Can I see your licence please?

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On 7 September 2017, the parliament of Queensland passed the Queensland Labour Hire Licensing Bill 2017 (the Bill), which will require any person who provides labour hire services in Queensland to obtain a licence, or face significant penalties.

The Bill received royal assent on 13 September 2017. The date when the Bill will come into force has not yet been announced, however it is expected, at this stage, that this will be in early 2018.

A person or company which, in the course of carrying on a business, provides workers to carry out work in Queensland, should be aware now whether they will fall within the scope of the Bill, and begin to plan accordingly.

Who needs to be licensed?

The new Bill has consequences not just for traditional labour hire companies, but applies wherever a person or company, called the ‘provider’, in the course of carrying on a business, provides ‘workers’ to another person or company, called the ‘receiving entity’, to do work in Queensland.

An example would be an arrangement where there is a ‘trading entity’ working on construction projects in Queensland, which utilises workers from a related ‘payroll entity’ as necessary to carry out the work. The payroll entity employs and pays the workers, and then provides them to the trading entity.

In this arrangement, the payroll entity would be treated as the provider, and would need to obtain a licence if the workers were to perform any work in Queensland.

This is the case even if the payroll entity is incorporated in a different State, or does not trade in Queensland.

The Bill applies broadly and can even extend to a variety of circumstances, including where:

  1. the worker is not an employee of the provider;
  2. the worker does not have a contract with the provider and/or with the receiving entity;
  3. the worker is supplied by the provider indirectly through an agent or other intermediary; or
  4. the provider, the receiving entity or some other person or company has no control over the work done by the worker.

Are there any exceptions?

There are currently only two narrow exceptions to the requirement to be licensed:

  1. where the provider is a ‘private employment agent’, meaning an agent representing or providing career advice to a ‘model’ or ‘performer’; and
  2. where the provider is a contractor entering into a contract to carry out construction work within the meaning of section 10 of the Building and Construction Industry Payments Act 2004, and they engage subcontractors to assist them to carry out the work.

Penalties for non-compliance

Financial penalties can be imposed on any person or company who enters into an arrangement to provide labour without a licence or to receive workers from an unlicensed provider.

In the example above, both the payroll entity and the trading entity could be fined if the payroll entity hired out workers to the trading entity without first obtaining a licence.

The maximum financial penalties at the date of this article are:

  1. for individuals: $130,439.10; and
  2. for companies: $378,450.00.

An individual can also be sentenced to a maximum 3 years imprisonment.

It is not clear at this stage whether the maximum penalty will apply to each individual breach of the Bill, or if the maximum penalty is to be applied once to conduct as a whole.

Transition period

Labour hire providers will have 60 days from the date that the Bill enters into force to apply for a licence.

If you are unsure of whether the Bill will apply to you, or what legal obligations the Bill will impose on you, we recommend that you seek legal advice to ensure that your business is compliant.

At Bryks Lawyers we have extensive experience in dealing with Queensland’s various licensing regimes, particularly in building and construction, and in advising clients as to how they can achieve compliance for their business.  Start the conversation today!

Dorota Bryks, Principal Lawyer +61 2 9098 8088 dbryks@bryks.com.au

Ash Rihak, Lawyer, +61 2 9098 8080 arihak@bryks.com.au

This information is for information purposes only and is not legal advice. You should obtain advice that is specific to your circumstance and not rely on this publication as legal advice. Please contact us if you wish for us to advise you on any issue you may have arising from this publication.

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