It’s probably just as well that Queensland’s new Labour Hire Licensing Bill 2017, introduced into State Parliament (25/5/17) has been referred to the Finance & Administration Committee to report back by 24 July 2017. That’s a date that many of us will already have put in our diaries to check on where this legislation is headed. But, from what I can see so far, the Committee is going to have its work cut out for it, because it would appear that the drafting of the Bill does not match its intent.
First let’s recognise that the intent is laudable. The intent of the Bill is to protect workers from exploitation by providers of labour hire services; and to promote the integrity of the labour hire industry.[i]
But rather than identifying the industry role interfaces, where workers are most likely to experience exploitation, the Bill seeks only to license “the supply of workers”.[ii]
To do this, clause 7 of the Bill develops an omnibus definition of “labour hire services provider”, that appears to cover a wide range of workforce services suppliers including labour-hire firms (temp agencies) – but also, seemingly, workforce contractors (other than builders); group training schemes; and an unspecified (and little understood) class of labour intermediaries involved in the supply of workforce services or the use of auxiliary labour.
It’s the attempt to cover this unspecified class that it is likely to be the Bill’s undoing – at least as it stands at the moment – because, unlike the UK Gangmasters Licensing Act, upon which the definition appears to be modeled, the Bill fails to distinguish between the supply of a worker and the use of a worker[iii] in the intermediate levels of so-called labour-hire supply chains.
Let me try to put this in Rugby League terms that some readers might appreciate:
If you’re only the decoy runner in a cut-out pass, you’re not supplying the ball.
Moreover, the Bill makes no attempt to identify the circumstances in which a putative labour hire services provider might be materially involved such as to warrant the need to have a licence.
That failure produces some rather curious results. Let’s have a closer look at some of them.
We learn, from sub-clause 7(2)(a) of the Bill, that a provider provides labour hire services regardless of whether or not the worker is an employee of the provider.
Ordinarily, there would be nothing unusual about that. The provision clarifies that the formal distinction between employees and independent contractors is not important in this context.
However, it also points to the possibility that there may be no contractual relationship at all between the worker and the putative labour hire provider.
And that’s where things start to get tricky!
Sub-clause 7(2)(b) of the Bill goes on the say that a provider provides labour hire services regardless of whether or not a contract is entered into between the worker and the provider, or between the provider and the person to whom the worker is supplied.
Just think about that for a moment.
The distinguishing feature of a provider of labour hire services is that the putative provider supplies, to another person, a worker to do work.[iv]
How is that going to happen, and what type of supply is contemplated, if there is no contract between the worker and the provider; and no contract between the provider and the person to whom the worker is “supplied”?
Even accepting that there can be non-contractual supplies of goods or services,[v] and even accepting (for the sake of the argument) that workers could be equated to goods or services able to be supplied, something still seems to be wrong.
What the Bill is really trying to get at here, is a situation where the putative provider is materially involved, in some way, in the arrangement under which the worker performs work for the benefit of the person to whom she or he is supposedly “supplied”. But the legislation gives no proper clue as to what material involvement actually is.
The intent seems to be to catch buffered sub-contracting or pyramid labour contracting schemes that serve only to distance the point of employment from the point where labour is used.
But the Bill does not meet that intent.
There is no attempt to link the putative provider in any way to involvement in, say, the use, sub-contracting, or assignment of the contractual rights and obligations upon which commercial labour hire arrangements and pyramid supply schemes ultimately depend.
This situation is compounded by clause 8 of the Bill, which provides that a person is a worker for a provider if the individual enters into an arrangement with the provider under which:
- the provider may supply, to another person, the individual to do work; AND
- the provider is obliged to pay the worker, in whole or part, for the work.
So, on the one hand, we have the possibility of non-contractual arrangements (sub-clause 7(2)); whilst on the other, we have the need for an arrangement of some sort, coupled with an obligation to pay the worker for the work.
What sort of obligation is that, if it doesn’t arise from a work/wage bargain? Does the Bill rely on some sort of moral or equitable obligation to pay?
Had a thorough analysis been undertaken of the nature and flow of the rights and obligations that support commercial labour-hire arrangements, many of the difficulties which this Bill presents could have been avoided
Instead, we are left with what, in my view, is a seriously flawed legislative proposal, designed on principles that labour is a commodity and that workers can be supplied.[vi]
It should be noted that the Bill does provide for exemptions to be made by regulations;[vii] and the challenge for many will now be to examine what case they may have for exemption under Regulations that are yet to be presented.
However, that may be more difficult than it sounds, because exemption will only be granted where the supply of workers is not a dominant purpose of the business ordinarily carried on the business or class of business that seeks exemption.[viii]
Even so, it may be a long list because the list of exemptions under the Gangmasters Licensing (Exclusion) Regulations 2013 (UK) runs for five pages and includes such obscure classes as the use of a worker by a supplier of vaccines to perform vaccinations, and the use of a worker to determine the sex of chickens and other poultry.
Also keep in mind that the GLA only applies to agricultural work, gathering shellfish, and related processing and packaging work. Queensland has gone all the way and has not sought to restrict its licensing requirement to particular categories of work or industry sectors.
To find out where this all ends up, we will have to wait until 24 July 2017, when the Finance & Administration Committee reports back. That’s a date that many of us will already have put in our diaries.
It’s already in mine!
Andrew C. Wood
[i] Sub-clause 39(1).
[ii] Sub-clause 3(2).
[iii] The Bill appears to borrow the key elements of its definition from ss. 4(2) and (3) of the Gangmasters Licensing Act 2004 (UK), which focus on the activity of supplying workers. It seems to have missed ss. 4(5), (5) and (6), which focus on the activities of using workers, other than in a supply situation, and which are essential for the effective inclusion of agencies that are involved in buffered subcontracting arrangements or the type of tiered or “pyramid” labour supply sub-contracting schemes, which the Fair Work Ombudsman investigated in its Chicken Processing Inquiry.
[iv] Sub-clause 7(1).
[v] An unsolicited supply might be one example of this. A gift or gratuitous supply might be another.
[vi] See, for example, my blog article, Labour Hire Sub-contracting in Australia: “The train that wasn’t there”? (9 May 2017).
[vii] Sub-clause 7(4).
[viii] Subclause 7(4).