In an earlier post, I forecast that a rough “Storm Season” could be brewing for some Queensland labour hire providers, if indications coming from Labour Hire Licensing Queensland and the Hon. Grace Grace MP, Minister for Industrial Relations are anything to go by.
In this post, we look at some essential preparations that providers can make in order to meet or avoid a worst case scenario.
If your agency is one of the 500 or so, whose application for a labour hire licence seems to have been held up; or if you’ve been issued with a licence but are facing objections, or have concerns about whether a licence may be vulnerable to suspension or cancellation either because of incorrect information (e.g. about the use of visa workers) supplied with the application, or because of non-compliance with one of the myriad of relevant laws – it might be worth taking a few steps to prepare for what could turn out to be a worst case scenario.
These are not nice topics to have to write about. Many might worry that “rocking the boat” could put them “on the regulator’s radar”. However, it’s sometimes good to address them head on, and to briefly outline some of the preparations that you might begin to make.
Finding out what’s going on with the delays
One of the worst things about delayed applications is that you won’t necessarily know what’s happening. Rumours abound, and speculation runs rife. It is often best to try to get to the facts – or at least as many of them as you can discover.
At a broad level, the problem might be addressed by having your industry association raise the issue of general delay with the regulator and seek information about why the scheme does not seem to be working as smoothly as planned.
It would be reasonable to ask the regulator for some general information about the results of its State-wide audits, conducted back in May and June 2018. So far it hasn’t said a lot about those.
Your members of Parliament might similarly ask questions and seek information from the responsible Minister.
Information obtained, at that broad level, might not quite put your mind at ease; but it should yield some context that will help you to plan your next steps. Importantly, it will put the providers’ interest “in the game”, without singling out any particular applicant or licence holder.
At a provider-specific level, the lack of information can often be addressed by an exploratory call to the regulator.
You might point out that the regulator’s website says that it anticipates that licence application decisions will be made within 28 business days from the date the application was lodged. You could (politely) ask whether there is any reason (that the regulator can tell you) why your application seems to be taking longer. You could ask when you might expect to receive a decision.
If there are particular circumstances that require an answer sooner rather than later – e.g. an upcoming tender – you could let the regulator know about that, so that you are not disadvantaged against other tenderers by having your application still undecided.
Right to Information (Freedom of Information) and Information Privacy
In some cases, you might consider exercising your rights to obtain information under the Right to Information Act or the Information Privacy Act.
You can ask the regulator how you would go about doing that. You might even ask the regulator whether it would consider giving you informal access, which is usually simpler and faster than making a formal application.
Queensland’s Office of the Information Commissioner provides a great resource on Busting Myths about the Right to Information. It’s worth reading if you want to know more about the process.
Even if you make a formal application, you might not get every piece of information because some information may be exempt – e.g. some complaint information; but if there are objections or complaints in the wind, you may be able to find out the general nature of them and then begin to prepare your case to address them – either upon inquiry by the regulator; or by correction procedure, if the information is personal information; or upon formal internal or external review (discussed below).
Dealing with adverse decisions
If you receive an adverse decision – e.g. a suspension or cancellation decision; a licence refusal; or the imposition of adverse conditions – you should receive an “information notice” given by the Chief Executive under the Act.
An information notice is a notice stating—
- the decision; and
- the reasons for the decision; and
- that the person has a right to have the decision reviewed under s. 93; and
- how, and the period within which, the person may apply for the review.
The information notice will provide a good place to start, because it should outline the matters you will have to address.
QCAT Information Notice
A different type of information notice, called a QCAT Information Notice, must be given by the Chief Executive, when providing a decision after review under s.97 of the Act.
Receipt of a QCAT Information Notice triggers the right to appeal to QCAT (Queensland’s Civil and Administrative Appeals Tribunal) under s. 98.
s. 93 Review
The Act provides for decisions of the Chief Executive to be reviewed internally by someone other than the person who made the original decision.
Review applications have to be made in the approved form and within 28 days after being given the Information Notice.
When applying for review, you should set out your grounds and state the decision that you want the Chief Executive to make. That becomes important later on, when the Chief Executive has to decide whether to give you a QCAT Information Notice, in case you should want to appeal further.
Obviously, the strength of your review submission depends on the extent of your preparation and the quality of the advice and support you have received in preparing your submission. This is an area where you might do well to have your legal support team well prepared in advance.
s. 96 Stay of Decision
A “stay” is an order that suspends a decision and stops it coming into effect, while review rights are pursued.
Merely applying for a review of the Chief Executive’s decision, or appealing from a review decision, does not stay the decision.
To get a stay, you would have to apply IMMEDIATELY to QCAT.
Being in a position to apply immediately, probably requires you to have done some advance preparation and to have your legal support team well briefed so that they can move quickly.
You might need to ask QCAT to stay the decision for long enough to allow a review decision to be made by the Chief Executive under s.97 (see below) plus additional time to enable an appeal to QCAT to be concluded in case the s.97 review decision is adverse, and you wish to appeal under s. 98 (see s.98 appeals below).
S. 97 Review Decision
The Chief Executive, must, within 21 days after receiving a review application:
- review the original decision;
- make a review decision; and
- give notice of the review decision (a “review notice”).
If the Chief Executive does not give a review notice within the 21 days, the Chief Executive is taken to have made a review decision confirming the original decision.
That would mean that you should track the 21 days very carefully.
s. 98 Appeals
If the review decision is not the decision you wanted, you should receive a QCAT Information Notice.
You then have 28 days from the day when you were notified of the review decision to commence your appeal.
A QCAT Information Notice must state the following—
- the decision;
- the reasons for the decision;
- you have a right to have the decision reviewed by the tribunal;
- how, and the period within which, you may apply for the review;
- any right you have to have the operation of the decision stayed under s. 22 of the QCAT Act.
Just keep in mind that failure to comply with those requirements does not invalidate the decision.
Failure to make any decision at all – s. 22 Judicial Review Act.
Occasionally, a decision maker might fail to make a decision within the time specified in the Act which confers decision making authority; or if no time frame is specified, within a reasonable time.
What is a reasonable time, depends on all the circumstances.
The Act does not stipulate a timeframe within which the Chief Executive is to make a licence application decision. But remember that the Regulator anticipates being able to make decisions within 28 business days of receiving the application for a licence. That would tend to suggest that there may be some licence applicants, who might now be wondering what their rights are if the Chief Executive fails to make a decision within a reasonable time.
Under s. 22 of the Judicial Review Act 1991 (Qld), a person who is aggrieved by the failure of the Chief Executive to make a decision can apply to the Court for a statutory order of review in relation to the failure to make the decision on the ground that there has been unreasonable delay in making the decision.
The order will not confer the licence; it will merely direct the Chief Executive to make a decision. However, the Court can additionally make:
- an order declaring the rights of the parties in relation to the making of the decision; and
- an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties.
In any given case, there may also be other remedies that might be available.
Hopefully, you will not need them. But it is always a good idea to canvass them with your legal support team; and to do so well in advance of the time when you might need them so that you can move quickly and with confidence.
Andrew C. Wood