Some companies are engaged in the business of employing people who are then 'hired out' to work in other businesses. Are you aware of the changes to labour hire laws?

After an in-depth inquiry into the labour hire sector, the Victorian Government has passed the Victorian Labour Hire Licensing Act 2018 (Vic). The Act came into force on 27 June 2018. However, many of the changes, including licensing requirements for labour hire providers, are not expected to begin before early 2019.

What are the key objectives of the new Act?

The report into this sector found damning evidence of underpayment and exploitation of workers. This Act aims to provide strong barriers and protections for workers who are in vulnerable positions to ensure that all superannuation, taxation and workplace obligations are upheld by companies who engage labour hire workers. The Act will cover providers, who in the course of conducting a business, provide or supply individuals to another business (the host) to subsequently perform work or business for that host.

What is the major change to the labour hire sector?

The Act introduces a number of key changes. The major change is that a labour hire business must not operate without a licence. There are heavy civil penalties for engaging in such prohibited conduct. There are also civil penalties for entities that enter into arrangements with labour hire businesses who operate without a licence. We would recommend that whenever you enter into labour hire arrangements, you must immediately enquire about whether the labour hire provider has a licence before any further negotiations are commenced.

How I do apply for a licence if I operate a labour hire entity?

The Act outlines a number of requirements that must be followed when applying for a licence. These include:

Your personal and business details such as your ABN, ACN and, if you are a body corporate, office holder details.
A declaration that you are a 'fit and proper person' to hold such a licence. This includes declaring:

1. Whether you have been found guilty of deception or drug trafficking offences in the previous 10 years

2. Whether you have contravened any workplace laws within the previous 5 years from the time of your application

3. Whether you have been insolvent in the previous 5 years, or

4. Whether you have been disqualified from managing corporations or body corporates in the previous 5 years.

You must also declare that you have complied with all superannuation, taxation, OHS standards, migration law, and any other workplace or labour hire laws. This declaration should include the same information, whether the labour hire business is currently being conducted or is a new business.

Once a licence is issued, it will remain in force for 3 years. However, during this time, it is not transferable.

Once I have a licence, is there anything I have to report?

Once you are granted a licence, you still must report the following information annually:

Whether you have been registered with the ATO;
Whether you have been registered with WorkSafe;
The number of workers you have supplied under the licence;
The terms of any labour hire arrangement;
Whether any workers supplied held temporary work visas and, if so, how many; and
Whether you are compliant with your original declaration made when you applied for a licence.

It must also be noted that inspectors can be appointed under the Act. If they request access to your books and information, you must comply. For further assistance if this occurs, contact us immediately.

How can Sharrock Pitman Legal help?

With tougher regulations and reporting requirements coming into force within the labour hire sector, it is extremely important that you remain compliant with your new obligations. At Sharrock Pitman Legal, our experienced legal practitioners can guide you through the process of applying for a licence and can ensure you are in the best position to remain compliant with the conditions of your licence.

Once you have your licence, and given the heavy civil penalties that can be imposed for non-compliance, it is important that you remain pro-active. For any legal advice or assistance, please feel free to contact our Accredited Specialist in Commercial Law, Mitchell Zadow on 1300 205 506 or complete the 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

Mitchell Zadow

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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Some companies are engaged in the business of employing people who are then 'hired out' to work in other businesses. Are you aware of the changes to labour hire laws?

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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Major changes to labour hire laws!

Some companies are engaged in the business of employing people who are then 'hired out' to work in other businesses. Are you aware of the changes to labour hire laws?

What are the key objectives of the new Act?

What is the major change to the labour hire sector?

How I do apply for a licence if I operate a labour hire entity?

Once I have a licence, is there anything I have to report?