Employment Agents Act 1976 (Western Australia)

The Employment Agents Act 1976 establishes a licensing and regulatory framework for persons who act as employment agents in Western Australia. Mechanically, the Act does the following:

Defines who is an employment agent and what counts as a transaction (s 4, s 5). A person is an employment agent if, for reward, they procure engagements for jobseekers or procure employees for employers, or if they place persons in employment and levy fees or contributions (s 5(1)). Certain publishers and specific employer-providers of temporary workers are excluded from that definition (s 5(2) and (3)).
Requires licensing to carry on the business of an employment agent, or to advertise or hold oneself out as such (s 12). Licences are to be granted only to natural persons, but may be issued on behalf of a firm or body corporate provided a nominated natural person holds the licence (s 12(2)-(4); s 19).
Sets out three kinds of licences: general, restricted, and interim (s 14). The Commissioner must be satisfied as to supervision and management for licensing or renewal (s 17).
Provides that fee scales and expense allowances used by agents must be submitted to and approved by the Commissioner, and that fees charged to employees are subject to restriction and display rules (s 36, s 37, s 38).
Creates recordkeeping and financial accounting obligations for licensees, including the maintenance of transaction records, notice forms, separate records for monies received on behalf of others, monthly balancing, and retention for at least three years (s 42-45).
Confers inspection, audit and investigation powers on the Commissioner, including a power for the Minister to appoint an auditor at the licensee’s expense (s 46(1), (7)). The Commissioner may institute prosecutions and delegate functions (s 11E; s 48A).

CrestWestern Australia

Employment Agents Act 1976

Western Australia

Employment Agents Act 1976

Contents

Short title 1
Commencement 1
Terms used 1
Employment agents 2
Application of this Act 3
Exemptions 4
Employment of seamen 4

9A. Commissioner 4

Administrative arrangements 4

10A. Application of Financial Management Act 2006 and Auditor General Act 2006 5

11A. Officers 6

11E. Conduct of proceedings 6

Employment agents to be licensed 6
Duration of licences 7
Kinds of licence 8
Classes of business 9
Separate places of business, and change of address 9
Supervision and management 10
Applications 10
Licences may be issued for benefit of firm or body corporate 11
Objections 12
Conditional licences 13
Issue of licences 13
Suspension, cancellation and disqualification 14
Form of licence 15
Register 16
Limitation period for offences 17
Misrepresentation and allied offences 17
Offences 18
Facilitation of proof 19
Contract for fees greater than scale to be voidable 20
Fees demanded by persons other than licensed employment agents 20
Employment by agent 21
Single hirings 21
Fees chargeable to employees generally 21
Fees chargeable to employers generally 22
Scale of fees and expenses 23
Failure to arrange employment 24
Statements of account 24
Short term placements, and spurious interviews 25
Records of transactions 26
Financial records 27
Responsibility for entries 28
Retention of records 28
Inspection of records 28
Offences 30
Information officially obtained to be confidential 31

48A. Delegation by Commissioner 32

Immunity 32

49A. Judicial notice 32

Other rights and remedies 33
Records to be available to clients 33
Regulations 33

Notes

Compilation table 35

Other notes 36

Defined terms

Western Australia

Employment Agents Act 1976

An Act to make provision for the regulation of employment agents, and for incidental purposes.

1. Short title

This Act may be cited as the Employment Agents Act 1976.

2. Commencement

This Act or any provisions of this Act shall come into operation on a date or dates to be fixed by proclamation.

[3. Omitted under the Reprints Act 1984 s. 7(4)(f).]

4. Terms used

(1) In this Act, unless the contrary intention appears —

Commissioner means the person for the time being designated as the Commissioner under section 9A;

Department means the department of the Public Service principally assisting in the administration of this Act;

employee includes a person seeking employment and a person sought for employment;

employment includes —

(a) employment by way of professional engagement or under a contract of service or a contract for service; and

(b) an arrangement whereby a person is to assist in the domestic work of a household in consideration of receiving hospitality with or without further or other remuneration;

engagement means an employment which has been entered into by the employee;

firm means an unincorporated body of persons (whether consisting of individuals or of bodies corporate or partly of individuals and partly of bodies corporate) registered under the Business Names Registration Act 2011 (Commonwealth), and includes the several persons constituting that body;

licence means a licence granted pursuant to this Act; and

transaction includes the relationship between the employment agent and the person for whom he is acting and any negotiations entered into by the employment agent in endeavouring to procure an engagement.

(2) Where a meaning is assigned to any term by this section cognate expressions used in this Act, unless a contrary intention appears, have a corresponding meaning.

[Definition of the repealed Acts omitted under the Reprints Act 1984 s. 7(4)(e).]

[Section 4 amended: No. 70 of 1990 s. 4; No. 57 of 1997 s. 39(10); No. 55 of 2004 s. 276; No. 28 of 2006 s. 92; No. 6 of 2012 s. 39.]

5. Employment agents

(1) Any person who —

(a) for reward follows, either wholly or from time to time or part time, the calling of an agent for procuring engagements for persons seeking to be employed, or for procuring employees for persons seeking to employ such persons; or

(b) whether or not for reward, places persons in employment and levies from either the employee or the employer an entrance fee, a periodical contribution or any other charge for his services in effecting the placement,

is deemed for the purposes of this Act to be carrying on the business of an employment agent.

(2) A newspaper or other publication not published wholly or mainly for the purpose of acting as intermediary between persons seeking employment and prospective employers shall not be deemed to be carrying on the business of an employment agent.

(3) A person who, as principal, is the employer responsible for the payment of wages or other lawful obligations to an employee and who, as such employer, provides to other persons the services of his employees to perform tasks of a temporary nature on the basis of predetermined rates agreed between those other persons and himself as such employer, no fee or expense being incurred by the employee in or in relation to the performance of such tasks, shall not be deemed by reason only of that fact to be an employment agent.

[6. Omitted under the Reprints Act 1984 s. 7(4)(e).]

7. Application of this Act

(1) Subject to the provisions of section 9, this Act does not apply to or in relation to the placing of persons in employment as members of the crew of a vessel engaged in maritime navigation.

(2) The provisions of this Act do not apply to or in relation to the placement of any person in employment by any department or instrumentality of the Commonwealth or of the State.

(3) The Governor may by Order in Council declare that this Act, or any provision of this Act specified in the Order, shall not apply to any class of business or service either generally or when conducted in any specified circumstances or part of the State, and may by subsequent Order in Council from time to time revoke or vary any such Order.

8. Exemptions

(1) The Governor may by Order in Council grant to any person or class of persons an exemption from the provisions of this Act, or any such provision, on such terms and conditions as the Governor thinks fit, and may by subsequent Order in Council revoke or vary any such exemption.

(2) Where a person is granted an exemption under this section subject to a condition and that condition is not observed in relation to any circumstances, that exemption shall be deemed not to have taken effect in relation to those circumstances and any transaction connected therewith.

9. Employment of seamen

Any person, not being a person authorised by any other law to act in the engagement of seamen, who acts as an employment agent in placing any other person in employment as a member of the crew of a vessel engaged in maritime navigation, commits an offence.

9A. Commissioner

(1) The Minister is required, by notice published in the Gazette, to designate a person who is an executive officer of the Department as the Commissioner for the purposes of this Act.

(2) The Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.

(3) In this section —

executive officer has the meaning given by section 3(1) of the Public Sector Management Act 1994.

[Section 9A inserted: No. 28 of 2006 s. 93.]

10. Administrative arrangements

(1) Subject to any specific or general direction given by the Minister, this Act shall be administered by the Commissioner.

(2) The costs and expenses incurred in the administration of this Act shall be defrayed out of the moneys provided by Parliament for that purpose.

[Section 10 amended: No. 98 of 1985 s. 3; No. 70 of 1990 s. 6.]

10A. Application of Financial Management Act 2006 and Auditor General Act 2006

(1) The provisions of the Financial Management Act 2006 and the Auditor General Act 2006 regulating the financial administration, audit and reporting of departments apply to and in respect of the Department for the time being responsible for the administration of this Act and its operations under this Act.

(2) The annual report of the Department in which the Commissioner is employed is to include details of —

(a) the number, nature, and outcome, of —

(i) investigations and inquiries undertaken by, or at the direction of, the Commissioner for the purposes of this Act; and

(ii) matters that have been brought before the State Administrative Tribunal under this Act;

and

(b) the number and nature of matters referred to in paragraph (a) that are outstanding; and

(d) forecasts of the workload of the Commissioner in performing functions under this Act in the year after the year to which the report relates; and

(e) any proposals for improving the performance of the Commissioner’s functions under this Act.

[Section 10A inserted: No. 98 of 1985 s. 3; amended: No. 55 of 2004 s. 277; No. 77 of 2006 Sch. 1 cl. 56(1).]

[11. Deleted: No. 55 of 2004 s. 278.]

11A. Officers

There shall be appointed under and subject to Part 3 of the Public Sector Management Act 1994 such officers and other persons as are necessary for the administration of this Act.

[Section 11A inserted: No. 70 of 1990 s. 5; amended: No. 32 of 1994 s. 3(2).]

[11B-11D. Deleted: No. 55 of 2004 s. 279.]

11E. Conduct of proceedings

Any proceedings for an offence against this Act may be instituted and conducted by the Commissioner or any person appointed by the Commissioner to institute and conduct proceedings on his behalf.

[Section 11E inserted: No. 70 of 1990 s. 5; No. 55 of 2004 s. 280.]

12. Employment agents to be licensed

(1) Subject to this Act no person shall carry on, or advertise, notify or state that he or it acts as, or carries on the business of, an employment agent, or that he or it is willing so to act or carry on business, unless —

(a) being a natural person, he is the holder of a licence under this Act; or

(b) in the case of a firm or body corporate, a natural person who is —

(i) a member of that firm; or

(ii) an officer of the body corporate; or

(iii) an employee of that firm or body corporate,

is the holder of a licence under this Act granted to him on behalf of that firm or body corporate.

(2) A licence under this Act shall be granted only to a natural person and not to any body of persons or body corporate.

(3) In accordance with the provisions of section 22 and section 24, a licence may be granted to a natural person on behalf of a firm or body corporate of which he is a member, officer, or employee, and within the limits to which the licence extends any business under that licence may be transacted in the name of that firm or body corporate.

(4) The holder of a licence, and any firm or body corporate on behalf of which it was granted, shall carry on business under this Act —

(a) in the name or trade name or names or trade names specified in that licence and under no other description; and

(b) at or from the place or places of business specified in that licence; and

(d) in relation to the class or classes of business specified in or authorised by that licence; and

(e) in accordance with any conditions, limitations or restrictions specified in that licence,

and not otherwise.

(5) Any person who contravenes any provision of this section commits an offence.

Penalty: $500.

13. Duration of licences

(1) On granting a licence, other than an interim licence, the Commissioner shall fix a period, not exceeding the period prescribed, during which the licence is to have effect.

(1a) Subject to section 25, unless sooner surrendered a licence, other than an interim licence, shall have effect for the period fixed under subsection (1).

(1b) A licence, other than an interim licence, may be renewed from time to time for the period prescribed.

(2) Where an application is made for the renewal of a licence after, but within 3 months of, the date on which that licence expired, and any amount prescribed by way of penalty for a late application is paid, the Commissioner may renew that licence and in that event the renewal of the licence shall be deemed for all purposes to have taken effect on the day immediately succeeding the date on which the previous licence expired.

(3) Except where the licence was granted on behalf of a firm or corporation, in the event of the death of the holder of a licence, the licence shall be deemed to have been granted to his legal personal representative and shall, unless it is transferred to some other person or cancelled or surrendered, remain in force until the end of the period of 3 months beginning with the death and shall then expire, so however that the licence may be extended or further extended by the Commissioner for the purpose of winding up the deceased’s estate.

[Section 13 amended: No. 56 of 1995 s. 12; No. 55 of 2004 s. 294.]

14. Kinds of licence

(1) The licences that may be granted under this Act are —

(a) a general licence; and

(b) a restricted licence; and

(2) A general licence authorises the holder to act as, and carry on the business of, an employment agent throughout the State in relation to all classes of business to which this Act applies.

(3) A restricted licence authorises the holder to act as, and carry on the business of, an employment agent only —

(a) in the part or parts of the State; and

(b) in relation to the class or classes of business,

which may be therein specified.

(4) An interim licence authorises the holder to carry on the business of an employment agent for such period not exceeding 3 months as is therein specified on behalf of the licensed employment agent named therein during the period of incapacity or other circumstances to which it relates.

15. Classes of business

(1) For the purposes of a licence other than a general licence the class or classes of business that may be carried on shall be specified in the licence.

(2) The Commissioner may define a class of business in whatever terms he thinks fit, or he may specify a prescribed classification.

(3) Regulations may prescribe that carrying on a business in relation to any specified kind of employment shall constitute a separate class of business for the purposes of this Act, and any such regulation may be of general or limited application according to time, place or other circumstance.

[Section 15 amended: No. 55 of 2004 s. 294.]

16. Separate places of business, and change of address

(1) Where any business is to be carried on in more than one place or under more than one name or trade name —

(a) the Commissioner may require that separate applications are made in relation to each such place of business, name or trade name; and

(b) it may be made a condition of the licence that any part of that business be conducted as a separate entity.

(2) Where the holder of a licence notifies the Commissioner that he proposes to conduct his business from an address other than that in respect of which the licence was issued, the Commissioner may amend the licence accordingly and authorise the holder to conduct his business from the new address.

(3) Where the holder of a licence notifies the Commissioner that the holder proposes to change the name or trade name or names or trade names specified in the licence, the Commissioner may amend the licence accordingly and authorise the holder to carry on business under that name or those names.

(4) The Commissioner shall not change a name or trade name specified in a licence unless the Commissioner is satisfied that the new name is the name of the applicant or that the applicant, or firm or body corporate on behalf of whom the licence is held, is the proprietor of the new trade name.

(5) A notice under subsection (2) or (3) shall be in writing and accompanied by the relevant licence.

(6) The Commissioner shall enter in the register details of any amendment made under subsection (2) or (3).

[Section 16 amended: No. 56 of 1995 s. 13; No. 55 of 2004 s. 294.]

17. Supervision and management

In relation to any place of business, no licence shall be granted or renewed unless the Commissioner is satisfied that adequate management and supervision will be provided to safeguard the interests of prospective employees.

[Section 17 amended: No. 55 of 2004 s. 294.]

18. Applications

(1) An application for the grant or renewal of a licence shall be made in the prescribed manner to the Commissioner, and shall be accompanied by the prescribed fee.

(2) On the application for the grant of a licence, but not in respect of a renewal, the full names and business or residential address of 2 persons resident in the State willing to act as character referees for the proposed licensee shall be stated on the application.

(3) The Commissioner of Police is authorised to disclose to the Minister, on the request of the Commissioner, any record or information relevant to an application under this Act.

[(4), (5) deleted]

(6) An application for the transfer of a licence shall be endorsed to show clearly the particulars of the licence to which it relates, but in all other respects shall be dealt with as though it were an application for the grant of a licence.

[Section 18 amended: No. 55 of 2004 s. 294; No. 23 of 2014 s. 6.]

19. Licences may be issued for benefit of firm or body corporate

(1) Where it is desired that a licence shall be granted to a natural person on behalf of a firm or of a body corporate, the application —

(a) shall state the name and the principal place of business of that firm or body corporate;

(b) shall state the name and the principal place of business of the proposed licensee;

(c) may be made either by the firm or body corporate on behalf of the proposed licensee or by the proposed licensee personally;

(d) shall be treated as though made by or on behalf of the firm or body corporate which —

[(i), (ii) deleted]

(iii) may be required to satisfy the Commissioner that it consents to the application.

(2) On an application made under this section the Commissioner shall have regard not only to the question as to whether or not the proposed licensee is a fit and proper person to hold a licence but also to the fitness and repute of the firm or body corporate on behalf of which the licence is to be used, and may take into consideration any objection or submission made in relation to that firm or body corporate or the persons responsible for its management.

(3) Two or more licences may be granted on behalf of the same firm or body corporate.

(4) A licence granted pursuant to an application made under this section shall specify the firm or body corporate on behalf of which it is granted and shall not have effect as a licence granted to the natural person named therein on his own behalf.

(5) Where a licensee is an employee of a firm or body corporate named in his licence, that firm or body corporate and not the licensee shall be primarily responsible for observing the requirements of this Act but both the licensee and the firm or body corporate so named may be charged with and convicted of the like offence.

(6) Except with the consent of the firm or body corporate named in the licence no licence granted pursuant to this section may be transferred, but, subject to this Act, the licence may be transferred to any person to whom the firm or body corporate has agreed to transfer it and the consent of the licensee or his legal personal representative shall not be necessary where the licensee was an employee of that firm or body corporate at the time the licence was granted.

[Section 19 amended: No. 55 of 2004 s. 281 and 294.]

20. Objections

(1) Where the Commissioner of Police, or a person authorised by the Commissioner of Police, desires to object to the grant or renewal of a licence he shall lodge with the Commissioner and serve on the applicant or his authorised representative a notice stating the objection and the grounds thereof in sufficient detail to enable the applicant to know what he has to answer.

[(2) deleted]

[Section 20 amended: No. 70 of 1990 s. 6; No. 55 of 2004 s. 282 and 294; No. 23 of 2014 s. 7.]

21. Conditional licences

(1) A licence under this Act may be granted or renewed subject —

(a) to any condition, limitation or restriction prescribed as being of general application or applicable to specified circumstances for the purposes of this Act; and

(b) to conditions, limitations or restrictions relating to —

(i) the class of business; or

(ii) the place or circumstances at or in which it is to have effect; or

(iii) the supervision and control of the conduct of the business; or

(iv) such other matters as the Commissioner thinks fit to impose.

(2) A person who contravenes any condition, limitation or restriction to which a licence is subject commits an offence.

[Section 21 amended: No. 55 of 2004 s. 294.]

22. Issue of licences

(1) After considering any objection to the grant or renewal of a licence lodged with the Commissioner, the Commissioner may, if he is satisfied that the applicant is a fit and proper person to hold a licence and that no other circumstances make it undesirable, grant a licence under this Act or renew any licence so granted either unconditionally or subject to conditions, limitations or restrictions.

(2) If the application is for the grant or renewal of a general licence the Commissioner may instead grant a restricted licence.

(3) The Commissioner must give notice in writing of the Commissioner’s decision —

(a) to the applicant; and

(b) if the Commissioner of Police lodged an objection with the Commissioner, to the Commissioner of Police.

(4A) If notice is given under subsection (3) to a person who might be aggrieved by the decision, the Commissioner must in the notice —

(a) set out the reasons for the decision; and

(b) inform the person of the right to apply to the State Administrative Tribunal for a review of the decision.

(4) If the applicant or, if the Commissioner of Police lodged an objection with the Commissioner, the Commissioner of Police is aggrieved by the Commissioner’s decision on the application, the aggrieved person may apply to the State Administrative Tribunal for a review of the decision.

[Section 22 amended: No. 55 of 2004 s. 283; No. 23 of 2014 s. 8.]

[23, 24. Deleted: No. 55 of 2004 s. 284.]

25. Suspension, cancellation and disqualification

(1) The Commissioner may allege to the State Administrative Tribunal that disciplinary action should be taken against a person, firm or body corporate to which this section applies because the person, firm or body corporate —

(a) has been guilty of improper conduct in relation to the carrying on of the business of an employment agent; or

(b) has been guilty of any offence involving dishonest or fraudulent conduct, or of an offence against this Act; or

(d) has failed to ensure the proper management and supervision of a person carrying on the business of an employment agent on their behalf.

(2) This section applies to any person, firm, or body corporate who or which is or are, or during the period of 12 months immediately preceding was or were, the holder of a licence or named in a licence.

(3) Where the State Administrative Tribunal, on dealing with an allegation under subsection (1), is satisfied that a reason described in that subsection has been made out, it may order that the licence concerned be suspended for such period as the Tribunal determines or shall be cancelled and that any or all of such persons or any such firm or body corporate shall be disqualified from holding or taking the benefit of a licence either for such period as the Tribunal specifies in the order or permanently.

(4) The State Administrative Tribunal may order that the licence be delivered up to the Commissioner and any person who fails to deliver up his licence in accordance with the terms of the order commits an offence against this Act.

(5) A licence the operation of which is suspended under this section shall for the period of that suspension be deemed not to be in force.

(6) Where a person, firm or body corporate is disqualified from holding or taking the benefit of a licence by an order of the State Administrative Tribunal made under this section they are not eligible, for the period of that disqualification, to apply for or hold any further or other licence under this Act.

[Section 25 amended: No. 55 of 2004 s. 285; No. 8 of 2009 s. 51(2); No. 7 of 2022 s. 23.]

26. Form of licence

(1) A licence shall be in the form prescribed.

(2) A licence shall specify —

(a) the name of the holder and where it is granted on behalf of a firm or body corporate the name of that firm or body corporate; and

(b) the address of the place or places of business in respect of which it is taken out; and

(d) where appropriate, the class or classes of business authorised.

(3) Where the Commissioner is satisfied that a licence has been lost or destroyed, he may issue a duplicate licence on payment of the prescribed fee.

[Section 26 amended: No. 55 of 2004 s. 294.]

27. Register

(1) The Commissioner shall keep a Register in the prescribed manner of all persons licensed, and all firms and bodies corporate on behalf of which a licence has been granted, under this Act.

(2) Particulars of every condition, limitation and restriction imposed in relation to a licence shall be specified in the Register.

(3) The Commissioner shall, upon receipt of the prescribed fee, make the Register available for inspection and furnish a certificate as to the contents of the Register.

(4) A certificate under the hand of the Commissioner as to any matter contained in the Register shall, in the absence of proof to the contrary, be taken as proof of the matter so certified.

[Section 27 amended: No. 55 of 2004 s. 294.]

28. Limitation period for offences

A prosecution for an offence under this Act must be commenced within 2 years after the date on which the offence is alleged to have been committed.

[Section 28 inserted: No. 59 of 2004 s. 141.]

29. Misrepresentation and allied offences

(1) A person who knowingly makes or publishes or causes to be made or published in the course of business as an employment agent any representation or statement which he knows or reasonably ought to know —

(a) is false or misleading in a material particular; or

(b) is likely to deceive or mislead a person in a material way,

commits an offence.

(2) If in a proceeding against any person for making or publishing or causing to be made or published any representation or statement in contravention of this section it is proved that the representation or statement was in contravention of this section when made or published, that person shall be deemed to have had knowledge that the representation or statement contravened this section unless he proves —

(a) that he took all reasonable precautions against committing the contravention; and

(b) that at the time of making or publishing the representation or statement he had reasonable grounds to believe and did believe that the representation or statement did not contravene this section when so made or published and that he had no reason to suspect otherwise.

(3) Any employment agent who induces a person to enter into any engagement by any statement or representation made or published in contravention of subsection (1) commits an offence.

Penalty: $500.

(4) Any employment agent who untruthfully and wilfully publishes, advertises, or otherwise represents or holds himself out as being authorised by any person or body of persons, whether corporate or unincorporate, to act in or promote the engagement of any person or class of persons for any employment commits an offence.

Penalty: $500.

30. Offences

(1) Any person who —

(a) fails to comply with any of the requirements of this Act within the time or in the manner thereby provided; or

(b) contravenes or fails to comply with any provision of this Act,

commits an offence.

(2) Any person convicted of an offence against this Act is liable, where no penalty is expressly provided for the offence, to a penalty not exceeding $200.

[(3) deleted]

(4) Where by reason of or arising out of any act or omission of the holder of a licence granted on behalf of a firm or body corporate a person is charged with an offence under this Act, or is the subject of an allegation under section 25(1), it shall be an answer in any such case for the firm or body corporate to show that —

(a) the act or omission complained of was committed or occurred without the knowledge of the firm or body corporate and that the firm or body corporate could not reasonably be expected to have known that any provision of this Act had been contravened or had not been complied with; or

(b) the firm or body corporate was not in a position to influence the conduct of the holder of the licence in relation to the act or omission; or

[Section 30 amended: No. 55 of 2004 s. 287; No. 9 of 2023 s. 57.]

31. Facilitation of proof

In any prosecution for an offence against this Act —

(a) it is not necessary to prove the appointment of the Commissioner or any person appointed by the Commissioner to institute and conduct proceedings on the Commissioner’s behalf or his authority, but nothing in this paragraph prevents the right of the accused to prove the extent of that authority; and

(b) a signature purporting to be that of the Commissioner or a person appointed by the Commissioner shall be taken to be the signature of the person whose signature it purports to be until the contrary is proved; and

(c) a statement signed by the Commissioner that a licence of the description mentioned in the statement has or has not been granted under this Act to or in relation to any person, firm or body corporate specified in the statement, or as to the date of issue or renewal and the particulars contained in any such licence or the conditions, limitations or restrictions imposed thereon, is evidence of the matters specified in the statement; and

(d) the allegation in or averment in any prosecution notice that any premises were used, at the time stated therein, for the purposes of carrying on the business of an employment agent is evidence thereof; and

(e) any work done in any premises used for the purposes of carrying on the business of an employment agent shall be deemed to have been done, and any person employed therein shall be deemed to have been employed, with the knowledge and by the authority of the person responsible for the management of that business unless the contrary is proved.

[Section 31 amended: No. 70 of 1990 s. 6; No. 55 of 2004 s. 288 and 294; No. 84 of 2004 s. 79 and 82; No. 8 of 2009 s. 51(3).]

32. Contract for fees greater than scale to be voidable

Where a contract or agreement is made or entered into whereby any employer or employee, or any person acting for any employer or employee, either directly or indirectly agrees to pay to any employment agent or to any person on his behalf in respect of any contract or transaction subject to the provisions of this Act, any fee or other moneys greater or other than the rates permitted in accordance with this Act, —

(a) such greater or other amount is recoverable, with costs, by the person so paying; and

(b) the contract or agreement is voidable at the option of that employer or employee.

33. Fees demanded by persons other than licensed employment agents

A person, not being an employment agent licensed under this Act, who by or through any employment agent demands, receives or retains from a person seeking employment any fees or other moneys not lawfully chargeable under this Act commits an offence.

Penalty: $500.

34. Employment by agent

No fee shall be charged to an employee in relation to any transaction —

(a) whereby the employee is employed by the employment agent or any firm or business in which the employment agent is personally involved; or

(b) whereby the employee is so employed but the use of his services or his engagement for the purposes of other employers is arranged for casual or short term periods.

35. Single hirings

Where a transaction relates to an engagement for a term certain only the fee shall be fixed at the commencement and shall not be chargeable to an employee on the basis of a continuing or recurring commitment having the effect of reducing the amount of his periodic remuneration, notwithstanding that the term of the engagement is thereafter extended.

36. Fees chargeable to employees generally

(1) On and after the expiry of a period of 3 years from the day on which this section came into operation, or on and after such earlier date as the Governor may by Order in Council declare in relation to any class of business specified therein, no fee shall be chargeable to an employee in relation to any transaction.

(2) Subject to subsection (1), in relation to any transaction the fee to be charged to an employee shall be fixed in accordance with the scale approved under section 38, and an employment agent shall not directly or indirectly demand, receive or retain from an employee any amount in excess of the fee so fixed and the expenses permitted in accordance with this Act.

(3) The scale of fees and expenses chargeable to an employee shall be displayed in the office of the employment agent, in such a manner as to be easily readable.

(4) No fee or expense shall be recoverable from any employee by an employment agent unless either before that person was accepted as a client or at or prior to the acceptance of the engagement written advice of the scale of fees and expenses applicable was given or forwarded to him.

(5) In relation to any engagement —

(a) no fee shall be charged to the employee unless a fee is also charged to the employer; and

(b) the fee charged to the employee shall not exceed the fee charged to the employer.

37. Fees chargeable to employers generally

(1) In relation to any transaction, the amount of fees and expenses chargeable to an employer by an employment agent shall be —

(a) unless the parties have otherwise agreed in writing, the amount fixed by reference to the relevant scale determined in accordance with this Act; or

(b) where the employer and the employment agent in relation to any particular transaction or class of transactions have negotiated and agreed in writing in advance the basis on which the employer is to be charged, an amount determined in accordance with that basis,

and an employment agent shall not directly or indirectly demand, receive or retain from an employer any amount in excess of the amount so determined.

(2) The scale of fees and expenses that may be charged by an employment agent to an employer pursuant to subsection (1)(a) shall be made readily available for perusal by the employer at the office of the employment agent.

(3) Subject to the provisions of subsection (1)(b), no fee or expense shall be recoverable from any employer by an employment agent unless on or before the introduction of the employee the employer was given, either personally or by posting to the address notified by him, written advice of the scale of fees and expenses applicable.

38. Scale of fees and expenses

(1) No scale of fees or expenses shall be used by an employment agent unless it has been submitted to and approved by the Commissioner.

(2) A scale of fees or expenses shall set out clearly —

(a) the maximum amounts that are to be chargeable or the formula upon which the maximum charge is to be assessed; and

(b) whether —

(i) the employer and the employee; or

(ii) only the employer,

are liable to pay the fees or expenses; and

(c) if different rates are to be chargeable for different classes of person, place, employment, or other circumstance, the rates applicable to each; and

(d) the time for payment; and

(e) the period and other conditions of any replacement guarantee to be offered; and

(f) where the amount includes expenses —

(i) the fee; and

(ii) the basis upon which the expenses are to be assessed, stating specifically the ancillary or administrative services to be charged for in each transaction.

[Section 38 amended: No. 55 of 2004 s. 294.]

39. Failure to arrange employment

Where a person pays to an employment agent any moneys in respect of fees or expenses or otherwise and does not through the services of that employment agent —

(a) being an employee, obtain employment within one month; or

(b) being an employer, engage an employee within such period as is agreed or within one month, whichever is the greater period,

then on demand made within one further month thereafter the employment agent shall repay those moneys after deduction of such expenses as are lawful.

40. Statements of account

Where an employment agent acts for an employee, with the employees written consent, in relation to an engagement which requires the employer to pay to the employment agent the whole or any part of the remuneration earned by the employee for his services, that employment agent is required —

(a) when requesting payment from the employer, to furnish to the employer a written statement of account showing clearly —

(i) the name of the employee; and

(ii) the period of the employment; and

(iii) the hours worked; and

(iv) the amount of moneys due, specifying separately the wages or other money due to the employee and the amounts due to the employment agent in respect of his fees and his expenses;

and

(b) when making payment to the employee, to furnish to the employee a written statement of account signed by the employment agent showing clearly —

(i) the name of the employer; and

(ii) the period of the employment; and

(iii) the hours worked; and

(iv) the amount of moneys received from the employer, specifying separately the fee due to the employment agent from the employer, the fee due to the employment agent from the employee and the amounts due to the employment agent in respect of each other account, with details of the reason for each such other account.

[Section 40 amended: No. 8 of 2009 s. 51(4).]

41. Short term placements, and spurious interviews

(1) An engagement whereby —

(a) the employee is in the employ of a person and —

(i) the services of that employee are assigned to another employer; or

(ii) an engagement with another employer is arranged,

by the first named employer for a casual, short term or temporary period not exceeding 3 months; or

(b) the employee works under an arrangement or agreement with a person who is his employer to perform work or services for some other employer,

and no specific contract of service is entered into between that employee and the other employer but the other employer is responsible to the employee for the payment of wages or other lawful obligations, that engagement shall be taken to be a short term placement to which the provisions of this Act apply and the first named employer shall be deemed to be carrying on the business of an employment agent.

(2) A person who purports to offer employment, whether on his own behalf or that of another, and charges or attempts to charge any fee or other moneys by way of an application fee or otherwise in relation to the making of an application for that employment, not being a charge lawfully made under this Act, commits an offence.

Penalty: $500.

42. Records of transactions

(1) In relation to —

(a) every person on behalf of whom he consents to try and procure employment; and

(b) every person on behalf of whom he consents to try and procure an employee,

an employment agent shall prepare and maintain a record clearly showing the full names and address of the person for whom he is acting, the nature of and the conditions and remuneration applicable to the employment sought or offered, and such other particulars as may be prescribed.

(2) Every employment agent who refers persons seeking employment to other persons with a view to engagement or who, on behalf of an employer, makes an engagement with any person to enter employment with that employer, whether the engagement be absolute or contingent, shall give or forward to each prospective employee a form of “Notice of Employment Offered” signed by the employment agent, and specifying —

(a) the name and address of the employment agent; and

(b) the name and business address of the proposed employer; and

(d) particulars of the employment offered by the employer including —

(i) the nature of the employment;

(ii) the salary or wage;

(iii) such other details as to conditions relevant to the employment as the employer may supply.

(3) Every “Notice of Employment Offered” shall contain a statement that the terms of the employment are a matter to be negotiated between the employer and the employee and that the particulars set out in the notice are given for guidance only.

(4) Every employment agent —

(a) shall keep as his own office record a copy of every form of “Notice of Employment Offered” in consecutive number order; and

(b) shall insert on his office copy of that form —

(i) the date employment is commenced; or

(ii) that no engagement was made in respect of the offer.

(5) Any document or other record required by this Act to be signed or kept by an employment agent may be so signed or kept on his behalf by a person authorised by him, but the responsibility for ensuring that the requirement has been complied with remains with the employment agent personally.

43. Financial records

(1) Where a licensee in relation to any transaction in the course of business as an employment agent receives for or on behalf of any person an amount of money, the licensee shall record the amount or cause the amount to be recorded in such a manner as to show particulars of that receipt separately from any record of money received or held for or on behalf of any other person or for or on behalf of that licensee and shall keep that record at the licensed premises or in such other place as the Commissioner may approve.

(2) A licensee —

(a) shall cause the record of accounts required by subsection (1) to be kept in such a manner as to show full and accurate particulars of each transaction, and of all withdrawals or payments made from that account in sufficient detail to enable the accounts to be conveniently and properly audited; and

(b) shall correctly balance those accounts at the end of each month.

(3) A person who contravenes any of the provisions of this section is guilty of an offence against this Act.

[Section 43 amended: No. 55 of 2004 s. 294.]

44. Responsibility for entries

Every entry in a record, whether a record of accounts or a record of transactions, kept for the purposes of this Act by or for a licensee is deemed, unless the contrary is proved, to have been made by or with the authority of the licensee.

45. Retention of records

Every record required to be prepared for the purposes of this Act, whether a record of accounts or a record of transactions, shall be retained by the employment agent or the firm or body corporate for which it was prepared for a period of not less than 3 years after the date of its preparation, unless the Commissioner otherwise directs.

[Section 45 amended: No. 55 of 2004 s. 294.]

46. Inspection of records

(1) All books, accounts, documents, and other records that are required to be kept under this Act by a licensee shall at all reasonable times be open to inspection by the Commissioner for the purposes of investigating whether this Act is being complied with or carrying out any other investigation for the purposes of this Act.

[(2)-(5) deleted]

(6) A person shall not —

(a) fail to keep the records required to be kept in accordance with this Act, or any entry therein, or knowingly make any false or misleading entry therein, or deliver a false transcript of an entry therein.

[(b) deleted]

Penalty: $500.

(7) Where the Minister considers that for the protection of the public it is desirable so to do he may, by notice in writing, appoint an auditor, at the expense of the licensee, to arrange for and carry out an audit of the accounts of the licensee in connection with his business as an employment agent in respect of the period specified in the notice, and the auditor so appointed has in respect of those accounts the same powers as the powers conferred on the Auditor General by the Auditor General Act 2006, in relation to public accounts and shall prepare and deliver to the Minister a report on the audit.

(8) For the purposes of this section the expression licensee includes —

(a) a person whose licence has expired or has been cancelled, suspended or surrendered; and

(b) any firm or body corporate named in a licence as that for the benefit of which it is to be used.

(9) A person who contravenes any of the provisions of this section is guilty of an offence against this Act.

[Section 46 amended: No. 98 of 1985 s. 3; No. 70 of 1990 s. 6; No. 55 of 2004 s. 289; No. 77 of 2006 Sch. 1 cl. 56(2).]

47. Offences

(1) A person shall not —

(a) assault, resist or impede, delay or in any way obstruct the Commissioner in the exercise of his powers or in the discharge of his duties under this Act; or

(b) fail, without lawful excuse, to answer any question put to him in pursuance of this Act by the Commissioner or a person acting as professional or expert adviser to, or interpreter for, the Commissioner or give a false or misleading answer to any such question; or

(d) when required by or under this Act to furnish any assistance or to furnish any information to the Commissioner —

(i) fail to furnish that assistance or information; or

(ii) furnish false or misleading information; or

(iii) refuse to sign any declaration that he is required to sign by or under this Act;

(e) fail, when so required by the Commissioner, to produce any permit, certificate or authority held or had by him, or any book, pay sheet, notice, record, list or other document of whatsoever kind required by this Act to be held or kept by him, or required by this Act to be produced to the Commissioner, or fail to allow the Commissioner, upon him so producing the same, to make copies of or take extracts from it or of any part thereof or of any entries therein; or

(f) directly or indirectly prevent any person from appearing before or being questioned by the Commissioner in accordance with this Act, or attempt to do so; or

(g) use any threat or any abusive or insulting language to the Commissioner with respect to any inspection, examination or interrogation made by the Commissioner; or

(h) impersonate the Commissioner.

[(2) deleted]

[Section 47 amended: No. 70 of 1990 s. 6; No. 55 of 2004 s. 290.]

48. Information officially obtained to be confidential

(1) A person who misuses information obtained by reason of any function that person has, or at any time had, in the administration of this Act commits an offence.

Penalty: $20 000.

(2) A person misuses information if it is, directly or indirectly, recorded, used, or disclosed to another person, other than —

(a) in the course of duty; or

(b) under this Act; or

(c) for the purposes of the investigation of any suspected offence or the conduct of proceedings against any person for an offence; or

(d) in a manner that could not reasonably be expected to lead to the identification of any person to whom the information refers; or

(e) with the consent of the person to whom the information relates, or each of them if there is more than one.

(3) In this section —

information means information concerning the affairs of a person.

[Section 48 inserted: No. 28 of 2006 s. 94.]

48A. Delegation by Commissioner

(1) The Commissioner may delegate to any other person employed in the Department any power or duty of the Commissioner under another provision of this Act.

(2) The delegation must be in writing signed by the Commissioner.

(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.

(4) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5) Nothing in this section limits the ability of the Commissioner to perform a function through an officer or agent.

[Section 48A inserted: No. 28 of 2006 s. 94.]

49. Immunity

No liability shall attach to the Commissioner, or any other person for any act or omission by him in good faith and in the exercise or purported exercise of his powers or functions, or in the discharge or purported discharge of his duties, under this Act.

[Section 49 amended: No. 70 of 1990 s. 6; No. 55 of 2004 s. 292.]

49A. Judicial notice

All courts, judges and persons acting judicially shall take judicial notice of the official signature of every person who is for the time being and every person who has at any time been the Commissioner and of the fact that such person holds or has held such office.

[Section 49A inserted: No. 28 of 2006 s. 95.]

50. Other rights and remedies

Except as is expressly provided in this Act, nothing in this Act shall have the effect of limiting, restricting or otherwise affecting any right or remedy a person would have had if this Act had not been enacted.

51. Records to be available to clients

On payment of the prescribed fee, any record required to be kept in accordance with this Act that relates to any employer or employee shall be open at all reasonable times to inspection by him so far as regards any entry relating to him.

52. Regulations

(1) The Governor may make regulations for or with respect to any matter or thing which is required to give effect to the provisions of this Act.

(2) Without limiting the general powers conferred by subsection (1), any regulations made under this Act may —

(a) be of general or limited application; and

(b) impose penalties not exceeding a fine of $200 in respect of a contravention of any of the regulations; and

(c) prescribe that fees shall be payable in relation to any application or other matter under this Act other than the commencement of proceedings before the State Administrative Tribunal; and

(d) prescribe the forms to be used and the records to be kept for the purposes of this Act, and the manner of, and time for, their completion including a requirement that information supplied be verified by statutory declaration; and

(e) make such transitional, incidental or supplementary provisions as the Governor considers necessary or expedient for the purpose of this Act.

(3) No regulation shall be deemed to be invalid by reason only that it delegates to, or confers on, any person or body a discretionary authority.

[(4) deleted]

[Section 52 amended: No. 56 of 1995 s. 14; No. 55 of 2004 s. 293; No. 34 of 2020 s. 97(2).]

dline

Notes

This is a compilation of the Employment Agents Act 1976 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table.

Compilation table

Short title	Number and year	Assent	Commencement
Employment Agents Act 1976	10 of 1976	27 May 1976	1 Nov 1976 (see s. 2 and Gazette 24 Sep 1976 p. 3493)
Acts Amendment (Financial Administration and Audit) Act 1985 s. 3	98 of 1985	4 Dec 1985	1 Jul 1986 (see s. 2 and Gazette 30 Jun 1986 p. 2255)
Employment Agents Amendment Act 1990	70 of 1990	22 Dec 1990	19 Apr 1991 (see s. 2 and Gazette 19 Apr 1991 p. 1711)
Acts Amendment (Public Sector Management) Act 1994 s. 3(2)	32 of 1994	29 Jun 1994	1 Oct 1994 (see s. 2 and Gazette 30 Sep 1994 p. 4948)
Business Licensing Amendment Act 1995 Pt. 4 1	56 of 1995	20 Dec 1995	1 Jan 1996 (see s. 2(3))
Statutes (Repeals and Minor Amendments) Act 1997 s. 39(10)	57 of 1997	15 Dec 1997	15 Dec 1997 (see s. 2(1))
*Reprint of the Employment Agents Act 1976* as at 26 Oct 2001** (includes amendments listed above)
Courts Legislation Amendment and Repeal Act 2004 s. 141 2	59 of 2004 (as amended by No. 2 of 2008 s. 77(13))	23 Nov 2004	1 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7128)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 2 Div. 41 3	55 of 2004	24 Nov 2004	1 Jan 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7130)
Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 s. 79 and 82	84 of 2004	16 Dec 2004	2 May 2005 (see s. 2 and Gazette 31 Dec 2004 p. 7129 (correction in Gazette 7 Jan 2005 p. 53))
Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 4 Div. 11 4	28 of 2006	26 Jun 2006	1 Jul 2006 (see s. 2 and Gazette 27 Jun 2006 p. 2347)
*Reprint 2: The Employment Agents Act 1976* as at 11 Aug 2006** (includes amendments listed above)
Financial Legislation Amendment and Repeal Act 2006 Sch. 1 cl. 56	77 of 2006	21 Dec 2006	1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
Statutes (Repeals and Miscellaneous Amendments) Act 2009 s. 51	8 of 2009	21 May 2009	22 May 2009 (see s. 2(b))
Business Names (Commonwealth Powers) Act 2012 Pt. 4 Div. 2	6 of 2012	10 Apr 2012	28 May 2012 (see s. 2(c) and Cwlth Gazette 19 Apr 2012 ref. F2012L00891)
Consumer Protection Legislation Amendment Act 2014 Pt. 3	23 of 2014	9 Oct 2014	19 Nov 2014 (see s. 2(b) and Gazette 18 Nov 2014 p. 4315)
*Reprint 3: The Employment Agents Act 1976* as at 5 Feb 2016** (includes amendments listed above)
COVID‑19 Response and Economic Recovery Omnibus Act 2020 s. 97	34 of 2020	11 Sep 2020	12 Sep 2020 (see s. 2(b))
Mutual Recognition (Western Australia) Amendment Act 2022 Pt. 3 Div. 5	7 of 2022	29 Mar 2022	1 Jul 2022 (see s. 2(b) and SL 2022/80 cl. 2)
Directors’ Liability Reform Act 2023 Pt. 3 Div. 21	9 of 2023	4 Apr 2023	5 Apr 2023 (see s. 2(j))

Other notes

1 The Business Licensing Amendment Act 1995 s. 15 is a transitional provision that is of no further effect.

2 The Courts Legislation Amendment and Repeal Act 2004 Sch. 2 cl. 17 was repealed by the Criminal Law and Evidence Amendment Act 2008 s. 77(13).

3 The State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 Pt. 5, the State Administrative Tribunal Act 2004 s. 167 and 169, and the State Administrative Tribunal Regulations 2004 r. 28 and 42 deal with certain transitional issues some of which may be relevant for this Act.

4 The Machinery of Government (Miscellaneous Amendments) Act 2006 Pt. 4 Div. 23 has transitional provisions, some of which may be relevant to this Act.

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

Commissioner 4(1)

Department 4(1)

employee 4(1)

employment 4(1)

engagement 4(1)

executive officer 9A(3)

firm 4(1)

information 48(3)

licence 4(1)

licensee 46(8)

transaction 4(1)

Western Australia

Employment Agents Act 1976

Western Australia

Employment Agents Act 1976

Contents

Short title 1
Commencement 1
Terms used 1
Employment agents 2
Application of this Act 3
Exemptions 4
Employment of seamen 4

9A. Commissioner 4

Administrative arrangements 4

10A. Application of Financial Management Act 2006 and Auditor General Act 2006 5

11A. Officers 6

11E. Conduct of proceedings 6

Employment agents to be licensed 6
Duration of licences 7
Kinds of licence 8
Classes of business 9
Separate places of business, and change of address 9
Supervision and management 10
Applications 10
Licences may be issued for benefit of firm or body corporate 11
Objections 12
Conditional licences 13
Issue of licences 13
Suspension, cancellation and disqualification 14
Form of licence 15
Register 16
Limitation period for offences 17
Misrepresentation and allied offences 17
Offences 18
Facilitation of proof 19
Contract for fees greater than scale to be voidable 20
Fees demanded by persons other than licensed employment agents 20
Employment by agent 21
Single hirings 21
Fees chargeable to employees generally 21
Fees chargeable to employers generally 22

Key legal concepts and structural features of the Act appear repeatedly and organise its operation. Those concepts, with the source provisions, are:

Employment agent and transaction. The Act defines who is an employment agent and what a transaction is; those definitions are central because they determine the Act’s reach (s 4(1); s 5). The statutory definition of employee expressly includes persons seeking employment and persons sought for employment (s 4(1)). Employment covers employment under contracts of service or for services, professional engagements, and certain domestic arrangements (s 4(1)).
Licensing as a gate. The licensing requirement is the Act’s primary regulatory lever. No person may carry on or advertise as an employment agent except where a natural person holds a licence, or a firm/body corporate has a licence held by a natural person on its behalf (s 12(1)-(3)). The Commissioner controls grant, renewal, suspension, cancellation, and conditions (s 13, s 21, s 22, s 25).
Licence architecture. The Act distinguishes general, restricted and interim licences (s 14). A general licence authorises statewide operations in all classes of business; a restricted licence limits place, classes or both; an interim licence allows temporary substitution on behalf of a licensed agent (s 14(2)-(4)). For non-general licences the Commissioner may define classes, and regulations can prescribe classes for particular kinds of employment (s 15).
Natural person vs corporate beneficiary. A licence is granted to a natural person only (s 12(2)), but it may be “for the benefit of” a firm or corporate entity; where so granted, the firm or body corporate is specified in the licence and primarily responsible for compliance, although both may be charged and convicted (s 19(1) and (5)). Transfers of such licences generally require the firm’s consent (s 19(6)).
Fee regulation and scales. The Act regulates fees charged to employees and employers. It contemplates an eventual prohibition on charging employees in respect of transactions after a three year period from operation (or earlier by gubernatorial order) (s 36(1)). Until that prohibition applies, fees to employees must conform to a Commissioner‑approved scale and be displayed; employers’ fees must either follow the scale or be agreed in writing in advance (s 36(2)-(5); s 37(1)-(3); s 38). Fees beyond the permitted scale are recoverable and the contract voidable at the payer’s option (s 32).
Financial and transaction records. Detailed obligations require maintenance of transaction records, issuance of a “Notice of Employment Offered” for referrals or engagements, office copies, financial ledgers, separate accounts for monies received on behalf of others, monthly balancing, and retention for at least three years (s 42-45). Failure to keep or falsification of records is an offence (s 46(6)).
Administrative oversight and enforcement. The Commissioner, appointed from within the Department, administers the Act subject to Ministerial direction (s 9A; s 10). The Commissioner can institute proceedings (s 11E), inspect records (s 46(1)), request production of documents and information (s 47), and ask the Minister to appoint an auditor at the licensee’s cost (s 46(7)). The State Administrative Tribunal may hear disciplinary allegations and order suspension, cancellation or disqualification (s 25).
Evidentiary and procedural aids. The Act includes facilitation provisions so that certificates from the Commissioner, presumptions about premises and work done, and deemed signatures assist prosecutions (s 31). A two year limitation period applies to prosecutions (s 28).
Confidentiality and misuse. Information officially obtained is confidential, misuse is an offence and attracts a maximum penalty specified at $20,000 (s 48). The definition of “information” is limited to “information concerning the affairs of a person” (s 48(3)).
Interaction with other statutes and administrative law. The Department and Commissioner are subject to financial reporting and audit statutes (s 10A). The Act contemplates Orders in Council by the Governor to vary or exempt application in classes or places of business (s 7(3); s 8). Rights to administrative review by the State Administrative Tribunal are set out in s 22(4)-(4A).

These concepts structure incentives and compliance costs. Licensing centralises control of market entry and fee approval through the Commissioner. Recordkeeping, display and audit provisions create recurring compliance burdens. The Act couples criminal sanctions, administrative discipline and private remedies (voidability and recoverability of over‑charges) to regulate market conduct.

The Act creates obligations and entitlements for distinct groups; the statute’s wording identifies who is regulated, who is responsible for compliance, who enforces and who benefits from protections.

Employment agents and prospective agents. Persons who, for reward, follow the calling of procuring engagements or employees, or who place persons in employment and levy fees, are statutory employment agents and therefore are subject to the licensing requirements (s 5(1); s 12). A newspaper or publication not primarily acting as an intermediary is excluded (s 5(2)). Firms that operate as the legal employer of temporary workers and do not charge the worker are excluded from being agents by reason alone (s 5(3)).
Natural persons vs firms and bodies corporate. A licence must be granted to a natural person (s 12(2)). However, a licence may be issued to that natural person for the benefit of a firm or body corporate, subject to the firm or body corporate being named and the Commissioner being satisfied with the firm’s fitness and repute (s 19(1)-(2)). Where the licence is issued for the benefit of a firm or corporate entity, that firm or corporate entity is primarily responsible for complying with Act obligations, although both the licensee and the firm may be charged or convicted (s 19(5)). This structure means firms must ensure a nominated natural person holds and maintains the licence and that internal controls and supervision satisfy the Commissioner (s 17).
Employers and employees. Employers are affected in two principal ways. First, employer clients must be given written notice of the scale of fees before introduction of an employee unless a written alternative agreement governs charges (s 37(1)-(3)). Second, employers who pay fees or enter fee agreements are subject to the rules about scale, replacement guarantees and refund obligations if the agent fails to secure engagement (s 38; s 39). Employees (including jobseekers) are affected because the Act regulates what fees may be charged to them, requires display of scales and written advice of the applicable scale before acceptance as a client or before engagement acceptance, and in time contemplates an outright prohibition on employee fees for transactions (s 36(1)-(4)). The Act also provides employees with access to transaction records on payment of a prescribed fee (s 51).
The Commissioner, Minister and Department. The Minister designates an executive officer in the administering Department to be Commissioner (s 9A). The Commissioner administers the Act subject to Ministerial direction (s 10) and reports on operational activity in the Department’s annual report (s 10A(2)). The Commissioner decides licence grants, imposes conditions, conducts investigations, institutes prosecutions (s 11E; s 22), and may delegate powers to Departmental staff (s 48A).
Law enforcement and adjudicative bodies. The Commissioner of Police is authorised to disclose records relevant to licence applications on request (s 18(3)). The Act gives the State Administrative Tribunal jurisdiction to consider disciplinary allegations and issue orders suspending, cancelling or disqualifying licence-holders (s 25), and it provides for statutory review rights in decisions to grant or refuse licences (s 22(4)-(4A)). Courts are obliged to take judicial notice of the Commissioner’s signature and office (s 49A).
Consumers and the public. Persons for whom notices and records are kept have rights to inspect records relating to them on payment of a fee (s 51). The Act also empowers the Governor to make Orders in Council applying or excluding application to classes of business or areas of the State (s 7(3); s 8) which may affect subsets of consumers and market participants.

Who pays and who decides. The Commissioner and Minister decide licensing outcomes, scales approval, audit appointments and disciplinary referrals (s 22; s 38; s 46(7); s 25). Licensees pay application and licence fees, bear costs of recordkeeping, and potentially bear the cost of an ordered audit (s 18; s 27; s 46(7)). Employers and employees bear the prescribed fees for access to records (s 51). Persons who are aggrieved by Commissioner decisions may apply to the State Administrative Tribunal for review (s 22(4)-(4A)).

Regulatory coverage exceptions. The Act excludes placements of seamen on vessels unless otherwise authorised by law (s 7(1); s 9), placements by Commonwealth or State departments or instrumentalities (s 7(2)), and permits Governorial Orders in Council to exclude classes of businesses or geographic areas or to grant exemptions to persons or classes on conditions (s 7(3); s 8). Those exclusions alter who is affected in particular sectors.

The Act prescribes specific duties for licensees and related parties, and recognises certain rights of employers, employees and third parties. Below are the principal duties and rights with statutory references.

Core duties of licensees

Licensing and display. No person may carry on or advertise as an employment agent unless a natural person holds a licence; licence conditions require business be carried on under the names and at the premises specified in the licence (s 12(1), (4)). Licences are to be in the prescribed form and must specify holder name, places of business and classes of business authorised (s 26).
Management and supervision. The Commissioner may only grant or renew a licence if satisfied adequate management and supervision will be provided to safeguard prospective employees’ interests (s 17).
Fee scales and disclosure. Any scale of fees used must be submitted to and approved by the Commissioner (s 38(1)). The scale must set out maximum amounts or a formula, identify who is liable to pay, specify rates by class where applicable, time for payment, guarantee conditions and the basis for expenses (s 38(2)). Scales must be displayed in the office and made available to clients (s 36(3); s 37(2)). Prior written advice of the applicable scale must be given to employees before acceptance as client or at or prior to acceptance of engagement, and to employers on or before introduction of a prospective employee unless a written agreement determines otherwise (s 36(4); s 37(3)).
Limits on employee fees. Subject to the transitional and gubernatorial provisions, the Act contemplates no fee being chargeable to an employee after three years from the section’s commencement or earlier if declared by the Governor for specified classes (s 36(1)). Until that prohibition applies, fees to employees must comply with the approved scale and not exceed employer fees in relation to the same engagement (s 36(2), (5)).
Contractual and refund obligations. Contracts imposing fees greater than the permitted scale are voidable at the payer’s option and overpaid amounts are recoverable with costs (s 32). If an agent fails to obtain employment or an employer fails to engage within the agreed or statutory period, the agent must repay any moneys paid after lawful expenses are deducted, on demand (s 39).
Statements and accounts. Where the agent acts for an employee and receives payment from the employer, the agent must provide a written statement of account to the employer and a separate signed account to the employee when making payment, specifying wages and amounts retained as fees and expenses (s 40).
Notices and records. Agents must provide a “Notice of Employment Offered” for each prospective placement, keep office copies in consecutive order, note whether engagement commenced or not, and maintain specified transaction details for each person on whose behalf they act (s 42(1)-(4)). Records must be retained for a minimum of three years unless the Commissioner directs otherwise (s 45).
Financial records and monthly balancing. Licensees must keep separate, accurate records of amounts received for or on behalf of any person, enable convenient audit, and correctly balance accounts monthly (s 43(1)-(2)).
Cooperation with inspection and audits. Books and records must be open at reasonable times for inspection by the Commissioner for compliance investigations; the Minister can appoint an auditor at the licensee’s expense where public protection is deemed desirable (s 46(1), (7)). Failure to keep required records, make entries, or delivering false transcripts is an offence with penalty (s 46(6)).

Rights and protections

Enforcement and remedies for clients. Employers and employees can recover fees greater than permitted and may void contracts that require payment in excess of allowed rates (s 32). They also have a right to inspect records relating to them on payment of a prescribed fee (s 51).
Administrative review. Applicants or persons aggrieved by a Commissioner decision may apply to the State Administrative Tribunal for review. The Commissioner must provide written reasons and information about review rights to persons who might be aggrieved (s 22(3)-(4A)).
Procedural facilitation. The Act provides evidentiary aids for prosecutions, including presumptions based on Commissioner certificates and a deeming provision for work done in premises used as an employment agency (s 31).
Protection of other legal rights. The Act does not in its terms limit other rights or remedies unless expressly provided; that is, private rights are preserved (s 50).
Confidentiality rights. Information officially obtained by those administering the Act is protected by confidentiality restrictions; misuse is an expressly penalised offence (s 48).

Duties of other actors

Commissioner duties include administration of the Act, grant or renewal of licences, keeping the register, noting conditions and making it available for inspection on payment of a fee, conducting investigations and instituting proceedings, and reporting on matters in the Department’s annual report (s 10; s 11E; s 27; s 10A(2)).
Police are required to disclose records relevant to licence applications at the Commissioner’s request (s 18(3)) and may lodge objections to licence grants (s 20).
Ministerial powers include designating the Commissioner, issuing Orders in Council to exempt classes or vary application, and appointing auditors when required for public protection (s 9A; s 7(3); s 8; s 46(7)).

Collectively, the duties impose recurring compliance tasks (fee-scale submission and display, recordkeeping, account balancing, statements of account, cooperation with audits and inspections), while rights provide administrative review, statutory remedies for overcharging, access to records, and evidentiary facilitation for enforcement.

The Act combines criminal penalties, civil remedies and administrative sanctions to enforce compliance. The statutory framework establishes who may prosecute, what penalties apply for specific breaches, administrative disciplinary processes, evidentiary aids, and temporal limits to prosecution.

Monetary penalties and criminal offences

Prescribed specific penalties. Several contraventions carry specified monetary penalties, typically capped at $500 where explicitly provided. Examples include contravening the licence requirement (s 12(5) Penalty: $500), misrepresentation offences such as knowingly making or publishing false or misleading representations (s 29(1)) and inducement by false representations (s 29(3)) where s 29(3) lists Penalty: $500, making unauthorised representations of authorisation as to capacity to promote engagements (s 29(4) Penalty: $500), and offences relating to records in s 46(6) (Penalty: $500). Section 33 similarly prescribes a $500 penalty for unlicensed persons demanding fees.
General penalty provision. Where no specific penalty is stated, the general penalty provision provides for a penalty not exceeding $200 for offences against the Act (s 30(2)).
Large confidentiality penalty. Misuse of information obtained under the Act is separately penalised with a maximum penalty specified at $20,000 (s 48(1)).
Offences relating to obstruction, failure to answer, failing to produce documents, providing false or misleading information to the Commissioner are criminalised under s 47, with the general penalty regime applying unless another penalty is stated.

Administrative and disciplinary enforcement

Commissioner prosecutions. The Commissioner or a person appointed by the Commissioner may institute and conduct proceedings for offences under the Act (s 11E), which centralises prosecutorial initiation within the administering agency.
State Administrative Tribunal discipline. The Commissioner may allege to the State Administrative Tribunal that disciplinary action should be taken against a licence-holder, firm or body corporate on specific grounds including improper conduct, offences involving dishonest or fraudulent conduct or offences against the Act, negligence or incompetence, or failure to ensure proper management and supervision (s 25(1)). The Tribunal, if satisfied, may suspend or cancel licences, and disqualify persons or entities from holding or benefiting from licences for specified periods or permanently (s 25(3)). The Tribunal may also order delivery up of licences; failure to comply is an offence (s 25(4)).
Licence conditions and conditional grants. The Commissioner may grant licences subject to conditions, limitations or restrictions which are enforceable; contravention of such conditions is an offence (s 21(1)-(2)). The Commissioner may issue restricted licences instead of general ones (s 22(2)).
Audit powers. The Minister may appoint an auditor at the licensee’s expense to audit accounts where necessary for public protection; the auditor has the powers of the Auditor General under the Auditor General Act 2006 in respect of such accounts (s 46(7)). Failure to cooperate with inspection or auditor functions attracts offences in s 46 and s 47.
Evidentiary facilitation. For enforcement, the Act includes provisions that facilitate proof of licensing and use of premises: Commissioner certificates are prima facie evidence, signatures purporting to be the Commissioner’s are taken to be such until the contrary is proved, premises usage allegations are evidence and work done in premises used for agency business is presumed done with authority of the manager unless the contrary is proved (s 31).
Time limits. A prosecution for an offence under the Act must be commenced within two years after the date on which the offence is alleged to have been committed (s 28). That limitation period delineates enforcement risk exposure for potential prosecutions.

Civil remedies and private enforcement

Voidability and recovery. Contracts or agreements requiring employers or employees to pay fees greater than rates permitted by the Act are voidable at the payer’s option and any excess is recoverable with costs, giving private parties a civil route to remedy over‑charging (s 32).
Refunds on failure to place. If the agent fails to secure employment for an employee within one month or an employer fails to engage within the agreed or statutory period, then on demand within the further month the agent must repay moneys after deduction of lawful expenses (s 39).

Operational and procedural enforcement

Registers and public certificates. The Commissioner must keep a register of licensed persons and make it available for inspection for a prescribed fee; certificates as to the register’s contents are, absent proof to the contrary, evidence of the matters certified (s 27). Judicial notice is to be taken of the Commissioner’s official signature (s 49A).
Delegation and immunity. The Commissioner may delegate powers to Departmental staff in writing (s 48A). Persons acting in good faith exercising functions under the Act, including the Commissioner and delegates, enjoy immunity from liability for such acts or omissions (s 49).

Who enforces and who pays

The Commissioner is the central enforcement actor who can investigate and commence proceedings (s 11E). The Minister may direct the Commissioner and may appoint auditors at a licensee’s expense when public protection is indicated (s 10; s 46(7)).
Licensees pay for compliance costs including licence fees, recordkeeping, costs of audits ordered under s 46(7) and possibly penalties for breaches.
A person seeking to recover over-charged fees may sue to recover amounts and costs under s 32.

Together, the enforcement architecture combines criminal sanctions, administrative discipline through the State Administrative Tribunal, civil remedies for aggrieved parties, and administrative investigatory and audit powers designed to detect and remedy non‑compliance.

The Act is designed to operate in a statutory and administrative environment; several cross‑references and compilation entries point to explicit interactions with other statutes and administrative mechanisms.

Financial administration, audit and reporting

The Department responsible for administering the Act is subject to the Financial Management Act 2006 and the Auditor General Act 2006 for financial administration, audit and reporting (s 10A(1)). That means departmental financial handling and audit of operations under this Act follow the general public sector financial governance framework.
The Act requires the Department’s annual report to include specified operational detail about investigations, State Administrative Tribunal matters and forecasts (s 10A(2)); those reporting requirements sit within the broader public reporting regime.

Public sector personnel and designation

The Minister designates an executive officer of the Department as the Commissioner and may determine the Commissioner’s title; the definition of “executive officer” is taken from the Public Sector Management Act 1994 (s 9A). Part 3 appointments under the Public Sector Management Act support staffing for administration (s 11A).

State Administrative Tribunal jurisdiction and judicial notice

The Act provides for review of licensing decisions by the State Administrative Tribunal (s 22(4)); amendments listed in the compilation table reflect the 2004 conferral of jurisdiction to the Tribunal. Discipline allegations are to be brought to the Tribunal (s 25). The compilation notes and other schedules explain transitional provisions tied to that conferral.
Courts are required to take judicial notice of the Commissioner’s official signature pursuant to s 49A, which assists interoperation with court processes.

Business names and corporate interaction

The Act’s definition of “firm” expressly references registration under the Business Names Registration Act 2011 (Commonwealth) when describing an unincorporated body of persons for the purposes of the Act (s 4(1)). This links the Act’s treatment of firms to Commonwealth business names registration.

Regulation‑making and Orders in Council

The Governor may issue Orders in Council under s 7(3) to declare that the Act or any provision does not apply to a class of business or in specified circumstances or part of the State; s 8 empowers the Governor to grant exemptions to persons or classes on terms. That mechanism allows the Act’s application to be altered without amending legislation.
Regulations under s 52 may prescribe specific procedural matters, forms, records, fees and transitional provisions and may delegate discretionary authority; regulations may impose penalties up to $200 for contraventions.

Audit powers and the Auditor General

Section 46(7) permits the Minister to appoint an auditor at a licensee’s expense to audit accounts where public protection is desirable; the appointed auditor has, in respect of those accounts, the same powers as the Auditor General under the Auditor General Act 2006. This is an explicit intersection with the Auditor General Act.

Exemptions and federal/state interplay

The Act excludes placements of persons by Commonwealth or State departments and instrumentalities (s 7(2)). The definition of “firm” and references to Commonwealth business names law create a point of contact between state regulation and Commonwealth registration regimes (s 4(1)).
The compilation history records a 2022 Mutual Recognition (Western Australia) Amendment Act item in the table; that amendment record indicates the Act has been considered within the broader mutual recognition framework, which often affects cross‑jurisdictional occupational licensing. The compilation table supplies commencement dates and amending Acts but does not itself specify the operational effects of mutual recognition provisions on licensing under this Act.

Transitional and supplementary links

The compilation table and “Other notes” document transitional provisions resulting from amendments, notably the conferral of SAT jurisdiction in 2004 and machinery of government amendments in 2006. These entries are part of the Act’s legislative context and govern how changes were phased in and how existing matters were handled at transition.

Preservation of other legal remedies

The Act contains a savings provision that expressly preserves other rights and remedies a person has outside the Act, unless expressly provided otherwise (s 50). That means the Act is not intended to be an exhaustive code removing common law or statutory remedies unless clearly stated.

In practical terms, licensing, audit, administrative review, business registration, confidentiality and audit oversight are the principal points where this Act interfaces with other laws. The Act explicitly ties departmental financial administration to financial statute, uses public sector personnel definitions, links firm definitions to Commonwealth business names registration, and situates disciplinary and review remedies in the State Administrative Tribunal framework.

The compilation table attached to the Act records an amendment history from its 1976 enactment through subsequent legislative changes. The following summarises key amending Acts and material insertions or structural changes reflected in the statutory text.

Foundational enactment

Employment Agents Act 1976 (No. 10 of 1976), assented 27 May 1976, commenced 1 November 1976 (s 2; Gazette reference in compilation table). This is the foundational statute establishing the licensing regime and primary operative provisions.

Significant later statutory interventions

Acts Amendment (Financial Administration and Audit) Act 1985 (No. 98 of 1985), commencement 1 July 1986: this amendment is carried into reprints and is reflected in s 10A linking departmental operations under the Act to financial administration and audit obligations.
Employment Agents Amendment Act 1990 (No. 70 of 1990), assented 22 December 1990, commenced 19 April 1991: the 1990 Act introduced modernisation amendments; the reprint notes s 11A (appointment of officers) and other workplace regulatory changes.
Acts Amendment (Public Sector Management) Act 1994 (No. 32 of 1994), commenced 1 October 1994: this Act’s Part 3 influenced public sector appointment references, notably the definition and role of executive officer referenced in s 9A.
Business Licensing Amendment Act 1995 (No. 56 of 1995): listed in compilation table with transitional note; its provisions are of no further effect but influenced licensing administration practices.
Courts Legislation Amendment and Repeal Act 2004 (No. 59 of 2004), and associated amendments in 2004: these Acts and related statutes effected several structural changes, notably conferral of jurisdiction to the State Administrative Tribunal and procedural updates. The compilation table records Acts Amendment and Repeal Acts 2004 and subsequent consequential provisions.
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (No. 55 of 2004), assented 24 November 2004, commenced 1 January 2005: this is the enabling amendment conferring SAT jurisdiction for review and discipline matters under the Act, which is reflected in s 22(4)-(4A) and s 25.
Machinery of Government (Miscellaneous Amendments) Act 2006 (No. 28 of 2006), commenced 1 July 2006: this Act inserted provisions such as s 9A (Commissioner designation) and s 10A (Financial Management Act and Auditor General Act application), reshaping administrative arrangements.
Financial Legislation Amendment and Repeal Act 2006 (No. 77 of 2006), commenced 1 February 2007: related to financial governance, coordinated with s 10A and audit reporting changes.
Statutes (Repeals and Miscellaneous Amendments) Act 2009 (No. 8 of 2009), commenced 22 May 2009: further technical amendments appear in the compiled text.
Business Names (Commonwealth Powers) Act 2012 (No. 6 of 2012), commenced 28 May 2012: the Act’s definition of “firm” was updated to reference registration under the Business Names Registration Act 2011 (Commonwealth), reflecting cross‑jurisdictional registration changes.
Consumer Protection Legislation Amendment Act 2014 (No. 23 of 2014), commenced 19 November 2014: amendments in 2014 relate to consumer protection architecture and procedural matters reflected in s 18 and other sections.
COVID‑19 Response and Economic Recovery Omnibus Act 2020 (No. 34 of 2020), commenced 12 September 2020: the compilation lists this Act as part of the reprints; its specific impacts on the Employment Agents Act are reflected in the compilation.
Mutual Recognition (Western Australia) Amendment Act 2022 (No. 7 of 2022), commenced 1 July 2022: the compilation table lists a 2022 amendment associated with mutual recognition; the compilation entry signals that the Act has been considered within mutual recognition arrangements which often affect interstate occupational licensing.
Directors’ Liability Reform Act 2023 (No. 9 of 2023), commenced 5 April 2023: included in compilation table; indicates more recent legislative revisions in the broader regulatory environment.

Insertions and structural changes reflected in the text

s 9A (Commissioner) was inserted by the 2006 machinery of government amendments, formalising ministerial designation of an executive officer as Commissioner and linking to the Public Sector Management Act definition of executive officer.
s 10A was inserted to require application of the Financial Management Act 2006 and Auditor General Act 2006 to the Department for financial administration and to prescribe annual reporting inclusions about investigations and SAT matters.
Provisions enabling the State Administrative Tribunal to hear licence discipline and review matters are visible in s 22 and s 25; the 2004 amendments and compilation entries record these jurisdictional transfers.
Amendments over time have deleted or omitted obsolete sections under the Reprints Act 1984 and the compilation notes list deleted sections, replaced texts and adjustments to penalty levels and procedural steps.

Transitional notes and reprints

The compilation contains multiple reprints: reprints as at 26 Oct 2001, 11 Aug 2006, 5 Feb 2016 are noted, each including amendments up to the reprint date. The “Other notes” in the compilation table explain transitional provisions for conferral to SAT and machinery of government amendments and record which transitional clauses remain relevant.

The compilation table and notes therefore record a sequence of modernising changes that have repositioned administrative responsibility, introduced audit and reporting obligations, moved review and discipline into the State Administrative Tribunal stream, and connected the Act to Commonwealth business registration and mutual recognition frameworks.

The statutory text and compilation material supplied do not record or name particular judicial decisions or reported litigation. The Act itself refers to procedural and adjudicative forums and contains provisions that affect how disputes and enforcement matters are to be heard and determined, but it does not list cases. The relevant procedural and adjudicative features in the Act are:

State Administrative Tribunal jurisdiction for disciplinary matters. The Act provides that the Commissioner may allege to the State Administrative Tribunal that disciplinary action be taken and specifies the Tribunal’s powers to suspend, cancel or disqualify licence-holders or firms where grounds are made out (s 25). Section 22(4)-(4A) provides an explicit right to apply to the State Administrative Tribunal for review of certain Commissioner decisions and requires the Commissioner to set out reasons for decisions given to persons who might be aggrieved.
Criminal and summary prosecution pathway. The Commissioner or a delegate may institute and conduct proceedings for offences under the Act (s 11E). Prosecutions must be commenced within two years of the alleged offence (s 28). Evidentiary facilitation provisions in s 31 support prosecutions by deeming certain certificates, signatures and premises usage to be evidence.
Judicial notice and evidentiary aids. Courts, judges and persons acting judicially must take judicial notice of the Commissioner’s official signature and office (s 49A). Section 31 contains other evidentiary presumptions aimed at simplifying proof in prosecutions under the Act.

What the supplied source does not provide

No reported decisions, appeals, or case names appear in the Act text or the compilation table. The compilation table records amending Acts and reprints, not litigation.
The Act does not include a schedule of decided authorities or any in‑text references to judicial interpretation. Consequently, any account of litigation applying or construing the Act would require consulting external case law databases, tribunal decisions and reports, which are beyond the materials provided here.

Practical consequences for practitioners

Administrative review and disciplinary proceedings will, under the Act, be routed through the State Administrative Tribunal where a party or the Commissioner takes action (s 22; s 25). Practitioners representing licence applicants, licensees or aggrieved third parties should expect Tribunal processes to be the primary site for regulatory disputes under the Act.
Criminal prosecutions arising under the Act are to be commenced by the Commissioner or appointees, and evidentiary presumptions in s 31 should be considered when assessing prosecutorial strength, but any prosecutorial decision is subject to the two year limitation in s 28.
For factual or legal questions arising in enforcement, judicial notice of the Commissioner’s signature (s 49A) and the Act’s facilitation provisions (s 31) establish practical evidentiary expectations in court or Tribunal proceedings.

In short, the Act establishes a structure for enforcement and administrative review but does not itself contain, or list, adjudicative outcomes. To compile a litigation history of decisions construing the Employment Agents Act 1976, counsel or researchers must search Tribunal determinations and reported cases external to the Act text.

This section distils traps, operational pitfalls and high‑risk compliance items expressly reflected in the Act. Each matter references the statutory provision that creates the risk.

Licence form and natural person requirement (s 12(2); s 19)

A licence can be granted only to a natural person (s 12(2)). Firms and corporate entities cannot themselves hold licences, although a licence can be granted to a natural person for the benefit of a firm or body corporate (s 19). Practical consequence: firms must ensure an identified natural person holds the licence on the firm’s behalf and must obtain the Commissioner’s satisfaction about the firm’s fitness; transfer or sale of business requires careful attention to s 19(6) consent rules.

Scope of who is an agent (s 5)

The definition of employment agent includes persons who receive entrance fees or periodic charges for making placements (s 5(1)(b)). However, publishers and certain employers are excluded (s 5(2)-(3)). Mistakenly assuming a business model is excluded when it charges fees can result in unlicensed operation and s 12 offences.

Fees to employees and timing (s 36)

The Act contemplates an outright ban on employee fees after three years from the section’s operation or earlier by gubernatorial order (s 36(1)). Until that prohibition applies, agents must adhere to Commissioner‑approved scales and display obligations (s 36(2)-(4)). Agents must ensure they provide written advice of scales either before acceptance as a client or at or prior to acceptance of the engagement (s 36(4)); failure to do so removes an agent’s recoverability and exposes them to offence risk.

Scale approval and variations (s 38; s 22)

Using a scale not approved by the Commissioner is a direct breach (s 38(1)). Agents should not assume negotiated fee arrangements are safe unless they are in writing and comply with s 37(1)(b). The Commissioner can substitute a restricted licence for a general one (s 22(2)), so operators expecting statewide scope must ensure licence terms expressly permit it.

Voidable contracts and recovery (s 32)

Contracts imposing fees greater than the permitted scale are voidable and excess amounts recoverable with costs (s 32). Agents who accept over‑payments risk refund claims and litigation. Documentation and upfront disclosures are critical.

Recordkeeping and Notice of Employment Offered (s 42-45)

Detailed recordkeeping, consecutive office copies of “Notice of Employment Offered”, and retention for at least three years are mandated (s 42(4); s 45). Inspectors will treat omissions or falsifications as offences (s 46(6)). Practical pitfall: ad hoc or poor document control will attract compliance action and may trigger an auditor appointment.

Financial records and audits at licensee expense (s 43; s 46(7))

Receipts and monies received on behalf of others must be kept separate and balanced monthly (s 43). The Minister can require an audit at the licensee’s expense where public protection is desirable; the appointed auditor has the Auditor General’s powers in relation to those accounts (s 46(7)). An auditor appointment can be costly and disruptive.

Confidentiality and high penalty for misuse (s 48)

Misuse of information obtained through administering the Act carries a maximum penalty of $20,000 (s 48(1)-(2)). The statutory definition of “information” is limited to “information concerning the affairs of a person” (s 48(3)). Staff handling client information must be trained and controls implemented to avoid contraventions.

Investigation powers and obstruction offences (s 47)

Failing to answer lawful questions, refusing to produce documents or obstructing the Commissioner in the performance of duties are offences (s 47). Agents should have protocols for compliance with inspection requests and avoid confrontational behaviour that could give rise to obstruction charges.

Primary responsibility and defences for firms (s 19(5); s 30(4))

Where a licence is granted on behalf of a firm, the firm is primarily responsible for compliance (s 19(5)). In prosecutions, a firm may answer by showing that the act or omission occurred without the firm’s knowledge, that it could not reasonably have influenced the licensee, or that it used all due diligence to prevent the act or omission (s 30(4)). Firms must maintain supervision and compliance records to rely on these defences.

Evidentiary presumptions (s 31)

Section 31 contains prescriptive evidentiary rules that favour the Commissioner’s proofs, such as presumptions about signatures and premises usage. Defence strategies must anticipate these statutory presumptions and prepare to rebut them with documentary evidence.

Limitation period (s 28)

Prosecutions must be commenced within two years of the alleged offence. That period limits retrospective enforcement, so regulatory risk decreases over time, but any complaint within two years still exposes the licensee to action.

Disciplinary outcomes and delivery up of licences (s 25)

The State Administrative Tribunal may order delivery up of licences and disqualification; failing to deliver up a licence as ordered is itself an offence (s 25(3)-(4)). Business continuity planning should account for potential suspension or disqualification.

Interaction with other laws and Orders in Council (s 7; s 8; s 10A)

Orders in Council can exclude the Act from operation in whole classes or places (s 7(3)); exemptions may be granted by Order in Council (s 8). The Department’s financial controls and reporting are governed by the Financial Management Act 2006 and the Auditor General Act 2006 (s 10A). Operators must remain alert to regulatory shifts effected by Orders or other statutes.

Practical "gotcha" summary: licensing is to a natural person, fees and scales must be approved and displayed, records and accounts require rigour and retention, audits can be compelled at licensee expense, information misuse carries a high penalty, and the State Administrative Tribunal is the primary route for regulatory discipline. Systems, documentation and training are necessary to reduce exposure to the Act’s enforcement tools.

This section sets out concrete steps and controls that a practitioner, compliance officer or operator should implement to comply with the Act’s requirements. Each step references the statutory source to support practical measures.

Licensing and organisational structuring (s 12; s 19; s 14)

If carrying on employment agent business, ensure a natural person is the licence applicant. For firms or corporate operators, designate a named natural person to hold the licence on the firm’s behalf and include the firm’s name and principal place of business on the application as required (s 19(1)(a)-(b)). Ensure licence type matches intended activity: apply for a general licence if statewide, a restricted licence if limited by place or class, or interim licence for temporary substitution (s 14).
Prepare to justify supervision and management arrangements; the Commissioner will only grant or renew licences if satisfied adequate management and supervision are in place to safeguard prospective employees (s 17).

Application and renewal process (s 18; s 13)

Lodge applications and renewals in the prescribed manner with the prescribed fee (s 18(1)). For first‑time applicants include two character referees resident in the State (s 18(2)). Observe renewal timelines to avoid late renewal penalties and preserve continuity of licence effect under s 13(2).
If transferring or changing name or address, notify the Commissioner in writing with the licence as required; the Commissioner may amend the licence and must note changes in the register (s 16(2)-(6); s 27(1)-(3)).

Fee scales and written agreements (s 36; s 37; s 38)

Do not use any fee scale unless it is submitted to and approved by the Commissioner (s 38(1)). Prepare a scale that clearly sets maximum amounts or formulae, who is liable to pay, class distinctions, payment timing, guarantee periods, and the basis for any expense charges (s 38(2)(a)-(f)).
Display scales in the office so they are easily readable (s 36(3)) and make them available to employers for perusal (s 37(2)). Provide written advice of the applicable scale to employees before acceptance as a client or at or prior to acceptance of engagement (s 36(4)); provide employers with written notice on or before introduction of the employee unless an alternative written agreement exists (s 37(3)).
For negotiated employer fees, document the agreed basis in advance in writing (s 37(1)(b)). Ensure fees charged to employees do not exceed employer fees for the same engagement (s 36(5)).

Documentation and the “Notice of Employment Offered” (s 42)

Use the prescribed “Notice of Employment Offered” form for each referral or engagement, ensure it contains all required particulars, give or forward a copy to the prospective employee, and retain an office copy in consecutive number order (s 42(2)-(4)). Insert on the office copy either the date employment commenced or a notation that no engagement occurred (s 42(4)(b)). Ensure the notice contains the statutory statement that terms are negotiable between employer and employee (s 42(3)).

Financial separation, accounting and monthly balancing (s 43)

Maintain separate records showing amounts held for or on behalf of particular persons, distinct from the licensee’s own funds, kept at licensed premises or as approved by the Commissioner (s 43(1)). Record full particulars of each transaction and of all withdrawals and payments, and perform correct monthly balancing (s 43(2)). Implement reconciliations, controls and segregation of duties to enable convenient audit.

Record retention and inspection readiness (s 45; s 46)

Retain records for a minimum of three years after preparation unless directed otherwise by the Commissioner (s 45). Ensure all books, accounts and documents are available for inspection by the Commissioner at reasonable times (s 46(1)). Train staff on procedures for responding to inspection and information requests to avoid offences under s 47 for failure to co‑operate or providing false or misleading information.

Statements of account and payment flows (s 40)

Where acting for an employee who has consented and the employer pays the employee’s remuneration to the agent, provide the employer with a clear written statement when requesting payment that separates wages and amounts due to the employment agent; when paying the employee, provide a signed statement showing employer name, period, hours, amounts received and separate fee breakdowns (s 40).

Consumer protection and refunds (s 32; s 39)

If a transaction fails to produce employment within the statutory or agreed period, refund fees on demand within the specified times after deduction of lawful expenses (s 39). Avoid entering contracts requiring fees greater than permitted by the approved scale; such contracts are voidable and excess amounts are recoverable with costs (s 32).

Staff training and misrepresentation risk management (s 29)

Train staff to avoid false or misleading statements in advertising, representations about authorisations or inducements to enter engagements based on false statements. Implement a compliance review of marketing, web copy and client communications to ensure accuracy and lawful content (s 29).

Confidentiality and information handling (s 48)

Institute privacy and information security protocols to prevent misuse of information obtained through administration of agency business. Misuse of information is an offence carrying a high monetary penalty ($20,000) and is narrowly defined to information about the affairs of a person (s 48(1)-(3)). Ensure informed consent processes are in place for any permissible disclosure.

Audit contingency planning (s 46(7))

Maintain financial and recordkeeping systems that will stand up to audit and enable the Minister’s appointed auditor to exercise Auditor General‑type powers with minimal disruption. Budget for the possibility of an auditor appointment at licensee expense where public protection is deemed necessary.

Administrative and dispute pathways (s 22; s 25)

If an objection is lodged by the Commissioner of Police or the Commissioner makes a licensing decision that might aggrieve a person, the person is entitled to a written notice of reasons and may apply to the State Administrative Tribunal for review (s 20; s 22(3)-(4A)). Prepare to document decision‑making and maintain contemporaneous records to support licensing renewals and to defend disciplinary referrals.

Delegation and record of authority (s 48A)

Where the Commissioner delegates powers to Departmental staff, be aware that delegations must be in writing and are limited to non‑delegable sub‑delegations (s 48A). For licensees, clearly record communications from the Commissioner and any delegated officers, including requests and instructions.

Insurance and risk mitigation

Consider professional indemnity and other relevant insurance given the potential for civil recovery of overcharged fees, administrative disqualification and criminal penalties in specific circumstances. While the Act does not specify insurance, licensing risks suggest prudent coverage.

Keep abreast of regulatory changes and Orders in Council (s 7; s 8; s 52)

Monitor Orders in Council and regulations for changes to the Act’s application, fee prescriptions and prescribed forms. Regulations may delegate discretionary authority and prescribe forms and fees (s 52). The Governor may exempt classes of persons or areas or declare earlier application of fee prohibitions (s 7(3); s 8; s 36(1)).

Concluding practical note: compliance under this Act is documentary, procedural and ongoing. The principal compliance controls are an appropriate licence structure, approved and displayed fee scales, rigorous transaction and financial recordkeeping, staff training on disclosure and representations, readiness for audit and inspection, and detailed documentation to support management and supervision arrangements required by the Commissioner.

Deep Dive

What it does

Current sections