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

Application by Shop, Distributive and Allied Employees Association and United Workers' Union re Metcash Trading Limited

Application for a regulated labour hire arrangement order in respect of Asset Personnel Pty Ltd, Fluid Recruitment Pty Ltd, Recruitco Pty Ltd and Manpower Services (Australia) Pty Ltd in relation to work performed for Metcash Trading Limited.

• [1] The Shop, Distributive and Allied Employees Association (SDA) and United Workers' Union (UWU) (together, applicants) have applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to Metcash Trading Limited (Metcash) as the regulated host and the following entities as the employers (together, Employers):

• Asset Personnel Pty Ltd;
• Fluid Recruitment Pty Ltd;
• Recruitco Pty Ltd; and
• Manpower Services (Australia) Pty Ltd.

1. The proposed order would apply in respect of employees of the Employers who perform work as storeworkers for Metcash at its distribution centre located at 50 Port Wakefield Road, Gepps Cross in South Australia (Gepps Cross DC). The Metcash Trading Limited South Australia Food & Liquor Enterprise Agreement 2023[1] (Metcash SA Agreement) applies to direct employees of Metcash that perform this work. Neither Metcash nor any of the Employers opposes the application.

• [3] The applicants filed submissions in support of the application and a draft order. Metcash and the Employers declined to file any substantive submissions in response. No other person has indicated an interest in the application.

1. The evidentiary material before the Commission is confined to the uncontested assertions of fact contained in the application itself and the applicants' submissions filed on 25 October 2024. I am entitled to make findings of fact on the basis of this material.[2] I find as follows:

• Metcash employs more than 15 employees.
• The Metcash SA Agreement covers Metcash and its employees at the Gepps Cross DC, and also covers the SDA and the UWU.
• The Employers supply workers to Metcash to work at the Gepps Cross DC.
• The Employers have no embedded supervisory or management capacity at the Gepps Cross DC, and its supervisory/management personnel attend the site only on an irregular basis.
• The employees supplied by the Employers undertake Metcash's induction training when commencing employment at the Gepps Cross DC, which includes training in Metcash's policy and procedure book, which the employees are required to comply with.
• Metcash's Team Leaders allocate duties to employees of the Employers, and such employees report to the Metcash Team Leaders and are required to comply with their instructions and directions.
• Employees of the Employers:
  • are given directions as to picking orders via Metcash's headsets utilising Metcash's automated picking directory technology;
  • are required to attend team talks convened by Metcash's Team Leaders, alongside Metcash's own employees, at the commencement of each shift;
  • are required to undertake ongoing training arranged and conducted by Metcash;
  • are rostered for work by Metcash, with their rostering information published on the same rosters as for Metcash's own employees;
  • take breaks within their teams at Metcash's direction, and at the same times and in the same break room as Metcash's employees;
  • request leave through Metcash, and are required to notify Metcash of absence due to illness;
  • exclusively use Metcash's plant and equipment, including electric pallet jacks pick machines, headsets and forklifts, in the performance of their work; and
  • perform the same duties as Metcash's employees and work alongside them in doing so.
• The Employers do not direct, supervise or control their employees working for Metcash.

1. In Application by the Mining and Energy Union,[3] a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[4] I apply, but do not repeat, the principles stated in that decision.

• [6] I am satisfied that the SDA and UWU are employee organisations entitled to represent the industrial interests of the employees of the Employers to whom the proposed order would apply, who in turn are regulated employees for the purpose of s 306(5) of the FW Act. Accordingly, they are entitled under s 306E(7)(c) to apply for a regulated labour hire arrangement order.

• [7] I am further satisfied that the requirements in s 306E(1) of the FW Act, in relation to which the Commission must be satisfied to enliven the obligation to make a regulated labour hire arrangement order, are met. Specifically, I am satisfied on the material filed in this matter that:

(a) The Employers supply employees employed by them to Metcash to perform storeworker functions at the Gepps Cross DC. These functions include picking, packing, storing, receiving, dispatching, forking and cleaning.

1. The Metcash SA Agreement is expressed to apply to '[e]mployees who are employed as Storeworkers who perform work covered by this Agreement and who... perform work within [Metcash's] Warehouse Distribution Centre in the state of South Australia'.[5] It would therefore apply to the employees of the Employers supplied to perform work for Metcash if Metcash were to employ those employees directly to perform the same kind of work.

• [8] For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. In forming that view, I have had regard to the matters set out in s 306E(7A). In relation to those matters, I make the following findings (using the lettering in the subsection):

(a) The Employers do not have any significant involvement in matters relating to the performance of work by its employees working at the Gepps Cross DC.

(b) The evidence indicates that Metcash supervises and controls the work of employees of the Employers working at the Gepps Cross DC. Metcash, and not the Employers, is responsible for rostering, allocating duties and directing the employees in their day-to-day work including as to break times. Employees of the Employers attend training and team talks arranged by Metcash alongside Metcash's direct employees. Employees request leave through Metcash in addition to the Employers, and must notify Metcash if they will be absent due to illness. There is no evidence that the Employers, or any person on behalf of them, direct, supervise or control the employees supplied to Metcash while they are performing work at the Gepps Cross DC.

(c) Employees of the Employers use Metcash's equipment and not that of the Employers when working at Metcash's distribution centres.

(d) There is no evidence that the Employers are or will be subject to industry or professional standards or responsibilities in relation to the work of their employees supplied to Metcash.

• (e) The work undertaken by employees of the Employers at Metcash's distribution centres is covered by the classification descriptions of Storeworker grade 1 to Storeworker grade 3 in the Storage Services and Wholesale Award 2020.[6] This is not work of a specialist or professional nature.

• [9] Having regard to the considerations referred to in s 306E(7A), it is clear that the performance of work by the employees supplied by the Employers to Metcash is not and will not be for the provision of a service. I am satisfied that the Employers supply labour to Metcash.

• [10] 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 the order the SDA and UWU seek. Section 306E(2) indicates that the Commission is required to have regard to the matters listed in s 306E(8) in relation to which submissions have been made. No submissions were made by any party in relation to any of these matters. Accordingly, I am not required to have regard to those matters.

• [11] In the circumstances described, the Commission is required by s 306E of the FW Act to make the regulated labour hire arrangement order sought. I publish the order which is made together with this decision. The order sets out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 2 December 2024, consistent with s 306E(9)(e)(ii). No party submitted that the order should specify when they cease to be in force pursuant to s 306E(10). Accordingly, the order will not contain such a specification.

A Amin and D Collett for the Shop, Distributive and Allied Employees Association.

P Dugan, solicitor, and A Politis for Asset Personnel Pty Ltd.

N Walker for Fluid Recruitment Pty Ltd t/a Omni Recruit.

E Nelson, P Famularo and J Bortoli for Manpower Services (Australia) Pty Ltd.

M Mead and X Burton, solicitors, for Metcash Trading Limited.

Sydney by video link using Microsoft Teams (directions and report-back):

Shop, Distributive and Allied Employees Association and United Workers' Union: 29 October 2024.

Fluid Recruitment Pty Ltd t/a Omni Recruit: 16 October 2024.

Manpower Services (Australia) Pty Ltd: 15 October 2024.

1. [1]AE521025.
2. [2]R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.
3. [3] [2024] FWCFB 299.
4. [4]Ibid [8]-[17].
5. [5]Metcash Trading Limited South Australia Food & Liquor Enterprise Agreement 2023 [AE521025] clause 1.2(a)(iii).
6. [6]MA000084 clauses A.1 to A.3.

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