Throughout October, we’re going to untangle what, I think, is one of the most difficult topics in labour hire licensing. It concerns how we distinguish between a labour hire provider who requires a licence and a mere intermediary who doesn’t.
Typically, the topic arises in the context of multi-party service network supply arrangements, where different parties are responsible for sourcing, engaging, supplying, managing, paying or accommodating workers who perform work for a labour hire host.
The topic is difficult because:
- There is no consistent definition of what it means to supply a worker.
- There is no definition of what an intermediary is.
- There is no authoritative decision about what it means to have an obligation to pay a worker in whole or in part for the work – one of the key distinguishing features of a labour hire provider.
- The obligation, whatever it is, can arise from an arrangement that doesn’t necessarily have to be a contract, and which may be made indirectly through one or more agents or intermediaries.
- Guidance provided by regulators fails to distinguish consistently between labour hire and workforce contracting.
- Guidance provided by regulators is sometimes confused about who is the host;
- The Victorian extension of the licensing requirements to accommodation providers who recruit workers (e.g. backpacker hostels who recruit workers for local employers) and to contractor management services providers who also recruit workers add further layers of complexity and confusion.
- The Victorian provisions, which deem certain beneficiaries of the work performed by some classes of workers (e.g. commercial premises receiving cleaning services) to be hosts, creates adds to the confusion about who is exercising what role in a service network.
- There can be uncertainty, once various deeming provisions and exceptions are taken into account, about whether there can be more than one labour hire provider in respect of the same worker.
- Intermediaries, to the extent to which they become involved in labour hire arrangements, may have obligations to ensure labour hire providers (wherever they are located in the supply network) are properly licensed and may be obliged to pass on licensing information to ensure that neither the intermediaries nor their clients become involved in the unlicensed supply of labour hire services;
- The extraterritorial operation of the various labour hire acts will often mean that where the issue arises in interstate supple transactions the rules and interpretations of more than one jurisdiction will need to be considered;
- The problem, to the extent to which it arises under labour hire licensing laws in Qld, S.A., Vic or the A.C.T., may intersect with additional private employment agency licensing laws in S.A., W.A., and the A.C.T., and with private employment agency regulation in Qld – triggering either exemptions or requirements for dual licensing.
There’s enough there, I think, to keep us occupied while we attempt to untangle these problems in small steps and arrive at some answers that might help smooth the way to more certain and effective supply arrangements.
So, if you’d like to join the conversation, head across to the RCSA-hosted Labour Hire Licensing & Regulation (Aust & N.Z.) LinkedIn Group, where I’ll be moderating discussion. Alternatively, you can post a reply here or on my blog, The Recruiters’ Casebook.
Let’s talk soon!
Andrew C. Wood