Excluded classes of workers

A person who supplies a secondee is not taken to provide labour hire services, and the secondee is not considered to be a worker, unless the provider is predominantly in the business of providing the services of workers to other persons.

A secondee means a worker of a provider whom the provider provides to another person to do work on a temporary basis and:

• is engaged or employed as an employee by the provider on a regular and systematic basis; and
• has a reasonable expectation that the employment with the provider will continue; and
• primarily performs work for the provider, other than as a worker supplied to another person to do work for that other person

Scenario 1:

A lawyer employed by a law firm is seconded to a client for a period of time. The lawyer remains employed by the law firm, which is not predominantly in the business of providing the services of workers to other persons.

The law firm is not taken to provide labour hire services in relation to the secondment, and the lawyer is not considered to be a worker for the purposes of the LHL Act.

The law firm does not require a labour hire licence in relation to the secondment.

Scenario 2:

A farmer supplies a farm worker to a neighbouring farm temporarily to fulfil an immediate need. The worker is a secondee and the farmer is not predominantly in the business of providing the services of workers to other persons.

The farmer is not taken to provide labour hire services in relation to the arrangement, and the farm worker is not considered to be a worker for the purposes of the LHL Act.

The farmer does not require a labour hire licence in relation to the arrangement.

A person is not taken to provide labour hire services, and the individuals supplied are not considered to be workers, where:

• each person is part of an entity or group of entities that carry on business collectively as one recognisable business; and
• the individuals supplied do not perform work for a person that does not belong to that one recognisable business.

Scenario 1:

A landscaping business is comprised of a number of companies that are responsible for different aspects of the business. The business's workers are all employed by one of the companies and are supplied to work for one or more of the other companies within the business.

The companies carry on business collectively as one recognisable landscaping business, and the workers do not perform work for a person outside that one recognisable business.

The arrangement is not taken to be labour hire, and the workers are not considered to be workers for the purposes of the LHL Act.

Scenario 2:

A business operates a group of medical centres and employs workers for the centres through a trust entity. The workers, including doctors, nurses and reception staff, are supplied to the medical centres to perform work.

The entities carry on business collectively as one recognisable business, and the workers do not perform work for a person outside that one recognisable business.

The arrangement is not taken to be labour hire, and the workers are not considered to be workers for the purposes of the LHL Act.

A body corporate with no more than two directors is not taken to provide labour hire services, and its director is not considered to be a worker, where the body corporate supplies the director to another person to do work and the director participates in the management of the body corporate.

Scenario 1:

Mr and Ms Mason are both directors of Best Boilermaker Pty Ltd, a two-director company. Mr Mason participates in the management of the company.

Best Boilermaker supplies Mr Mason to a labour hire company, which then supplies him to various mine sites.

Best Boilermaker is not taken to provide labour hire services in relation to the supply of Mr Mason, and Mr Mason is not considered to be a worker for the purposes of the LHL Act.

However, the labour hire company that on-supplies Mr Mason to the mine may require a labour hire licence.

A person employed in a public sector body is not taken to provide labour hire services, and the person supplied is not considered to be a worker, where the person is, in accordance with an Act, made available to do work for another public sector body.

A person is not taken to provide labour hire services, and a student is not considered to be a worker, where the student is undertaking work to which Division 1 or Division 2 of Part 5.4 of the Education and Training Reform Act 2006 (Vic) applies.

This includes students undertaking work experience, structured workplace learning or practical placements where the relevant requirements of that Act apply. Information about work experience arrangements, structured workplace learning arrangements or practical placements is available at the Victorian Legislation and Parliamentary Documents website.

A person is not taken to provide labour hire services, and a person undertaking a vocational placement is not considered to be a worker, where the person is undertaking work or services under a vocational placement within the meaning of the Fair Work Act 2009 (Cth).

You can find more information about vocational placements on the Fair Work Ombudsman website.

A sole trader who supplies only their own labour is not taken to provide labour hire services, and the sole trader is not considered to be a worker for the purposes of the LHL Act.