This policy outlines the operational strategies employed by the Office of Industrial Relations (OIR) to regulate the Labour Hire Licensing Act 2017 (the Act), including audits, investigations and legal proceedings.
The appropriate use of a comprehensive range of strategies encourages greater compliance with labour hire licensing laws and enhances awareness of the rights and obligations of licensees and other people.
The following strategies are used:
- Desktop audits by licensing staff who vet licence applications to ensure they meet all requirements. Applications which do not meet all requirements are either refused or referred to inspectors. Inspectors may also undertake desktop audits, particularly where applicants/licensees are in remote locations.
- Inspector audits to check applicants or licensees are compliant with the Act in terms of being fit and proper persons, six monthly reporting requirements and any conditions imposed on their licence.
- Formal investigations where complaints have been received or there are potential issues regarding compliance with the Act. Audits and investigations may result in refusal of the licence, imposition of conditions, suspension or cancellation of licences or recommendation for legal proceedings.
- Legal proceedings: appeals and prosecutions where appropriate.
The decision to grant, refuse, suspend, cancel or impose, vary or revoke a condition of a licence can be reviewed on application by a person given an information notice about the decision or by an interested person. An application to appeal the outcome of a review may be made to the Queensland Civil and Administrative Tribunal.
We aim to complete formal investigations within three months. Cases requiring complex investigation and/or legal proceedings may take longer, whereas less serious matters may be dealt with more quickly.
Electronic applications will be vetted by OIR and must meet specific criteria specified in the Act. This includes:
- meeting various form requirements detailed in s 13(3) of the Act
- the applicant not excluded by s 14 (i.e. person who was a holder of a licence that was cancelled within last two years)
- the applicant meeting criteria s 15(a) (i.e. fit and proper person test)
- the applicant meeting criteria s 15(b) (i.e. financial viability test).
Applications will be refused where it is immediately apparent the applicant has failed to meet the requirements or are excluded from applying. OIR may give written notice to the applicant if further information is required to ascertain if the licence should be granted. Alternatively, the matter may be referred to the inspectorate where the application is considered to be high risk and further information is required to verify the information provided by declaration.
An inspector monitors compliance with the Act through regular audits of a selection of applicants and licenced providers to ensure that all requirements of the licence are or have been met. This may include:
- verification of information initially supplied to OIR during the application process
- verification of information provided by licensees in accordance with six monthly reporting requirements (Part 4, Div 2)
- ensuring compliance by licensees with conditions imposed under s 29.
Where appropriate, licensees will be given an opportunity to resolve any issues found without the need for formal investigation or litigation action.
Inspectors investigate complaints or potential issues regarding:
- unlicensed providers – s 10
- entering into arrangements with unlicensed providers – s 11
- entering into avoidance arrangements – s 12
- non renewals of licences – s 18
- failure to report – s 31
- failure to report avoidance arrangements – s 90
- provision of false or misleading information- s 91
- fit and proper person test met
- financial viability test met
- compliance with relevant laws.
Inspectors then determine what action needs to be taken. A formal investigation may involve:
- resolution of disputed facts
- interpretation of the Act and relevant laws
- imposition of conditions on licence
- suspension or cancellation of licence
- institution of legal proceedings where appropriate
- institution of measures to attain future compliance with the Act.
As well as formal investigations, inspectors have the power to enter workplaces and other places including private residences (with consent or under warrant), search premises, interview people, seize items and require production of documents to ensure compliance with the Act.
Inspectors can recommend that legal proceedings are taken against a provider (including unlicensed providers), people entering into arrangements with unlicensed providers, people entering into avoidance arrangements and other people where appropriate.
If a matter remains unresolved following an audit and/or formal investigation process, consideration will be given to taking prosecution action in the Magistrates Court to ensure compliance.
This will only happen if an inspector has obtained sufficient evidence and it is in the public interest and a proper response to do so. Before initiating legal proceedings the matter will be reviewed to ensure it meets the Litigation policy criteria below.
If appropriate, licensees and other people will be given an opportunity to resolve any issues found without the issue going to court.
Other circumstances where prosecution action may be taken include:
- if an inspector alleges that a person has repeated the same offence
- if an inspector alleges that a person has been advised of a requirement of the legislation but has failed to comply
- offences are alleged relating to inspectors’ powers (e.g. obstruction, failing to comply with requirements of inspectors, false or misleading information, etc.).
Outcomes of successful prosecutions may be published to draw attention to the consequence of labour hire licensing violations.
An outcome may be appealed in a higher court to ensure that legal proceedings are justly and correctly applied, and the penalty or order imposed is appropriate. The primary concern in a decision to appeal is whether the applicable law has been correctly stated and applied by the magistrate.
If it appears that a magistrate has erred or the penalty imposed appears to be inadequate, OIR may consider an appeal against the decision. This action will only be taken when:
- legal advice presents a basis for appeal
- there is a reasonable prospect that the appeal will be successful.
Prosecution is a discretionary action which means not every breach of the laws is automatically prosecuted. The dominant factor in the decision to prosecute or not to prosecute is the public interest.
By commencing a prosecution, OIR aims to change the behaviour of the wrongdoer and deter future wrongdoers. Prosecution in appropriate circumstances sends a message to the community that failures of legislative responsibilities will be enforced through the courts. The decision to prosecute is made on the basis of the applicable law at the time and public interest considerations.
General public interest is the paramount concern in the decision to prosecute. The question of whether or not the public interest requires that a matter be prosecuted is resolved by determining:
- whether there is sufficient evidence (i.e. a prima facie case and reasonable prospects of a conviction)
- whether the public interest requires a prosecution.
A prima facie case is necessary but not enough. A prosecution should not proceed if there is no reasonable prospect of a conviction.
This consideration requires an exercise of judgment which will depend in part upon an evaluation of the quality and persuasive strength of the evidence as it is likely to be at trial.
In considering the public interest, the main criteria for consideration will include:
1: The nature and circumstances of the alleged contravention
The level of seriousness or triviality of the alleged offence, or whether or not it is of a technical nature only. Generally and by way of example, OIR does not regard the following as trivial:
- alleged offences regarding unlicensed providers
- entering into arrangements with unlicensed providers
- entering into avoidance arrangements
- failure to report, particularly where there is evidence that the person knowingly contravened their obligations or did not properly discharge their duty to ascertain their obligations
- alleged offences where special circumstances exist, e.g. vulnerable workers or where the person is a repeat offender (whether or not taken to court) or where there is evidence the person knowingly contravened their obligations (e.g. deliberate exploitative behaviour).
Where an alleged offence is considered to be of a less serious nature, OIR will consider appropriate enforcement mechanisms and alternatives to prosecution which may include recommendation to impose or vary conditions of licence or issue warning letters.
The prevalence of the alleged offence and the need for deterrence, either personal or in general. The existence of any mitigating or aggravating circumstances.
Generally and by way of example, mitigating circumstances might include:
- where the matter has come before OIR through a complaint or audit, there is no evidence of deliberate or reckless contravention of the Act, but rather a genuine misunderstanding (having made reasonable attempts to understand their legal obligations) and the person put in place systems to ensure that no contraventions will occur in the future
- where the person has sought advice, from OIR or a relevant professional, provided accurate information in seeking the advice and has relied on that advice
- where the person has approached and worked with OIR to rectify a contravention and put in place systems to ensure that no contraventions will occur in the future.
Conversely, aggravating circumstances might include those where the person has refused, impeded or delayed attempts at voluntary compliance, and any other relevant circumstances.
2: Characteristics of the alleged wrongdoer
- The degree of culpability of the alleged wrongdoer in relation to the offence. This may include:
- the degree or extent to which the alleged wrongdoer acted in accordance with any advice given by OIR or other authority in relation to compliance with the relevant legislation
- the relevant compliance history of the alleged wrongdoer
- the attitude of the alleged wrongdoer (including any relevant proactive measures taken to comply with the relevant legislation).
- The youth, age, physical or mental health or special infirmity of the alleged wrongdoer or a necessary witness.
- Whether or not the alleged wrongdoer is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged wrongdoer has done so.
- The degree of culpability of the alleged wrongdoer in connection with the alleged offence (for example the degree of management of senior management in the alleged offence).
3: Impact of the alleged offence
The attitude to the commencement of proceedings which is held by the person who was injured or otherwise affected by the alleged offence.
4: Effect of litigation
- The likely outcome in the event of a conviction considering the range of penalties available to the court.
- The availability and efficacy of any alternatives to prosecution.
5: Characteristics of the alleged aggrieved party
The degree to which the alleged aggrieved party has the available resourcing to commence legal proceedings on their own behalf.
6: Level of public concern
Whether or not the alleged offence is of minimal public concern.
The prevalence of the alleged offence and the need for either specific or general deterrence.
8: Administrative considerations
- The necessity to maintain public confidence in the parliament and the courts.
- The likely length and expense of a court hearing.
- Whether or not the prosecution would be perceived as counterproductive to the interests of justice (e.g. by bringing the law into disrepute).
- The length of time since the alleged offence.
The applicability of and weight to be given to these and other factors will vary and depend on the particular circumstances of each case.
Determination of appropriate compliance strategy
A decision to take compliance or enforcement action must be based upon the evidence, the law and these guidelines. It must never be influenced by:
- race, religion, sex, national origin or political views
- personal feelings concerning the alleged wrongdoer or victim
- possible political advantage or disadvantage to the government or any political group or party
- the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution.
After consideration of all the relevant criteria (i.e. sufficient evidence and public interest), an investigation may result in:
- the commencement of a prosecution
- the issuing of a letter of caution
- no further action.
The resources available to OIR to institute legal proceedings are finite. They will therefore not be expended in pursuing inappropriate cases.
Last updated 17 January 2019