The highly anticipated Regulation for the Labour Hire Licensing Act 2017 (Act) was released today ahead of the Act and Regulation commencing on 16 April 2018.
Partner Andrew Tobin, Special Counsel Anna Hendry and Senior Associate Simon Clayer, discuss some of the key aspects and features of the Act and the Regulation.
What is the Labour Hire Licensing Act?
The Act establishes a mandatory labour hire licensing scheme to protect labour hire workers from exploitation and to promote the integrity of the labour hire industry.
Key features of the Act include:
- labour hire providers are to be licensed to operate in Queensland, with the licence to be renewed annually;
- persons who engage labour hire providers are to only engage licensed providers;
- labour hire licensees must satisfy a ‘fit and proper person’ test to establish that they are appropriate persons to provide labour hire services;
- the labour hire business must be financially viable (i.e. be able to pay workers promptly and meet other obligations such as taxation, superannuation and WorkCover premiums);
- licensees will report on their activities six monthly;
- significant penalties will apply for a breach of the obligations.
Why is the Labour Hire Licensing Regulation important?
Labour hire providers have been eagerly awaiting the release of the Regulation, as much of the detail explaining how the Act will operate and what class of worker is captured by the legislation, is to be covered by the Regulation.
For example, the Regulation clarifies that the Act does not capture unintended classes of workers such as:
- genuine secondments;
- workplace consulting;
- a high income worker (as defined in the Fair Work Act 2009 as an employee currently earning over $142,000 per annum and not covered by a state award, a modern award or an enterprise agreement);
- a worker who is also the director, partner or owner of the business supplying to themselves;
- an in-house employee who is temporarily supplied to another person; and
- employees working for an employing entity used wholly within a single recognisable business. This means an individual who a provider supplies to another person to do work where the provider and the other person are each part of an entity or group of entities that carry on business collectively as one recognisable business.
The Regulation also provides details about the applicable fees for a labour hire licence. These will be based on three tiers of business, according to the wages paid by the business in the financial year before the relevant application.
If it is a new business, the tier will be determined by the projected wages for the coming financial year.
The table below describes the tiers and corresponding fees.
||Description of business
|Tier 1 business
||wages of less than $1.5 million
|Tier 2 business
||wages more than $1.5 million but less than $5 million
|Tier 3 business
||wages more than $5 million
The Regulation also provides details about:
- what an applicant’s declaration of financial viability means for the Act and examples of the types of financial documents an applicant must nominate to be able to make this declaration;
- how compliance with specified work health and safety, fair work, migration, anti-discrimination, transport and accommodation laws will be demonstrated;
- what the Chief Executive of the Office of Industrial Relations must have regard to when considering whether a person is ‘fit and proper’ to be a provider of labour hire services;
- what a licensee must report on, including specific details about accommodation, transport and services used by labour hire workers; and
- renewal, restoration, and application fee tiers and amounts.
Sources for additional information
Information on the Act and scheme will be available from 16 April 2018 on a new Labour Hire Queensland website, supported by a help desk call centre (1300 576 088). It will also be possible to make the licence application through this website.
The website will have:
- a register of licensed labour hire providers;
- avenues to report problems and contact the Labour Hire Licensing Compliance Unit;
- resources such as application guidance material, practical examples of labour hire arrangements and industry fact sheets; and
- FAQs and other information for labour hire providers, workers and users of labour hire.
If you are a labour hire service provider, you should:
- subscribe to firstname.lastname@example.org to receive updates about the licencing process with a view to having your application ready by 15 June 2018; and
- implement a system whereby the information necessary for periodic reporting is readily accessible.
For more information or discussion about the Act and supporting Regulation, please contact HopgoodGanim Lawyers’ Insurance and Risk team or the Industrial Relations and Employment team.