Increased regulation in the Queensland labour hire industry – Is your organisation at risk?April 27, 2018
On 16 April 2018, the Labour Hire Licensing Act 2017 (Qld) (‘the Act’) commenced operation in Queensland. The intention of the Act is to protect labour hire workers from exploitation and to promote the integrity of the labour hire industry.
The Act introduces mandatory licensing for labour hire providers in Queensland.
The scope of the Act is very broad and extends beyond normal labour hire businesses. All businesses engaged in providing or using labour hire should review their arrangements to ensure compliance with the Act.
Who is a “provider” of labour hire services?
A “provider” of labour hire services is an entity that, in the course of carrying on a business, provides a worker to another person to perform work. It is immaterial if the worker is an employee of the provider, if any contracts are entered into between the parties or if the worker is provided directly or indirectly through agents.
Who is a “worker” under the Act?
An individual is a “worker” if they:
- are supplied by the provider to another person to perform work; and
- the provider is obliged to pay the worker for the work (in whole or part).
The Labour Hire Licensing Regulation 2018 (Qld) (‘the Regulation’) provides further clarity on who is not considered to be a worker for the purposes of the Act:
- Individuals who earn at least the high income threshold under the Fair Work Act 2009 (Cth) (i.e. currently $142,000) and who are not covered by a Modern Award or Enterprise Agreement.
- An Executive Officer of a corporation (i.e. involved in the management of the corporation) who is the only individual supplied by the provider. This exclusion will mainly apply where an owner/director of a company provides services as a contractor to another company.
- Secondments and similar arrangements where an employee of the provider performs work on a temporary basis for a client. However, the employee must:
- be engaged as an employee by the provider on a regular and systematic basis;
- have a reasonable expectation of ongoing employment with the provider; and
- primarily perform work for the provider other than as a worker supplied to the other person.
Workers engaged by the provider as contractors or employees engaged to undertake a secondment as a specific project or task do not fall within the exemption.
- Internal labour hire arrangements where the provider supplies the worker(s) to a related entity and they collectively carry on a business as a single entity.
All labour hire providers must apply for a licence by 15 June 2018. Businesses can apply online for a licence. The application process requires the provider to submit a wide range of information, including:
- Evidence that the business is financially viable.
- Evidence showing compliance with workplace health and safety, workers’ compensation and other relevant laws.
- Evidence that the Applicant or the “nominated officer(s)” is a fit and proper person.
The licence will operate for a maximum period of one year, and must be renewed by the provider. The application fees to apply, renew or restore a licence range from $1,000 to $5,000.
Businesses using labour hire must ensure that any labour hire provider they appoint has a current licence. The licence can be confirmed by reference to an online register.
Breaches of the Act will occur if a labour provider does not hold a licence or a business engages a provider that does not have a licence. Penalties are up to $130,439 and 3 years imprisonment for an individual, or $378,450 for a corporation.
Livingstones recommends that all businesses review their existing processes in relation to supplying or utilising labour hire or similar working arrangements to determine if they are required to comply with the Act and the new licensing scheme.
If you would like more information in relation to the new labour hire legislation, please contact us on +61 7 3833 1200 or firstname.lastname@example.org.
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