Victorian Labour Hire Licence applications due by 29 October 2019

Victorian labour hire providers have until 29 October 2019 to apply for a licence under the Victorian Labour Hire Licensing Scheme, or significant penalties may apply.

From 30 October 2019, only labour hire providers who are licensed or are awaiting an application decision will be allowed to operate in Victoria.

To obtain a licence, providers will be required to pass a ‘fit and proper person test’ and show compliance with workplace laws, labour hire laws and minimum accommodation standards, as well as report annually on their activities.

The Labour Hire Authority website includes a number of helpful definitions and exclusions to assist with determining whether a business is a ‘provider’ of labour.

From previous experience with labour hire legislation, Master Electricians has found that many members are excluded from coverage because they are providing their services for a task/result on a contract basis.

In instances where our members provide workers as part of shift coverage these have also been excluded because they are classed as a ‘secondee’. This is because they primarily perform work directly for the provider, other than as a worker who is supplied to another person to do work for that other person.

However, where members are providing labour to another business (even a single worker) and that is the primary work of the worker, then you may need a licence.

Being part of a permanent maintenance workforce is not ‘contracting’. Factors they will consider when assessing whether an arrangement is a labour hire service include:

  • the work is performed at the host’s premises
  • the work is subject to the host’s direction
  • the work is supervised or managed by the host or another labour-hire worker supervised or managed by the host
  • the work is not a specialised service
  • the work is a key function of the host’s business or undertaking
  • the work is of a similar nature to work performed or previously performed by the host’s own employees.

The above list is not exhaustive and these and any other factors are not determinative on their own.  Each arrangement needs to be looked as a whole.

Example 1

ABC Pty Ltd (ABC – the provider) supplies electrical workers to Builders Pty Ltd (Builders – the host) who requires some extra staff for a large project that Builders is undertaking. Builders supplies the materials, directs and supervises the work as they hold a contractors licence, The electrical  workers supplied by ABC are doing work that the Builders are responsible to complete and a key function of their business and the workers are working alongside the Builders direct employees doing similar work. No one factor is definitive, but looking at the engagement as a whole, the workers supplied by ABC are considered to be working ‘in and as part of’ the business of the Builders, and as a result this arrangement would be considered to the provision of labour hire services, and would require ABC to have a labour hire licence.

Example 2

ABC Pty Ltd (ABC – the provider) is an electrical contractor to Builders Pty Ltd (Builders – the host) who has engaged ABC to undertake the electrical component of the project. Builders supply the plans however ABC supply the electrical workers and responsible for the quality of the electrical work.  ABC are doing work and the workers are working alongside the Builders direct employees doing related building work for the project. No one factor is definitive, but looking at the engagement as a whole, ABC are not considered to be working ‘in and as part of’ the business of Builders, and as a result this arrangement would NOT be considered to the provision of labour hire services.

If you have any questions on the application of the licencing legislation relevant to your circumstances/arrangements, please contact our Workplace Relations Team here.