Not so sunny in the Sunshine State for unlicensed labour hire providers

Not so sunny in the Sunshine State for unlicensed labour hire providers

The Queensland government passed new laws recently to promote the integrity of the labour hire industry and protect workers from exploitation by providers of labour hire services. On 13 September 2017, the Labour Hire Licensing Act 2017 (Qld) (LHL Act) took effect.  The LHL Act establishes a new licensing scheme to regulate the provision of labour hire services in Queensland.

What does the LHL Act do?

The LHL Act:

  • requires any person who provides labour hire services in the state of Queensland to hold a licence; and
  • makes it unlawful for any person to enter into any arrangement with an unlicensed provider of labour hire services in Queensland.

The licensing scheme is intended to prevent the exploitation of workers in Queensland by labour hire providers. The LHL Act imposes a system whereby any person applying for a licence must establish they are a “fit and proper person” to provide labour hire services.  In determining whether an individual is a fit and proper person to provide labour hire services, the following matters will be relevant:

  1. The person’s character including, for example, the person’s honesty, integrity and professionalism.
  2. Whether the person:
    • has a history of compliance with relevant workplace laws (including for example record keeping, superannuation, tax and health and safety); or
    • is able to demonstrate an ability to comply with relevant laws.
  3. Whether a person has been convicted of an offence against a relevant law or another law that affects the person’s suitability to provide labour hire services.

The LHL Act imposes conditions upon licensees with respect to compliance with relevant laws.

Failure to comply with the LHL Act

Where a person either:

  1. provides labour hire services without a licence; or
  2. enters into an arrangement with an unlicensed provider of labour hire services,

the maximum penalty under the LHL Act is:

  • for an individual – 134 penalty units ($120,044.60) or three years imprisonment;
  • for a corporation – 3,000 penalty units ($365,070).

What should you do?

If you provide or receive labour hire services in Queensland, act now to:

  • ensure the provision of any services is appropriately licensed in accordance with the LHL Act; and/or
  • review existing arrangements with all labour hire service providers to ensure such providers are appropriately licensed in accordance with the LHL Act.

The LHL Act provides a defence in respect of persons who enter into arrangements with unlicensed providers being that the person must not, “without reasonable excuse”, enter into an arrangement with a provider who is unlicensed.  Notwithstanding, given the significant civil and criminal penalties associated with breach of the LHL Act, it is recommended that existing arrangements are reviewed to ensure compliance with the LHL Act.

Excessive personal calls – What an employer can do when an employee just won’t hang up

A recent unfair dismissal decision contains key lessons for employers when managing employee use (and abuse) of work-related devices.  In this case the employer terminated the Applicant’s employment for failure to comply with a direction to repay a debt of $15,000 – being personal phone charges incurred on a work phone.

The Facts

The employer issued the Applicant with a work mobile phone. In late 2014, the employer detected that the Applicant’s use of the mobile phone was excessive and notified him that this was the case. The Applicant admitted that his excessive use was due to a number of personal international calls made to his family in India.  The Applicant apologised and offered to pay for the cost of the calls.  The total cost of the calls was $22,630 (incurred over a six month period from May to September 2014).  The Applicant repaid $7,500 towards the costs of the calls but refused to repay the remaining amount, claiming the amount was overly burdensome, and then claiming that he was not liable for the cost of the calls. 

The employer issued the Applicant with a warning letter in relation to his conduct, in which the employer:

  1. claimed the Applicant’s excessive personal calls on his work mobile phone breached its IT Equipment Policy and their Acceptable Use Guidelines (the Policies); and
  2. issued the Applicant with a direction to repay the outstanding monies owing. 

In response, the Applicant maintained his refusal to repay the outstanding phone bill and denied knowingly breaching the Policies.  For several months, the employer issued repeated directions to the Applicant to repay the monies, all of which where ignored.

Eventually in June 2015, the employer issued a ‘show cause’ letter to the Applicant, proposing a repayment plan which would see the Applicant repay $200 per fortnight until the outstanding monies were repaid.  The Applicant again failed to comply with the direction to accept a repayment plan and, as a consequence, the employer terminated the Applicant’s employment.

The Decision

Deputy President Gooley found that the Applicant was aware of, and breached, the IT Equipment Policy but was unable to make similar findings in respect of the Acceptable Use Guidelines (which outlined acceptable use of work-related equipment).  DP Gooley found it “surprising” that employees, including the Applicant, were not directed to the Guidelines during induction, at the commencement of employment.  Notwithstanding, DP Gooley found that the Applicant did breach the IT Equipment Policy, and that the employer was entitled to issue him with a warning in relation to his conduct. 

Importantly, the Applicant’s refusal to comply with the employer’s direction to enter into a repayment plan was a valid reason for termination.  In considering validity, DP Gooley noted that “I do not consider that the mere existence of a debt provides an employer with a valid reason to terminate the employment of an employee.  If there is a legitimate basis for the debt to be disputed then requiring the employee to repay the disputed amount on pain of dismissal may be unfair … however I find in this case that there was no reasonable basis for the Applicant to dispute the debt.  As such it was unreasonable of him not to enter into an agreement to repay the monies.” [60 to 61]

Tips for Employers

This decisions highlights that employers should:

  1. Ensure employees are aware of, and acknowledge, policies and procedures regarding the appropriate use of work related equipment, in particular IT and telephone equipment;
  2. Implement processes which provide for monitoring of such equipment and highlight the consequences associated with breach of such policies;
  3. When managing an employee debt, be flexible and reasonable when negotiating options for repayment, having regard to the quantum of the debt, the employee’s personal financial position and their remuneration; and
  4. Consider a direction to an employee to enter into a repayment plan, when managing employee debts become protracted and difficult.

Applicant v NBN Co Limited T/A NBN [2015] FWC 7412; Deputy President Gooley, 29 October 2015

The Fair Work Commission announces minimum wage increase from 1 July 2015 – Minimum wages to increase by 2.5%

The Fair Work Commission’s panel for annual wage reviews released its Annual Wage Review 2014-2015 decision yesterday, 2 June 2015. 

The decision provides that minimum award wages will increase across the board by 2.5% effective 1 July 2015.

This decision will result in the following increases to the Federal minimum wage rates:

  • Weekly minimum wage: from $640.90 to $656.90 (increase of $16),
  • Hourly minimum rate: from $16.87 to $17.29 (increase of 42c).

 

Otherwise, the percentage increase will apply to the minimum rates of pay contained in awards. Increases to minimum weekly wages will be rounded to the nearest 10 cents.

In fixing the increase at 2.5% (which is 0.5% down on last year’s increase), the Panel found that the reduction in inflation and aggregate wages growth weighed in as significant factors for the lower rate.

Employers should now start to review their employees’ existing rates of pay to ensure compliance with minimum rates when the above changes commence on 1 July 2015.

Annual Wage Review 2014-15 [2015] FWCFB 3720

Increase to penalties for breach of the Fair Work Act

A new Federal Bill, the Crimes Legislation Amendment (Penalty  Unit) Bill 2015, is proposed to amend the Crimes Act 1914 (Cth)  to increase the value of a penalty unit for Commonwealth criminal offences, and will impact upon penalties which can be ordered by a Court under the Fair Work Act 2009 (Cth)  (the FW Act) for breaches of workplace laws. 

A “penalty unit” under the FW Act has the meaning given by section 4AA of the Crimes Act 1914.  The Bill proposes to amend section 4AA of the Crimes Act to increase the current penalty unit from $170 to $180, and also to provide for the penalty unit amount to be automatically adjusted every three years in line with inflation.

The Bill, if passed, will come into effect in late July 2015 and will result in an increase to the maximum penalties that can be imposed under the FW Act.  This will mean that a contravention of the National Employment Standards, a modern award or an enterprise agreement will increase as follows:

  1. For an individual: from $10,200 to $10,800; and
  2.  For a corporation: from $51,000 to $54,000.