(Permit Holder)
(Driver)
Contents
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General terms
1Definitions and Interpretation
2Commencement and Term
3Bailment
4Driver obligations
5Permit Holder obligations
6Warranties
7Bond
8Incidents and Accidents
9Insurance and Indemnity
10Network
11Surveillance and Data
12Fares and Fare Split
13Fines, Services, Fees and Charges
14Disputes
15GST
16Alternate Taxi-Cab
17Termination
18Special conditions
19General
Schedule 1Parties
Schedule 2Details
Schedule 3Special Conditions
General terms
1Definitions and Interpretation
1.1Interpretation
In this Agreement, unless the context indicates otherwise the following words and phrases mean:
Act meansTransport (Compliance and Miscellaneous Act)1983(Vic).Alternate Taxi-Cab means a taxi-cab other than the Taxi-Cab which is owned by:
(a)the Permit Holder; or
(b)if the Permit Holder is a company, a director of the Permit Holder, a Related Body Corporate or director of a Related Body Corporate of the Permit Holder; or
(c)if the Permit Holder is an individual, a company of which the Permit Holder is a director or a Related Body Corporate of a company of which the Permit Holder is a director.
Bond means a bond payable to the Permit Holder by the Driver under clause 7.1 and in Item 11 of Schedule 2, the total amount of which may not be more than $1,000.
Commencement Date means the date specified in Item 1 of Schedule 2.
Conditions of Licence means:
(a)the implied conditions attached to the Licence under section 144 of the Transport Act; and
(b)any additional conditions imposed on the Licence by the TSC.
Dispute has the meaning given to it inclause 14.Driver means the person named in Item 2 of Schedule 1. The Driver might also be referred to as a Bailee.
Driver Services means services provided by the Permit Holder or a third party, for the benefit of the Driver, over and above those services necessary for the operation and maintenance of the Taxi-Cab, being those services set out in Item 10 of Schedule 2.
Duties meansany stamp, transaction or registration duty or similar charge imposed by any governmental agency and includes any interest, fine, penalty, charge or other amount imposed in respect of any of them, but excludes any Taxes.
Garage means the place appearing at Item 7 of Schedule 2.
Gross Fares[1]meansthe total amount of all fares accruedon the meter, including any applicable:(a)booking fee;
(b)high occupancy fee;
(c)late night surcharge; and
(d)public holiday surcharge,
but does not include:
(e)Citylink or Eastlink tolls;
(f)the wheelchair lifting subsidy under regulation 45(4B) of the Transport (Taxi-cab) Regulations 2005 (Vic);
(g)any non-cash payment surcharge; or
(h)any fees charged by Melbourne Airport.
Incident means any event occurring during a Shift in which:
(a)the Taxi-Cab or equipment is damaged, lost or stolen;
(b)the Taxi-Cab is involved in a collision resulting in damage to the Taxi-Cab, another vehicle or any other property; or
a person is injured by the Taxi-Cab, while inside the Taxi-Cab or while entering or leaving the Taxi-Cab.
Initial Term means the term set out in Item 2 of Schedule 2.
Further Term means the term set out in Item 3 of Schedule 2.
Licence means a licence to operate the Taxi-Cab as a commercial passenger vehicle, granted under section 139 of the Act and details of which appear in Item4 of Schedule 2.
Network means the taxi-cab network with whom the Permit Holder is affiliated, if any, details of which appear in Item 6 of Schedule 2. The Network might also be referred to as a Network Service Provider or a Taxi Booking Service.
Network Pinmeansa personal identification number provided by the Network to the Driver, which allows the Driver to access the Network's dispatch system.
Owner has the meaning given to that term in the Road Safety Act 1986 (Vic).
Permit Holder means the person named in Item 1 of Schedule 1. The Permit Holder might also be referred to as an Operator.
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).
Shift means any period during which the Driver is allowed to drive the Permit Holder’s Taxi-Cab.
Taxes meansany tax, levy, charge, impost, fee, deduction, goods and services tax, compulsory loan or withholding, that is assessed, levied, imposed or collected by any governmental agency and includes any interest, fine, penalty, charge, fee or any other amount imposed on, or in respect of any of the above but excludes Duty.
Taxi-Cab means the vehicleor vehicles set out in Item 5 of Schedule 2, and if there is more than one, Taxi-Cab refers to any or all of them.
Term means the Initial Term and any Further Term.
TSC means the Taxi Services Commission.
Wheelchair Lifting Subsidy means a subsidy payable under regulation 45(4B) of the Transport (Taxi-cab) Regulations 2005 (Vic) in respect of loading and unloading passengers and wheelchairs into taxi-cabs.
1.2Interpretation
In this agreement, unless the context suggests otherwise:
(a)headings are for convenience only and do not affect the meaning of this agreement;
(b)where a term is said to 'include' one or more things, the list is not exhaustive and does not limit the natural meaning of the term in any way;
(c)a reference to this Agreement includes a reference to the Introduction and any schedules and annexures to this Agreement;
(d)a reference to the singular includes the plural and vice versa;
(e)a reference to '$' or 'dollars' is to Australian dollars;
(f)there is no significance in the use of gender-specific language;
(g)a 'person' includes any entity which can sue and be sued;
(h)a 'person' includes any legal successor to or representative of that person; and
(i)a reference to a law includes any amendment or replacement of that law.
1.3Construction
This agreement must not be construed adversely to a party solely because that party was responsible for preparing it.
1.4Time for performance
If a payment must be made on a specified day which is not a Business Day, it must be done instead on the next Business Day.
2Commencement and Term
(a)This Agreement begins on the Commencement Date and continues for the Term, unless terminated earlier in accordance with clause 17.1.
(b)At the end of the Initial Term and each Further Term, this Agreement is automatically renewed for a Further Term unless terminated in accordance with clause 17.1.
3Bailment
3.1Bailment
The Permit Holder bails to the Driver, and the Driver accepts bailment of, the Taxi-Cab during the Shifts from the Commencement Date and for the Term, on the terms and conditions set out in this Agreement.
3.2Shifts
(a)The Permit Holder and the Driver will mutually agree on the Shifts during which the Taxi-Cab will be bailed to the Driver.
(b)The Driver acknowledges that the provisions of clause 3.2 do not create any proprietary rights in the Taxi-Cab.
3.3Possession and control
During each Shift,except where the Permit Holder requires the Taxi-Cab in order to conduct repairs, inspection or maintenance:
(a)the Driver will have possession and control of the Taxi-Cab, including the running and management of the Taxi-Cab,for the purposes of the Driver operating its taxi-driving business under its ABN and sharing profits with the Permit Holder as set out in this Agreement;
(b)the Driver will not be subject to any instructions or directions by the Permit Holder except as reasonably required for the Permit Holder to monitor and ensure compliance with the provisions of this Agreement and the Licence;
(c)the Driver will use the Taxi-Cab for the carriage of passengers, luggage and such other items as prescribed in the Licence (if any); and
(d)the Driver may use the Taxi-Cab in such places as he or she in his or her absolute discretion sees fit.
subject always to the terms of this Agreement, the Act, the Conditions of Licence (including applicable licence zones), and any otherlegislation and regulations applicable to taxi-cabs.
3.4No obligation to bail Taxi-Cab
(a)Nothing in this Agreement requires the Driver to:
(i)bail the Taxi-Cab for a minimum number of Shifts each week;
(ii)bail the Taxi-Cab for the same or similar Shifts each week or from week to week; or
(iii)bail the Taxi-Cab at all during any period of time.
(b)The Driver agrees to provide to the Permit Holder reasonable notice if the Driver does not intend to bail the Taxi-Cab for any period which exceeds a week in duration.
4Driver obligations
4.1Notification and Reporting
The Driver must:
(a)complete and provide to the Permit Holder at the end of each Shift a report detailing:
(i)any defect or damage to the Taxi-Cab, or any devices, equipment or other items fitted to the Taxi-Cab, however such defect or damage may arise (Defect);
(ii)any apparent malfunctioning of the Taxi-Cab or its equipment; and
(iii)any other information required from time to time by the Permit Holder as notified to the Driver; and
(b)immediately (including during a Shift) notify the Permit Holder if a Defect compromises the safety of the Taxi-Cab or affects the Taxi-Cab or the Permit Holder's ability to comply with legislation and regulations applicable to taxi-cabs, including without limitation the Act;
(c)notify the Permit Holder immediately ifthe Driver becomes aware that:
(i)his or her accreditation has lapsed, is suspended or cancelled;
(ii)he or she is disqualified from applying for accreditation or renewal of accreditation;
(iii)any conditions are imposed on his or her accreditation;
(iv)his or her driver's licence is suspended, revoked or not renewed for any reason;
(v)he or she receives a driving-related fine or is convicted of a driving offence, whether or not in possession of the Taxi-Cab at the time; or
(vi)any of the warranties in clause 6.2 is or becomes untrue.
4.2Custody and compliance
(a)The Driver must, for the entire duration of each Shift:
(i)exercise proper care and control of the Taxi-Cab and its equipment;
(ii)ensure that the Taxi-Cab remains in his or her possession, and ensure that no other person (except the Permit Holder or a person expressly authorised by the Permit Holder):
(A)drives the Taxi-Cab; or
(B)modifies or removes any equipment fitted to or installed in the Taxi-Cab by or under the authority of the Permit Holder;
(iii)comply with:
(A)all legislation and regulations applicable to taxi-cabs, including without limitation the Act; and
(B)all Conditions of Licence,
as if such provisions and conditions were expressly included in this Agreement.
(b)The Driver must allow the Permit Holder to conduct urgent repairs, inspections and/or maintenance during a Shift if the Permit Holder reasonably requires the Driver to do so, including following a notification under clause 4.1(b).
(c)The Driver will do all things reasonably required by the Permit Holder to assist the Permit Holder to comply with the requirements of operating the Taxi-Cab; including co-operating and assisting with any inspection of the Taxi-Cab.
(d)The Driver must return the Taxi-Cab to the Permit Holder at the Garage no later than the end time of each Shift as agreed under clause 3.2(a), in a reasonably clean condition, and must ensure that:
(i)no rubbish is left in the Taxi-Cab; and
(ii)any visible dirt or other substance has been removed from the seats and interior surfaces of the Taxi-Cab.
(e)The Driver must not, except with the Permit Holder's prior written consent or authority or if otherwise expressly permitted under this Agreement:
(i)represent to any person that the Permit Holder will make any payments to any person, or represent that he or she has authority to bind the Permit Holder;
(ii)use the Taxi-Cab or its equipment to obtain or secure finance of any kind; or
(iii)enter into any agreement or arrangement in relation to the Taxi-Cab, whether formal or informal and whether or not in writing.
4.3Best endeavours
The Driver will use his or her best endeavours to:
(a)accept all bookings that are offered to the Driver;
(b)actively seek customers when there is no passenger on board and the Driver is not on its way to collect a passenger;
(c)ensure that the Taxi-Cab is operative and carrying passengers for as much time during the Shift as possible; and
(d)perform on behalf of the Permit Holder any contract or arrangement that the Permit Holder has entered into in respect of the Taxi-Cab, where the Driver has prior notice of such contract or arrangement.
4.4Behaviour
The Driver must, at all times during a Shift:
(a)comply with any codes of conduct notified from time to time by the Permit Holder to the Driver;
(b)wear a uniform at all times that is compliant with the requirements of the Permit Holder (and the Network, if applicable);
(c)ensure that the Taxi-Cab's meter is running for the entire duration of each passenger trip;
(d)ensure that the Driver collects the fare accrued on the meter or otherwise calculated or agreed for each passenger trip, in accordance with clause 12.1;
(e)act in a manner that is just and faithful towards the Permit Holder;
(f)treat all passengers and other persons and property with respect;
(g)not refuse a fare unless, in accordance with regulations 36(1) and 41(7) of the Transport (Taxi-Cabs) Regulations 2005 (Vic),the Driver believes a passenger is:
(i)violent, noisy, misbehaving, filthy or offensive;
(ii)in possession of an object that cannot be carried safely and securely in the Taxi-Cab; or
(iii)unable to demonstrate an ability to pay an estimate of the fare;
(h)not offer discounts to the metered fare, or alternative payment arrangements, to any passenger other than:
(i)in accordance with the Permit Holder's discounting policy; or
(ii)as the Permit Holder otherwise agrees;
(i)not move, dismantle, modify, attach anything to or otherwise interfere in any way with any equipment installed in the Taxi-Cab, or any part of it or connection to it, unless previously and specifically authorised to do so by the Permit Holder; and
(j)comply with all Victorian road rules when driving the Taxi-Cab.
5Permit Holder obligations
5.1Compliance
The Permit Holder will:
(a)comply with all legislation and regulations applicable to taxi-cabs, including without limitation the Act;
(b)comply with, and ensure that the Taxi-Cab is compliant with, all conditions of the Permit Holder's accreditation and the Conditions of Licence; and
(c)pay any Taxes or Duties applicable in connection with this Agreement.
5.2Operational and Maintenance Costs
(a)The Permit Holder will pay all operating and maintenance costs of the Taxi-Cab, including:(i)fuel;
(ii)oils;
(iii)lubricants;
(iv)repairs;
(v)Taxi-Cab livery and equipment; and
(vi)tyres and other replacement parts for the Taxi-Cab.
(b)The Permit Holder may nominate the places of purchase for items under clause 5.2(a). If the Permit Holder nominates the places of purchase, then the Driver must purchase the items at the nominated places, unless the purchase is an emergency (for example, the engine’s oil light comes on and the nominated place of purchase is not near).
(c)The Driver must give to the Permit Holder the tax invoices and/or receipts for the purchase of any items under clause 5.2(a) within a reasonable time after the purchase of the items. The Permit Holder must reimburse the Driver within seven days of receiving the tax invoices and/or receipts from the Driver.
5.3Repairs and upkeep
The Permit Holder will:
(a)carry out all necessary repairs and maintenance to the Taxi-Cab, and will be responsible for external washing and cleaning of the Taxi-Cab;
(b)maintain the Taxi-Cab in a roadworthy condition and in compliance with the requirements of the Act, the Road Safety Act 1985, and all other applicable legislation; and
(c)supply all stationery and equipment necessary to comply with this Agreement, the Licence and any legislation applicable to the Taxi-Cab.
5.4Records
(a)The Permit Holder will maintain a record of:(i)all payments made between the Permit Holder and Driver;
(ii)all Shifts worked by the Driver;
(iii)the total amount of Gross Fares earned during each Shift; and
(iv)all surcharges charged to a passenger during a Shift,[2]
and will provide copies of these records to the Driver at the end of every calendar month.[3]
(b)The Permit Holder will provide to the Driver a copy of this Agreement on the Commencement Date.
(c)The Permit Holder will maintain copies of the documents referred to in this clause 5.4 for five years following termination of this Agreement.
6Warranties
6.1Permit Holder warranties
The Permit Holder warrants to the Driver that:
(a)the Permit Holder is the owneror lessee of a Licence in respect of the Taxi-Cab, and the Taxi-Cab is of the type and class specified in the Licence;
(b)the Permit Holder is the Owner of the Taxi-Cab;
(c)the Permit Holder is an accredited operator / permit holder with the TSC;