Are you inadvertently a labour hire service provider?

Legislation has been introduced in some States to licence the providers of labour hire services. In Queensland, such service providers had until 15 June 2018 to make an application to obtain the relevant licence.

An application may still be made for a licence, however the labour hire service provider cannot provide labour hire services until such time as that licence has been granted.

Some of our clients have advised that they have never considered themselves to be a labour hire service provider, however they may now be considered to be one due to the broad definition in the legislation.

The following information is to assist clients to determine if they may be classified as a labour hire service under the Queensland legislation. We strongly encourage any clients who think they may have been inadvertently characterised as a labour hire service to contact us and we can assist in assessing if you are a labour hire service provider, and what you need to do.

The general definition[1] of a provider and labour hire service is:

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 the work.

Importantly, it does not matter who has day to day control of the worker and their work. Nor does it matter if the contract is between the worker and the provider or the worker and the business they are working in. What appears to be most indicative of a labour hire service is that the provider is ultimately accountable for paying the worker in whole or in part for the work.

There are a number of exclusions[2] to whom the legislation applies. These include:

• Where the individual provided by the provider to do work for another business is in receipt of annual wages equal to or in excess of the high income threshold under the Fair Work Act 2009 [currently $145,400 p.a.]; and

the individual provided by the provider is not covered by an Award or Industrial Instrument (for example an Enterprise Agreement);

• 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. For example, if a Hanrick Curran employee were to work in a client business on a project or for a limited period of time;
• Where an individual is provided to do work in another entity where the provider and the entity in which the work is undertaken are both part of the same entity or a group of entities which carry on business collectively as one recognisable business. For example, where a business owns a group of medical centres and employs workers through one of the entities to work in one or more of those medical centres. The group would of course still have to be one recognisable business.

If your organisation is now defined to be a provider of labour hire services and you have not applied for a licence, you are at risk of significant penalties.

If your organisation is not in Queensland we can still assist you to determine if there is relevant state or territory legislation which may apply to you and if so if you are captured under the relevant legislation in your State or Territory of operation.

We can assist you to resolve this issue so that you can confidently get on with doing business. Please contact us on (07) 3218 3919 or mazarshr@mazars.com.au

[1] Section 7, Labour Hire Licensing Act, 2017

[2] Section 3, Labour Hire Licensing Regulation 2018

Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.