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

Application for a regulated labour hire arrangement order in respect of HOBAN Recruitment Pty Ltd in relation to work performed for the City of Perth - failure to respond to Commission's direction - application dismissed - Fair Work Act 2009 (Cth) s 587(1)(c).

• [1] On 21 January 2025, Logan Ross applied to the Commission under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order in respect of his employment by HOBAN Recruitment Pty Ltd, (HOBAN) in relation to work performed for the City of Perth. In his application, Mr Ross names the 'City of Perth Salaried Workforce Agreement 2023' as the host employment instrument that would apply to him were he to be employed directly by the City of Perth.

• [2] On 30 January 2025, I directed that the following correspondence be sent to Mr Ross from my chambers (omitting formal parts):

In your application, it is stated that the employment instrument which applies to the host, City of Perth, is the City of Perth Salaried Workforce Agreement 2023 [2025] WAIRC 00012 (City of Perth Agreement).

Pursuant to s 306C of the Fair Work Act 2009 (Cth) (FW Act), a regulated host needs to be one of the following in order for the Commission to make a regulated labour hire arrangement order:

(a) a constitutional corporation; or

(b) the Commonwealth; or

(c) a Commonwealth authority; or

(d) a person, so far as work is performed for the person in connection with constitutional trade or commerce, and the work is of a kind that would ordinarily be performed by:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as work is performed for the person in connection with the activity carried on in the Territory; or

(g) a person, so far as work is performed for the person in a Territory in Australia; or

(h) any person in a State that is a referring State because of Division 2A or 2B of Part 1-3.

City of Perth is not an entity as defined in (b), (c), (d), (e), (f), (g) and (h) above. Therefore, you will need to demonstrate whether City of Perth is a constitutional corporation.

Furthermore, as stated by a Full Bench of the Commission in Application by the Mining and Energy Union (2024) 333 IR 249; [2024] FWCFB 299 in paragraph [12], in order for the Commission to have the power to make an order under s 306E of the FW Act, there must be a 'covered employment instrument' which 'applies' to the regulated host. Section 12 of the FW Act defines 'covered employment instrument' to encompass five categories of instrument, namely:

(a) an enterprise agreement; or

(b) a workplace determination; or

(c) a determination under section 24 of the Public Service Act 1999 that applies to a class of APS employees in an Agency (within the meaning of that Act); or

(d) an instrument made under any other law of the Commonwealth (other than this Act), or of a State or a Territory, that provides for the terms and conditions of employment for a class of national system employees of:

(i) the Commonwealth or a State or Territory; or

(ii) an authority of the Commonwealth or of a State or Territory; or

(e) any other instrument relating to the employment of a class of national system employees that:

(i) is made under a law of the Commonwealth (other than this Act) or a State or Territory; and

(ii) is prescribed by the regulations.

The City of Perth Agreement is an agreement registered under s 41 of the Industrial Relations Act 1979 (WA). It is therefore not a 'covered employment instrument' as defined in paragraphs (a), (b) or (c) of the above definition. No regulations have been made to give operative effect to paragraph (e) of the definition. Therefore, in order for the application to have any prospects of success, the Commission will need to be satisfied that the City of Perth Agreement falls within paragraph (d) of the above definition. As an essential element of this, it will need to be demonstrated that the City of Perth Agreement provides for the terms and conditions of employment of national system employees as defined in s 13 of the FW Act. That will in turn require demonstration that the employer under the City of Perth Agreement is a national system employer as defined in s 14 of the FW Act.

You are directed make a written submission addressing the issues identified above by way of email to chambers.hatcher.j@fwc.gov.au by 5:00 pm (AEDT) on Thursday, 27 February 2025. You may wish to seek legal advice or obtain legal representation when preparing your submission. In the event that no submissions are made, the Commission may dismiss your application without further notice due to a lack of jurisdiction to consider your application.

• [3] To date, the Commission has not received a response to that correspondence. The applicant has not otherwise contacted the Commission.

• [4] In the absence of any further submissions as to the jurisdictional matters identified in the Commission's correspondence, I find that the application has no reasonable prospects of success. Accordingly, the application is dismissed pursuant to s 587(1)(c) of the FW Act.

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