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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Labour Hire Licensing Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

The ACTING CHAIR (Hon. J.S.L. Dawkins): When the committee last met, we very briefly considered clause 1 and we can continue at that stage.

Clause passed.

Clause 2.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–2]—

Page 3, line 7—Delete 'a day to be fixed by proclamation' and substitute '1 March 2018'

Amendment No. 1 amends clause 2 to say that the act will come into operation on 1 March 2018.

The Hon. R.I. LUCAS: We support the amendment.

Amendment carried; clause as amended passed.

Clauses 3 and 4 passed.

New clause 4A.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–1]—

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.

This amendment is in direct response to stakeholders' concerns. The government has agreed to amend the bill to provide that registered group training organisations are exempt from its application to the extent that the organisation supplies the premises or trainees to do work for other persons. It is acknowledged that the registered group training organisations must already comply with vigorous requirements under the national standards for group training organisations.

The Hon. R.I. LUCAS: In rising to speak to the minister's amendment and also to move my amendment, it would expedite proceedings in the committee stage of the debate and prevent the need for divisions if the other minor parties, if they are listening, who might have an interest in this particular bill might take heed that we have moved on to the Labour Hire Licensing Bill, committee stage. Otherwise, where there is a difference of opinion between the government and the opposition, we will not be in a position to know where the numbers lie, and it would certainly prevent the need for a whole series of divisions if all of the minor parties—

The Hon. K.J. Maher interjecting:

The Hon. R.I. LUCAS: If you are happy for me to speak on behalf of the Greens and Kelly Vincent! Anyway, so for those who might be monitoring the debate in other places, that would certainly assist. In relation to the government's amendment, we support the government's amendment. It has certainly been a response to concerns raised by a number of stakeholders, and for those reasons we will support it.

The Hon. D.G.E. HOOD: I indicate that the Australian Conservatives have a keen interest in the bill before us and that we will play a considered role in the committee stage. I indicate that we will also be supporting the government amendment on this occasion.

The Hon. J.A. DARLEY: I indicate that I will be supporting the government's amendment.

New clause inserted.

New clause 4B.

The Hon. R.I. LUCAS: I move:

Amendment No 1 [Lucas–1]—

Page 4, after line 15—After line 15 insert:

4B—Other exemptions from application of Act

This Act does not apply in respect of the following:

(a) a person who provides labour hire services as part of a business or undertaking operating on a not for profit basis;

(b) a person who provides labour hire services where the provision of such services is not the primary function of the person's business or undertaking.

I might indicate at the outset that the shadow attorney-general has had carriage of the legislation and has very capably, with her office, negotiated with stakeholders and with others in relation to the Liberal Party's position on the bill before us.

The Liberal Party amendment is drafted on the basis of concerns that have been raised that even with the government's amendment, which caters for group training organisations, a number of other types of arrangements would still be caught up potentially in the legislation. Contract winemaking services, contract bottling services, engineers, electricians, irrigation repairs, contracted management are further examples of what some stakeholders have argued are normal operating arrangements for businesses in South Australia that have certainly never been the subject of criticism in relation to the way those arrangements have operated over many years. The amendment of the Liberal Party as drafted simply states:

This Act does not apply in respect of the following:

(a) a person who provides labour hire services as part of a business or undertaking operating on a not for profit basis;

(b) a person who provides labour hire services where the provision of such services is not the primary function of the person's business or undertaking.

The Hon. K.J. MAHER: I rise to indicate that the government will be opposing this amendment. It is our view that this goes a long way to disabling the purpose of this scheme and that the amendments have the potential to create loopholes for unscrupulous operators to enter the labour hire industry and take advantage of vulnerable workers under the guise of being a not-for-profit business or operating another business with a small arm of labour hire.

The government's amendment No. 2, which is coming up, provides a regulation-making power to prescribe certain circumstances in which a person does not provide labour hire services. It is our view that this provides the right flexibility to consider the particular circumstances of those particular persons. This could potentially apply to a not-for-profit organisation that is in the business of supplying some labour hire services. The government does not support blanket exclusions to a particular sector or type of organisation or structures that will give rogue business operators a potential pathway into the industry.

The Hon. D.G.E. HOOD: The Australian Conservatives support the opposition's amendment.

The Hon. J.A. DARLEY: I also indicate that I support the opposition's amendment.

New clause inserted.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–3]—

Page 5, after line 7—After the definition of premises insert 'provider—see section 6(1);'

This amendment provides a new definition of 'provider' under clause 6(1). It provides the definition of 'substitute a responsible person'. This allows for the incorporation of the new clause 27A further in the bill.

The Hon. R.I. LUCAS: My advice is that this is related to the minister's amendment to package 3, which is 'the meaning of labour hire services'. Is that correct? On that basis, we see it as consequential to the more substantive one that is coming, so we will support it.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Employment–1]—

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;

I briefly outlined this in moving the amendment before. It is consequential on what we have just done. This amendment provides for a new definition of 'substitute responsible person'. It allows for the incorporation of clause 27A into the bill, further on. So, it is consequential on that being accepted further on, but this is where it appears in the bill.

The Hon. R.I. LUCAS: Just to clarify, this is unrelated to the amendment we have just done. So this is consequential on another amendment later on in the minister's package. With respect, this is a difficult committee stage to go through because we actually have five sets of amendments from the minister, which go backwards and forwards with the various clauses. There are two sets of amendments from us and there is one from the Hon. Mr Darley and, I think, one from the Hon. Mr Brokenshire, so clarity in relation to the connection would assist those of us (which includes the minister, I assume) who do not have carriage of the legislation. That would assist in trying to keep up with all of this. My advice is that the Liberal Party will be supporting the amendment moved by the government.

Amendment carried; clause as amended passed.

Clause 6.

The Hon. K.J. MAHER: So, we are all clear, and I can be corrected by the boss of everyone, the Clerk, if needed, I am proposing to move Amendment No. 2 [Employment-3], which is replacing clause 6 with the new definition, as well as moving the explanatory notes to that definition, which is Amendment No. 1 [Employment-4]. I move:

Amendment No 2 [Employment–3]—

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.

(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.

Amendment No 1 [Employment–4]—

Amendment to Amendment No 2 [Employment-3]——After the inserted note insert:

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.

By way of explanation, the government has listened to the reasonable concerns of numerous industry groups and has amended clause 6(1) by ensuring that the definition of 'labour hire services' only applies in a situation where a person who conducts a business supplies a worker to do work in and as part of a business or commercial undertaking with another person. This definition captures the typical triangular labour hire arrangement, which I went through in my second reading summing-up, between the worker, provider and the client. The worker is supplied to, as well as variations on this model which have been used occasionally by questionable labour hire providers to disguise labour hire arrangements

It is not intended to capture arrangements where a worker employed by a business is provided to deliver a service in a domestic capacity. The government amendments make this clear, limiting the persons who will be taken to provide labour hire services by excluding persons who supply a worker to another person who is not conducting a business or a commercial undertaking, such as in a domestic capacity, and the requirement that the work be done in and as part of the business or commercial undertaking, clarifying that the work must be done to form a part of the other person's business and not be simply done in order to provide services to that other business.

As I am moving them together, this is further clarified with the inclusion of examples within the definition provided by clause 6(1) to demonstrate this. Further, the regulations may now prescribe circumstances in which a person does not, despite subsection (1), provide labour hire services for the purposes of the act. This amendment also clarifies that a person who provides labour hire services is a provider. This creates greater clarity in relation to who the persons referred to in clause 6(1) are. A note has also been included to highlight that section 7 should be used in determining who a worker is under the bill.

There have been calls by some industry groups to incorporate the term 'on-hire', which I went through at some length in my second reading contribution, and its use in modern awards to differentiate that from how it is used here. Particularly, the term 'on-hire' has been used in modern awards for purposes that are not consistent with this bill, that is, to ensure labour hire workers are entitled to the same minimum rates of pay as any other employee.

With regard to a proposal to introduce new requirements that a worker must work under the general guidance and instruction of a client or representative client, it is noted that while this may be appropriate for additional labour hire arrangements where a worker is supplied to a client of a labour hire provider to carry out work under the direction of the client, it is not always the case. The reality is that it is just not always the case that some workers may work free of guidance or instruction or upon the guidance and instruction of another source.

Consequently, the adoption of such changes has the real potential for narrowing the application of the bill to the extent that it excludes labour hire providers who are intended to be captured by the scheme, and also provides opportunities for rogue labour hire operators to structure their arrangements to avoid being captured by the bill, as I went into in some detail in the second reading of this bill.

The Hon. R.I. LUCAS: Given that the minister has moved two sets of amendments as part of one—including what I think must be the longest note to a clause I have ever seen in my 35 years in this place (I stand to be corrected, parliamentary counsel may well know), almost half a page of an explanatory memorandum to try to explain what the minister is seeking to do—my question is: can the minister put on the public record the nature of his advice as to the status, in legal terms, of the explanatory note?

Clearly legislation is legislation, and the courts interpret it. What is the legal precedent for the status of notes and explanatory memorandum, as the minister has incorporated in his amendments under Minister for Employment [4]?

The Hon. K.J. Maher: It does not have the same weight as any other words in the legislation, but—

The Hon. R.I. LUCAS: The minister's response is that it does not have the same weight, but my question is: what is the legal advice the minister has? I am assuming it must have some weight, based on precedent. Is the minister able to explain what weight, if any, the explanatory notes have in the legislation we are being asked to support?

The Hon. K.J. MAHER: I thank the honourable member for his question. Section 19 of the Acts Interpretation Act makes it clear that they do not form part of the act, so they do not carry the same weight as the legislation itself. However, my advice is that they can be used in helping to interpret the act and how it operates.

The Hon. R.I. LUCAS: My advice from the shadow attorney-general is that the Liberal Party will support these particular provisions. The reason for doing so is that this has been one of the issues that stakeholder groups, in particular, have raised significant concerns about—with the government, I am sure, but also with the opposition and other parties—in terms of the nature of the way it was originally drafted. It was way too broad and would potentially encapsulate or incorporate or capture—whatever word you would like to use—a whole range of normal employment arrangements in South Australia, none of which have been the subject of the sort of criticism that some have directed towards the labour hire industry.

This is a genuine endeavour from the government to meet that criticism, and only time will tell whether or not it is successful. I have indicated our party's position in relation to the legislation overall, but we see this at least as a genuine attempt to try to tidy up some of the more difficult parts of the legislation, and so we will support the amendment. On a personal point I note that I am disappointed in the gender stereotyping by the government in its answers. It is always the male who runs the business and the female who is working, so when one does explanatory memoranda I encourage less gender stereotyping by the government.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Broke–1]—

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 on-hires a worker to another person (a client) and the worker works under the general guidance and instruction of the client (or a representative of the client).

I advise the house that the reason we are moving this amendment is that I have met with the South Australia Wine Industry Association, who obviously have a lot of issues around a bill like this because it has a significant impact on how they go about their work.

Subsequent to my meeting with them, I understand that Mr Wallgren and Ms Hills from SAWIA met with members of a SafeWork SA and also the adviser to the Attorney-General. I am advised that during that time, interestingly enough, no-one from CBS was there, even though they would be governing the licensing scheme.

The government, I am advised, insisted that this bill would not capture the industries SAWIA have concerns about, but they cannot provide any actual assurances that they will be protected. The government have advised that the concerns of the South Australia Wine Industry Association are unfounded. The government says it is not seeking to limit the application of the bill in any way.

The wine industry does not believe the bill is necessary and submits that they have significant federal legislation that governs labour hire. The issue to them is not the legislation so much but the enforcement of the legislation. They believe the definition of 'labour hire licensing' is too broad and strongly suggest using a different definition, which is why I have tabled this amendment.

I might add that, relative to this, Business SA have also been in contact with our office. Business SA have exactly the same concerns as those of the wine industry and wanted to see an amendment such as the one that we have put up. I understand that the Australian Industry Group and the Master Builders Association have likewise concerns.

I would ask the house to strongly consider this amendment as some improvement in what is a real concern to these industry sectors. Indeed, I believe my colleague the Hon. Dennis Hood, who is handling the whole bill on behalf of Australian Conservatives, has had quite significant representation from other groups. There are a lot of businesses in this state that are not happy campers as a result of this bill, but this is an attempt to tidy up this particular concern. I commend the amendment.

The Hon. K.J. MAHER: I can rise to indicate that this is effectively a preferred amendment instead of the government amendment. It amends exactly the same part of the bill. I do not think it will come as a surprise that the government prefers our amendment to the bill and those explanatory notes and examples rather than what the Hon. Robert Brokenshire is putting forward.

I traversed this in some detail during my second reading contribution, particularly in relation to the term 'on-hiring', which is used in many modern awards. The modern award serves a specific purpose relating to conditions of employment of labour hire providers, but we are concerned that the term 'on-hire' is merely a lay term used to describe a typical labour hire arrangements. It is not a well-understood term. Adopting it in this bill, we submit, will not provide any further clarity and may reduce the clarity about who is or is not a provider of labour hire services. For those reasons, we prefer the government amendment to provide that clarity.

The Hon. R.I. LUCAS: Is it the minister's legal advice that the two amendments—that is, the government's and the Hon. Mr Brokenshire's—cannot both be passed, it would make little sense of the drafting of the bill, or can they both pass and be incorporated into the final legislation?

The Hon. K.J. MAHER: It is my advice that we do not think they can both be passed and—

The Hon. R.I. Lucas: So, it is one or the other.

The Hon. K.J. MAHER: —sensibly interact with each other. It is amending clause 6, page 5 and similar things that go to do the same thing. You would have two different competing definitions of labour hire and my advice is that we do not think they can be sensibly used together. It is our view that it is one or the other.

The Hon. R.I. LUCAS: That advice, which I think is probably my initial understanding—that is, it is one or the other—places me and the Liberal Party in a little bit of difficulty at the moment, which might be assisted by the fact that we are unlikely to conclude the whole bill before 6 o'clock.

The Hon. K.J. Maher: You never know!

The Hon. R.I. LUCAS: It would make sense in terms of getting a sensible resolution of the bill if we did not conclude the whole bill before 6 o'clock, I guess is my advice. My current instructions are to support both amendments—that is, the amendment the government has moved and the amendment the Hon. Mr Brokenshire has moved—but I understand the point the minister is making: that these are, in essence, choices—one or the other in relation to it. If we were to move both where would we be left in terms of the interpretation of this particular provision? I am going to need to take further instruction during the dinner break on this particular issue. The options that are open to me to suggest to the minister are—

The Hon. K.J. Maher: To recommit if necessary.

The Hon. R.I. LUCAS: I was going to say that if the minister is prepared to recommit this particular clause after the dinner break I can then decide which of the two amendments—maybe I will even support both and so we will have a situation where both are sitting on the table. What I am suggesting to the minister is that I may well support both and therefore both will be passed, so they sit there, but after the dinner break if you recommit this particular clause I will take further advice from the shadow minister and decide if we are actually supporting Mr Brokenshire's amendment or yours and we can decide. If that is not suitable then the simple solution is to support—what I was going to say, just to assist the minister in his decision-making capacity, is that if the minister is not prepared to give that commitment the simple—

The Hon. K.J. MAHER: I can indicate to the honourable member that if we pass—I think what he is suggesting is that the Liberals will support both the government amendment and the opposition amendment, recognising though that that might cause internal difficulties within that definition section, but for the sake of allowing us to go on for the next 40 minutes before dinner we are prepared to recommit this clause to resolve this after the dinner break?

The Hon. R.I. LUCAS: Yes.

The Hon. K.J. MAHER: Yes.

The Hon. T.A. FRANKS: For the record, the Greens will oppose the Brokenshire amendment and support the government amendment.

The Hon. J.A. DARLEY: For the record, I will be supporting the government amendment and opposing the Brokenshire amendment.

The Hon. K.J. Maher's amendments carried; the Hon. R.L. Brokenshire's amendment carried.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 2 [Broke–1]—

Page 6, lines 7 to 8 [clause 6(2)(d)]—Delete paragraph (d)

I understand that this amendment is consequential.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Employment–3]—

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.

This amendment deletes current definition of 'worker' under the bill and will replace it with a definition that makes it clear that the bill only applies to labour hire arrangements where a worker for the provider enters into an arrangement with the provider under which the provider may supply to another person the individual to do work, and that the provider is obliged to pay the individual in whole or part for that work.

The Hon. R.I. LUCAS: My advice is that the Liberal Party will support this amendment. Again, it was an issue raised by a number of stakeholders with the government and the opposition, and this is an endeavour by the government to at least partially meet some of those criticisms.

Amendment carried.

The Hon. R.I. LUCAS: I move:

Amendment No 2 [Lucas–1]—

Page 6, lines 27 to 29 [clause 7(3)]—Delete subclause (3)

Subclause (3) provides:

(3) To avoid doubt, a worker includes an apprentice or trainee under a training contract entered into with a person who was the employer under the Training and Skills Development Act 2008.

The Liberal Party's position is that we do not believe that this particular provision in the legislation is required. Significant concern has been raised by a number of stakeholders, and the Liberal Party's position is to delete this subclause.

The Hon. K.J. MAHER: I rise to indicate that the government will oppose the opposition's amendment. Whilst the government has filed an amendment to exempt registered group training organisations, it has retained this clause that this amendment seeks to delete. Any business that registers a training contract with the Training and Skills Commission can employ an apprentice or trainee.

Labour hire providers that employ trainees and apprentices would still be captured by the scheme, as these businesses are not subject to the registration requirements and auditing undertaken by trainee and apprenticeship services within the Department of State Development. Removing apprentices and trainees from the meaning of work for the purpose of this bill would potentially put this vulnerable group of workers at risk of being exploited by unscrupulous labour hire operators.

The Hon. D.G.E. HOOD: The Conservatives will support the amendment.

The Hon. T.A. FRANKS: The Greens will oppose the amendment.

The Hon. J.A. DARLEY: I will oppose the amendment

Amendment negatived; clause as amended passed.

Clause 8 passed.

Clause 9.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Employment–1]—

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;

This amendment to clause 9(1)(a) removes the 'reputation' consideration in the fit and proper person test and replaces it with a requirement for the commissioner to consider the person's character including, for example, the person's honesty, integrity and professionalism. This is consistent with the approach adopted in Queensland and, I am informed, is regarded by stakeholders as a more objective consideration in determining whether a person is a fit and proper person to be the holder of a licence.

The Hon. R.I. LUCAS: My advice is that, again, this relates to a criticism of the original drafting raised by a number of stakeholders. The Liberal Party will support the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Employment–2]—

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;

I am advised that this has been requested by Consumer and Business Services who will be administering this scheme. It deletes proposed paragraph (e) and substitutes new paragraph (e) as stated in the amendment. The amendment enables the commissioner of Consumer and Business Services to have regard to whether a natural person has previously held a licence under this act or a corresponding law and whether such a licence was suspended or cancelled.

The Hon. R.I. LUCAS: My advice is that, again, this issue was raised during consultation. The Liberal Party supports the government's amendment.

Amendment carried; clause as amended passed.

Clause 10.

The Hon. R.I. LUCAS: I move:

Amendment No 3 [Lucas–1]—

Page 9, line 15 [clause 10(1), penalty provision, (a)]—Delete ' or imprisonment for 5 years'

The shadow attorney-general referred to these issues in her contribution in the House of Assembly, and I also referred to them briefly in my second reading contribution in this chamber. There is a series of three amendments. Amendments Nos 3, 4 and 5 are all consequential on each other, so I will take this as a test vote for the three of them.

In the bill, penalties for breaches are $140,000 to $500,000 and include the possibility of imprisonment. After consultation with stakeholders, the Liberal Party position is that the imprisonment clauses were not appropriate in relation to the legislation. Certainly, stakeholders submitted that the imprisonment and also the cost penalties, for that matter, were much higher than other similar laws and, in their view, were grossly disproportionate to the offences. For those reasons, the Liberal Party position is to move this amendment, which seeks to delete the imprisonment options.

The Hon. K.J. MAHER: In speaking to these amendments, it will also cover the amendments that are, I think, amendments that either support the opposition amendment or the government amendments. The opposition amendment, as the Hon. Rob Lucas has outlined, removes the potential for any term of imprisonment. The government amendments, which we favour instead, reduce the term of imprisonment from five to three years. As the honourable member indicated, the five years was more than other jurisdictions, so what our amendments do is reduce it from five years down to three years to bring it in line with the scheme, for example, in Queensland.

I am sure that I will be corrected if I am wrong. The opposition is favouring taking imprisonment as a possible penalty out altogether. The government's amendments agree, after stakeholder engagement, to lessen the term of imprisonment, to not remove it altogether but reduce the maximum from five to three years, in line with Queensland.

The Hon. T.A. FRANKS: The Greens will be opposing the opposition amendment and supporting the government amendments.

The Hon. D.G.E. HOOD: The Conservatives' position is that we will support the opposition amendment to remove the imprisonment provisions, but should that amendment fail, then we would support the government amendment to reduce it to three years.

The Hon. J.A. DARLEY: I will be opposing the opposition's amendment and supporting the government's amendments.

The CHAIR: The first question is that the words 'or imprisonment for five years' stand.

The committee divided on the question:

Ayes 10

Noes 9

Majority 1

AYES
Darley, J.A. Franks, T.A. Gago, G.E.
Gazzola, J.M. Hanson, J.E. Maher, K.J. (teller)
Malinauskas, P. Ngo, T.T. Parnell, M.C.
Vincent, K.L.
NOES
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) McLachlan, A.L.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
PAIRS
Hunter, I.K. Lensink, J.M.A.

Question thus agreed to; amendment negatived.

The Hon. K.J. MAHER: I move:

Amendment No 1 [Employment–5]—

Page 9, line 15 [clause 10(1), penalty provision, (a)]—Delete '5 years' and substitute '3 years'

Amendment carried; clause as amended passed.

Clause 11.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Employment–5]—

Page 9, line 26 [clause 11(1), penalty provision, (a)]—Delete '5 years' and substitute '3 years'

Amendment carried; clause as amended passed.

Clause 12.

The Hon. K.J. MAHER: I move:

Amendment No 3 [Employment–5]—

Page 9, line 37 [clause 12, penalty provision, (a)]—Delete '5 years' and substitute '3 years'

Amendment carried; clause as amended passed.

Clause 13 passed.

Clause 14.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Employment–2]—

Page 10, line 31 [clause 14(4)(a)]—After 'cancelled' insert 'under section 21'

This amendment provides that a two-year application preclusion applies only to licences cancelled for a reason provided under section 21. This means that the two-year preclusion will not apply to a licence that is cancelled due to failure of the licence holder to pay the required fee and submit the required report on time.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried; clause as amended passed.

Clause 15.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Employment–1]—

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

This amendment to clause 15(1) provides that a designated entity may object to an application for a licence on the grounds that the person nominated to be a responsible person is not a fit and proper person.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Employment–1]—

Page 11, line 26 [clause 15(2)(b)]—Delete '28' and substitute '14'

This follows on and provides that a notice of objection must be made within 14 days, not 28 days as previously provided, of the publication of the notice of application.

The Hon. R.I. LUCAS: May I ask which stakeholder argued for this particular change?

The Hon. K.J. MAHER: My advice is that this occurred after all consultation and was suggested by Consumer and Business Services as a better option; that is, to go to 14 rather than 28 days.

The Hon. R.I. LUCAS: My instructions are to support, so I will do as I am instructed and support. However, as a personal view, limiting the time within which people can object to 28 days does not seem to be excessive. Nevertheless, the Liberal Party wholeheartedly endorses the amendment.

Amendment carried; clause as amended passed.

Clause 16.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Employment–1]—

Page 12, line 9 [clause 16(1)]—Delete 'may' and substitute 'must'

The amendment to clause 16 deletes the word 'may' and substitutes the word 'must'. I think most of us will be familiar with how that operates. It provides that where the applicant for a licence has satisfied the fit and proper person test and demonstrated that they have sufficient financial resources, the commissioner must grant a licence. This provides certainty to applicants on the requirements they must meet for the licence application to be successful by removing any additional discretionary power that the word 'may' would indicate.

The Hon. R.I. LUCAS: I am pleased to support the amendment. There was a period of time, going back some years, when there was a parliamentary counsel debate that 'may' equalled 'must'. To us laypersons, 'must' always meant more than 'may'. I am pleased to support the amendment as moved by the government.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Employment–1]—

Page 12, line 14 [clause 16(1)(a)(ii)]—Delete '; or' and substitute '; and'

This deletes an 'or' and substitutes an 'and'. I am advised that this is a technical amendment to correct a drafting error.

Amendment carried; clause as amended passed.

Clause 17 passed.

New clause 17A.

The Hon. K.J. MAHER: I move:

Amendment No 8 [Employment–1]—

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.

This amendment provides for the inclusion of a new clause 17A to the bill to prohibit the holder of a licence to transfer, sell, dispose of, lend or hire out the licence to another person. This provides additional safeguards and strengthens the integrity of the bill and the scheme created by the bill. Any person who seeks to operate a business that provides labour hire services, including a person who purchases a business from a licensed provider, will be required to make an application for a licence, and this was suggested as an improvement to the bill by Consumer and Business Services.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment. We do have an amendment flagged in the [Lucas-2] set of amendments.

The CHAIR: That is right.

The Hon. R.I. LUCAS: I indicate that I will not move that amendment given that I believe it is now consequential on the earlier division and vote where the principle of imprisonment as a sentence under the legislation was established. Contrary to our view, the majority has argued that imprisonment of varying terms is appropriate in the legislation. Our position was to oppose it and for those reasons I accept the vote of the committee and do not propose to move our amendment to this particular amendment. The Liberal Party will now support the government's amendment.

New clause inserted.

Clauses 18 to 23 passed.

Clause 24.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Employment–1]—

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.

The government has acknowledged the concerns of stakeholders and provided for an amendment to clause 24 of the bill to clarify the original intent and scope of the provision by providing new requirements for a responsible person. These requirements include that the responsible person for a licence must be an individual who is responsible for the day-to-day management and operation of the business to which the licence relates, and is a fit and proper person to be a responsible person and satisfies any other requirements prescribed by the regulations.

The Hon. R.I. LUCAS: My advice is that the Liberal Party supports this amendment.

Amendment carried; new clause 24 inserted.

Clause 25 passed.

Clause 26.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Employment–2]—

Page 17, lines 19 to 21 [clause 26(2)]—Delete subclause (2) and substitute:

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

This amendment inserts a new clause 26(2) so that the information required on application to change a responsible person is determined by the commissioner, providing more certainty on the information that is required for licences. The new subclause also includes the requirement for an application to be accompanied by the prescribed fee. This fee will be fixed by regulation.

The Hon. R.I. LUCAS: Support.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 4 [Employment–3]—

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.

This amends clause 26 to provide that the commissioner is only able to change a responsible person if the commissioner is satisfied that the person is suitable for appointment as a responsible person and has complied with the requirements under new clause 27B, which provides designated entities to lodge an objection to the appointment of a substituted responsible person.

The Hon. R.I. LUCAS: I can advise that the Liberal Party supports this amendment.

Amendment carried; clause as amended passed.

Clause 27.

The Hon. K.J. MAHER: I move:

Amendment No 6 [Employment–2]—

Page 17, line 34 [clause 27(2)]—After 'appointment of a person under subsection (1)' insert:

(but in any case within 7 days)

This amendment to makes it clear that a licence holder must notify the commissioner of an appointment by a licence holder of a substitute responsible person within seven days of the appointment. This provides guidance on what is considered reasonably practicable in the circumstances.

The Hon. R.I. LUCAS: The Liberal Party supports this amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 7 [Employment–2]—

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.

This simply provides for the inclusion of a fee to be fixed by regulation to accompany the notice to the commissioner.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried.

The Hon. K.J. MAHER: I move:

Amendment No 8 [Employment–2]—

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.

This is consequential upon the amendment we have just passed, so amendment No. 8 [Employment-2] is consequential on the passing of amendment No. 7 [Employment-2].

Amendment carried; clause as amended passed.

New clauses 27A and 27B.

The Hon. K.J. MAHER: I move:

Amendment No 5 [Employment–3]—

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 responsibleperson 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.

This inserts new clauses 27A and 27B. The amendment adds new clause 27A to allow a business, on application, to appoint a substitute responsible person for the period of absence of the appointed responsible person. This provision can be used where the appointment of a substitute responsible person is required for a period of more than 30 days. An application under this provision will need to be accompanied by information that will enable the commissioner to determine whether that person is suitable for appointment.

The commissioner is only able to appoint a substitute responsible person under 27A, again, if the commissioner is satisfied that the person is a suitable appointment as a responsible person and that it complies with the requirements under new clause 27B, which provides designated entities with the ability to lodge an objection to the appointment of a substitute responsible person—very similar to the clauses we have just been discussing.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

New clauses 27A and 27B inserted.

Clause 28.

The Hon. K.J. MAHER: I move:

Amendment No 9 [Employment–2]—

Page 18, line 20 [clause 28(1)(c)]—After '27' insert 'or 27A'

This is consequential on what we have just passed with the new clause 27A.

The CHAIR: The Hon. Mr Lucas, are you alright with that?

The Hon. R.I. LUCAS: Yes.

Amendment carried; clause as amended passed.

Clause 29 passed.

Clause 30.

The Hon. K.J. MAHER: My amendment to clause 30 deletes 'persons' and substitutes 'Public Service employees'. It specifies that an authorised officer must also be a Public Service employee. While I am on my feet, I indicate that the government does not oppose amendment No. 6 [Lucas-1], which will follow, and it is my intention that, after we finish this clause 30, we break for dinner and then commence this afterwards.

The Hon. R.I. LUCAS: In the spirit of wanting to get to dinner, I support the government's amendment and they are supporting our amendment, so it sounds wonderful.

The CHAIR: You are causing a constitutional crisis here. My advice is that, if the minister is going to support the Hon. Mr Lucas's amendment, we leave out the minister's amendment. Alright?

The Hon. K.J. MAHER: Yes, leave ours out.

The Hon. R.I. LUCAS: I move:

Amendment No 6 [Lucas–1]—

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.

Amendment carried; clause as amended passed.

Clause 31 passed.

Sitting suspended from 18:01 to 19:47.

Clause 32.

The Hon. R.I. LUCAS: I am advised that amendment No. 7 is consequential upon a subsequent amendment to the same clause, which is amendment No. 8 [Lucas-1], so we might as well have the substantive debate on this. If the Liberal amendment prevails we will not need to repeat it on our amendment No. 8.

The CHAIR: You can move both amendments.

The Hon. R.I. LUCAS: I am happy to move both amendments, if that is permissible. I move:

Amendment No 7 [Lucas–1]—

Page 20, line 31 [clause 32(1)]—Delete 'For the purposes' and substitute:

Subject to subsection (1a), for the purposes

Amendment No 8 [Lucas–1]—

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).

Both amendments relate to right of entry provisions. Under the current bill I am advised that authorised officers have a broad power to enter and seize information. These entry provisions are much broader than other similar laws, such as the Work Health and Safety Act. The amendments the shadow minister has had drafted place a requirement for power to enter and search a premise may only be exercised when the authorised officer is granted a warrant issued by a magistrate. As I said, both amendments should be taken as a package and they stand or fall together.

The Hon. K.J. MAHER: I rise to indicate the government is strongly opposed to these amendments. The evidence that was provided to the Economic and Finance Committee on this shows, I think, that these provisions are needed; for example, the provision of substantial accommodation to labour hire workers has been identified as a significant issue in the industry. In addition, there have been media reports and evidence provided into inquiries across the country of workers being required to pay for accommodation of an exceptionally substandard nature, often in cramped conditions, having to live with many others.

This is another legislative gap that this bill seeks to address to ensure the providers of labour hire services and the persons that host labour hire workers who provide accommodation do provide accommodation that is in keeping with acceptable standards of the wider community. This addresses recommendation No. 3 of the Economic and Finance Committee's report. It is imperative that authorised officers have the power to enter and inspect premises that is accommodation provided in connection with the supply of labour hire workers.

Supporting this amendment, we contend, will be workers having to potentially live in substandard conditions and having to pay for it without the proper oversight that is needed. The powers of entry and inspection contained in this clause in the bill are not new powers to inspectors, they are existing powers for authorised officers; for example, under the Fair Trading Act.

The Hon. R.I. LUCAS: Can I just clarify then: the advice provided to the opposition is that these powers are significantly wider than the powers for authorised officers under the work health and safety legislation. Does the government acknowledge that these powers for authorised officers are significantly wider and stronger than equivalent powers under the work health and safety legislation?

The Hon. K.J. MAHER: I do not have advice on the comparative nature of the powers to those two pieces of legislation. My advice though is that these powers are taken directly from the powers under the Fair Trading Act.

The Hon. D.G.E. HOOD: My understanding is similar to that of the Hon. Mr Lucas, that is, that these powers are considerably broader than those under the work health and safety legislation. For that reason, we will support the amendment.

The Hon. J.A. DARLEY: I indicate that I will be supporting these two amendments.

Amendments carried.

The Hon. R.I. LUCAS: I move:

Amendment No 9 [Lucas–1]—

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.

I am advised this is consequential.

Amendment carried; clause as amended passed.

Clause 33 passed.

Clause 34.

The Hon. K.J. MAHER: I move:

Amendment No 12 [Employment–1]—

Page 21, line 30—After 'authorised officer' insert ', or a person assisting an authorised officer,'

This amendment provides that a person who hinders a person assisting an authorised officer will also be guilty of an offence.

Amendment carried; clause as amended passed.

Clauses 35 to 37 passed.

Clause 38.

The Hon. K.J. MAHER: I move:

Amendment No 13 [Employment–1]—

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);

Amendment No 14 [Employment–1]—

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.

These amendments to clause 38 are to include decisions made by the commissioner, that is, to impose or vary a condition of licence to extend the appointment of a substitute responsible person and to refuse to appoint a substitute person, are reviewable decisions and therefore can be appealed.

The Hon. R.I. LUCAS: Support.

Amendments carried; clause as amended passed.

Clauses 39 to 43 passed.

New clause 43A.

The Hon. K.J. MAHER: I move:

Amendment No 15 [Employment–1]—

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.

This is to insert a new clause 43A to create an offence for a holder of a licence to publish an advertisement in relation to the provision of labour hire services, unless the advertisement includes details of the licence holder and the licence number. This will assist host employers and workers in determining whether a labour hire provider is a legitimate labour hire provider.

The Hon. R.I. LUCAS: Support.

New clause inserted.

Clause 44.

The Hon. K.J. MAHER: I move:

Amendment No 16 [Employment–1]—

Page 25, lines 20 to 40—Delete the clause

This amendment removes the liability provision under clause 44. The government considers that the primary liability established by the bill in conjunction with the prescribed information responsible persons requirement provides sufficient provisions removing the need for a vicarious liability provision.

The Hon. R.I. LUCAS: Significant concern was raised about the vicarious liability provisions by some stakeholders. I am pleased to see the government move the amendment; we support it.

Clause negatived.

Clause 45.

The Hon. K.J. MAHER: I move:

Amendment No 17 [Employment–1]—

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.

This amendment provides that the general defences provision does not apply in relation to prosecution for a contravention of section 10, that is, a licence required to provide labour hire services.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

Amendment carried; clause as amended passed.

Clauses 46 to 48 passed.

New clause 49.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

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.

As I indicated in my second reading, I believe the introduction of this bill was a little hasty. There is a lot of contention from stakeholders about many aspects of the bill. Whilst the amendments filed by the government indicate they are willing to compromise, there would be no need to file so many in-house amendments if the bill was consulted on properly to begin with.

The issue with the definition of 'labour hire' has been documented in my second reading, and it is because of these reasons that I am moving an amendment to insert a review of the act after three years. This will give an opportunity for any issues with the definition of 'labour hire', or any other provision of the act, to be identified and rectified as needed. This amendment has the support of stakeholders, and I thank all contributors for their input into this amendment.

The Hon. K.J. MAHER: I understand that the government supports this amendment.

The Hon. R.I. LUCAS: The Liberal Party supports the amendment.

New clause inserted.

Schedule and title passed.

Bill reported with amendment.

Bill recommitted.

New clause 4B—reconsidered.

The Hon. K.J. MAHER: This was discussed before the dinner break. As we said, we think this amendment has the potential to create a significant loophole for illegitimate operators. In particular, the amendment as it was passed and now stands as part of the bill adds more questions about who is or is not captured in this bill, and what would be considered a primary function. Potentially, anyone looking to elude being captured by the scheme could set up a business structure to try to fit within this exemption. We would urge the chamber not to allow these potential loopholes that we think would significantly weaken the purpose of this bill.

The Hon. R.I. LUCAS: I am not churlish in relation to these things. We had agreed to recommit clause 6; we were unaware of the proposal to recommit new clause 4B. We think this is a magnificently structured amendment, originally moved by the shadow attorney-general, drafted, cogently and passionately argued in the house, and this chamber determined to support it. I would urge those members who supported this, as I said, very elegantly crafted and designed amendment.

Without being too frivolous, this is a significant issue for significant stakeholders in the industry. They had grave concerns about the drafting of the government's current bill, not just in relation to this particular provision but many other provisions as well. We have indicated our position as a party, that whilst we are prepared to support a number of these amendments and seek to improve the bill, we are nevertheless implacably imposed to the legislation and will vote against the legislation at the third reading.

We accept it is likely that the government may well have the numbers at the third reading. Nevertheless, we think this particular amendment, which was very adequately argued, discussed and debated prior to the dinner break, should remain as part of the bill. We do urge those members who supported it prior to the dinner break to continue to support it after the dinner break.

The Hon. D.G.E. HOOD: Our position remains unchanged.

The Hon. J.A. DARLEY: I will not be supporting this.

The Hon. T.A. FRANKS: The Greens' position also remains unchanged.

New clause negatived.

Clause 6—reconsidered.

The Hon. K.J. MAHER: This was one where we passed two amendments, and it was the government's view that both amendments could not stand as part of the bill. They did work for a very similar reason, and it would be internally inconsistent to have them both remain. We passed both of them with the intention to not hold up the passage of the bill but to come back at the end and reagitate, if it was the view that they both cannot stand—which is our view—which one would rise and which one would fall.

It is no surprise that it is our view that the government amendment should stand rather than the Brokenshire amendment. The Brokenshire amendment introduces another term of 'the client', which is not mentioned anywhere else in the bill. It also introduces the term 'on-hire', whereas the term 'supplies' is used in the bill and is preferred by the government. I will not go over it all again. I spoke about this at some length in the second reading summary and also on this clause before about the term 'on-hire' and why we think it is not the appropriate term for this bill.

I think that it is reasonably well accepted that both amendments will create confusion over a provision where all the stakeholders have sought clarity. It is now up to this chamber to decide which is the preferred method of clarifying this. I understand that there have been significant discussions. I thank members of the crossbench, who I understand are supportive of the government's preferred way to clarify this issue.

The Hon. R.I. LUCAS: I have consulted the shadow minister responsible for the bill, the shadow attorney-general. She has indicated that the Liberal Party's preferred position is the amendment moved by the Hon. Mr Brokenshire, so we will be supporting that. It is really for your decision, Mr Chair; it is an unusual position to be in. My suggestion is that, if we did a round robin and worked out who has 11 votes and who has 10, whoever has the 11 can move to remove the other provision, if that is the way the Clerk and you as Chair wish to proceed.

Whoever has the 11 votes out of the 21 will get to have either the government amendment or the Hon. Mr Brokenshire's amendment. Clearly, whoever has the numbers would then need to ensure that the other amendment no longer exists in the bill. We are supporting the Brokenshire amendment. It is for the other crossbenchers to indicate their positions.

The Hon. T.A. FRANKS: I would like the mover of the amendment to explain what he believes the term 'on-hire' covers. Certainly, we have concerns that perhaps, while it is at the behest of the industry, it does not actually do what they hope it will do. If the mover of the Brokenshire amendment could address that question, that would provide the clarity that we desire.

The Hon. K.J. MAHER: I might be able to assist this chamber in some of this. I talked about this quite a lot during the second reading sum-up stage. The term 'on-hiring' is used in some modern awards. It is assumed that this amendment is being proposed because a number of submissions from industry groups prefer the use of that term. However, modern awards have a very specific purpose relating to the condition of employees of labour hire providers. The term 'on-hire' is merely a lay term used to describe a typical labour hire arrangement. It is not a well-understood term, and we think that adopting it in this bill where it does not appear elsewhere does not provide any greater clarity about who is or who is not a provider of labour hire services.

The Hon. T.A. FRANKS: The Greens remain opposed to the Brokenshire amendment. While we have sympathies for why it was brought before this place and we also have the same concerns and reservations about a bill brought before us without the clarity that it should have had in the first round—the government does have some blame to take with that matter—the government has been responsive. The government has also, with the supports they have through the machinery of government, provided a definition that we think both addresses the concerns and does not create further confusion.

The CHAIR: I put the question that subclause (1), inserted by the Hon. R.L. Brokenshire, stand as part of the bill.

Ayes 9

Noes 10

Majority 1

AYES
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) McLachlan, A.L.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
NOES
Darley, J.A. Franks, T.A. Gago, G.E.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Malinauskas, P. Ngo, T.T. Parnell, M.C.
Vincent, K.L.
PAIRS
Lensink, J.M.A. Gazzola, J.M.

The CHAIR: The Hon. Mr Brokenshire, we have a sticky problem here in regard to a consequential amendment. We are trying to work out how we get it reinserted in this paragraph.

The Hon. R.L. BROKENSHIRE: Given the vote, I will withdraw that. It was consequential, I understand, so I withdraw that.

The CHAIR: Can you move that paragraph (d) be reinserted?

The Hon. R.L. BROKENSHIRE: I move:

That paragraph (d) be reinserted.

Amendment carried; clause as further amended passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (20:15): I move:

That this bill be now read a third time.

The Hon. R.I. LUCAS (20:16): I have a brief contribution to the third reading. As we indicated at the second reading, we believe this legislation is a dog's breakfast and albeit the government has endeavoured through five separate sets of amendments, over a period of days, to try to improve the dog's breakfast, it nevertheless remains a dog's breakfast.

It is a fair indication, as the Hon. Tammy Franks has indicated, that the government did not consult properly, widely and appropriately, in the first instance, with all the relevant stakeholders and for those reasons there was widespread opposition. Clearly, the government heard some of that and were in a position, frankly, where if they wanted to get the legislation through the Legislative Council and get the votes to support it, they needed to continue to move amendments.

I suspect it is a world record of amendments being moved by the government to one of its own bills in the Legislative Council, as we reach the potential final three days of the sittings this year for this parliament. It will be a world record the government will keep for itself for a while, where it moves five separate sets of amendments to its own legislation.

Nevertheless, for the reasons we outlined in the second reading, the Liberal Party's position is that we are still implacably opposed to the legislation. As we outlined in the second reading, we acknowledge that rogue operators exist in the industry and that there are widespread provisions at both the federal and state level that, if appropriately used, can clamp down on the rogue operators within the industry. They should be cracked down on and the workers should be protected using the existing provisions. For those reasons, we will be voting against the third reading of the bill.

The Hon. D.G.E. HOOD (20:18): Very briefly I indicate that the Hon. Mr Lucas has enunciated our position very well. We also indicate that we will be opposing the third reading. We have had representation from all of the main industry groups and I am sure they have contacted all of the other members of this place arguing their case. We are persuaded by those groups, and I am talking specifically about Business SA, the Australian Industry Group, the HIA, the NBA and others that have indicated strong opposition to various aspects of this legislation. For that reason, and others, we do not support the third reading.

The Hon. T.A. FRANKS (20:18): The Greens reiterate our support for the bill. In my second reading contribution, I noted that when the Deputy Premier introduced the bill he noted that it would need amending in the upper house, that he put the bill out for consultation and that yes, it was not a perfect process, but we will not let an imperfect process be the enemy of the good, and the bill does very much good. It basically serves people who have working conditions very far from those that we enjoy in this place, people who are the most marginalised and vulnerable and exploited in our community and, as parliamentarians, it is our role to do something about that. This bill does do something about that. The bill does not wait for the perfect to come along and bemoan the injustice while arguing the crossing of the t's and the dotting of the i's.

I think the Hon. Rob Lucas was over-egging the pudding a little by saying that I had grave reservations. I would not call this a dog's breakfast. I would indeed call this a fine day's work where the Legislative Council did its job and worked constructively to improve a bill that will do very good for this community.

The Hon. J.A. DARLEY (20:19): I indicate that I will be supporting the third reading of the bill.

The Hon. K.L. VINCENT (20:20): Having already spoken on this bill, I do not intend to go on at any length, except to say that we have before us an opportunity to protect exploited workers, as others have already said, after a terrible exposé, and I think it is beholden to each of us to act on that opportunity. I am not going to pretend that the way this has been done is perfect, but again I do not think that we could let procedure stand in the way of a good outcome, particularly when we are talking about vulnerable exploited workers.

Given that the Master Builders Association has come together with other groups with whom they are not exactly as thick as thieves, shall we say, that indicates that there is broad support for the bill and that we have finally reached a point where it is acceptable. Therefore, we need to waste no further time in proceeding with it, so the Dignity Party will be supporting the third reading of the bill.

Ayes 10

Noes 9

Majority 1

AYES
Darley, J.A. Franks, T.A. Gago, G.E.
Hanson, J.E. Hunter, I.K. Maher, K.J. (teller)
Malinauskas, P. Ngo, T.T. Parnell, M.C.
Vincent, K.L.
NOES
Brokenshire, R.L. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) McLachlan, A.L.
Ridgway, D.W. Stephens, T.J. Wade, S.G.
PAIRS
Gazzola, J.M. Lensink, J.M.A.
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