COMCO TALENT’S TERMS OF BUSINESS
The Terms of Business of Comco Talent Pty Ltd (hereinafter referred to as Comco) are deemed to be the basis of the agreement to supply candidates to you (hereinafter referred to as the Client) and will become effective upon engagement of Comco’s services. They are deemed to be “Commercial in Confidence”.
A representative of the Client who engages the services of Comco will be deemed to be authorised to enter into this agreement on behalf of the Client.
Comco’s fee(s) is (are) for: Taking the Client’s vacancy to market with the purpose of sourcing potentially suitable candidates for shortlisting/introductions. Candidates include people sourced by Comco, by the Client, or candidates sourced by third parties.
Organising interviews with the Client to assess suitability.
Assisting in filling the vacancy.
The Client is responsible for making the final selection of the candidate(s) and for ensuring that the candidate(s) is (are) suitable for the position(s). This includes but is not limited to that the Client needs to satisfy themselves that any medical requirements, experience, qualifications, compelling personality traits, work values, commitment, and integrity have been met by the candidate(s) and that the candidate(s) is (are) permitted to work in Australia.
Whilst care is taken to verify information obtained during the recruitment process, Comco cannot accept responsibility for the accuracy of information provided verbally by the candidate or provided in the resume, interview notes, reference check, or any other documentation relating to the candidate.
The service provided – including Interviewing, testing, and reference checking – is carried out at Comco’s discretion, or if deemed appropriate by Comco, or as per the Client’s written instruction which must be accepted by Comco in writing before such instruction is deemed to have been accepted by Comco. Comco cannot accept any responsibility for any claim, error, loss, expense, damage, or delay occasioned by submitted or successful candidates.
The Client acknowledges and accepts its and Comco’s obligations under the Fair Work Act concerning, among other things, discrimination legislation.
Any information including feedback that Comco provides to candidates on behalf of the Client is provided as coming from the Client.
Any variations to these Terms of Business need to be approved by Comco and confirmed in writing by Comco.
If any of these terms are held by a court to be unenforceable or illegal, that term will be severed from all other terms without affecting the validity or enforceability of all other terms.
These Terms of Business are governed by and construed under the law in the State of Western Australia. Any legal action concerning this document may be brought in any court of competent jurisdiction in the State of Western Australia.
PAYMENT & INVOICING
Unless otherwise agreed, Comco will charge the Client a 22% placement fee based on the expected first-year remuneration package, inclusive of superannuation, expected first-year bonuses and commission, site uplift, and site allowances, as well as any other payments or benefits. The provision of a company car is valued at $15,000 per annum.
The placement fee for part-time positions will be calculated based on the equivalent of the full-time salary (38 hours per week).
For contingency assignments, temp to perm or general inductions, Comco will invoice the Client immediately following the Client’s verbal acceptance of a candidate and an offer being made to and verbally accepted by the successful candidate(s).
For a retained assignment, Comco will invoice the Client: 1/3 of the expected total fee on commencement of the assignment;
1/3 of the expected total fee upon Client and candidate interview(s) being scheduled; and
1/3 of the expected total fee following the Client’s verbal acceptance of a candidate and an offer being made to and verbally accepted by the successful candidate(s) with the final fee adjusted to the package(s) offered.
Each invoice represents a standalone fee for expected upcoming work and is not contingent upon other invoices or services. An invoice is not refundable and will not be discounted should the service be stopped by either party. Due to the varying nature of each recruitment drive, some parts of the service listed in each retained phase or described as part of Comco’s service delivery model may not be completed or provided to the Client – irrespective of this, all invoices are to be paid in full
If the Client decides to change the job brief and/or the competencies/criteria they are seeking after they have interviewed one (1) or more shortlisted candidates, then an additional fee to the value of 20% of the 3rd retainer will be incurred.
Display advertising that the Client has agreed to pay for will be submitted for the Client’s authorisation before insertion in the approved publication(s). Comco will invoice for the authorised advertising (cost plus a 10% administration fee) immediately following its insertion in the approved publication(s), regardless of the stage of the recruitment assignment.
GST will be added to all invoices.
Any trial or training agreement between the parties is considered an acceptance of employment even if the employment does not proceed after the trial/training period.
Fees and charges are non-refundable. A candidate “fall off” does not negate the Client’s obligation to pay Comco’s fee in full.
The Client can only engage a candidate sourced by Comco on a trial/casual employee as a casual employee of Comco. This engagement will be provided to the Client as per Comco’s temporary & contract placements.
Employment/placement of any candidate: Presented by Comco either verbally or by resume within 12 months of the date of introduction, within the Client organisation or subsidiary, parent company, or its Clients, or a company with the same director(s) as the Client, or Applied to a job advertisement/job posting or inquired about the vacancy, or Interviewed by Comco as a potential candidate for the client’s listed vacancy with Comco, where the candidate afterwards approaches the client directly,is subject to a full placement fee.
Comco must be informed within seven (7) days of the appointment, or the placement fee may, at the sole discretion of Comco, be multiplied by 1.5. Any subsequent introduction or effort by another consultancy, agency, party, the candidate, or the Client’s organisation itself does not in any way negate or limit Comco’s rights of claims.
The fee remains payable even if the candidate presented by Comco is known to the Client.
Payment of fee must be made in full within fourteen (14) days of the date of invoice.
A weekly surcharge of 0.25% plus an account-keeping fee of $25 per week will be levied on all overdue amounts.
DISCLOSURE OF INFORMATION
Upon choosing a successful candidate, the Client agrees to provide Comco with all details of the offer of employment in writing, including but not limited to a copy of the contract document, salary package offered, and bonus structure, upon request.
All information supplied by Comco whether written or verbal is confidential and should not be disclosed to any other party without the express written consent of Comco. All candidate information (except for the successful candidate) provided to the Client as a shortlist is confidential as per the Privacy Act of 1988. This information must be disposed of once the Client has chosen the successful candidate.
TERMS OF PERFORMANCE-BASED REPLACEMENT GUARANTEE
If a candidate engaged by the Client is terminated due to inadequate performance, Comco will endeavour to provide a replacement candidate at no additional cost to the Client. The employee needs to have ceased employment within the guarantee period for the performance-based replacement guarantee to be valid. The guarantee is valid from the date that the candidate verbally accepts the offer of employment provided that the “terms of performance-based replacement guarantee” listed below have been met: The termination of the candidate was genuine termination based on the candidate’s inadequate performance;
The Client provides feedback on the performance of the placed candidate upon request. If the Client does not respond within 14 business days after two attempts by Comco to obtain such feedback, Comco will consider the candidate's performance satisfactory. This will invalidate any claims or requests for a performance-based replacement guarantee two weeks after the last request for performance feedback;
The termination was not unlawful;
The termination was not due to one or more of the following factors: Change in the original job description provided to Comco
Change of job duties
Change of job location
Redeployment caused by the Client
Redundancy or restructure
Lack of training and/or supervision of the candidate
Potentially unsafe and/or unreasonable work environment
Harassment, bullying and/or racism
Rejection/cancellation of a visa/residency status,
The candidate chose to accept another position offering a higher salary
The Client has paid all fees for the original candidate no later than 7 days past the invoice due date;
No other fees or expenses payable to Comco are overdue;
The Client had allowed Comco to address any relevant issues with the candidate before termination;
Notification must have been given to Comco of the Client's intention to call upon Comco’s replacement guarantee before the expiry of the guarantee period;
The candidate was not provided as a replacement for another candidate.
The fall-off position is refilled (either by 11, by the Client, by another agency, or by any other means); or
The fall-off position is void, cancelled or put on hold for more than one month; or
Comco reserves the right to cease the relationship and void the replacement guarantee if the Client fails to act in a professional manner.
Comco does not provide credit notes or refunds.
If the total remuneration offered to the replacement candidate is greater than that of the original candidate, an adjustment to the original invoice will be made accordingly.
If the Client (or a subsidiary, affiliated, or related organisation) re-employs the “fall off” candidate within 12 months, a new invoice will be raised, or the replacement guarantee will be void at the discretion of Comco. Comco must be informed within seven (7) days of the re-employment or the invoiced amount will be multiplied by 1.5.
The replacement guarantee will not apply if the Client transfers the original candidate (the “fall off”) within the Client organisation or otherwise introduces the “fall off” candidate to a subsidiary, parent company, affiliated or related entity as defined by Section 9 of the Corporations Act 2001, or its Clients and the “fall off candidate” is employed. If this occurs and a replacement candidate is appointed, then a full fee will be charged to the Client. Comco must be informed in writing by the Client within seven (7) days of the appointment of the “fall off” candidate or the invoiced amount will be multiplied by 1.5.
The replacement guarantee will be deemed to have been honoured and Comco will have fulfilled its obligation to the Client under the replacement guarantee when:
The Client does not, within five (5) business days of being alerted to or presented with one or more shortlisted candidates, assess and either reject or organise an interview with the shortlisted candidate(s); or
The Client does not, within five (5) business days of interviewing a shortlisted candidate, organise an additional interview with, provide an offer of employment to, or reject the shortlisted candidate.
SOLICITATION OF COMCO STAFF
The Client shall not solicit employees of Comco. The Client is not permitted to approach any employee of Comco, directly or indirectly, regarding employment opportunities or to trade with past Comco employees for 12 months from the termination of the employee’s employment with Comco. If a Client employs an employee of Comco, Comco has the right to charge a full placement fee as per the schedule of fees.
CANCELLATION OF SEARCHES OR ROLES
Comco has at their sole discretion the right to consider an assignment to have been terminated by the Client should the Client be unresponsive. The Client is deemed unresponsive when they: Do not respond to Comco’s correspondence (emails or phone calls) for five (5) consecutive business days;
Do not offer an interview within five (5) consecutive business days after a candidate(s) has (have) been shortlisted to the Client; or
Do not provide Comco with feedback regarding the outcome of a candidate interview (i.e. whether the candidate is appointable or unsuccessful) within five (5) consecutive business days after the interview takes place.
All outstanding invoices are still payable after termination. Should the Client wish to resume the recruitment drive at a later stage it will be considered as the commencement of a new assignment and a new 1st retainer invoice will be issued.
Should the Client place the assignment on hold for a period exceeding one month and subsequently decide to reactivate the assignment, Comco reserves the right, at its discretion, to consider this reactivation as a new assignment. Consequently, this will require issuing a new initial retainer invoice.
If the Client withdraws a request for service no refunds will be made, and all applicable fees up until this point will be due and payable regardless of whether an invoice has yet been raised.
MARKET RATE - REMUNERATION PACKAGE
Definition of “Market Rate”: For the purposes of this Agreement, "Market Rate" refers to the prevailing salary or compensation level that candidates with the specified skill set and experience, as described by the Client, are typically seeking in the current job market, based on data from recent placements, industry benchmarks, and/or other reliable sources at the discretion of Comco.
Market Rate Review: Upon initiation of a recruitment process, Comco will present the job opportunity to the relevant market. Should the feedback from potential candidates suggest that the compensation proposed by the Client is below the current Market Rate, Comco will promptly notify the Client with the findings.
Adjustment Opportunity: Upon receiving the above notification, the Client will have an option to: Adjust the offered compensation to match or approximate the identified Market Rate, or
Modify the required skillset and experience criteria to match the originally proposed compensation.
Right to Terminate Assignment: If, within 7 days of the notification of the Market Rate discrepancy, the Client neither adjusts the offered compensation to the identified Market Rate nor modifies the job requirements, Comco reserves the right to terminate its recruitment assignment for that specific job opportunity. This termination will not constitute a breach of this Agreement, and neither party shall be liable for any damages or penalties resulting from such termination under this clause.
Outstanding Invoices: All outstanding invoices issued are due irrespective of cancellation of assignment.
INDEMNITY
The Client grants full indemnity to Comco for all debt collection costs (including but not limited to legal fees and court fees) incurred by Comco in recovering monies owed. Any discount negotiated by the Client will be void if any money is overdue by more than 30 days on an invoice. The fee will revert to Comco’s schedule of fees listed above.
The Client undertakes to indemnify, hold harmless, and defend Comco, its employees or agents from and against any loss including legal costs and expenses or liability incurred by Comco, its employees or agents arising from any claim, suit, demand, action, or proceeding by any person against Comco, its employees or agents where such loss or liability was caused by the wilful, negligent, or unlawful act or omission of the Client, its employees, agents, shortlisted and employed candidates or subcontractors arising out of or in connection with the services provided by Comco.
Notwithstanding any other provision in these Terms of Business, Comco shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Client or any third parties for loss of use, profit, revenue, business, data, contract, or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect, or consequential loss. Otherwise, Comco’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) to the Client or any third parties is limited to the amount paid by the Client to Comco under this agreement during the twelve (12) months period immediately preceding the first event giving rise to a claim.