Labour Hire Licensing Act 2017

This Act may be cited as the Labour Hire Licensing

Act 2017.

The objects of this Act are to—

protect workers from exploitation by providers of labour hire services; and

protect licensed labour hire businesses from predatory business practices that may be engaged in by persons unsuitable to be licensed to provide labour hire services; and

promote the integrity of the labour hire industry.

The objects are to be primarily achieved by establishing a licensing scheme to regulate the provision of labour hire services.

This Act is intended to have extraterritorial application to the extent that the legislative powers of the State permit.

Without limiting subsection (1), this Act extends to conduct either in or outside the State that is in connection with labour hire services supplied in the State.

This Act does not apply in respect of a registered group training organisation to the extent that the organisation supplies apprentices or trainees to do work for other persons.

In this section—

registered group training organisation means a group training organisation registered in South Australia on the Group Training

Organisation National Register maintained by the

Commonwealth.

In this Act, unless the contrary intention appears—

annual wages, for an individual undertaking work, is the amount of remuneration, taking into account the individual's pay rate for the work (such as an hourly or weekly rate), that the individual would be entitled to if the individual undertook the work on a full-time basis for a period of 12 months;

authorised officer means a person appointed under section 34 as an authorised officer;

avoidance arrangement—see section 13;

Commissioner means the Commissioner for Consumer

Affairs;

corresponding law means a law, or part of a law, of a State or a Territory of the Commonwealth—

that corresponds to this Act or a part of this Act;

or

that is declared by the regulations to be a corresponding law for the purposes of this Act;

criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;

director, of a body corporate, has the same meaning as in the Corporations

Act 2001 of the Commonwealth;

District Court means the Administrative and

Disciplinary Division of the District Court;

host—see section 7;

labour hire services—see section 7;

labour hire worker means a labour hire worker under section 8;

licence means a licence under

Part 4;

premises includes the following:

a building or other structure;

a part of a building or other structure;

a caravan or vehicle;

a cave or tent;

a workplace;

a place where workers are accommodated in connection with their supply;

register—see section 43(1);

relevant law means—

this Act; or

the Work Health and Safety

Act 2012; or

the Fair Work

Act 1994; or

the Employment Agents

Registration Act 1993; or

the Return to Work

Act 2014; or

the South Australian Skills

Act 2008; or

the Payroll Tax

Act 2009; or

the Taxation Administration

Act 1996; or

the Fair Work

Act 2009 of the Commonwealth; or

a corresponding law; or

a provision of any other Act or law of the State, the Commonwealth or another State imposing an obligation on a person in relation to workers, including, for example, obligations about—

keeping records about workers; and

the payment of tax or superannuation for workers; and

ensuring the health and safety of workers; or

a provision of an Act or law about the standards of buildings and structures, to the extent it relates to a building or structure used to provide accommodation to a worker; or

an Act or provision of an Act prescribed by the regulations for the purposes of this definition;

remuneration has the same meaning as in the

Fair Work

Act 1994;

responsible person—see section 26;

senior manager, of a body corporate, means a person (other than a director or secretary of the body corporate) who—

makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the body corporate; or

has the capacity to affect significantly the corporation's financial standing;

substitute responsible person means a person appointed as a substitute responsible person under section 29 or section 30.

Subject to subsection (2), a person provides labour hire services if—

in the course of conducting a business the person supplies, to another person (the host), an individual to undertake work;

and

the individual is a labour hire worker for the person.

A person does not provide labour hire services under subsection (1) in the following circumstances:

where an individual is supplied to a host to undertake work that is not undertaken as part of a business or commercial undertaking of the host;

where an individual is supplied to a host to undertake work by a body corporate that has not more than 2 directors and the individual is a director or senior manager of the body corporate and is the only individual who is supplied by the body corporate to undertake work for another person;

where an individual is supplied to a host to undertake work by a business carried on by a partnership comprised of no more than 2 persons and of which the individual is a partner;

where an individual is supplied to a host to undertake work by a business carried on by the individual operating as a sole trader;

where an individual is supplied to a host to undertake work for which the annual wages for the individual are equal to or more than the amount of the high income threshold within the meaning of the

Fair Work Act 2009 of the Commonwealth and the individual's employment is not subject to or covered by a modern award or enterprise agreement under that Act;

any other circumstances prescribed by the regulations.

For the purposes of subsection (1), a person may provide labour hire services to a host regardless of whether—

a worker supplied by the person is supplied to the host directly or indirectly through 1 or more agents or intermediaries; or

the work performed is under the control of the person or the host;

or

an individual supplied by the person to undertake work is an employee of the person; or

a contract is entered into between the worker and the person, or between the person and the host.

Examples1 A has a labour hire business and has an arrangement with B under which A may supply B to other persons to undertake work for which B will be paid by A. In the course of conducting the business, A agrees with C to supply an individual to undertake meat processing work for C at C's meat processing business. A sends

B to C to undertake the work for which A will pay B. A provides labour hire services in supplying B to C.2 A runs a horticultural processing business and employs B to undertake work in the business. In the course of conducting the business,

A enters into a contract with C to pick the grapes at

C's commercial winery. As part of employment in A's business,

B attends at C's winery and picks the grapes. A does not provide labour hire services to C because A is not supplying an individual to undertake work (see section 9) and B is not a labour hire worker for A (see section 8). At a neighbouring winery, D wants to pick their grapes but does not want to contract out the job, preferring to undertake the work themselves. Needing a worker and having seen A's business working at

C's winery, D asks if A would be able to send an individual to work for D at D's winery for 2 days.

A asks B if B would agree to be sent to undertake work for another person but be paid by A, to which B agrees.

A sends B to work for D at D's winery for the

2 days but B also continues to work 4 regular shifts per week in A's horticultural services business. A does not provide labour hire services to D because, despite the new arrangement between

A and B and the supply of B to undertake work for D, B is an in‑house employee of A and therefore not a labour hire worker for A (see section 8).

Subject to subsection (2), an individual is a labour hire worker for another person if the individual enters into an arrangement with the other person under which—

the other person may supply, to a third person, the individual to undertake work; and

the other person is obliged to pay the individual, in whole or

part, for the work (whether directly or indirectly through 1 or more intermediaries).

An individual is not a labour hire worker for another person if—

the individual is an in‑house employee of the other person and is only supplied to a third person to do work on a temporary basis (which may be on 1 or more occasions); or

the individual is an employee of the other person, where the other person is 1 of a group of entities that carry on business as a group, and the employee does work for another entity in that group; or

the individual is a public sector employee within the meaning of the Public Sector

Act 2009 who is seconded, transferred, provided or made available to do work for another person or entity pursuant to an Act; or

the individual is, or is of a class of person, prescribed by the regulations.

For the purposes of subsection (2)(a), an individual is an

in‑house employee of another person if—

the individual is engaged as an employee by the other person on a regular and systematic basis; and

in the circumstances of the case, it is reasonable to expect that the employment will continue; and

the individual primarily performs work for the other person other than as a worker supplied to a third person to do work for the third person.

For the purposes of this Act, an individual is not supplied by a person (the first person) to another person (the

second person) to undertake work where—

the first person and second person have entered into a contract for the performance of the work by the first person; and

the individual undertakes the work for and on behalf of the first person as an employee, agent or independent contractor of the first person.

For the purposes of this Act, the supply of a labour hire worker to do work for a person commences when the labour hire worker first starts to do work for the person in relation to the supply.

Without limiting the matters to which the Commissioner may have regard in determining whether a person is a fit and proper person to be the holder of a licence, a fit and proper person to be a responsible person or a fit and proper person to be the director of a body corporate that is the holder of a licence, the Commissioner may have regard to the following matters:

the person's character including, for example, the person's honesty, integrity and professionalism;

whether the person has previously held a licence under this Act or a corresponding law and whether such a licence lapsed or was suspended or cancelled;

demonstrated compliance by the person with relevant laws;

information provided to the Commissioner by the Commissioner of

Police under section 32;

in the case of a natural person—

whether the person has sufficient business knowledge, experience and skills for the purpose of properly carrying on business under the licence;

and

whether the person has previously been the director of a body corporate that has previously held a licence under this Act or a corresponding law and whether such a licence was suspended or cancelled;

in the case of a body corporate—

whether the directors of the body corporate together have sufficient business knowledge and experience for the purpose of properly directing the business carried on under the licence; and

whether the body corporate is being wound up or is under official management or in receivership.

A person is not a fit and proper person to be the holder of a licence if—

the person has been found guilty or convicted of an offence, or an offence of a class, prescribed by the regulations; or

in the case of a natural person, the person—

is a member of, or a participant in, a prescribed organisation;

or

is a close associate of a person who is a member of a prescribed organisation or is subject to a control order under the

Serious and Organised Crime (Control)

Act 2008; or

is an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

has, during the period of 5 years preceding the application for the licence, been a director of a body corporate that has been wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of 6 months preceding the commencement of the winding up; or

in the case of a body corporate—

the body corporate is a body corporate, or is a body corporate of a class, prescribed by the regulations; or

the body corporate is a prescribed organisation.

A person is not a fit and proper person to be the director of a body corporate that is the holder of a licence if the person—

has been found guilty or convicted of an offence, or an offence of a class, prescribed by the regulations; or

is a member of, or a participant in, a prescribed organisation;

or

is a close associate of a person who is a member of a prescribed organisation or is subject to a control order under the

Serious and Organised Crime (Control)

Act 2008; or

is an insolvent under administration within the meaning of the

Corporations

Act 2001 of the Commonwealth; or

has, during the period of 5 years preceding the application for the licence, been a director of a body corporate that has been wound up for the benefit of creditors—

when the body was being so wound up; or

within the period of 6 months preceding the commencement of the winding up.

A person is not a fit and proper person to be a responsible person if the person—

has been found guilty or convicted of an offence, or an offence of a class, prescribed by the regulations; or

is a member of, or a participant in, a prescribed organisation;

or

is a close associate of a person who is a member of a prescribed organisation or is subject to a control order under the

Serious and Organised Crime (Control)

Act 2008.

In this section—

close associate—see subsection (6);

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

member, of an organisation, includes an associate member or a prospective member, however described;

participant, in a prescribed organisation, means—

if the organisation is a body corporate—a director or officer of the body corporate; or

a person who (whether by words or conduct, or in any other way) asserts, declares or advertises their membership of, or association with, the organisation; or

a person who (whether by words or conduct, or in any other way) seeks to be a member of, or to be associated with, the organisation;

or

a person who attends more than 1 meeting or gathering of persons who participate in the affairs of the organisation in any way; or

a person who takes part in the affairs of the organisation in any other way, but does not include a lawyer acting in a professional capacity;

prescribed organisation—the following are prescribed organisations:

a criminal organisation within the meaning of Division 1 or

Division 2 of Part 3B of the Criminal Law Consolidation

Act 1935;

any other organisation prescribed by the regulations for the purposes of this definition.

For the purposes of this section, 2 persons are close associates if—

1 is a spouse, domestic partner, parent, brother, sister or child of the other; or

they are members of the same household; or

they are in partnership; or

they are related bodies corporate; or

1 has a right to participate (otherwise than as a shareholder in a body corporate) in income or profits derived from a business conducted by the other; or

1 is in a position to exercise control or significant influence over the conduct of the other.

For the purposes of this section, a reference to a parent, brother, sister or child of a person will be taken to include a reference to a step‑parent, step‑brother, step‑sister or step‑child (as the case requires) of the person.

A person must not provide labour hire services except as authorised by a licence under this Act. Maximum penalty: Maximum penalty:

in the case of a natural person—$140 000;

in the case of a body corporate—$400 000.

A person must not advertise, or in any way hold out, that the person provides, is entitled to provide or is willing to provide labour hire services unless authorised to provide labour hire services by a licence under this Act. Maximum penalty: Maximum penalty: $30 000.

A person must not, without a reasonable excuse, enter into an arrangement for the provision of labour hire services unless the person providing the labour hire services is authorised to provide labour hire services by a licence under this Act. Maximum penalty: Maximum penalty:

in the case of a natural person—$140 000;

in the case of a body corporate—$400 000.

Without limitation, subsection (1) applies to a person irrespective of whether the person is—

the person to whom the labour hire services are to be provided under the arrangement; or

entering into the arrangement as an agent or intermediary of the person providing the labour hire services under the arrangement;

or

the person providing the labour hire services under the arrangement.

It is a reasonable excuse for the person not to comply if, when the person entered into the arrangement, the person providing the labour hire services was shown on the register as the holder of a licence.

A person must not enter into an arrangement with another person (an

avoidance arrangement) for the supply of an individual to undertake work if the person knows, or ought reasonably to know, the arrangement is designed to circumvent or avoid an obligation imposed by this

Act, unless the person has a reasonable excuse.

Maximum penalty: Maximum penalty:

in the case of a natural person—$140 000;

in the case of a body corporate—$400 000.