New labour hire licensing regulations
11 April 2018
The Labour Hire Licensing Act 2017 (LHL Act) and the accompanying Regulation will commence on 16 April 2018. The LHL Act establishes mandatory labour hire licensing which requires:
- labour hire providers to be licensed to operate in Queensland
- persons who engage labour hire providers to only engage licensed providers
- labour hire licensees to satisfy a fit and proper person test to establish that they are appropriate persons to provide labour hire services
- labour hire providers to comply with all relevant laws
- the labour hire business to be financially viable (i.e. be able to pay workers promptly and also meet its other obligations (e.g. taxation, superannuation, WorkCover, etc.))
- licensees to report on their activities six monthly
- there to be penalties for breach of obligations, and
- the establishment of the Labour Hire Licensing Compliance Unit within the Office of Industrial Relations with inspectors responsible for monitoring and enforcement activities.
Existing labour hire providers have until 15 June 2018 to apply for a licence. Those providers can continue to operate after 15 June 2018 while their application is being assessed. After 16 April 2018, any new labour hire business must have a licence before it commences operation.
Information on the LHL Act and scheme will be available on the Labour Hire Licensing Queensland website. The website will be supported by a help desk call centre which can be contacted on 1300 576 088. The website and contact centre will be available from 16 April 2018. The licence application will also be made 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, examples of labour hire arrangements and industry fact sheets, and
- other information for labour hire providers, workers and users of labour hire.
The LHL Act covers the labour hire industry. It does not apply to genuine subcontracting arrangements or recruitment and permanent employee placement services (where a recruitment agency supplies the worker whom the end user employs and pays directly). The Act has a specific provision that a building contractor is not a labour hire provider merely because they enter into a contract to carry out construction or building work (section 7(3)(b)). Also, volunteering and student placements are not labour hire arrangements. In addition to the Act, the Labour Hire Licensing Regulation (the Regulation) provides further clarification to ensure that the Act does not capture unintended classes of workers. These are:
- genuine secondments
- workplace consulting
- a high-income worker (defined using the Fair Work Act, i.e. an employee earning over $142k per annum and not covered by an industrial instrument)
- 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. An in-house employee is defined as an individual who:
- is engaged as an employee by the provider on a regular and systematic basis; and
- has a reasonable expectation the employment with the provider will continue; and
- primarily performs work for the provider other than as a worker supplied to another person to do work for the other person.
- 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 if 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 (a person includes a company or other employing entity).
The Regulation also provides:
- what an applicant’s declaration of financial viability means for the LHL Act and examples of the types of financial documents an applicant must nominate to be able to make this declaration
- details about how compliance with specified work health and safety, fair work, migration, anti-discrimination, transport and accommodation laws will be demonstrated
- details that the Chief Executive must have regard to when considering if a person is fit and proper to be a provider of labour hire services
- further details about 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.