Labour Hire Licensing Legislation Introduced in SA
Thursday 24 August 2017 @ 10.47 a.m. | Corporate & Regulatory | Industrial Law | Trade & Commerce
On 10 August 2017, the South Australian Parliament introduced the Labour Hire Licensing Bill 2017 (the Bill) which proposes to provide for the licensing and regulation of persons who provide labour hire services and establish a scheme that will make it unlawful to operate as a labour hire provider without a licence and illegal for employers who engage labour hire workers to use an unlicensed operator. The Bill follows similar plans to introduce Labour Hire legislation in Queensland and Victoria.
About the South Australian Bill
Introducing the Bill and in his second reading speech, the Attorney General of SA the Hon J.R. Rau (the AG) indicated that the Bill was, firstly, a reaction to the ABC Four Corners program that aired in May 2015, which reported the alleged exploitation and underpayment of migrant workers employed at various companies in Australia, two of which were located in South Australia. A report which focused on labour hire companies exploiting migrant workers on farms and in the food processing industry. Secondly, as a result of the ABC Four Corners program, the SA Premier announced that he had asked the parliamentary Economic and Finance Committee (the Committee) to look into and report on the labour hire industry, such inquiry to include underpayment of wages, and harassment and mistreatment of workers.
The report of the Committee was handed down on 18 October 2016. In the report, 13 submissions were considered by the Committee from parties including government departments, industry groups and unions. Further, witnesses representing different organisations were heard, written requests were made by the Committee to various Commonwealth departments and agencies, and the Committee also held a public hearing in the Riverland region, visiting several companies who engage labour hire workers.
The Committee in its public hearings also heard from three private citizens with first-hand experience of exploitation in the labour hire sector and of their experiences regarding the underpayment of wages, receiving no superannuation and the troubles they faced trying to recover their entitlements with the individuals that operated the labour hire services dissolving the entity they were employed by and starting up new entities and continuing to operate.
In his speech, the AG indicated the Committees Report made seven recommendations, the key one being that:
Other States Also Introducing Own Scheme
The AG also pointed out, that inquiries into the labour hire industry were also completed
by Queensland, Victoria and the Commonwealth and that each of those inquiries had also recommended some form of licensing or registration
scheme for labour hire providers. Queensland has in fact, introduced legislation (also
titled the Labour Hire Licensing Bill 2017) on 25 March 2017 which was referred to a Parliamentary Committee and which, as at
27 July 2017, had progressed as far as the Committee reporting on the Queensland Bill.
The AG pointed out that the Commonwealth Government, although it had been recommended
to it by its own Committee that it proceed with a licensing scheme, was not interested
in legislating in this area:
Pointing out the need for increased cooperation between State and Federal Governments, the AG indicated he would:
Comments and Reaction
One objection to the proposed legislation is that it will make it harder to do business in SA by adding to the complexity ("Red Tape") around hiring and employing people. The complexity argument is said to be increased, by the fact that if you have three different laws in Queensland, Victoria and South Australia and you move from State to State or are a company operating in more than one State you will need to deal with each State rather than one authority and one process. The response to this objection is that the need for national legislation appears to be accepted by every Committee that inquired into the matter.
Another objection is the ambit of the legislation, which being state wide is over-reach, the premise being that the ABC Four Corners program showed that in the main the exploitation was limited to predominantly migrant workers, working on farms and like industries, and so legislation if any, should not apply to all industries. The validity of this argument is now questionable given the recent cases revealed to exist in city based businesses, like those of attendants in petrol stations and pizza delivery drivers, industries which are well beyond farming and agricultural sector.
Finally, another aspect of criticism has been that the Bill was announced with no consultation. A criticism the AG may have sought to address in introducing the Bill by saying:
moved when we return if there is a good reason for so doing . . ."
[SA Parliament is not scheduled to sit again until the last week in Sept 2017].
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Sources:
Labour Hire Licensing Bill 2017 (234 of 2017) [SA] and supporting Speech and Explanatory materials as reported by the TimeBase LawOne Service.
Licensing the labour hire sector will cripple South Australia’s business community (The Advertiser)
Labour Hire Licensing Bill 2017 [QLD] and supporting Speech and Explanatory materials as reported by the TimeBase LawOne Service.
