the private employment agencies and other acts amendment ... · the private employment agencies and...

Queensland Parliamentary Library

The Private Employment Agenciesand Other Acts Amendment Bill2001The Private Employment Agencies and Other Acts Amendment Bill 2001 (Qld),introduced into the Queensland Parliament on 12 December 2001 by theHon G R Nuttall, Minister for Industrial Relations, will –

• phase out the Private Employment Agencies Act 1983 (Qld) over a two-yearperiod, at the end of which licensing requirements and other legislativecontrols over the operations of private employment agents will be removed(unless the expiry period is extended);

• establish a simplified system for licensing agents during the phasing outperiod, removing the need for an inquiry;

• establish an Employment Agents Advisory Committee to oversee the expiryperiod and to formulate a draft Code of Conduct for the future regulation ofagents;

• transfer provisions protecting work seekers from being chargedinappropriate fees for obtaining employment to the Industrial Relations Act1999 (Qld); and

• include specific provisions in the Industrial Relations Act 1999 governingagents in the modelling and entertainment areas.

Nicolee Dixon

Research Brief No 2002/02

Queensland Parliamentary LibraryResearch Publications and Resources Section

Ms Mary Seefried, Director (07) 3406 7116

Ms Karen Sampford, Research Publications Officer (07) 3406 7310

Mr Wayne Jarred, Senior Parliamentary Research Officer (07) 3406 7422

Ms Nicolee Dixon, Parliamentary Research Officer (07) 3406 7409

Ms Cathy Green (part time), Parliamentary Research Officer (07) 3406 7641

© Queensland Parliamentary Library, 2002

ISSN 1443-7902ISBN 0 7345 2812 4

January 2002

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968,reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament inthe course of their official duties, without the prior written permission of the Parliamentary Librarian,Queensland Parliamentary Library.

Inquiries should be addressed to:Director, Research Publications & ResourcesQueensland Parliamentary LibraryParliament HouseGeorge Street, Brisbane QLD 4000Director: Ms Mary Seefried. (Tel: 07 3406 7116)

Information about Research Publications can be found on the Internet at:Http://www.parliament.qld.gov.au/parlib/research/index.htm

CONTENTS

1 INTRODUCTION ............................................................................................. 1

2 BACKGROUND................................................................................................ 1

3 REVIEW OF THE PRIVATE EMPLOYMENT AGENCIES ACT ............... 2

3.1 COMMENTS FROM THE REVIEW REPORT ........................................................ 3

3.2 MAIN REVIEW RECOMMENDATIONS............................................................... 4

4 PRIVATE EMPLOYMENT AGENTS............................................................. 4

4.1 REVIEW FINDINGS .......................................................................................... 4

4.2 THE AMENDMENT BILL................................................................................... 5

5 LICENSING OF PRIVATE EMPLOYMENT AGENTS ............................... 5

5.1 REVIEW FINDINGS .......................................................................................... 6

5.2 GOVERNMENT CONCERNS .............................................................................. 7

5.3 LICENSING AND REGULATION IN OTHER JURISDICTIONS.................................. 7

5.4 THE AMENDMENT BILL................................................................................... 8

5.4.1 Licensing Provisions During the Phasing Out Period.................................. 8

5.4.2 Other Interim Regulatory Provisions ....................................................... 10

6 EMPLOYMENT AGENTS ADVISORY COMMITTEE............................. 11

6.1 THE AMENDMENT BILL................................................................................. 11

7 FUTURE OPERATION OF PRIVATE EMPLOYMENT AGENTS ........... 11

7.1 CODE OF CONDUCT ...................................................................................... 11

7.2 SELF-REGULATION....................................................................................... 12

8 PROTECTION FOR WORK SEEKERS....................................................... 13

8.1 REVIEW FINDINGS ........................................................................................ 13

8.2 FEE CHARGING RESTRICTIONS IN OTHER JURISDICTIONS ............................... 14

8.3 AMENDMENTS TO THE INDUSTRIAL RELATIONS ACT 1999 ...........................15

9 MODELS AND PERFORMERS...................................................................15

9.1 REVIEW FINDINGS.........................................................................................16

9.2 THE AMENDMENT BILL.................................................................................17

10 RECOVERY OF FEES IMPROPERLY RECEIVED................................19

10.1 REVIEW FINDINGS.........................................................................................19

10.2 THE AMENDMENT BILL.................................................................................19

APPENDIX – MINISTERIAL MEDIA STATEMENT......................................21

RECENT QPL RESEARCH PUBLICATIONS 2002 ..........................................23

The Private Employment Agencies and Other Acts Amendment Bill 2001 Page 1

1 INTRODUCTION

The Private Employment Agencies and Other Acts Amendment Bill 2001 (Qld) (theAmendment Bill), introduced into the Queensland Parliament on 12 December 2001 bythe Hon G R Nuttall MP, Minister for Industrial Relations, seeks to implementrecommendations of an independent review of the Private Employment Agencies Act1983 (Qld) (the PEA Act). The PEA Act provides for licensing of private employmentagents in Queensland, regulates various aspects of their operations, and protects workseekers from being charged inappropriate fees for placements in jobs.

The Amendment Bill will provide for –

• the phasing out of the PEA Act over a two-year period, at the end of whichlicensing requirements and other legislative controls over the operations ofprivate employment agents will be removed (unless the expiry period isextended);

• a simplified licensing process to operate during the phasing out period, removingthe requirement for an inquiry before the industrial magistrate, the need for policereports, and other identified difficulties;

• the establishment of an Employment Agents Advisory Committee to oversee theexpiry period and to formulate a draft Code of Conduct for the future regulationof agents;

• the transfer of provisions, currently contained in the PEA Act, protecting workseekers from being charged inappropriate fees for placement in employment tothe Industrial Relations Act 1999 (Qld) (the IR Act), including the introductionof specific measures governing agents in the modelling and entertainment areas;and

• an unrelated amendment of a technical nature to the Trading (Allowable Hours)Act 1990 (Qld) not dealt with in this Brief.

2 BACKGROUND

Private employment agents in Queensland have been regulated since the passage of theLabour Exchange Act 1915 (Qld), which was later replaced by the Labour andIndustry Act 1946 (Qld) then by the current legislation, the PEA Act.

The PEA Act provides for the licensing of private employment agencies in Queenslandand regulates the conduct of their operations. All private employment agents must belicensed and it is illegal to act as such an agent otherwise. It also provides protection forwork seekers by ensuring that those agencies cannot charge the work seeker for finding


them work, and protection for models and performers in the entertainment industry byensuring that there is a limit on the fees that they can be charged for obtaining anengagement.

Many business operations are covered including clerical and secretarial placementagencies, executive placement agencies, and industrial temporary assistance agencies. Inaddition to finding employment for work seekers or staff for employers, employmentagents often provide services such as resume preparation, training in interviewing skills,and education or skills advice. The usual practice is for the agent to charge the employera fee for the placement service (as the PEA Act prohibits such a charge being imposedon the work seeker (apart from models or performers) for whom work is found orsought). In the entertainment area, agents tend to charge models or performers for theservice, or, particularly in the case of models, both the work seeker and the employer.

3 REVIEW OF THE PRIVATE EMPLOYMENT AGENCIES ACT

The PEA Act was identified for National Competition Policy (NCP) Review because itcontains licensing restrictions. The Review, undertaken for the then QueenslandDepartment of Employment, Training and Industrial Relations (DETIR), was conductedby an independent reviewer.1 An independent consultant was engaged to conduct aPublic Benefit Test (PBT) Assessment of reform options in accordance with QueenslandTreasury Public Benefit Test Guidelines.2 The findings were considered by the Review.While the main focus of the terms of reference for the Review was upon NCP, they alsoincorporated issues regarding the contemporary operation of the legislation. The Reviewof the Private Employment Agencies Act 1983, Final Report (the Review Report) wassubmitted to the Queensland Government in November 2000.

There has been an increase in the number of private employment agents seekingregistration over recent years, particularly after May 1998 when the CommonwealthGovernment relinquished its function of finding work for those people seekingemployment through the Commonwealth Employment Service (CES) and contracted the

1 DETIR has been restructured and the relevant department is now the Department of IndustrialRelations (DIR).

2 Queensland. Department of Employment, Training and Industrial Relations, ‘PrivateEmployment Agencies Act 1983: A Public Benefit Test Assessment Under National CompetitionPolicy, Final Report, July 2000.


service out to private, public and community organisations as part of the Job Networkscheme.3

The PBT Assessment, feeding into the wider Review process, took the view that thePEA Act should be repealed and the licensing of agents be removed. It concluded thatself-regulation was the better approach. The Assessment also favoured lifting restrictionson charging fees to work seekers.4 However, the Review Report’s recommendationswere more moderate, leaning towards a two-year phasing out period of the PEA Act andthe retention of legislative provisions protecting work seekers from being chargedinappropriate fees.

3.1 COMMENTS FROM THE REVIEW REPORT

The Review Report noted that, as of 13 October 2000, there were 885 licensed privateemployment agencies in Queensland.

The Review Report noted that there was some support for retention of the licensingsystem but that there were overwhelming criticisms made in submissions to the Reviewabout the licensing procedures. The issue of licensing, including criticisms, will beconsidered in detail in Section 5 of this Brief.

On the other hand, there was widespread support for continuing to protect work seekersfrom being charged fees for work placements and a number of bodies from theentertainment industry sought more specific provision, and greater flexibility, for agents ofmodels and performers.

The Review Report examined a number of alternatives to the current legislativeframework. However, self-regulation was not regarded as feasible at this stage becauseof a lack of prerequisite educational standards within the industry or an industry bodyready to assume an overseeing role. It was noted that many industry bodies favouredsome form of regulation to ensure that the public viewed the industry as respectable andprofessional.5

3 PBT Assessment, Final Report, p 12.

4 PBT Assessment, Final Report, pp 4-6.

5 Review Report, pp 11, 19. This reflects a similar finding when the PEA Act was reviewed in 1993(Queensland Vocational Educational, Training and Employment Commission, Review of thePrivate Employment Agencies Act, 1993).


3.2 MAIN REVIEW RECOMMENDATIONS

Ultimately, the Review favoured an approach where –

• licensing restrictions and other legislative requirements would be graduallyremoved over a two-year period, at the end of which the PEA Act would expire.During the phasing out period, a simplified ‘negative’ licensing system wouldoperate where there would be minimal entry requirements but the Governmentretains the ability to revoke an agent’s licence for failure to meet minimumstandards of conduct;

• the phasing out period would be one in which a Government establishedEmployment Agents Advisory Committee would consider the formulation of aCode of Conduct for the future regulation of the industry, and oversee the expiryprocess. Alternatively, the committee might recommend postponement of theexpiry of the PEA Act for a further 12 months;

• protection for work seekers against being charged inappropriate fees for findingthem work would be retained but immediately transferred to the IR Act.Changes should also be made to provisions concerning fees charged to modelsand performers; and

• measures to facilitate the recovery of improperly recovered fees by employees incivil proceedings would be introduced.

The main recommendations of the Review are incorporated in the Amendment Bill.

4 PRIVATE EMPLOYMENT AGENTS

A ‘private employment agent’ is defined as a person who holds themself out to be anagent ready, for reward, to find employment for persons seeking it, or to find employeesfor persons seeking to employ them: s 14. Note that ‘labour hire’ companies are notprivate employment agents as the company is the employer of the person placed.Contracted labour is also beyond the scope of the Act.6

4.1 REVIEW FINDINGS

The Review Report found that there was confusion over the application of the PEA Actto agents of performers (see Section 9 of this Brief) because of the nature of the industryand the fact that many agents are also managers. It was considered that a new definition

6 See s 14(3) PEA Act.


of ‘private employment agent’ was required, particularly to make the position clearer forthose types of relationships.7

4.2 THE AMENDMENT BILL

A new definition of ‘private employment agent’ will be inserted into a proposed news 5A of the PEA Act by cl 6 of the Amendment Bill. It will encompass a person whooffers to find casual, part-time, temporary, permanent or contract work for a workseeker; or a casual, part-time, temporary, permanent or contract worker for an employer:proposed new s 5A(1)(a).

The definition will specifically cover a person who, in the course of carrying on businessand for gain, negotiates the terms of contract work for a model or performer; oradministers a contract for the model or performer and arranges payments under it; orprovides career advice: proposed new s 5A(1)(b)-(d).

It appears to be made clearer, in the proposed new s 5A(3), that the PEA Act is notintended to include ‘labour hire’ arrangements.

5 LICENSING OF PRIVATE EMPLOYMENT AGENTS

The existing licensing regime (currently in Part 3 of the PEA Act) is regarded as fairlyrigorous. All private employment agents must be licensed and it is illegal to operatewithout a licence. New licence applicants incur an initial fee of $354. Licences must berenewed on 31 May each year at a cost of $178.

The current process operates as follows (see Part 3 of the PEA Act) –

• a separate licence is required for each premises and it is illegal to carry on abusiness as an agent at another place;

• the licensee must be a natural person, not a body corporate or a partnership. Inthe latter cases, a person has to be appointed to hold the licence on behalf of theentity. Each time that nominated person leaves, a new application must be madewith all the associated costs of application being incurred;

• the application form and fee must be sent to the DIR Licensing Officer. Within14 days of doing this, the applicant must publish in a State-wide newspaper,specified particulars of the application and invite objections to the application.The cost of advertising can be significant;

7 Review Report, p 15.


• the Licensing Officer forwards the application to the industrial magistrate who willthen obtain a police report on the character, reputation and conduct of theapplicant. Public objections are lodged with the industrial magistrate;

• on receipt of that report, the industrial magistrate undertakes an inquiry aboutwhether the applicant is a fit and proper person to hold a licence having regard tothe police report and the objections. The applicant, any objectors and theLicensing Officer can be heard at the inquiry. If the Magistrate determines thatthe applicant is a fit and proper person, the Licensing Officer issues the licence.

A licence can be cancelled if the agent is no longer a fit and proper person to operate asa private employment agent or is convicted of an offence against the PEA Act.8

5.1 REVIEW FINDINGS

While a number of stakeholders supported the retention of legislation to regulate theindustry, there was general criticism of the current process as ineffective, complex, andinefficient and as needing substantial change. The system imposes significant costs onapplicants. Apart from the application fee and advertising expenses, agents also incurlosses in productivity through having to appear at a court hearing, particularly if there area number of premises from which an agent conducts business. One agent who hasapplied for nine licences submitted to the Review that they had had to appear at threehearings before industrial magistrates in Bundaberg, Beenleigh and Inala, all within oneweek.

The Review Report believed that the current system was rigid and should change as itcontributes little, apart from the deterrent value of having a formal licensing system. Theapplication process occurs without any input from agents or from users of the services,and in practice, the application was determined by the police report.9

A further complication introduced by the growth of Internet usage is that employmentagents can easily set up business in other states where there are no licensing restrictionsand still operate in Queensland over the Internet.10

The PBT Assessment (done for the Review process) concluded that there was nojustification, in terms of benefit to the public, in maintaining licensing for employment

8 PEA Act, s 28.




agents. Four Australian jurisdictions had no legislation specifically regulating employmentagents and a review in Western Australia recommended the removal of licensing. Inaddition, the operation and conduct of employment agency services would continue to beregulated by legislation such as the Queensland IR Act 1999, Fair Trading Act 1989,and the Commonwealth Trade Practices Act 1974 and by the common law.

As noted earlier, the Review Report took a more moderate approach, ultimatelyrecommending that the PEA Act be repealed over a two-year period during which time asimplified licensing and renewal process would operate.

5.2 GOVERNMENT CONCERNS

The Government has expressed concern about the financial burden imposed uponapplicants for initial and annual licences by the current licensing regime. It has also notedthat while the process generates around $231,793 in annual revenue,11 there are stillsignificant costs to Government through needing to refer applications to the industrialmagistrate. The process ties up the resources of the Magistrates Court and those of theQueensland Police Service where police officers are required to spend time researchingrecords and interviewing applicants to prepare a report.12

5.3 LICENSING AND REGULATION IN OTHER JURISDICTIONS

Four jurisdictions have industry specific legislation imposing licensing requirements onemployment agents that are broadly similar to the PEA Act.

In New South Wales, employment agents in general are regulated by the EmploymentAgents Act 1996 and the Entertainment Industry Act 1986 covers agents, managersand venue consultants in the entertainment industry. The Employment Agents Act issimilar to Queensland’s PEA Act but the system imposes cheaper fees for applicationand renewal of licences. A report of the NCP review of that legislation is pending. InSouth Australia, the relevant legislation is the Employment Agents Registration Act1993 and it is also apparently undergoing review. The Western Australian

11 Based on 1999/2000 figures cited in the Review Report, p 18.

12 Hon G R Nuttall MP, Minister for Industrial Relations, Private Employment Agencies And OtherActs Amendment Bill 2001, Second Reading Speech, Queensland Parliamentary Debates,pp 4618-4620, p 4619.


Employment Agents Act 1976 has been reviewed with a recommendation for its repealcurrently before the Government.13

Victoria, Tasmania, the Australian Capital Territory, and the Northern Territory do nothave any industry specific legislation.


The PEA Act will expire two years after the commencement of the new laws: proposednew s 55. During that time, a ‘negative licensing’ system will operate which is one thatrelies on very minimal entry requirements but enables government authorities to remove alicence from an agent for misconduct. Over this phasing out period, an EmploymentAgents Advisory Committee will be established to develop a Code of Conduct for thefuture regulation of the industry.

5.4.1 Licensing Provisions During the Phasing Out Period

Clause 13 inserts new licensing provisions into the PEA Act (proposed new ss 18-26).The main features of the simplified licensing system intended to operate during the two-year phasing out period are as follows –

• partnerships and corporations will be able to hold a licence in their own namesrather than the licensee having to be a natural person: proposed new s 18;

• there is still to be a departmental Licensing Officer who administers the licensingprocess (cl 7 inserting a proposed new s 6);

• on receiving an application for a licence, the Licensing Officer must promptlyconsider the application and grant the licence unless the Officer reasonablybelieves that the applicant:

• has contravened the PEA Act or laws concerning charging inappropriate feesfor finding work for work seekers; or

• has, in the last five years, been convicted of a serious offence (eg stealing,fraud, drug trafficking, violent or sexual offences, stalking).

In those circumstances, the Licensing Officer must refer the application (and allrelevant documents and information) to the Employment Agents AdvisoryCommittee (the Committee) to be established by the Amendment Bill.14 If the

13 Review Report, pp 15-16.

14 The role and functions of the Committee are discussed in Section 6.


Committee advises the Officer to grant the licence, the Officer has to promptly doso but if the Committee advises against the issue of the licence, the Officer retainsthe discretion to grant or refuse it. If the licence is refused, there is a right ofappeal to the industrial magistrate;

• the licence, and any existing licences issued under the old regime, continue inforce until the PEA Act expires unless it is earlier cancelled or surrendered:proposed new s 24;

• any complaints the Licensing Officer receives about an agent may be referred tothe Committee for informal resolution, or failing resolution, a recommendationabout what action, if any, the Officer may take about the complaint. Thatrecommendation may include cancellation of the agent’s licence: proposed news 26; and

• a proposed new s 27 will set out the grounds upon which a licence may becancelled (one of which will be contravening provisions concerning inappropriatecharging of fees to work seekers). A proposed new s 28 will provide aprocedure for cancellation which will include giving the agent an opportunity toshow cause why the licence should not be cancelled. If the licence issubsequently cancelled, the agent must be provided with a notice setting out theagent’s right of appeal.15

New appeal provisions are set out in a proposed new Part 3B of the PEA Act toapply in relation to decisions of the Licensing Officer regarding licences.16

Transitional provisions will provide that licences held prior to the commencement ofthe new legislation continue until 31 May 2002 (the normal annual renewal date) butagents can apply for renewal, in accordance with the new application procedures, beforethat time and the licence will continue until the PEA Act expires. At the commencementof the new provisions, if a licence was previously held by a person as nominee for apartnership or corporation, it will be taken to be held in the name of the partnership or thecorporation.17

Some submissions received during the Review process expressed a concern that negativelicensing may mean that some unscrupulous agents could operate for some time beforedetected and the attendant adverse publicity may damage the industry as a whole.

15 Amendment Bill 2001, cl 15.

16 Amendment Bill 2001, cl 16.

17 See proposed new ss 48-54 of the PEA Act, inserted by cl 23 of the Amendment Bill 2001. Seeproposed new s 48 regarding applications made but not determined before the new legislationcommences.


However, industry expressed general support for this system and the Review Reportcommented that the threat of bad publicity might galvanise industry into acting withpropriety.18 The Review Report commented that enforcement activities may have to beincreased to make the system work effectively. The DIR has highlighted difficulties itfaces in obtaining evidence to mount prosecutions against agents due to reliance onwitnesses from the public and the confusion created when agents are not sure of theirentitlements to charge for extra services such as career guidance.19

5.4.2 Other Interim Regulatory Provisions

The new provisions regulating the operation of agents are similar to those currentlyexisting but will reflect current legislative drafting practice. They are the obligation tokeep registers of workers, employers and placements; the obligation to ensure thatpublications about the agent contain specified particulars; and a prohibition againstpublishing false information or making false statements about the nature or availability ofwork.20 Prosecutions will continue to be brought before an industrial magistrate.

Executive officers of corporations will bear responsibility for ensuring that the corporationcomplies with the PEA Act. If there is evidence that the corporation has committed anoffence, each of them will be taken to have committed the offence of failing to ensurecompliance. Defences will exist to allow an executive officer to prove that they took allreasonable steps to ensure compliance or they were not in a position to influence theconduct of the corporation: proposed new s 37.

In relation to proceedings for an offence against the PEA Act, persons, includingcorporations, can be made responsible for acts or omissions of their representatives (egexecutive officers, employees or agents) acting within the scope of the representative’sauthority. A defence will be provided if it can be shown that the person could not, by theexercise of reasonable diligence, have prevented the act or omission: proposed news 36.

The Government justifies the proposed new ss 36 and 37 (which are substantively similarto those currently contained in s 38) as necessary to prevent unscrupulous agents hidingbehind employees, agents, or the corporate veil.21

18 Review Report, pp 20-21.


20 Amendment Bill 2001, cls 18-20 inserting new ss 33-38.

21 Amendment Bill 2001, Explanatory Notes, p 2.


6 EMPLOYMENT AGENTS ADVISORY COMMITTEE

As noted above, the Review Report recommended the establishment of a Committee todrive the necessary changes regarding the future regulation of private employment agentsonce the PEA Act expires. It proposed that this Committee have representation fromemployment agent bodies, thus ensuring input by industry, as well as from employeegroups. The Amendment Bill appears to have adopted these suggestions.


Clause 16 of the Amendment Bill inserts a proposed new Part 3A into the PEA Act,establishing a six member Employment Agents Advisory Committee (the Committee).It will contain representatives from the private employment agents’ industry and fromemployee organisations, an officer of DIR, and an independent person (who is also thechairperson). Each, apart from the DIR member, will be appointed by the Minister:proposed new s 31A-B.

The primary role of the Committee during the phasing out period will be to formulate adraft Code of Conduct for the industry. The Committee will also have other functionsduring this period. Those include advising the Licensing Officer whether or not to grantor renew licences; recommending any action to be taken by the Officer about a complaintagainst an agent that the Committee has attempted, but has been unable, to resolve; andotherwise helping or advising with matters relating to agents: proposed new s 31.

7 FUTURE OPERATION OF PRIVATE EMPLOYMENT AGENTS

The Committee’s main task during the phasing out period will be to develop a draft Codeof Conduct for the industry and to determine how it will be implemented.

7.1 CODE OF CONDUCT

The draft Code of Conduct for regulating agents after the PEA Act expires will includeeach of the following matters –

• the type of work arrangements and commercial operations covered (ie the scopeof the code);

• standards of competence and training that agents must meet and discipline ofagents for contravention;

• the records that agents must keep: proposed new s 31.


It would appear also necessary for the Committee to consider the administrativemechanism through which the Code would operate, whether through legislation orotherwise.

The PBT Assessment Report included an example of a Code of Conduct – the Code ofProfessional Conduct to which Recruiting Consultants Services Association (RCSA)members are bound. That Code deals with matters such as client confidentiality; honestand truthful information, including advertising; full disclosure of fees, charges and services;dispute resolution; discipline of members; non-solicitation etc.22

Private agencies contracting with the Commonwealth Government to provide servicesunder the Job Network program are bound by the principles and the service standards ofthe Job Network Code of Conduct through their contract with the CommonwealthDepartment of Employment, Workplace Relations and Small Business. Many agents inQueensland are therefore subject to licensing under the PEA Act and the contractmonitoring processes of the Commonwealth Government.

7.2 SELF-REGULATION

As noted earlier, the Review Report did not recommend immediate deregulation ofprivate employment agents in favour of self-regulation as it appeared to consider that theindustry was not yet prepared for that responsibility. It noted, however, that self-regulation would enable industry to manage its own affairs, leading to more opencompetition, and would reduce administrative and financial burdens on government andagents. To give the industry time to adjust to such a role, the Review Reportrecommended phasing out the PEA Act over a two-year period.23

In contrast, the PBT Assessment favoured immediate repeal of the PEA Act andintroduction of industry self-regulation, considering that it had a number of benefits. Itconsidered that, in addition to reducing costs to government and to the industry, therewould be better compliance with standards. This would be because they are made, andhave been accepted, by the industry itself, and the expertise and experience of those inthe industry influence the formulation of the standards. Further, because of thecompetitive nature of the industry, market forces should operate to ensure that those


23 Review Report, pp 19, 22-23.


employment agents who overcharge or provide substandard services lose work seekersto those agents who operate honestly, professionally and equitably.24

Victoria, Tasmania, the Australian Capital Territory and the Northern Territory appear torely on a system of self-regulation of private employment agents.

8 PROTECTION FOR WORK SEEKERS

Under s 32 of the PEA Act, an agent must not demand or receive a fee of or from awork seeker, other than a model or performer, as a condition of procuring, or attemptingto procure, employment for the work seeker. The aim is to protect work seekers,particularly the unemployed, from exploitation by unscrupulous agents.25

As will be considered below, more flexibility in the charging regime for agents of modelsand theatrical performers will be introduced by the Amendment Bill. However,restrictions on agents charging other work seekers a fee for finding, or attempting to find,the person employment will remain.

8.1 REVIEW FINDINGS

The Review Report noted that there appeared to be general support for the fee chargingrestrictions. DETIR submitted that it was a primary objective of the PEA Act andappeared to work effectively.26 Up to October 2000, DETIR had dealt with nine feecharging complaints.

The PBT Assessment, done for the purposes of the Review of the PEA Act, concludedthat the restriction in s 32 of the PEA Act could not be justified under NCP as it had littlepublic benefit and it would be likely that the fees would be charged only when a workseeker has actually created the demand for the service or contributed to other costs. Itwas argued that the current prohibition might encourage agents to concentrate on workseekers who are likely to be placed quickly, thereby disadvantaging those who are moredifficult to place but who might be willing to pay.


25 Hon V P Lester MLA, Minister for Employment and Industrial Affairs, Private EmploymentAgencies Act Amendment Bill 1985 (Qld), Second Reading Speech, Queensland ParliamentaryDebates, 19 September 1985, pp 1143-1144, p 1143.



It was also commented that there is a range of other laws that provide adequateprotection against unconscionable conduct of agents (eg the unconscionability provisionsof the Trade Practices Act) and that many agents are bound by a relevant industryobligation not to impose fees on work seekers. Members of the RCSA are bound by theRCSA Code of Conduct not to charge work seekers a fee. The PBT Assessmentconsidered that market forces would be likely to maintain the status quo (ie agents chargeemployers rather than work seekers) because the work seeker would choose agents whocharge employers rather than ones who charge work seekers.27

Ultimately, however, the Review Report recommended that the restrictions on feecharging be retained but that s 669 of the IR Act be amended to confirm that agents mustnot demand or receive fees from work seekers.28 Section 669 of the IR Act is verysimilar to the s 32 restriction in the PEA Act, making it an offence for a person todemand, ask for, accept, or agree to accept an employment premium and a personcontravening that provision may be ordered to repay the amount of the premium to theperson from whom it was taken. In its submission, DETIR noted that s 32 of the PEAAct duplicates provisions of the IR Act.

8.2 FEE CHARGING RESTRICTIONS IN OTHER JURISDICTIONS

Fee charging restrictions also operate under the New South Wales EmploymentAgencies Act 1996, s 19, and the Western Australian Employment Agencies Act1976, ss 36-39. South Australia, which also has industry specific legislation, does nothave fee restrictions but does prevent a fee being charged until work has been found.

In the United Kingdom, The Employment Agencies Act 1973 and The Conduct ofEmployment Agencies and Employment Business Regulations 1975 govern themanner in which employment agencies conduct their business. While licensing restrictionswere removed in 1995, there are still rules which apply. Employment agents are notpermitted to charge work seekers a fee. In the United States, there are no suchrestrictions and the PBT Assessment noted that the majority of placements are paid forby the employer, not the work seeker.29



29 PBT Assessment, p 36 citing Institute for Employment Research, Placement as a PublicResponsibility and as a Private Service – An International Comparative Perspective of theReorganisation of Placement Systems, p 15.


8.3 AMENDMENTS TO THE INDUSTRIAL RELATIONS ACT 1999

The thrust of the current protection provided by s 32 of the PEA Act is retained by theproposed changes in the new Amendment Bill.30 This will be achieved through cl 32 ofthe Amendment Bill inserting a proposed new Chapter 11A into the IR Act.

A proposed new s 408D prohibits an agent from directly or indirectly demanding orreceiving a fee from a person (other than a model or performer) for finding, or attemptingto find, the person work. The maximum penalty is $1,200. In addition, s 669 of the IRAct has been amended to accommodate the inclusion of the foregoing provision.

The requirements applying to agents charging fees to employers will still be found in thePEA Act. Clause 17 replaces the existing s 32 of the PEA Act with a proposed news 32. It will state that an agent cannot recover a fee from an employer (ie a person whoasks an agent to find a worker for the person) for the agent’s services in finding a workerunless the employer is notified about the fee and it is agreed to in writing. The newrequirements are similar to those in the existing s 32(2).

9 MODELS AND PERFORMERS

Until amendments made to the PEA Act in 1985, agents for models and performers werealso prohibited from recovering costs of placing people in engagements. However, therewas a widespread practice of this occurring, particularly through agents structuring theirrelationship with the model or performer as a management one rather than an agency one.Following recognition by the then Government that while the legislation had achieved theobjective of protecting work seekers, it also imposed significant restrictions on agents inthe modelling and performing arts fields who could legally impose fees only on employers.

It is understood that there was also a growing problem of agents offering expensivecourses (sometimes without having the appropriate qualifications) in grooming, acting,beauty etc without obtaining, or attempting to obtain, jobs for the client at the end ofthem.31

As a consequence, the PEA Act was amended to enable agents for theatrical performersand models to charge prescribed fees although agents for all other job seekers wereprohibited from charging any fees: see existing s 32(1A) of the PEA Act.

30 Although the current s 32 itself will be omitted by cl 17 of the Amendment Bill 2001.

31 Mr R T McLean MLA, Opposition Spokesman for Employment and Industrial Affairs, PrivateEmployment Agencies Amendment Bill 1985 (Qld), Second Reading Debate, QueenslandParliamentary Debates, p 1716.


An agent who has procured employment for a work seeker as a model or performer maydemand or receive a fee or charge, and the expenses incurred, but cannot demand morethan 10% of the gross amount paid to the work seeker for the first 28 days of anengagement. The work seeker and the employer must first be given a notice setting outmatters specified in s 32(1A)(a)-(c), which include an itemised list of fees, charges orexpenses. Regard must also be had to any award rates that apply.

The current s 32(1C) deals with the situation where the agent is also the manager of thework seeker. In that case, the agent cannot demand or receive fees, charges or expensesin addition to the management fees, charges or expenses. Prior to the 1985 changes,there were also many instances of agents charging two fees – an agent’s fee and amanager’s fee. The PBT Assessment noted that some agents in the entertainment areaare still finding ways to avoid the 10% fee cap by describing themselves as a ‘manager’rather than an agent but merely provide an agency service.32

It is understood that Queensland and New South Wales (under the EntertainmentIndustry Act 1989) are the only jurisdictions to specifically regulate entertainment agents.

9.1 REVIEW FINDINGS

The Review Report found that while the number of complaints made to DETIR aboutagents was very small (20), there was an over-representation in complaints against agentsin the entertainment area (9).33

The Report noted that consultations and submissions indicated support for more flexibilityin the system of fee charging than is permitted under the existing legislation. On the otherhand, the Queensland Branch of the Media Entertainment and Arts Alliance (MEAA)advocated retention of the current restrictions in respect of performers in theentertainment industry.34 DETIR submitted that the current laws did not adequately caterfor the entertainment industry because of the different type of work relationships existingin that industry between agents and performers, particularly the dual role many agentshave as both agent and manager.





Both DETIR and the MEAA supported the transfer of protections for fee charging intothe IR Act. The MEAA also sought specific measures governing models and entertainersand their agents, with appropriate avenues of redress being included.35

The Review Report recommended that the IR Act be amended to incorporate specificprovisions for models and performers and their agents in relation to fee charging. It wasalso recommended that new definitions be included for employment agents and agentswho act as managers.36 Note that, in contrast to this view, the PBT Assessmentconclusion was that the restriction on fee charging be removed because it was generallyineffective and compliance rates were low.37


Clause 32 of the Amendment Bill removes s 32 of the PEA Act and transfers theprotection provisions to the IR Act as a proposed new Chapter 11A, considered abovein Section 8.3. The new measures make specific provision for models and performersand their agents.

Under a proposed new s 408A of the IR Act, a definition of ‘model’ and ‘performer’is inserted to reflect the changes to those terms in the PEA Act to be made by theAmendment Bill.38 Both definitions are quite broad and do not appear to be significantlydifferent in import to those in the existing PEA Act.

A proposed new s 408B provides a new definition of ‘private employment agent’ forthe proposed Ch 11A of the IR Act. It is identical to that in the proposed new s 5A ofthe PEA Act.39 Specific provision is made for agents of models and performers, unlikethe existing definition: proposed new s 408B(1)(b)-(d).

A proposed new s 408D(2) will operate where the agent is not also a manager of themodel or performer. It will allow an agent to take a fee from a model or performer forfinding, or attempting to find, work for the model or performer. However, the followingconditions will apply:

35 Review Report, p 13; Submission by MEAA, p 14.

36 Review Report, pp 13, 22.


38 See cl 24 of the Amendment Bill 2001, inserting a new Schedule containing a Dictionary.

39 Inserted by cl 6 of the Amendment Bill 2001. See the discussion in Section 4 of this Brief.


• the agent must give the model or performer a written notice setting out particularsprescribed by regulation;

• the fee is not to be greater than the prescribed percentage (to be stated in aregulation) of the gross amount payable to the model or performer, excludingprescribed allowances or payments, for the work; and

• the amount payable to the model or performer is at least the amount payableunder a relevant industrial instrument (eg an award or agreement). This ensuresthat the fee will be in addition to the minimum wage for the industry to preventinstances of agents deducting large fees from the minimum wage.40

If the above conditions are not complied with, the agent commits an offence punishableby a penalty of up to $1,200.

A more comprehensive definition of ‘manager’ is also to be inserted as a proposed news 408C. The intention appears to be to overcome situations where agents call themselves‘managers’ of models or performers but provide merely agency services. For an agent tobe a manager of a model or performer, the following things must be satisfied –

• there must be a written agreement between the agent and the model or performerto provide at least four management services which include, in addition to thetasks performed in the agent’s capacity as agent:

• handling their business affairs;

• providing accounting advice;

• publishing and promoting them;

• providing services ancillary to a performance;

• providing continuing career or artistic advice;

• representing them in negotiations with the media, entertainment industryworkers, or the public: proposed new s 408C(1),(4).

It is made clear that an agent is not a manager merely because of a written agreementunder which the agent helps the model or performer find work: proposed news 408C(3).

If the agent is also the manager of the model or performer, a fee can be charged underthe terms of the written agreement with the model or performer: proposed news 408D(3). No additional fee can be charged for acting as an agent.

40 Hon G R Nuttall MP, Minister for Industrial Relations, ‘New Laws To Protect EntertainmentWorkers’, Ministerial Media Statements, 12 December 2001.


10 RECOVERY OF FEES IMPROPERLY RECEIVED

Until 1985, there were no provisions enabling a work seeker to recover fees that hadbeen unlawfully obtained by an agent. As this omission was regarded as a disadvantageto vulnerable persons, many of whom are unemployed, measures were introduced intothe PEA Act to enable recovery of such fees from the agent.

Section 32A of the PEA Act currently provides that if an agent has unlawfully received afee or charge from a work seeker, the work seeker may apply to an industrial magistratefor an order that the agent repay the amount so received. This provision also applies inthe case of models and performers. The proceedings are essentially criminalproceedings.

10.1 REVIEW FINDINGS

The Review Report recommended that the new provisions in the IR Act enable workseekers to institute recovery action for improperly charged fees without the need forformal prosecution action and its associated criminal standard of proof.41


The proposed new ss 408E to 408G of the IR Act will enable recovery of improperlycharged fees in three alternative ways –

• criminal proceedings before the industrial magistrate to recover unlawfullyobtained fees. If the magistrate finds an agent guilty in criminal proceedings ofimproperly receiving a fee, the magistrate must order the agent to repay the fee ifit is found, on the balance of probabilities, to have been received unlawfully. Ifthe agent is found not guilty, the magistrate may order the agent to repay theamount the magistrate finds, on the balance of probabilities, the agent hasreceived from the work seeker: proposed new s 408E. This provision is similarto that which already exists in relation to offence hearings by industrialmagistrates;

• informal proceedings before the Queensland Industrial RelationsCommission for an order for repayment of a fee of not more than $20,000provided the application to the Commission is made within six years after the fee



is given to the agent.42 The application can be made by the work seeker, theiremployee organisation, a person authorised to act on their behalf, or an inspectorunder the IR Act. Note that, due to the informal nature of the proceedings, legalrepresentation is not permitted.43 An order must be made if a fee has beenunlawfully received: proposed new s 408F;

• civil proceedings before the industrial magistrate to recover fees unlawfullyreceived from a work seeker. The application can be made by the same bodiesmentioned in s 408F and the magistrate must make the order if a fee has beenunlawfully received. However, there does not appear to be a $20,000 upperlimit to the amount claimed: proposed new s 408G.

To give more teeth to the recovery proceedings, the magistrate’s orders under theproposed new s 408E or s 408G are enforceable under the Justices Act 1886 (Qld) andthe amount to be paid is recoverable from the agent as a debt: proposed new s 408H.

The Amendment Bill also makes minor amendments to other provisions of the IR Act toensure that the Industrial Relations Commission’s functions include dealing withapplications for recovery of fees and that the industrial magistrate has exclusivejurisdiction to hear and decide proceedings for recovery of fees.44

42 The matter can be remitted to the industrial magistrate: proposed new s 408F(5) of the IR Act.

43 See Amendment Bill 2001, cl 29 amending s 319 of the IR Act.

44 Amendment Bill 2001, cls 25-29.


APPENDIX – MINISTERIAL MEDIA STATEMENT

New Laws To Protect Entertainment Workers

12 December 2001

New laws designed to protect entertainment industry workers fromunscrupulous managers and agents were introduced today into theQueensland Parliament.

Industrial Relations Minister, Gordon Nuttall, said the laws would mean acrackdown on agents who charged fees for bogus attempts at procuringemployment for models, actors and other entertainment industry hopefuls.

“The current legislation does not adequately address modern workingarrangements like contract work for entertainers or models, or the rolesand responsibilities of agents and managers within those industries.

“These are extensive amendments to the Private Employment Agencies andOther Acts Amendment Bill 2001, including a new chapter in the IndustrialRelations Act 1999 regarding fee-charging,” Mr Nuttall said.

“Put simply, agents for models and entertainers will only be allowed tocharge a reasonable fee of up to 10% for finding work for a client.

“Managers in these industries will have to meet strict criteria regardingtheir roles and responsibilities, and both agents and managers will have toprovide written details of the nature of their work, and payment, includingthe fee.

“Most importantly, any fee that is charged must be in addition to theminimum wage for that industry. In the past we’ve had reports of agentsdeducting large fees from the minimum wage a worker is entitled to earn,”he said.

“The activities of con merchants trying to rip off innocent industry hopefulswill not be tolerated.”

Mr Nuttall said the new amendments would also streamline the processesand costs of approving licenses for potential private employment agents.

“Each applicant will now have to go before a new Employment AgentsAdvisory Committee made up of representatives of employment agents,workers and government to oversee the suitability of applicants. Thecommittee will have the ability to refuse an application, or even cancel alicence.”

“The committee will also be required to draw up a code of conduct for theindustry, addressing issues of training, discipline, and record keeping.”

Mr Nuttall said the proposed new laws would help employers and workersin the industry get on with creating employment.


“They also will ensure that adequate safeguards are in place to screenapplicants and not tie up valuable police and court resources - resourcesthat could be much better directed elsewhere.”

These amendments arise from recommendations from an independentreview of the Private Employment Agents Act conducted between Marchand November last year.

All the review recommendations were adopted by the Beattie Governmentearlier this year.

Mr Nuttall said there had been extensive consultation on the amendments.

“I’m pleased to say these changes have been brought before the QueenslandParliament with wide industry support.”

Media contact: Leisa Schultz 0419 746 093 / 3225 2017

RECENT PARLIAMENTARY LIBRARY RESEARCH PUBLICATIONS 2002

RESEARCH BRIEFS

RBR 2002/01 Fire Safety and Budget Accommodation: The Building and Other LegislationAmendment Bill 2001)

Jan 2002

RBR 2002/02 The Private Employment Agencies and Other Acts Amendment Bill 2001 Jan 2002

A complete listing of research papers is available at the following site: http://www.parliament.qld.gov.au/parlib/research/index.htmParliamentary Library - Research Publications & Resources Telephone (07) 3406 7108Orders may be sent to Maureen McClarty, [email protected]

Research Papers are available as PDF files:• to members of the general public abstracts are available on the parliamentary web site, URL,

http://www.parliament.qld.gov.au

• http://www.parliament.qld.gov.au/Library/Query.exe – ResearchPubs -Library

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