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

Application by Mining and Energy Union re Dawson Mines

Application for a regulated labour hire arrangement order in respect of WorkPac Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed for Anglo Coal (Dawson Services) Pty Ltd.

1. The Mining and Energy Union (MEU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Anglo Coal (Dawson Services) Pty Ltd (Anglo) as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively, WorkPac) as the labour hire employers. The relevant employees of WorkPac are employees who perform work at the Dawson Mines (Mines) near Moura in Queensland. The host employment instrument is the Dawson Mines Collective Enterprise Agreement 2024 (Agreement).[1]

• [2] In its application, the MEU asserts that WorkPac supplies one or more employees, directly or indirectly, to perform work that is for the benefit of Anglo or the Mines.

• [3] The application further explains how the performance of work by the employees is for the supply of labour and is not and will not be for the provision of a service as follows:

1. WorkPac is a labour-hire business that operates in the mining industry.

1. As in other [regulated labour hire arrangement order] applications involving WorkPac, the Regulated Employees in the present matter:

1. work in the same crews as employees of Anglo (the Host Employees);
2. work to the same roster as the Host Employees;
3. perform work of the same, or substantially similar, kind as the Host Employees;
4. are required to comply with the same instructions as the Host Employees given by Anglo management and supervisors;
5. use the same machine and plant as the Host Employees;
6. work in accordance with the operating procedures of Anglo, including safety systems established by Anglo at the Mines;
7. perform the standard duties of operator classifications within the black coal mining industry, consistent with the work of the Host Employees.

1. The Commission can be satisfied 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. See MEU v Batchfire Callide Management Pty Ltd, WorkPac Pty Ltd & Anor [2024] FWCFB 299.

1. With respect to the mandatory factors in s 306E(7A):

1. the employer, WorkPac, has no or minimal involvement in matters relating to the performance of the work;
2. in practice, Anglo or a person acting on behalf of Anglo (rather than WorkPac or a person acting on behalf of WorkPac) directs, supervises and controls the Regulated Employees when they perform the work, including in managing rosters, assigning tasks and reviewing the quality of the work;
3. the Regulated Employees use systems, plants and structures of Anglo, not WorkPac, to perform the work;
4. WorkPac is not subject to industry or professional standards or responsibilities in relation to the Regulated Employees;
5. the work aligns with the standard duties of operator classifications within the black coal mining industry and is not separate work of a specialist or expert nature.

• [4] Anglo and WorkPac have each filed a Form F86A response to the application. Anglo indicated in its response that it did not oppose the making of the order sought by the MEU. WorkPac's response, which was filed on 20 December 2024, indicated that it objected on grounds that it is not fair and reasonable in all circumstances to make the proposed regulated labour hire arrangement order (ss 306E(2) and 306E(8) of the FW Act). On 3 February 2025, the MEU filed an outline of submissions pursuant to a direction of the Commission made on 15 January 2025. On 21 February 2025, the MEU, with the consent of Anglo and WorkPac, advised the Commission by email that the position of both Anglo and WorkPac by that point was that:

Without accepting the correctness of all assertions in the material filed by the MEU, WorkPac and Anglo do not wish to file any evidence or make any submissions with respect to the application.

• [5] The MEU's email attached a draft order, in relation to which it was further advised:

If the FWC is satisfied that the regulated labour hire arrangement order should be made pursuant to s 306E of the FW Act, WorkPac and Anglo do not oppose the attached draft order being issued (noting in particular the proposed date the order is to take effect). If the FWC has any concerns about the form of the proposed order, the parties ask that they be given an opportunity to be heard in respect of any concerns.

• [6] On that basis, the parties requested that the application be determined on the papers. No other interested party has indicated that they oppose the grant of the MEU's application,

• [7] On the basis of the uncontested contentions of fact contained in the originating application and the MEU's outline of submissions, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings. First, I am satisfied that the MEU is an employee organisation that is entitled to represent the interests of the employees supplied by WorkPac to Anglo to work at the Mines, as well as Anglo's own employees working at the Mines, and is therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c).

• [8] 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) It is clear that WorkPac supplies its employees to perform work for Anglo at the Mines.

(b) The Agreement would apply to the employees if they were directly employed by Anglo to perform work at the Mines, in that they perform the work of the 'Mine Employee' classifications in the Agreement.

• [9] Third, I am satisfied, for the purposes of s 306E(1A) of the FW Act, that the performance of work by 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:

• WorkPac is not involved in matters relating to the performance of the employees' work in any significant way.
• Anglo, and not WorkPac, rosters the employees, assigns their work tasks, and directs and supervises the performance of the employees' work.
• The employees utilise the systems, plant and structures of Anglo rather than WorkPac in the performance of their work, and Anglo provides all the work instructions, equipment, training and facilities required for the employees to complete their work.
• The employees work according to the operating procedures and safety systems established by Anglo at the Mines.
• WorkPac is not subject to industry or professional standards or responsibilities in relation to the Regulated Employees.
• The work is not of a specialist or expert nature.

• [10] 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 MEU. 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 current submissions have been made in relation to any of the matters listed in sub-s (8). Accordingly, I am not required to have regard to those matters.

• [11] 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 MEU. 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 will be 28 April 2025, as agreed by the parties and consistent with s 306E(9)(e)(ii).

1. [1]AE527782.
2. [2] [2024] FWCFB 299, 333 IR 249.

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