UPDATE LABOUR HIRE LICENSING STARTS IN QUEENSLAND

UPDATE LABOUR HIRE LICENSING STARTS IN QUEENSLAND

As you would be aware if you have read our article from 2017, labour hire licensing laws have passed in Queensland.

Labour Hire companies in Queensland are now getting ready for this to come into effect and to apply for licenses. The Labour Hire Licensing Act 2017 (Qld) (“the Act”) will commence 16 April 2018 and it requires labour hire providers operating in Queensland to apply for licenses to continue to trade.

The Queensland government has stated that the purpose behind the Act is to “protect labour hire workers from exploitation and restore confidence in the labour hire industry” through regulation.[1] The bill was introduced in direct response to an inquiry into the practice of the labour hire industry in Queensland.

  1. Who is included?

Labour hire providers are people or companies who provide labour hire services. Someone provides labour hire services if (in the course of conducting their business) they “suppl[y], to another person, a worker to do work in and as part of a business or commercial undertaking of the other person”.[2]

The Act also binds users of labour hire services. That is, a user of labour hire providers must only use licensed providers.

It appears (though is not expressly confirmed) from the Act and the explanatory material that this is not intended to include related entities supplying employees within their group.

  1. Where is included?

There is no express limitation contained within the Act with respect to labour hire providers who operate predominantly outside of Queensland. This suggests that any labour hire provider who provides any workers in the state of Queensland will be required to apply for and hold a licence under the Act moving forward.

  1. What are the requirements?

An applicant will need to:

a) Apply online and be able to identify themselves;
b) Identify at least one person as a nominated officer responsible for the day to day operations;
c) Show that the nominated officer(s) is a fit and proper person to provide labour hire services;

i. There are various matters which are taken into account in respect of whether someone is a fit and proper person including but not limited to convictions for offences relating to suitability to provide labour hire services, insolvency, and history of compliance with relevant laws;[3]

d) Demonstrate that the provider can comply with the relevant laws;
e) Demonstrate that the provider’s business is financially viable; and

i. Financially viable is defined as “means the person is able to pay the person’s debts as and when they become due and payable”.[4]

f) Pay an application fee;

g) Produce a 6 monthly report online.

  1. When does this need to be done?

Labour hire providers will need to apply for a licence online between 16 April 2018 and 15 June 2018. The licenses will last for a period of 1 year, at which time each licensee will be required to apply for a renewal.

  1. What are the penalties if you operate without a licence after June 2018?

The penalties for a labour hire provider continuing to operate without a licence after 15 June 2018 are fairly severe. It is important to note that there are also strict penalties for contracting with a provider who ought to be licensed (but is not) and for knowingly circumventing the Act

a. Failing to hold a licence as a provider

i. Should a company continue to provide labour hire services without a
licence, it can be fined up to $378,450.00;

ii. Should a person do so, that person may be fined up to $130,439.10 or
sentenced for up to 3 years imprisonment.

b. Advertising

i. Should a person/company advertise or hold out that they can
provide labour hire services but not hold a licence; the maximum
penalty is $25,230.00.

c. Contracting with a provider who does not have a licence

i. Should a person/company enter into an arrangement with a
provider who does not hold a licence (unless there is a reasonable
excuse):

  1.  A company may be fined up to $378,450.00;
  2. A person may be fined up to $130,439.10 or sentenced for up to 3 years imprisonment.

d. Knowingly circumventing the Act”

i. Should a person/company knowingly[5] enter into an arrangement
which is designed to circumvent the obligations of the Act:

  1. A company may be fined up to $378,450.00;

A person may be fined up to $130,439.10 or sentenced for up to 3 years imprisonment.

6. Moving forward

It is imperative that you apply for a licence under the Act before 15 June 2018 if you provide labour hire services in Queensland. If you contract with a company who provides labour hire services in Queensland, you must immediately implement a system to conduct a licence check beginning 15 June 2018 before contracting with them.

Remember, this is only in Queensland for now, but it’s possible the other states will follow suit soon.

If you would like further information about licensing requirements, assistance with your application or assistance with implementing a licence check system, please contact JHK Legal on 07 3859 4500.

Sarah Jones – Legal Practitioner Director

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[1] Explanatory notes to the Labour Hire Licensing Bill 2017.

[2] Section 7 of the Act.

[3] Section 27 of the Act.

[4] Schedule 1 of the Act.

[5] Or if they reasonably ought to have known.