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Background to the ESI Code (Employment Services Industry Code)

For most of the 20th Century, the majority of Australian States and New Zealand had legislation (often supported by local licensing schemes) that regulated the conduct of employment agents. By 2005 Queensland, New South Wales, Victoria and New Zealand had dismantled their licensing schemes.  

Queensland replaced its licensing scheme with a regulatory code. Parts of NSW’s scheme found their way into the Fair Trading Act. The ACT retained its licensing scheme together with a regulatory Code of Conduct.  South Australia retained both its licensing scheme and legislation, which uniquely in a throwback to the late 19th Century, contemplates that work seekers can be charged a “deposit” – presumably against fees that might be charged to them. Western Australia retained its legislation from the 1970s – complete with licensing and a requirement for employment agents to established approved scales of fees. Victoria, Tasmania and the Northern Territory relied on Fair Trading legislation.

The first moves towards a national approach came in 2003 with the ACCC’s authorisation in Australia of the RCSA Code for Professional Conduct.  The RCSA Code has been developed and authorised twice since then, most recently in 2014. However, it only applies to RCSA members.
So now, RCSA has decided to take the lead in proposing Commonwealth regulations with a trade and commerce focus that are designed to reflect contemporary market conditions and consumer and commercial standards. Unlike the RCSA code, the intent of this proposed ESI Code is that it should apply to all employment service providers and to customers, who use their services.

12 Key differences between the ESI Code and the RCSA Code

  1. It would operate federally and not only within the boundaries of any one state. 
  2. It would operate across all classes of employment services and operate to eradicate unfair practices.
  3. It would regulate the conduct of users of employment services as well as the conduct of employment service providers.
  4. It would give substance to a reciprocal duty of good faith required to be observed in dealings for the supply of an employment service and so reinforce provisions already found in the unconscionable conduct provisions of the Australian Consumer Law.
  5. It would improve transparency by clarifying the role of employment service providers in complex multi- tiered or chain of supply transactions.
  6. It would extend to conduct of Australian employment service providers in offshore jurisdictions.
  7. A breach of it would be a contravention of the Competition and Consumer Act and would give rise to remedies under that act including remedies for compensation and injunctions.
  8. It would introduce requirements for disclosure and minimum standards in relation to pre-employment activities.
  9. It would introduce a requirement for appropriate accreditation of employment services.
  10. It would include diversity and vulnerable worker protection provisions not usually found in existing schemes. 
  11. It would provide compliance, enforcement, dispute resolution and assurance mechanisms that would no longer be the preserve of the industry associations.
  12. The costs of establishment as Commonwealth regulation would be sourced from the Commonwealth.

Contact & Support

If you would like to discuss the ESI Code contact Pam Iverson at RCSA on (03) 9663 0555 or to schedule a time to do so.