In many cases, it will be obvious whether a particular arrangement is for the supply of workers on a labour hire basis, such that the workers work in and as part of the host’s business or undertaking.
Where it is not clear if a particular arrangement is labour hire, and you are uncertain about whether a worker is performing work ‘in and as part of’ a host’s business, you will need to look at what activities the worker is performing, and the level of integration of those activities in the host’s business or undertaking.
To give you an idea, some factors that might suggest a worker is performing work in and as part of the host’s business include:
The examples provided on this page are for illustrative purposes only, and do not constitute legal advice. You should consider your particular circumstances when determining whether you require a labour hire licence. If you are unsure, you should seek legal advice.
A hospitality staffing agency, HSA Pty Ltd (the provider) supplies waitstaff to restaurant (the host) who requires some extra staff for a large function. The waitstaff are considered to be working ‘in and as part of’ the business of the host restaurant as they are performing the work of the host business, at the host’s premises, directed and supervised by the host and are not considered to be providing a specialised service. The work performed by the workers is a key function of the host’s business and is the same as the work performed by the host’s own employees. HSA Pty Ltd pays the waitstaff it provides, and invoices the restaurant for the hours worked by the waitstaff. No one factor is definitive, but looking at the engagement as a whole, this arrangement would be considered to the provision of labour hire services, and would require HSA Pty Ltd to have a labour hire licence.
ABC Pty Ltd (the provider) supplies construction workers to Builders Pty Ltd (the host) who requires some extra staff for a large project that Builders Pty Ltd is undertaking. Builders Pty Ltd supplies the materials, directs and supervises the work, the construction workers supplied by ABC Pty Ltd are doing work that Builders Pty Ltd is responsible to complete and is a key function of their business and the workers are working alongside Builders Pty Ltd’s direct employees doing similar work. No one factor is definitive, but looking at the engagement as a whole, the workers supplied by ABC Pty Ltd are considered to be working ‘in and as part of’ the business of Builders Pty Ltd, and as a result this arrangement would be considered to the provision of labour hire services, and would require ABC Pty Ltd to have a labour hire licence.
An accounting firm, Accountant Partners & Co, provides an accountant to work on a client’s premises, for the purpose of preparing the client’s tax documentation. This is not considered to be labour hire because, even though the accountant is performing the work on the client’s premises, the accountant is still performing the work in their capacity as an accountant, employed by Accountant Partners & Co, performing work that Accountant Partners & Co has been engaged to do. The accountant is not directed or supervised by the client, and the work the accountant performs is not a key function of the client’s business, and is different from the work performed by the client’s own employees. In this way, the accountant remains working in and as part of Accountant Partners & Co’s business, not the client’s business.
However, if the circumstances were such that Accountant Partners & Co provided the accountant to the client to supplement the client’s team, and the accountant was performing the same work as the client’s employees, this would be labour hire and would require a licence unless the accountant fell within one of the excluded classes of workers, such as a secondee.
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