Federal Register of Legislation - Australian Government

Primary content

Declarations/Other as made
This instrument determines for the Australian Capital Territory exempt registrations for labour hire providers, or for activities covered by labour hire provider occupations, from the automatic deemed registration provisions of the Mutual Recognition Act 1992 until 1 July 2025 because of a significant risk to the health and safety of workers or the public.
Administered by: Employment and Workplace Relations
Registered 30 Jun 2022
Tabling HistoryDate
Tabled HR26-Jul-2022
Tabled Senate26-Jul-2022
Table of contents.

Commonwealth Coat of Arms of Australia

 

Automatic Mutual Recognition (Australian Capital Territory) (Exemptions—Labour Hire Provider) Declaration 2022

I, Andrew Barr, Chief Minister for the Australian Capital Territory, make the following declaration.

Dated               30 June 2022              

Andrew Barr

Chief Minister

 

 

 


Contents

1  Name........................................................................................................................................ 1

2  Commencement........................................................................................................................ 1

3  Authority.................................................................................................................................. 1

4  Simplified outline of this instrument......................................................................................... 1

5  Definitions................................................................................................................................ 1

6  Exemption................................................................................................................................ 2

7  Significant risk statement.......................................................................................................... 2

8  Human Rights Act statement.................................................................................................... 2

 

 


1  Name

                   This instrument is the Automatic Mutual Recognition (Australian Capital Territory) (Exemptions—Labour Hire Provider) Declaration 2022.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

1 July 2022.

1 July 2022.

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under section 42S of the Mutual Recognition Act 1992 of the Commonwealth.

4  Simplified outline of this instrument

The purpose of this instrument is to exempt registrations for labour hire providers, or for activities covered by labour hire provider occupations, from the automatic deemed registration provisions of the Mutual Recognition Act 1992 of the Commonwealth until 1 July 2025 because of a significant risk to the health and safety of workers or the public.

This instrument has effect only in relation to the Australian Capital Territory.

5  Definitions

                   In this instrument:

Act means the Mutual Recognition Act 1992 of the Commonwealth.

6  Exemption

For section 42S(1)(a) of the Act, a registration under the Labour Hire Licensing Act 2020 of the Australian Capital Territory is excluded from the operation of automatic deemed registration in the Australian Capital Territory until 1 July 2025 because of the significant risks set out in section 7.

7  Significant risk statement

            For section 42S(2) of the Act, the exclusion in section 6 is necessary because of the significant risk in the ACT to the health and safety of workers or the public.

Notwithstanding the provisions under the AMR scheme relating to notification of an intention to work and information sharing powers and obligations, there could be a diminution in regulatory oversight under AMR of individuals operating as labour hire providers in the ACT from time to time.

This is because under existing licensing arrangements (including mutual recognition), a labour hire provider is issued with an ACT licence, establishing a regular regime of assessment, as well as information gathering on activities. Part of this framework includes a requirement for the labour hire licensee to inform the Commissioner of their intended industry (or industries) of operation through the licence application process and to then notify the Commissioner of any changes to this once the supplier is operating. This information is included on the public register, allowing a hirer to easily confirm that the supplier is licensed to operate in the Territory. For individuals relying on ADR to supply labour hire, ongoing information about the industries in which the labour hire provider intends to operate may not be available to the Labour Hire Licensing Commissioner from time to time during the period of the licence, nor readily available to the hirer. This information is important for compliance and enforcement activities in administering the ACT’s labour hire legislation and ensuring the objectives are met in deterring poor workplace practices and protecting workers in the labour hire sector.  

A three year exemption will provide time for further risk mitigation strategies to be implemented.

 

8  Human Rights Act statement

Section 40B(1) of the Human Rights Act 2004 (ACT) provides that it is unlawful for public authorities to act in a way that is incompatible with a human right or, in making a decision, fail to give proper consideration to a relevant human right. Accordingly, in making this exclusion in section 6, I have considered any relevant human rights that may be impacted as required by s40B. Section 27B(1) of the Human Rights Act 2004 provides that everyone has the right to work, including the right to choose their occupation or profession freely. I am satisfied that the making of the exclusion in section 6 would not be incompatible with the right to work and the right to choose an occupation or profession freely.

While the exclusion may limit the right to work, it is important to note that the making of the exclusion does not prevent an individual from carrying on an activity covered by the occupation of labour hire provider in the ACT. Rather, the making of the exclusion will mean that all individuals who wish to carry on an activity covered by the occupation of labour hire provider in the ACT must meet particular registration requirements set out in ACT law. Upon meeting the relevant registration requirements, individuals would be able to carry on an activity covered by the occupation of labour hire provider in the ACT. The registration requirements are a necessary, proportionate and reasonable measure through which safeguards are provided to protect workers. Any limitation on the right to work is reasonable and justified because the exclusion will allow the ACT to address risks associated with the transitioning to AMR while ensuring there is no diminution in current levels of safeguards in relation to the health and safety of workers or the public.