Labour hire

For the form of outsourcing formerly practiced in Namibia, see labour brokering.

Labour hire is the term applied (especially in Australia) to provision of outsourced skilled and unskilled blue-collar workers hired for short- or long-term positions.

The workers, known as contractors, field employees, temps, on-hired employees or even just employees, are employed by the labour hire organization. They are not employed by the company to whom they provide labour. This is an important distinction for the purposes of Occupational Healthy and Safety (OH&S) purposes, in particular who has legislative responsibility for ensuring a safe working environment. This has been tested in court (see below).

A lot of the time builders have their own interpretation of a schedule of rates.

Pay and charge rates

An essential component of any labour hire organization are the two fundamental concepts of pay and charge rates. The pay rate is the per-hour wage paid to the employees. The charge rate is the fee levied on the client to whom labour is provided. Although this sounds very basic, many factors must be considered when calculating these two items.

The following items have a bearing on the determination of pay rates:

The following items have a bearing on the determination of charge rates:

The gross margin is generally calculated as a percentage value of the pay rate. In certain circumstances, it may be calculated as a specific dollar markup.

A schedule of rates is typically quoted to the client which includes

The charge rates for physical hours of time (ordinary plus overtime) are typically quoted for the position at discrete classification increments, for example, level 1, level 2, etc.

Trade union opinion of labour hire

COSATU is one of the few unions in the world that take a strong stand against labour hire or labour brokering as it is termed in Africa. http://www.cosatu.org.za/show.php?ID=8118

In Australia the unions appear to be a little too close to labour hire firms to the point of taking bribes. Because of this the Australian government has called a royal commission into corruption of the unions. http://www.abc.net.au/news/2014-02-10/union-officials-accused-of-taking-bribes-from-labour-hire-firm/5248242

Notable court cases

Most legal proceedings against labour hire companies fall into one of two broad categories. The first is unfair dismissal. There are few successful such cases because of the nature of the industry and because organisations are generally careful to emphasise that the work is casual and periodic and cannot be guaranteed. Many labour hire companies are careful to avoid terminology on their staffing systems that may imply an employee has been "terminated" because that can corrupt a defence against unfair dismissal, namely that the employee has not been terminated, there simply has just been no recent placement opportunities.

There is an argument that labour hire firms ought really to be calling their employees "contractors" which makes more explicit that such workers are providing subcontracted services.[1]

The second broad category is a major issue for labour hire companies, namely workplace safety.

It may have been considered in times past that the client of the labour hire company, i.e. the workplace where the labour is performed, were responsible for the safety of their site. However, Drake Personnel Ltd trading as Drake Industrial v WorkCover Authority (Insp. Ch’ng) (1999) 90 IR432 was a significant court case which established that because the worker is an employee of the labour hire company itself, a joint burden of safety is imposed upon the labour hire company.[2][3]

In this case, the NSW Industrial Commissions full session judged

A labour hire agency does not employ people to work for itself but to work for a client, it does not directly on a day to day basis supervise the tasks carried out by the employee and it is usually not in control of the workplace where the work is done. However, these circumstances do not obviate, or diminish, the obligation of the employer under the [employer’s general duty]. Indeed ... an employer who sends its employees into another workplace over which they exercise limited control is, for that reason, under a particular positive obligation to ensure that those premises, or the work done, do not present a threat to the health, safety or welfare of those employees. Certainly, there is no basis to consider that such an employer has a lesser liability or obligation under [the employer’s general duty].… A labour hire company cannot escape liability merely because the client to whom an employee is hired out is also under a duty to ensure that persons working at their workplace are not exposed to risks to their health and safety or because of some alleged implied obligation to inform the labour hire company of the work to be performed. In our view, a labour hire company is required by the OH&S Act to take positive steps to ensure that the premises to which its employees are sent to work do not present risks to health and safety This obligation would, in appropriate circumstances, require it to ensure that its employees are not instructed to, and do not, carry out work in a manner that is unsafe.

In Labour Co-operative Limited v WorkCover Authority of New South Wales (Inspector Robins) (2003) 121 IR 78 at 84-85 the Full Bench of the New South Wales Industrial Relations Commission upheld the trial judge’s finding that it was reasonably practicable for the labour hire agency to have ensured against the risks to the worker’s safety by "adopting a positive and pro-active approach with [the client] to require steps to be put in place to avoid the risks as a condition of it making available" the services of the worker. The labour hire agency had sufficient control to ensure the adequacy of instruction, training and supervision, and could refuse to supply its employees to the client "until 14 appropriate and sufficient measures to ensure safety were implemented."[4]

Since 1998 prosecutions of labour hire agencies and host firms have been taken regularly in most Australian jurisdictions, particularly in NSW and Victoria. In NSW, for example, the first prosecution of an agency and a host firm took place in 1997, and there have been half a dozen or so prosecutions of agencies and of host firms each year since 2002. In Victoria the first successful prosecution of an agency and of a host firm took place in 1999 (Extra staff and NCI Speciality Metals respectively), and since 2002 there appear to have been half a dozen prosecutions of agencies and of host firms annually. There have also been successful prosecutions against directors of labour hire companies for failing to prevent the agency from contravening its general duty to the worker.[5][6]

References

  1. ↑ Dwyer Durack Barristers and Solicitors. "Unfair dismissal". AussieLegal. Retrieved 2007-04-13.
  2. ↑ Janet Chan. "OHS duties, training and job safety" (PDF). Workcover NSW. Archived from the original (PDF) on 2006-10-24. Retrieved 2007-04-13.
  3. ↑ Peter Rozen. "Safeguarding the student: School-to-work transition programs and Occupational Health and Safety Law" (PDF). Retrieved 2007-04-13.
  4. ↑ See also WorkCover Authority of New South Wales (Inspector Legge) v Coffey Engineering Pty Ltd (No 2) (2001) 110 IR 447.
  5. ↑ See for example Inspector Sharpin v Concrete Civil Pty Ltd and Inspector Sharpin v Daryl Smith [2004] NSWIRComm 173 and Workover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Limited and Thomas Edwin Curtis Smith [2005] NSWIRComm 101.
  6. ↑ Richard Johnstone & Michael Quinlan. "The OHS regulatory challenges posed by agency workers: Evidence from Australia" (PDF). Australian National University. Retrieved 2007-04-13.

See also

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