Glossary

The applicant for a labour hire licence is the natural person or organisation that will become the licensee if the application is successful.

If a natural person, such as a sole trader, is applying the natural person is the applicant and must complete the application.

If the application is being made on behalf of an unincorporated organisation, such as a partnership or unincorporated association, the application is made jointly by the natural persons conducting the business, but the applicant is taken to be the organisation. A nominated officer of the organisation must complete the application.

If the application is being made on behalf of a body corporate, such as a proprietary limited company, the applicant is the incorporated organisation and a nominated officer must complete the application form. Note that ‘officer’ in the Labour Hire Licensing Act 2018 (Vic.) is defined to mean, in relation to a body corporate:

any person (by whatever name called) who-

• is a director or secretary of the body corporate; or
• makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the body corporate.

Body corporate is a general term referring to any incorporated legal entity created and recognised by the law, for example, a corporation or an incorporated association.

Prescribed persons under the Statutory Declarations Act 1959 (Cth)can certify a copy of an identity document for the purposes of proving an individual’s identity. A list of designated persons (occupations and professions) is available on the Department of Home Affairs website or in Schedule 2 of the Statutory Declarations Regulations 2018 (Cth). The list is also set out below.

The following persons are authorised to certify documents under Schedule 2 of the Statutory Declarations Regulations 2018.

Occupations

1. Architect
2. Chiropractor
3. Dentist
4. Financial adviser or financial planner
5. Legal practitioner
6. Medical practitioner
7. Midwife
8. Migration agent registered under Division 3 of Part 3 of the Migration Act 1958
9. Nurse
10. Occupational therapist
11. Optometrist
12. Patent attorney
13. Pharmacist
14. Physiotherapist
15. Psychologist
16. Trade marks attorney
17. Veterinary surgeon

Other persons

1. Accountant who is:

   (a)    a fellow of the National Tax Accountants’ Association; or

   (b)    a member of any of the following:

   (i)      Chartered Accountants Australia and New Zealand;

   (ii)    The Association of Taxations and Management Accountants;

   (iii)   CPA Australia;

   (iv)   The Institute of Public Accountants

2. Agent of the Australian Postal Corporation who is in charge of an office supplying postal services to the public
3. Australian Public Service employee engaged on an ongoing basis with 5 or more years of continuous service who is not specified in another item of this list
4. Australian Consular Officer or Australian Diplomatic Officer (within the meaning of the Consular Fees Act 1955)
5. Bailiff
6. Bank officer with 5 or more continuous years of service
7. Building society officer with 5 or more years of continuous service
8. Chief executive officer of a Commonwealth court
9. Clerk of a court
10. Commissioner for Affidavits
11. Commissioner for Declarations
12. Credit union officer with 5 or more years of continuous service
13. Employee of a Commonwealth authority engaged on a permanent basis with 5 or more years of continuous service who is not specified in another item in this list
14. Employee of the Australian Trade and Investment Commission who is:

    (a) in a country or place outside Australia; and

    (b) authorised under paragraph 3(d) of the Consular Fees Act 1955; and

    (c) exercising the employee’s function at that place

15. Employee of the Commonwealth who is:

    (a)    at a place outside Australia; and

    (b)    authorised under paragraph 3(c) of the Consular Fees Act 1955; and

    (c)     exercising the employee’s function at that place

16. Engineer who is:

    (a)     a member of Engineers Australia, other than at the grade of student; or

    (b)     a Registered Professional Engineer of Professionals Australia; or

    (c)     registered as an engineer under a law of the Commonwealth, a State or Territory; or

    (d)     registered on the National Engineering Register by Engineers Australia

17. Finance company officer with 5 or more years of continuous service
18. Holder of a statutory office not specified in another item in this list
19. Judge
20. Justice of the Peace
21. Magistrate
22. Marriage celebrant registered under Subdivision C of Division 1 of Part IV of the Marriage Act 1961
23. Master of a court
24. Member of the Australian Defence Force who is:

    (a) an officer; or

    (b) a non-commissioned officer within the meaning of the Defence Force Discipline Act 1982with 5 or more years of continuous service; or

    (c) a warrant officer within the meaning of that Act

25. Member of the Australasian Institute of Mining and Metallurgy
26. Member of the Governance Institute of Australia Ltd
27. Member of:

    (a) the Parliament of the Commonwealth; or

    (b) the Parliament of a State; or

    (c) a Territory legislature; or

    (d) a local government authority

28. Minister of religion registered under Subdivision A of Division 1 of Part IV of the Marriage Act 1961
29. Notary public, including a notary public (however described) exercising functions at a place outside:

    (a) The Commonwealth; and

    (b) The external Territories of the Commonwealth

30. Permanent employee of the Australian Postal Corporation with 5 or more years of continuous service who is employed in an office supplying postal services to the public
31. Permanent employee of:

    (a) a State or Territory or a State or Territory authority; or

    (b) a local government authority;

    with 5 or more years of continuous service who is not specified in another item in this list

32. Person before whom a statutory declaration may be made under the law of the State or Territory in which the declaration is made
33. Police officer
34. Registrar, or Deputy Registrar, of a court
35. Senior executive employee of a Commonwealth authority
36. Senior executive employee of a State or Territory
37. SES employee of the Commonwealth
38. Sheriff
39. Sheriff’s officer
40. Teacher employed on a permanent full-time or part-time basis at a school or tertiary education institution

 

A civil proceeding is a proceeding in a court other than a criminal proceeding, or a quasi-criminal proceeding (such as a contempt proceeding). In Victoria, section 4(2) of the Civil Procedure Act 2010(Vic.) lists the Acts to which it does not apply. The Civil Procedure Act 2010 (Vic.) does not apply to the Victorian Civil and Administrative Tribunal (VCAT). Civil proceedings in other jurisdictions are subject to their own rules and legislation, for example the Civil Procedure Act 2005 (NSW). Note that both Federal and State jurisdictions have their own court hierarchies for hearing proceedings, although there is also some sharing and crossover between the two jurisdictions.

The following documents are Commencement of Identity Documents:

One of these is required to process a licence application.

• Australian birth certificate or authorised record of birth
  Birth extracts or birth cards not accepted
• Immigration record or document, including:
  • Australian citizenship certificate
  • Australian visa
    Accessible via Visa Entitlement Verification Online system; visa must be current at time of entry into Australia as a resident or tourist; must be accompanied by a foreign passport (which may be expired)
• ImmiCard
  Issued by Department of Home Affairs
• Australian Passport
  Must be current and not expired

In Victoria, a criminal proceeding is any proceeding to which the Criminal Procedure Act 2009 (Vic.) applies, and includes committal, bail and sentencing proceedings. For more information about criminal proceedings in criminal courts in all Australian jurisdictions, including the types of offences and crimes that they deal with, visit the Australian Institute of Criminology website.

A deed of agreement is a legally binding promise to do, or to refrain from doing, something. A deed may also pass an interest, a right or property. Deeds are in writing, and are usually required to be signed, sealed and delivered. However, the requirements for a deed can vary, depending on the type of deed or the relevant legislation.

See Undertaking.

Applicants for a labour hire services licence must choose either the pathway for individuals or the pathway for organisations. The following definitions will assist applicants to know which is the appropriate pathway for their application.

Individual

A sole trader (also known as an individual) is an individual operating as the sole person legally responsible for all aspects of the business. Nothing is required to establish a sole trader business, but sole traders must have an ABN and comply with other relevant laws, such as registering for GST, if required.

 

Organisations – incorporated

When an entity is ‘incorporated’ it is treated as a legal person, a body corporate, separate and distinct from its owners. An incorporated entity can sue, and be sued in its own name, hold property and enter into contracts. The most common type of incorporated entity is a company, also called a corporation. Corporations may be further divided into proprietary companies and public companies. Here is more information about incorporated entities:

• Proprietary company — a company incorporated under the Corporations Act 2001 (Cth) as a proprietary company. A very common type of company in this category is a proprietary company limited by shares — companies of this type will have ‘Pty Ltd’ after their name.
• Public company – a company incorporated under the Corporations Act 2001 (Cth) as a public company. Public companies can raise funds from the public and may be listed on the Australian Securities Exchange (ASX).
• Incorporated association – a group of two or more persons who come together to pursue a common aim who agree to be bound by the rules of the organisation, which because it is incorporated has a separate legal existence from the members of the organisation. Common examples are clubs and community groups. In Victoria, associations can apply to be incorporated and registered as incorporated associations under the Associations Incorporation Reform Act 2012 (Vic.), but not all associations choose to incorporate.
• Incorporated co-operative – a co-operative is a democratic organisation that is owned and controlled by its members. A co-operative is incorporated by registering the organisation under the Cooperatives National Law, applied in Victoria by the Co-operative National Law Application Act 2013 (Vic.). For more information about co-operatives in Victoria, including access to its register, visit the Consumer Affairs Victoria website.
• Corporations formed by Royal Charter – many incorporated entities existing today were created by Royal Charter, granting the entity a separate legal identity.
• Corporations created by a special Act of Parliament – some statutory corporations and educational institutions are created by a special statute.
• Corporations sole – a series of holders of a single office, a corporation consisting of only one person, for example the Queen or a Bishop. (This is a relatively rare structure.)

Organisations – unincorporated

Unincorporated organisations do not have a separate legal identity, and so the business is generally seen as being carried on by the persons involved in the business.

• Partnerships – a partnership is the relationship between persons who carry on a business in common, with a view to making profits. A partnership does not exist separately from the partners themselves, therefore profit and loss is shared between the partners. A limited partnership is a restricted type of partnership. Partnership in Victoria is subject to the rules of equity and common law except where they are inconsistent with the express provisions of the Partnership Act 1958(Vic.)
• Unincorporated joint ventures – participants in an unincorporated joint venture enter into a contractual relationship to pursue together a specific activity without forming a separate legal entity.  What each participant owns is called the ‘participating interest’, which comprises both property rights and contractual rights. This kind of structure is common in the mining and construction industries.
• Syndicates –  persons working together for a common purpose, often for the purpose of pooling capital to invest in assets, such as property. Syndicates may also meet the requirements to be classified as a partnership in some circumstances.
• Trusts – a trust is the relationship between a trustee and beneficiaries in respect of trust property. A trust arises when the settlor, the creator of the trust, gives property to the trustee to hold or invest on behalf of the beneficiaries. The trustee is bound by fiduciary obligations.
• Unincorporated associations - a group of two or more persons who come together to pursue a common aim who agree to be bound by the rules of the organisation. Because the association is unincorporated it does not have a separate legal existence from the members of the organisation.

External administration of a company under the Corporations Act 2001 (Cth) usually occurs when a company is in financial difficulty, and an ‘external administrator’ is appointed. Forms of external administration include voluntary administration, receivership and liquidation. 

For more general information about external administration, visit the ASIC website.

An indictment is a formal statement or accusation of an indictable offence.

In Victoria, whether an offence is indictable depends on the penalty prescribed: see section 112 of the Sentencing Act 1991 (Vic.) All offences under the Crimes Act 1958 (Vic.) are deemed to be indictable offences, unless otherwise indicated. Indictable offences against the person include, but are not limited to:

• homicide
• rape, sexual assault and associated sexual offences
• offences involving sexual servitude
• sexual offences against children and against persons with a cognitive impairment or mental illness
• offences concerning child abuse material
• administering certain substances
• assault
• conduct endangering life or persons
• extortion with threat to kill or to destroy property
• stalking.

If you are unsure about whether a relevant person has been found guilty of an indictable offence against the person, you should declare the offence in the application or seek legal advice.

People or companies that are unable to pay all their debts as and when they fall due are insolvent. A person who is insolvent may enter bankruptcy; a company which is insolvent may go into liquidation, which is also known as being wound up. For more information about types of insolvency, visit the ASIC website.

For the purposes of declaring information in the labour hire licensing application, relevant persons should declare any personal bankruptcies as well as any instances in which the person was an officer of an insolvent body corporate or other organisation.

An interested person under the Labour Hire Licensing Act 2018 (Vic.) is a person or organisation who has an interest in the protection of workers or the integrity of the labour hire industry. This could include, for example, a local council, a worker union, an industry peak body, a worker, a host or another labour hire provider.

Certified copies of four different proof of identity documents must be provided for each relevant person:

• one Commencement of Identity Document
• one Primary Use in the Community Document
• two Secondary Use in the Community Documents.

Important notes

• Four different documents must be provided – the same document cannot be used for two purposes.
• All documents must be current and not expired (unless otherwise noted below).
• At least one document must be a photo identity document including the applicant’s full name, date of birth and photograph (such as a driver licence or passport).
• If different names appear on the identity documents, they must be accompanied by either:
• a change of name certificate issued by Australian Registry of Births, Deaths and Marriages
• an Australian marriage certificate (must be issued by a state or territory, not by a church or celebrant – visit the Registry of Births, Deaths and Marriages Victoria for more information).
• All documents must be correctly certified as outlined here.

Labour hire industry law is defined in section 3 of the Labour Hire Licensing Act 2018 (Vic.). It means the following:

• the Labour Hire Licensing Act 2018 (Vic.)
• a provision of an Act or law of Victoria, the Commonwealth, another State or a Territory imposing an obligation on a person in relation to labour hire (however described)

and includes regulations or instruments made under such an Act or provision.

A meat manufacturing establishment is defined in clause 5(3) of the Labour Hire Licensing Regulations 2018 (Vic.) to mean ‘an establishment wholly or predominantly concerned with the manufacturing or processing of fresh meat into any form of edible manufactured or processed meat, meat products, smallgoods, ham, bacon, or similar products in which meat is a substantial ingredient, including any related activities such as retail or wholesale sales, and killing, dressing, boning, slicing, preparation and packing of fresh meat, where such activities are conducted at any place as an ancillary part of the manufacturing or processing business’.

A meat processing establishment is defined in clause 5(3) of the Labour Hire Licensing Regulations 2018 (Vic.) to mean ‘an establishment wholly or predominantly concerned with killing, dressing, boning, slicing, preparation or packing fresh meat, and includes any related activities conducted at any place as an ancillary part of such a business, such as manufacturing or processing meat, the treatment and processing of skins or hides, rendering, processing of by-product, and retail or wholesale sales’.

Minimum accommodation standards are defined in section 3 of the Labour Hire Licensing Act 2018 (Vic.).These are standards of accommodation required by or under any of the following:

• the Public Health and Wellbeing Act 2008 (Vic.)
• the Residential Tenancies Act 1997 (Vic.)
• the Rooming House Operators Act 2016 (Vic.)
• the Planning and Environment Act 1987 (Vic.)
• the Occupational Health and Safety Act 2004 (Vic.)
• a prescribed provision of a law of Victoria, the Commonwealth, another State or a Territory
• prescribed accommodation standards (however described)

to the extent that those standards relate to accommodation for workers and include standards of accommodation required by or under regulations or instruments made under an Act or provision referred to in any of the above paragraphs.

For more information, see the Accommodation section of this website.

Under section 17(3) of the Labour Hire Licensing Act 2018 (Vic.) a nominated officer must be a natural person who is responsible for the day-to-day conducting of the business to which the licence relates; and satisfies any requirements prescribed by the regulations. Note that the Regulations may be amended from time to time. Licence applications must include the full name, position description and contact details of all nominated officers for the licence. Nominated officers are required to be reasonably available to the Authority regarding the labour hire licence.

Under section 32 of the Labour Hire Licensing Act 2018 (Vic.), an ‘interested person’ (see above), may make an objection to an application for a licence, or to an application for renewal of a licence. To be a valid objection, the objection must:

• be in writing (this includes by lodging an objection electronically through the Labour Hire Authority’s website)
• state the grounds of the objection, which must be either:
  • that one or more of the relevant persons in relation to an application is not a ‘fit and proper’ person or
  • that the applicant does not, or will not comply with the legal obligations referred to in section 23 of the Labour Hire Licensing Act 2018 (Vic.)
• state reasons for the objection; and
• be made within 14 days of the application being published on the Applications Received Register.

A number of offences of this kind are indictable offences under the Crimes Act 1958 (Vic.), for example ‘False accounting’ and ‘Falsification of documents’.  Other offences relevant to the fit and proper person test in the Labour Hire Licensing Act 2018 (Vic.) are also contained in separate legislation. For example, ‘Possession of substance, material, documents or equipment for trafficking in a drug of dependence’ and ‘Permitting use of premises for trafficking or cultivation of a drug of dependence’ are indictable offences under the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

Officer in relation to a body corporate is defined in section 3 of the Labour Hire Licensing Act 2018 (Vic). It means any person (by whatever name called) who–

1. is a director or secretary of the body corporate’ or
2. makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the body corporate.

A poultry processing establishment is defined in clause 5(3) of the Labour Hire Licensing Regulations 2018 (Vic.) to mean ‘a place wholly or predominantly concerned with the killing, processing, preparation or packing of uncooked poultry, poultry products or poultry by-products, which takes place in connection with a business or undertaking’.

The following documents are Primary Use in Community Documents:

• Australian passport
  Including Ordinary, Frequent traveller, Diplomatic, Official and Emergency
• Australian driver licence
  Learner permit, provisional or full licence issued by a state or territory, showing signature and/or photo
• ImmiCard
  Issued by the Department of Home Affairs to assist visa holders to provide evidence of their Commencement of Identity in Australia
• Foreign Passport
  Issued by a country other than Australia with a valid visa or valid entry stamp or equivalent
• Proof of age or photo identity card
  Issued by an Australian government agency, showing name, date of birth, photo and signature
• Secondary student ID card
  For persons aged under 18 years with no other documents; must be issued by an Australian government agency or Australian school

The application form requests information about accommodation or transport that may have been or is intended to be ‘procured or provided’ by the Applicant. These words take their ordinary meaning in the context of the Labour Hire Licensing Act 2018 (Vic.): that is, the Authority wants to know about transport and accommodation that the applicant has or will take steps to obtain, or to supply.

‘Relevant person’ in relation to an application for a licence or a licence in force is defined in section 3 of the Labour Hire Licensing Act 2018 (Vic.). The definition includes a number of classes of person but the nominated officer completing an application will always be a relevant person as defined. Relevant person is defined in section 3 as follows:

relevant person,in relation to an application for or in respect of a licence, or in relation to a licence that is in force, as the case requires, means the following persons—

(a) the applicant, or the holder of the licence, as the case requires;

(b) if the applicant, or the holder of the licence, is a body corporate, each officer of the body corporate;

(c) if the applicant, or the holder of the licence, is a natural person, each person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business conducted by the natural person that provides or is to provide labour hire services;

(d) each proposed nominated officer, or nominated officer, for the licence.

Relevant persons in a partnership

For organisations that are structured as a partnership, pursuant to clause 7(d) of the Labour Hire Licensing Regulations 2018 (Vic.), the applicant is required to provide proof of identity documents for the following persons, as applicable for the partnership:

(i) each member of the Board; or

(ii) each member of the executive committee; or

(iii) each senior partner; or

(iv) if subparagraphs (i) to (iii) do not apply to the partnership, each partner.

This provision has the effect of further defining who is considered to be a ‘relevant person’ in a partnership. If you are making an application on behalf of a partnership, you should determine which management arrangement, starting with (i) and working through to (iv), best matches your partnership arrangements and include the members of that management structure as relevant persons in the application.

Relevant persons in an unincorporated association

For organisations that are structured as unincorporated associations, each member of the association is required to provide proof of identity documents pursuant to clause 7(c)(iii) of the Labour Hire Licensing Regulations (Vic.) and is considered a relevant person. Therefore, if you are making an application on behalf of an unincorporated association, each member will need to be included as a relevant person in the application.

The following documents are Secondary Use in the Community Documents:

• DFAT issued Certificate of Identity
• DFAT issued Document of Identity
• DFAT issued United Nations Convention Travel Document Secondary
• Foreign government issued documents, for example, driver licences (documents in languages other than English must be accompanied by a NAATI accredited translation)
• Medicare card
• Enrolment with the Australian Electoral Commission
• Security Guard/Crowd Control photo licence
• Evidence of right to a government benefit (DVA or Centrelink)
• Consular photo identity card issued by DFAT
• Police Force Officer photo identity card
• Australian Defence Force photo identity card
• Commonwealth or state/territory government photo identity card (Working with Children card, Working with Vulnerable People card, or a government issued occupational licence)
• Aviation security identification card
• Maritime security identification card
• Firearms licence
• Credit reference check
• Australian secondary or tertiary student photo identity document
• Certified academic transcript from an Australian university
• Trusted referees report
• Bank card, credit card (can exclude card number)
• Document showing Tax File Number, such as a Notice of Assessment from the Australian Taxation Office

Turnover is defined in clause 3 of the Labour Hire Licensing Regulations 2018 (Vic.). Turnover means the total ordinary income that is derived in the course of running a business. This amount does not include GST.

An undertaking is a formal promise, for example a promise to a court, to act or refrain from acting in a particular manner. An enforceable undertaking is an alternative to prosecution. If the entity that made the undertaking breaches the undertaking, a regulator will normally seek orders from the court that the entity must comply with the terms of the undertaking, and any breach may then be considered contempt of court.

Workplace law is defined in section 3 of the Labour Hire Licensing Act 2018 (Vic.):

workplace law means the following—

(a) a provision of a law of Victoria, the Commonwealth, another State or a Territory that imposes an obligation on a person in relation to employees or contractors (however described), including but not limited to, the following—

(i) the Occupational Health and Safety Act 2004 (Vic.);

(ii) the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic.);

(iii) the Equal Opportunity Act 2010 (Vic.);

(iv) the Long Service Leave Act 1992 (Vic.);

(v) the Child Employment Act 2003(Vic.);

(vi) the Owner Drivers and Forestry Contractors Act 2005 (Vic.);

(vii) the Outworkers (Improved Protection) Act 2003 (Vic.);

(viii) the Public Holidays Act 1993 (Vic.);

(ix) the Construction Industry Long Service Leave Act 1997 (Vic.);

(x) the Payroll Tax Act 2007 (Vic.);

(xi) the Fair Work Act 2009 (Cth);

(xii) the Independent Contractors Act 2006 (Cth);

(xiii) the Safety, Rehabilitation and Compensation Act 1988 (Cth);

(xiv) the Superannuation Guarantee (Administration) Act 1992 (Cth);

(b) a provision of a law of Victoria, the Commonwealth, another State or a Territory imposing an obligation in relation to transport, to the extent that the law or provision relates to the transport of workers—

and includes regulations or instruments made under such an Act or provision.