With the Queensland labour hire licensing scheme commencing yesterday, employers have at long last been provided with some much-needed clarity in relation to the scope of the scheme and its operational requirements.

Following a consultation process earlier this year (see related article), the Labour Hire Licensing Regulation 2018 (Qld) was released on 6 April 2018.

In short, there appears to be a number of positive developments for employers arising from the consultation process, with the exception of some new record keeping obligations not foreshadowed in the consultation papers.

An overview of some of the key elements of the Regulation are outlined below. To ensure compliance with the scheme, AREEA strongly recommends that labour hire providers and those who utilise labour hire providers familiarise themselves with the full set of requirements under the Regulation and the Act.

Scope

The Labour Hire Licensing Act 2017 (Qld) provides that 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.

During the consultation period, AREEA continued to highlight its concern with the breadth of the scheme and continued its efforts to ensure that regulation in this space does not encroach into arrangements not traditionally thought of as labour hire.

The Regulation provides that the following individuals are not workers, and are therefore excluded from the scheme:

• an ‘in-house employee’ (as defined) whom the provider supplies to another person to do work on a temporary basis, for example a consultant supplied to a business to conduct a review;
• an individual where the provider and the person supplied are each part of an entity or group of entities that carry on business collectively as 1 recognisable business;
• an individual whose annual wages are equal to or more than the high income threshold under the Fair Work Act 2009 (currently $142,000) and is employed other than under an industrial instrument, enterprise agreement or modern award;
• an individual who is an executive officer of a corporation and is the only individual supplied by the provider.

AREEA welcomes the exclusions to the scheme, and that they are provided for in the Regulation. During the consultation process AREEA outlined its strong view that any clarification to the scope of the scheme should be achieved through regulations rather than policy treatment or via an application process, as originally proposed by the Queensland Government.

Operational matters – application

The Regulation also prescribes information that is required to accompany an application for a licence, including about:

• whether the business is financially viable, for example that it can meet its operating costs and expenses, pay workers on time, and pay other financial obligations relating to workers;
• compliance with work health and safety, workers’ compensation, anti-discrimination, sexual harassment, migration, and fair work laws
• a range of other matters, such as other licences, the solvency of entities associated with the applicant, etc.

A marked difference from the consultation paper is that the questions about compliance no longer include ‘any incidence of litigation regardless of success’. Rather, for the most part, the information sought relates to matters which have resulted in a conviction, enforceable undertaking or infringement notice.

AREEA welcomes this approach, having outlined in our submission that care must be taken to ensure any compliance related questions do not impose on fundamental principles such as the presumption of innocence, and natural justice.

Operational matters – other

The Regulation also deals with other operational matters, such as reporting requirements, record keeping obligations, and fees.

The record keeping obligations were not foreshadowed in the consultation papers. They include quite specific requirements, such as:

• keeping each relevant record for at least 7 years after ceasing to be a licensee
• keeping each relevant record or document in a ‘secure, orderly and accessible way’
• if kept in electronic form, ensuring the computer system is backed up at least once a month, and the backed-up information is kept at a location other than the principal place of business or registered address.

There are penalties of between $1,261.50 – $2,523 for non-compliance.

Ensure you comply

Labour hire providers must apply for a licence before 15 June to continue operating in Queensland. You can apply on the new labour hire licensing website.

If you are unsure whether your business arrangement falls within the scope of the scheme, or how to ensure compliance with the scheme, contact your local AREEA consultant for advice.

AREEA is hosting a national webinar for members on Thursday 26 April to provide an update on state labour hire licensing developments.  Email [email protected] to be notified of the webinar details when available later this week.