s.306E - Application for a regulated labour hire arrangement order

Application by Australian Rail, Tram and Bus Industry Union re Aurizon NSW Coal Operations

Application for a regulated labour hire arrangement order in respect of Railtrain Pty Ltd and Railtrain Services Pty Ltd in relation to work performed for Aurizon Operations Limited.

1. The Australian Rail, Tram and Bus Industry Union (RTBU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Aurizon Operations Limited (Aurizon) as the regulated host and Railtrain Pty Ltd and Railtrain Services Pty Ltd (together, employers) as the labour hire employers. The host employment instrument is the Aurizon NSW Coal Operations Enterprise Agreement 2021[1] (Agreement). The relevant employees are rail operations workers which the employers supply to Aurizon to perform rail operations work.

• [2] In response to the RTBU's application, the employers have jointly filed a Form F86A response in which they have indicated that they neither object to the application nor wish to bring any other issue with it to the Commission's attention. Aurizon also filed a Form F86A response indicating that, while it did not object to the application, it was unclear on 'which employees or cohorts of employees of Railtrain at the relevant Aurizon depots in NSW the RTBU contend are employees performing work within the scope of the Agreement and who would be covered by the Proposed Order.'

• [3] However, on 23 April 2025, the Commission was advised that the RTBU and Aurizon had reached agreement as to the terms of a proposed order, with an operative date of 4 May 2025. Together with this advice, the Commission was provided with a statement of agreed facts (SOAF) which was agreed as between the RTBU and Aurizon and had been prepared in consultation with the employers. In the SOAF, the parties describe the arrangement whereby the employers supply their employees to Aurizon for the performance of work as follows:

1.6 Railtrain currently supplies employees of Railtrain to perform rail operations work for Aurizon within its New South Wales operations covered by the [Agreement].

1.7 The performance of work described in clause 1.6 by these Railtrain employees is not for the provision of a service to Aurizon.

1.8 Aurizon and Railtrain rail operations employees currently performing work for Aurizon in New South Wales relevant to this application:

(a) work under Aurizon's Rail Safety National Law 2012 (RSNL) accreditation as a Rail Transport Operator;

(b) perform the same rail operations work and operate the same Aurizon-owned or leased rollingstock as Aurizon employees engaged under the [Agreement];

(c) are expected to work in accordance with Aurizon's RSNL Safety Management System established by Aurizon for safe railway operations pursuant to its obligations under the RSNL;

(d) are subject to Aurizon's operational policies and procedures;

(e) are rostered by Aurizon on the posted daily roster, which includes Aurizon employees engaged under the [Agreement], when rostered to perform work; and

(f) are required to comply with Aurizon's direction and reasonable instructions, usually communicated by Aurizon's supervisor.

• [4] On 1 May 2025, the employers advised the Commission that they consent to the orders proposed by Aurizon and the RTBU. No party other than Aurizon and the employers has communicated any interest in the RTBU's application.

• [5] On the basis of the material in the application, the Form F86A responses and the SOAF, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

• [6] First, I am satisfied that the RTBU is entitled to represent the industrial interests of the employees supplied by the employers to Aurizon and therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c).

• [7] Second, I am satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied in order to enliven the obligation to make a regulated labour hire arrangement order, are met in that:

(a) The employers supply their employees to perform rail operations work for Aurizon.

(b) The Agreement would apply to the employees if they were directly employed directly by Aurizon to perform rail operations work.

• [8] Third, I am satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by the regulated employees is not and will not be for the provision of a service, rather than the supply of labour. In forming this view, I have had regard to the matters set out in sub-s (7A) - in particular, that:

• the employers have limited involvement in matters relating to the performance of the employees' work, which is primarily managed by Aurizon;
• Aurizon, rather than the employers, rosters the regulated employees' shifts (alongside its direct employees);
• the employees are subject to Aurizon's operational policies and procedures, directions and reasonable instructions, and RSNL Safety Management System;
• the employees operate rolling stock owned or leased by Aurizon; and
• the employees perform work that is substantially the same as that performed by Aurizon's direct employees under Aurizon's RSNL accreditation.

• [9] Fourth, in relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the RTBU. Section 306E(2) requires the Commission to have regard to the matters listed in sub‑s (8) in relation to which submissions have been made. In this case, no submissions were made in relation to any of the matters listed in sub‑s (8). Accordingly, I am not required to have regard to those matters.

• [10] In the circumstances set out above, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the RTBU. I will publish the order together with this decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the order, as agreed by the parties and consistent with s 306E(9)(e)(ii), will be 4 May 2025.

P Matthews for the Australian Rail, Tram and Bus Industry Union.

P Pager for Railtrain Pty Ltd and Railtrain Services Pty Ltd.

Sydney, via video using Microsoft Teams (mention and directions):

1. [1]AE514355.
2. [2] [2024] FWCFB 299, 333 IR 249.

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