Labour Hire Licensing Regulation 2018

This regulation may be cited as the Labour Hire Licensing Regulation 2018.

This regulation commences on 16 April 2018.

The dictionary in schedule 2 defines particular words used in this regulation.

For section 8(2) of the Act, the following individuals are prescribed—

an individual employed by a provider—

whose annual wages are equal to or more than the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333; and

other than under an industrial instrument under the Industrial Relations Act 2016 or a modern award or enterprise agreement under the Fair Work Act 2009 (Cwlth);

for a provider who is a corporation—an individual who is an executive officer of the corporation and the only individual the provider supplies, in the course of carrying on a business, to another person to do work;

an in-house employee of a provider whom the provider supplies to another person to do work on a temporary basis on 1 or more occasions;Examples of the supply of an individual to do work on a temporary basis—

• a lawyer employed by a law firm is seconded for a period of time to a client of the law firm to do work for the client

• a consultant employed by a consultancy business is supplied to a business to conduct a review for the other business

• a person employed by a community care organisation on an ongoing basis and who usually works for the organisation in a variety of locations, including in another person’s home

an individual who 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 1 recognisable business.

Examples—

1 A landscaping business is comprised of a number of companies that are responsible for different aspects of the business. The business’s workers are all employed by 1 of the companies and are supplied to work for 1 or more of the other companies within the business.

2 A business that operates a group of medical centres employs workers for the centres through a trust entity. The workers, including doctors, nurses and reception staff, are supplied to the medical centres to perform work.

For subsection (1)(c), 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; and

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.

In this part—

associate, of an applicant, means—

if a proposed nominated officer for the application is a person other than the applicant—the proposed nominated officer; or

if the applicant is a corporation—the corporation and each person who is an executive officer of the corporation.

related person, in relation to an applicant, means—

if the applicant is an individual—a corporation of which the applicant is or has been an executive officer; or

if the applicant is a corporation—

each person who is an executive officer of the corporation; and

each other corporation of which a person mentioned in subparagraph (i) is or has been an executive officer.

WHS undertaking means an undertaking given under the Work Health and Safety Act 2011, section 216(1).

For section 13(3)(c)(ii) of the Act, the prescribed information is a description of the financial documents held by the applicant relating to the business’s ability to—

meet its actual, or projected, operating costs and expenses; and

pay each worker supplied by the business as and when the worker is due to be paid; and

pay other financial obligations or entitlements in relation to workers, including, for example, the payment of payroll tax and superannuation for workers.

Examples of financial documents—

• a profit and loss statement

• a balance sheet

• an independent accountant’s report

• a financial plan

• a statement of actual, or projected, cash flow

• a bank statement

• a document showing amounts withheld from payments made to employees and paid to the Australian Taxation Office

• a document showing payment of employee superannuation

For section 13(3)(c)(iii) of the Act, the following information is prescribed—

whether, within 5 years before the application is made, the applicant or a related person has—

been convicted of an offence against the Work Health and Safety Act 2011 or the Workers’ Compensation and Rehabilitation Act 2003; or

had a WHS undertaking accepted under the Work Health and Safety Act 2011;

whether the applicant—

is currently insured under a WorkCover policy under the Workers’ Compensation and Rehabilitation Act 2003; or

is currently licensed as a self-insurer under the Workers’ Compensation and Rehabilitation Act 2003, chapter 2, part 4;

if the applicant is currently insured under a WorkCover policy under the Workers’ Compensation and Rehabilitation Act 2003—the policy number for the policy of insurance.

This section applies if the applicant or an associate of the applicant has applied for, or held—

an interstate licence under a corresponding law; or

a licence, accreditation or other authority, under an Act, to carry on a business or carry out an occupation.

For section 13(3)(c)(iv) of the Act, the information prescribed includes whether, within 5 years before the application is made—

the application was refused; or

any of the following happened—

a condition was imposed on the licence, accreditation or authority;

the licence, accreditation or authority was suspended or cancelled;

other disciplinary action was taken in relation to the licence, accreditation or authority.

In this section—

corresponding law means a law, or former law, of another State or the Commonwealth that provides for, or provided for the same, or substantially the same, matter as the Act.

interstate licence means a licence, however described, issued under a corresponding law that is similar to a licence under the Act.

For section 13(3)(c)(iv) of the Act, the following information is also prescribed—

whether the applicant or an associate of the applicant holds a visa under the Migration Act 1958 (Cwlth);

whether, within 5 years before the application is made, the applicant or a related person has—

been issued an infringement notice under the Migration Act 1958 (Cwlth); or

been convicted of an offence against the Migration Act 1958 (Cwlth);

whether the applicant supplies workers who hold visas under the Migration Act 1958 (Cwlth);

if the applicant supplies workers who hold visas under the Migration Act 1958 (Cwlth)—how many workers the applicant supplies, or intends to supply;

whether the applicant is an approved employer for the program established by the Commonwealth and known as the Seasonal Worker Programme.

For section 13(3)(c)(iv) of the Act, the following information is also prescribed—

if the applicant is an individual—whether a close associate of the individual has been an insolvent under administration;

if the applicant is a corporation—whether a related body corporate, under the Corporations Act, of the applicant—

has executed a deed of company arrangement under the Corporations Act; or

is the subject of a winding-up, whether voluntarily or under a court order, under that Act; or

is the subject of an appointment of an administrator, liquidator, receiver or receiver and manager under that Act.

In this section—

close associate, of an individual, means—

a spouse, de facto partner, parent, brother, sister or child of the individual; or

a step-parent, stepbrother, stepsister or stepchild of the individual; or

a member of the same household as the individual; or

a person with whom the individual is in a partnership; or

a person who is in a position to control or substantially influence the conduct of the individual.

For section 13(3)(c)(iv) of the Act, the information prescribed also includes whether, within 5 years before the application is made, the applicant or a related person has—

been convicted of an offence against—

the Fair Work Act 2009 (Cwlth); or

a law of another State or the Commonwealth that provides for the same, or substantially the same, matters as the Work Health and Safety Act 2011 or the Workers’ Compensation and Rehabilitation Act 2003; or

had an enforceable undertaking accepted under the Fair Work Act 2009 (Cwlth), section 715; or

had an undertaking that corresponds to a WHS undertaking accepted under a law of another State or the Commonwealth that provides for the same, or substantially the same, matters as the Work Health and Safety Act 2011; or

been given an infringement notice under the Fair Work Act 2009 (Cwlth).

For section 13(3)(c)(iv) of the Act, the following information is also prescribed—

whether the applicant or an associate of the applicant has been convicted of a serious criminal offence;

whether, within 5 years before the application is made, the applicant or a related person has been convicted of an offence against any of the following laws—

the Coal Mining Safety and Health Act 1999;

the Electrical Safety Act 2002;

the Explosives Act 1999;

the Fire Services Act 1990;

the Heavy Vehicle National Law (Queensland);

the Mining and Quarrying Safety and Health Act 1999;

the Radiation Safety Act 1999;

the Residential Services (Accreditation) Act 2002;

the Residential Tenancies and Rooming Accommodation Act 2008;

the Safety in Recreational Water Activities Act 2011;

the Transport Operations (Marine Safety) Act 1994;

the Transport Operations (Passenger Transport) Act 1994;

a law of another State or the Commonwealth that provides for the same, or substantially the same, matters as a law or a provision of a law mentioned in subparagraphs (i) to (xii).