The terms and conditions of the sharemilking agreement (applicable
in cases where the sharemilker does not provide the herd) as settled
by the Sharemilkers' Section of Federated Farmers of New Zealand (Incorporated)
and the Sharemilker Employer's Section of Federated Farmers of New
Zealand (Incorporated).
Definitions
employer, in
relation to a sharemilker, means a person by agreement with whom a
sharemilker is entitled, otherwise than as a servant under a contract
of service, to receive a share of the returns or profits derived from
the dairy farming operations that are the subject matter of the agreement
sharemilker means
a person who has undertaken to perform, in whole or in part, the work
of a dairy farm otherwise than as a servant under a contract of service,
and who is entitled under a sharemilking agreement to receive a share
of the returns or profits derived from the dairy farming operations
that are the subject matter of the agreement
sharemilking agreement means an agreement between a sharemilker and an employer in relation
to the carrying on by the sharemilker of the dairy farming operations
that are the subject matter of the agreement.
References to the farm owner must be read as references to the employer.
Agreement made this ....... day of .................... 20 ...
between
.........................................................................
.........................................................................
(the farm owner)
and
.........................................................................
.........................................................................
(the sharemilker)
The parties to this agreement are strongly
advised to seek independent third party and legal advice on the terms
of this agreement prior to signing the agreement.
A sharemilking agreement to which section 3 of the Sharemilking Agreements
Act 1937 applies must not operate less favourably to the
sharemilker than if the terms and conditions specified in this schedule
were incorporated in the agreement.
Description
Warranty
1
-
The farm owner unreservedly warrants the following information:
(b) the amount and type of fertiliser applied over each of
those 3 seasons:
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Season |
Type (Spring) |
Tonnes |
Type (Autumn) |
Tonnes |
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If soil tests of the property are available, the farm owner
must supply them to the sharemilker.
Records
2
-
If available,
the farm owner must, prior to signing the agreement, provide to the
sharemilker, for the past and present season, the following records
concerning the herd's status:
Annual
grazing off policy
3
-
It is the policy
of the farm to graze off the following stock annually:
| |
|
| Class of stock |
Numbers |
| Winter grazing |
|
| Rising 2-year heifers |
|
| Calves (after weaning) |
|
| Other stock |
|
4
-
The farm owner
possesses the farm shown on the plan attached to this agreement (the land), the legal description
and area of which follows.
Legal description:
Area: ............. hectares
5
-
The area of
land to be used for sharemilking identified in clause 4 includes............. hectares, identified on the accompanying
map:
Stock
6
-
The farm owner
must provide the following details as at the commencement of the agreement:
In-calf cows: .............
In-calf heifers: .............
Yearling heifers: .............
Other: .............
7
-
The cows must
be of similar quality to the quality of the herd in the preceding
3 years unless otherwise agreed by the parties and recorded in writing.
Machinery,
implements, and vehicles
8
-
The farm owner
must supply the following machinery, implements, and vehicles as at
the commencement of the agreement:
(a)
(b)
(c)
(d)
9
-
The sharemilker
agrees to supply the following machinery, implements, and vehicles
as at the commencement of the agreement:
(a)
(b)
(c)
(d)
10
-
If the sharemilker
is required to supply machinery, implements, and vehicles, the farm
owner and the sharemilker will agree on a set figure to meet the running
costs and supply of the machinery, implements, and vehicles identified
in Annex 1.
11
-
The sharemilker
will supply small tools at the commencement of the agreement, as specified
below, to enable the sharemilker to perform the sharemilker's obligations
under this agreement.
...................................................................
...................................................................
...................................................................
12
-
The farm owner
and the sharemilker must, on termination of the agreement, account
to each other for the items of machinery, implements, and vehicles.
Fertiliser
and lime
13
-
The farm owner
must pay all costs associated with the purchase, cartage, and spreading
of fertiliser and lime, if a contractor is used.
14
-
The farm owner
must supply and apply, in each season, the following minimum quantity
and type of fertiliser:
Spring: .............
Autumn: .............
15
-
Lime application
(if any): ....................
Relationship
16
-
The relationship
of the parties is that of farm owner and independent contractor and
not that of employer and employee, nor that of a partnership.
17
-
This agreement
is not a bailment of stock or chattels of either party.
Term
18
-
(b) If the farm owner and the sharemilker
indicate each to the other in writing, not later than 3 calendar months prior to expiration of
the agreement, a willingness to renew or renegotiate the agreement
for a further term, then the agreement may be renewed or renegotiated
accordingly, but, if either or both of the parties indicate in writing
an unwillingness, or fail to indicate either way, then the agreement
will terminate on the date originally appointed for its expiration.
Remuneration
19
-
Remuneration
of the sharemilker for work performed by the sharemilker and the sharemilker's
employees under this agreement is as follows:
(a) for herds where the minimum number stipulated
in clause 40 is not more than
300 cows, the sharemilker must receive not less than 21% of income
derived from milk supplied to the dairy company during the duration
of this agreement, including deferred payments from the herd milked
by the sharemilker for the total cost of labour, the rearing of the
replacement calves under clauses 21 to 25, and all aspects
of the operation and management of the farm under this agreement.
The 21% is net of the sharemilker's farm operating expenses and must
not be reduced in any way or by any means other than under clauses 61 to 64, and the result
of a decision under the dispute resolution procedures provided for
in the agreement.
The farm operating costs outlined in this agreement that must
be paid by the sharemilker recorded in Annex 1 will be calculated
as a percentage of milk income and added to the 21% to arrive at the
agreed share.
(b) for all other herds where the minimum
number is more than 300 cows (see clause 40), the agreed share
is not limited by paragraph (a), and the sharemilker must receive
a share of .......% (the agreed share) of the proceeds
from all milk products from the herd milked by the sharemilker during
the period of this agreement, including deferred payments.
20
-
Penalties incurred
by grades from the dairy company must be borne by the sharemilker,
providing there is nothing outside the sharemilker's control that
prevents the sharemilker from producing finest grade milk, subject
to clauses 61 to 64.
Replacement
calves and calves sold
21
-
The remuneration
for rearing replacement calves is included in the net returns to the
sharemilker from milk.
Replacement calves must be reared
by—
22
-
The farm owner
is entitled to select for rearing, for herd improvement and replacement
purposes (or, in the absence of that selection, the sharemilker must
do so), up to 25% of the minimum number of the herd specified in clause 40. All other calves
must be sold in the farm owner's name unless otherwise agreed to in
writing.
23
-
The sharemilker
must tend and rear calves if required by clause 21 to do so, and must
feed them according to the directions of the farm owner. Under clauses 37 and 38, in the absence
of directions from the farm owner, the sharemilker must observe and
follow recognised farming practice.
24
-
The farm owner
and the sharemilker agree that the weaning date and/or body weight
for the calves must be as follows:
...................................................................
...................................................................
...................................................................
25
-
If the parties
agree that the sharemilker receives a share of the income from the
sale of calves not selected for rearing, payment is as follows:
...................................................................
...................................................................
...................................................................
The intent
of the parties is that there is an opportunity to pay an amount to
the sharemilker for the calves not retained for rearing purposes.
However, it is not compulsory to make a payment.
Other calves
reared
26
-
If additional
calves are reared in excess of 25% (under clause 22) by either the farm
owner or the sharemilker, the terms and conditions under which those
calves are reared, including the sharemilker's remuneration, must
be negotiated and recorded in writing and does not form part of the
agreed share:
...................................................................
...................................................................
...................................................................
Bonuses
and dividends
27
-
The sharemilker
is not entitled to participate in capital distributions and bonuses
covered by shares nor in the dividends on any supplier's shares held
by the farm owner, nor is the sharemilker required to make a payment
toward the purchase of shares in a dairy company.
28
-
If there is
a change to the method by which payments are calculated and paid by
the dairy company to the farm owner, it is the intention of this agreement
that the sharemilker must not be disadvantaged. Therefore, the method
by which the sharemilker's share of income is paid to the sharemilker
must be revised by agreement between the parties and, failing agreement,
by the dispute resolution procedures provided in this agreement.
29
-
The farm owner
and sharemilker must complete a dairy company order that authorises
the dairy company to pay the sharemilker's proceeds by direct credit
to the sharemilker's bank account.
or
If the parties agree to the farm
owner paying the sharemilker direct, that agreement will be recorded
in writing and payment will be made no later than the 20th day of
the month in which the farm owner received payment from the dairy
company. The farm owner must provide the sharemilker with a copy of
the dairy company statement, including an invoice detailing the deductions
agreed between the parties.
Obligations
Labour
30
-
The sharemilker
must, at all times, in addition to the sharemilker's own labour, provide
the following employees:
31
-
The sharemilker
must personally supervise each milking.
32
-
The sharemilker
must devote a reasonable proportion of the sharemilker's time and
that of the sharemilker's labour force to general maintenance and
reasonable permanent improvement on the land. All materials must be
supplied by the farm owner.
33
-
The staff requirements
recorded above must not be reduced in number or varied except with
the written consent of the farm owner.
34
-
If extra labour
is required for herd testing, the sharemilker must pay for that labour.
35
-
Prior to taking
a holiday or time off (or if the sharemilker is unable, through sickness,
to perform the sharemilker's duties), the sharemilker must arrange,
at the sharemilker's expense, for a competent replacement, agreed
to by the farm owner, to perform the sharemilker's duties during the
sharemilker's absence and that agreement must not be unreasonably
withheld.
36
-
If a farm owner
employs a sharemilker with young children and the partner of the sharemilker
is required to milk the cows, the farm owner must ensure childcare
facilities are provided at the farm dairy if it is necessary to accommodate
children at the farm dairy during milking.
Management
37
-
The farm owner
or the farm owner's agent must retain the management and control of
the farm, all of the farm's operations, and the management of the
herd. All work that must be performed on the farm by the sharemilker
under this agreement must be performed in accordance with any reasonable
directions and instructions that the farm owner or the farm owner's
agent may give from time to time. In the absence of any directions
or instructions, the sharemilker must perform the duties in conformity
with good farm husbandry.
38
-
The sharemilker
must not, without previous consent in writing of the farm owner, plough
up any permanent pasture land, or cut down or damage or destroy any
trees or hedges on the farm.
Alterations
and improvements
39
-
The farm owner
agrees to carry out the following alterations and improvements to
the house, farm dairy, or other facilities, prior to the commencement
of this agreement. These must be identified in Annex 1 and must be done
promptly.
...................................................................
...................................................................
...................................................................
...................................................................
Herd
40
-
The minimum
and maximum number of cows in the herd to be milked are:
41
-
The spring herd
must be in calf as at 1 June of the season. Cows or heifers found
not to be in calf as at 1 June of the season do not form part
of the maximum and minimum cow numbers and must be removed from the
farm and replaced with in-calf cows or heifers of similar quality.
Cows and heifers that are unsound
at calving in 2 or more quarters and do not respond to treatment or
any cows or heifers that fail to calve and come into profit by ............. must be removed from the farm. Where
(and only where) the herd numbers are reduced to below the minimum
number stipulated in clause 40 will these animals
be replaced. The farm owner is not required to maintain the minimum
number after ....................
42
-
The autumn herd
must be in calf as at 1 January of the season. Cows or heifers
not in calf as at 1 January of the season do not form part of
the maximum and minimum cow numbers and must be removed from the farm
and replaced with in-calf cows or heifers of similar quality.
Cows and heifers that are unsound
at calving in 2 or more quarters and do not respond to treatment or
any cows or heifers that fail to calve and come into profit by ............. must be removed from the farm. Where
(and only where) the herd numbers are reduced to below the minimum
number stipulated in clause 40 will these animals
be replaced. The farm owner is not required to maintain the minimum
number after ....................
43
-
Carry-over cows
do not form part of the agreement unless mutually agreed in writing.
44
-
All stock subject
to this agreement must be vaccinated against leptospirosis at the
expense of the farm owner in each year.
45
-
Neither party
may graze on the land stock not subject to this agreement (other than
replacement stock as provided in clauses 21 to 26) unless mutually
agreed in writing. The sharemilker may graze ....... horse(s) if the parties agree.
46
-
The sharemilker
is permitted to have ....... working
dogs and ....... other dogs on the property.
47
-
If stock are
reared for home consumption, the condition of rearing and depasturing
is recorded below.
...................................................................
...................................................................
...................................................................
...................................................................
Feed on
hand
48
-
The farm owner
or the farm owner's agent and the sharemilker together must, within
10 days of the commencement of the agreement, verify and record in
writing the amount of pasture cover and supplementary feed on hand.
If the parties do not agree, the farm owner must engage a suitably
qualified person to carry out a count/measure, and that person must
issue a certificate to cover the count/measure.
49
-
If there is
insufficient feed available on the land at the commencement of the
agreement for the requirements of the stock during the winter and
spring immediately following, the farm owner must make good the shortfall
promptly at the farm owner's expense. For the farm owner to be liable
under this clause, the shortfall as at the commencement of the agreement
must be recorded in writing (see clause 48) within 10 clear
working days of the commencement of the agreement.
Both parties attention
is drawn to the necessity to complete this procedure.
50
-
The landed cost
of bought-in feed for the stock that is the subject of this agreement,
other than in clause 49 but including meal
purchased for calves, must be met by the farm owner unless otherwise
stipulated in the table relating to clauses 97 to 104.
51
-
If extra feed
input is required over and above that agreed to in Annex 1 (Total C) at the
commencement of the agreement, the cost of bought-in feed (eg, grazing,
meal, nitrogen) must be negotiated and the agreed share must be recorded
in writing between the parties prior to purchase.
52
-
The sharemilker
must, at the termination of this agreement, leave the property with
the following minimum levels of supplementary feed:
| Type:............. |
...........................hectares |
| Yield: ............. |
kg DM/per hectare |
Saved pasture
53
-
The sharemilker
must, at the termination of this agreement, leave the property with
an average pasture cover of not less than ....... kg of dry matter per hectare.
and/or
In the absence of a direction
from the farm owner or the farm owner's agent to the contrary, the
sharemilker must close up, on the dates specified below, the prescribed
areas of pasture for winter feed that will not be grazed after that
date.
and/or
The sharemilker, unless otherwise
instructed by the farm owner or the farm owner's agent, must implement
a grazing rotation of:
54
-
If, on termination
of the agreement, the supplements, pasture cover, or area closed as
specified above are not on hand, the cost of any shortfall must be
met by the farm owner or according to the terms and conditions of clauses 97 to 104. There must be no
payment to the sharemilker for feed left in excess of that stipulated
in clauses 52 and 53.
Milking
plant
55
-
The farm owner
must provide an efficient milking plant and cooling system for the
milking of the herd (except those accessories that are specifically
required to be provided by the sharemilker (see clauses 72 to 74)). The sharemilker
must have the milking plant, cooling system, and cleaning system checked
for efficiency at the start of the season by a suitably qualified
tester who is appointed and paid for by the farm owner. This agreement
gives the sharemilker the authority and responsibility to organise
the machine test. The sharemilker must deliver the result of the efficiency
check to the farm owner and, until this is done, the farm owner is
not liable for any inefficiency in the milking plant.
Milking
facilities
56
-
The sharemilker
must maintain, at all times, a minimum standard that is acceptable
to the farm owner regarding the operation, cleanliness, and efficiency
of yards, milking sheds and surrounds, plant, utensils, and appliances,
used for milking the herd to ensure the highest value for milk supplied.
All cleansing materials and cleaning costs are supplied and met by
the sharemilker at the sharemilker's expense.
Milking
times
57
-
The morning
milking must be completed not later than 8.00 am and the afternoon
milking must be commenced not earlier than 3.00 pm, except in
the event of power failure, breakdown of the plant, or management
requirements. The parties may, by consent, vary the milking times
provided that the variation is recorded in writing.
Milk collection
58
-
The sharemilker
must, in accordance with the terms of the supply agreement with the
dairy company, follow good farming practice, and in particular must—
Supply
59
-
The farm owner
has the right to determine the dairy company or company to which the
milk will be supplied. The farm owner may change supply from one company
to another during the course of the season, as long as the sharemilker
is not disadvantaged as to remuneration.
60
-
The sharemilker
must read and comply with the supply agreement and winter milk contracts.
Milk and
meat contamination insurance
61
-
Despite the
provisions set out in clause 62 and elsewhere in
this agreement,—
(a) the farm owner and the sharemilker must
ensure that, at the commencement of this agreement under their respective
insurance policies, there is adequate protection to cover the following
circumstances:
(b) if there is a further penalty following
a first offence as stated in clause 63, the sharemilker
must pay liquidated damages to the farm owner/supplying shareholder,
(the sum of money to compensate for losses imposed by a dairy company
against the supplying shareholder); and
(c) the farm owner and the sharemilker must
ensure that, at the commencement of this agreement, there is, under
their respective insurance policies, adequate protection to cover
any penalty of a monetary value on contaminated meat sold under the
terms of this agreement.
Produce
and grading losses
62
-
The sharemilker
bears all of the deductions in connection with the grading of milk,
providing that there is nothing outside the sharemilker's control
that prevents the sharemilker producing finest milk.
63
-
The sharemilker
is responsible to the farm owner to make good any loss or lowering
in value of milk arising by reason of non-acceptance or downgrading
by the dairy company due to—
(a) the failure of the sharemilker to maintain
a proper standard of cleanliness in sheds, utensils, or appliances,
or to operate the plant and machinery in a skilful and workmanlike
manner; and
64
-
In all other
cases, including, but not limited to, somatic cell count grades, if
there is a downgrading or lowering in value of milk or meat supplied,
the party responsible for the downgrading or lowering in value must
reimburse the other party to the extent of the loss.
Effluent
disposal
65
-
The effluent
disposal system used on the property is.............
67
-
The sharemilker
must operate the effluent disposal system in an efficient and workmanlike
manner and indemnify the farm owner against charges or actions arising
out of the failure of the sharemilker to operate the system in a proper
and skilful manner.
68
-
If a pump or
spray system is used, the sharemilker must pay the cost of the electricity
charges and shift the spray unit. The sharemilker must lubricate the
pump and spray unit. The farm owner must meet the cost of the maintenance
of the unit.
69
-
If the effluent
disposal is by means of a ponding system or the use of long drains,
the cost of cleaning those ponds and long drains must be met by the
farm owner.
70
-
If other systems
of effluent disposal are used, the operation of those systems must
be agreed on by the parties in writing at the commencement of this
agreement.
Rubberware
71
-
The farm owner
must provide the rubberware for the cooler and pulsators as and when
necessary.
72
-
The sharemilker
must, at the commencement of the agreement, supply and install new
rubberware and, where necessary, during the term maintain and replace
all milking plant rubberware (excluding pulsator and cooler rubberware)
and belting required for the efficient operation of the milking plant
according to manufacturer's specifications, and must leave the rubberware
and belting in working order.
Utensils
73
-
The sharemilker
must supply and retain ownership of all utensils, brushware, detergents,
and other materials for cleaning the milking plant and appliances.
74
-
The sharemilker
must supply the filter socks and the washdown hose and nozzle.
Electricity
75
-
The sharemilker
must pay total milking shed and water pumping electricity, including
the cost for milking machines, water heating, pumping of water, chiller,
and effluent pumping.
Machinery,
implements, and vehicles
76
-
The farm owner
must provide a suitable cover or shed space for all machinery, implements,
and vehicles supplied by the sharemilker.
77
-
The owner of
the machinery, as stipulated in clauses 8 and 9 of this agreement, must meet the maintenance costs of the machinery.
78
-
Expenses incurred
by the farm owner or the sharemilker through damage to their plant
or equipment (other than normal wear and tear) caused by the neglect
of, or misuse by, the other party must (at the date the damage is
repaired) be met by the party who caused the damage.
79
-
If the parties
dispute liability, the dispute must be referred to conciliation under clauses 140 to 146.
Fuel and
lubricants
80
-
The owner of
the machinery, milking plant, effluent disposal unit, and water pumps
must supply the fuel and lubricants for the machinery and plant.
81
-
If the sharemilker
uses a motorbike on the farm, the sharemilker will provide it. All
costs, including fuel, oil, and running expenses must be paid for
by the sharemilker, the costs of which will be reflected and recorded
in Annex 1.
Tagging
of herd
82
-
The herd must
be tagged at the commencement of the agreement and the sharemilker
is responsible for maintaining the tagging of the herd with materials
supplied by the farm owner.
Herd testing
83
-
If the farm
owner requires the herd to be tested, the farm owner must pay all
herd testing charges. If extra labour is required for herd testing,
the sharemilker must pay for that labour. The sharemilker must co-operate
with the tester in the work of herd testing and provide to the tester
the records and assistance that the tester may require.
84
-
All herd records
must be provided by the sharemilker to the farm owner when requested
and at the termination of the agreement. All herd records remain the
property of the farm owner and are confidential to the parties.
Bulls,
artificial insemination, and herd records
85
-
The farm owner
must provide a bull, or bulls, as required. The farm owner must arrange
for the supply of, and payment for, the semen, and the services of
a trained technician. The sharemilker must present the herd and replacements
for insemination or natural mating at the required times.
86
-
The sharemilker
must record and provide to the farm owner upon request and upon termination
of the agreement details of—
87
-
The sharemilker
must provide the farm owner with those details on the attached form
(Annex 2) at the end of each
month.
Stock responsibilities
88
-
The sharemilker
is responsible at all times for the total care and husbandry of all
stock that is the subject of this agreement, including the calling
of a veterinarian where necessary, unless otherwise instructed by
the farm owner.
The farm owner must ensure that adequate supplies
of animal remedies are on hand at all times and must instruct the
nominated supplier to provide to the sharemilker supplies of product
to treat or prevent any diseases and conditions that require treatment
or prevention.
The sharemilker has purchasing authority for
any 1 purchase of the above supplies, up to a value of $ ....... per calendar month without recourse
to the farm owner.
The following methods, materials, and period
of administration must be used for the prevention of bloat, facial
eczema, grass staggers, and mastitis:
| |
Method |
Material |
Period of
administration |
| Bloat |
|
|
|
| Facial eczema |
|
|
|
| Grass staggers |
|
|
|
| |
|
|
|
| |
Method |
Cows to be
treated |
Period of administration |
| Mastitis |
Teat spray |
|
|
| |
Dry cow therapy |
|
|
89
-
The sharemilker
must immediately report to the farm owner any sickness or disease
in the stock.
90
-
The farm owner
must, after consultation with the sharemilker, decide when the cows
are dried off and the sharemilker must take appropriate steps to dry
off.
91
-
The farm owner
must provide a locker for storage of medicines and medicinal requisites
at a convenient place at or near the milking shed.
92
-
The sharemilker
must provide to the farm owner at the conclusion of each month a written
report encompassing any information that is requested by the farm
owner (Annex 2).
Animal
health and veterinary expenses
93
-
The farm owner
must pay all animal health and veterinary expenses.
Weeds and
pest control
94
-
The farm owner
must, at the farm owner's expense, supply the chemicals and other
materials required for weed and pest control and eradication and the
sharemilker must provide the necessary labour. Subject to clauses 95 and 96, the sharemilker
must, at appropriate times of the year, eradicate all noxious weeds
and weeds of economic importance (except capital weeds as defined
in clause 95) from the land.
95
-
It is acknowledged
by both parties that the control and eradication of the following
nominated weeds (capital
weeds) is a capital cost in the locations specified:
96
-
The responsibility
of the sharemilker for the eradication and control of capital weeds
is confined, as far as is practicable, to the prevention of any increase
therein compared with the position at the commencement of this agreement
or any subsequently improved position brought about at the farm owner's
expense. If it is considered necessary, the parties may, at the commencement
of this agreement, consult a farm consultant, or other acceptable
third party, to record the degree and extent of capital weed infestation
at the specified locations, the costs of that consultation must be
shared in the same proportion as detailed in clause 19.
Harvesting
97
-
Unless otherwise
agreed, the cost incurred in employing contractors for any harvesting,
collection, carting, and stacking of surplus feed on the land, including
the extra labour and machinery required, must be met by the farm owner.
If the parties agree to share the cost, the share paid by the sharemilker
must not exceed the agreed share and must be recorded in the table
(see clause 105) and reflected in
costs allocated in Annex 2. For the cost of
harvesting maize silage see clause 100.
98
-
The sharemilker
must provide the sharemilker's labour and the labour of his or her
employees at no cost to the farm owner for the harvesting of surplus
feed.
Forage
crops and maize silage
99
-
The growing
of green feed and/or other forage crops on the land is determined
by the farm owner in consultation with the sharemilker and must be
documented. The farm owner must provide seeds, fertiliser, fencing
materials, and any other materials required to carry out this work.
If outside contractors are used, the cost must be met by the farm
owner.
100
-
Unless otherwise
agreed, in the case of maize grown for silage on the land, the cost
of growing and harvesting the crop must be borne by the farm owner.
If the parties agree to share the cost, the share paid by the sharemilker
must not exceed the agreed share in the table (see clause 105) and be reflected
in costs allocated in Annex 1 and must be recorded
in that annex.
101
-
The sharemilker
must provide the sharemilker's labour and the labour of his or her
employees at no cost to the farm owner for the growing and harvesting
of forage crops and maize silage.
Nitrogen
102
-
Unless otherwise
agreed, the costs, including cartage and spreading where a contractor
is used, of applying urea to boost seasonal pasture growth on the
land, except as provided in clause 49, must be borne and
paid for by the farm owner. If the parties agree to share the cost,
the share paid by the sharemilker must not exceed the agreed share
and must be recorded in the table (see clause 105) and reflected in
costs allocated in Annex 1. If the parties
agree that the sharemilker will share the cost of the application
of compound nitrogenous fertiliser to boost seasonal pasture growth,
the cost to the sharemilker is determined by calculating the nitrogen
content based on the equivalent cost of urea.
Purchased
feed
103
-
Unless otherwise
agreed, the landed cost of bought-in supplementary feed for the stock
that is the subject of this agreement, except as provided in clause 49, including meal
purchased for calves, must be met by the farm owner. If the parties
agree to share the cost, the share paid by the sharemilker must not
exceed the agreed share and must be recorded in the table (see clause 105) and reflected in
costs allocated in Annex 1.
Grazing
off
104
-
Unless otherwise
agreed, the cost including cartage of the grazing off of any stock
that is the subject of this agreement, except as provided in clause 49, must be borne and
paid for by the farm owner. If the parties agree to share the cost,
the share paid by the sharemilker must not exceed the agreed share
and must be recorded in the table (see clause 105) and reflected in
costs allocated in Annex 1. The conditions
of grazing off must be recorded in writing prior to the stock being
grazed off.
Cash cropping
106
-
If it is agreed
that a cash crop will be grown on the dairying area, the terms and
conditions of cropping including the sharemilker's return must be
agreed in writing prior to the preparation of any land for this purpose.
Freight
107
-
The cost of
cartage incidental to the farming operations (except where it is provided
for in this agreement) and all droving fees (except the droving by
the sharemilker or the sharemilker's employees of the stock that is
the subject of this agreement, to outside grazing) is the responsibility
of, and must be paid for by, the farm owner.
Water
108
-
The farm owner
must provide a water supply system of sufficient capacity to provide
water of acceptable quality, for stock, farm dairy, and household
purposes. If satisfactory drinking water for domestic use cannot be
obtained from other sources, sufficient tank accommodation for the
collection of rain water must be provided at the sharemilker's house.
The cost of purchased water for household purposes must be paid for
by the farm owner.
109
-
The cost of
providing water to stock; the farm dairy, and for household purposes,
must be paid for by the sharemilker as follows:
The sharemilker is responsible
for minor repairs to the water system and regular maintenance of the
water pump, the farm owner must provide the materials, where necessary,
for this purpose.
Note: The provision for the historical use of the community water supplied
to the land must be included in Annex 2.
It is
recommended that the sharemilker ascertains the costs of metered water
prior to signing this agreement.
110
-
In the event
of a serious interruption to the supply or the need for major repairs
to the supply, the sharemilker must immediately advise the farm owner
who must take prompt steps at the farm owner's expense to remedy the
situation.
111
-
If water is
being used for a purpose for which the sharemilker does not receive
a share of the returns, other than the farm owner's house, then all
costs associated with the supply of water to those areas must be paid
by the farm owner.
Irrigation
112
-
If irrigation
of pastures is practised, the sharemilker is responsible for shifting
the irrigation plant and equipment as required by the farm owner.
The sharemilker is responsible for minor repairs and the regular maintenance
of the irrigation system (the farm owner providing the materials where
necessary for this purpose).
113
-
The sharing
of the total cost of the irrigation operation must be decided prior
to signing the agreement and must be recorded in Annex 1.
Accommodation
114
-
At the commencement
of this agreement, the farm owner or the farm owner's agent and sharemilker
must inspect the house and surrounds together and—
115
-
The farm owner
must provide and maintain in good order and condition suitable accommodation
for the sharemilker and the sharemilker's employees. The accommodation
must consist of suitable living room, kitchen (including a stove operating
to the manufacturer's specifications), bedrooms, bathroom, laundry,
and flush toilet. The accommodation must include:
116
-
The cost of
septic tank cleaning is borne by the farm owner.
117
-
The cost of
electricity for lighting, heating, and power (including for pumping
water) at the sharemilker's house is the responsibility of, and to
be paid for by, the sharemilker.
118
-
The sharemilker
must keep the house accommodation and the surroundings in good and
clean condition, and is responsible for any damage sustained to the
house and pertinent buildings during the sharemilker's occupation,
fair wear and tear excepted.
119
-
The sharemilker's
house accommodation must include a suitable area surrounding it and
be securely fenced.
120
-
Upon termination
of the agreement, the sharemilker must leave the house, chattels,
and surrounds in a clean and tidy condition. If the sharemilker fails
to do so, the farm owner is entitled to have the premises cleaned
and to deduct the cost of that work from any money due to the sharemilker.
121
-
The sharemilker
is not a tenant of the land or of any building. If the sharemilker
is given notice of early termination of the agreement, the sharemilker
has 14 days to vacate any accommodation provided as part of the contract.
122
-
The farm owner
or the farm owner's agent has the right to inspect the sharemilker's
accommodation, provided the sharemilker is given 24 hours' notice
of the inspection.
Administration
Accident
Compensation Insurance
123
-
The sharemilker
is responsible during the continuance of the agreement for paying
the sharemilker's and sharemilker's employees' accident compensation
levies as required under legislation.
Occupational
safety and health
124
-
The farm owner
and the sharemilker acknowledge that safety in the workplace is a
priority to both parties and that both parties will take all practicable
measures to ensure safe working conditions and to comply with the Health and Safety in Employment Act 1992.
Federated
Farmers
125
-
The farm owner
must agree to provide reasonable access to the officials of the Federation
or any duly appointed representative of the sharemilker.
The farm
owner and the sharemilker are encouraged to join Federated Farmers
of New Zealand (Incorporated).
Disease
reactors
126
-
If an in-milk
cow is ordered to be slaughtered by the appropriate authority, and
the slaughtering of the animal does not reduce the herd to below the
minimum number specified by the agreement (clause 40), the farm owner
may elect whether or not to replace it with a similar-producing animal.
127
-
If that slaughtering
does reduce the herd to below the minimum number, the farm owner must,
at the farm owner's expense, replace it, within 14 days of the animal
leaving the farm, with a similar-producing animal, unless the parties
mutually agree in writing that it is not replaced.
128
-
If there is
a production compensation paid on account of the slaughtering of those
animals, the sharemilker is entitled to receive the sharemilker's
share of any compensation.
Contract
conclusion procedures
129
-
The farm owner
must advise the sharemilker in writing 3 months before the end of
the contract of the work required to be done to meet the terms and
conditions of the agreement. This does not exonerate the sharemilker
from carrying out maintenance work until the end of the agreement.
It is
strongly recommended that the parties address and record in writing
3 months before the end of the contract, any action that may be required
to fulfill the terms and conditions of the agreement relating to pasture
and supplementary feed on hand upon termination (see clauses 52 and 53).
130
-
If there is
a shortfall of feed on hand upon termination of the agreement, the
cost of meeting the shortfall must be made good by the parties according
to the terms and conditions of clause 54.
Death of
party
131
-
If the agreement
is with a sole sharemilker, and if the sharemilker dies during the
period of the agreement, the agreement will terminate as from the
date of death, in which case the personal representatives of the estate
of the sharemilker are entitled to all money due to the sharemilker,
under clauses 19 to 29, at the time of
the sharemilker's death, including deferred or final payments, but
subject to adjustment for any other matters of income or outgoings
or both that arise under this agreement.
132
-
If the agreement
is with a sharemilking partnership, and one of the partners dies during
the period of the agreement, the remaining partner or partners have
the option of terminating the agreement immediately or at the conclusion
of the season, but the farm owner has the prior option of terminating
this agreement within 1 month of the date of death of the sharemilker
in the event that the sharemilker cannot continue to the satisfaction
of the farm owner.
In either case, the personal representatives
of the estate of the deceased sharemilker and the remaining partner
or partners are entitled to all money due to the partnership, under clauses 19 to 29, at the time of
the conclusion of the agreement, including deferred or final payments
up to the date of the conclusion of the agreement, but subject to
adjustment for any other matters of income or outgoings or both that
arise under the terms of this agreement.
133
-
If the farm
owner dies during the period of the agreement, the agreement terminates
at the end of the current dairy season.
Breach
of agreement
134
-
If the sharemilker
commits a serious breach of the agreement, the farm owner may give
the sharemilker notice in writing to remedy the breach and, if the
breach is not rectified within 10 working days or recurs, the farm
owner may terminate the agreement immediately (in which case, the
sharemilker is entitled only to money due to the sharemilker at the
time of termination) but without prejudice to the rights of the farm
owner to recover damages for breach of the agreement, and without
prejudice to any other rights of the farm owner, and also without
prejudice to the sharemilker's rights to refer the matter to conciliation
under clauses 140 to 146.
135
-
If the farm
owner commits a serious breach of the agreement, the sharemilker may
give the farm owner notice in writing to remedy the breach and, if
the breach is not rectified within 10 working days or recurs, the
sharemilker may terminate the agreement immediately (in which case
the sharemilker is entitled to money due to the sharemilker at the
time of the termination and subsequent payments on production up to
the date of termination) but without prejudice to the rights of the
sharemilker to recover damages for breach of the agreement, and without
prejudice to any other rights of the sharemilker, and also without
prejudice to the farm owner's rights to refer the matter to conciliation
under clauses 140 to 146.
136
-
If either party
disputes the right of the other party to terminate the agreement,
the dispute must be referred to conciliation under clauses 140 to 146.
The parties'
attention is drawn to the fact that a breach capable of rectification
is not grounds for termination of the agreement.
Notices
137
-
A notice given
to the farm owner or the sharemilker is sufficiently served if—
Claims
138
-
No claims by
the farm owner against the sharemilker or the sharemilker against
the farm owner in any way arising out of this agreement in relation
to operations during any one milking season (whether the agreement
is renewed or not) is recognised or sustainable, and no action in
respect of any claim is enforceable, unless full details thereof in
writing are served by the claimant on the respondent within 21 clear
business working days of the claimant becoming aware of the alleged
breach of the agreement but in any event no later than 21 clear business
working days from the end of the season to which the breach relates,
time being strictly of the essence of the contract. If a claim is
made by either party, a period of 10 clear business working days after
the claim has been lodged is permitted within which to make a counterclaim,
but in no case is a counterclaim valid if made more than 30 clear
business working days from the end of the season.
139
-
The parties
to this agreement must not withhold proceeds, commence court action,
arbitration, or any other form of alternative dispute resolution including
reference to the disputes tribunal under the Disputes Tribunals Act 1988, relating to any
dispute arising out of this agreement unless that party has first
completed the following dispute resolution procedures.
Dispute
resolution
140
-
If a dispute
arises out of and in relation to the agreement as a result of a claim
made by a party under clause 138 or clause 139,—
(c) if the dispute is not resolved under
paragraph (b), the parties will, within 10 clear business working
days of receipt of the notice of dispute (or any further period that
they may agree in writing), appoint a conciliator. The conciliator
will be appointed from a national panel. If the parties cannot agree
on an appointment, the appointment must be made by the chairperson
of the panel; and
(g) that proposal is binding on both parties
unless, within 7 clear business working days of receiving the proposal,
one party notifies the other in writing that they reject the conciliator's
proposal; and
141
-
The conciliation
procedure is terminated—
142
-
The parties
must bear half the costs of the conciliation as well as bearing their
own costs of the conciliation procedure.
143
-
All discussions
in the conciliation process are without prejudice and must not be
referred to in any subsequent proceedings of any kind.
144
-
The conciliator
must not, unless by consent of the parties, act as arbitrator, witness,
counsel, adviser, or representative of any party in any subsequent
arbitration or judicial proceedings in respect of any dispute that
has been the subject of the conciliation procedure where he or she
has been the conciliator.
145
-
If the dispute
is not resolved by agreement within 21 clear business working days
of the first written notice from one party to the other of the dispute,
the parties' dispute is submitted to arbitration as provided for in clauses 147 to 158.
146
-
If the dispute
is not resolved by conciliation, the farm owner is entitled to withhold
the sharemilker's proceeds to the value of the claim as follows:
Arbitration
147
-
A dispute, difference,
or question that arises between the parties or their respective representatives
about the construction of this agreement or about any matter or thing
connected with or arising out of this agreement that cannot be resolved
by conciliation under clauses 140 to 146 must, in the absence
of any provision to the contrary, be referred to arbitration in accordance
with and subject to the Arbitration Act 1996. This clause operates
as a submission to a sole arbitrator to be agreed upon by the parties
or, if the parties are unable to agree on a sole arbitrator, then
to 3 arbitrators; 1 appointed by each party and those arbitrators
must appoint a third arbitrator. If the arbitrators are unable to
agree upon a third arbitrator within 21 clear business working days
of their appointment, the third arbitrator must be appointed by the
president of the Arbitrators' and Mediators' Institute of New Zealand
Incorporated or his/her nominee and otherwise under the Arbitration
Act 1996. The arbitrators must not be persons who have participated
in any conciliation procedure in respect of the dispute unless by
consent of the parties. The arbitrators must proceed with maximum
expedition to deliver an award within 2 months of their appointment,
with the parties agreeing to co-operate fully.
148
-
The parties
must proceed to arbitration within 21 clear business working days
of either party giving notice in writing to the other, and it is the
responsibility of the arbitrators to nominate the date and venue of
the arbitration.
149
-
The third arbitrator
must act as chairman of the arbitration hearing unless the arbitrators
decide otherwise.
150
-
The arbitrators
must conduct the arbitration in such manner as they in their unfettered
discretion decide.
151
-
If the farm
owner withholds more money from the sharemilker than the amount that
the farm owner is claiming, then, in the absence of extenuating circumstances,
the arbitrators will award interest on that money at a rate of 8%
per month or part thereof compounding.
152
-
If the farm
owner withholds only the amount being claimed, and the farm owner's
claims are subsequently not awarded in full, then, in the absence
of extenuating circumstances, the arbitrators may award interest up
to 5% per month or part thereof compounding, on the excess money withheld.
153
-
The arbitrators
have the power to direct as to by whom, in what amounts, and in what
manner any fees and charges must be met.
154
-
The arbitrators
have the power to require the parties to lodge with them a sum of
money as a deposit against their fees and charges.
155
-
In assessing
any interest claims, the arbitrators are specifically permitted to
set interest rates in excess of the judicature rate if they consider
it appropriate to do so.
156
-
The arbitrators
must give their award in writing within 1 month of the hearing, provided
that the arbitrators may enlarge this time by a further month by giving
notice to the parties.
157
-
If either party
wishes to take any action whatsoever against the award, that action
must be notified to the other party within 21 clear business
working days of the publication of the award, time being of the essence.
158
-
If the party
taking action against the award is directed by the award to pay a
certain sum of money to the other party, that money must be paid into
the solicitor's trust account of the party taking action at the same
time that notice is given to the other party of the proposed action
against the award. Failure by the party taking action to notify the
other party within 21 business working days, or the failure of
the party taking action against the award to pay the amount of money
identified in the award into his or her solicitor's trust account,
prevents that party taking any further action and the arbitration
award must be settled promptly.
Public
liability
159
-
The sharemilker
must take all steps to prevent loss or damage to, or by, wandering
stock, and that loss or damage is the responsibility of the sharemilker.
The farm owner and the sharemilker must each take out public liability
insurance to a recommended amount of at least $1,000,000. Each party
must produce to the other a copy of the certificate of cover at the
commencement of the agreement.
Sale of
farm
160
-
The farm owner
has the right, at any time during the agreement, to sell the farm
or any part thereof and, on doing so, to cancel the agreement. In
that case, the sharemilker is entitled to receive from the farm owner
the sharemilker's proportion of the actual, deferred, and final payment
unpaid on milk or milksolids produced during the season up to the
date on which the cancellation takes effect, together with an amount
equal to the sharemilker's net proportion of the value of the estimated
milk or milksolids for the unexpired period of the season, including
deferred and final payment. If the farm owner and the sharemilker
fail to agree on the estimated amount of milk or milksolids, the previous
3 years' average production is taken as a basis. The total production
in the previous 3 seasons for the month in question must be divided
by the number of cows milked during those months in the previous 3
seasons, giving, for the purposes of computation, a standard of production
per cow. If the farm owner has not been dairying on the farm during
the previous 3 years, the standard of production per cow for the purposes
of computation is the declared average production per cow supplied
during the said months in the previous year to the farm owner's dairy
company from all its suppliers. From the sharemilker's proportion
of the estimated gross value of the standard production per cow must
be deducted the estimated cost of production per cow by way of labour
charges, shed expenses, power costs, and all other charges that are
the responsibility of the sharemilker. The difference must be multiplied
by the number of cows milked at the date on which the cancellation
takes effect, and the results are the sharemilker's net proportion
of the value of the estimated milk or milksolids for the unexpired
period of the season, including deferred and final payments thereon.
161
-
By signing this
agreement the parties acknowledge that they have had the opportunity
to seek advice from an independent third party and legal advice on
the terms of this agreement.