Following the passage of the Labour Hire Licensing Act 2018 (Vic) earlier this year (see related article), consultation has now commenced in relation to the exposure draft regulations under the Act.

The draft regulations relate to the scope of the scheme and its operational requirements.

Importantly, the draft regulations do not contain a commencement date. The Victorian Government has indicated the commencement date will be the day the key provisions of the Act come into operation (i.e. those containing licensing obligations), which is anticipated to be around early to mid-2019.

Scope

During the initial consultation period, AREEA highlighted the need to ensure regulation in this space did not encroach into arrangements not traditionally thought of as labour hire.

The draft regulations provide that the following individuals are not workers, and are therefore excluded from the scheme:

• Secondees, defined as a worker provided to do work for another person on a temporary basis and:
  • is engaged by the provider on a regular and systematic basis, and
  • has a reasonable expectation that the employment with the provider will continue, and
  • primarily performs work for the provider, other than as a worker supplied to another person to do work.
• Where a worker performs work for 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 workers to other persons that are not part of the entity or group).
• Persons from one or two person businesses, i.e. where the provider is a body corporate with no more than two directors and the person provided is a director of the body corporate.
• Certain public sector employees, students and persons undertaking work or services under a vocational placement.

A notably omission to the Victorian exclusions is that of a high income exemption. While Queensland has set a high income exemption for those earning over $142,000 and not covered by an industrial instrument, no such exemption exists in the draft Victorian regulations.

The draft regulations also include provisions that ensure individuals performing certain types of activities in the industries of commercial cleaning, horticulture, meat manufacturing and processing are captured by the scheme. These are the industries which have been found by recent inquiries to be comparatively less compliant with workplace and other laws.

The legislation in its current form is estimated to apply to around 1,300 businesses across Victoria.

Operational matters

The draft regulations also deals with operational matters, such as application and renewal requirements, reporting requirements, infringement offences and prescribed penalties, mutual recognition of other schemes (i.e. Queensland and South Australia), and fees.

Application fees are proposed to range from $1,560 to $7,687, depending on the annual turnover of the business. This is higher than the fees for both the South Australian and the Queensland schemes. An annual licence fee of between $1,084 and $5,317 (increased annually) is also proposed.

Consultation

The Victorian Government has invited interested stakeholders to provide detailed feedback on any and all aspects of the exposure draft Regulations, and to provide responses to the list of questions which accompany the draft Regulations.

The consultation period is open until Wednesday, 5 September 2018.

AREEA members wishing to provide their views in relation to the exposure draft regulations should contact [email protected] or visit the Victorian Government’s consultation page for further information.

Finally, AREEA members should be aware that the Australian Capital Territory (ACT) Chief Minister Andrew Barr announced in a speech on Saturday that his government would introduce labour hire licensing laws, using schemes in Queensland, Victoria and South Australia as guidelines.