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

Application for a regulated labour hire arrangement order in respect of Randstad Pty Ltd in relation to work performed for the Department of Veterans' Affairs.

1. Rhomany Ricciardo has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to the Department of Veterans' Affairs (DVA) as the regulated host, and Randstad Pty Ltd as the labour hire employer (Randstad). The applicant is employed by Randstad and performs work as a Claims Support Officer in the Permanent Impairment Team for the DVA. The host employment instrument is the DVA Enterprise Agreement 2024-2027[1] (Agreement).

• [2] In her application, Ms Ricciardo describes how Randstad supplies her labour to the DVA (and how that arrangement is not for the provision of a service) as follows:

The Employer provides the Regulated Employee a 12[-]month assignment with the Regulated Host to perform APS4 duties and requirements at the [DVA] for the Australian Public Service. The Regulated Host instructs and manages the day-to-day work for action by the Regulated Employee. The Employer has no say or input in the Regulated Employee duties or performance and is only responsible for remuneration. There is no contact or direction between the Regulated Employee and the Employer. ...

The Regulated Employee is responsible to fulfil all aspects of an Employee at an APS4 level within the Australian Public Service at the [DVA]. The Regulated Host instructs the day-to-day work for action by the Regulated Employee including the management of performance agreements where applicable. The Regulated Employee is to participate in mid[‑]cycle/end[‑]cycle Individual Performance Agreements, training sessions (both in-person and online) and ensuring assigned modules are completed via the [DVA's] electronic learning management system. ...

... The Regulated Employee represents [the DVA] [and] is responsible for direct interaction with the Veterans/Representatives to process Permanent Impairment Claims Australia[-]wide.

• [3] Randstad and the DVA have each filed a Form F86A response indicating they do not take issue with the factual contentions relevant to the requirements of s 306E in Ms Ricciardo's application and do not oppose her application. No other party has indicated an interest in the application. The DVA attached a draft order to its Form F86A.

• [4] On 6 May 2025, Randstad and the DVA each confirmed during a directions hearing in respect of this matter that they do not contest any of the factual assertions in the application. Further, the applicant and Randstad each confirmed they do not oppose the DVA's draft order or its proposed operative date. Accordingly, on the basis of the material in the application and the Form F86A responses, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

• [5] I am satisfied that Ms Ricciardo is a regulated employee entitled to apply for a regulated labour hire arrangement order under s 306E(7)(a). 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 in that:

(a) It is clear that Randstad supplies its employee, Ms Ricciardo, to perform work for the DVA.

(b) The Agreement would apply to Ms Ricciardo if she were employed directly by the DVA to perform her current duties.

• [6] I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by Ms Ricciardo 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 Randstad is not involved in matters relating to the performance of Ms Ricciardo's work, and does not assign or manage her work, and that the DVA, not Randstad, provides the instructions and training required for Ms Ricciardo to complete her work.

• [7] 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 Ms Ricciardo. 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.

• [8] In those circumstances, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by Ms Ricciardo. 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 12 May 2025, as agreed by the parties and consistent with s 306E(9)(e)(ii).

R Ricciardo, the applicant in person, with R Ribeiro.

T Tan and H Haran for the Department of Veterans' Affairs.

Sydney by video link using Microsoft Teams (directions):

1. [1]AE523975.
2. [2] [2024] FWCFB 299, 333 IR 249.

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