Fair Work Act 2009

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

Application by Mining and Energy Union re Whitehaven Coal Mining Ltd - Vickery Mine

Application for a regulated labour hire arrangement order in respect of WorkPac Mining Pty Ltd in relation to work performed for Whitehaven Coal Mining Ltd at the Vickery Mine.

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 Whitehaven Coal Mining Limited (Whitehaven) as the regulated host and WorkPac Mining Pty Ltd (WorkPac) as the employer. The proposed order would apply to employees of WorkPac (regulated employees) who perform work for Whitehaven at the Vickery open-cut coal mine in the Gunnedah Basin Coalfields in north-west New South Wales (Mine). The covered employment instrument is the Whitehaven Coal Vickery Mine Greenfield Enterprise Agreement 2023 (Whitehaven Agreement).[1]

• [2] Whitehaven filed a Form F86A response to the application indicating that it neither consented to nor objected to the order sought in the application and advising that it did not wish to bring any other issue with it to the Commission's attention.

• [3] WorkPac also filed a Form F86A response to the application indicating that it did not object to the application. However, it requested the following:

The Respondent respectfully requests that the Commission considers an effective date at least four (4) weeks after the approval of any Regulated Labour Hire Arrangement Order ('RLHAO') to allow the Respondent sufficient time to:

• Hold discussions with the Regulated Host to ensure the timely and accurate calculation of the Protected Rate of Pay ('PROP') relative to the RLHAO; and
• Ensure that the Respondent's payroll system is sufficiently organised to facilitate accurate payment of the PROP to the Respondent's employees subject to the RLHAO on the Regulated Host's worksite.

The Respondent respectfully requests that the RLHAO takes effect on a Monday, to align with the current pay cycle of affected employees.

• [4] No other person has indicated an interest in the application.

• [5] On 21 November 2025, the MEU filed a statement of agreed facts on behalf of all parties to the matter, pursuant to my direction issued on 31 October 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

• The mining work at the Mine is carried out by Whitehaven employees, the regulated employees employed by WorkPac and the employees of another labour hire company.

1. The Black Coal Mining Industry Award 2020[2] (Award) covers each of the regulated employees.

• The work performed by the regulated employees would, if they were directly employed by Whitehaven, fall within the classifications in the Whitehaven Agreement.

1. The WorkPac Coal Mining Agreement 2019[3] applies to the regulated employees. It provides for lower rates of pay than for equivalent classifications in the Whitehaven Agreement.

• At the Mine, the regulated employees perform the same, or substantially the same, mine working duties as those performed by Whitehaven employees who are covered by the Whitehaven Agreement

• work within the same mine working centres as Whitehaven employees;
• follow the same sign-on procedures, including swipe-in, breath-testing, and completion of timesheets;
• attend the same daily pre-start meetings conducted by Whitehaven or the monthly extended pre-start meeting conducted by the superintendent;
• are allocated work through the same processes as Whitehaven's employees;
• undertake the same Whitehaven site induction before commencing work at the Mine;
• work under the same health and safety management system established and maintained by Whitehaven;
• operate under the same procedures, policies and rules as Whitehaven employees;
• work the same rosters as Whitehaven's employees;
• are allocated to the same crews and are supervised, by Whitehaven-employed personnel, in the same manner as Whitehaven's employees;
• communicate with supervisors via the same means (two-way radio) and receive directions and instructions in the same way as Whitehaven employees; and
• use the same crib facilities, bathhouses, mining infrastructure areas, noticeboards and general site amenities as Whitehaven employees.

• [6] WorkPac currently provides initial and replacement personal protective equipment (PPE) to the regulated employees who work at the Mine, but replacement consumables (masks, gloves and glasses) are provided by Whitehaven. Apart from this:

• WorkPac does not provide the equipment, systems, plant, machinery, infrastructure or operational structures used by the regulated employees.

• WorkPac does not direct, supervise or control the regulated employees it supplies to work at the Mine, and had no on-site managers, coordinators or representatives who direct, oversee, allocate tasks to or otherwise oversee the work of the regulated employees.

• [7] In this decision I apply, without repeating, the principles concerning the proper interpretation and application of s 306E as stated by a Full Bench of the Commission in Application by the Mining and Energy Union[4] and Federal Court Full Courts in BHP Coal Pty Ltd v Mining and Energy Union[5] and Skilled Workforce Solutions (NSW) Pty Ltd v Mining and Energy Union.[6]

• [8] The parties agree, and I am satisfied for the purposes of s 306E(7) of the FW Act, that the MEU is an organisation entitled to represent the industrial interests of employees of WorkPac employed to perform work at the Mine. Accordingly, the MEU is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation of s 306E(7)(c).

• [9] I am likewise 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. Specifically, on the evidence before me, I am satisfied that:

(a) WorkPac provides the regulated employees to perform mineworker duties for Whitehaven at the Mine.

(b) The Whitehaven Agreement would apply to the regulated employees who perform work for Whitehaven at the Mine if Whitehaven were to employ these employees directly to undertake the same kind of work.

• [10] For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work 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 subsection (7A). In relation to the matters set out in s 306E(7A), I make the following findings:

(a) WorkPac is not involved in matters relating to the regulated employees' performance of work at the Mine, apart from the provision of initial and replacement PPE.

(b) Whitehaven directs, supervises and controls the performance of work by the regulated employees of WorkPac at the Mine, including by managing rosters, assigning tasks and maintaining overall responsibility for the conduct of operations in a safe manner.

(c) The regulated employees use Whitehaven's systems, plant and structures in the performance of work.

(d) There is no evidence that WorkPac is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to Whitehaven.

(e) The work undertaken by the regulated employees at the Mine is the same, or substantially the same, as the work performed by mineworkers employed directly by Whitehaven, and is not work of a specialist or professional nature.

• [11] 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 subsection (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 subsection (8). Accordingly, I am not required to have regard to those matters.

• [12] In those circumstances, 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 9 February 2026, consistent with s 306E(9)(e)(ii) and WorkPac's submissions.

1. [1]AE520892.
2. [2]MA000001.
3. [3] AE504188.

[4] [2024] FWCFB 299, 333 IR 249 [9]-[13].

[5] [2025] FCAFC 194 [33]-[42], [55].

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