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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Labour Hire Licensing (Miscellaneous) Amendment
Bill 2020
A BILL FOR
An Act to amend the
Labour
Hire Licensing Act 2017
.
Contents
Part 2—Amendment of Labour Hire
Licensing Act 2017
4Amendment of section 3—Objects of
Act
5Amendment of section
6—Interpretation
6Substitution of sections 7, 8 and
9
7Meaning of labour
hire services
8Meaning of labour hire
worker
7Amendment of section 10—Fit and proper
person
8Amendment of section 11—Licence required
to provide labour hire services
9Amendment of section 12—Person must not
enter into arrangements with unlicensed providers
10Amendment of section 13—Person must not
enter into avoidance arrangements
11Amendment of section 14—Persons must
report avoidance arrangements
14AProvision of
licence particulars to host
13Amendment of section 18—Conditions of
licence
14Amendment of section 19—Prohibition on
licence transfer, sale etc
15Amendment of section 20—Duration of
licence, periodic fee and report
16Amendment of section 21—Notification of
certain changes in circumstances
17Amendment of section 34—Authorised
officers
18Amendment of section 41—Evidentiary
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Labour Hire Licensing (Miscellaneous)
Amendment Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Labour Hire Licensing
Act 2017
4—Amendment
of section 3—Objects of Act
(1) Section 3(1)(a)—delete "workers" and substitute:
vulnerable workers performing low-skilled work
(2) Section 3(1)(c)—after "industry" insert:
within high-risk sectors
5—Amendment
of section 6—Interpretation
(1) Section 6—before the definition of authorised
officer insert:
aquatic animal means an aquatic animal of any species but
does not include a bird;
(2) Section 6—after the definition of avoidance
arrangement insert:
cleaning work means—
(a) residential cleaning; and
(b) commercial cleaning including (without limitation) hotel cleaning,
office cleaning, retail cleaning and event cleaning;
(3) Section 6, definition of labour hire
services—delete the definition and substitute:
fishing means the act of taking an aquatic animal, or an act
preparatory to, or involved in, the taking of an aquatic animal;
horticultural processing work means any of the following
activities relating to the production or processing of fruit (including nuts),
vegetables and flowers:
(b) harvesting;
(c) sorting;
(d) labelling;
(e) packing;
(f) grading;
(g) planting;
(h) thinning;
(i) pruning;
(j) spraying;
(k) repetitive work
on automatic, semi-automatic or single-purpose machines or equipment;
(l) an activity prescribed by the regulations;
(m) performing basic recording functions related to the activities
referred to in
paragraphs (a)
to (l);
host—see section 7;
labour hire services—see section 7;
labour hire worker means a labour hire worker under
section 8;
(4) Section 6—after the definition of licence
insert:
meat means the whole or part of a killed animal intended for
human consumption or consumption by pets (including birds) but does not include
seafood;
meat processing work means any of the following activities
relating to the production or processing of meat:
(a) an activity preparatory to the killing of animals;
(b) killing animals;
(c) boning meat;
(d) slicing meat;
(e) portioning meat;
(f) preparing meat;
(g) dressing meat;
(h) packing meat;
(i) an activity prescribed by the regulations;
(5) Section 6—after the definition of premises
insert:
prescribed work means each of the following kinds of
work:
(a) cleaning work;
(b) horticultural processing work;
(c) meat processing work;
(d) seafood processing work;
(e) trolley work;
(f) any other work of a kind prescribed by the regulations;
(6) Section 6, definition of provider—delete the
definition
(7) Section 6—after the definition of responsible
person insert:
seafood means the whole or part of an aquatic animal
(including a freshwater aquatic animal), whether dead or alive, intended for
human consumption or consumption by pets;
seafood processing work means any of the following activities
relating to the production or processing of seafood:
(a) fishing;
(b) filleting seafood;
(c) shucking seafood;
(d) cleaning seafood;
(e) portioning seafood;
(f) processing seafood;
(g) grading seafood;
(h) packing seafood;
(i) an activity prescribed by the regulations;
(8) Section 6—after the definition of substitute responsible
person insert:
trolley work means trolley collection and stacking within the
premises of a supermarket or other retail or wholesale shop.
(9) Section 6, definition of worker—delete the
definition
6—Substitution
of sections 7, 8 and 9
Sections 7, 8 and 9—delete the sections and substitute:
7—Meaning of labour hire
services
(1) Subject to
subsection (2)
, a person provides labour hire services if—
(a) in the course of conducting a business the person supplies, to another
person (the host), an individual to undertake work; and
(b) the individual is a labour hire worker for the person.
(2) A person does
not provide labour hire services under
subsection (1)
in the following circumstances:
(a) where an individual is supplied to a host to undertake work that is
not undertaken as part of a business or commercial undertaking of the
host;
(b) where an individual is supplied to undertake work that is not
prescribed work;
(c) any other circumstances prescribed by the regulations.
(3) For the purposes of
subsection (1)
, a person may provide labour hire services to a host regardless of
whether—
(a) a worker supplied by the person is supplied to the host directly or
indirectly through 1 or more agents or intermediaries; or
(b) the work performed is under the control of the person or the
host.
Examples—
1 A has a
labour hire business and has an arrangement with B under which A may
supply B to other persons to undertake work for which B will be paid
by A. In the course of conducting the business, A agrees with
C to supply an individual to undertake meat processing work for C at
C's meat processing business. A sends B to C to undertake
the work for which A will pay B. A provides labour hire services
in supplying B to C.
2 A runs a
horticultural processing business and employs B to undertake work in the
business. In the course of conducting the business, A enters into a
contract with C to pick the grapes at C's commercial winery. As part
of employment in A's business, B attends at C's winery and picks
the grapes. A does not provide labour hire services to C because A is
not supplying an individual to undertake work (see section 9) and B is
not a labour hire worker for A (see section 8).
At a neighbouring winery, D wants to pick their grapes but does not
want to contract out the job, preferring to undertake the work themselves.
Needing a worker and having seen A's business working at C's winery,
D asks if A would be able to send an individual to work for D at
D's winery for 2 days. A asks B if B would agree to be
sent to undertake work for another person but be paid by A, to which
B agrees. A sends B to work for D at D's winery for the
2 days but B also continues to work 4 regular shifts per week in
A's horticultural services business. A does not provide labour hire
services to D because, despite the new arrangement between A and
B and the supply of B to undertake work for D, B is an in-house
employee of A and therefore not a labour hire worker for A (see
section 8).
8—Meaning of labour hire
worker
(1) Subject to
subsection (2)
, an individual is a labour hire worker for another person if
the individual enters into an arrangement with the other person under
which—
(a) the other person may supply, to a third person, the individual to
undertake work; and
(b) the other person is obliged to pay the individual, in whole or part,
for the work (whether directly or indirectly through 1 or more
intermediaries).
(2) An individual
is not a labour hire worker for another person if—
(a) the individual
is an in-house employee of the other person and is only supplied to a third
person to do work on a temporary basis (which may be on 1 or more
occasions); or
(b) the individual is, or is of a class of person, prescribed by the
regulations.
(3) For the purposes of
subsection (2)(a)
, an individual is an in-house employee of another person
if—
(a) the individual is engaged as an employee by the other person on a
regular and systematic basis; and
(b) in the circumstances of the case, it is reasonable to expect that the
employment will continue; and
(c) the individual primarily performs work for the other person other than
as a worker supplied to a third person to do work for the third
person.
9—Meaning of supply
(1) For the purposes of this Act, an individual is not supplied by a
person (the first person) to another person (the second
person) to undertake work where—
(a) the first person and second person have entered into a contract for
the performance of the work by the first person; and
(b) the individual undertakes the work for and on behalf of the first
person as an employee, agent or independent contractor of the first
person.
(2) For the purposes of this Act, the supply of a labour hire worker to do
work for a person commences when the labour hire worker first starts to do work
for the person in relation to the supply.
7—Amendment
of section 10—Fit and proper person
(1) Section 10(1)—after "whether a person is a fit and proper person
to be the holder of a licence" insert:
, a fit and proper person to be a responsible person
(2) Section 10(4)—delete subsection (4) and
substitute:
(4) A person is not a fit and proper person to be a responsible person if
the person—
(a) has been found guilty or convicted of an offence, or an offence of a
class, prescribed by the regulations; or
(b) is a member of, or a participant in, a prescribed organisation;
or
(c) is a close associate of a person who is a member of a prescribed
organisation or is subject to a control order under the
Serious
and Organised Crime (Control) Act 2008
.
8—Amendment
of section 11—Licence required to provide labour hire
services
Section 11(1), penalty provision, (a)—delete "or imprisonment for
3 years"
9—Amendment
of section 12—Person must not enter into arrangements with unlicensed
providers
(1) Section 12(1)—delete "with another person for the provision of
labour hire services to the person unless the other person" and
substitute:
for the provision of labour hire services unless the person providing the
labour hire services
(2) Section 12(1), penalty provision, (a)—delete "or imprisonment
for 3 years"
(3) Section 12—after subsection (1) insert:
(1a) Without limitation, subsection (1) applies to a person
irrespective of whether the person is—
(a) the person to whom the labour hire services are to be provided under
the arrangement; or
(b) entering into the arrangement as an agent or intermediary of the
person providing the labour hire services under the arrangement; or
(c) the person providing the labour hire services under the
arrangement.
10—Amendment
of section 13—Person must not enter into avoidance
arrangements
(1) Section 13—delete "a worker" and substitute:
an individual to undertake work
(2) Section 13, penalty provision, (a)—delete "or imprisonment for
3 years"
11—Amendment
of section 14—Persons must report avoidance
arrangements
Section 14(1)(a)—delete "a worker to another person" and
substitute:
to another person, an individual to undertake work
After section 14 insert:
14A—Provision of licence particulars to
host
The holder of a licence who supplies a labour hire worker to a host to
undertake work, and any agent or intermediary who acts in respect of that
supply, must, before the labour hire worker is supplied, take all reasonable
steps to ensure that the host is provided with the following particulars for the
licence (being particulars current at the time of their provision):
(a) the name and contact details of the holder of the licence;
(b) the name and contact details of each responsible person for the
licence;
(c) the licence number.
Maximum penalty: $4 000.
13—Amendment
of section 18—Conditions of licence
(1) Section 18(1)—delete subsection (1) and substitute:
(1) A licence granted under section 17 is subject to the following
conditions:
(a) a condition that
the holder of the licence must comply with the requirements prescribed by the
regulations for the provision of information to labour hire workers by persons
who provide labour hire services;
(b) such other conditions as the Commissioner thinks fit.
(2) Section 18(2)—after "vary or revoke a condition of the licence"
insert:
imposed under subsection (1)(b)
(3) Section 18—after subsection (4) insert:
(5) A person who fails to comply with a condition of a licence under
subsection (1)(a) is guilty of an offence.
Maximum penalty: $4 000.
Expiation fee: $300.
14—Amendment
of section 19—Prohibition on licence transfer, sale
etc
Section 19, penalty provision—delete "or imprisonment for
1 year"
15—Amendment
of section 20—Duration of licence, periodic fee and
report
(1) Section 20(2)—delete subsection (2) and
substitute:
(2) The holder of a
licence must, at intervals prescribed by regulation—
(a) pay to the Commissioner the prescribed fee; and
(b) lodge with the
Commissioner a report in a form required by the Commissioner containing the
prescribed information relevant to the corresponding reporting period.
(2) Section 20(6)—delete subsection (6) and
substitute:
(6) In this section—
prescribed information, in respect of a report under
subsection (2)(b), means the following information:
(a) the full name and contact details of the holder of the
licence;
(b) the business name, ABN and address of the business that is the subject
of the licence;
(c) the full name and contact details of each of the responsible persons
for the licence;
(d) the number of labour hire workers who undertook prescribed work for a
host under the licence (the relevant workers);
(e) details of the industry or industries in which the work was carried
out by the relevant workers;
(f) information about compliance with relevant laws by the holder of the
licence;
(g) information about any disciplinary action or enforcement action taken
against the holder of the licence by a regulatory body under a relevant
law;
(h) to the best of the knowledge of the holder of the licence, the number
of notifiable incidents involving a relevant worker notified under
section 38 of the
Work
Health and Safety Act 2012
;
(i) to the best of the knowledge of the holder of the licence, the number
of applications for compensation made by a relevant worker under the
Return
to Work Act 2014
;
(j) any other information prescribed by the regulations;
reporting period—each reporting period for a licence is
as prescribed by the regulations.
16—Amendment
of section 21—Notification of certain changes in
circumstances
Section 21(2), definition of prescribed matter,
(d)—delete "workers" and substitute:
labour hire workers
17—Amendment
of section 34—Authorised officers
Section 34—after subsection (1) insert:
(1a) An authorised officer under the
Fair
Trading Act 1987
is taken to be an authorised officer appointed under this
section.
18—Amendment
of section 41—Evidentiary provisions
Section 41—before subsection (1) insert:
(a1) In proceedings for an offence against this Act, where it is proven
that a person, in the course of conducting a business, supplied an individual to
another person to undertake work, it will be presumed, in the absence of proof
to the contrary, that the individual is a labour hire worker for the person
making the supply.