Recent Advocacy in Industrial Law
12 March 2018
The Labour Hire Licensing Scheme and possible implications for lawyers
Last year the Queensland Parliament passed the Labour Hire Licensing Act 2017 (LHL Act) which establishes a licensing scheme for the provision of labour in Queensland. The scheme will commence on 16 April 2018.
Labour hire services have been broadly defined in section 7 of the LHL Act to mean the supplying to another person a worker to do work. Under section 7(2), a provider provides labour hire services regardless of:
- whether or not the worker is an employee of the provider; and
- whether or not a contract is entered into between the worker and the provider, or between the provider and the person to whom the worker is supplied; and
- whether the worker is supplied by the provider to another person directly or indirectly through one or more agents or intermediaries; and
- whether the work done by the worker is under the control of the provider, the person to whom the worker is supplied or another person.
Section 7(4) provides that a regulation may prescribe that a person, or a class of person will not fall within the scheme if supply of this person or class of persons is not a dominant purpose of the business ordinarily carried on by the person or class of persons.
During the Bill’s passage through Parliament, Queensland Law Society made submissions which raised a number of concerns about the proposed legislation. Included among these was our concern that specific detail on the types of arrangements to be included in, or excluded from, the scheme was not outlined the Act itself, but was to be placed into a Regulation as necessary. We considered that the “dominant purpose” test should be in the primary legislation.
Another concern raised with the parliamentary committee reviewing this Bill was that genuine secondments undertaken by lawyers and other legal staff could fall within the scheme, as could arrangements involving related corporate or groups entities. In our submissions we stated that while we unequivocally support workers in the legal sector, and in all sectors, being paid their correct entitlements, we queried the appropriateness and the utility of lawyers and law practices being required to obtain a license for the provision of labour, especially when this industry is already heavily regulated.
Despite these objections, no significant amendments were made to the Bill before it passed through Parliament. However, QLS recently had the opportunity to comment on consultation papers which will form the basis of the Regulation. In this response, we re-stated our submission that genuine secondments should not be captured by the scheme and should expressly excluded in the Regulation.
We supported this view by referring to 7(4) of the LHL Act and stating that there was no evidence to suggest that genuine secondees have been denied proper entitlements in the same way as other workers in more vulnerable industries have. Genuine secondments are often “ad hoc”, which means the need for a license and other compliance with the scheme may be overly burdensome.
QLS has asked for the opportunity to review the draft Regulation before it is made to ensure the drafting does not produce any unintended consequences. We will update members on the progression of this issue.
QLS engages with government and other stakeholders on these, and other issues. We make numerous submissions in our advocacy of good law, good lawyers and the public good. To learn more, please visit http://www.qls.com.au/For_the_profession/Advocacy.