Labour Hire Licensing Laws: Do they apply outside their home states?

ExtraterritorialityQueensland, South Australia, and Victoria have now all passed separate labour hire licensing laws[1].

All three acts contain provisions that attempt to extend their application beyond state boundaries.[2] The exact wording in each case is different but basically, they attempt to extend the laws to the maximum extent of the legislative power of their respective Parliaments. No one knows for sure exactly what that is because it hasn’t been tested in this context. But it seems generally correct to say that, provided there is some real connection (or nexus), with the home state, the laws are capable of applying in some other state (or country).

So, a New South Wales labour hire provider (say a nursing agency) who supplies workers across the border into Queensland or Victoria would need a licence – in both states.

Just how tenuous the connection can be before the reach of the labour hire licensing laws pulls up short, is difficult to say. But it seems that it can be pretty weak though still effective.

To pick up from our nursing agency example above, a New South Wales agency that only supplies nurses north of the Murray, south of the Tweed and east of whatever the border with SA is, might still need a Victorian licence if it supplies nurses to the Albury campus of Albury Wadonga Health. That’s because AWH is a cross border public health service that operates under an agreement between New South Wales and Victorian governments. That might be enough of a connection to extend the reach of the Victorian Labour Hire Licensing Act to our hypothetical NSW nursing agency.

The acts of South Australia and Victoria, after claiming to give the legislation its widest operation, go on to say something more specific[3] – but those statements shouldn’t necessarily be taken as limiting the intended scope. They might just be examples of the wider proposition.

So, for example, the Victorian act says that it applies in relation to arrangements made within Victoria in respect of work performed outside Victoria.

“Arrangements” is a very broad concept. The Victorian Labour Hire Authority explains that:

Arrangements include informal or formal agreements, any preparation or planning activity that was done to organise a labour hire worker’s arrival, placement, accommodation, training or remuneration, whether directly or indirectly with or for a third party.

(INFORMATION ABOUT WORKERS For provision of information under section 19 of the Act 30 Sept 2019)

So, an agency based in Melbourne (because who wouldn’t want to be based in Melbourne?) which only supplies NSW workers to NSW hosts in NSW might still need a Victorian licence. That’s because of the strong likelihood that, being based in Victoria, it is making “arrangements” in Victoria for that supply.

Avoidance conduct, executed in another state, might still be caught by the act because it is (to use the SA particular wording) “in connection with labour hire services provided in [SA]”.

And remember, not only is it an offence to supply labour hire services without a licence, it’s also an offence in each state for a provider to advertise or hold out that it is willing to supply labour hire services if it does not have a licence.

There are likely to be quite a few providers who have been advertising ability and willingness to provide services all around Australia. They might want to look at that a bit more closely – not only because of the offence provisions under the labour hire licensing laws but also because of the misleading and deceptive conduct provisions of the Australian Consumer Law….

…is it ever going to end?

Probably not until the federal government steps in and replaces the state schemes with one of its own. That won’t happen soon enough for many.

 

Andrew C. Wood

 

[1] Labour Hire Licensing Act 2017 (Qld), Labour Hire Licensing Act 2017 (SA), Labour Hire Licensing Act 2018 (Vic).

[2] Qld s. SA, s. 4, Vic s. 6.

[3] Queensland’s act is silent regarding particular applications.

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