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Overview of Labour Hire Licensing Legislation in Queensland, South Australia and Victoria

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Overview of Labour Hire Licensing Legislation in Queensland, South Australia and Victoria OVERVIEW OF LABOUR HIRE LICENSING LEGISLATION IN QUEENSLAND, SOUTH AUSTRALIA AND VICTORIA ITEM QLD VIC SA 1 Title Labour Hire Licensing Act 2017 Labour Hire Licensing Act 2018 Labour Hire Licensing Act 2017 2 Purpose Section 3: Section 4 (see also section 1): Section 3: • Protect workers from • Protect workers from • Protect workers from exploitation by providers of exploitation by providers exploitation by providers of labour hire services. of labour hire services and labour hire services. hosts. • Promote the integrity of the • Protect licensed labour hire labour hire industry. • Promote the transparency businesses from predatory and integrity of the labour business practices that hire industry. may be engaged in by persons unsuitable to be licensed to provide labour hire services. • Promote the integrity of the labour hire industry. 3 Commencement 16 April 2018 Dates to be proclaimed; 1 March 2018 or 1 November 2018 (if not proclaimed before then). 4 Applying for a Online. From 16 April labour Details of online process to be Online from 1 March 2018. licence hire providers had 60 days confirmed. Initially, six months from that to lodge an application for a Six-month transition period date to satisfy requirements licence (s 9). (sections 115-116). and obtain a licence (Schedule • If an application was 1, clause 1). This transition made within the 60 day period was later extended by period, the obligations and the SA Liberal Government to penalties in the Act do not 1 February 2019. apply until the application for a licence is determined. WWW.CORRS.COM.AU ITEM QLD VIC SA 5 Coverage Section 7(1): Section 7(1): Section 7(1): A person (provider) provides A person (a provider) provides A person (provider) provides labour hire services if, in labour hire services if: labour hire services if, in the course of carrying on a • in the course of conducting the course of conducting a business, the person supplies a business, the provider business, the person supplies another person (a worker) to do supplies one or more a worker to another person work. [Note: the Qld Act does individuals to another to do work, in and as part of not have the limiting words person (a host) to perform the business or commercial in the definition of providing work in and as part of a undertaking of the other labour services found in the business or undertaking person. Victorian and SA legislation, of the host (this requires See also section 7(2): resulting in potentially very an assessment of the broad application subject to activities to be performed Provision of LH services directly exclusions in regulations, see by the individual and the or through intermediaries, etc. point 6 below.] level of integration of those activities in the host’s Section 9: Examples: business/undertaking); and Supply of a worker to do work • Contractor supplying fruit • the individuals are workers for a person commences when pickers for farmers. for the provider. worker first starts to do work • Training organisations for the person in relation to the Someone will be ‘providing supply. that supply apprentices or labour hire services’, regardless trainees to an employer. of whether there is a contract SA Consumer & Business • Employment agency between the provider and Services has issued guidance who on-hires temporary host; or whether the supplier material on when a licence is administration staff. provides the workers directly, or is not required, available at: https://www.sa.gov.au/__data/ See also section 7(2): or through an intermediary; or whether the work is performed assets/pdf_file/0011/392393/ Provision of LH services directly under the control of provider or Factsheet-who-needs-a- or through intermediaries, etc. host (section 7(2)). licence-examples.pdf Section 9: Recruitment, placement Section 8(1): Supply of a worker to do work (linked to provision of An individual is a worker if for a person happens when accommodation) the individual enters into an worker first starts to do work Section 8(1): arrangement under which for the person in relation to the the provider supplies them to • A person provides labour supply. do work for another, and the hire services if, in the provider is obliged to pay the Section 8(1): course of providing recruitment or placement individual (in whole or part) for An individual is a worker if services, the provider the work. the individual enters into an recruits/places individuals arrangement under which with another person (host) the provider supplies them to to perform work as part of do work for another, and the the business of the host; provider is obliged to pay the • the provider procures/ worker (in whole or part) for the provides accommodation work. for the individuals during this period; and WWW.CORRS.COM.AU ITEM QLD VIC SA 5 Coverage • the individuals are workers for the provider. Contractor management services Section 8(2): • A person provides labour hire services if, in the course of providing contractor management services, the provider recruits/places individuals with a host and as part of the host’s business; and • the individuals are workers for the provider (rather than the host). 6 Exemptions Sections 7(4), 8(2): Section 10: Section 5(1): Regulations can make Classes of persons or services Registered group training exclusions from definitions of prescribed by regulations. organisations to the extent provision of labour hire services that they supply apprentices or Victorian Government has and worker for purposes of the trainees to do work for others. consulted on the following Act. categories of exemptions to be Section 7(3): Labour Hire Licensing covered by regulations: Regulations may prescribe Regulation 2018 provides for • Secondments. circumstances in which person exemptions including: does not provide labour hire • Volunteers. • In-house employee of services. See also ss 7(4)(c), (5). provider, supplied to • Provision of a worker Regulations issued to date do another person to do work between related companies. on 1 or more occasions not address exemptions. (e.g. lawyer seconded from • Genuine subcontracting and firm to client). pure outsourcing. • Executive officer of • Provision of professional corporation who is only services to a third party (e.g. person supplied by medical or legal services). corporation to another • Work experience person to do work. placements. • Individual supplied by provider to another person • Group training apprentices/ within same entity/group. trainees. • Individual employed by provider whose annual wages equal or exceed Fair Work Act high income threshold, and not employed under Qld or federal industrial instrument. WWW.CORRS.COM.AU ITEM QLD VIC SA 7 Prohibitions - Labour hire service providers Labour hire service providers Labour hire service providers Providers Section 10(1): Section 13: Section 11(1): A person must not provide A person must not provide A person cannot provide labour labour hire services unless labour hire services unless the hire services unless the person the person is the holder of a person is a holder of a valid is the holder of a licence. licence. Penalties: licence. Civil penalties: Penalties: • Individuals up to 1034 • Natural persons up to 800 • Natural persons up to penalty units ($130,439) or penalty units ($126,856). $140,000 or 3 years’ 3 years’ imprisonment. imprisonment • Bodies corporate up to 3200 • Corporations up to 3000 penalty units ($507,424). • Bodies corporate up to penalty units ($378,450). $400,000. Section 14: Section 10(2): Section 11(2): A person must not advertise A person must not advertise or hold out that the person A person must not advertise or hold out that the person provides or is willing to provide or hold out that the person provides or is willing to provide labour hire services, unless the provides or is willing to provide labour hire services, unless person holds a licence. Civil labour hire services, unless the person is the holder of a penalties: the person is the holder of a licence. Penalty: licence. Penalty: • Natural persons up to 200 • Up to 200 penalty units. penalty units. • Up to $30,000. • 800 penalty units for bodies corporate. 8 Prohibitions - Labour hire service users Labour hire service users Labour hire service users Users Section 11(1): Section 15: Section 12: A person must not enter into A person must not enter into A person must not enter into arrangements with a labour arrangements with a labour arrangements with a labour hire service provider, unless hire service provider, unless hire service provider, unless the provider holds a licence. the provider holds a licence. the provider is authorised to Penalties: Civil penalties: provide labour hire services by a licence. Penalties • Individuals up to 1034 • Natural persons up to 800 penalty units ($130,439) or penalty units ($126,856). • Natural persons up to 3 years’ imprisonment. $140,000 or 3 years’ • Bodies corporate up to 3200 imprisonment. • Corporations up to 3000 penalty units ($507,424). penalty units ($378,450). • Bodies corporate up to This does not apply if the $400,000. This does not apply if the provider was shown on the person has a reasonable Register as a licence holder, This does not apply if the excuse. It is a reasonable or the person subject to the person has a reasonable excuse if, at the time of section 15 obligation has excuse. It is a reasonable entering the arrangement, the another reasonable excuse. excuse if, at the time of provider was shown on the entering the arrangement, register as a licence holder. the person was shown on the register as a licence holder. WWW.CORRS.COM.AU ITEM QLD VIC SA 8 Prohibitions - Avoidance Avoidance Avoidance Users Section 12: Section 16: Section 13: A person cannot enter A person (client) must not enter A person must not enter arrangements for the supply of arrangements for the supply of arrangements for the supply of workers that the person knows, workers that the client knows, workers that the person knows, or ought reasonably know, are or has reasonable grounds or ought reasonably know, are designed to circumvent or avoid to suspect, are designed to designed to circumvent or avoid obligations under the Act.
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