Tuesday, 9 December 2025

 Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (20:36): Tonight’s bill, which we will hopefully complete, brings us a significant step closer towards acquitting our response to the recommendations contained in the Wilson review, which recommended strengthening the Labour Hire Authority’s ability to respond to criminal and unlawful conduct within the labour hire sector. In line with the government’s response to the review, the bill makes a series of changes to the Labour Hire Licensing Act 2018, each of which are targeted towards ensuring the Labour Hire Authority is better equipped to ensure providers are doing the right thing.

One thing I would particularly like to point out is that the final report of the Wilson review clearly identified that labour hire and its regulation was a particular issue in respect to behaviour that had come to light in relation to the CFMEU. Wilson cited numerous examples of labour hire being used to allow otherwise unauthorised persons on or to work on sites. The report directly stated labour hire firms have been identified as ‘opening a path for corruption’. That is why half of the recommendations contained in the final report are aimed at strengthening Victoria’s labour hire regulatory scheme and the Labour Hire Authority’s ability to address identified issues in the sector.

The specific amendments a lot of people have canvassed, so I will not have to go over them in detail. But the most notable changes are amendments to the fit and proper person test, the definition of ‘labour hire’, the expansion of powers to request documents, the expansion of publication powers and, related but more connected to some previous amendments, ensuring that there is a new offence of causing detriment or threatening to cause detriment to a person for making a complaint or providing information to the Workforce Inspectorate as part of its new complaints referral function. I want to thank the members who have engaged in the bill. There are a number of amendments, and I think it would be prudent to get to them.

Motion agreed to.

Read second time.

Committed.

Clause 1 (20:39)

Jeff BOURMAN: My question is about the proposed changes to the definition of labour hire. There are several arrangements that may provide services but do not and should not be considered labour hire arrangements. For example, it is quite common for practices such as architectural practices to engage in what can loosely be described as secondments to allow for peaks and troughs in demand without employee entitlements and employment coming to an end. This has the benefit of the employee retaining their employment and allows for continuity of employment where people would otherwise be made redundant and likely lose their accrued leave and service credits. Similarly, there may be arrangements where workers are provided to a business to provide specialist advice or services, such as consultants, but do not purport to provide labour hire, like consulting engineers and people like that who will be embedded in another business for quite some number of years. My question is: how will the government ensure that arrangements such as bona fide secondment and secondment-type arrangements, including the provision of workers to provide specialist services or advice, are not captured by the new definition proposed in the bill?

Jaclyn SYMES: I really want to provide some comfort around this. There is a specific exclusion by prescription in recommendation 4 for secondees. There are options to further clarify that secondment and secondment-like arrangements are not intended to be captured by the regulatory scheme, but they have in fact been specifically excluded by prescription. However, as I said, further clarity could be provided for the definition of ‘secondee’ in the regulations for avoidance of doubt. It is something that the department have taken my request to have a look at to avoid any of the confusion that you may have identified. We do not think they are captured, they are not expected to be captured. As I said, they have been specifically excluded. The arrangements do not have the character of labour supply, and the amendments to the definition that we will discuss further in this bill should make that even more clear.

David LIMBRICK: I have a couple of questions for the minister. One thing that I have brought up in Parliament before that is a bit of a concern is around the timeliness of investigations over applications. It is not possible through the annual report to tell how long either these new applications or reapplications are taking. In fact I have had one constituent contact me saying that his reapplication was taking years. I was wondering if the minister could provide some advice on what is happening with regard to reporting on application timeframes and how the Labour Hire Authority (LHA) is actually meeting those obligations and jobs that they have got.

Jaclyn SYMES: I will start just with not too many specifics, but obviously you brought to my attention a particular issue that a constituent of yours had in relation to timing. I certainly took that directly to the LHA and asked them to look at that. I committed to you at the time to ensure that I was asking for advice and to see if there was any specific action they could take in relation to that in a general sense without going into the details of the specific matter. What I can confirm is that the LHA have taken our collective feedback seriously and they have committed to publish annually on their website information about the assessment times for renewal and applications by compliant businesses. Your constituent and the timing that you referred to is not reflective of over 90 per cent of the renewals and the applications that they receive. The advice I have is that for the year to date the LHA have renewed the licences of over 90 per cent within 14 days.

David LIMBRICK: That sounds like it might be a small improvement to their reporting, so that is a good thing. I have another issue similar to Mr Bourman’s question around who is going to be swept up in the scope of these changes. I was contacted by another company that basically is like a matchmaking service for clients and service providers. This is specifically for things like NDIS clients; they might have a need for a service. They are concerned that their platform might be scooped up in this even though they do not provide any labour services themselves – they simply match providers with clients. I was wondering if the minister could provide some clarity on the intent of whether that type of business would be swept up under the regulator or not.

Jaclyn SYMES: I want to come back to the changes as opposed to answering on a case-by-case basis in relation to who would be captured and who would not, but from the outset, starting with the amendments proposed to the definition of ‘labour hire’, they are there to clarify the current scope of the scheme rather than seeking to expand it necessarily. The definition will hopefully be focused on the character of the arrangement itself, which is consistent with Queensland in particular but also some other states, and allows the LHA to look at a range of factors to determine whether the arrangement has the character of labour supply. It reflects changes in industry practice where the strict triangular labour hire arrangement may not always be present. For the most part, those businesses that are already regulated under the current act will continue to be covered. However, those businesses which have seen fit to structure themselves often to try and avoid these types of scrutiny could be captured and now be brought within the remit of the LHA. I think we will have some fairly detailed conversations about the labour hire definitions, because the Liberal amendments go to a lot of this, so we can explore this in quite a bit more detail, but I would come back to this not being about scooping up additional people necessarily; it is about making sure that those that should be captured by labour hire are.

David LIMBRICK: I accept the statements by the minister, but certainly there are some businesses out there that are concerned that they may end up coming under this new definition.

Jaclyn SYMES: But what are they worried about?

David LIMBRICK: Well, it severely affecting the way their business operates is what they are concerned about.

Jaclyn SYMES: Because someone might look and make sure they are not doing anything dodgy?

David LIMBRICK: I do not think it is that simple actually. I do not think it is that simple for many of these businesses. In my view, some of these businesses are not actually providing labour.

Jaclyn SYMES: I am not sure what they are worried about.

David LIMBRICK: So they are probably okay, but I am sure we will get back to that in the definitions anyway. When the Labour Hire Authority scheme first came in back in 2019 we spoke to a business at the time that was primarily an engineering company but they used to have some parts of their business that were labour hire, and they stopped doing this when this authority came into effect. Has been any consideration by the government on the disincentives that have been set up by having the Labour Hire Authority and potentially the changes in this bill, because some of these businesses just simply ceased to operate or ceased that part of their business?

Jaclyn SYMES: Nothing has been brought to my attention in the way that you have articulated it, because this is about making sure that there is the ability for the Labour Hire Authority to check practices. We want to encourage business participation. This is about making sure that everybody knows how they should be operating. It is about making sure that we are identifying corruption, responding to corruption, and we think the balance is right here. As I said, it is not intended to capture every employment relationship. Mr Bourman was concerned about secondees, interns and the like; this is about ensuring that there is, within the purview of the Labour Hire Authority, the ability to respond to some of the concerns that we have had. Also, there are a lot of workplaces that we have seen over the journey that often use labour hire arrangements and have really vulnerable workers that need protection. I point to the horticultural industry, the cleaning industry, meatworks and the like. There are really good reasons to have a close look at these workplaces, because some of them are good and some of them are not. We have heard some pretty horrible stories about the way that some people can be treated. I am pretty supportive of the fact that we are responding to not only the Wilson report in relation to the construction industry in particular but the broader areas where sometimes things we know have not been particularly operated in the best interests of the industry but, more particularly for me, of vulnerable workers.

David LIMBRICK: My final question is around procedural fairness for rejected applications. The authority has quite extensive discretionary powers. How do we ensure procedural fairness for businesses that have applications rejected?

Jaclyn SYMES: My experience with the Labour Hire Authority – listening to the way that they engage with organisations that fall within their remit, whether proactively or they have asked them to provide information, perhaps because they should be within their system – is there is backwards and forwards, exchange of documents and that kind of thing. There is provision for applicants to put forward supporting information in terms of an application where it might look as though there are concerns, but at the end of the day, if an application is rejected, there is the opportunity to go to VCAT.

Richard WELCH: Good evening, Minister. I will start with the definitions of ‘labour hire’.

Jaclyn SYMES: If I may, Mr Welch – I might be guided a bit by the Acting President – I am kind of relaxed in doing that, but you literally have amendments that go to this exact point. So wouldn’t we be better off dealing with this in the relevant clauses?

Richard WELCH: We can, if you have got a preference to do that.

Jaclyn SYMES: I think it would just get repetitive if we do not.

Richard WELCH: I would just do a tiny preamble to the amendment when it comes. I am not going to do a long speech at the amendment or anything like that.

Jaclyn SYMES: Okay. I just feel as though, through the Chair, I am going to be literally responding to your amendments through these questions, and I think I would prefer to do it amendment by amendment.

Richard WELCH: Okay. Just give me a second while I move forward then. A couple of questions have just gone through as well in that area.

The ACTING PRESIDENT (Gaelle Broad): Sorry, do you have other questions, Mr Welch?

Richard WELCH: I do. Sorry, I am just moving forward in my list.

The ACTING PRESIDENT (Gaelle Broad): That is fine.

Richard WELCH: Through you, you might call me up again. In terms of the compliance with legal obligations – I have got an amendment there, so, fine, I will move on. I think most of them or all of them go to an amendment, so I think we will maybe just go on.

Jaclyn SYMES: That is what I was thinking would happen.

Clause agreed to; clauses 2 and 3 agreed to.

New clause 3A (20:55)

Richard WELCH: I move:

1.   Insert the following New Clause to follow clause 3 –

‘3A New section 3A inserted

After section 3 of the Labour Hire Licensing Act 2018 insert –

“3A   Interpretation – subcontracting

To avoid doubt, nothing in this Act is intended to apply to a genuine subcontracting arrangement the character of which is not the supply of labour or the placement of a person to perform labour.”.’.

I do note that in the second-reading speech and in the preamble that exclusion of subcontracting is identified there, but it is not explicitly in the bill. This amendment is simply to make it unambiguous that subcontracting is not captured by this bill.

Jaclyn SYMES: At the outset, I am not too concerned about what Mr Welch is trying to do, but with the way that the amendment is structured we have some concerns about how that would play out. We believe that the proposed amendment is unnecessary and could be, in fact, problematic. There is a reason that there is no explicit definition – nor are there any in any comparable laws. The reason is that the concept of ‘subcontractor’ can mean vastly different things in different contexts. For example, when people in the community talk about genuine subcontractors, it can often mean labour hire providers, and this is also true within industries such as horticulture. By contrast, in construction it might mean an individual specialist tradesperson or an entity providing a combination of labour and services to another contractor – for example, some traffic management contractors who provide personal labour as well as traffic plans and permits. To the extent that it means an individual tradesperson with an ABN who is contracted to perform a particular trade on a construction site, then those are not covered by the scheme now and they will not be covered under the amended section 7. An individual tradie with an incorporated business providing themselves to work is already excluded by operation of section 11 of the act and also under the regulations. So the proposed new scope in the act that is proposed by our bill will reduce complexity for business and the labour hire authority and ensure focus on the true nature of arrangements. With this focus, entities who are genuinely providing a service rather than labour will not be covered and a subcontractor who is genuinely not supplying labour will not be covered by the scheme. Therefore there is no need for this amendment. If there was the amendment, it may cause confusion in the operation.

Aiv PUGLIELLI: My Greens colleagues and I are supportive of the bill as it stands. Further to the comments provided by the Treasurer, we concur and will not be supporting the amendment.

New clause negatived.

New clause 3B (20:58)

Richard WELCH: I move:

2.   Insert the following New Clause before clause 4 –

‘3B   New section 3B inserted

Before section 4 of the Labour Hire Licensing Act 2018 insert –

“3B   Authorised administrative users

A nominated officer of a licence holder may authorise a person employed or engaged by the licence holder to submit forms and documents to the Authority on behalf of the licence holder.”.’.

This amendment is simply an efficiency gain in that in other states there is not the requirement for the for the licence-holder to personally submit forms; an authorised administrative officer can do it on their behalf. It seems a bit anachronistic that someone has to personally handle the forms. The responsibility still lies with the licence-holder, no matter what the mechanism of submission is. So that is the intent of this amendment.

Jaclyn SYMES: I spent some time running this to ground with the department to understand what is happening, because I do not disagree with the way you have articulated that in terms of you wanting to make sure there is a free flow of information et cetera. But the advice is that the amendment as put would be problematic because what it proposes to do is unnecessary, because it can already occur but it is actually not considered best practice because it can dilute accountability. There is the ability for, say, the assistant to press send on the email et cetera or indeed put it in the post. That is already happening. Therefore in that sense it is potentially not necessary the way you have crafted your amendment. It is my advice that this can be managed operationally, because, as I said, it is already within the remit of labour hire to do this, so it does not require legislative amendment.

The Labour Hire Authority is already looking at ways to streamline administrative processes on the back of the proposed changes, including whether it might be appropriate for certain aspects of the application process to be delegated without diminishing the integrity of the scheme. In addition, the explicit language proposed in your amendment is likely to create unintended consequences, enabling avoidant behaviour which otherwise will be carefully managed by the authority. We do not want a situation where somebody can say ‘We didn’t intend for that to be sent to you; it was a subordinate’ or something like that. You do not want the lines of authority to be diluted. So the answer, effectively, as to why we do not want to support this is that we think it is largely already permissible and if it is too prescriptive it might dilute authority, and we think this is an operational matter for the Labour Hire Authority to better handle.

Aiv PUGLIELLI: Noting the advice that has been provided to the Treasurer, the Greens will also not be supporting this amendment.

New clause negatived.

Clause 4 (21:01)

Richard WELCH: I move:

1.   Clause 4, page 4, lines 13 to 16, omit all words and expressions on these lines.

I think this is the clause where the LHA can unilaterally determine if someone is a labour hire provider or not, not subject to a prescriptive list of the characteristics – in fact not subject to any of the other definitional elements. We do have some definition of the nature of the relationship, the totality of the relationship and other things, but at the end of all that there is a clause that just goes, ‘Well, the LHA can make its own determination irrespective of all of the above,’ which is a pretty substantial power. So I would like to excise that from it.

Jaclyn SYMES: At the outset, it is already within the LHA’s capacity to be able to identify where things are appropriate. I think back to the earlier conversation that we had, that it is this power that has enabled them to broaden their remit to cover industries that have very similar arrangements quite often to labour hire – horticultural cleaning for example. There is largely capacity already in the legislation, and the prescription is necessary and utilised now to cover those identified in the high-risk sectors that I referred to through the regulation power.

More broadly, on the clause 4 amendments, we will not be supporting this amendment or any of the amendments proposed on the definition changes, because we think there will be further concerns about it being too prescriptive. I want to just respond to your concerns about the definition being too broad. The definition is targeted to cover varying business structures that are labour hire but do not fit the usual three-body structure as well as provide greater alignment with other jurisdictions, providing better clarity for businesses, particularly those multijurisdictional businesses, which was something that Wilson picked up in his report.

The current definition is limited by the requirement for workers to be integrated into a host business, meaning that not all intermediary businesses that are supplying labour are able to be captured, as well as by not allowing consideration of the character of the arrangements being labour supply. The amendments to the definition have been made specifically to address these exact concerns, and your amendment will mean that we are not addressing those concerns. The amendments are also necessary so that the proposed amendments to prescribe certain construction activities in the regulations are not similarly affected. I guess I am a little perplexed that you would want to confine this when a lot of your speakers were concerned about activities in the construction sector and your amendment might actually prevent the LHA from being able to look at structures that provide workers to the construction sector that would be picked up through our definition, not your amended definition.

I do not accept the claim that this will capture arrangements that are genuine subcontracting arrangements or other arrangements that are not otherwise labour hire arrangements – similar conversations I was having with Mr Bourman. In fact providing for the consideration to look at the totality of the relationship means a more thorough examination of what the arrangement is, what services are provided and what the character of the arrangement is can be taken into consideration. It gives more opportunity for a provider to demonstrate to the authority that the totality and character of the relationship is not one of labour hire arrangements if that is not the case. Where the totality of the relationship does point to it being a labour hire arrangement, then this should be captured and the provider should be required to obtain a labour hire licence. A requirement to obtain a licence is not punitive, it is a necessary requirement to ensure that providers are complying with their obligations under the legislation. I do appreciate that providers will benefit from more clarity and guidance – and I think this is where you are trying to get to, Mr Welch – on the factors that are considered in assessing the relationship, and we have made this concern clear to the LHA, who have the ability to publish guidance materials that can capture this clarity. Obviously, with these changes, these are things that they are looking to do.

For the avoidance of doubt, the amendments we are making are important to ensure that we are covering the entire labour hire supply chain, including intermediaries. This is critical because there is compelling evidence of crime groups using intermediaries to infiltrate these sectors, which must be dealt with. I also need to be clear on the consequences of not supporting this change, because without changing the base definition as set out in clause 4, we would put at risk attempts to exclude entities related to outlaw motorcycle gangs by allowing them to operate companies and supply workers to sites through the intermediaries or by treating them as workers for service companies who are not integrated within a host business. That is why you will see the removal of the term ‘host’ in our proposal, but I also think it is very important to keep the opportunity to have that further, broader examination of where things might be relevant so that we are not inadvertently missing the targets that we are hoping to pick up, Mr Welch.

Aiv PUGLIELLI: The Greens will not be supporting the amendment.

Richard WELCH: I will ask some questions around this. The first question is: if this definition is required, why is it that in the Herald Sun today it said the LHA had already cancelled 126 licences and denied another 44? Are you saying that there are arrangements in labour hire firms that were not captured under the existing definitions?

Jaclyn SYMES: As I attempted to explain, and as has been picked up by the Wilson review – I am not in a position to give you a number, Mr Welch, but there have been concerns about particularly intermediary companies that are set up in the middle of supply chains to basically evade the regulations and the requirements to comply under the Labour Hire Authority. These are both issues that have been picked up by Wilson, but also the Labour Hire Authority have taken me through some of their examinations of the supply chains and structures of different employment arrangements that they feel should be brought into their remit, because basically they can see that there is concerning behaviour. You might have what would ordinarily be the host and the provider, but at the moment we have got potential for intermediaries to pop up in the middle, which is potentially falling foul of the current definition, which is what we are trying to pick up. I guess that is a long way of answering your question. Yes, both the Wilson report and the Labour Hire Authority have seen that there are gaps that they would like us to address. It is a more nuanced definition, but it could mean that we will be able to identify more people that should be collected.

Richard WELCH: What work have you done on these new definitions, the totality of the relationship and the character of the arrangement? How will they work in practice? Have you given guidance to the LHA on how you expect these things to be implemented?

Jaclyn SYMES: At the outset, remembering that the LHA is an independent body, I obviously have conversations with them, but they have obviously been involved and have been consulted heavily in the development of this legislation. I would also point to other jurisdictions which have some of the broader definitions that have been operating for some time; it might be eight years in Queensland. We have had the opportunity to reflect on other jurisdictions to inform these definitions.

Richard WELCH: How many additional licence holders would be captured under the scheme? Has there been an estimate? I know that you have said that you do not expect there to be a material expansion, but how many more do you feel will come under it?

Jaclyn SYMES: I think, as I answered to Mr Limbrick, we are not anticipating a material increase. That is not the intention of these changes. We do think that there are bodies out there that will be picked up, but we do not think that is going to be significant.

Richard WELCH: I know we have touched on this broadly, but I just want to be very precise about this one. Has the government considered the impact of the bill on legitimate group training organisations that may wish to provide apprentices to work on construction sites?

Jaclyn SYMES: As I said, I do not want to get too into the specific examples, but this is really about clarifying for everyone so that it is much clearer who is to be covered by the legislation and who is not a labour hire provider. Of course we have considered the application, but again, it is intended to clarify, not broaden significantly, the remit of the Labour Hire Authority.

Richard WELCH: I would quibble with that, because when we go to thematic definitions of the totality of the relationship and there is not an objective definition of what that is, I do not think it clarifies at all. That is why organisations like this are going, ‘Hey, are we in or out? Because we cannot tell from the law, as it is proposed, that we are or we aren’t,’ because it is going to be some sort of subjective ruling by the LHA as to whether they are or are not. It is not explicit.

Jaclyn SYMES: First of all, it is based on an objective assessment. That is what the considerations are about. You were asking about group training providers. Most of them are currently already captured. Who are you worried about? I do not want to get into specific examples, but if they do not think they are currently captured, I think there is no change in what we are doing today. Again, somebody might call themselves a group training provider and have some different characteristics, but at the moment group training providers are already captured under the existing laws, and there is no change to that in our mind. The fact that you have got people who are not currently captured and are now concerned they should be, perhaps they already should be captured.

Amendment negatived.

Richard WELCH: My amendment 3 is to omit clause 4. This will probably be quite quick, because my view and the feedback I have had from industries that I have consulted with is that the new definitions do not strengthen the arrangements; they actually weaken them, because the lack of prescription and the degree of subjective, interpretive qualities is not a step forward, it is a step backward. Therefore, if we if we cannot improve it, I would rather we just kept it as it is, which would provide the industry with certainty. What this bill now introduces is uncertainty as to whether you are captured or not. It will lead to a lot of doubt and confusion. The purpose of this amendment is simply to say that the definitions have, as of today, allowed us to disqualify 126 labour hire businesses under the existing rules and prevent another 44 from getting their licence – unless there are hundreds more businesses who were not captured, corrupt businesses that we missed under the existing regulations – and that this does not necessarily improve it for anyone. It just makes things more confusing.

Jaclyn SYMES: Mr Welch, at the outset, Wilson has specifically called for reform. To leave it as it is, his report finds, would create a risk of future corruption that could otherwise be avoided. More prescription will just allow dodgy businesses to find further workarounds; that is the advice that we have. As I said, I find it confusing that you had a range of speakers that were so concerned about corruption in the construction industry, but now you want to limit the remit of the Labour Hire Authority. As I was talking about before, the current definition is limited by the requirement for workers to be integrated into a host business, meaning that not all intermediary businesses that are supplying labour are able to be captured, as well as not allowing for consideration of the character of the arrangement, being labour supply. The amendments to the definition have been made to specifically address these concerns. The amendments are also necessary so that the prescribed amendments to prescribe certain construction activities in the regulations are not similarly affected. I do not accept the claim that this will capture genuine subcontracting arrangements or other arrangements that are genuinely not labour hire arrangements. But the advice is, as I can point to, that other jurisdictions have the broader definition in relation to character. I have got jurisdictions that we have looked at that work. I have got the Labour Hire Authority saying, ‘We think there are some structures that we should be capturing that it’s unclear whether we can,’ and we have got a report that looked at corruption that asked us to act. I do not quite get how you can argue that keeping it as it is, on the evidence that has been presented to you, actually stacks up. We think that this is a better way forward, and it is not just me saying it; it is what the review, jurisdictions and the experience of the labour authority are suggesting to us.

Richard WELCH: Which recommendation of the Wilson report does this change relate to?

Jaclyn SYMES: Four.

Richard WELCH: That says it should define certain actions, but the totality of the relationship does not define anything. It is a nebulous phrase.

Jaclyn SYMES: No, it is a statement. But that is a way to define and not be too prescriptive, because that would be too restrictive and would let some people off the hook that perhaps should not be. That is what I just do not understand – your commentary about wanting to pick up dodgy corruption, and you are wanting to confine it. It is illogical, Mr Welch. But we are going to go backwards and forwards all night if we stick to this kind of debate.

Richard WELCH: We will just see who gets the last word in. I think what recent history suggests is there was not a significant problem with the current definitions. There was a significant problem with the intent undertaken by the LHA to actually do their job. On these definitions, whilst I agree, if you want to liberalise laws and actually make them draconian in any walk of life, you can make them so, but that does not make it good law – that you remove the rules and give ultimate and total discretion to a bureaucrat as to what is going to happen. Good law makes it clear and gives people certainty about what is and what is not, and that is what this does not do. You can always go to the authoritarian extreme and give unlimited power to someone. But you need checks and balances and you need certainty in law, and we are not providing that. But that is all I intend to say.

Jaclyn SYMES: I think attacking an independent authority and being concerned about their level of authority – I look forward to the hypocrisy when we talk about IBAC’s powers and the Ombudsman’s powers. I am really not quite sure what position you find yourself in to make such an unwarranted attack on the independent body who has – literally you just quoted to me the amount of licences that they have linked to bikies and that they have taken action in. I am really not sure why you are attacking an organisation that has a job to do, has the support of government to do this job. There are checks and balances in place. As I said, I think a lot of your arguments today are going to come back and bite you. It is so contradictory to your attacks on the union movement, your calls for greater powers for a range of other organisations, but there is a bee in your bonnet over the Labour Hire Authority and the fact that you do not have trust in them to be able to apply some pretty clear definitions, which is exactly what other jurisdictions do.

Aiv PUGLIELLI: The Greens will not be supporting this amendment.

Clause agreed to; clauses 5 to 9 agreed to.

Clause 10 (21:23)

Richard WELCH: I move:

7.   Clause 10, lines 5 to 34, omit all words and expressions on these lines and insert –

“(1) A person is not a fit and proper person if –

(a)   the person has (within the preceding 10 years) engaged in, directed, encouraged or materially benefited from intimidation, coercion, extortion or other unlawful conduct carried out in connection with obtaining, supplying or controlling labour in the construction, contracting or labour hire sectors; or

(b)   the person has (within the preceding 10 years) been the subject of an adverse finding by –

(i)   a court, regulator or law enforcement agency; or

(ii)   an anti-corruption authority or taskforce; or

(iii)   the Australian Building and Construction Commission; or

(iv)   Fair Work Australia or the Fair Work Ombudsman; or

(v)   a royal commission –

that relates to –

(vii)   intimidation, coercion, violence, corruption, or unlawful industrial conduct; or

(viii)   criminal infiltration of the construction, contracting or labour hire sector; or

(c)   the person –

(i)   acts under the direction of or is significantly influenced by; or

(ii)   has (within the preceding 3 years) received payments, goods, services or other benefits from –

another person who or body that –

(iii)   operates in the construction, contracting, civil works or labour hire sectors; and

(iv)   has a history of engaging in intimidation, coercion, extortion or other unlawful conduct; or

(d)   the person has (within the preceding 10 years) acted in concert with, or for the benefit of, a person who or body that –

(i)   is operating in the construction, contracting or labour-hire sectors; and

(ii)   has been publicly identified by a law enforcement agency as being associated with coercion, extortion, serious violence, unlawful industrial conduct or other unlawful activity; or

(e)   the person or a body corporate of which the person was an officer has (within the preceding 10 years) –

(i)   been found by a court, tribunal or regulator to have contravened a workplace law, a labour hire industry law or a minimum accommodation standard; or

(ii)   been entered into an enforceable undertaking (however described) in respect of an alleged contravention of a workplace law, a labour hire industry law or a minimum accommodation standard; or

(f)   the person is a member or an affiliate of a Part 5C organisation.

(2) For the purposes of subsection (1), the Authority may have regard to –

(a)   findings, intelligence assessments or public statements of –

(i)   Victoria Police; or

(ii)   the Australian Criminal Intelligence Commission; or

(iii)   a prescribed law-enforcement body; and

(b)   any other matter that the Authority considers relevant.”.

8.   Clause 10, page 9, lines 1 to 32, omit all words and expressions on these lines.

9.   Clause 10, page 10, lines 1 to 7, omit all words and expressions on these lines.

Similar to the definitions, I am seeking something much more explicit. The Wilson review was principally about corruption on government worksites and it was about very explicit behaviours, about intimidation, extortion, bullying et cetera. People who undertake those behaviours should not be fit and proper persons. But what has happened in this new bill is that a lot of those conditions have become provisional, and maybe the LHA will say, ‘Well, even though you have exhibited those behaviours, even though you have been part of a corrupt business, we actually have the discretion to wave you through.’ The existing law provides prescriptively that if you have been part of this behaviour or if you have breached this sort of regulation, it is very clear that you are out. My amendment would bolster that in explicit reference to the Wilson review and the specific behaviours of a specific organisation on building sites, simply to bolster it rather than to make it relative.

Jaclyn SYMES: Did we want to have a conversation about the fit and proper person test here?

Richard WELCH: Okay.

Jaclyn SYMES: I just think that might be better.

Richard WELCH: Minister, why has the government removed every mandatory disqualification from the existing act and replaced them with discretionary factors that the authority can ignore?

Jaclyn SYMES: If we look at recommendation 3 of the Wilson report, it goes through a lot of the rationale here. Under the Labor Hire Licensing Act 2018 the Labour Hire Authority has the power to make licensing decisions: whether to grant a licence, refuse to grant a licence or grant a licence subject to specified conditions. In making licensing decisions, the Labour Hire Authority uses its legislative powers to undertake checks relating to a business and the key people who operate it to assess compliance with criteria including fit and proper person requirements. Currently, people are deemed to be fit and proper unless they fall into a prescriptive set of objectively determined categories which focus on past convictions for certain indictable offences, past contraventions of labour hire or workplace laws, and past involvements in insolvent corporations or within specific timeframes. If the prescribed criteria do not apply to the person, the Labour Hire Authority has no discretion to consider more general issues relating to an applicant’s character, such as honesty, integrity and professionalism, or compliance or ability to comply with relevant laws and convictions for other types of offences – nor does the test empower the Labour Hire Authority to consider whether the person is under the control of or substantially influenced by others who themselves are not fit and proper. The Labor Hire Authority have stated that these limitations impact its ability to keep out and remove persons who are not suitable to operate a labour hire business. This can lead to unintended consequences that appear inconsistent with the act – for example, deeming a person fit and proper when they have been in prison for relevant serious offences that are not listed in the current test. Similarly, a person who has offered a bribe to an inspector does not fall foul of the current test either. These are some of the reasons that both the Labor Hire Authority and the Wilson review identified as not up to date, I would say.

On what we are proposing to do, again, we compared other jurisdictions, including the three other jurisdictions with labour hire licensing schemes. They have much broader tests at the moment. The Queensland test requires the decision-maker to consider character, convictions for offences under relevant laws and whether the person is under the control of or substantially influenced by another person who is not fit and proper. The decision-maker has broad discretion to consider any other matter they consider relevant. The ACT has a similar test, and the South Australian test combines non-exhaustive, discretionary and mandatory considerations that have regard to other matters not identified in legislation. So it is again based on the Wilson review, our consideration that we think that we can do much better in strengthening this test. Some of the matters that we will now be able to consider under the test, should the legislation pass in its current form, are a person’s history and capacity to comply with specified laws; prior licensing, cancellation, suspensions or conditions; whether a person has been found guilty of an indictable offence in certain circumstances; matters to do with administration, receivership, controllership and insolvency; whether the person is under the control of or substantially influenced by another person who is not a fit and proper person; and a person’s character, including their honesty, integrity and professionalism.

That interaction between the Labour Hire Authority and applicants – it is an exploration of the issues. You can ask the questions. Just because somebody has got a 10-year-old conviction for something, that is not going to necessarily knock them out, but it is something that we think is a relevant factor for the consideration of being granted a licence. In addition to the list that I read out before, the Labour Hire Authority will also have broad discretion to consider any matter it considers relevant in deciding whether a person is fit and proper, giving them greater flexibility to consider a range of considerations in assessing fitness and proprietary, because it would be difficult to have an exhaustive list when you are looking to describe these things.

Richard WELCH: You might be able to clear up some confusion around this, because under the existing fit and proper persons test, it says:

A person is a fit and proper person, at a particular time, unless …

and then it goes on to provide a prescriptive list, whereas the new clause says:

In determining if a person is a fit and proper person, the Authority must have regard to the following …

Now, to me that means that is not unequivocal. That means you need to consider it, but it does not mean you have to deny on that basis. So that means that all subsequent conditions are not absolute. There is nothing absolute. So there is not a single clause in the new section 22 that automatically excludes an applicant, or is there?

Jaclyn SYMES: No, these are about guidance and factors that will be relevant. There will be obvious examples where people would be probably denied, particularly if they have contravened labour hire laws in the past or more in recent times. This enables a full examination of materially relevant matters, which we think the LHA are within their scope to do. It is also not currently the case as well. The LHA currently has discretion to grant a licence, even if an application does not satisfy the fit and proper person test.

Richard WELCH: But why should a person with multiple breaches of workplace laws or labour hire or other activities not be automatically disqualified? Why should it be conditional?

Jaclyn SYMES: I do not want to get into specifics, but that would be very unlikely to be approved.

Richard WELCH: Unlikely? They are not automatically disqualified, as they are now?

Jaclyn SYMES: They are not, currently, either.

Richard WELCH: Is it the government’s position that individuals with a proven history of unlawful workplace conduct could now be able to run a labour hire business?

Jaclyn SYMES: Mr Welch, the changes in this legislation do not change that hypothetical situation. There is nothing that has changed it. We now have a broader range of factors that can be considered than before. So again, I am not going to put myself in the position of the decision-maker, but the intention is to knock out people who are dodgy and have bad past practices.

Richard WELCH: Then why has enforceable undertaking for unlawful conduct been removed as a condition that would disqualify?

Jaclyn SYMES: Mr Welch, our definitions have been rewritten to be largely consistent with other states, but because of the broad ability to consider relevant factors, it has not knocked out anything.

Richard WELCH: I am not sure what that means. So specifically on enforceable undertakings, are they still relevant? How are they captured in the fit and proper person test?

Jaclyn SYMES: Because of the broad power for the LHA to consider relevant information.

Richard WELCH: Which is sort of my point. It is vague, so we are just delegating it all to the regulator to make it up and say, ‘Well, this will be in, but that will be out,’ because it is not actually defined in there. I guess in the same vein, why replace objective exclusion triggers with subjective judgements about honesty, integrity and professionalism, and how would they be measured?

Jaclyn SYMES: Mr Welch, as I said, these changes have been brought about by experience in the industry, looking at other jurisdictions and looking at the concerning conduct that we want to be able to respond to. This is about strengthening the fit and proper person test. The discretion that we are bringing in is critical to enable the LHA to have flexibility in responding to evolving practices by labour hire providers that may be unlawful, criminal, coercive and/or systemic in the licensing decision stage. So such flexibility is needed, given the very serious risks that have been identified with the use of labour hire licensing, both generally and specifically, within the construction industry. Subjective criteria are all in the fit and proper person test in other jurisdictions within their labour hire licensing schemes.

Richard WELCH: Thank you, Minister, but for example, though, how would someone measure professionalism? What measurement is applied to that? How do you determine if someone displays professionalism?

Jaclyn SYMES: Well, maybe this is the question that I can put back to you in a couple of clauses where your amendment asks to bring in the good character test. So again, you are about to contradict yourself. Mr Welch, as I said, we want the fit and proper person test to be broader. We want to make sure they can consider a range of things that pick up dodgy people, and that is what this is doing. I do not share your view that the Labour Hire Authority having this discretion is a problem; I think it will enable them to do their job better. I think the problem that we have with the conversation we are having about the merits of the definitions is that you have a fundamental view that the LHA is not going to do their job; I do not share that view, which is where we are combating in our views about how the test should be prescribed.

Richard WELCH: No, I am not even going that far. Right at the top level is: what does it mean? Just what does it mean? If someone reads this now, and they want to go into labour hire and they need to meet a professionalism test, what does that mean?

Jaclyn SYMES: It is why we have prescribed the things that are relevant that can be considered by the Labor Hire Authority. It is why it is in here saying that past conduct is considered, past offences can be considered. As the Labour Hire Authority has explained to us, if you just have a set of tick-a-boxes that you do not tick, then somebody can pass the fit and proper person test.

Richard WELCH: I am not contesting that in this question. I am simply asking for the definition.

Jaclyn SYMES: The definition of –

Richard WELCH: Professionalism.

Jaclyn SYMES: Well, the fit and proper person test is not a unique and brand new concept.

Richard WELCH: Then you should be able to answer.

Jaclyn SYMES: Well, Mr Welch, I would ask you to read the legislation. The whole point of it not being a set definition is that you risk knocking people out who should not be knocked out. This is not a new concept in the creation of legal terms. This is about being broad to enable them to consider a range of factors. If someone has been picked up for disciplinary proceedings or they have been charged with an offence that is relevant – these are all things that can be considered by the Labour Hire Authority, whose job it is to determine who is appropriate to operate within this industry.

Richard WELCH: Well, no, because where we are heading with this is this is all about the vibe. There need to be objective tests. You are saying the regulator can judge on the vibe that they are not professional: ‘We can’t tell you what that is, but we don’t like you, so you’re out on the vibe of not being professional.’

Jaclyn SYMES: Mr Welch, if I may, you are attacking the professionalism of an independent body whose job it is to regulate this industry. I think they are going to be better placed than you and better placed than me to determine how to apply a fit and proper person test. The legislation gives them guidance. They work with the industry day in, day out. They have been working in this industry for some time. They confer with other jurisdictions. They kind of know the people they need to go after, so they want to make sure it is a broad definition so that they are not cut out from being able to ask people questions about relevant factors that determine whether they should be working in this industry and providing workers and looking after workers and working with industry and supporting different workplaces to get the labour that they need. This is an organisation whose whole remit is what you and I are discussing, and again, you have a reflection, without basis, I must say, about the inability of the Labour Hire Authority to do their job. I do not share your views of this authority.

Richard WELCH: No, you have completely mischaracterised what I am saying. It does not necessarily have to be an attack on the LHA. The fact is that the LHA have allowed corrupt practices to flourish on government worksites; that is not in dispute. So to say that they are so professional and they are able to execute their skills flawlessly and better than me – well, as things stand, no, that is not the case at all. To then say ‘Well, rather than providing rigour, which is what they should have done all along, now we’ll just throw open the gates and we’ll go on the vibe of whether they think someone is professional or not’ is not good law. So no, your premise is wrong, because they have not done a good job. Because you cannot provide the rigour, you go to the other extreme, where it is anything they think, anything that is subjective. They subjectively or unilaterally decide that you are not professional. What does that mean? You cannot explain it. So does it mean that someone who has got a history of unlawful behaviour but presents very professionally would be able to get a labour hire licence?

Jaclyn SYMES: These are relevant considerations for the Labour Hire Authority to consider, and I think that they would look quite seriously at those matters.

Richard Welch interjected.

Jaclyn SYMES: Do you have a conflict to declare?

Richard WELCH: No.

Jaclyn SYMES: Sure?

Richard WELCH: Yes. No, I do not have any labour hire businesses. So how is a regulator expected to prove dishonesty or a lack of integrity or a lack of professionalism that would withstand, say, a VCAT challenge or something of that nature?

Jaclyn SYMES: Mr Welch, the Labour Hire Authority will have their role in assessing applications, obtaining information, considering the facts in their determination of whether someone is fit and proper. They do not necessarily have to prove that somebody has the components that go to the fit and proper person. So it is cumulative and they can consider a range of matters, and if that was challenged by VCAT, then VCAT would look at the evidence to determine whether what was relied on by the Labour Hire Authority was appropriate to determine that somebody was not fit and proper.

Richard WELCH: New section 22 completely omits any reference to coercion, extortion, intimidation or unlawful control of labour, which are the explicit behaviours that we are seeing on government worksites. Why is that?

Jaclyn SYMES: Well, it does not exclude those considerations, Mr Welch.

Richard WELCH: Where are they explicitly mentioned?

Jaclyn SYMES: This is the issue that we were talking about before, right at the outset, when we were talking about section 22. The new test goes further than the Queensland test, retains some of the Victorian test and picks up Wilson’s recommendations. Some of the matters that can be considered under the new test include a person’s history and capacity to comply with specified laws, which I think picks up and is basically the coverall for some of the examples that you gave.

Richard WELCH: But given that, as you said, this is in response to the Wilson report, which is in response to corruption on government worksites in which those behaviours were the explicit ones identified, why aren’t they also then included in this test? Wouldn’t that be the natural way to get rid of these behaviours?

Jaclyn SYMES: No, because they are covered – as I said, they are not excluded – so they do not need to be. Having a general discretion test enables all of these to be considered by the Labour Hire Authority. Wilson recommended that we have additional discretionary considerations, and as I said, this is important to ensure that we are picking up on any evolving behaviours that cannot be foreseen at this point in time. But there will be no restriction on the LHA from being able to consider things that are relevant for someone to be determined fit and proper.

Richard WELCH: Minister, can you name any law enforcement or regulatory agency – police, ASIC, WorkSafe, Wage Inspectorate Victoria – who asked for the government to remove the existing mandatory disqualifications?

Jaclyn SYMES: You are mischaracterising the amendment here, Mr Welch. Nothing has been excluded. In fact it is now a broader test.

Aiv PUGLIELLI: My Greens colleagues and I, in the reading of the provisions before us and our interpretation of them, have a very different view to that of the Liberal Party this evening. We do not see a need for these amendments that are being put by Mr Welch, so we will not be supporting them.

Amendments negatived.

Richard WELCH: I move:

3.   Clause 10, page 10, before line 5 insert –

“(1A) A person who is a member or an affiliate of a Part 5C organisation is not a fit and proper person.”.

Jaclyn SYMES: We do not support the proposed amendment to the fit and proper test because it is inconsistent with Wilson, reduces discretion, moves away from other jurisdictions and would limit our aim to be more consistent with other jurisdictions.

Amendment negatived; clause agreed to.

Clause 11 (21:50)

Richard WELCH: There is just a question here. There is a bit of a loophole in that the licence holder has to be of good character but they do not have to take any steps to ensure that the workers they place are of good character. As we have seen on worksites, that is actually where the problem arises, that the people placed actually become problematic, and it is the cause of some corruption. Would it not be reasonable that the licence holder takes reasonable steps to ensure the people they are placing are of good character?

Jaclyn SYMES: Mr Welch, we might just explore this a little more, because custom and practice would be that there are a range of recruitment activities that would be undertaken by the Labour Hire Authority or indeed the organisation that seek to engage the employment would have a range of conditions that they may wish them to meet. There are those types of arrangements that can already take place. I am just wondering, given you have got some amendments in this space, whether you are going on with your affiliate-type discussion, if it is that level, or if you are just asking why the Labour Hire Authority does not have a role in regulating the employees of labour hire authorities – if that is the angle you are going down.

Richard WELCH: No, not quite. It is simpler than that, really. Should the labour hire licence holder not have a duty of care, in a sense, that they are not placing people who themselves are members of proscribed organisations et cetera?

The ACTING PRESIDENT (Gaelle Broad): Treasurer, do you have any comments? Otherwise, I will call upon Mr Welch to move his amendment 10.

Jaclyn SYMES: Just to clarify, that is not within the scope of the today’s bill. There is a range of other types of legislation in relation to affiliation and the like, but that is not within the scope of this bill.

Richard WELCH: I would make the case that it is in the sense that we would argue that would form part of the licence-holders – a good and proper person test is that they are taking responsibility for the people that they are placing, and that they are willing to do so. Elsewhere we say in this legislation they are going to comply with this past, present and future. We make other expansive statements about their compliance that are not immediate and obvious. This would really not be inconsistent with that.

Jaclyn SYMES: Again, I think it is outside the scope of the bill here. We just had a conversation about the onerous nature of someone trying to determine whether they should be covered by labour hire or not, and now you want those labour hire companies to be responsible for every employee that they place, to a standard –

Richard WELCH: That is reasonable, to take reasonable steps.

Jaclyn SYMES: As I said, I think in terms of in terms of the employment practices and custom and practice, they generally interview people and make sure they are suitable for the job, there can be police checks, but this legislation is not regulating that.

Richard WELCH: I move:

10.   Clause 11, lines 24 to 26, omit “has complied, is complying and will continue to comply” and insert “has not in the previous 5 years materially failed to comply, is complying and has systems in place to support continued compliance”.

Amendment negatived.

Richard WELCH: I move:

11.   Clause 11, after line 28 insert –

“(1AA) In addition, an application must also include a declaration that the applicant undertakes to take all reasonable steps and precautions to ensure that any individual supplied for labour is of good character and not a member or an affiliate of a Part 5C organisation within the meaning of the Criminal Organisations Control Act 2012.”.

Amendment negatived; clause agreed to; clauses 12 to 19 agreed to.

Clause 20 (21:59)

Richard WELCH: The question around this and which speaks to the amendment is the matter of procedural fairness in the authority being able to publish the name of a business against whom the authority is merely considering whether to exercise action or not. With due process and fairness and damage to reputation that could occur merely by an action you are considering to undertake, but you may never undertake or reach the threshold where you do undertake –

Business interrupted pursuant to standing orders.

Jaclyn SYMES: Pursuant to standing order 4.08(1)(b), I declare the sitting to be extended by up to 1 hour.

Richard WELCH: Just to repeat that, it is just a matter of procedural fairness whether someone who the authority is considering whether to take action against should have their identity published when nothing has been proven against them.

Jaclyn SYMES: Mr Welch, there is nothing in this legislation that compels them to name, and certainly we would not expect this to happen where it is not appropriate to do so. I would point to the Fair Work Ombudsman that has a mimicked power here, or a mimicked ability, to make these publications. This is not about naming and shaming a provider that is merely under investigation. It is a transparency measure to enable the Labour Hire Authority to be able to more openly communicate the action it is taking where concerns are raised about a provider, something that – given the context and the kind of behaviour that has been the subject that led us here, which obviously involved a lot of significant public reporting – I think is a measure in the legislation that the public would expect. As I said, it is not only similar to the Fair Work Ombudsman, it is similar to what happens with other state and federal regulators who can publish information about active investigations that have not yet resulted in a licensing action. There are various safeguards relating to the exercise of this power, including that the provision does not affect the operation of any other act or law relating to information privacy or secrecy. It is about balance. It is not about destroying reputations, it is about transparency. Again pre-empting where you might go here, we have confidence in the independent authority, the Labour Hire Authority, to be able to make the decisions about when this is appropriate and when it may not be.

Richard WELCH: Will a business who might be subject to this disclosure without action be given advance notice of the intention to do so? By extension, will they have any mechanism by which to challenge it or dissuade it?

Jaclyn SYMES: As I indicated, there are various safeguards relating to the exercise of power, including that the provision does not affect the operation of any other act or law relating to information privacy or secrecy, and so we believe that the balance is struck.

Richard WELCH: I was being a bit more explicit than that. Will they be given notice in advance of the publication of their name?

Jaclyn SYMES: Not necessarily, because it is the disclosure of factual information.

The DEPUTY PRESIDENT: Mr Welch, I invite you to move your amendment 18.

Richard WELCH: I move:

18.   Clause 20, page 16, lines 4 and 5, omit “, or is considering whether to exercise,”.

Amendment negatived; clause agreed to; clauses 21 to 28 agreed to.

New clause 28A (22:04)

Richard WELCH: I move:

19.   Insert the following New Clause to follow clause 28 –

‘28A Review of Act

After section 113(3) of the Labour Hire Licensing Act 2018 insert –

“(4)   The Minister must review the operation of the amendments made by the Labour Hire Legislation Amendment (Licensing) Act 2025 to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(5)   The review is to be undertaken as soon as possible after the period of 2 years after the day on which Labour Hire Legislation Amendment (Licensing) Act 2025 receives the Royal Assent.

(6)   The Minister must cause a report on the outcome of the review to be laid before each House of Parliament as soon as practicable after the review is completed.”.’.

Jaclyn SYMES: I feel bad, Mr Welch. I almost would be happy to support this amendment because I am not worried about the impact of it. But first of all, it is not required. If we amend this bill, it does not become law until the Assembly comes back, so I would not be wanting to hold up the operation of some of these matters for a review clause that is not warranted. I will tell you why it is not warranted. First of all, the Wilson review already requires a review of the recommendations within two years of implementation. It is something that the government has already committed to in its response to the review, and so it is already going to happen. Secondly, there is actually an outstanding review of the labour hire bill from when the legislation was initially introduced. So rather than prepare this report and the one immediately after, I am proposing the review now be conducted within the two-year period of the commencement of this bill so that we can get a comprehensive review of the act in its entirety. I agree with you, but I do not agree with your amendment.

Aiv PUGLIELLI: The Greens will not be supporting this amendment.

New clause negatived; clauses 29 to 31 agreed to.

Reported to house without amendment.

 Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (22:06): I move:

That the report be now adopted.

Motion agreed to.

Report adopted.

 Jaclyn SYMES (Northern Victoria – Treasurer, Minister for Industrial Relations, Minister for Regional Development) (22:06): I move:

That the bill be now read a third time.

Motion agreed to.

Read third time.

The DEPUTY PRESIDENT: Pursuant to standing order 14.28, the bill will be returned to the Assembly with a message informing them that the Council have agreed to the bill without amendment.