Research Paper no. 9 2003-04
Labour hire: issues and responses
Steve
O'Neill
Economics, Commerce and Industrial Relations Group
8 March 2004
Contents
Labour hire is a form of indirect employment
relationship in which an agency supplies workers to work at a
workplace controlled by a third party (the host), usually in return
for a fee from the host. Labour hire arrangements are similar to
employment placement services, and comprise a part of the
employment services industry. However, it may be assumed that when
an employment placement agency secures a worker a job, their
relationship is likely to finish. With labour hire arrangements,
the three-way relationship between host, agency and worker will
continue for the period of the assignment.
The most recent Australian Bureau of
Statistics data on number employed through labour hire arrangements
suggests that 290 100 employees were on-hired through agencies
in June 2002 and 162 000 workers were paid by labour hire
firms in November 2001 (almost doubling from 84 300 some three
years earlier). The Australian Council of Trade Unions (ACTU)
estimates that one in five workplaces uses labour hire, while in
the largest workplaces (by employment) more than half use labour
hire agencies. While reasons for the growth of labour hire vary, it
appears that companies will turn to employment services after their
own companys internal personnel management or human resource
management functions have been reduced or contracted out.
The Bureau of Statistics estimates that the
value of the employment services industry in 200102 was $10.2
billion, although it notes that the industry generated a 30 per
cent increase in income over the three years 199899 to 200102. The
growth of this industry has generated concerns for Labor
governments in particular, as unions have put political and
industrial demands on governments to curb the use of labour hire.
Also, the recent debate over the casualisation of the workforce is
one manifestation of the growth of labour hire.(1)
Labour hire workers may be denied access to
the benefits of the collectively negotiated labour agreements of
the principal business and these businesses may deny responsibility
for the welfare of this class of worker, particularly in the areas
of health and safety and training.(2) The problems for
injured labour hire workers are compounded in that they are less
likely to have a specific work site to which to return for
rehabilitation and return-to-work duties.
One issue that unions often raise is that
labour hire workers at a particular site may be paid the award
rate, while their directly employed colleagues at the same site may
be paid at a higher enterprise bargaining rate.(3)
As labour hire workers have pursued grievances
over their employment terms or health and safety issues, industrial
tribunals in a number of cases have also questioned the use of a
labour supply intermediary, and have chosen to impose some employer
obligations on the host business. It should be stressed that such
approaches do not constitute the norm, as one of the key ongoing
issues with labour hire is whether the worker is: an employee, an
independent contractor or a dependent contractor. The definition of
the form of employment or engagement has major consequences in
respect of related rights; for example, only employees can commence
legal action against an unfair dismissal.
The growth of unstable, non-regular work
routines has implications for the living standards of agency
workers.(4) It also has implications for potential union
members and the administration of trade unions. ACTU Congress
policy has reflected concern with labour hire and, generally,
unions have sought to rope-in the major labour hire firms into the
relevant industry awards, or to create special purpose labour hire
awards that may have reference to the industry awards.
The focus in 2004 will be on a NSW Labor
Council test case on casual and labour hire work, which will be
heard by the NSW Industrial Relations Commission. This case seeks,
among other things, the conversion of labour hire employment to
direct employment after six months of work. The federal government
has signalled its intention to intervene in this case, which is
scheduled to begin in May 2004.
Employment placement or labour hire
arrangements have benefits for workers in the sense of having an
agent scouting for work and perhaps tailoring the conditionssay,
short hours or temporary periodsto suit the worker. For businesses
the immediate advantage is numerical flexibility, particularly the
ability to add labour during periods of demand, while not
increasing the prime workforce numbers. In many respects then,
labour hire appears to be a feature of a modern labour market.
Australia is noted in international
comparisons of the conditions of temporary work as having few
restrictions on the use of temporary contracts. The OECD has
undertaken studies of the strictness of labour law in the use of
temporary workers. In Australia, there are no restrictions on the
type of work or areas of economic activity where temporary work
agencies may choose to operate. From the OECDs perspective:
[Australias] labour law neither specifies a maximum number of
successive contracts or contract renewals.(5)
Against this relatively liberal background,
governments have taken initiatives to curb the worst features of
the labour hire industry. The New South Wales Government conducted
an inquiry into the labour hire industry in 2001 (NSW
Labour Hire Task Force Report), but has been reluctant to
implement all of its recommendations, although a tripartite council
governing the industry has been formed. A key recommendation was
registration of businesses operating to supply labour. Queensland
expanded its industrial relations law in 1999 to govern the
operation of the labour hire industry. Victoria will conduct its
own inquiry into labour hire in 2004. South Australia has also
considered the growth of atypical employment in a recent review of
the states industrial relations system and laws. Tasmania has
sought to remove an exemption on the payment of payroll tax by
labour hire firms, thus increasing their cost of operation. Western
Australia has included labour hire employment within its definition
of an employer.
State governments may be able to control the
worst features of labour hire by placing conditions on the agencies
through registration or by amending state labour laws. (The
exception may be Victoria, which transferred its industrial system
to the Commonwealth in 1996.) However, as almost all the states
have either acted to control or review the labour hire industry, a
national inquiry into its operation would seem warranted.
The term labour
hire elicits many connotations but few firm definitions. It can
refer to the use of alternative workforces by businesses, where a
supplier provides short or long term labour to a principal (the
host). The service might be comprised of a total function formerly
performed by the host but subsequently performed by the labour
supplier, or the service may simply be the referral of individual
workers to be directed to perform the work by the host. Employment
placement services form the broader group of services in which
labour hire operates. Where a person referred for a position from
an employment agency is accepted by the host, it is usual for the
relationship between the person referred and the employment agency
to terminate immediately (assuming fees and so on have been met).
Under labour hire arrangements, the three-way relation of host,
agency and worker continues for the period of the workers
engagement with the host.
Workers may be
engaged under labour hire as employees or non-employees
(independent contractors or dependent contractors). Employers gain
considerable benefits from engaging workers as non-employees.
Workers engaged this way are not entitled to forms of paid leave
and cannot contest an unfair dismissal; employers do not need to
provide superannuation or workers compensation cover.
The courts refer
to longstanding employment assessment criteria to determine whether
an engagement is one of employment or a contract for service (see
below), although weighting is also given to the terms of an
agreement for the performance of work. Under the usual
circumstances, labour hire workers are required to sign a contract
with their agency. This may specify that the relation is not one of employment. The often
ambiguous circumstances of the engagement of labour hire workers
has been explained to the Senate Community Affairs Committees
Inquiry into Poverty and Financial Hardship in the following
terms:
One [employment option] is that the labour hire
worker will become a casual employee of the labour hire agency.
They should be covered by either a state common rule award or, in
some very rare instances, by a federal award. However, alongside
that there will be a contract that that labour hire employee will
also sign. It is a common law contract; it is not registered in any
of our commissions under any of the provisions of the state or
federal legislation. It will run in conjunction with the award
provisions. But, really, most of those workers would not know what
their award provisions are
The other [option], and this is even harder, is
that the labour hire employee will be stated by the labour hire
company to be a contractor So that relationship is even more
tenuous.(6)
Those who seek
work via employment agencies may feel supported by having an agency
seek employment on their behalf and they may enjoy the freedoms
associated with limited term appointments. Labour hire of a
short-term nature allows employers some flexibilities, usually in
what is called numerical flexibility, functional flexibility, hours
flexibility or wages flexibility, to meet business peak demand or
trough periods. For workers and contractors, there is an advantage
to signing with an agency, as the agency has an interest in
securing work and thus income for those registering to work. But at
least some of this growth of labour hire appears to be coming from
the replacement of directly employed labour. There also seems to be
more evidencefor example, from major companies such as Telstra and
Qantasthat companies are seeking to increase the labour hire
component of their workforce at the expense of ongoing
employees.(7)
This paper
considers the labour hire industry in terms of its value and recent
growth. It reviews some analyses of the stages of development of
labour hire. The developments in employment law and contract law
that have assisted the growth of the industry are considered, as
well as certain instances where the courts have imposed obligations
on the host employer. The paper considers union responses,
particularly ACTU policy on labour hire and casualisation, and the
issues behind a test case on labour hire in the NSW industrial
jurisdiction in 2004, which has attracted federal intervention. The
paper concludes with an overview of responses taken by certain
state governments, and options for responses to labour hire.
The industry body representing the labour hire
industry, the Recruitment and Contract Services Association,
conducted a survey in 1999 that indicated that the recruitment
industry generates around $10 billion in annual sales in
Australia.(8) This data is more or less in line with
Australian Bureau of Statistics (ABS) estimates of the value of the
employment services industry in 200102, although the bureau noted
that the industry generated a 30 per cent increase in income over
the three years 199899 to 200102. In addition, it noted that
employment placement agencies including those operating under the
Job Network , as well as bodies such as group training
organisations, would account for a part of this
growth.(9) Labour hire constitutes a part of the
employment services industry.
The numbers placed
into work via employment placement agencies increased by 44 per
cent, from 2.3 million to 3.3 million placements in the three years
to June 2002.(10) The most recent ABS data on the number
employed through labour hire arrangements suggests that
290 100 employees were on-hired through agencies in June
2002.(11) The bureau also estimates that 162 000
workers were paid by labour hire firms in November 2001 as compared
to 84 000 three years earlier.(12) Thus, there
appears a discrepancy in estimates of labour hire workers.
Companies may be
reluctant to directly employ staff beyond the core staff needed to
administer a trading business; instead, they will use a labour hire
agency to find and scrutinise labour and have the agency employ
that labour, relying on provisions of the contract with the
supplier that allows workers to be recalled. In other words, the
host may exercise some choice and control over who is selected and
recalled for work periods. The arrangement may lead to the
displacement of the hosts ongoing workforce or part of it, as was
recently reported in The
Australian:
Because of the
difficulties small business faces in managing employment and
complying with the rules, many small businesses now use labour hire
companies for all or part of their workforce. Although it can be
more expensive than straight employment, labour hire delivers
flexibility.(13)
Another
dimension to labour hire is its capacity to contribute in strike
breaking, particularly as the old arbitration system continues in
decline and non-union bargaining of various forms continues to
spread.(14) The use of a replacement workforce was a
conspicuous feature of the 1998 waterfront dispute involving the
Maritime Union of Australia and various Patrick stevedoring
companies.(15)
The use of labour
hire accelerated over the 1990s and has allowed businesses to shed
many of the obligations that they would otherwise have to their
direct employees. While much union concern with labour supply
agencies has been with the possible undercutting of standard pay
rates, CCH labour law editor Peter Punch observes that one
important reason for the growth of labour supply agencies and
arrangements has been the advantages of these schemes to large
companies for tax planning purposes.(16) Other factors
behind outside recruitment have been the contracting out of
previously in-house personnel and human resource management
functions.(17)
In the public
sector, reductions in agency budgets have led to staff reductions,
including outsourcing of in-house work and redundancies of in-house
staff.(18) Rules on the subsequent re-employment of key
individuals within a certain timeframe has meant that their
re-employment can be facilitated more easily through a labour-hire
arrangement, as it circumvents an otherwise direct employment
relationship.(19) Perhaps another factor underlying the
public sectors use of temporary employment and labour hire has been
the linking of items of agency funding to specific term programs
often to be funded under competitive tender
arrangements.(20)
Consequently,
there are few sectors of the economy now in which labour hire is
not used. As the Queensland Government report Managing Health and
Safety in the Labour Hire Industry (1999) put it:
The growth and expanse in labour hire
organisations can be crudely measured by simply examining the
listings in the Yellow Pages of the Telephone Directory. It is hard
to find an industry in which these organisations do not operate.
Labour hire organisations continue to support traditional services
such as clerical, construction, transport and cleaning, and have
expanded into computer related and administrative tasks in the
public and private sector, home-based child care, security services
and many others.(21)
Also, local labour supply firms have been
displaced by larger localand some overseas-basedlabour supply
firms:
The contemporary industry in Australia features
a number of very large, high profile international labour hire, or
flexible labour firms that have moved in over the top of the
domestic operators, on occasion acquiring ownership and control of
those companies. Adecco and Manpower are amongst the largest labour
hire operators in Australia. Those operators have spread their
supply of labour across the entire labour market while other big
established players such as Skilled Engineering retain more
specialised operations. In 2000 it was estimated that Adecco had
revenues in Australia of over $700 million which were anticipated
to top $1 billion within two years.(22)
While the debate over labour hire is couched
in terms of national borders, the reality, as evident from the
quote above, is very much of an international industry that is
capable of finding overseas employment opportunities for local job
seekers as well as finding labour from developed countries. There
is also the related issues of labour hire and both legal and
illegal migration, which is currently a major political issue in
the United States that has not been explored
here.(23)
Richard Hall, a labour market researcher reporting on labour hire
arrangements, refers to three antecedents to the labour hire
industry:
-
the traditional agency
employment industry. Temping agencies
have long specialised in the provision of workers to help client
companies cope with fluctuations in demand or the temporary absence
of employees
-
the recruitment industry. This
industry expanded in the 1970s and 1980s when firms
outsourced their human-resource functions and then looked to
specialist recruitment companies to provide shortlists of suitable
candidates or to test such candidates through the recruitment firm
before making an offer of direct employment
-
the pure labour hire industry. This
industry grew in the late 1980s when several small
specialist firms began to offer contract labour as a replacement
for, or supplement to, existing employees in companies in several
highly unionised and dispute-prone industries, such as building and
construction and shearing.
Since the early 1990s, employers have
increased their use of casual, contractor and labour-hire forms of
employment, often on a long-term basis. Employers have used these
forms of labour not only to increase flexibilities, but also to
discard many of the conventional obligations of employers to
employees, most notably workers compensation coverage,
superannuation contributions and paid leave. It is the
proliferation of labour hire as the alternative to direct
employment that raises difficulties, according to Halls study:
The problem with labour hire in the contemporary
Australian labour market is not its existence per seit has, after
all existed in one form or another for at least 50 yearsbut rather
in its proliferation as an alternative form of employment
Regardless of the exact number of labour hire workers, it is
apparent that they constitute a large and growing proportion of the
labour market.(24)
Labour hire is a form of indirect employment
relationship in which the employer (the agency) supplies its
employees to work at a workplace controlled by a third party (the
client) in return for a fee from the client. A typical agency will
direct an employee to work for a client for a period (assignment)
ranging from a single day to a number of
years.(26)
During an
assignment the agency will pay the employee casual rates of pay,
although the employee will often work the same hours as the clients
permanent employees. When the host or agency terminates the
assignment, the employee may wait on the agencys books to be
reassigned to another client or to the same client. From
submissions to the NSW labour hire inquiry (NSW
Labour Hire Task Force Report), one major employers
association, the Australian Industry Group (AiG) estimates that
almost 97 per cent of labour-hire workers are engaged as casuals.
While some labour-hire workers are on long-term contracts (the ACTU
has estimated that over 10 per cent of labour-hire workers have
been with the one client for over two years(27)), the
Recruitment and Contract Services Association has estimated that
the average length of
labour hire assignment is six weeks.(28)
Power also notes
that most labour-hire assignments are for less than 12 months
meaning that, should the employment relationship fall under the
federal jurisdiction, the employee would be excluded from the
Workplace Relations
Acts unfair dismissal provisions. (This is also the case under
some, but not all, state dismissal laws.) Should the employee not
be regarded as such, but instead be viewed as providing a contract
for service, then the Workplace Relations Act, under
sections 127A-C, allows for such a contract to be reviewed for
unfairness, providing constitutional constraints underpinning these
provisions can be met.(29)
However, Powers
research traces a number of unfair dismissal cases in the federal
jurisdiction to ascertain what leverage agency workers can use
under the Workplace
Relations Act. He gives considerable weight to the Hamzy case in the Federal Court,
which allowed short-term casual employees access to the Acts unfair
dismissal jurisdiction.(30) The point should be made
that the case pertained to the rights of casual employees and the
decision hinged on an employee being required on a regular basis to
work to the businesss roster (not via labour-hire arrangements). An
attempt to overturn the Hamzy decision has been made via
an amendment to the Workplace Relations Act in the
Workplace Relations
Amendment (Fair Termination) Act 2003 (operative from 27
November 2003), which excludes casuals with less than 12 months of
sequential employment periods with the one employer from making
unfair dismissal applications.
Two issues concerning labour hire and labour
subcontracting receive considerable legal scrutiny. One concerns
the exemptions provided by the Trade Practices Act 1974 to
labour arrangements, and whether the Acts exemption for collective
bargaining should apply to labour-supply arrangements, and indeed
whether sub-contractors might be obliged to meet or abide by terms
of the framework employment agreements. The other concern is
whether the terms of a labour-supply contract will stand and in so
doing override any assumptions that, without the labour contract,
the arrangement would be seen as a direct employment relationship.
A direct employment relationship would impose greater obligations
on the employer (which at first instance is likely to be assumed to
be the labour hire agency).
Where an enterprise agreement contains a
provision purporting to restrict the use of labour-hire
arrangements, the provision may be questioned as to whether it
conflicts with provisions of the Trade Practices Act (section 45E)
by preventing or hindering contractors from acquiring services from
sub-contractors, labour-hire companies or other organisations such
as group training companies. On the other hand, direct employment
arrangements and bargaining are exempted from the Trade Practices Act [paragraph
51(2)(a)], which reads:
51(2): In determining whether a contravention of a
provision of this Part other than section 45D, 45DA, 45E, 45EA or
48 has been committed, regard shall not be had:
(a) to any act done in relation to, or to the
making of a contract or arrangement or the entering into of an
understanding, or to any provision of a contract, arrangement or
understanding, to the extent that the contract, arrangement or
understanding, or the provision, relates to the remuneration,
conditions of employment, hours of work or working conditions of
employees.
As was pointed out by the National
Competition Council in its review of certain provisions of the
Trade Practices
Act:
Section 51(2)(a) serves to minimise the
transactions, compliance and regulatory costs which may, in the
absence of the exemption, be associated with enforcing Part IV of
the TPA in respect of all employment agreements and
arrangements
The exemption provided by section 51(2)(a) is
aligned with Australias framework for industrial relations. By
exempting both employers and employees from the
application of Part IV, section 51(2)(a) allows employers and
employees to collectively bargain on employment agreements, as
recognised by Australias industrial relations
framework.(31)
Nevertheless, employer groups such as the
Australian Chamber of Commerce and Industry (ACCI) argue that
section 51(2) of the Trade
Practices Act provides only a limited exemption for collective
bargaining over matters such as wages and conditions of employment.
However, the issue also hinges on whether a subcontractors
workforce are contractors (managing their own business) or
dependent contractors (for example, reliant on one client for the
majority of their work and income) or are considered to be
employees. Thus, the other major task before tribunals may be
either to uphold a labour hire contract or to set it aside by
making the observation that, on the facts, the relationship is one
of employment.
The tribunals give considerable weight to
the formal instruments used to convert an employment relationship
into another arrangement. In Damevski v. Endoxos the
Australian Industrial Relations Commission initially found that
Riste Damevski was not an employee of Endoxos, but rather that he
had become an independent contractor. Damevski had been an employee
of the company, but was found to have resigned his employment and
entered into a contractual arrangement with a third party, MLC,
which then entered into contracts with Endoxos for the supply of
labour.(32) As will be noted, this view was overturned
on appeal.
That such arrangements are seen in the first
instance as legitimate is attributable, mainly, to the precedent
set in the Federal Courts Odco decision (see below).(33)
Even in cases where a contract for the performance of work
specifies two parties in a direct work relationship (as principal
and subcontractor), the courts are reluctant to override the
contract, and in its place imply an employeremployee
relationship.(34) However, some employment agency cases,
noted below, indicate a willingness by industrial (and related)
tribunals to consider the role of the host employer in directing
the performance of work. Thus, on occasions they find reasons not
to follow the Odco decision, and impart employment obligations on
the host.
The Federal Court considered the Odco labour
hire scheme in a number of cases in the late 1980s, culminating in
1991 with a full bench of the Federal Court upholding an earlier
finding that the use of labour hire was not one of employment of
the workers sent to various building sites. Odco is regarded as an
important case in the development of employment law and the tests
used to determine whether an employment arrangement is either: a
contract of service (employee) or a contract for service
(contractor). Thus a court takes evidence and asks questions
concerning the specifics of an employment arrangement, such as:
-
were PAYE taxation deductions made by the
employer or not?
-
were the workers paid annual leave or sick
leave?
-
did the employer exert a substantial degree of
control over the work being performed?
-
could the contractor subcontract work?
-
was the worker liable to rectify defects in
workmanship?(35)
The Federal Court decided that building
workers who had entered into contracts with the labour hire agency
Odco, trading as Troubleshooters Available, and who were placed by
that agency with principal contractors, were not employees of
either the agency or the building contractors. They were regarded
as sub-contractors.
The Minister for Industrial Relations at the
time, Senator Peter Cook, responded that if the Courts decision
represented the law on labour hire, then the law was an
ass.(36) Amendments were proposed to the federal
industrial law giving the Australian Industrial Relations
Commission the power to review unfair labour contracts; the
amendments would have allowed the commission to compare the terms
of a contract for the performance of work with the terms of an
otherwise applicable instrument, such as a relevant award. Many of
the proposed amendments were opposed by the then Opposition in the
Senate and a slimmer set of provisions dealing with unfair labour
contracts were incorporated into the federal labour law (Workplace Relations Act: sections
127A-C). The Coalition Government unsuccessfully sought to have
these provisions removed in 1996.(37)
Prior to the Odco decision, businesses had
developed other employment arrangements designed to conceal a
direct employment relationship, sometimes through the use of a
related entity, such as a trust.(38) The Odco system of labour supply
is now managed under license by Labour Supply Australia Pty Ltd.
Developments in taxation law have assisted in defining what may be
regarded as non-genuine contracting arrangements.
While the Income Tax Assessment Act 1997
prescribes tests for ascertaining whether an employee is a
contractor or directly employed, additional rules about genuine
contracting and dependent contracting have come about in the
federal governments laws on the alienation of personal services
incomethe 80 per cent rule as prescribed in Taxation Laws Amendment Act(No.6)
2001. The Parliamentary Librarys Bills
Digest 52 2001-02 noted the concern expressed at the time on
implications for employment agency contractors by this new
rule:
most concern [about the 80 per cent rule] had
been expressed by employment agencies and their clients who, under
the rules, would be treated as employees of the
agency.(39)
Another tribunal, the South Australian
Workers Compensation tribunal, has also declined to follow the Odco
decision in a claim where the employment arrangement appeared to
emulate the Odco system. The case involved a labour-hire
intermediary placing labour for tomato picking work.(40)
The tribunal decided, as a preliminary issue, that the applicant
worker who was engaged as a tomato picker by a company (Country
Metropolitan Agency Contracting Services Pty Ltd), which described
itself as an agency contracting service, was in fact an employee of
that labour-hire agency.
The labour-hire agency had argued that it
had no contractual relationship as an employer with the worker who
had signed a contract with it; a contract that acknowledged that no
employment relationship existed and that the employee was
self-employed. The labour-hire company argued that it simply
supplied personnel to third parties such as Chiquita, the host
employer in the case. Country Metropolitan had supplied the worker
to Chiquita Brands to pick tomatoes. The applicant, who was seeking
rights to workers' compensation, claimed that she was an employee
of either the labour-hire company or the host employer, and the
court upheld her application.
The finding by Deputy President Gilchrist that
the labour hire contractor was an employee for workers compensation
purposes was then upheld by a full bench of South Australia's
Workers Compensation Tribunal.(41) It ruled that the
worker was an employee of Country Metropolitan Agency Contracting
Services Pty Ltd, clearing the way for her to pursue a workers
compensation claim for a wrist injury. The full bench upheld
Gilchrist's finding that the indicators pointed strongly to the
worker being an employee, despite the fact that she had signed a
contract that clearly stipulated that she was an independent
contractor.
Oanh Nguyen
The case of Oanh Nguyen shows that the
industrial tribunals are prepared to consider the role of the host
company in awarding a claim for an unfair dismissal. Oanh Nguyen
was a process worker who was found to have been unfairly dismissed
in 2002 when she was told she was no longer required at the Thiess
recycling centre in Chullora, Sydney, where she had worked as a
labour-hire casual for more than two years. At the time of her
dismissal, she was seven months pregnant. Her dismissal was ordered
despite a medical report prepared by a company doctorsaying that
she could carry out her duties with some
restrictions.(42)
Commissioner Donna
McKenna, of the NSW Industrial Relations Commission, ruled that
Nguyen was unfairly dismissed without any attempt to accommodate
her pregnancy. Thiess had argued that it would have breached its
health and safety obligations if it had allowed her to continue to
work. McKenna determined:
It is not an appropriate response to
peremptorily dismiss on account of pregnancy in circumstances where
there may be, or is, a temporary need for added occupational health
and safety measures As a result of making direct contact with
Thiess seeking employment, the applicant was directly employed by
Thiess for at least a short period of time. After working for
Thiess for a shift or so, the applicant was then given paperwork to
complete. Thiess typically engages casuals through labour hire
agencies and, in this case, all relevant documentation was to the
effect that the applicant was henceforth to be an employee of
A-N-T. Thiess then forwarded the documentation to A-N-T Although
the evidence was not particularly well-developed in this respect,
at least some aspects of the applicant's conditions of employment,
such as hours, were referable to the site agreement Thiess had for
its (own) employees rather than to any other industrial instrument
applicable to A-N-T and by operation of a clause which applies
conditions to those working at the site.(43)
In a second
element in the case, counsel for Nguyen argued that Thiess and
A-N-T Personnel were jointly liable for the dismissal. Thiess and
A-N-T said Thiess was not the employer and that neither company had
dismissed Nguyen because she remained on A-N-Ts books after Thiess
stood her down. But Cr McKenna found Thiess was liable because it
had control over Nguyens recruitment, employment and termination.
She ordered that Thiess pay Nguyen $10 000 in compensation.
This case related to the conversion
of direct, ongoing employment to a labour-supply arrangement using
an intermediary and transferring an existing employee. Justices
Murray Wilcox, Shane Marshall and Ron Merkel found in three
separate judgments that there was a contract of employment between
a contract cleaner Riste Damevski and the business, Endoxos,
despite the role of a labour-hire agency.(44)
Justice Wilcox said it was clear that Endoxos managing director
Lindsay Burke intended that nothing would change in the employment
relationship after Endoxos moved to the use of a labour-supply
intermediary, MLC.
It is clear that nobody connected with MLC ever
had a subjective intention of effecting a contract between Mr
Damevski and Endoxos. The whole point of MLC's intervention was to
replace the existing employment contract between Mr Damevski and
Endoxos with an arrangement that would enable Endoxos to avoid some
of the obligations that attached to the employment
contract.(45)
There was no oral or written contract between
the cleaner and MLC. Justice Wilcox also stressed that while
Endoxos had relied on the Odco decision, the facts in that case
were significantly different.
In his judgment, Justice Marshall
said that MLC had been engaged solely to be the paymaster for the
cleaning company:
On 19 August 2001, Mr Damevski resigned from his
employment with Endoxos. Mr Damevski was given the choice by
Endoxos to resign and contract his services to a company called MLC
Workplace Solutions (MLC), or not be provided with any work by
Endoxos.(46)
Justice Marshall said that Endoxos
held the position of responsibility and wielded the power,and there
was no evidence that the cleaner was an independent contractor. He
criticised the Australian Industrial Relations Commission full
bench for assuming that the cleaner was tied to the deal struck
between Endoxos and MLC, saying that it had failed to consider
whether the cleaner had entered a separate but different contract
with each party and had ignored the possibility of joint
employment. Justice Marshall warned labour-hire companies against
seeking to use Odco arrangements illegitimately to allow employers
to avoid award and statutory obligations. MLC had clearly been
trying to replicate the Odco arrangements, but labour-hire
companies attempting to follow the same course should beware, he
said. When attempting to replicate the arrangement discussed in
Odco, it is not sufficient to give lip service to it.
In his judgment, Justice Merkel said that courts have generally
held that the existence of a labour-hire company between its client
and a worker it hires out does not result in an employeremployee
relationship between the client and the worker. But, he said, those
cases involved a number of features not present in the Endoxos
case, including that:
-
the labour supplier interviewed and selected
the workers and determined their remuneration without reference to
the client
-
clients requested workers with particular
skills and were provided with them from those on the books of the
labour hire company
-
labour-hire workers were required to keep the
agency informed of their availability and directed specifically not
to undertake work directly for the client
-
equipment was supplied by the worker or by the
labour-hire company (except for specialist safety equipment)
and
-
dismissal of the worker could only be done by
the labour hire company; the client could only advise the
labour-hire company that a particular worker's services were no
longer required.(47)
The Federal Court full bench quashed
the Australian Industrial Relations Commission full-bench decision
and directed the commission to determine the unfair dismissal
application in accordance with the law.
Labour unions regard labour-hire arrangements
as providing a means for avoiding collective employment agreements
and thereby treating a class of the workforce on inferior terms
compared to directly employed workers, and thus as a means for the
host company to increase its profitability. It is therefore
possible for the host company to deny or limit its responsibility
for the welfare of this class of employee, in regard to health and
safety and training.
In
The Future of Work, the
ACTU claims that between 1990 and 1995:
-
the proportion of all workplaces using
labour-hire workers increased from 14 per cent to 21 per cent
-
the proportion of large workplaces (more than
500 employees) using labour-hire workers increased from 16 per cent
to 55 per cent.(48)
The growth of unstable, non-regular work
routines has significant consequences for the living standards of
labour-hire employees. Unions have provided
submissions and evidence to the Senates Community Affairs
Committee Inquiry into Poverty and Financial Hardship on the
effects on living standards of labour hire, casual employment and
short hours.(49) The growth of labour hire also has
consequences for the growth and administration of trade unions.
ACTU Congress policy has reflected concern with this growth and,
generally, unions have sought to rope-in the major labour-hire
firms into the relevant industry awards or to negotiate new awards
for particular situations.(50) Item 4 of the 2000
Congresss Employment Standards Policy includes the
following:
4.1 The ACTU will encourage union bargaining for
contract and labour hire workers to receive the same pay and
conditions as directly employed workers at the enterprise.
4.2 The ACTU will pursue full enforcement of all
legal obligations relating to contracting out and transmission of
business.
4.3 The ACTU will seek legislative change for
employment security in line with the Industrial Legislation
policy.(51)
These principles have been expanded in the
ACTUs 2003 Casual
and Insecure Forms Of Employment Background Paper. While unions
regard award undercutting as a major concern with labour hire,
safety practicesor the difficulty of attributing safety
responsibilitiesis also high on the union agenda. According to the
Secretary of the NSW Labour Council, John Robertson, neither
labour-hire firms nor host employers regard safety as their
obligation.(52) He argues that the problems for injured
labour-hire workers are compounded by the fact that they are less
likely to have a specific work site to return to for rehabilitation
or return-to-work duties.
Given that industrial awards are made to cover
employees, efforts to extend award conditions to labour-supply
firms have been protracted. The growth of labour hire and its
accompanying union and award evasion prompted Victorian union
officials to trash the offices of labour-hire firm Skilled
Engineering and another firm, Johnson Tiles, on 15 June 2001.
This action resulted in court proceedings against the offenders and
divided the labour movement as to what an appropriate response to
labour hire should be.(53) The ACTU announced in its
Casual and Insecure Forms of
Employment Policy (2003) that it would pursue the following
agenda on labour hire over the next three years:
-
campaign against federal government moves to
restrict casual employee entitlements
-
lobby state governments to change laws and
support union applications to improve entitlements, such as
portable long service leave
-
support unions in seeking the right of casuals
to convert to full-time or part-time employment after a specific
period of time, and consider a test case
-
initiate and support bargaining concerning the
recruitment of casuals and labour-hire employees, the length of
their employment and the right to convert to full-time or part-time
employment
-
lobby for new federal and state laws to ensure
labour-hire workers, dependent contractors and home-based
outworkers are covered by appropriate awards and subject to the
jurisdiction of commissions
-
lobby for increased resources to ensure that
enforcement agencies are able to make sure that labour-hire
workers, dependent contractors and home-based outworkers receive
all their legal entitlements
-
support the NSW Labor Council and the
Australian Manufacturing Workers Union in seeking labour-hire
awards
-
campaign for labour-hire workers to receive the
same wages that the employer's direct employees receive
-
develop a contractor and labour-hire code of
practice and campaign for its adoption and
-
support the Textile Clothing and Footwear Union
of Australia (TCFUA) in seeking federal and state law changes that
ensure the unions outworkers receive the same wages and conditions
as factory workers.(54)
Another issue that concerns the union movement
is the impact of labour hire on the labour market, in so far as any
skills shortages may be exacerbated because labour-supply firms are
likely to have fewer facilities to train staff, a point also
reflected in the Building Industry Royal Commissions
report.(55) Unions such as the Australian Manufacturing
Workers Union have reported extensively on labour-hire practices in
its submission to the Senate Community Affairs Committees Inquiry
into Poverty and Financial Hardship. However, some unions have set
up labour-hire co-operatives, realising that the consequences of
industry downsizing and the rise of casualisation warrants some
union presence in the labour-hire market.(56) While
these union concerns are no doubt legitimate, it has not been
unknown for former union officials themselves to set up labour-hire
businesses.(57)
The OECD has conducted studies on the laws
of member countries that grade restrictions on the ease of
dismissing labour from employment as well as restrictions on using
temporary labour as employment protection measures. The OECD
regards Australias employment protection measures (state and
federal) as being relatively lax. As the OECD reported in a recent
survey on the Australian economy:
OECD assessments consistently show that
Australias employment protection legislation (EPL) is one of the
least strict in the OECD area, the only countries with more relaxed
EPL being the United States, United Kingdom, Canada and Ireland
regulations for temporary employment are comparatively light
handed. There are no restrictions on the type of work or areas of
economic activity where temporary work agencies can become active.
Current legislation neither specifies a maximum number of
successive contracts or contract renewals (emphasis
added).(58)
The European Union
sought to respond to the issue of temporary or atypical work in
consultations over a possible directive binding member states to
setting employment conditions for temporary workers, commencing in
1995. As of June 2003, differences between the social partners
(employers, unions and governments) had still not been resolved as
to the wording of the proposed directive. The differences centred
on:
-
the need for a specific derogation in order to
help unemployed people gain access to the labour market
-
a review and possible deletion of restrictions
to temporary agency work and
-
the nature of the exemption from the principle
of equal treatment between agency workers and user company
workers.(59)
The relevant
International Labour Organisation convention, Convention No.
181, Private Employment Agencies, 1997 lists the general
principles protecting workers in employment and job seekers against
poor terms and conditions of employment. Member states must take
measures to prevent abuses from labour-hire arrangements.
The convention provides general guidelines for the operation of
private employment agencies as well as for the protection of
workers using the services of these agencies. Australia has not
ratified this convention to date.
Under the convention, ratifying members
(states) must take measures to prevent:
-
denial of the right of workers to freedom of
association and the right to bargain collectively
-
abuse of migrant workers recruited by private
employment agencies
-
the use of child labour
-
the discrimination of workers (but not in such
a way as to prevent agencies from providing special services or
targeted programs designed to assist the most disadvantaged
workers) and
-
the misuse of personal data (by ensuring
respect for workers privacy and limiting data collection to matters
related to qualifications and professional experience).
Member states must also ensure adequate
protection for workers and determine and allocate the respective
responsibilities of private agencies and host employers in relation
to:
-
collective bargaining
-
minimum wages
-
working time and other working conditions
-
statutory social security benefits
-
access to training
-
protection in the field of occupational health
and safety
-
compensation in case of occupational accidents
or diseases
-
compensation in case of insolvency and
protection of workers claims and
-
maternity and parental protection and
benefits.
Unions recognise that there is a legitimate role
for labour hire in enterprises where labour demands may ebb and
flow But labour hire should not be used as a sly way of reducing
wages and conditions that workers are entitled to receive.
Legitimate labour hire employers have also accepted that there
needs to be regulation to prevent the exploitative practices of
some of the bottom-feeders.(61)
The NSW Labor Council wants the following
standards introduced in order to support the principle of equal pay
for equal work:
-
casuals who have worked on a regular basis with
the same employer for more than six months will be entitled to
'opt' for permanent work
-
labour-hire employees who have worked for an
employer for more than six months will be entitled to employment
with the host employer and
-
employers are to consult with employees and
relevant unions prior to contracting, and to guarantee existing
jobs, wages and conditions.
The claim also includes union consultation
provisions prior to outsourcing. Before the 2003 state election,
the NSW Labor Party released an industrial relations policy that
committed the Carr Government to further reforms in the labour-hire
industry arising from the NSW Labour Hire Task Force. The main
reforms are to form an employer, government and union labour-hire
industry council, to develop occupational health and safety
legislation that binds both host and supplier and to set up a
registration scheme for labour-hire firms.
The NSW Labor Council has continued with its
secure employment application, and hearings are set for May 2004.
Federal Workplace Relations Minister Kevin Andrews has responded by
proposing to intervene in the NSW test case.(62)
Queensland
On the change of government in 1998, the
Queensland Government set up a task force into industrial
relations, the report of which provided a blueprint for the current
Industrial Relations Act
1999 (Qld). Labour-hire issues were addressed by a) broadening
the definition of employee to include outworkers and b) creating a
new section (s. 275), which allows the Queensland Industrial
Relations Commission to declare a class of persons (contractors) to
be employees. The two-year report into the Act revealed that only
two cases had been pursued under s. 275.(63)
After a recent review of the legislation,
the Queensland Government introduced the Private Employment
Agencies and Other Acts Amendment Bill 2001 into Parliament on 12
December 2001 which came into effect as an Act on 26 April
2002.(64) The Act amends the Private Employment Agencies Act
1983 to implement the review's recommendations, which were as
follows:
-
to provide for the expiry of the Act over a
period of two years
-
to simplify the licensing process for private
employment agents
-
to establish an Employment Agents Advisory
Committee to oversee the Act's expiry process and also to develop a
draft code of conduct for the future regulation of employment
agents and
-
to transfer the provisions that protect job
applicants from being charged inappropriate fees to coverage by the
Industrial Relations Act 1999.
South Australia
The October 2002 review of the South
Australian Industrial Relations System considered the issue of
protection necessary for labour hire employees and recommended
that:
-
individuals employed by labour-hire companies
be prevented from receiving lower remuneration and working
conditions than those provided to employees of the host employer
under the relevant award
-
the legislation require that an employer of a
labour-hire employee be identified
-
labour-hire employees be able to take action in
the Industrial Relations Court or Commission against the
labour-hire company, host employer, or both in certain
circumstances; for example, when there was underpayment of
entitlements or unfair dismissal(65)
-
the concept of employment be redefined to make
it harder for employment relationships to be disguised as contracts
for services or avoided through the use of interposed entities such
as labour-hire agencies or personnel companies. As an alternative,
the report suggests a greater use of deeming provisions, including
a Queensland-style power for the Industrial Relations Commission to
deem groups of workers to be employees
-
the Industrial Relations Commission be allowed
to determine fair contract rates for selected types of contractor
and, on a discretionary basis, be allowed to treat labour-hire
workers as being jointly employed by the agency and the host for
whom they work, and
-
award provisions permitting regular casuals to
convert to permanent employment be encouraged, with a similar
entitlement ultimately to be created for non-award employees either
through legislation or by the Industrial Relations Commission
exercising what is proposed to be a general power to make awards of
general application.
Many, but not necessarily all, of these
measures have been included in new South Australian industrial
legislation called the Industrial Law Reform (Fair Work) Bill 2004.
A recent case before the South Australian Industrial Relations
Commission has resulted in call-centre agency workers being
converted to direct employees of the call centre (with its
agreement).(66)
Victoria
The Victorian Parliament's Economic
Development Committee is conducting an inquiry into the labour-hire
employment sector in Victoria. Industrial Relations Minister Rob
Hulls has said:
The labour hire sector has grown rapidly over
the past decade, but there is little research available on the
nature of labour hire employment or the impact labour hire use has
on the workforce. Contract labour hire employees are heavily relied
upon in a range of industries, including manufacturing,
construction, mining, transport, retail, government administration
and communications. This inquiry will examine the extent and
breadth of labour hire employment in Victoria. It will give us an
understanding on how labour hire use effects job security, wages,
work conditions, training and compliance with legal obligations,
particularly occupational health and safety
considerations.(67)
Under its terms of reference the committee is
required to inquire into and report on the extent and breadth of
labour-hire employment in Victoria, including the:
-
employment status of workers engaged by labour
hire companies
-
use of labour hire in particular industries
and/or regions and
-
the application of industrial relations,
occupational health and safety, and workers' compensation
legislation
The committee is also required to report on
the consequences of the use of labour-hire employment.
Consideration is to be given, but is not limited, to:
-
the rights and obligations of labour-hire
employees, labour-hire agencies and/or host employers under
industrial relations, occupational health and safety, and workers
compensation legislation. Any ambiguity about the nature of rights
and obligations between the three parties is also be
considered
-
the impact of labour hire on industry skills
levels
-
the contribution of labour hire to the
casualisation of the workforce and
-
the extent of any such consequences of labour
hire.
The committee will then make recommendations
based on an assessment of the above matters and including
consideration of:
-
the jurisdictional limitations of Victoria's
industrial relations powers
-
the recommendations of the NSW Labour Hire Task
Force and the responsibilities of the NSW Labour Hire Industry
Council (if established)
-
the regulation of labour hire in other
Australian jurisdictions
-
the impact of labour hire on business and
-
WorkSafe Victoria campaigns and activities
(clarifying host and agency responsibilities for health and
safety).
Western Australia
In Western Australia, the Labour Relations Reform Act 2002
(WA) extended the
definition of an employer to include labour-hire companies. The
Minister for Consumer and Employment Protection and Training,
Edward Kobelke, stated in the second reading speech to the Labour
Reform Bill 2002:
There has been a
growing concern that the labour hire industry has not been
adequately regulated by awards, and by the industrial relations
system in general. To ensure that the commission has the power it
properly requires, the (Labour Reform) Bill makes it explicit that
an employer also includes labour hire and group training
organisations.(68)
Tasmania
The Tasmanian Government has recently closed a
loophole in its payroll tax legislation that will have the effect
of placing heavy financial obligations on employment agencies
operating in Tasmania.
Employment agencies can be liable for payroll
tax in Tasmania. The Pay-roll Tax 1978 Act was amended
in 2000 to ensure equity in the treatment of wages for payroll tax
purposes, irrespective of whether workers were hired directly or
through an employment agency. Currently payroll tax is levied on
the wages paid by employers in excess of a threshold of $1.01
million a year.
The Act deems employment agencies to be
employers and the workers they hire out to be the employees of the
agency for payroll tax purposes. An exception is provided where
workers are on-hired to those clients who qualify for an exemption
from payroll tax, meaning institutions such as hospitals and
charitable institutions. However, employment agencies have
challenged this view. They have attempted to argue that where
workers are on-hired to clients who are not required to be
registered because the clients wages fall below the threshold, then
these clients should not be liable for payroll tax. A new
amendment, the Pay-roll Tax Amendment Bill 2003, affirms the only
grounds for an exemption as being where agency workers are on-hired
to institutions which would be exempt, such as hospitals and
charitable institutions.(69) The amendment thus has a
back-date effect of three years, and has caused a ripple in the
financial press.(70)
The data on the employment placement services
industry suggests that this is a fast-growing industry, recording a
30 per cent growth in income over the three years to 2002. The
labour-hire sector constitutes an important element of the broader
employment service industry. Thus, in many respects, the industry
is here to stay. Clearly, from the various responses of state
governments, the ongoing growth and role of the industry is of
concern.
By international comparisons, Australia has
few formal restrictions on the recurrent use of temporary work
contracts, which in part helps to explain the growth of temporary
work supplied through agencies. Other factors, such as the
outsourcing of personnel management functions, have also
contributed to the growth of employment placement.
Governments by contrast have, in recent times,
sought to respond to the new role of labour hire in the economy.
While it is prudent not to generalise on the views of governments
on the industry, it appears that governments generally accept the
usefulness of the industry, despite conducting a number of
inquiries into labour-hire arrangements in recent years.
There also appears to be some consensus on the
role of labour hire as a means to resolve demands for short-term
labour, and the unions in the main acknowledge this. However, the
debate becomes sharper where businesses, as a matter of policy,
determine to hire otherwise ongoing workers through labour-hire
agencies. From one point of view, the lack of regulation over
repeat short-term contracts is likely to make this practice
attractive. Union attempts in NSW to have both casual and
labour-hire employment converted to ongoing and direct employment
after six months service constitute an attempt to limit the repeat
use of temporary workers.
To date, the focus of the major institutional
players in Australia, including governments, industrial tribunals
and unions, has been to attempt to have agency employees treated on
the same terms as ongoing employees. Measures tightening or
suspending the licensing of labour-hire agencies to prevent the
undercutting of pay and conditions may be further considered,
although questions might be raised as to the efficacy of such
measures. In any case, a national review of the industry would seem
warranted.
Endnotes
- See, for example,
Ken Phillips,
Casual alternative wrongly demonised Australian Financial Review,
22 January 2004.
- Note the
evidence of Sally-Ann Taylor, Australian Manufacturing Workers
Union (AMWU) to the Senate Community Affairs Committee Inquiry into
Poverty and Financial Hardship, 26 May 2003, p. 302.
- ibid.
- Note the evidence
of Dale Carter to the Senate Community Affairs Committee: although
the workload at my childcare centre has increased in recent months,
management at the centre have decided to reduce staff hours. The
decision came closely after the announcement of the recent living
wage increase, 26 May 2003, p. 318.
- OECD Economic Surveys:Australia (OECD, Paris, 2003),
pp. 99101.
- Taylor to the
Senate Community Affairs Committee, op. cit., p. 312.
- See, for example,
Jetstar puts Qantas on collision course with unions, Australian Financial Review, 5
December 2003, and Wounded kangaroo, can Qantas survive? Business Review Weekly, 1016 July
2003.
-
NSW Labour Hire Task Force Report 2001, p. 18.
- Australian Bureau
of Statistics,
Employment Services, Australia 2001-02, cat. no. 8558.0,
5 August 2003.
- ibid.
- ibid.
- Australian Bureau
of Statistics,
Forms of Employment, November 2001, cat. no. 6359,
13 September 2002.
- Robert
Gottliebsen, Taxing tangle bedevils Tassie, The Australian, 2 December
2003.
- See, for example,
David Potter, Strike breakers tipped for stadium, Courier Mail, 1 March 2003,
which reported on an industrial dispute at the Suncorp Stadium
construction project and the use of group training companies to
break a strike. A useful article explaining the relationship of
bargaining forms, terms and levels, including federal and state
jurisdictions, section 170LJ and 170LK agreements, AWAs and so on,
is Marcus Priest, Workplace options keep the bosses busy,
Australian Financial
Review, 20 January 2004.
- See, for example,
G. Griffin and S. Svensen, Industrial relations implications of the
Australian waterside dispute, Australian Bulletin of Labour
vol. 24, no. 3, 1998.
- Peter Punch,
Comment on Morgan
v Kittochside Nominees Pty
Ltd (PR 918793), 13 June 2002, CCH Australian Industrial Law News,
March 2002.
- Richard Hall,
Labour hire in Australia: motivation, dynamics and prospects
ACIRRT Working Paper
76, p. 3.
- See, for example,
the Community
and Public Sector Unions, The union view of outsourcing, 5
December 2003.
- See, for example,
Public Service Act 1999
(Cth), section 6 (3).
- See, for example,
the bidding process required under Victorian local government
legislation in the specific-term provision of aged care services
between the in-house provider and other tenderers in Australian
Municipal, Administrative, Clerical and Services Union v Greater
Dandenong City Council v 248 of 1999; decision by Madgwick J.
(FCA) on 4 September 2000.
- Queensland
Department of Employment, Training and Industrial Relations,
Managing Health and
Safety in the Labour Hire Industry (1999), pp. 34.
- ibid., p. 4.
- See Wal-Mart vs
the workers: labour grievances are stacking up at the worlds
biggest company, Financial
Times, 20 November 2003. The article reports on illegal
immigrants working for Wal-Mart through contract labour-hire
arrangements.
- Hall op. cit.
p.7.
- Alan Kohler,
Industrial relations revolution seems to be turning full circle,
The Age,
6 December 2003. The full circle relates to Telstra employees
and union members being terminated and working as contractors, but
now joining the relevant union (CEPU).
- Charles Power,
Labour hire: the new industrial law frontier, Law Institute Journal, vol. 76,
no. 6, July 2002, p. 64.
- ACTU Submission
to the New South Wales Labour Hire Task Force Report 2001; http://www.actu.asn.au/public/papers/nswsub/nswsub.rtf
- ibid.
- The High Court:
re Dingjan & Ors; Ex
parte Wagner & Anor (1995) 183 CLR 323.
- Hamzy v
Tricon International Restaurants trading as KFC [2001] FCA
1589.
- National
Competition Council, Review
of Sections 51(2) and 51(3) of the Trade Practices Act 1974,
1999.
- Australian
Industrial Relations Commission PR920525, 25 July 2002. The
commission's consideration of the possibility of joint employment
of labour-hire workers by agencies and host employers features in
Morgan v Kittochside Nominees PR918793,
13 June 2002.
-
BWIU & Ors v Odco Pty Ltd, 99 ALR 735, 21 March
1991.
- Roy Morgan
Research Centre Pty Ltd v Commissioner for State Taxation
(2003) South Australian Supreme Court, 342.
- See also High
Court of Australia, Stevens v Brodribb Sawmilling Co Pty Ltd,
160 CLR 16.
- As noted by Peter
Costello MP in the House of Representatives consideration of the
Industrial Relations Reform Bill 1992, Parliamentary Debates 24 June
1992, p. 3841.
- The unfair labour
contracts provisions were proposed for repeal under Schedule 6 of
the Workplace Relations and Other Legislation Amendment Bill 1996,
as introduced to the House of Representatives on 23 May 1996.
- See, for example,
Wilson Parking (NSW) Pty Ltd
v Federated Miscellaneous Workers' Union of Australia (NSW
Branch) 1982 AILR 264, in which car parking attendants entered
into a partnership with Wilson Parking, which then submitted a
tender for the management of car parking services.
- Taxation Laws
Amendment Bill (No. 6), Parliamentary Library, Bills Digest 52, 2001-02
p. 2.
- Slater v WorkCover/Allianz Aust
(Chiquita Brands Adelaide Pty Ltd)/CGU & Anor [2002] SAWCT
27 (14 March 2002).
- Country
Metropolitan Agency Contracting Services (SA) Pty Ltd v Slater and
WorkCover/CGU Workers Compensation Insurance SAWCT 57 (30 May
2003).
- Sherill Nixon,
Pregnant, casual and unfairly sacked, Sydney Morning Herald, 4 March
2003.
- Oanh Nguyen and
A-N-T Contract Packers Pty Ltd t/as A-N-T Personnel & Thiess
Services Pty Ltd t/as Thiess Services [2003] NSWIR Comm (1006) 3
March 2003, http://www.austlii.edu.au/au/cases/nsw/NSWIRComm/2003
- Damevski
v Guidice [2003] FCAFC 252 (13 November 2003)
- ibid., paragraph
3.
- Ibid., paragraph
12.
- Ibid., paragraph
172.
- Australian
Council of Trade Unions, The
Future of Work, http://www.actu.asn.au/public/futurework/
- Taylor to the
Senate Community Affairs Committee, op. cit. and Carter to the
Senate Community Affairs Committee, op. cit.
- See the Royal
Commission into the Building and Construction Industry, http://www.royalcombci.gov.au/hearings/reports.asp,
vol. 8, chapter 10 on Labour Hire, p. 86. Note also the Australian
Industrial Relations Commission awards such as the
Telecommunications Services Industry (Customer Contact, Clerical
and Administrative) Labour Hire (Roping-In No 3) Award, which binds
call-centre operators who supply labour hire for Telstra.
- Australian
Council of Trade Unions, Employment Standards Policy Congress 2000.
See also Background Paper (for ACTU Congress 2003: Casual
and Insecure Forms Of Employment Background Paper.
- Safety, the
labour hire problem no-one wants to own, WorkplaceInfo (www.workplaceinfo.com.au),
14 August 2001.
- Philip Cullen,
Union rampage charges, Herald Sun, 22 July 2003.
- NSW unions and
ACTU rev up casual conversion campaign, WorkplaceInfo, 3 August
2003.
- http://www.royalcombci.gov.au/hearings/reports.asp,
vol. 8, chapter 10, p. 81.
- In the Hunter
Valley (NSW), a union-based labour-hire co-operative, the Hunter
Valley Employment Co-operative, has functioned since the mid
1980s.
- See the report of
Maurice Alexander Management in The secret Qantas, Business Review Weekly, 1016 July
2003, p. 39.
- OECD, op. cit.,
pp. 99101.
- See Social policy
state of play, European
Industrial Relations Review, issue 354, July 2003, pp.
1920.
- The
NSW Labour Hire Task Force Report (2001) reviewed the
labour-hire licensing approaches of the states and territories. See
p. 41 of the report.
- NSW unions to run
labour hire test case, WorkplaceInfo, 30 April 2002.
- Federal
Government gatecrashes NSW casuals case, WorkplaceInfo, 19 December
2003.
-
http://www.ir.qld.gov.au/reports&submissions/iract-first2yrs.pdf
- See
http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PrivatEmpAgA83_02A.pdf
- G. Stevens,
Review of the South
Australian Industrial Relations System: Report, Workplace
Services, Adelaide, 2002.
- Clerks South
Australia Award [2004] SAIR Commission 4, (28 January 2004).
- The Hon. Rob
Hulls, Inquiry into labour hire employment sector, Media Release, 26 May 2003. The
committee is due to report by December 2004.
- Edward Kobelke,
Labour Reform Bill 2002, Western Australia, Legislative Assembly,
Debates, 19 February 2002, p. 7521.
- Steven Kons,
Second Reading Speech: Pay-roll Tax Amendment Bill 2003,
Tasmania, Legislative Assembly, Debates, 25 November 2003,
pp.3293.
- See, for example,
Gottliebsen, op. cit.
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