1Objectives

The objectives of these Regulations are—

(a)

to prescribe persons who are not workers for the purposes of the Act; and

(b)

to prescribe the circumstances in which an individual is taken to perform work as part of a business or undertaking; and

(c)

to prescribe the circumstances in which a business or undertaking is taken to be a business or undertaking of a host; and

(d)

to prescribe requirements for an application and renewal of a labour hire licence; and

(e)

to prescribe the application, renewal and annual fees for a labour hire licence; and

(f)

to prescribe conditions of a labour hire licence; and

(g)

to prescribe requirements for a holder of a labour hire licence; and

(h)

to prescribe the form of a notice to comply and an embargo notice; and

(i)

to prescribe infringement offences and infringement penalties for those offences; and

(j)

to prescribe laws and schemes which may be relied upon by the Authority; and

(k)

to provide for other matters.

2Authorising provision

These Regulations are made under section 114 of the Labour Hire Licensing Act 2018.

3Definitions

In these Regulations—

annual turnover is the total ordinary income that is derived in the course of running a business;

secondee means a worker of a provider whom the provider provides to another person to do work on a temporary basis and—

(a)

is engaged as an employee by the provider on a regular and systematic basis; and

(b)

has a reasonable expectation that the employment with the provider will continue; and

(c)

primarily performs work for the provider, other than as a worker supplied to another person to do work for that other person;

Examples

1 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.

2A consultant employed by a consultancy business is supplied to a business to conduct a review for the other business.

3 A farmer who assigns a worker (the secondee) to work on a neighbouring farm to fulfil an immediate need at the neighbouring farm which may be fully or partly on a goodwill basis.

the Act means the Labour Hire Licensing Act 2018;

tier 1 business, in relation to an application for a licence or the holder of a licence, means—

(a)

a business that for the financial year immediately preceding the day on which the application is made had an annual turnover of no more than $2 000 000; or

(b)

a business that did not operate in the financial year immediately preceding the day on which the application for a licence is made but the business is projected to have an annual turnover in the financial year in which the application is made and in the next financial year of no more than $2 000 000;

tier 2 business, in relation to an application for a licence or the holder of a licence, means—

(a)

a business that for the financial year immediately preceding the day on which the application is made had an annual turnover of between $2 000 001 and $10 000 000; or

(b)

tier 3 business, in relation to an application for a licence or the holder of a licence, means—

(a)

a business that for the financial year immediately preceding the day on which the application is made had an annual turnover of more than $10 000 000; or

(b)

Part 2—Labour hire services

4When an individual is not a worker

(1)

For the purposes of section 11(a) of the Act, the following classes of individuals are prescribed—

(a)

classes of secondees, other than where the provider is predominantly in the business of providing the services of workers to other persons;

(b)

persons whom 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;

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 one of the companies and are supplied to work for one 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.

(c)

a person whom the provider provides to another person to do work if the provider is a body corporate with no more than 2 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;

(d)

persons employed by a public sector body within the meaning of the Public Administration Act 2004 who are seconded, transferred, provided or made available to do work for another person, however described, pursuant to an Act;

(e)

students to whom Division 1 or 2 of Part 5.4 of the Education and Training Reform Act 2006 applies;

(f)

persons undertaking work or services under a vocational placement within the meaning of the Fair Work Act 2009 of the Commonwealth.

(2)

Subregulation (1) does not apply to a class of persons declared by the Minister by notice in writing to be a worker.

5Circumstances in which an individual is taken to perform work in and as part of a business or undertaking

(1)

For the purposes of section 12(a) of the Act, circumstances in which an individual is taken to perform work in and as part of a business or undertaking include the following circumstances—

(a)

an individual is performing activities as a cleaner in a commercial premises;

(b)

an individual is performing any one or more of the following horticulture activities in relation to fruit or vegetables, with the exercise of minimal judgment and under direct supervision, at a place where a business or undertaking is being conducted—

(i)

picking;

(ii)

sorting;

(iii)

labelling;

(iv)

packing;

(v)

grading;

(vi)

planting;

(vii)

thinning;

(viii)

pruning;

(ix)

spraying;

(x)

repetitive work on automatic, semi‑automatic or single-purpose machines or equipment;

(xi)

performing basic recording functions related to work described in subparagraphs (i) to (x) above;

(c)

an individual is performing any one or more of the following activities at a meat manufacturing establishment or meat processing establishment—

(i)

killing;

(ii)

dressing;

(iii)

boning;

(iv)

slicing;

(v)

preparation;

(vi)

packing;

(vii)

processing;

(d)

an individual is performing any one or more of the following activities at a poultry processing establishment—

(i)

killing;

(ii)

processing;

(iii)

preparation;

(iv)

packing.

(2)

Subregulation (1) applies whether or not the individual is also performing other duties or activities in connection with the business, undertaking or establishment.

(3)

For the purposes of this regulation—

meat manufacturing establishment means an establishment wholly or predominantly concerned with the manufacturing or processing of fresh meat into any form of edible manufactured or processed meat, meat products, smallgoods, ham, bacon, or similar products in which meat is a substantial ingredient, including any related activities such as retail or wholesale sales, and killing, dressing, boning, slicing, preparation and packing of fresh meat, where such activities are conducted at any place as an ancillary part of the manufacturing or processing business;

meat processing establishment means an establishment wholly or predominantly concerned with killing, dressing, boning, slicing, preparation or packing fresh meat, and includes any related activities conducted at any place as an ancillary part of such a business, such as manufacturing or processing meat, the treatment and processing of skins or hides, rendering, processing of by-product, and retail or wholesale sales;

poultry processing establishment means a place wholly or predominantly concerned with the killing, processing, preparation or packing of uncooked poultry, poultry products or poultry by-products, which takes place in connection with a business or undertaking.

6Circumstances in which a business or undertaking is taken to be a business or undertaking of a host

For the purposes of section 12(b) of the Act, a business or undertaking is taken to be a business or undertaking of a host in circumstances where regulation 5 applies to the individual working there.

Part 3—Licensing and Register

Division 1—Application for labour hire licence

7Prescribed information to be included in application for labour hire licence

For the purposes of section 17(2)(h) of the Act, the prescribed information is as follows—

(a)

if the applicant is a natural person, copies of proof of identity documents as required by the Authority and specified in the form of application for a licence;

(b)

if the applicant is a body corporate—

(i)

a copy of the certificate of incorporation; and

(ii)

proof of identity documents referred to in paragraph (a) for each director;

(c)

if the applicant is an unincorporated association—

(i)

a copy of the certificate of registration under the Corporations Act (if applicable); and

(ii)

a copy of the rules under which the association operates; and

(iii)

proof of identity documents referred to in paragraph (a) for each member of the association; and

(iv)

if the applicant is an agent or trustee of the unincorporated association, proof of the agency or trust;

(d)

if the applicant is a partnership, the proof of identity documents referred to in paragraph (a) in respect of the following persons, as applicable to that partnership—

(i)

each member of the Board; or

(ii)

each member of the executive committee; or

(iii)

each senior partner; or

(iv)

if subparagraphs (i) to (iii) do not apply to the partnership, each partner;

(e)

if the relevant person is intending to procure or provide accommodation, for the purposes of section 19(4)(d) of the Act, the location of that accommodation.

8Prescribed fee for application for a labour hire licence

For the purposes of sections 17(6) and 24(1)(d) of the Act, the prescribed fee is as follows—

(a)

for a tier 1 business—108 fee units;

(b)

for a tier 2 business—288 fee units;

(c)

for a tier 3 business—532 fee units.

9Prescribed circumstances of cancellation of licence not preventing the making of a valid application

For the purposes of section 18(1)(a)(ii) and (b)(ii) of the Act, the prescribed circumstances are that the holder of the cancelled or refused licence (as the case may be) was a corporation and, because of a genuine sale, the following requirements apply in respect of the corporation—

(a)

no person who at the time of the cancellation or refusal was a shareholder of, or held a beneficial interest in, the corporation is a shareholder of, or holds a beneficial interest in, the corporation, at the time of the application for a licence;

(b)

no person who at the time of the cancellation or refusal was in a position to control or influence the affairs of the corporation is, at the time of the application for a licence, in a position to control or influence the affairs of the corporation.

10Prescribed requirements for registration with Australian Taxation Office and WorkSafe Victoria

(1)

For the purposes of sections 19(1)(a) and 34(1)(a) of the Act, the following requirements for registration with the Australian Taxation Office are prescribed—

(a)

registration for goods and services tax, if required;

(b)

registration for pay as you go withholding tax, if required;

(c)

registration for fringe benefits tax, if required.

(2)

For the purposes of sections 19(1)(b) and 34(1)(b) of the Act, the requirements for registration with WorkSafe Victoria are that applicants have a certificate of currency issued by WorkSafe Victoria verifying that the employer is currently registered for WorkCover insurance with WorkSafe Victoria.

11Prescribed information for application where applicant is conducting a business that provides labour hire services

For the purposes of sections 19(2)(a) and 34(1)(c) of the Act, the prescribed information is—

(a)

the total number of employees; and

(b)

the total number of independent contractors; and

(c)

the total number of workers that are or had been employed or engaged as both an employee and an independent contractor.

Labour Hire Licensing Regulations 2018

About this Act

Bill & explanatory material

This Act’s bill