12 September 2024
20 min read
#Workplace Relations & Safety, #Government
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The labour hire market has grown steadily over many years. In June 2023, the Australian Bureau of Statistics reported that 327,100 people had a job in the labour supply services sector and for 82.7 per cent of these workers, it was their main job. This total number of workers in the sector equates to 2.3 per cent of the employed workforce. In addition, the Australian Bureau of Statistics reported that 81.2 per cent of labour hire workers worked full time.
In the context of these statistics, the Fair Work Commission’s decision in Dung Thai vs Adecco Group [2024] FWC 2292 (Thai v Adecco Group) provides a reminder of the flexibility that this work structure offers and highlights certain actions that are required to manage a labour hire workforce.
On 7 September 2023, Mr Thai was employed by Adecco on a casual basis and given his first client assignment commencing 11 September 2023 (assignment). A workplace issue arose during the assignment around 1 May 2024, and on 10 May 2024, the assignment was immediately terminated. Mr Thai claimed that he had been dismissed and filed an unfair dismissal application on 22 May 2024 (application).
Addeco raised a jurisdictional challenge to the application on the basis that Mr Thai had not been dismissed and remained its employee, albeit not on assignment. Evidence presented showed that Adecco had offered Mr Thai alternative assignments and that he had submitted medical certificates regarding his fitness for work after the alleged dismissal date. This conduct was contrary to his claim that his employment had ended.
Relevantly, Commissioner Perica made the following comment concerning the nature and function of labour hire in the context of the Australian workforce:
“The engagement of externally employed casual labour hire has proliferated in Australia over the last two decades. The business model is a risk shifting exercise for the host employer. Rather than directly employing workers to deal with work surges, businesses engage externally employed labour hire workers. These externally employed workers come without the on-costs associated with direct employment or the legal regulation of the process of ending a direct employment relationship. The contract between the host and the labour hire provider is structured to ensure that the labour hire workers on assignment can be added or removed at will by the host. This sometimes has unfortunate consequences for the labour hire employees where their long–term assignments are ended abruptly.”
Overall, Commissioner Perica concluded that Mr Thai was not dismissed from his employment at Adecco and dismissed the application for lack of jurisdiction.
This decision is a timely reminder of how labour hire works, but it does not suggest that government agencies and state owned corporations can adopt a ‘cavalier’ approach. While Commissioner Perica’s statement in Thai v Adecco Group highlights the nature of labour hire and its place in workforce management, host employers must also consider a range of other important factors. These considerations include the following:
This list is from the perspective of the labour hire “worker”. In addition, each government agency and state owned corporation needs to consider each of those subject matters from the perspective of its own employed workforce, in particular at points of interaction and co-working with its labour hire workforce.
With the law increasingly looking to be agnostic to the form of engagement when it comes to work being performed, this form of engagement will continue to be the subject of reform and change. Government agencies and state owned corporations will need to regularly review the architecture of their systems and procedures for how they onboard, manage and off-board their labour hire workforces.
Authors: Stephen Trew, Julia Wyatt & Chloe Hamer
NSW government to trial average speed cameras for all vehicles in bid to curb state's rising road toll
Point-to-point speed cameras will track all vehicles in parts of regional NSW as part of a trial. The cameras calculate a driver's average speed to determine whether they have been driving over the limit. The trial will last for six months. Roads Minister John Graham said point-to-point, or average speed cameras, meant drivers could not simply slow down for a speed camera to avoid a fine. "Rather than test your speed at a particular point in time, like a mobile speed camera, these test the speed you're driving over 15 or 16 kilometres," he said. (8 September 2024). Read more here.
NSW government backs down on threat to suspend Liverpool Council ahead of local elections
Liverpool Council says the state government has backed down on its suspension threat and elections will go ahead next Saturday. Earlier this year, Minister for Local Government Ron Hoenig threatened to suspend councillors after a report found allegations of widespread dysfunction at the organisation. Council lodged a fresh court appeal on Thursday, but Liverpool Mayor Ned Mannoun said it had since reached a deal with the government. An inquiry will still be held into council, after an interim report from the Office of Local Government identified a "toxic culture" within the organisation. (5 September 2024). Read more here.
NSW government proposes suite of 'very tough' domestic violence changes
Repeat domestic violence abusers will face additional prison time, while other serious offenders will be required to inform police of any online dating profiles they create, if a suite of legislative reforms are passed in the NSW parliament this month. The NSW government will introduce two new offences, new court orders and a series of other changes in a bid to strengthen laws around domestic violence. The premier said the changes send the message that the justice system prioritises the safety of victim-survivors. The proposed reforms will be put to parliament this month. (2 September 2024). Read more here.
Thousands of nurses and midwives strike across NSW demanding better pay despite IRC order
Thousands of nurses across New South Wales have walked off the job demanding a one-year, 15 per cent pay rise, despite an Industrial Relations Commission (IRC) order for them not to. The industrial court told the nurses' union to call off the 12.5-hour-long strike yesterday. The state government argued the strike would cause extensive delays at hospitals, impacting patients and delaying elective surgeries. Speaking to a nurse who called into Nine Radio, Premier Chris Minns said his government could not afford to meet the union's demands: "If we implemented a 15 per cent, one-year increase in salaries, it would cost $6.5 billion, that's more than we spend on the entire police force." (10 September 2024). Read more here.
Voters to decide whether to slash number of councillors in five NSW council areas
Woollahra Council, in Sydney's eastern suburbs, is among those holding a constitutional referendum. Woollahra residents will vote on reducing the number of councillors from 15 to nine at Saturday's local government elections. Supporters of the No campaign say minor parties and independents will lose out, while those in favour argue changes to the workload means fewer councillors are needed. Liberal councillor Sean Carmichael said between five and 12 councillors was optimal for "good-quality decision-making". If the vote is successful, the change will kick in from 2028, with the merger of wards likely. (11 September 2024). Read more here.
New fund announced to help tackle the homelessness crisis
The Minns Labor Government is continuing to pull every available lever to address the housing affordability and availability crisis facing New South Wales, with an $100 million investment into Homelessness Innovation Fund. This game-changing fund comes at a critical time, as the 2024 NSW Street Count revealed a 26 per-cent increase in rough sleeping over the past year. The fund will equip homelessness organisations with the tools to develop creative and innovative solutions to the housing crisis. Delivering more effective support to those experiencing homelessness, including the rapidly growing number of women and children fleeing domestic violence. (10 September 2024). Read more here.
Blacktown City Council denies breaking the law in sale of assets to redevelop CBD
Blacktown City Council has been accused of potentially breaking the law by signing a "very bad" $42 million deal selling off key council properties to a major Sydney developer for the transformation of its CBD. Walker Corporation signed the deal in March 2023 to deliver a $2 billion redevelopment of Blacktown's CBD with commercial office space and a new private medical facility and research institute, which it says will boost the local economy by as much as $1 billion annually. Now Liberal councillors have accused the council of breaking the law by failing to put the sale to tender. (4 September 2024). Read more here.
New report shapes way forward for freight policy reform
Delivering their Interim Directions report, the independent Freight Policy Reform Panel has made key recommendations to support an efficient logistics supply chain in New South Wales. The Reform Panel has taken a broad look at the industry, with analysis showing freight volumes are estimated to increase by 26 per cent across NSW between 2021 and 2041, with a 40 per cent increase in Greater Sydney alone. The release of the paper marks some immediate actions for government and industry to undertake and the opening of the second round of consultation ahead of the Policy’s finalisation by the end of the year. The Interim Directions Paper looks at the end-to-end freight logistics chain, focusing on both industry and network policy. (11 September 2024). Read more here.
The NSW Productivity and Equality Commissioner released Review of housing supply challenges and policy options for New South Wales
The Commissioner provided the Review’s final report to the Premier and Treasurer on 30 August 2024. The report finds that the cost of building homes has increased significantly since 2018, with barriers to housing supply including high construction and borrowing costs, capacity constraints in the construction sector, and bottlenecks in the development process. The report outlines 32 recommendations to support homebuilding in New South Wales now and into the future, including recommendations about how to: free up construction capacity to build more homes quickly; streamline the development process; grow the construction workforce and build industry capability; and ensure a diverse and equitable supply of new homes. (30 August 2024). Read more here.
NSW Invasive Species Management Review
The NSW Premier has requested the Commission to review the priority risks and impacts of invasive species in NSW, including the effectiveness of current management strategies. This will help to inform the NSW Government of key opportunities to better manage invasive species, supported by the best available evidence. Pests and weeds cause over $25 billion in damage to agriculture and biodiversity each year nationally, of which NSW bears a large proportion. Over 70 percent of NSW’s threatened species and endangered ecological communities are also impacted by invasive species. (9 September 2024). Read more here.
Final Bus Industry Taskforce Report released
The Bus Industry Taskforce brought together bus operators, industry experts, the workforce, and community representatives to determine how to deliver more efficient and reliable services. The NSW Bus Industry Taskforce has handed down its Final Report. This report is the culmination of 12 months of investigation, consultation and engagement to identify strategic and tactical responses to deliver improved bus services for the people of NSW. There were 19 Recommendations covering four key areas including: passenger experience, bus service contracts, safety and workforce. (3 September 2024). Read more here.
TPG24-27 Performance Reporting and Monitoring Policy for Government Businesses
The NSW Government owns and controls a number of public sector entities which are commonly referred to as ‘government businesses’. Generally, these businesses have been established with an ‘arms-length’ relationship from government to deliver activities which are commercial in nature, as well as specific objectives and/or priorities of the Government. Government businesses are accountable for the performance to their owners, the people of New South Wales, as represented by Government Ministers. The business’s management and board (where applicable) are held accountable for the financial and non-financial performance of the business. (5 September 2024). Read more here.
TPG24-24 Recurrent Expenditure Assurance Framework
The Recurrent Expenditure Assurance Framework (REAF) outlines the procedures for the application of the NSW Gateway Policy to major recurrent expenditure investments. This Framework sets out the requirements that must be followed by the Delivery Agency, the Major Recurrent Advisory Group (MRAG), the Expert Review Team, and NSW Treasury (as the Gateway Coordination Agency for this Framework). The REAF is established under the NSW Gateway Policy. It is approved by the NSW Government and applies to Major Recurrent Expenditure Projects being undertaken by agencies. (4 September 2024). Read more here.
TPG23-27 Gender Impact Assessment Policy
The Gender Impact Assessment Policy provides guidance to general government sector (GGS) agencies on when and how to produce gender impact assessments for new policy proposals (NPPs). The Gender Impact Assessment Policy comes into effect on 1 October 2024. All government agencies are required to prepare gender impact assessments for NPPs. This recognises the important role the NSW Government plays in ensuring the needs of all genders are understood and addressed in the development of public policy. (3 September 2024). Read more here.
Dodgy suppliers to be banned from NSW Government contracts
The Minns Labor Government will introduce legislation to ban suppliers who engage in serious misconduct or abuse of trust from doing business with the NSW Government. The procurement reforms will establish a debarment regime and define the rules and processes which can be used to stop a supplier from gaining access the state’s annual $42 billion spend. For the first time, the NSW Government will have the power to exclude suppliers that engage in misconduct. Examples of misconduct could include the company, or one of its directors or senior managers, having engaged in fraudulent or corrupt conduct or failing to comply with taxation laws. Lesser penalties, such as suspension, could apply to suppliers depending on the seriousness of the conduct and any mitigating circumstances. (1 September 2024). Read more here.
Building reform legislation update
New building legislation is expected to be introduced to NSW Parliament later this year. The NSW Government is seeking comments on the draft building Bills and other documents for this building reform. Local government and industry groups have until 18 October 2024 to respond. Key changes for councils to be aware of are proposals to: move the certification provisions out of planning legislation and into the draft Building Bill; change terminology used in the building approval process; introduce provisions that would allow Building Commission NSW to impose a new role of “Supervising Certifier” to oversee council certification work; require prefabricated buildings to obtain development consent under planning legislation rather than existing Local Government Act approval processes. (2 September 2024). Read more here.
Regional Development Advisory Council EOI open
Community members interested in shaping the future prosperity of regional NSW are encouraged to apply to become part of the NSW Government’s Regional Development Advisory Council. The Minns Labor Government has introduced important changes to how government funds are used to ensure they reflect the needs of regional communities and aim to deliver real outcomes. The Advisory Council provides independent advice to the Minister for Regional NSW about investments made by the NSW Government’s $400 million Regional Development Trust. The NSW Government established the Advisory Council to offer independent advice that ensures projects and programs are evidence-based and that regional communities are at the centre of government decision making. (11 September 2024). Read more here.
Feng v Chief Commissioner of State Revenue [2024] NSWCATAD 273
TAXES AND DUTIES – Land tax – Surcharge land tax – foreign person – liability
TAXES AND DUTIES – Land tax – Surcharge land tax – exemptions – principal place of residence
Liverpool City Council v Minister for Local Government and Ors [2024] NSWLEC 94
ADMINISTRATIVE LAW – Judicial review – Office of Local Government – Ministerial decision – Local government – Liverpool City Council – procedural fairness – bias or apprehended bias – improper purpose – jurisdictional error affecting later decisions under the Local Government Act 1993 (NSW) – interim report – public inquiry – amended summons dismissed
Cameron v Woollahra Municipal Council [2024] NSWCA 216
CIVIL PROCEDURE – time – extension of time to commence judicial review proceedings
ADMINISTRATIVE LAW – whether reviewable decision – jurisdictional error – where decision to issue a construction certificate legally unreasonable
ENVIRONMENT AND PLANNING – consent – conditions – construction certificate – plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent – effect of decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA in circumstances where jurisdictional error has been established
Burke v Commissioner of Police, NSW Police Force [2024] NSWCATAD 260
ADMINISTRATIVE LAW – administrative review of refusal to grant silencer permit under Weapons Prohibition Act 1998 (NSW) – whether genuine reason for business/employment purposes – meaning of “necessary in the conduct of the applicant’s business or employment”
State of New South Wales v Kay (Final) [2024] NSWSC 1132
HIGH RISK OFFENDERS – application for extended supervision order – final hearing – third ESO – high risk sex offender – “statistical outlier” – difficult to apply ordinary assumptions based on advanced age – where parties accept defendant poses unacceptable risk of committing a serious offence if not kept under supervision – where dispute as to conditions of supervision – electronic monitoring – victim impact statements – orders made
Topcubasi v Chief Commissioner of State Revenue [2024] NSWCATAD 258
ADMINISTRATIVE LAW – administrative review – assessment – objection – review by Civil and Administrative Tribunal
STATE TAXES – surcharge purchaser duty – tax default – interest – market rate – premium rate – penalties – remission – discretion – circumstances beyond control of taxpayer – reasonable care
Proclamations commencing Acts
Explosives Amendment Act 2023 No 23 (2024-432) – published LW 30 August 2024
Paintball Amendment Act 2023 No 31 (2024-433) – published LW 30 August 2024
Regulations and other miscellaneous instruments
Heavy Vehicle (Mass, Dimension and Loading) National Amendment Regulation 2024 (2024-470) – published LW 6 September 2024
Public Health Amendment (Scheduled Medical Conditions and Notifiable Diseases) Order (No 2) 2024 (2024-456) – published LW 3 September 2024
Referable Debt Order (2024-457) – published LW 6 September 2024
Workers Compensation (Indexation) Order (No 4) 2024 (2024-458) – published LW 6 September 2024
Agricultural Industry Services Regulation 2024 (2024-434) – published LW 30 August 2024
Biosecurity Order (Permitted Activities) Amendment Order 2024 (2024-435) – published LW 30 August 2024
Centennial Park and Moore Park Trust Regulation 2024 (2024-436) – published LW 30 August 2024
Contaminated Land Management (Adjusted Amounts) Notice 2024 (2024-437) – published LW 30 August 2024
Evidence (Audio and Audio Visual Links) Regulation 2024 (2024-438) – published LW 30 August 2024
Explosives Regulation 2024 (2024-439) – published LW 30 August 2024
Film and Television Industry (Advisory Committee) Regulation 2024 (2024-440) – published LW 30 August 2024
Gaming and Liquor Administration Regulation 2024 (2024-441) – published LW 30 August 2024
Paintball Regulation 2024 (2024-442) – published LW 30 August 2024
Payroll Tax Regulation 2024 (2024-443) – published LW 30 August 2024
Photo Card Regulation 2024 (2024-444) – published LW 30 August 2024
Private Health Facilities Regulation 2024 (2024-445) – published LW 30 August 2024
Racing Appeals Tribunal Regulation 2024 (2024-446) – published LW 30 August 2024
Subordinate Legislation (Postponement of Repeal) Order (No 2) 2024 (2024-447) – published LW 30 August 2024
Environmental Planning Instruments
Armidale Regional Local Environmental Plan 2012 (Map Amendment No 3) (2024-448) – published LW 30 August 2024
Cessnock Local Environmental Plan 2011 (Amendment No 43) (2024-449) – published LW 30 August 2024
Fairfield Local Environmental Plan 2013 (Map Amendment No 9) (2024-450) – published LW 30 August 2024
Gunnedah Local Environmental Plan 2012 (Map Amendment No 3) (2024-451) – published LW 30 August 2024
Inner West Local Environmental Plan Amendment (Electric Vehicle Charging Units) 2024 (2024-452) – published LW 30 August 2024
Murray Local Environmental Plan 2011 (Amendment No 17) (2024-453) – published LW 30 August 2024
Orange Local Environmental Plan 2011 (Map Amendment No 8) (2024-454) – published LW 30 August 2024
Port Stephens Local Environmental Plan 2013 (Amendment No 44) (2024-455) – published LW 30 August 2024
Bayside Local Environmental Plan 2021 (Map Amendment No 5) (2024-459) – published LW 6 September 2024
Bega Valley Local Environmental Plan 2013 (Map Amendment No 8) (2024-460) – published LW 6 September 2024
Camden Local Environmental Plan 2010 (Amendment No 54) (2024-461) – published LW 6 September 2024
Central Coast Local Environmental Plan 2022 (Amendment No 7) (2024-462) – published LW 6 September 2024
Gunnedah Local Environmental Plan 2012 (Map Amendment No 2) (2024-463) – published LW 6 September 2024
Hawkesbury Local Environmental Plan 2012 (Amendment No 36) (2024-464) – published LW 6 September 2024
Ku-ring-gai Local Environmental Plan 2015 (Map Amendment No 5) (2024-465) – published LW 6 September 2024
Mid-Western Regional Local Environmental Plan 2012 (Map Amendment No 10) (2024-466) – published LW 6 September 2024
Sutherland Shire Local Environmental Plan 2015 (Map Amendment No 4) (2024-467) – published LW 6 September 2024
Tweed Local Environmental Plan 2014 (Map Amendment No 2) (2024-468) – published LW 6 September 2024
Wentworth Local Environmental Plan 2011 (Map Amendment No 8) (2024-469) – published LW 6 September 2024
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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