November 8, 2018

Professionals | QLD

On 19 September 2018, the South Australian government announced that it intends to take steps to repeal the Labour Hire Licensing Act 2017 (SA) following feedback raised by stakeholders. The South Australian government will no longer be accepting applications for labour hire licenses and will be refunding application fees paid by applicants.

This recent development has prompted us to consider our comments in our recent publications concerning the Queensland labour hire licensing regime and the likelihood of other States adopting similar regimes.

With Queensland and Victoria the only States that have implemented the regime, and statements from the ACT government that it will implement a labour hire licensing regime in the future, it now appears less likely that there will be a uniform approach adopted by the States. We will consider where each of the States now sit on the implementation of a labour hire licensing regime, together with a comparison of the Queensland and Victorian regimes.

What is the labour hire licensing regime?

The Queensland and Victorian labour hire licensing regimes seek a common goal of restoring integrity to the labour hire industry by imposing regulations to protect vulnerable workers. Each State’s legislation prohibits the provision of labour hire services without a license and the engagement of workers from unlicensed labour hire service providers (with online registers available in each State to assist users with compliance) by imposing significant penalties for non-compliance with the respective regimes.

However, there are differences in each of the State’s application of these laws. This creates issues if a business is conducted within multiple jurisdictions. If you outsource or engage workers from a third party, it is vital that you are across these differences in the law, as they are both nuanced and significant.

What are the key differences in the established labour hire licensing regimes?

Queensland

Victoria

When must a provider of labour hire services be licensed?

16 April 2018, with a transition period that  ended on 15 June 2018

Yet to be proclaimed, but no later than 1 November 2019, with a six month transition period from the date of proclamation

What are the eligibility requirements to obtain a license?

Each applicant and proposed officers must be a fit and proper person and the business to which the application relates is financially viable

The applicant must pass a fit and proper person test and demonstrate compliance with legal obligations set out in workplace laws, labour hire laws, and minimum accommodation standards

Who is a provider of labour hire services?

In the course of carrying on a business, the person supplies, to another person, a worker to do work – broader than Victoria and South Australia and captures non-traditional labour hire providers

In the course of conducting a business, a person supplies one or more individuals to another person (a host) to perform work in and as part of a business or undertaking of the host; and the individuals are workers for the provider.

Providers also include certain recruitment and placement services and contractor management services.

How long is a labour hire license valid?

1 year from the day it is granted (unless suspended or cancelled)

No longer than 3 years after the day it came into force (unless suspended or cancelled)

What are the penalties for providing labour hire services without a license?

  • Up to $134,989 or 3 years’ imprisonment for individuals
  • Up to $391,650 for corporations
  • Up $128,952 for individuals
  • Up to $515,808 for corporations

What are the penalties for using an unlicensed labour hire service provider?

  • Up to $134,989 or 3 years’ imprisonment for individuals
  • Up to $391,650 for corporations
  • Up $128,952 for individuals
  • Up to $515,808 for corporations

What are the reporting requirements?

The reporting period is every 6 months starting on the day the license was granted and must be lodged within 28 days of the relevant date

The reporting period is every 12 months from the date the license was granted and must be lodged within 28 days of the relevant date

What about the other States?

South Australia is repealing its labour hire licensing laws before they take effect.

The ACT government has said that it will implement labour hire licensing laws. However, laws implementing the regime are yet to be introduced to parliament for consideration.

The Western Australian government recently conducted an inquiry into the WA industrial relations system, however, labour hire licensing was not considered during the review. 

No recent inquiries have been conducted by New South Wales, Tasmanian and the Northern Territory governments, however the New South Wales Labor party announced in 2017 that it intends to introduce a labour hire licensing regime (if elected).

The current Federal Government’s view is that labour hire licensing is a matter for the States, so it is unlikely we will see uniform national regime. This means businesses operating across multiple jurisdictions will need to ensure they have procedures in place to comply with various regimes.

How can McInnes Wilson Lawyers help?

  • preparing correspondence to your service providers requesting information about how they are complying with the relevant labour hire licensing regime;
  • review your service and contractor agreements to advise whether you are required to be a licensed labour hire service provider or the providers of services to you are required to be licenced providers;
  • drafting contractual warranties regarding the application of the labour hire licensing regime;
  • assisting with applications for a labour hire licence.

If you require further information on any of the abovementioned material, please contact: