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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2017-11-29 Daily Xml
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Bills

Labour Hire Licensing Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 2, page 3, line 7—

Delete 'a day to be fixed by proclamation' and substitute '1 March 2018'

No. 2. New clause, page 4, after line 15—After line 15 insert:

4A—Registered group training organisation exempt from application of Act

(1) This Act does not apply in respect of a registered group training organisation to the extent that the organisation supplies apprentices or trainees to do work for other persons.

(2) In this section—

registered group training organisation means a group training organisation registered in South Australia on the Group Training Organisation National Register maintained by the Commonwealth.

No. 3. Clause 5, page 5, after line 7—After the definition of premises insert 'provider—see section 6(1);'

No. 4. Clause 5, page 5, line 32 [clause 5, definition of substitute responsible person]—

Delete the definition and substitute:

substitute responsible person means a person appointed as a substitute responsible person under section 27 or section 27A;

No. 5. Clause 6, page 5, lines 35 to 36 [clause 6(1)]—Delete subclause (1) and substitute:

(1) A person (a provider) provides labour hire services if, in the course of conducting a business, the person supplies, to another person, a worker to do work in and as part of a business or commercial undertaking of the other person.

Note—

See section 7 for the limited definition of worker.

Note—

The definition of labour hire services is mainly directed at engagement arrangements generally referred to in industry as 'on-hire' but also includes other engagement arrangements that (unless exempted in accordance with this Act) satisfy the requirements of this section because the nature or structure of the engagement or arrangement involves a worker being supplied in circumstances where the provider has a pre-existing agreement with the worker under which the provider may, from time to time and at the provider's discretion, send the worker to work in another person's business or commercial undertaking but be paid by the provider for the work.

Examples—

Guy runs a plumbing business and has an employment contract with Tracey under which Tracey is paid to come to work each day at the plumbing business and be assigned work. Corey runs a grape growing business at which there is a problem with the plumbing. Corey enters into a contract with Guy to diagnose and fix the problem at the business and so Guy sends Tracey to Corey's grape growing business to do the work. Guy does not provide labour hire services in sending Tracey to do work at Corey's business.

Richard runs a manufacturing business for which he requires a production worker to work on the production line assembling components. Amy has a pre-existing arrangement with Steve under which Amy may, from time to time and at Amy's discretion, send Steve to do work for other persons for which Steve will be paid by Amy. Richard enters into a contract with Amy under which Amy will supply Steve to Richard to perform the work in the manufacturing business. Amy provides labour hire services in supplying Steve to do work at and as part of Richard's business.

(1a) The regulations may prescribe circumstances in which a person does not, despite subsection (1), provide labour hire services for the purposes of this Act.

No. 6. Clause 7, page 6, lines 21 to 24 [clause 7(1)]—Delete subclause (1) and substitute:

(1) An individual is a worker for a provider if the individual enters into an arrangement with the provider under which—

(a) the provider may supply, to another person, the individual to do work; and

(b) the provider is obliged to pay the individual, in whole or part, for the work.

No. 7. Clause 9, page 6, line 38 [clause 9(1)(a)]—Delete paragraph (a) and substitute:

(a) the person's character including, for example, the person's honesty, integrity and professionalism;

No. 8. Clause 9, page 7, lines 7 to 9 [clause 9(1)(e)]—Delete paragraph (e) and substitute:

(e) in the case of a natural person—

(i) whether the person has sufficient business knowledge, experience and skills for the purpose of properly carrying on business under the licence; and

(ii) whether the person has previously been the director of a body corporate that has previously held a licence under this Act or a corresponding law and whether such a licence was suspended or cancelled;

No. 9. Clause 10, page 9, line 15 [clause 10(1), penalty provision, (a)]—

Delete '5 years' and substitute '3 years'

No. 10. Clause 11, page 9, line 26 [clause 11(1), penalty provision, (a)]—

Delete '5 years' and substitute '3 years'

No. 11. Clause 12, page 9, line 37 [clause 12, penalty provision, (a)]—

Delete '5 years' and substitute '3 years'

No. 12. Clause 14, page 10, line 31 [clause 14(4)(a)]—After 'cancelled' insert 'under section 21'

No. 13. Clause 15, page 11, after line 20 [clause 15(1)]—After paragraph (a) insert:

(ab) a person nominated to be a responsible person for the purposes of the licence is not a fit and proper person to be a responsible person; or

No. 14. Clause 15, page 11, line 26 [clause 15(2)(b)]—Delete '28' and substitute '14'

No. 15. Clause 16, page 12, line 9 [clause 16(1)]—Delete 'may' and substitute 'must'

No. 16. Clause 16, page 12, line 14 [clause 16(1)(a)(ii)]—Delete '; or' and substitute '; and'

No. 17. New clause, page 13, after line 7—After clause 17 insert:

17A—Prohibition on licence transfer, sale etc.

The holder of a licence must not transfer, sell, dispose of, lend or hire out the licence to another person.

Maximum penalty: $25,000 or imprisonment for 1 year.

No. 18. Clause 24, page 17, lines 2 to 9—Delete the clause and substitute:

24—Requirements for responsible persons

A responsible person, for a licence, must be an individual who—

(a) is responsible for the day-to-day management and operation of the business to which the licence relates; and

(b) is a fit and proper person to be a responsible person; and

(c) satisfies any other requirements prescribed by regulation.

No. 19. Clause 26, page 17, lines 19 to 21 [clause 26(2)]—Delete subclause (2) and substitute:

(2) An application under subsection (1) must be accompanied by—

(a) the information required by the Commissioner to determine the application; and

(b) the prescribed fee.

No. 20. Clause 26, page 17, lines 22 to 23 [clause 26(3)]—Delete subclause (3) and substitute:

(3) The Commissioner may approve the application if—

(a) the Commissioner has complied with the requirements of section 27B; and

(b) the Commissioner is satisfied that the proposed appointee is suitable for appointment as a responsible person.

No. 21. Clause 27, page 17, line 34 [clause 27(2)]—

After 'appointment of a person under subsection (1)' insert '(but in any case within 7 days)'

No. 22. Clause 27, page 17, after line 36—After subclause (2) insert:

(2a) The holder of a licence must, on providing notice to the Commissioner under subsection (2), pay to the Commissioner the prescribed fee.

No. 23. Clause 27, page 17, lines 37 to 38 [clause 27(3)]—Delete subsection (3) and substitute:

(3) The Commissioner may cancel the appointment of a person under subsection (1) if satisfied that—

(a) the person is not a fit and proper person to be a responsible person; or

(b) the licence holder has failed to pay the fee under subsection (2a) in accordance with that subsection.

No. 24. New clauses, page 18, after line 12—After clause 27 insert:

27A—Appointment of substitute responsible person by Commissioner on application

(1) If a responsible person for a licence will be absent from the business to which the licence relates for a period of more than 30 days the Commissioner may, on application by the holder of the licence, appoint another individual as a substitute responsible person in respect of the licence for the period of that absence.

(2) An application under subsection (1) must be accompanied by enough information about the person proposed to be appointed to enable the Commissioner to decide whether the person is suitable for appointment as a substitute responsible person.

(3) The Commissioner may only appoint a person as a substitute responsible person under this section if—

(a) the Commissioner has complied with the requirements of section 27B; and

(b) the Commissioner is satisfied that the person is suitable for appointment as a responsible person.

(4) If the Commissioner approves the application, the Commissioner must update the register to record the change to the licence details.

27B—Objection to appointment of responsible person or substitute responsible person

(1) If the Commissioner receives an application to which this section applies, the Commissioner must cause notice of the application to be published on a website determined by the Commissioner.

(2) A designated entity may, in response to a notice published under subsection (1) in respect of an application and by notice in writing, lodge with the Commissioner an objection to the application on the grounds that the person proposed to be appointed as a responsible person, or as a substitute responsible person, is not a fit and proper person to be a responsible person.

(3) A notice of objection under subsection (2) must—

(a) state reasons for the objection; and

(b) be made within 14 days of notice of the application being published under subsection (1).

(4) If the Commissioner receives a notice of objection under subsection (2) in respect of an application, the Commissioner must—

(a) forward a copy of the notice of objection to the person making the application as soon as reasonably practicable after receiving the notice; and

(b) allow a period of 14 days from the date of forwarding the notice for the applicant to respond to the notice of objection.

(5) If a notice of objection has been lodged under subsection (2) in respect of an application—

(a) the Commissioner must not grant the application unless the Commissioner has taken into account the objection and the response of the applicant to the objection (if any); and

(b) if the Commissioner grants the application, the Commissioner must give notice of the grant to the designated entity that lodged the notice of objection.

(6) This section applies to the following applications:

(a) an application under section 26(1)(b) to appoint another individual as a responsible person for a licence;

(b) an application under section 27A(1) to appoint an individual as a substitute responsible person.

(7) In this section—

designated entity has the same meaning as in section 15.

No. 25. Clause 28, page 18, line 20 [clause 28(1)(c)]—After '27' insert 'or 27A'

No. 26. Clause 30, page 19, lines 32 to 33 [clause 30(2)]—Delete subclause (2) and substitute:

(2) The Commissioner may, by instrument, appoint any of the following as an authorised officer for the purposes of this Act:

(a) a public sector employee under the Public Sector Act 2009;

(b) the holder of a statutory office;

(c) a person who is appointed as an authorised officer or inspector under a corresponding law;

(d) a person in a prescribed class of persons.

No. 27. Clause 32, page 20, line 31 [clause 32(1)]—Delete 'For the purposes' and substitute:

Subject to subsection (1a), for the purposes

No. 28. Clause 32, page 21, after line 8—After subclause (1) insert:

(1a) The following powers may only be exercised with the authority of a warrant issued by a magistrate:

(a) the power to enter and search—

(i) premises that are not, or that are not reasonably suspected of being, a workplace; or

(ii) any part of a workplace that is used only for residential purposes;

(b) the power to stop, enter and search a vessel or vehicle that is not a workplace;

(c) the powers under subsection (1)(c) and (i), insofar as they relate to items or things found in a vessel or vehicle that is not a workplace or in premises that are not, or are not reasonably suspected of being, a workplace,

(and the requirement for a power under subsection (1) to be exercised at a reasonable time does not apply if the power is exercised under the authority of, and in accordance with, a warrant).

No. 29. Clause 32, page 21, after line 14—After subclause (3) insert:

(4) In this section—

workplace has the same meaning as in the Work Health and Safety Act 2012.

No. 30. Clause 34, page 21, line 30—After 'authorised officer' insert:

, or a person assisting an authorised officer,

No. 31. Clause 38, page 22, lines 37 to 38 [clause 38(1)(b)]—Delete paragraph (b) and substitute:

(b) a decision under section 17 to impose a condition on, or vary a condition of, a licence held by the person (including a condition imposed on the grant of the licence);

No. 32. Clause 38, page 23, after line 4 [clause 38(1)]—After paragraph (e) insert:

(f) a refusal to extend the appointment of a person as a substitute responsible person under section 27(6);

(g) a refusal to appoint a person as a substitute responsible person under section 27A.

No. 33. New clause, page 25, after line 19—After clause 43 insert:

43A—Advertisements to include licence number

The holder of a licence must not publish, or cause to be published, an advertisement relating to the provision of labour hire services unless the advertisement specifies, alongside the name or contact details of the holder of the licence, the licence number preceded by the letters 'LHS'.

Maximum penalty: $2,500.

No. 34. Clause 44, page 25, lines 20 to 40—Delete the clause

No. 35. Clause 45, page 26, lines 26 to 27 [clause 45(4)]—Delete subsection (4) and substitute:

(4) This section does not apply in relation to a prosecution for a contravention of section 10.

No. 36. New clause, page 28, after line 12—After clause 48 insert:

49—Review of Act

(1) The Minister must cause a review of the operation of this Act to be conducted and a report on the review to be prepared and submitted to the Minister.

(2) The review and report must be completed as soon as reasonably practicable after the third anniversary of the commencement of this Act (but in any event within 6 months after that commencement).

(3) The Minister must cause a copy of the report to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

Consideration in committee.

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be agreed to.

Because of the fortuitous circumstances in here presently, I am going to be very quick.

The CHAIR: Everyone says that and then they are not.

The Hon. J.R. RAU: We will be accepting all of the amendments. I thank all of those people who have participated in the process. There was a great deal of contribution here. We have accepted amendments elsewhere after consultation and this will mean that dodgy operators in the labour hire business are going to find life a lot more difficult. It means that honest employers, who are interested in paying people and managing people in a way that is safe, will be supported and will not face unfair competition from crooks. I thank the people upstairs for supporting this, and I accept the amendments.

Motion carried.

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