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 National Disability Insurance Agency.

1. Steven Galt 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 National Disability Insurance Agency (NDIA) as the regulated host and Randstad Pty Ltd as the labour hire employer (Randstad). The applicant is the proposed regulated employee who performs work in a Planner Support role within the Learning and Development team at the NDIA. The host employment is the National Disability Insurance Agency Enterprise Agreement 2024-2027[1] (Agreement).

• [2] In his application, Mr Galt describes how Randstad supplies his labour for the performance of work to the NDIA as follows:

Randstad Pty Ltd, as the labour hire employer, supplies the applicant to the National Disability Insurance Agency to perform duties within the Learning and Development / Operations teams. These duties include booking and scheduling appointments with participants and their supporting networks, preparing learning and development materials, providing administrative support to internal training functions, and participating in the performance and development processes with the host employer. The applicant performs the same or substantially similar work as directly[‑]employed APS4 NDIA staff, under the same supervision using the same systems.

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

The performance of the work is not, and has never been, for the provision of a service by Randstad to the NDIA. Instead, Randstad supplies labour - specifically the applicant - to the NDIA, where the work is performed directly under the direction, control and supervision of NDIA staff.

• Is integrated into NDIA's internal teams and organisational structure
• Reports directly to NDIA supervisors and managers
• Uses NDIA equipment, systems (including CRM, Panda, Pace and Outlook) and work instructions
• Participates in the NDIA's performance and development processes
• Contributes to internal [N]DIA objectives alongside directly employed[] APS Staff

Randstad does not direct or manage the day to day work performed. The relationship is clearly one of labour hire, not the delivery of an external or discrete service.

• [4] Randstad and the NDIA have each filed a Form F86A in which they have indicated that they do not object to the proposed order being made. However, both parties raised other potential issues in their responses. Randstad stated that it could not comment on the work performed by the applicant as it does not direct or manage his work, and from the information available to it, it is not satisfied that the applicant is currently paid less than the Agreement rate for the type of work being performed. In their response, the NDIA stated that it does not oppose the proposed order as it only seeks to cover the applicant.

• [5] Nonetheless, during the directions hearing on 6 May 2025, Randstad and the NDIA each confirmed that they do not contest any of the factual assertions in the application. Further, Mr Galt and Randstad each confirmed that they do not oppose the proposed order from the NDIA and its 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.

• [6] I am satisfied that Mr Galt 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, Mr Galt, to perform work for the NDIA.

(b) The Agreement would apply to Mr Galt if he was employed directly by the NDIA to perform work in a Planner Support role within the Learning and Development team.

• [7] I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by Mr Galt 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 Mr Galt's work, and does not assign or manage his work, and that the NDIA (not Randstad) provides all the work instructions, equipment, training and facilities required for Mr Galt to complete his work.

• [8] 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 Mr Galt. 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.

• [9] In those circumstances, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by Mr Galt. 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, consistent with s 306E(9)(e)(ii), will be 20 May 2025.

L Howard, counsel, instructed by M Kelleher, solicitor.

1. [1]AE524165.
2. [2] [2024] FWCFB 299, 333 IR 249.

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