Ensuring Host Labour Hire ComplianceDecember 10, 2018
With the introduction of the labour hire licensing laws, understandably many employers who use labour hire services are compliant and continue to do the right thing. The effects of rogue operators occur across many industries, however particularly notable is the Fruit and Vegetable growing industry due to the mainstream media reports. This is despite the majority of farmers doing the right thing.
What can I do?
This is a question I have been asked by many different employers who need to use labour hire to ensure they have sufficient workers at different times of the year. This is particularly the case in times of peak labour needs and where there is no ability to delay the labour needs. This is particularly so for Fruit and Vegetable growers but also wider across the food, processing and manufacturing industries.
Before engaging with a labour hire provider you should first:
- Obtain the entity name that will be used to provide the labour;
- Search that name on the Office of Industrial Relations website currently at:
to identify if the entity is licensed and confirm with that the information obtained is correct. It is strongly recommended this be done in writing.
If the entity is not found on the website, this needs to be corrected before proceeding further. If the entity is found to be licensed, you should then seek further information from them. The information you should know at a minimum is what the applicable industrial instrument is that applies to their employees. This includes any:
- Modern Awards;
- Enterprise Agreements;
This is important because as a general rule your enterprise agreement will not apply to labour hire providers. Therefore, it should not be used to establish what the minimum entitlements are for the labour hire workers.
The reason for this is to address the old adage that “if it’s too good to be true, it probably isn’t”. An employee cannot agree to work less than their applicable industrial instrument. It is important to know what that instrument actually is in order to understand if the contracted price is sufficient to cover the costs of wages outlined in their applicable instrument . If it isn’t, this is a red flag that your labour hire workers may not be paid appropriately.
- What labour hire services are you engaging?
- How many workers are you bringing into your workplace?
- Will the work be reliable, consistent and establish a pattern?
- Will the contract permit subcontracting of the work?
- Who is the labour hire provider you are engaging?
- What is the entity name?
- Are they listed on the Licenced Labour hire
- What expectations are you setting?
- Are there reporting channels for changes in work required to be performed by labour hire workers?
What must I not do?
It is an offence in Queensland to use an unlicensed labour hire provider.
It has also an offence to engage in conduct to avoid labour hire licencing laws as well as any practice that results in a worker receiving less than lawful entitlements.
What is the purpose of these checks
The damage caused by rogue labour hire operators can be widespread, for industries and also individual operators. This includes for reputation, but also the potential for ‘accessorial liability’.
Accessorial Liability is where a business, and also individuals, can be held legally responsible for the Labour Hire Provider’s actions in underpaying their staff. This extends to owners, directors, managers and external advisors.
The safest method of stopping this from occurring is to take the above steps of prevention to encourage compliance.
What else can I do?
Whilst it may not be practical or realistic in all circumstances, there are contractual abilities to require the labour hire provider to make guarantees and provide information that demonstrates their previous and continuing compliance with workplace laws and industrial instruments.
Alternatively, there may also be scope to look to accredited labour hire providers into the future in addition to the licensing requirements they are now required to comply with.
There are additional requirements and obligations you can place on the labour hire provider including the requirement to provide guarantees, responses to questionnaires, and permit random and/or scheduling auditing or disclosure of the provider’s compliance. Such arrangements would however require the agreement of the contractor therefore this is a consideration for each individual business as to whether these requirements are necessary for you to engage their labour hire on offer.
Should you require further information or documentation to support your engagement with labour hire providers please do not hesitate to contact me.
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