Labour hire workers

Who is an employee?

You are an employee if you have a verbal or written contract of employment or a contract of training.

Under amendments to the OHS Act, a person a labour hire provider or recruitment agency has supplied, recruited or placed with a host employer to perform work for the employer is also considered an employee. Examples include a process worker, order picker in a warehouse, temporary receptionist or an agency nurse.

In some cases, employers also owe duties to independent contractors and employees of independent contractors.

What is labour hire?

Labour hire providers supply workers to other businesses, known as hosts, on a fee or contract basis. These arrangements are also known as temping, contracting, on-hire or labour supply. Group training organisations that provide trainees and apprentices to workplaces are also labour hire providers. The labour hire provider has the legal duties of the employer under the OHS Act when it is the organisation paying the labour hire worker.

Under the OHS Act, the host employer is taken to be the employer of any labour hire workers a labour hire provider has supplied, placed or recruited to work for the employer. This means the host employer has the same health and safety duties to labour hire workers as to any other employee.

What are my OHS rights as a labour hire worker?

You have the same legal rights regarding your health and safety at work as any other employee, including the right to:

• a healthy and safe workplace
• refuse to perform unsafe work
• be represented and consulted in relation to your health and safety
• be protected from discrimination if you raise a health and safety issue or concern

OHS representation

You are entitled to occupational health and safety (OHS) representation as a labour hire worker. Both the labour hire provider and the host employer have duties under the OHS Act to consult with you about health and safety.

They must:

• provide information to you about OHS, including in other languages as appropriate
• employ or engage suitably qualified people to provide advice on the health and safety of employees
• do everything reasonable to ensure negotiations on the establishment of a designated work group (DWG) within 14 days after receiving a request from you to establish a DWG

HSRs and DWGs

Check whether the labour hire provider or the host employer has a health and safety representative (HSR). This person can raise health and safety issues on your behalf. It is possible that an HSR from both the labour hire provider and the host employer can represent you to the duty holders at either the labour hire provider or the host employer. You are entitled to representation by your host employer’s HSRs, if there are any.

If there is no HSR at either the labour hire provider or the host employer’s workplace, you can ask the labour hire provider to negotiate with its employees to establish DWGs so HSRs can be elected. You can also ask your host employer to negotiate with its employees to establish a DWG. Your employer must do everything reasonable to ensure negotiations start within 14 days after the request.

Raising OHS issues

If you have concerns about your health or safety as a labour hire worker, you can raise your concerns with:

• the responsible manager at your labour hire provider or host employer
• your HSR at your labour hire provider or an HSR at the host
• the WorkSafe Victoria Advisory Service toll-free on 1800 136 089

If you raise an issue or a concern about health and safety, the OHS Act protects you from being discriminated against by your employer or any potential employer.

What are my OHS responsibilities as a labour hire worker?

You must take reasonable care for your own health and safety and that of others. You must also cooperate with anything your labour hire provider organisation or host employer does to meet its health and safety obligations.

If you notice a hazard or an incident relating to health and safety, you should promptly report it to your host and the labour hire provider. You should also report it to the elected HSR, if there is one. You should follow the labour hire provider and host employer’s internal processes and procedures for reporting hazards and incidents.

Labour hire providers' OHS responsibilities to labour hire workers

As an employer, the labour hire provider should assess the workplace and assess your ability to do the job safely. The labour hire provider should also provide you with an induction and only assign you roles at a host workplace that you can do safely. The labour hire provider should monitor the workplace to make sure it meets health and safety requirements.

Labour hire providers have duties under the OHS Act. If you are a labour hire worker, your labour hire provider must:

• provide and maintain a working environment that is safe and without risks to your health
• monitor your health
• monitor conditions at any workplace under its management and control
• provide you with information about OHS, including in other languages as appropriate
• keep information and records relating to your health and safety
• employ or engage persons suitably qualified to provide advice on the health and safety of employees
• ensure that a workplace, and means of entering and exiting the workplace are safe and without risks to health
• consult with you about OHS
• do everything reasonable to ensure negotiations on the establishment of a DWG start within 14 days after receiving a request from you to establish a DWG
• consult, cooperate and coordinate with the host in relation to their duties to you

As your employer or prospective employer, a labour hire provider is guilty of an indictable offence if it discriminates against you because you have done something that the OHS Act permits.

You can find more information on labour hire provider responsibilities on the Labour Hire Providers page on the WorkSafe website.

Host employers' OHS responsibilities to labour hire workers

The host employer must treat labour hire workers and contractors as if they are its own employees with regards to health and safety. The host employer must provide you with site-specific induction and task-specific instruction, training and supervision. The host employer must also supply the necessary equipment for you to do the job safely, which may include personal protective equipment (PPE).

If you are a labour hire worker, your host employer must also:

• provide and maintain a working environment that is safe and without risks to your health
• monitor your health
• monitor conditions at any workplace under its management and control
• provide you with information about OHS, including in other languages as appropriate
• keep information and records relating to your health and safety
• employ or engage persons suitably qualified to provide advice on the health and safety of employees
• ensure persons other than employees are not exposed to risks to their health
• ensure the workplace, and means of entering and exiting the workplace are safe and without risks to health
• consult with you about OHS
• do everything reasonable to ensure negotiations on the establishment of a DWG start within 14 days after receiving a request from you to establish a DWG
• consult, cooperate and coordinate with the labour hire provider in relation to their duties to you

As your employer or prospective employer, a host employer is guilty of an indictable offence if it discriminates against you because you have done something that the OHS Act permits.

You can find more information on host employer’s responsibilities on the labour hire hosts page.