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

Application by Mining and Energy Union re Metropolitan Coal Mine

Application for a regulated labour hire arrangement order in respect of Nexus Mining Pty Ltd in relation to work performed for Helensburgh Coal Pty Ltd

• [1] The Mining and Energy Union (MEU) has applied under s.306E of the Fair Work Act 2009 (Cth) (Act) for a regulated labour hire arrangement order to apply to Helensburgh Coal Pty Ltd (Helensburgh) as the regulated host and Nexus Mining Pty Ltd (Nexus) as the labour hire employer. Helensburgh and Nexus are employers of employees who perform work at the Metropolitan Colliery, an underground mine that produces thermal coal used for power generation and metallurgical coal used in the production of steel and which is located some 30 kilometres north of Wollongong in New South Wales (Mine).

• [2] Helensburgh and Nexus each initially filed a response to the application opposing the making of the order. Subsequently, the parties advised that a consent position had been reached in relation to the application and that both Helensburgh and Nexus wished to formally withdraw their objections to the making of the order. A draft consent order was filed to reflect the outcome of the agreed position that had been reached. As the factual assertions contained in the MEU's application and supporting material were uncontested, and having regard to the principles outlined by the Full Bench in Application by the Mining and Energy Union[1] (Batchfire), I make the findings set out below.

• [3] I am satisfied that the MEU is an employee organisation that is entitled to represent the industrial interests of employees of Nexus who are regulated employees within the meaning of s.306E(5), and employees of the regulated host who work at the Mine, and is therefore entitled to apply for a regulated labour hire arrangement order under s.306E(7)(c). I am also satisfied that the requirements of s.306E(1) of the Act which must be satisfied for the Commission to be required to make a regulated labour hire arrangement order have been met. In this respect I note that:

• (i) Nexus supplies its employees to perform work for Helensburgh. Employees of Nexus perform work for Helensburgh because they perform work wholly or principally for the benefit of Helensburgh[2] or the enterprise carried on by Helensburgh, namely the work undertaken at the Mine.[3]

• (ii) The host employment instrument[4] is the Helensburgh Coal Enterprise Agreement 2021 (Agreement). The Agreement would apply to employees of Nexus if Helensburgh were to employ the employees of Nexus performing work that they currently perform for Helensburgh.

(iii) Helensburgh is not a small business employer.

• [4] For the purposes of s.306E(1A) I am also satisfied that the performance of work by the Nexus employees is not and will not be for the provision of a service rather than the supply of labour. In coming to that view I have had regard to all of the matters referred to in s.306E(7A) and the similarities between the circumstances of this matter and those that prevailed in the Batchfire case in relation to the involvement of Nexus in matters relating to the performance of work, the supervision, direction and control of work, the systems and plant used by employees of Nexus to perform the work and the industry standards in relation to the regulated employees. The prohibition on the making of a regulated labour hire arrangement order in s.306(1A) does not arise in this matter.

• [5] Section 306E(2) provides that the Commission must not make an order if it is satisfied that it is not fair and reasonable in all the circumstances to do so having regard to any matters in subsection (8) in relation to which submissions have been made. Helensburgh and Nexus ultimately withdrew their objections under s.306E(2) and so did not make submissions about matters referred to in 306E(8). I am not satisfied that it would not be fair and reasonable in all the circumstances to make a regulated labour hire arrangement order. The limitation in s.306E(2) has no application here.

• [6] Having regard to the matters set out above, I am required by s.306E of the Act to make the regulated labour hire arrangement order as consented to by the parties. I will publish the order with this decision setting out the matters specified in s.306E(9) of the Act. Consistent with s.306E(9)(e)(ii), the operative date of the order will be 30 June 2025, which date is also consistent with the operative date agreed by the parties.

[1] [2024] FWCFB 299.

[2] (s.306D(2)(a)).

[3] (s.306D(2)(b)).

[4] Section 306E(6).

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