Applicants are required to tell the Authority if any relevant person involved in the labour hire business intends to procure or provide transport in connection with the labour hire service. Essentially, the Authority wants to know about transport that the applicant has or will take steps to obtain, or to supply.
Applicants will also need to declare that if they intend to procure or provide transport, it will comply with all applicable laws relating to transport. This includes, but is not limited to:
- Road Safety Act 1986 (Vic.), including the following regulations:
- Road Safety (Drivers) Regulations 2009 (Vic.)
- Road Safety (Vehicles) Regulations 2009 (Vic.)
- Road Safety Road Rules 2017 (Vic.)
- Heavy Vehicle National Law (Victoria).
You should ensure that that you are familiar with your obligations in relation to the provision of transport to workers, but in general, the Authority will be looking to ensure that:
- drivers of vehicles transporting workers are appropriately licensed for the class of vehicle they are operating
- if the driver of the vehicle holds a foreign licence (other than New Zealand), that the licence is:
- written in English, or is accompanied by an English translation
- contains a full explanation of any conditions to which the licence is subject and the category of vehicle for which the licence has been issued (note: an international driving permit will satisfy this criteria)
- if the driver of the vehicle is the holder of a permanent visa:
- less than 6 months has elapsed since the person arrived in Australia, where the visa was issued when the person was outside Australia; or
- less than 6 months has elapsed since the visa was issued, where the visa was issued to the person while they were in Australia
- if the labour hire licence holder is not the person driving the vehicle, they must not employ or engage a person, whether under a contract of employment or as a voluntary worker, to drive a motor vehicle if the driver does not hold a licence or permit that authorises the driver to drive the motor vehicle
- the vehicle, and if relevant, any trailers, are registered and comply with any limits regarding mass and dimension limits
- if the vehicle used to transport the workers is covered by the Heavy Vehicle National Law (Victoria) (such as a bus or a light bus), that the vehicle and the operation of that vehicle complies with the additional requirements under that scheme, such as fatigue management measures.
A labour hire licence holder must not allow, permit or cause another person to drive a motor vehicle knowing that the other person does not hold a licence or permit that authorises the other person to drive the motor vehicle.
Transport industry scenarios
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 Construction Company (ACC) is undertaking a large civil engineering project which requires the excavation and removal of material. ACC engages Truck Contractor Management Services Pty Ltd (TCMS) who engages a number of owner drivers to move excavated material from the construction site to a different location. TCMS manages the drivers to the requirements of ACC.
In this scenario:
- TCMS is providing contractor management services to ACC involving the placement of individuals to perform work in and as part of ACC’s business undertaking and is therefore a labour hire provider.
- ACC is a labour hire host.
- The owner drivers are labour hire workers.
An owner driver owns and operates three vehicles. The owner driver enters into a contract with Ryan Transport Services (RTS) to provide transport services. The owner drives one of their vehicles to deliver goods for RTS under his contract with RTS (Contract A).
The owner driver also has a contract with Marcelle’s Patisserie to deliver their products (Contract B). The owner driver uses their other two vehicles to deliver products for Marcelle’s Patisserie. The owner driver engages employees to drive their other two vehicles for these deliveries. The owner driver is responsible for managing the contract with Marcelle’s Patisserie and the work that is performed. As the owner driver is providing and managing a contract associated with transport services to Marcelle’s Patisserie, would the owner driver be considered a labour hire provider under the LHL Act?
In this scenario:
- The owner driver owns and operates three vehicles or less and is therefore covered by the Owner Drivers and Forestry Contractors Act 2005 (Vic) (ODFC Act).
- This means the owner driver gets some basic protections such as written information, contracts and access to a dispute resolution mechanism in their dealings with RTS.
- While the owner driver has been engaged by RTS under a regulated contract, the owner driver has not been recruited by another person and placed with RTS to perform work in and as part of the business of the host.
- There is no labour hire arrangement in place and therefore no requirement for RTS to use a licensed provider.
- The owner driver owns and operates three vehicles or less and is therefore covered by the ODFC Act.
- This means the owner driver gets some basic protections such as written information, contracts and access to a dispute resolution mechanism in their dealings with Marcelle’s Patisserie.
- The owner driver engages two employees to drive their other two vehicles.
- The owner driver is not a labour hire provider because they are not recruiting drivers to work in and as part of the business or undertaking of Marcelle’s Patisserie.
- The driver is not a labour hire worker because the work being performed is not in and as part of the business or undertaking of Marcelle’s Patisserie.
- There is no labour hire arrangement in place and therefore no requirement for the owner driver to hold a labour hire licence.
Fast Trucks Pty Ltd is a transport company and has its own fleet of 20 trucks, 20 permanent employees and 3 casual employees who are drivers. When Fast Trucks needs more drivers, it contacts Extra Truckers Pty Ltd who can supply drivers at short notice. Extra Truckers pay each driver for the performance of that work.
In this scenario:
- Extra Truckers is a labour hire provider as it is conducting a business of providing drivers to transport companies, and supplies drivers at short notice to work in and as part of Fast Trucks’ business.
- Fast Trucks is a host because Extra Truckers is providing them with labour hire services.
- The drivers are workers because each of them have an arrangement with Extra Truckers under which Extra Truckers supply the driver to other persons to perform work in and as part of the business or undertaking of the host, and Extra Truckers are obliged to pay each driver for the performance of that work.
- It does not matter if the work performed is under the control of Extra Truckers or Fast Trucks.
- Extra Truckers must have a labour hire licence and Fast trucks must ensure they only use a licensed provider.
Black Trucks Pty Ltd is a transport company and has its own fleet of 10 trucks and has 10 direct employees who are drivers. When work increases Black Trucks engages 10 owner drivers (subbies) through Subbie Connect Pty Ltd – a business which connects owner drivers to transport companies and then manages the driver’s contract performance. All 10 owner drivers own and operate only one truck, which they use to transport goods, and are covered by the Owner Drivers and Forestry Contractors Act 2005 (Vic) (ODFC Act).
In this scenario:
- Subbie Connect is a labour hire provider as it is conducting a business of contractor management services and supplies owner drivers to work in and as part of Black Trucks business.
- Black Trucks is a host because Subbie Connect is providing them with labour hire services.
- The owner drivers are workers because they have an arrangement with Subbie Connect under which Subbie Connect recruits the owner drivers as an independent contractor to perform work in and as part of Black Trucks business.
- Subbie Connect continue to have a role managing the performance of the contract between the owner driver/independent contractor and the host, Black Trucks.
- Subbie Connect must have a labour hire licence and Black Trucks must ensure they only use a licensed provider.