Australia: Labour Hire Licensing in Victoria - Consultation on draft regulations

On 7 August 2018, the Victorian Government opened a period of public consultation for the exposure draft Regulations under the Labour Hire Licensing Act 2018 (Vic).

Submissions are due by close of business on 5 September 2018.

A brief summary of the draft Regulations is below.

Background

The Labour Hire Licensing Act 2018 (Vic) passed the Victorian Parliament on 20 June 2018 and certain administrative provisions commenced operation from 27 June 2018. The substantive licensing scheme is not yet in force and is expected to commence in early 2019 or after.

Draft Regulations

The draft Regulations relate to the scope of the legislation and operational matters.

Scope

The draft Regulations contain scope exclusions similar to those introduced for the Queensland labour hire licensing scheme. For example, it is proposed that the following classes of individuals not be ‘workers’ under the Victorian Act:

1. Secondees i.e. a worker of a provider who the provider provides to another person to do work on a temporary basis and:
   1. is engaged as an employee by the provider on a regular and systematic basis; and
   2. has a reasonable expectation that the employment with the provider will continue; and
   3. primarily performs work for the provider, other than as a worker supplied to another person to do work for the other person.
2. Persons in certain intra-group arrangements i.e. persons who a provider provides to another person to do work in the circumstances where 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, other than where the provider is predominantly in the business of providing the services of workers to other persons where those persons include persons that are not part of the entity or group.
3. Persons from one or two person businesses i.e. persons who the provider provides to another person to do work if the provider is a body corporate with no more than two directors and the person provided by the body corporate is a director of the body corporate who participates in the management of the body corporate or shares in its profits.
4. Certain public sector employees, students and persons undertaking work or services under a vocational placement.

The draft Regulations also provide circumstances in which an individual is taken to perform work ‘in and as part of a business or undertaking’. This is an element of the definition of ‘labour hire services’ under the Victorian Act (but is not part of the definition in Queensland). For example, the draft Victorian Regulations provide that individuals are taken to be performing work in and as part of a host’s business or undertaking if they perform:

• activities as a cleaner in a commercial premises (that is not a place occupied as a residence); or
• certain horticulture or meat/poultry processing activities.

A Victorian Inquiry found ‘outright exploitation’ in the cleaning, horticulture and meat sectors. It appears that the Victorian Government considers providers in those sectors should be subject to particular scrutiny, and have proposed to address this concern directly by way of these Regulations.

Operational matters

The draft Regulations also contain proposed detail in relation to certain operational matters including:

• Application and renewal requirements;
• Additional reporting and notification requirements;
• Fees;
• Penalties for certain ‘infringement offences’; and
• Mutual recognition of other schemes – it is proposed that the Victorian regulator will be able waive information requirements, deem a person to be ‘fit and proper’, or deem other requirements under the Victorian LHL Act to be met, if a person has a labour hire licence in Queensland or SA or is registered as a group training organisation (excluding any organisation that provides workers other than apprentices and trainees).

Consultation

Industrial Relations Victoria has invited interested stakeholders to provide detailed feedback on any and all aspects of the exposure draft Regulations. The deadline for submissions is 5 September 2018.

For more information about the public consultation process (including how to complete your submission, a template submission document and a list of questions document which summarises some key aspects of the exposure draft Regulations) or the Victorian labour hire licensing scheme more broadly, see Industrial Relations Victoria’s website here.

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