Labour Hire Licence - Queensland

From 16 April 2018 all labour hire providers operating in Queensland will need to apply for a licence.

Who needs a licence?

The Labour Hire Licencing Act 2017 (the Act) establishes a mandatory licensing scheme for all labour hire providers operating in Queensland. Users of labour hire services can only use a licensed labour hire provider.

Labour hire providers supply workers to work for another business or person (the labour hire user), the workers are paid by the labour hire provider for the work they do.

If you supply a worker or workers to work for another business or person, you should consider whether you are operating as a labour hire provider. If you are, you need to be licensed.

The following information will help you assess if you need to apply for a licence.

What is not a labour hire service?

Recruitment and permanent placement services, volunteering arrangements, workplace consultants and genuine subcontracting arrangements (e.g. those often used in the building and construction industry), are not considered to be labour hire providers and do not fall within the labour hire licensing scheme.

In addition, businesses that only supply workers described below to not required a licence. These workers are not considered to be labour hire workers for the purposes of the Act:

• a high income employee who earns more than $142,000 per annum and is not covered by an industrial award or agreement
• an employee who is employed by an "employment/service entity" within a business group and works only for an within that single recognisable business
• an "in-house employee" who temporarily works for another person or business. an "in-house employee" is defined in the Labour Hire Licensing Regulation 2018

Examples of the supply of an "in-house employee" to do work on a temporary basis:

• 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
• a consultant employed by a consultancy business is supplied to a business to conduct a review for the other business
• a person employed by a community care organisation on an ongoing basis and who usually works for the organisation in a variety of locations, including in another person's home.

When is a licence required?

The Act sets our what is meant by labour hire provider, labour hire services and labour hire worker.
The Act provides examples of labour hire providers:

• a contractor who supplies workers to a farmer or fruit grower to pick produce for the farmer or grower
• a group training organisation or principal employer organisation under the Further education and Training act 2014 that supplies an apprentice or trainee to an employer
• an employment agency who on-hires temporary administration staff to a business

Examples of labour hire services

Example 1 - Nursing
A hospital contacts a nursing temp agency to provide five extra nurses to work for two weeks. The temp agency supplies the nurses to work in the hospital. The temp agency pays the nurses' wages and invoices the hospital.
Licence required? 
YES - The temp agency is considered to be a labour hire provider in this case.

Example 2 - Information Technology (IT) help desk staff
A business contacts an IT recruitment service looking for extra IT help desk workers to assist its existing help desk workforce while a new IT system is being deployed. The IT recruitment service supplies the business with the additional workers. The IT recruitment service pays those workers and invoices the business.
Licence required?
YES - The IT recruitment agency is considered to be a labour hire provider in this case.

Example 3 - Building and Construction Industry
A building company is developing a block of apartments and subcontracts the electrical work to another business. The electrical subcontractor is responsible for fulfilling the contractual obligations which includes supplying its workers to the site and for the rectification of any defects in the work done.
Licence required?
NO - This appears to be a genuine subcontracting arrangement and is therefore not considered to be labour hire.

Example 4 - Building and Construction Industry
An unlicensed or licensed subcontractor contracts to a licensed trade contractor to provide workers on an hourly basis to perform work for trade contractor's business. The subcontractor does not provide materials, is not responsible for rectifying defects, and is not engaged to meet other contractual obligations. The subcontractor is simply providing labour only services to carry out work as directed by the trade contractor.
Licence required?
YES - The subcontractor providing the workers is considered to be providing labour hire services in this case.

Example 5 - Building and Construction Industry
An unlicensed subcontractor contracts to a licensed contractor or builder on an hourly rate basis to produce an outcome (frame the house, install windows and doors, install a roof, place and finish a concrete slab). The subcontractor does not provide materials but is responsible for rectifying contractual obligations and rectifying defects. The trade contractor or the builder purchases the materials. The arrangement is no different to a typical subcontractor/contractor arrangement except the subcontractor does not provide the materials to do the work.
Licence required?
NO - This appears to be a genuine subcontracting arrangement and is therefore not considered to be labour hire.

Example 6 - Security workers
A hotel requires additional crowd controllers for a Saturday night function. A security company supplies the crowd controllers (who are not otherwise employed by the security provider on a regular basis) and invoices the hotel for the supply of these workers.
Licence required?
YES - The security company is considered to be a labour hire provider in this case.

Example 7 - Community careA community care organisation employs nurses, allied health professionals and counsellors. These workers are employed on a regular and systematic basis with the community care organisation and have an ongoing expectation of employment. Due to the nature of their employers business, they perform the work of their employer in multiple locations including hospitals, aged care facilities and private residences.
Licence required?
NO - The community care organisation is not considered to be a labour hire service in this case.

Example 8 - Employing entity; 1 recognisable business
The Good Doctors medical group operates medical centres (known as "Good Doctors") throughout Queensland. The Good doctors medical group uses an employing/service entity company within its corporate group to employ and pay the Good Doctors workers (doctors, nurses and reception staff). These workers only work for Good Doctors medical centres under one recognisable Good Doctors business umbrella.
Licence required?
NO - The workers employed by the Good Doctors employing/service entity company within the Good Doctors corporate group are not considered to be labour hire workers in this case.

Example 9 - Not main business but sometimes provides labour hire
Tom runs a video production business which provides complete videos production services to clients. This is not a labour hire business. However, some of Tom's clients contact him when they need video production workers and ask if he can arrange staff. Tom knows of suitable workers so supplies them and invoices the client. Tom then pays those workers. The workers supplied are not Tom's employees; he engages them to be supplied as required.
Licence required?
YES - Tom is considered to be providing a labour hire service in this case.

Example 10 - Photocopier technician
A photocopier company sells, leases and maintains photocopying equipment. The business employs his technicians who go out to repair or maintain office equipment that has been sold or is leased out by the company. The technicians are not hired out to those businesses; the technicians work in the conduct of their employer's business, however do their work mostly in other business' premises.
Licence required?
NO - The photocopier technician is not considered to be a labour hire worker and the company is not considered to be a labour hire provider in this case.

Example 11 - Machinery operator
An earth moving company hires out its bobcat and operator. The company is engaged by a homeowner to dig a drain and the company send the bobcat and its operator. The operator is employed on a regular and systematic basis by the company and goes with and operates the bobcat.
Licence required?
NO - The worker is not considered to be a labour hire worker and the earthmoving company is not considered to be providing a labour hire service in this case.

Example 12 - High income employee
An IT specialist works for an IT firm and has an annual wage higher than the Fair Work Act 2009 high income threshold (which is currently $142,000 from 1 July 2017, subject to increases each year and not including superannuation). The IT specialist is not employed under any modern award or certified agreement. The IT specialist is supplied by the IT firm to another business to do IT work.
Licence required?
NO - The IT specialist is a high income worker as defined by the Labour Hire Licensing Regulation 2018 and is not considered to be a labour hire worker. If the IT firm only supplies high income workers they do not require a licence.

Example 13 - Cleaning
A hotel needs additional cleaners to clean their hotel rooms, and contacts a cleaning business to organise the additional cleaners.
Licence required?
YES - The cleaning company is considered to be a labour hire provider in this case.

General labour hire industry information:
Industry specific factsheets providing examples of when a labour hire licence is or is not required are under development and will be available for:

• building and construction
  
• agriculture and horticulture
  
• mining.
  

If you are still unsure whether a labour hire licence is required you may contact us for more information or you may seek your own legal advice