As of 1 November 2019, Victoria’s new Labour Hire Licensing Scheme comes into force. If your business hires workers from another business to work for you, you will need to ensure that they are registered under the Labour Hire Licensing Scheme or otherwise risk facing civil penalties in excess of $500,000.00.

Importantly, the Scheme covers far more than just traditional labour hire companies. For example, commercial cleaning businesses are covered, meaning that all businesses using commercial cleaning services need to ensure that their cleaning providers are registered with the Scheme.

When am I hiring labour from a labour hire provider?

A business will be providing labour hire services to you if, in the course of their own business, they supply one or more workers to perform work in your business.

Recruitment and placement management businesses that provide accommodation to workers and certain contractor management providers are also covered by the Scheme.

The key requirement for an individual to be a worker under the Scheme is that they work ‘in or as part of’ your business, rather than as part of provider’s business. The Explanatory Memorandum that accompanied the Labour Hire Licensing Bill 2017 provides the following examples:

Where a business provides workers to another business to work alongside their own employees on a production line, under the supervision of the other business, that initial business will be providing labour hire services.
However, an accounting firm that provides accounting services to prepare tax documentation for a client’s business will not be providing labour hire services, because they are working as part of the accounting firm’s business and not the client’s.

In addition to the general scope of the Scheme under the Act, the Regulations make explicit provision of the certain classes of workers who are and are not covered by the Scheme.

Workers who are covered by the labour hire licensing Scheme

The Regulations provide that the following classes of workers are covered:

Cleaners of commercial premises,
Workers performing basic horticultural work (such as picking, sorting and packing fruit and vegetables),
Workers carrying out meat manufacturing and processing, and
Workers carrying out poultry processing.

We expect the inclusion of commercial contract cleaners, in particular, is likely to affect many businesses that would not ordinarily consider themselves users of labour hire services.

Workers who are not covered by the Scheme

The Regulations provide a number of exceptions to the Scheme who are not covered:

Individuals working on secondment,
Individuals provided by one business to another, where those two entities carry on the one business (this covers situations where you have two related companies that both undertake the one business),
Students completing work experience, and
Students completing vocational placement.

Registration under the labour hire licensing Scheme

There appears to be a significant amount of uncertainty about who needs to be registered under the Scheme. If a business that provides workers to you is not registered under the Scheme, we recommend asking them why they are not registered.

Have any further queries?

If you are in doubt yourself about whether a business is compliant with the law, please feel free to contact us for advice. Call Managing Principal and Accredited Specialist in Commercial Law, Mitchell Zadow on (03) 8561 3318 or fill in the contact form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Labour Hire Licensing Scheme

When am I hiring labour from a labour hire provider?

Workers who are covered by the labour hire licensing Scheme

Workers who are not covered by the Scheme

Registration under the labour hire licensing Scheme