WorkCover and labour hire workers raise two questions that are easy to merge in peak season: who carries the WorkCover insurance cost, and who owes the safety duty. In Victoria, the provider carries the first, and you, as the host, are treated as the employer for the second. This article is about Victoria only, and it applies to any crew you bring in through an agency.
Who is the employer in labour hire depends on which question you ask, and assuming the agency covers everything is how an induction gets skipped. This guide keeps the two questions apart.
Two different questions: WorkCover cost and safety duty
The first question is about money: whose WorkCover insurance cost moves with the people on your floor. The second is about duty: who must keep the workplace safe, and who must induct, train and supervise. The answers point in different directions, and both are true at once. A clean WorkCover position tells you nothing about whether your induction is good enough.
WorkCover: why agency workers sit with the provider
WorkSafe Victoria's guidance on who counts as your worker describes a labour hire arrangement like this: you contract with an employment agency, which contracts with someone looking for work, in order to provide you with a worker. You are a client of the agency, so the person working for you would not be your worker for WorkCover insurance cost purposes.
People you hire yourself are different, and the same page says a contractor can count as your worker too. This is general information, not legal advice, so if you are unsure how your policy treats an arrangement, ask your WorkSafe agent.
How the provider's insurance cost is built from your workplace
WorkSafe sets out how provider insurance costs work on a separate page. A labour hire provider's WorkCover insurance cost is calculated from its employer performance rating and the industry rate for each workplace where it places workers. Those workplaces are classified to the same industry as the client's workplace, which means yours.
That is why the provider needs your details. Before each new financial year it gives its WorkSafe agent the legal name, business name and workplace address of each on-hire client. Give the provider yours, and tell it early if the peak adds a site.
If an on-hired worker is injured at a registered on-hire workplace, the provider must include that workplace in its Employer Injury Claim Report. How a claim is lodged, and whose claim it is, is a question for the provider and WorkSafe Victoria, so ask them rather than assume.
OHS: why you are still treated as the employer
According to WorkSafe Victoria's host guidance for labour hire, a host is taken to be the employer of a labour hire worker under the Occupational Health and Safety Act 2004 (the OHS Act). You owe the worker the same duties as any other employee, and these host employer OHS duties are shared with the provider. No contract can exclude either of you from the legal obligation to provide a safe place of work, so a clause that hands safety to the agency does not move yours.
For a peak crew, these host duties from the same page matter most:
- Induction, training and supervision. Provide training, instruction, information and supervision, keep a training register, and make sure the worker understands your workplace's OHS requirements, for example through an induction.
- Equipment and reporting. Provide equipment such as personal protective equipment (PPE), tell the worker how to report hazards and incidents, and notify WorkSafe Victoria of any notifiable incident or injury.
The duties are the same as for any other employee, so treat a two-week agency worker like a permanent employee from the first shift. Splitting induction and training with the supplier is covered in a food production post on who trains the agency worker, and a separate post sets out the safety obligations for temporary electricians.
The duty to consult, cooperate and coordinate
Host and provider must consult, cooperate and coordinate with each other, so far as reasonably practicable, to meet all duties to labour hire workers. WorkSafe says the OHS Act does not intend either side to duplicate the other's efforts, so decide who does what before the crew arrives, and write it down. The host guidance asks you to give detailed information about the work and its hazards, and to support the provider's requests to visit the workplace.
Chandler Personnel runs site inductions on behalf of clients and drives out to farms and factories to check on workers, which fits that cooperation. If you want a view of where your site stands before a crew arrives, you can request a personalised safety review through the OHS scorecard.
What a doubled peak crew changes for the split
Doubling the crew does not change who carries what. It changes how often the same duties come up.
- More workplaces to register. The provider's WorkCover insurance cost is rated for each on-hire workplace, so a second site at a different address that takes agency staff belongs in the details you give it.
- Line moves. You must not change a worker's tasks or location without consulting the provider and the worker. Moving agency staff from packing to the loading dock mid-peak is a change of tasks.
- Induction at volume. Induction, training, information and supervision duties apply from the first shift, however many start on the same Monday. The guide to seasonal worker onboarding covers the steps.
- Incidents. A notifiable incident involving an agency worker still goes to WorkSafe Victoria from you.
How many team leaders a doubled crew needs is a separate question, and the post on supervising seasonal workers when headcount doubles works through it. Pricing the agency hour belongs to the article on labour cost per hour for blue collar roles, and the article on multiple labour hire suppliers covers a peak split across several providers.
What to agree with the provider before the first shift
Write the split down before the first shift, in an email or a one-page agreement, and keep it with your OHS records:
- Workplace and work details. Your legal name, business name, site addresses, and a written description of the tasks and their hazards.
- Equipment, induction and training. Who supplies the PPE, who runs which part of the induction, and who keeps the training register.
- Contacts, changes and incidents. The health and safety contact on each side, how you will tell the provider before moving a worker, and how an injury is passed on.
Chandler Services, the labour hire division of Chandler Personnel, supplies manufacturing and production labour hire. When you are ready to line up a peak crew, you can request labour hire staff through the website. Whichever provider you use, ask for the split above in writing.
Related Resources
- WorkSafe's host guidance
- Who counts as your worker
- How provider insurance costs work
- Manufacturing and production labour hire
- Request labour hire staff
- The OHS scorecard
Frequently Asked Questions
Do labour hire workers add to my WorkCover cost?
Not as your own WorkCover insurance cost. Under WorkSafe Victoria's guidance, in a labour hire arrangement you are a client of the employment agency, and the person working for you is not your worker for WorkCover insurance cost purposes. The provider's own cost is rated from its performance rating and the industry rate of each workplace. How the provider's costs are reflected in the rate it charges you is a commercial question, so ask how the rate is made up, and ask your WorkSafe agent how this applies to your policy.
Who has to report a serious injury to an agency worker?
WorkSafe's host guidance lists notifying WorkSafe Victoria of any notifiable incident or injury as a host duty, so that sits with you. Separately, the provider must include the on-hire workplace in its Employer Injury Claim Report. How a claim is lodged is a question for the provider and WorkSafe, so tell the provider about any injury straight away.
Am I responsible for the safety of agency workers?
Yes. In Victoria, the OHS Act takes the host to be the employer of a labour hire worker, so you owe the same safety duties as you do to your own employees. The provider has duties too and no contract can remove yours, so the WorkCover insurance cost may sit with the provider while the duty to provide a safe workplace stays with you as well.
Can I move agency workers to a different task during the peak?
Only after consulting. The host duties include not changing a labour hire worker's tasks or location without consulting both the provider and the worker. Plan line moves with the provider before the shift, not during it, and brief the worker on the new task's hazards.
What information should the provider and I share?
You give the provider detailed information about the work, its hazards and the risk controls, plus your legal name, business name and workplace addresses. Between you, agree who supplies PPE and who the health and safety contacts are. You also consult the provider and the worker when an incident is investigated.
WorkCover cost is theirs, safety is yours too
The WorkCover insurance cost for an agency worker sits with the provider, and WorkSafe rates it from your workplace details. The safety duty sits with you as well, from the first shift, and no contract moves it. This week, ask your provider which details it needs from you, and agree in writing who runs the induction, who keeps the training register and who makes the incident calls.
