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Labour Hire Back on the Agenda

Labour Hire Back on the Agenda

Earlier this year, the Labour Hire Licensing Act 2018 (Victoria) came into effect making Victoria the third state (after South Australia and Queensland) to enact legislation requiring labour hire providers to hold a licence.

Licences are granted by the Victorian Labour Hire Licensing Authority for a 3-year period, provided the labour hire provider passes the “fit and proper person” test (demonstrating compliance with industrial and taxation laws).

In a recently-publicised briefing document provided to the IR Minister after the federal election in May 2019, the Government has agreed to provide funding to the Fair Work Ombudsman to enable it to set up a National Labour Hire Registration Scheme early in 2020.

The Scheme was recommended by Professor Allan Fels, head of the migrant worker taskforce, with a view to reducing worker exploitation in four high risk sectors- namely horticulture, meat processing, cleaning and security.

Consultation on the proposed national scheme will need to occur before any changes are introduced.

Once the new scheme is

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No compensation for reasonable management action

Often an aggrieved or distressed employee will claim to have suffered psychological injury as a result of an employer addressing performance issues or concerns with the employee. However, these claims will fail where it can be shown that the employer’s action was reasonable in the circumstances.

For example, under the Safety, Rehabilitation and Compensation Act (Cth), referred to in the High Court case below, reasonable management action includes:

 

  • Performance appraisal
  • Counselling
  • Suspension or standing down of duties
  • Disciplinary action
  • Anything done in connection with the employee's failure to obtain a promotion or transfer.

This definition is consistent with the courts’ interpretation of other legislation including the Fair Work Act 2009 and state-based workers compensation legislation.

But the question of what is ‘reasonable’ and what is not is often unclear. Courts accept that management actions don’t need to be ‘perfect’, and  will take into account a number of considerations including the facts and circumstances that led to the need for action, how the action was carried out and the consequences

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A recent Queensland Civil and Administrative Tribunal (QCAT) decision* highlights how easily employers may breach anti-discrimination legislation without necessarily intending to do so.

The complainant, a prospective employee, brought a claim against Woolworths because the online job application form required him to state his gender, date of birth and confirm his ability to lawfully work in Australia. Essentially the claim was that the requirement for job applicants to supply this information breached Queensland’s Anti-Discrimination Act by unnecessarily requesting information during the recruitment process which could form the basis for discrimination.

Woolworth’s arguments included that the information allowed them: to recruit for positions where employees needed to be over 18 years of age; to comply with gender reporting requirements; and avoid breaching the federal immigration legislation.

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