Liquor & Gaming Specialists

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Low Risk Is Not Zero Risk

The Liquor Act was amended last year (received assent on 27 November 2013) to change the requirements for "low risk" licensed premises with respect to approved managers and RMLV training.

The relevant parts of the amended version of Section 155AD are set out below. I have bolded the bits that create the exemption for restaurants and cafes, or to be more correct, the holders of commercial other subsidiary on premises licences with either a "meals" or "prepared food" principal activity. The "prepared food" category, also known as a "café licence", gets included because of the definition of "subsidiary on-premises licence (meals)" in Section 4 of the Act (in case anyone’s interested).

155AD Who must be present or reasonably available at licensed premises etc.
(1) This section applies while the licensed premises or premises to which the permit relates are open for business.
(1A) However, this section does not apply to licensed premises under a subsidiary on–premises licence if the premises are a boat or on a boat.

(2) If the licensee or permittee is a corporation, the licensee or permittee must take reasonable steps to ensure that a person employed by the corporation as an approved manager–
(a) is present or reasonably available during the following times at the licensed premises or premises to which the permit relates–
(i) ordinary trading hours;
(ii) approved extended trading hours between 7a.m. and 10a.m.; and
(b) is present during approved extended trading hours between 12 midnight and 5a.m. at the licensed premises or premises to which the permit relates.
Maximum penalty–50 penalty units.

(3) If the licensee or permittee is an individual, the licensee or permittee must–
(a) be present or reasonably available, or take reasonable steps to ensure that a person employed by the individual as an approved manager is present or reasonably available, during the following times at the licensed premises or premises to which the permit relates–
(i) ordinary trading hours;
(ii) approved extended trading hours between 7a.m. and 10a.m.; and
(b) be present, or take reasonable steps to ensure that a person employed by the individual as an approved manager is present, during approved extended trading hours between 12 midnight and 5a.m. at the licensed premises or premises to which the permit relates.
Maximum penalty–50 penalty units.

(4) Subsection (3) applies subject to section 155AF.
(4A) If the premises are low risk premises and are not open for business beyond 12 midnight, the licensee or permittee is exempted from–
(a) for a licensee or permittee that is a corporation–subsection (2)(a); or
(b) for a licensee or permittee who is an individual–subsection (3)(a).
(4B) If the premises are low risk premises but are open for business beyond 12 midnight, the licensee or permittee is exempted until 10p.m. from–
(a) for a licensee or permittee that is a corporation–subsection (2)(a); or
(b) for a licensee or permittee who is an individual–subsection (3)(a).
…
(9) In this section–
low risk premises means premises to which any of the following relates–
(a) a subsidiary on-premises licence (meals);
(b) a community club licence if the club has 2000 or fewer members;
(c) a community other licence;
(d) a restricted liquor permit.

The changes are a little controversial for a couple of reasons. Firstly, many of our LGS Training clients have taken some convincing that this has actually happened – understandable of course when licensees have become used to the approved manager regime which has been around since the start of 2009. The feedback has bordered on incredulity at times. "So you’re saying no-one has to be trained? This is a big restaurant! What if something goes wrong? This can’t be right!" etc etc. I’ve patiently explained that even though it’s no longer a statutory requirement, it’s probably a very good idea for a licensee to have personnel with the RMLV qualification.

Secondly, as far as I’m aware it was actually intended to retain a requirement for low risk premises to at least have someone trained in RMLV. This has not eventuated with the amendment, but it may well be that further changes will correct this. The parliamentary committee (deep breath – the State Development Infrastructure and Industry Parliamentary Committee) in supporting the new 155AD mistakenly reported that "all licensees must complete Responsible Management of Licensed Venues (RMLV) training, which is the same training as that undertaken by approved managers." Of course, only a person who holds a licence as an individual needs to the do RMLV, and almost all licences in Queensland held by companies.

We know from long experience the value of proper diligence when it comes to liquor compliance, and conversely the elevated risk of negative consequences for licensees who do not have a clear focus on their technical obligations. "Low risk" does not equal "no risk" and we will continue to recommend to our clients that they ensure key members of staff obtain the RMLV qualification.

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Updates to Approved Manager Requirements

The Liquor and Gaming (Red Tape Reduction) and Other Legislation Amendment Bill 2013 will, among other things, make certain adjustmentsto the requirements with respect to approved managers. Most of the changes are achieved by adding to the existing approved manager provisions a requirement that in addition to being an approved manager the relevant person must also be an employee of the licensee. This is of significance when one considers that compliance with the approved manager requirements for many venues is often achieved using a director of the licensee company, or contracted third parties.

According to the explanatory notes, the intention of the amendment is "to ensure that an approved manager who is present at the premises must be employed in the capacity of an approved manager, not just performing other duties or present (sic) on the premises for social purposes". The amendment has broader implications however. The use of the term "employee" in the legislation has specific legal consequences, potentially excluding company directors who are not employed, as well as contractors. Some licensees use labour hire companies for the provision of personnel, including managers. Others have approved management agreements
with third party service providers. These arrangements are unlikely to achieve compliance with the amended requirements.

Interestingly, the proposed amendments to the closure for unlawful trading provisions in Section 141 include an express reference to the conduct of the business by an approved manager employed not by the licensee, but by a third party with an approved management agreement. In these circumstances there will be no basis for the premises to be closed, but the licensee will still be non-compliant with the Section 155AD requirement that an approved manager employed by the licensee be present or reasonably available.

The approved manager register which has long been considered overly bureaucratic and unnecessary will be scrapped. The explanatory notes to the Bill very accurately describe the register as "simply an unnecessary administrative burden and duplication of existing employment records kept by licensees". However, it’s unlikely that any of the fines handed out to approved managers forgetting to sign off after their shift will be refunded.

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Low Risk Licence Applications Made Easier

In what is likely to be seen by several industry groups a s controversial change the Newman government’s red tape reduction bill will amend the Liquor Act to remove much of the expense and time constraints associated with the licensing process for restaurants and cafes.

Many existing licence holders will recall the standard process to apply for a liquor licence in Queensland included:

  • The preparation of a Community Impact Statement
  • The preparation of a Risk Assessed Management Plan
  • Seeking the consent of the owner of the freehold property
  • Advertising the liquor licence application: in a local newspaper, the Queensland Government Gazette and by way of a sign on the premises, to call for community comment or objection.
  • The completion of police criminal history checks on individuals involved in the application: company directors, major shareholders and individual applicants.

The proposed amendments, likely to pass unchanged from their present form given the Government’s overwhelming majority, will remove all five of these requirements for restaurant and cafe licence applicants under the following circumstances:

  • The premises is located in a commercial centre
  • The proposed trading hours do not extend beyond midnight
  • There is no amplified entertainment on the premises

These changes follow changes to liquor licence application procedures introduced in late 2012 which did away with the need for a successful applicant to provide documentary evidence of compliance with fire, health and building regulations. The combined effect of these changes should see a properly prepared liquor licence application approved in as little as four weeks. Although the application will still involve a range of matters, including Police and Council consultation, town planning and physical inspections, the changes will still considerably reduce the professional costs associated with the preparation and management of the process.

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Free Training Register

Download a free licensee training register to use in your business. The document is designed to be printed in A3 format.

You must keep a record of all employees training and this record must be produced if requested by OLGR. A copy of the relevant training certificates must be kept with the register.

If youre unsure of anything regarding training requirements, call our office on 07 3252 4066.

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Liquor & Gaming Specialists
30 Prospect Street
Fortitude Valley QLD 4006
T: 07 3252 4066
F: 07 3252 1466