Labour hire providers have legal responsibilities to keep their employees safe when they are placed with a host. Understand your occupational health and safety duties as a labour hire provider.
Labour hire providers and host employers
Labour hire providers supply workers to other businesses on a fee or contract basis. Labour hire providers are also known as temping, contracting, on-hire or labour supply agencies. Group training companies that provide apprentices and trainees to hosts are another type of labour hire provider. When they pay the employee, by law the labour hire provider has the duties of an employer under the Occupational Health and Safety Act 2004 (OHS Act).
The host employer is the business/organisation that labour hire employees are placed with. The host employer is the client of the labour hire provider.
Under the OHS Act, a host employer is taken to be the employer of a labour hire worker. This means the host employer owes the labour hire worker the same occupational health and safety (OHS) duties as any other employee.
However, labour hire providers and hosts are both responsible for the safety of labour hire workers and have shared responsibilities for their health and safety. No contract can exclude the labour hire provider or host employer from fulfilling their legal obligations to provide a safe place of work.
The labour hire provider's and host employer’s shared responsibilities include:
providing and maintaining a working environment that is safe and without risks to health and safety
monitoring the health of employees
monitoring conditions at the workplace
Both must also ensure the labour hire worker is capable of undertaking the assigned work and provided with everything the labour hire worker needs to do the job safely, for example, knowledge, qualifications and personal protective equipment (PPE).
The OHS Act does not intend that labour hire providers and hosts duplicate efforts to fulfil duties to labour hire workers. Instead, labour hire providers and host employers have to work together.
Under the OHS Act, labour hire providers and host employers must consult, cooperate and coordinate with each other, so far as reasonably practicable, to ensure all duties to labour hire workers are met.
Labour hire providers must also:
provide information to labour hire workers about OHS, including in other languages as appropriate
keep information and records relating to health and safety of labour hire workers
employ or engage persons suitably qualified to provide advice on the health and safety of labour hire workers
ensure the workplace and the means of entering and exiting the workplace are safe and without risks to health
consult with labour hire workers when required under OHS legislation
do everything reasonable to ensure negotiations on the establishment of a designated work group (DWG) within 14 days after receiving a request from a labour hire employee
As an employer or prospective employer, a labour hire provider is guilty of an indictable offence if it discriminates against an employee or prospective employee on the basis that the employee does things the OHS Act allows.
Labour hire providers and host employers who have duties towards the same labour hire workers must, so far as is reasonably practicable, consult, cooperate and coordinate with each other.
OHS responsibilities before placing a worker with a host employer
Before sending a worker to work with a host employer, labour hire providers need to establish whether the workplace is safe, so far as it is reasonably practicable. If it's not safe, you should not send anyone to work there.
As a labour hire provider, you must continue monitoring the labour hire worker's safety throughout their placement with the host employer and consult with the worker on OHS matters relevant to their job.
You must, so far as reasonably practicable, consult, cooperate and coordinate with the host employer of the labour hire worker.
You should do the following before initial placement of a labour hire worker with a host employer:
Assess the workplace
Visit the workplace prior to sending a labour hire worker out and gather information about:
the host employer's operations, any OHS risks or hazards, its OHS performance and approach to managing safety in the workplace.
the hazards relevant to tasks the labour hire worker will be asked to carry out. This might include information about the plant or equipment they will operate, or materials and substances they may be exposed to.
the control measures in place to eliminate or minimise risks and how suitable they are. If they are not effective, you can try to negotiate with the host to improve these controls.
the arrangements for supervision and effective consultation with employees.
You should do an induction before sending a labour hire worker to a workplace so they know:
who/where the host workplace is and the tasks they will be performing
general information about OHS, hazards in the workplace and how they are controlled
the managers your labour hire worker should contact, both at your labour hire organisation and the host employer, if they have any health and safety issues or concerns
You should also make sure the host employer provides your labour hire workers with a site-specific induction.
You must be confident that your labour hire workers are capable of doing the assigned task or tasks safely and that they have necessary experience or training.
If a licence, permit or special equipment is needed, make sure your labour hire worker has these. You also need to consider the effects of any proposed shift work, split shifts or extended working hours on the labour hire worker's health and safety.
Continue monitoring your host employer's workplace to make sure that health and safety requirements are being met.
Make sure that the host employer does not give your labour hire workers new or different tasks, especially tasks unrelated to their experience and qualifications.
You can find more information about how to meet your OHS responsibilities in the labour hire pages on the WorkSafe website. The information includes what you should do before and after you place a labour hire worker and your induction and training obligations.
Labour hire providers may have a health and safety representative (HSR) who can raise health and safety issues on behalf of employees. It is possible an HSR from both your organisation and the host employer can represent labour hire workers.
If there is no HSR at your agency, labour hire workers can ask you to negotiate with your employees to establish DWGs so that HSRs can be elected. You must do everything reasonable to ensure negotiations start within 14 days after the request.
The host employer's HSR can also represent labour hire workers.
Employee safety is your responsibility
Performing the necessary workplace checks may seem like hard work but a look at the latest prosecutions provides good incentives to prioritise employees’ health and safety.
Go to Prosecution result summaries and select: Category > 'Labour hire'.