a pre-employment project; ongoing employment.

‘Lead Member’ means the Organisation that has been appointed by the members of a Group to act on behalf of all members of the Group for the purposes of this Agreement.

‘Material’ includes equipment, software (including source code and object code), goods, and Records stored by any means including all copies and extracts of same.

‘Mentoring’ means the mentoring that the Organisation must provide to Participants as specified at Item 5.

‘Moral Rights’ has the meaning given to the term ‘moral rights’ by the Copyright Act 1968 (Cth).

‘Notice’ means a written notice in accordance with clause 23 and ‘Notify’ has an equivalent meaning.

‘Notifiable Incident’ has the meaning given in the WHS Act.

‘Organisation’ means the entity identified in Item 2.

‘Participant’ means a person who has been selected by the Organisation as suitable to participate in the Project, and subsequently referred to the Organisation by a Provider.

‘Party’ means a party to this Agreement.

‘Payment’ means the amount payable by the Department to the Organisation described in Item 7.

‘Personal Information’ has the same meaning as under section 6 of the Privacy Act which currently is information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.

‘Personnel’ means:

(a) in relation to the Organisation, any natural person who is an officer, employee, volunteer or professional advisor of the Organisation; and

(b) in relation to any other entity, any natural person who is an officer, employee, volunteer or professional advisor of the entity.

‘Privacy Act’ refers to the Privacy Act 1988 (Cth).

‘Project’ means the Project described in Item 5.

‘Project Manager’ means the entity described in Item 13, if applicable.

‘Provider’ means an entity contracted by the Department to provide jobactive, Transition to Work or ParentsNext employment services.

‘Record’ means any document, information or data stored by any means and all copies and extracts of the same.

‘Regulator’ means the person who is the regulator within the meaning of the WHS Act.

‘Report’ means Agreement Material that is provided to the Department for reporting purposes under clause 6.1 and Item 8.

‘Schedule’ means the schedule at the end of this Agreement.

'Social Security Appeals Process' means reviews and appeals of decisions made under the Social Security Act 1991 (Cth) or Social Security (Administration) Act 1999 (Cth).

‘Supervision’ means the action or process of directly monitoring and managing Participants participating in the Project.

‘Supervisor’ means a person who has the responsibility for the Supervision of Participants participating in the Project.

‘Tax Invoice’ has the meaning given in section 195-1 of the GST Act.

‘Term’ means the period described in clause 2.1.

‘Training’ means the accredited and non-accredited training that the Organisation must provide to Participants as specified at Item 5.

‘Vulnerable People’ means people who are elderly, disabled or otherwise vulnerable.

‘WHS Act’ means the Work Health and Safety Act 2011 (Cth) and any corresponding WHS law within the meaning of section 4 of the WHS Act.

‘WHS Entry Permit Holder’ has the same meaning as that given in the WHS Act.

‘WHS Laws’ means the WHS Act, WHS Regulations and all relevant state and territory work, health and safety legislation.

‘WHS Regulations’ means the regulations made under the WHS Act.

‘Work Experience’ means an unpaid placement of a Participant with the Organisation of no more than 50 hours per fortnight and no more than four weeks in duration, provided in accordance with Item 5, where:

(a) the main benefit of the placement is to the Participant (rather than to the Organisation);

(b) the Participant and the Organisation do not intend to create a legally binding employment relationship during the work experience placement;

(c) the Participant is receiving a meaningful learning experience, training or skill development; and

(d) the Participant is prepared for a specific role with the Organisation; and

for Participants aged 16 years and under:

(e) work experience placements must be observational only and cannot involve productive work; and

(f) Participants must have or must be provided with the appropriate knowledge and skills to safely observe work tasks in the workplace.

‘Working with Children Laws’ means the:

(a) Child Protection (Working with Children) Act 2012 (NSW);

(b) Working with Children (Risk Management and Screening) Act 2000 (Qld);

(c) Working with Children (Criminal Record Checking) Act 2004 (WA);

(d) Working with Children Act 2005 (Vic);

(e) Children’s Protection Act 1993 (SA);

(f) Working with Vulnerable People (Background Checking) Act 2011 (ACT);

(g) Care and Protection of Children Act 2007 (NT);

(h) Registration to Work with Vulnerable People Act 2013 (Tas); and

(i) any other legislation that provides for the checking and clearance of people who work with Children.

2. Term of this Agreement

2.1. This Agreement takes effect from the Commencement Date and, unless terminated earlier, expires on the Completion Date.

2.2. The Department may, at its sole discretion, extend the Term by giving Notice to the Organisation not less than 7 Business Days prior to the end of the Completion Date.

2.3. If the Term is extended in accordance with clause 2.2, all terms and conditions continue to apply, unless otherwise agreed in writing by the Parties.

3. Project

3.1. The Organisation must deliver the Project in accordance with the terms and conditions of this Agreement.

3.2. The Organisation must provide each Participant with:

(a) Training that is tailored to the positions and/or sector that the Project relates to;

(b) Mentoring that assists the Participant to become job ready; and

(c) Work Experience that develops Participants’ skills for the job, in accordance with this Agreement and Item 5.

3.3. The Organisation must employ all Participants who successfully complete the Training, Mentoring and Work Experience components of the Project in accordance with Item 5.

3.4. The Organisation warrants that the number of Participants who participate in the Project must not exceed the number of available jobs.

3.5. The Organisation acknowledges and agrees, and must ensure that each Participant understands, that Participants are not employees of the Organisation and an employment relationship will not arise by virtue of the Participants’ participation in the Training, Mentoring and Work Experience components of the Project.

3.6. The Organisation must not make any payment in cash or kind to any Participant during the Training, Mentoring and Work Experience components of the Project.

4. Directions about the Project

4.1. The Department may, at any time and at its absolute discretion, give a written direction to the Organisation in relation to the Project, including a direction that the Project be ceased or varied.

4.2. If the Department gives a direction to the Organisation in relation to the Project, the Organisation must:

(a) immediately take any action required by the direction; and

(b) continue to conduct the Project in accordance with the direction.

5. Displacement

5.1. The Organisation must not use the Project to displace paid workers or to reduce the amount of paid work available to its workers.

6. Monitoring and Reports

6.1 The Organisation must:

(a) submit the Reports specified at Item 8 to the Department by the required timeframes; and

(b) work towards achieving the Completion Targets in accordance with Item 10.

6.2 The Department will use the information provided at clause 6.1 to monitor, measure and evaluate the Organisation’s performance of the Project and success of the Launch into Work Program.

6.3 The Organisation must work with Providers to:

(a) monitor the participation of each Participant in the Project; and

(b) where the Organisation determines that a Participant has failed to attend, or participate appropriately in, the Project, Notify the Participant’s Provider on the same Business Day that the Organisation becomes aware of the Participant’s failure to attend, or participate appropriately in the Project.

6.4 The Organisation must abide by any Guidelines or directions issued by the Department regarding how the Organisation must monitor and record Participants’ participation in the Project.

7. Working with Providers

7.1. The Organisation must work closely with the Department, Providers and relevant training providers to:

(a) develop screening and selection resources (including, but not limited to, position descriptions and candidate self-assessment checklists) that assist Providers to identify potentially suitable Participants for the Project;

(b) deliver information sessions to Providers and potential Participants to provide information about the Project and make expectations for participation in the Project clear;

(c) select Participants that demonstrate values and attributes consistent with the Organisation’s requirements to participate in the Project; and

(d) resolve complaints, disputes or issues that affect the participation of Participants in the Project.

7.2 Once Participants are selected, the Organisation must provide all necessary assistance to the Providers for the purposes of conducting a risk assessment, including (but not limited to) providing all relevant work health and safety information upon request (including details of checks conducted for Supervisors) and enabling site visits if required.

7.3 The Organisation must, wherever possible, use other sources of financial contributions that can assist the Organisation to deliver the Project (such as State subsidised training or funding available through Providers).

8. Work health and safety

8.1. The Organisation must in accordance with this Agreement and Item 6:

(a) ensure that the Project is carried out in a safe manner;

(b) at the commencement of a Participant’s involvement in, and throughout, the Project satisfy itself that there is a safe system of work in place, including that it is complying with work health and safety requirements relevant to the jurisdiction in which the Project occurs;

(c) immediately Notify the Participant’s Provider and the Department of any proposed or actual changes to the tasks being undertaken by the Participant or the circumstances in which those tasks are being undertaken;

(d) comply with any reasonable instruction from the Department or the Participant’s Provider relating to work health and safety and any directions issued by any person having authority under the WHS Laws to do so;

(e) if the Organisation is required by the WHS Act to report a Notifiable Incident to the Regulator arising out of the Project:

(i) at the same time, or as soon as is possible in the circumstances, give Notice of such incident, and a copy of any written notice provided to the Regulator, to the Department and the Participant’s Provider; and

(ii) provide to the Department, within such time as the Department specifies, a report detailing the circumstances of the incident, the results of investigations into its cause, and any recommendations or strategies for prevention in the future;

(f) within 24 hours of becoming aware of the Notifiable Incident, inform the Department of the full details of:

(i) any suspected contravention of the WHS Laws relating to the Project;(ii) any workplace entry by a WHS Entry Permit Holder, or an inspector appointed

under the WHS Act, to any place where the Project is being performed or undertaken;

(iii) any proceedings against the Organisation, or any decision or request by the Regulator given to the Organisation, under the WHS Laws; and

(iv) any cessation or direction to cease work relating to the Project, due to unsafe work, immediately upon the Organisation being informed of any such cessation or direction; and

(g) provide the Department and the Participant’s Provider with copies of all notices and correspondence issued to the Organisation by any person under the WHS Laws, within 24 hours of receiving any such notice or correspondence.

8.2. The Organisation must cooperate with any investigation undertaken by the Department or the Participant’s Provider concerning any Notifiable Incident, or breach or alleged breach of the WHS Laws, or any audit of the Organisation’s work health and safety performance, arising out of, or in respect of, the Project.

Incidents

8.3. The Organisation must Notify the Department and the Participant’s Provider as soon as possible, and within 24 hours, of any incident involving the Project, including:

(a) any accident, injury or death occurring during, or as a result of, the Project, including in relation to a Participant or a member of the public;

(b) any incident which relates to a work, health and safety issue; and

(c) any incident that may negatively impact upon the Department.

8.4. Where an incident referred to in clause 8.3 is an accident, or involves injury or death, the Organisation must also, as soon as possible, and within 24 hours, submit an incident report to the Department (in the form required by the Department) giving full details of the accident, injury or death.

9. Checks and reasonable care

Personnel and Supervisors

9.1. Before arranging for any Personnel or a potential Supervisor to be involved in any Project, the Organisation must arrange and pay for all necessary checks, and comply with any other conditions in relation to the person’s involvement, as specified in any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the Project is conducted.

9.2. The Organisation must not allow any Personnel or a potential Supervisor to participate in any aspect of the Project:

(a) if any relevant legislation provides or means that the person must not be allowed to be so involved; or

(b) if:

(i) a relevant check shows that they have been convicted of a crime and a reasonable person would consider that the conviction means that the person would pose a risk to other persons involved in the Project; or

(ii) there is otherwise a reasonably foreseeable risk that the person may cause loss or harm to any other person,

unless the Organisation has put in place reasonable measures to remove or substantially reduce that risk.

Participants

9.3 If a Project involves close proximity with people who are elderly, disabled or otherwise vulnerable, or Children (excluding other Participants), before arranging for a Participant to be involved in the Project, the Organisation must, unless Notified otherwise, arrange and pay for all checks in relation to a Participant’s involvement or placement in the Project as specified in:

(a) any relevant legislation, and in particular, any Working with Children Laws, in effect in the jurisdiction(s) in which the Project is conducted; and

(b) any Guidelines.

9.4 The Organisation must not allow a Participant to be involved in a Project:

(a) if any relevant legislation of Guidelines provide or mean that the Participant must not be allowed to be so involved; or

(b) If:

(i) a relevant check shows that they have been convicted of a crime and a reasonable person would consider that the conviction means that the person would pose a risk to other persons involved in the Project; or

(ii) there is otherwise a reasonably foreseeable risk that the person may cause loss or harm to other persons involved in the Project,

unless the Organisation has put in place reasonable measures to remove or substantially reduce that risk.

10. Supervision

10.1. The Organisation must ensure that:

(a) it provides adequate and appropriate Supervision for the Project so as to ensure that the Participants are undertaking appropriate tasks and operating in a healthy and safe environment; and

(b) where Children or Vulnerable People are Participants or are otherwise present at the Project, a Supervisor is present to provide Supervision continuously over the entire duration of the Project.

10.2. The Organisation must ensure that all relevant Personnel and Supervisors involved in the Project:

(a) are fit and proper persons to be involved in the Project; and

(b) have a high level of skill/knowledge, training and/or experience in:

(iii) the part of each Project in which they are engaged; and(i) working with, training and supervising persons in such activities.

10.3. The Department may give Notice, on reasonable grounds related to the performance of the Project, requiring the Organisation to remove a Supervisor from involvement in the Project.

10.4. Where the Department gives Notice under clause (i), the Organisation must, at its own cost, promptly arrange for the removal of such a Supervisor from involvement in the Project and their replacement with one or more Supervisors acceptable to the Department.

10.5. The Organisation must ensure that each Supervisor it notifies the Provider of any non-attendance at the Project, or any failure to participate in the Project, on the same Business Day that the Participant fails to attend or participate in the Project.

11. Payments

General

11.1. Subject to:

(a) the Organisation submitting a Tax Invoice to the Department for the relevant Payment; and

(b) compliance by the Organisation with this Agreement to the Department’s complete satisfaction,

the Department will make Payments to the Organisation, at the times and in the manner specified in Item 7.

11.2. The Organisation must not claim or accept a Payment from the Department if the requirements under this Agreement which must be satisfied to qualify for the Payment have not been fully and properly met.

11.3. Where the Department determines that the Organisation is in breach of clause 11.2, the Department may, at its absolute discretion, recover some or all of the relevant Payment from the Organisation as a debt, without prejudice to any other rights that the Department may have under this Agreement or the law.

11.4. It is a precondition of the Organisation’s entitlement to be paid a Payment that the Organisation has, at the time it makes a claim for or accepts the Payment, true, complete and accurate Documentary Evidence sufficient to prove that the Department:

(a) is entitled to the Payment; and

(b) has delivered the part of the Project relevant to its claim for Payment.

Taxes, duties and government charges

11.5. All dollar amounts in this Agreement are inclusive of GST unless expressly stated otherwise.

11.6. If a Payment is not in relation to a Taxable Supply, the Organisation must only claim or accept an amount exclusive of GST.

11.7. The Organisation must give to the Department a Tax Invoice for any Taxable Supply before any Payments can be made to the Organisation as consideration for the Taxable Supply.

11.8. The Organisation must not claim or accept from the Department any amount for which it can claim an Input Tax Credit.

11.9. Where any debt is repaid, an Adjustment Note must be provided to the Department if required by the GST Act.

11.10. Subject to this clause 11, all taxes, duties and government charges imposed in Australia or overseas in connection with this Agreement must be borne by the Organisation.

12. Evidence to support entitlement to Payments

12.1. The Organisation must retain the Documentary Evidence specified at clause 11.4 for the Term and provide any such Documentary Evidence to the Department as requested by the Department.

12.2. If:

(a) the Organisation:

(i) does not comply with a request by the Department under clause 12.1; or(ii) the Documentary Evidence provided is not true, complete and accurate;

(b) the Department has already paid the Organisation the relevant Payment; and

(c) an extension of time has not been requested and agreed to by the Department,

then:

(d) the Organisation will be taken not to have delivered the relevant part of the Project in accordance with this Agreement and not entitled to the relevant Payment; and

(e) the Department may, at its absolute discretion, recover the relevant Payment from the Organisation as a debt, without prejudice to any other rights that the Department may have under this Agreement or the law.

Double Payment

12.3. The Organisation warrants that neither it, nor any of its Related Entities, are entitled to payment by the Department, other Commonwealth sources or state, territory or local government bodies for conducting any activity or providing any service that is the same as, or similar to, any aspect of the Project as conducted under this Agreement, and the Department may require the Organisation to provide evidence, in a form acceptable to the Department, which proves that the Organisation is not so entitled.

12.4. If the Department determines, in its absolute discretion, that the Organisation, or any Related Entity, is entitled to payment from the Department, other Commonwealth sources or state, territory or local government bodies for conducting the same or similar activities or services as conducted under this Agreement, the Department may, at its absolute and unfettered discretion:

(a) make the relevant payment;

(b) decide not to make the relevant payment; or

(c) recover any relevant payment made by the Department as a debt.

13. Organisation’s Conduct

13.1. The Organisation must not engage in, and must ensure that its Personnel, subcontractors and agents do not engage in, fraudulent activities in relation to this Agreement.

13.2. Without limitation to any rights of the Department under this Agreement or at law, where an improper practice is identified by the Organisation, the Organisation must immediately:

(a) take all action necessary to appropriately remedy the practice; and

(b) Notify the Department of the practice identified and the remedial action taken and provide all information in relation to the situation as required by the Department.

14. Special rules about Groups

14.1. If the Organisation is a Lead Member of a Group, the Organisation:

(a) agrees that its members are as specified at Item 11;(b) must not change its membership without the Department’s agreement in writing,

and must comply with any direction from the Department in relation to the change; and

(c) warrants that each of its members have given their authority to the Lead Member to:(i) negotiate, bind and act on that member’s behalf in relation to this

Agreement and any variations thereto; (ii) be referred to by the Group name specified in Item 11 for the Purpose of this

Agreement.

15. Information provided to the Department

15.1. The Organisation must ensure that:(a) it provides information, including Documentary Evidence, to the Department, or any

other person nominated by the Department, as requested by the Department;(b) all information it provides to the Department, in any form and by any means is true,

accurate and complete at the time of its provision to the Department; and(c) it immediately Notifies the Department of any matter or incident that could be

damaging to the reputation of the Organisation or the Department should it become publicly known.

16. Access to documents for the purposes of the Freedom of Information Act 1982 (Cth)

16.1. In this clause 16, ‘document’ has the same meaning as in the Freedom of Information Act 1982 (Cth).

16.2. The Organisation agrees that:

(a) where the Department has received a request for access to a document created by, or in the possession of, the Organisation, the Department may, at any time, by Notice, require the Organisation to provide the document to the Department and the Organisation must, at no additional cost to the Department, promptly comply with the Notice; and

(b) the Organisation must assist the Department in respect of the Department’s obligations under the Freedom of Information Act 1982 (Cth), as requested by the Department.

17. Access to premises and Records

17.1. The Organisation must, when requested by the Department, at all reasonable times give to, or arrange for any Provider or Employee of the Department, to have unfettered access to any location where Participants are participating in the Project.

17.2. The Organisation must, at all reasonable times give to, or arrange for any Provider to have access to its premises in order to conduct a risk assessment of the Project.

18. Ownership of Intellectual Property Rights and Material

18.1. Subject to clause 19, the ownership of Intellectual Property Rights in Commonwealth Material and Agreement Material vests at all times in the Department.

19. Licensing of Intellectual Property Rights

Licence of Commonwealth Material and Agreement Material

19.1. The Department grants the Organisation a licence to use, copy and reproduce Commonwealth Material and Agreement Material, but only for the purposes of this Agreement and in accordance with any conditions or restrictions Notified by the Department to the Organisation.

20. Personal and Protected Information

20.1. Clauses 20.2 and 20.3 apply only where the Organisation deals with Personal Information for the purpose of conducting the Project under this Agreement, and the terms ‘agency’, ‘APP Code’, ‘contracted service provider’, ‘organisation’, ‘sensitive information’ and ‘Australian Privacy Principle’ (APP) have the same meaning as they have in section 6 of the Privacy Act, and ‘subcontract’ and other grammatical forms of that word have the meaning given in section 95B(4) of the Privacy Act.

20.2. The Organisation acknowledges that it is a contracted service provider and agrees, in respect of the conduct of the Project under this Agreement:

(c) to use or disclose Personal Information, including sensitive information, obtained in the course of conducting the Project (‘relevant Personal Information’), only for the purposes of this Agreement or where otherwise permitted under the Privacy Act; and

(d) not to do any act or engage in any practice that if done or engaged in by an agency, or where relevant, an organisation, would be a breach of an APP.

20.3. The Organisation must immediately Notify the Department if it becomes aware:

(a) of a breach or possible breach of any of the obligations contained in, or referred to in, this clause 20 by any Personnel;

(b) that a disclosure of Personal Information may be required by law; or

(c) of an approach to the Organisation by the Privacy Commissioner or by a person claiming that their privacy has been interfered with.

Protected Information

20.4. The Organisation must ensure that when handling Protected Information, it complies with the requirements under Division 3 [Confidentiality] of Part 5 of the Social Security (Administration) Act 1999 (Cth).

21. Insurance for Participants

21.1. The Organisation must ensure that, for the duration of the Project, it has and maintains, current and appropriate insurance to cover any risks associated with the Project including, as a minimum:

(a) public liability insurance, with a limit of indemnity of at least $10 million in respect of each and every occurrence, that covers the liability of the Organisation and the liability of its officers, employees, representatives and agents (including to the Participant(s)) in respect of:

(i) loss of or damage to any real or personal property (including property of a Participant); and

(ii) the bodily injury, disease or illness (including mental illness) or death of any person (including a Participant),

arising out of or in connection with the Organisation’s performance of this Agreement; and

(b) any other insurances it is required by law to maintain.

22. Negation of employment, partnership and agency

22.1. The Organisation, its Personnel, agents and subcontractors are not, by virtue of this Agreement, deemed to be employees, agents or subcontractors of, or otherwise able to bind or represent, the Commonwealth or the Department.

23. Notices

23.1. A Party giving Notice or Notifying under this Agreement must do so by email, addressed to the email address of the other Party specified in Item 1 or Item 2, as relevant.

24. Subcontracting

24.1. The Organisation must not, without the Department’s prior written approval:

(a) enter into a subcontract for the performance of any of its obligations under this Agreement;

(b) terminate a subcontractor who has been approved by the Department; or

(c) replace an approved subcontractor with another subcontractor.

24.2. In giving approval under clause 24.1, the Department may impose such terms and conditions as the Department thinks fit and the Organisation must comply with any such terms and conditions.

24.3. The subcontractors that will be used are identified in Item 12.

24.A. Project Manager

24A.1. The Project Manager will be the primary contact point between the Organisation, Department and Providers during the term of this Agreement, and will have responsibility for managing the administration of the Project.

25. Variation, assignment and novation

25.1. A variation of this Agreement is binding only if agreed in writing and signed by the Parties.

25.2. The Organisation must not assign any of its rights under this Agreement without the Department’s prior written approval.

25.3. The Organisation must not enter into an arrangement that will require the novation of this Agreement, without the Department’s prior written approval.

26. Remedies

26.1. Without limiting any other rights available to the Department under this Agreement or at law, if the Organisation fails to fulfil, or is in breach of, any of its obligations under this Agreement that are not capable of being rectified, as determined by the Department; the Department may, at its absolute discretion and by providing Notice to the Organisation, immediately exercise one or more of the remedies set out in clause 26.2.

26.2. The remedies that the Department may exercise are:

(a) suspending, until otherwise Notified by the Department, any Payment under this Agreement, in whole or in part;

(b) reducing or not paying specific Payments that would otherwise have been payable in respect of a relevant obligation; and

(c) reducing the total amount of any Payments, permanently or temporarily.

26.3. If the Department takes any action under this clause 26:

(a) where relevant, this Agreement is deemed to be varied accordingly; and(b) the Organisation is not relieved of any of its obligations under this Agreement.

27. Termination with costs

27.1. The Department may, at any time by Notice to the Organisation, terminate this Agreement, without prejudice to the rights, liabilities, or obligations of either Party accruing before the date on which the termination takes effect.

27.2. If this Agreement is terminated under this clause 27, the Department is only liable for Payments which are properly due to the Organisation before the date on which the termination takes effect.

27.3. If this Agreement is terminated under this clause 27, the Department is only liable for:

(a) Payments as set out in clause 27.4; and

(b) subject to clauses 27.6 and 27.7, any reasonable, unavoidable costs actually incurred by the Organisation and directly attributable to the termination, in whole or in part, of this Agreement.

Payments

27.4. Where the Department terminates this Agreement under clause 27.1:

(a) the Department will only be liable to make Payments which are properly due to the Organisation before the date on which the termination takes effect;

(b) any Payments that would have been Payments in advance will abate according to the extent that they relate to the conduct of the Project after the date on which the termination takes effect; and

(c) the Department will be entitled to recover from the Organisation any Payments paid in advance that relate to the conduct of the Project after the date on which the termination takes effect.

Organisation’s obligations

27.5. Upon receipt of a Notice of termination under this clause 27, the Organisation must:

(a) cease or reduce the performance of this Agreement in accordance with the Notice;

(b) not legally commit any further monies;

(c) immediately return to the Department any Payments in accordance with clause 27.4(c);

(d) immediately do everything possible to mitigate all losses, costs, and expenses, arising from the termination contained in the Notice; and

(e) continue work on any part of the Project not affected by the Notice.

Limit on compensation

27.6. The Department’s liability to pay any compensation under or in relation to this clause 27 is subject to the Organisation’s:

(a) strict compliance with this clause 27; and

(b) substantiation of any amounts claimed under clause 27.4.

27.7. The Department will not be liable:

(a) to pay compensation for loss of prospective profits attributable to a termination under this clause 27;

(b) for loss of any benefits that would have been conferred on the Organisation had a termination made under this clause 27 not occurred; or

(c) for any amounts that would, in aggregate, exceed the maximum Payments that would have been payable by the Department under this Agreement in respect of the relevant Project, but for a termination made under this clause 27.

27.8. If the Department terminates this Agreement under this clause 27:

(a) the Department’s actions will not constitute a breach of this Agreement; and

(b) the Parties agree that the amounts payable to the Organisation under this clause 27, represent a reasonable pre-estimate of any loss that may be incurred by the Organisation.

28. Termination for default

28.1. The Department may terminate this Agreement by giving Notice to the Organisation, if any of the following events or matters arise:

(a) the Organisation fails to fulfil, or is in breach of, any of its obligations under this Agreement that are not capable of being rectified (as determined by the Department); or

(b) the Organisation is in breach of any of its obligations under this Agreement that are capable of being rectified, and fails to rectify the breach, or pattern of breaches, within 10 Business Days, or such other period specified by the Department, of receiving a

Notice from the Department to do so.

28.2. Clause 28.1 does not limit or exclude any of the Department’s other rights under this Agreement or at law, including the right to recover any other amounts from the Organisation on termination of this Agreement.

29. Compliance with laws and government policies

29.1. The Organisation must, in carrying out its obligations under this Agreement, comply with:

(a) all relevant laws and requirements of any Commonwealth, state, territory or local authority; and

(b) any Commonwealth policies Notified by the Department to the Organisation in writing, referred to or made available by the Department to the Organisation (including by reference to an internet site), including any listed in this Agreement.

29.2. The Organisation must, when using the Department’s premises or facilities, comply with all reasonable directions and procedures relating to work health, safety and security in effect at those premises or in regard to those facilities, as advised by the Department or as might reasonably be inferred from the use to which the premises or facilities are being put.

Workplace Gender Equality Act 2012 (Cth)

29.3. Clauses 29.4 and 29.5 apply only to the extent that the Organisation is a ‘relevant employer’ for the purposes of the Workplace Gender Equality Act 2012 (Cth) (‘the WGE Act’).

29.4. The Organisation must:

(a) Notify the Department as soon as practicable if the Organisation becomes non-compliant with the WGE Act during the Term; and

(b) provide a current letter of compliance issued to the Organisation by the Commonwealth Workplace Gender Equality Agency within 18 months from the Commencement Date, and following this, annually, to the Department.

29.5. Compliance with the WGE Act does not relieve the Organisation from its responsibility to comply with its other obligations under this Agreement.

30. Indemnity

30.1. The Organisation must indemnify the Department against any:

(a) loss, cost or liability incurred by the Department; and

(b) loss or expense incurred by the Department in dealing with any claim against the Department, including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used, or disbursements paid by the Department,

arising from or in connection with:

(c) any act or omission by:

(i) the Organisation; or(ii) a subcontractor (whether or not the relevant entity is a current subcontractor),

in connection with this Agreement, where there was fault on the part of the person whose conduct gave rise to that cost, liability, loss, damage, or expense;

(d) any breach by the Organisation of this Agreement or failure to meet an undertaking

given under this Agreement;

(e) any publication of the information referred to in clause 31, where the published information was provided by the Organisation to the Department; or

(f) the use by the Department of the Agreement Material or Existing Material, including any claims by third parties about the ownership or right to use Intellectual Property Rights in Agreement Material or Existing Material.

30.2. The liability of the Organisation to indemnify the Department under this clause 30 will be reduced proportionately to the extent that fault on the Department’s part contributed to the relevant cost, loss, damage, expense, or liability.

30.3. The Department’s right to be indemnified under this clause 30 is in addition to any other right, power, or remedy provided by law, but the Department will not be entitled to be compensated in excess of the amount of the relevant loss, damage, expense or liability.

Meaning of fault

30.4. In this clause 30, ’fault’ means any negligent or unlawful act or omission or wilful misconduct, including fraud.

31. Acknowledgment and publicity

31.1. The Department may, by any means, publicise and report on the Project and on the awarding of this Agreement to the Organisation, including the name of the Organisation, the amounts of Payments paid, or expected to be paid to the Organisation, and a description of the Project.

31.2. Where the Department identifies best practice on the part of the Organisation, the Department may disseminate advice of such best practice to any other person, including Providers.

31.3. The Organisation must, in all publications, and in all promotional, publicity and advertising Materials or activities of any type undertaken by, or on behalf of, the Organisation relating to the Project or this Agreement:

(a) comply with any promotion and style guidelines issued by the Department, including complying with any requirements relating to the use of badging and signage;

(b) acknowledge the financial and other support the Organisation has received from the Commonwealth, in the manner specified by the Department; and

(a) deliver to the Department (at the Department’s request and at the Organisation’s own cost) copies of all promotional, publicity and advertising Materials that the Organisation has developed for the purposes of this Agreement.

31.4. The Organisation must market and promote the Project and deal with enquiries relating to the Organisation’s provision of the Project as required by the Department.

32. Applicable law and jurisdiction

32.1. This Agreement is to be construed in accordance with, and any matter related to it is to be governed by, the laws of the State of New South Wales.

32.2. The Parties submit to the non-exclusive jurisdiction of the courts of the State of New South Wales in respect to any dispute under this Agreement.