Victoria’s Labour Hire Licensing Bill 2017, introduced into State Parliament on 13 December, is the third labour hire licensing scheme introduced this year as part of a labor State push to establish a common pattern of labour hire licensing regulation.
South Australia’s Labour Hire Licensing Act 2017 is set to commence on 1 March 2018.
Queensland’s Labour Hire Licensing Act 2017 is set to commence on 16 April 2018.
Victoria’s Labour Hire Licensing Bill 2017, if it is passed, has a proposed commencement date of no later than 1 November 2019, but may be proclaimed earlier.
Despite hopes of establishing a common scheme, cracks are starting to show.
Some of the cracks may be smoothed over by regulations that have yet to be released for comment in South Australia and Queensland. Others may be smoothed over by administrative fiat in those States that are intending to create an administrative power to grant various exemptions (S.A. and Vic).
Some cracks may be smoothed over by accommodating mutual recognition arrangements; and some might only be smoothed over by legislative amendment.
Furthermore, detailed analysis of the legislative schemes reveals some glaring gaps – e.g. the failure to regulate substitutable workforce contracting services; and some apparent inconsistencies – e.g. the inconsistency created by regulating only the supply of a worker where the work is done in and as part of the host/client’s business whilst simultaneously extending the definition of worker to include independent contractors. The issue, here, is that genuine independent contractors perform their work in and as part of their own businesses.
Many of these issues will only come to light when the legislation is tested in the course of prosecutions and licence decision reviews and appeals. Nevertheless, it is worthwhile to to take note of them – especially for businesses that operate across state borders or may be relying on interstate advice – and bring them into the field of public and industry dialogue.
A good place to start might be a side-by-side comparison of the main coverage provisions of the three state schemes – as far as we know them at this stage, without the benefit of regulations and with the Victorian Bill still awaiting its second reading debate.
So, I’ve had a go at representing some similarities and differences in table format. To do it, I’ve had to standardise some of the terminology. I’ve opted for:
Provider = the person who needs the licence;
Worker = the person who performs the work;
User = a person who takes the benefit of the supply of a worker for the performance of work.
The “user” terminology was the most difficult to arrive at. In the Queensland and South Australian Acts, this party is usually referred to as “another person”. Victoria uses the expression “host”. Both of those terms are problematic in their application to labour contracting chains, where several layers or tiers of supply are involved; and the nature of the services being supplied up the chain may switch between labour hire services and sub-contracting services before reaching the point where the work is actually performed.
I’ve therefore opted for the “user” terminology because it applies to labour contracting chains operating through intermediate users to an end user. However, to my mind, the term remains problematic because of the possibility of confusion with user models of gang-mastery that are regulated under the UK Gangmasters Licensing Act but have so far escaped attention in Australia.
Using my standardised terminology, one could say that common to all Australian schemes is the proposition that:
A person is a labour hire provider (provider) if, in the course of conducting a business, the person supplies a worker to another person (user) to do work…
At that point, the schemes begin to diverge around details of:
- situational application – e.g.whether in and as part of the user’s business;
- additional coverage;
- exclusions; and
- worker definition.
The table represents my attempt to illustrate these points of departure. To read it click here or on the link below.
The expression, “c.f.”, where it is used in the table, indicates that a comparable outcome is achieved by slightly different means.
I’d love to learn of your thoughts and comments.