Employment Agents Registration Act 1993

This Act may be cited as the Employment Agents

Registration Act 1993.

In this Act, unless the contrary intention appears—

the Director means—

the person for the time being holding, or acting in, the office of the Chief Executive Officer of the Department of the Minister to whom the administration of this Act is committed; or

any other person directed by the Minister to exercise the powers of the Director under this Act;

employer means a person by whom a worker is employed under an employment contract, or for whom work is done by a worker under an employment contract;

employment means work done under an employment contract;

employment agent means a person who, for monetary or other consideration, carries on the business of—

procuring workers for persons who desire to employ or engage others in any kind of work; or

procuring employment for persons who desire to be employed or engaged by others in any kind of work, but does not include—

a charitable or benevolent organisation which carries on any such activity on a non-profit basis; or

an organisation or association of a class excluded from this definition by the regulations;

employment contract means—

a contract of service under which one person (the worker) is employed by another (the employer); or

a contract, arrangement or understanding (not being a contract of service) under which one person (the worker) is engaged by another (the employer) to perform remunerated work for the employer, other than where—

the work is ancillary to—

the supply of goods by the person performing the work;

or

the use of goods that are the property of the person performing the work; or

the conveyance of goods by means of a vehicle provided by a person other than the employer; or

the contract, arrangement or understanding is of a class excluded from this definition by the regulations;

fee includes any remuneration, commission or other consideration;

inspector means an inspector appointed under the

Industrial Relations Act (S.A.) 1972;

licence means a licence under this

Act;

manager means a person nominated under this Act to be the manager of a business carried on by an employment agent;

registered premises means premises under section 16;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013;

worker means a natural person by whom work is performed under an employment contract.

NoteFor definition of divisional penalties (and divisional expiation fees) see Appendix.

The Minister may, by notice in the Gazette, confer exemptions from specified provisions of this Act—

on specified persons or persons of a specified class;

or

in relation to specified premises or premises of a specified class.

An exemption under subsection (1) may be granted by the Minister on such conditions as the Minister thinks fit.

The Minister may, at any time, by further notice in the

Gazette—

vary or revoke an exemption under subsection (1);

vary or revoke a condition under subsection (2).

A person who contravenes or fails to comply with a condition of an exemption is guilty of an offence. Maximum penalty: Penalty: Division 5 fine.

The provisions of this Act are in addition to and do not derogate from the provisions of any other Act.

Except as expressly provided, this Act will not be taken to limit or derogate from any civil remedy at law or in equity.

A person must not—

carry on business as an employment agent; or

hold himself or herself out as an employment agent, unless that person holds a licence under this Division.

Maximum penalty: Penalty: Division 5 fine.

An application for a licence must—

be made to the Director; and

be in writing in a form approved by the Minister; and

be accompanied by at least two character references—

which are supplied by persons who are not disqualified under the regulations; and

which comply with the requirements prescribed by the regulations;

and

be accompanied by the prescribed fee.

An applicant for a licence must furnish the Director with such further information (verified, if the Director so requires, by statutory declaration) as the Director may require.

Where an applicant is a body corporate, the applicant must furnish the Director with the name of a natural person who is a resident of the State and is to act as the manager of the business that is to be conducted in pursuance of the licence, and with such other information relating to that person as the regulations may require.

An applicant for a licence must cause the application to be advertised in the prescribed manner.

Any person may, within 10 days from the date on which an application is advertised pursuant to subsection (4), lodge with the Director a written objection to the application setting out the grounds of objection (which grounds must be relevant to the matters set out in subsection (11)).

The Director may, on the application of an interested person, in his or her absolute discretion and subject to such conditions as the Director thinks fit, extend the period for lodging objections.

Where—

an objection is lodged under subsection (5); or

the Director does not propose to grant an application on the basis of documentary material alone, the Director will conduct a hearing of the application after giving the applicant and any objector at least seven days notice of the date of the hearing.

The regulations may specify the time within which the Director should decide an application for a licence (subject to the qualification that that time will be extended by such time as the applicant may take to furnish any information under subsection (2) and by such time (if any) as may be allowed on an extension of the period referred to in subsection (6)).

If the Director does not decide an application within the prescribed time, the applicant may, by notice in writing served on the

Director, require the Director to determine the application within a period (being a period of not less than one month) specified by the applicant in the notice.

The Director is taken to have refused an application that is not decided within the period specified under subsection (9).

The Director must, subject to this Act, grant a licence to an applicant if satisfied—

that—

in the case of an applicant who is a natural person—

the applicant is a fit and proper person to hold a licence;

and

the applicant, or a person employed by the applicant to act as the manager of the business that is to be conducted in pursuance of the licence, has sufficient knowledge and experience for the purpose of properly operating or managing the business of an employment agent;

in the case of an applicant which is a body corporate—

every person who is, in the opinion of the Director, in a position to control or influence substantially the affairs of the body corporate is a fit and proper person to exercise such control or influence in respect of a body corporate that is the holder of a licence; and

the person nominated by the applicant to act as the manager of the business that is to be conducted in pursuance of the licence has sufficient knowledge and experience for the purpose of properly managing the business of an employment agent; and

that the applicant has made suitable arrangements to fulfil the obligations that may arise under this Act.

Where the Director grants a licence, the licence does not come into force until the prescribed licence fee is paid.

Where the Director refuses an application for a licence, the

Director must notify the applicant in writing of—

the refusal; and

the reasons for the refusal; and

any review rights that the applicant may have under this

Act.

Subject to this Act, a licence remains in force for such period (not exceeding two years) as is stated in the licence.

An application for the renewal of a licence must—

be made to the Director; and

be in writing in a form approved by the Minister; and

be accompanied by the prescribed fee.

An application for renewal must be made not less than the prescribed number of days before the date of expiry of the licence.

The Director may, in the Director's discretion, determine a late application for renewal provided that the applicant pays the prescribed late application fee.

The Director must, by notice in writing served on the applicant, give a decision on an application for the renewal of a licence before the date of expiry of the licence and, in the case of a decision refusing an application, state in the notice—

the reasons for the refusal; and

any review rights that the applicant may have under this

Act.

The Director may refuse to renew a licence on any ground on which a licence may be cancelled (see section 13).

A licence is subject to—

any condition prescribed by the regulations; and

any condition imposed by the Director.

The Director may impose licence conditions with respect to such matters as are contemplated by this Act or as the Director considers necessary or expedient for the purposes of this Act.

Conditions of a licence imposed by the Director—

—

if imposed at the time of grant or renewal of the licence—must be included in the licence itself; or

if imposed during the currency of the licence—must be imposed by notice in writing served on the holder of the licence;

and

may be varied or revoked at any time by notice in writing served on the holder of the licence.

The holder of a licence who contravenes, or fails to comply with, a condition to the licence is guilty of an offence. Maximum penalty: Penalty: Division 6 fine.

Where—

the holder of a licence is not directly involved in the management of the relevant business; or

the holder of a licence is a body corporate, the business conducted in pursuance of the licence must be managed under the personal supervision of a natural person who is a resident of the State and is approved by the Director in accordance with this

Act.

If a business is not managed as required by subsection (1) for a period exceeding

14 days, or such longer period as may be allowed by the Director, the holder of the licence is guilty of an offence. Maximum penalty: Penalty: Division 6 fine.

An application may be made to the Director for the transfer of a licence.

An application for the transfer of a licence must—

be in such manner and form as is determined by the Minister for the purposes of this section; and

be accompanied by the prescribed fee.

An applicant must furnish the Director with such further information (verified, if the Director so requires, by statutory declaration) as the Director may require.

The Director must, on due application under this section and payment of the prescribed fee, transfer the licence to the proposed transferee if the Director is satisfied that the proposed transferee would be a suitable person to be granted a licence under this Division.

The holder of a licence may, at any time, surrender the licence, and the licence then ceases to be of force or effect.

The Director may cancel a licence if satisfied, on reasonable grounds—

that the licence has been obtained improperly; or

that the holder of the licence has contravened, or failed to comply with, a condition of the licence; or

that the holder of the licence has contravened, or failed to comply with, a provision of this Act; or

that the holder of the licence is no longer a fit and proper person to hold a licence or, in the case of a body corporate, that a person who has gained or is in a position to control or influence substantially the affairs of the body corporate is not or has ceased to be a fit and proper person to exercise such control or influence in respect of a body corporate that is the holder of a licence.

Before the Director acts under this section, the Director must—

notify the holder of the licence in writing of the proposed cancellation of the licence; and

allow the holder of the licence at least 28 days within which to make submissions in relation to that proposed action.