The Labour Hire Licensing Act 2017 (Qld) will commence on Monday 16 April 2018. On Friday 6 April 2018, the Queensland Parliament published regulations that clarify the scope of the regime and the information that must accompany an application for a labour hire licence. Labour hire providers caught by the regime have 60 days from the commencement of the legislation to apply for a licence.
Who is and isn’t caught by the regime?
The definitions of ‘labour hire services’ and ‘worker’ in the Act are very broad. The Act defines ‘labour hire services’ as follows:
A person (a provider) provides labour hire services if, in the course of carrying on a business, the person supplies, to another person, a worker to do work.
The Act defines ‘worker’ as an individual who enters into an arrangement with a 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. However, an individual is not a worker if the individual is, or is of a class of individual, prescribed by regulation.
We have been waiting on the regulations, as the Act left a lot of questions about the potential coverage of the regime unanswered. The regulations provide that the following individuals are not ‘workers’ for the purposes of the Act:
|Excluded category||What criteria must be satisfied to fall into this category?|
|High income earners not covered by a modern award or enterprise agreement or Queensland’s industrial relations system||An individual employed by a provider: • whose annual base wages (excluding superannuation and other benefits) are equal to or more than the amount of the high income threshold under section 333 of the Fair Work Act 2009 (Cth) (which is currently $142,000); and • other than under an industrial instrument under the Industrial Relations Act 2016 (Qld) or a modern award or enterprise agreement under the Fair Work Act 2009 (Cth).|
|Secondments and similar temporary arrangements (depending on the arrangement meeting the criteria specified)||An in-house employee of a provider whom the provider supplies to another person to do work on a temporary basis on one or more occasions. An ‘in-house-employee’ of a provider is an individual who: • is engaged as an employee by the provider on a regular and systematic basis; • has a reasonable expectation the employment with the provider will continue; and • primarily performs work for the provider other than as a worker supplied to another person to do work for the other person.|
|Internal labour hire (depending on the labour hire arrangement meeting the criteria specified)||An individual whom a provider supplies to another person to do work if the provider and the other person are each part of an entity or group of entities that carry on business collectively as one recognisable business.|
The exclusion for internal labour hire will exempt some, but not all, internal labour hire arrangements and providers will need to carefully scrutinise their arrangements to determine whether they fall within the scope of the exclusion.
What information and documents must accompany an application?
The regulations prescribe a long list of information that must accompany an application for a labour hire licence, including information as to:
- the business’s financial viability and the solvency of entities associated with the business;
- work health and safety offences and enforceable undertakings, and workers’ compensation obligations;
- other licences, accreditations or authorities to carry on a business;
- migration matters;
- convictions for serious criminal offences, as well as other offences against certain laws;
- discrimination and sexual harassment matters;
- the regions in Queensland where the applicant provides, or intends to provide, labour hire services; and
- the industries to which the applicant provides, or intends to provide, labour hire services.
What are the fees for applying for, renewing or restoring a licence?
The regulations set out the fees associated with applying for, renewing or restoring a licence. The fees vary depending on the ‘tier’ of the business, which is determined by:
- the total amount of wages the business paid in the financial year preceding the day on which the application is made; or
- if the business did not operate in the immediately preceding financial year, the total wages the business is projected to pay in the financial year in which the application is made and the next financial year.
The fees are set out in the table below:
|Total wages paid / total projected wages||Fee|
|Less than $1.5 million (tier 1 business)||$1,000|
|$1.5 million to $5 million (tier 2 business)||$3,000|
|More than $5 million (tier 3 business)||$5,000|
What must you do now?
The Act provides for very high penalties (up to $378,000 for corporations) for breaches. Any business providing or utilising labour hire arrangements must:
- establish whether the entity providing the labour hire needs to be licensed; and
- if entity does need to be licensed, collate the required information and submit the necessary application before Friday 15 June 2018.