[2026] FWC 873

Fair Work Act 2009

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

Application by the Australasian Meat Industry Employees' Union re chicken deboning work at Bartter Enterprises' poultry processing facility

Application for a regulated labour hire arrangement order in respect of chicken deboning work performed at a poultry processing facility - whether enterprise agreement would apply if the regulated host were to employ the employees - whether the performance of work is for the provision of a service - whether fair and reasonable to make an order - order made.

[1] On 7 August 2025, the Australasian Meat Industry Employees' Union filed an application for a regulated labour hire arrangement order under s 306E of the Fair Work Act 2009 (Cth). The order sought by the AMIEU would, if made, apply to employees of J&T Trade Pty Ltd who primarily perform chicken deboning work in a poultry processing facility operated by Bartter Enterprises Pty Ltd in Beresfield, New South Wales (J&T Employees). The covered employment instrument in question is the Steggles Beresfield Site (Production & Distribution Employees) EA 2022-2026 (Agreement).

[2] Bartter opposes the 'same job same pay' orders sought by the AMIEU. Bartter contends that the application should be dismissed for three reasons. First, the Agreement would not apply to the J&T Employees even if Bartter were to employ them to perform the work in question. Secondly, the work performed by the J&T Employees is for the provision of a service, rather than the supply of labour. Thirdly, it is not fair and reasonable in all the circumstances to make the order.

[3] J&T also opposes the order sought by the AMIEU on the same grounds as Bartter.

[4] I conducted a hearing in relation to this matter on 18 and 19 December 2025. The AMIEU adduced evidence from Mr Jason Roe, Assistant Secretary of the AMIEU Newcastle, Northern, South Australian and Tasmanian Branch, Ms Sharlene McNamara, a Level 2 Process Worker at Bartter, Ms Kylee Shannon, an employee at Inghams in Tahmoor, New South Wales, Ms Lorna Watson, a Level 5 Process Worker at Bartter, and Mr Matthew Journeaux, National Secretary of the AMIEU. J&T adduced evidence from Mr Xiaojia Zhong, founder and sole director of J&T, Ms Jing Lin, Deboning Supervisor at J&T, and interpreters who translated the witness statements of Mr Zhong and Ms Lin from English to Chinese. Bartter adduced evidence from Mr Matthew Neasey, NSW Operations Manager, Mr Owen Burton, Site Manager at Bartter's poultry processing facility in Mareeba, Queensland, and Mr Troy Compton, Production Manager.

[5] In assessing the weight to be given to the witness statements filed and served by the AMIEU, I have had regard to the schedule of objections filed on behalf of Bartter and J&T in relation to that evidence.

• [6] The Agreement was approved by Commissioner P Ryan on 14 December 2022.[1]

• [7] In the decision approving the Agreement, Commissioner Ryan amended the Agreement by deleting Bartter from clause 5.1 of the Agreement. The Commissioner did so on the basis that Bartter was erroneously included within the scope of employers covered by the Agreement. Although Bartter is a related body corporate to the other employers covered by the Agreement, Commissioner Ryan was satisfied that Bartter did not employ any employees that would fall within the scope of coverage of the Agreement and did not issue a notice of employee representational rights.[2]

[8] Accordingly, Bartter was not covered by the Agreement at the time it was approved by the Commission.

• [9] The Agreement is expressed to "cover all employees as referred to in Clause 15 'Classifications' of this Agreement who are employed at the facility located at Hawthorne Street, Beresfield, NSW, 2322".[3]

[10] The classifications in clause 15 of the Agreement begin at Process Employee Level 1 and conclude at Process Employee Level 6. A Process Employee Level 2 is defined as an employee who "undertakes general duties that include ... typical tasks [such as]... mechanical deboning ..." A Process Employee Level 3 is defined as an employee who "undertakes general duties that include ... perform manual evisceration, trim neck skin, remove eviscera from birds..." A Process Employee Level 4 is defined to include an employee undertaking "general duties that include ... manual deboning, cut-up saw operation/band saw operation".

[11] Bartter is in the business of chicken and turkey food production. The poultry processing facility operated by Bartter contains a feed mill, a poultry abattoir, a cold storage facility, administrative offices, and a number of processing facilities, including the Primary Processing Plant (Top Plant).

[12] Deboning of chickens, specifically, deboning of whole chickens and other specialty cuts is a particular function that needs to be carried out at the poultry processing facility for some chicken products. Some of the deboning function can be performed by automation, but machines can only carry out deboning on particular sized birds and for particular cuts. Where machine deboning is not available, birds are manually deboned.

[13] The J&T Employees undertake manual chicken deboning work at the poultry processing facility. In addition, some of the J&T Employees undertake manual turkey deboning work for a week or two leading up to Christmas each year at the poultry processing facility. Otherwise, manual turkey deboning work is completed by Bartter's employees at the facility.

[14] I am satisfied on the evidence before the Commission that the J&T Employees perform manual deboning work at the poultry processing facility, with the result that they would fall within the classification of Process Employee Level 4 under the Agreement if the Agreement otherwise applied to them.

[15] In about the middle of 2023, the employment of all employees employed by Steggles Pty Ltd at the poultry processing facility was transferred to Bartter. The reason for the transfer was so that the employees were employed by the operating entity of the facility, rather than a standalone employer entity. Practically, there was no change for employees, as they continued in their same jobs they previously had with Steggles.

• [16] At the time of the transfer of employment from Steggles to Bartter, Steggles did not employ anyone to perform manual chicken deboning work.[4] All such work was outsourced to J&T.

[17] The transfer of employment from Steggles to Bartter in mid-2023 gave rise to a transfer of business within the meaning of s 311 of the Act because:

(a) the employment of the employees with Steggles was terminated;

(b) within three months of the terminations, the employees became employed by the new employer;

(c) the work the employees performed for Bartter was the same as the work they performed for Steggles; and

(d) Steggles and Bartter are associated entities.

[18] As a result of the operation of s 313(1)(a) of the Act, from the time the former employees of Steggles became employed by Bartter, the Agreement covered Bartter and those employees in relation to the "transferring work". The expression "transferring work" is defined in s 311(1)(c) of the Act as follows:

"the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer"

• [19] In CPSU v Northcott Supported Living Limited,[5] Justice Katzmann considered whether a transfer of business had taken place within the meaning of s 311 of the Act in circumstances where employees formerly employed by one company as "team leaders" were later employed by another, related, company, as "service coordinators". Her Honour held as follows in relation to the proper interpretation of s 311(1)(c) of the Act:

"162 ...The Explanatory Memorandum to the Fair Work Bill indicates that Parliament intended that a broad approach is to be taken to the meaning of "work" in the paragraph and that a narrow, technical construction is to be eschewed.

159 The Explanatory Memorandum at [1217]-[1218] relevantly states:

1217. Under paragraph 311(1)(c), the transferring employee must perform the same, or substantially the same, work for the new employer as she or he performed for the old employer. It is intended that this provision not be construed in a technical manner. It recognises that, in a transfer of business situation, there may well be some minor differences between the work performed for the respective employers. However, the requirement is satisfied where, overall, the work is the same or substantially the same - even if the precise duties of the employees, or the manner in which they are performed, have changed.

1218. Further, although paragraph 311(1)(c) is framed in terms of the work undertaken by an individual employee, in many instances a transfer of business occurs and a group of employees is engaged by the new employer. In this circumstance, it may be possible to categorise the work more generally. For example, if the old employer runs a supermarket and sells the supermarket to the new employer, the work might be characterised generally as retail work in a supermarket. The fact that an employee may have stacked shelves for the old employer but now works on the checkout for the new employer would not stop the employee from being a transferring employee.

160 In closing argument, counsel for the respondents accepted that s 311(1)(c) should be construed in a non-technical manner.

161 I conclude that, in the balance between the objects in s 309, the primary purpose of s 311 is to protect the terms and conditions of employment under the relevant industrial instruments and prevent their avoidance in the event of a transfer of business to "an associated entity". Having regard to that purpose, a narrow approach to the meaning of "work" is not called for."

162 "Work" in the context of s 311 refers to the nature or character of the employment, rather than the particular duties the employee was undertaking or will or may be called upon to undertake. It is abundantly clear from the Explanatory Memorandum that that was the legislative intention. This interpretation serves the legislative purpose. As a matter of principle, focusing on the substance of the work, rather than the particular duties that may or may not be required or performed at any particular time, would not unduly interfere with the interests of employers in running their enterprises efficiently.

163 It follows that I accept the CPSU's submissions that the work performed by a transferring employee for the new employer may be the same, or substantially the same, even if some new duties are undertaken for the new employer, some duties formerly undertaken are no longer required, or the composition of the working day has changed, as long as the nature or character of the work remains the same or substantially the same."

[20] In some circumstances, a transferring instrument may automatically cover non-transferring employees of the new employer. This is governed by a 314 of the Act. Among other things, s 314 requires the non-transferring employee to perform the transferring work and, at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work.

[21] In the present case, Bartter was covered by the Poultry Processing Award 2020 from the time that it began employing employees to work at the poultry processing facility. Accordingly, s 314 of the Act did not operate to cause the Agreement to cover Bartter and any non-transferring employees it employed after mid-2023.

• [22] The Commission may make an order under s 319(1)(b) of the Act that a transferable instrument that covers the new employer because of a provision of Part 2-8 of the Act covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer. On 21 October 2025, Vice President Gibian made such an order, at the request of the AMIEU, in relation to Bartter and its employment of non-transferring employees at the facility.[6] The order, which was not opposed by Bartter, is in the following terms:[7]

"Further to the decision in [2025] FWC 3159 and pursuant to s 319(1)(b) of the Fair Work Act 2009 (Cth) (the Act), the Commission orders that:

1. The Steggles Beresfield Site (Production & Distribution Employees) Enterprise Agreement 2022-2026 [AE518564] covers any non-transferring employee employed by Bartter Enterprises Pty Ltd who performs, or is likely to perform, transferring work being work covered by that Agreement.

1. In accordance with s.319(4) of the Act, this order shall take effect in respect of each non-transferring employee on and from 21October 2025 or the date from which they commence performing the transferring work for Bartter Enterprises Pty Ltd, whichever is the latter."

[23] The order made by Vice President Gibian does not resolve the issue as to whether the Agreement would apply to the J&T Employees even if Bartter were to employ them to perform the work in question. That is because both the order made by the Vice President and the power the Vice President had to make the order under s 319(1)(b) of the Act was limited to the performance of "transferring work".

• [24] Uncontested evidence before the Commission establishes that the manual chicken deboning work at the facility has been wholly contracted out since about 2008 or 2009.[8] Prior to that time, the manual chicken deboning work was done 'in-house' at the poultry processing facility.[9]

[25] At the time of the transfer of business from Steggles to Bartter in mid-2023, the manual chicken deboning work at the poultry processing facility was being undertaken by employees of J&T, not employees of Steggles. It follows, so Bartter and J&T contend, that manual chicken deboning work at the facility is not transferring work in relation to the transfer of business from Steggles to Bartter. As a consequence, they submit that any person employed by Bartter to undertake manual chicken deboning work at the facility, after the order was made by the Vice President on 25 October 2025, would not be covered by the Agreement. An enterprise agreement cannot apply to a person if it does not cover the person (s 52 of the Act).

• [26] In my view, categorising the relevant work as manual chicken deboning work adopts a narrow approach to the meaning of "work". Such an approach is to be eschewed. Instead, a broad approach should be taken to the meaning of "work" in s 311(1)(c) of the Act.[10]

• [27] As explained in paragraph [1218] of the Explanatory Memorandum to the Fair Work Bill, in many instances a transfer of business involves a group of employees being engaged by the new employer, which in those circumstances may make it appropriate to categorise the work more generally. The transfer of business from Steggles to Bartter in mid-2023 involved a group of employees. In fact, the group of employees comprised all employees who were employed by Steggles at the poultry processing facility.[11] The evidence does not reveal precisely how many employees were in the group at the time of the transfer but given that Bartter currently employs about 700 employees to work at the facility, it is clear that the group was large.

[28] The example given in paragraph [1218] of the Explanatory Memorandum to the Fair Work Bill is also instructive in relation to how the work undertaken by a group of employees may be characterised. The example concerns the sale of a supermarket to a new employer, and highlights that in circumstances where the transfer of business involved a group of employees, "it may be possible to categorise the work more generally". In these circumstances, the Explanatory Memorandum goes on to suggest that the "work might be characterised generally as retail work in a supermarket". By characterising the work in this broad manner, it would not matter that the hypothetical employee in the example performed different forms of retail work in a supermarket before and after the transfer of business. In particular, the example makes clear that "the fact that an employee may have stacked shelves for the old employer but now works on the checkout for the new employer would not stop the employee from being a transferring employee".

[29] Adopting a similar approach in the present case, I consider that the relevant work should be broadly categorised as work in the poultry processing facility, including receiving poultry, mechanical and manual deboning of chickens and turkeys, cutting and preparing poultry for sale, packaging poultry, and cleaning the facility so that work can continue on the next day or shift.

[30] The classifications in clause 15 of the Agreement are drafted in very broad terms. They refer to employees undertaking "general duties" with various degrees of responsibility and autonomy, and identify tasks that may be performed in various parts of the facility. Clause 14.1.3 of the Agreement confers on Bartter the right to "direct an employee to carry out such duties as are within the limits of the employee's skill, competence and training consistent with the classification structure of this Agreement". It follows, for example, that Bartter has the right to direct a Process Employee Level 4 who ordinarily uses a band saw to cut up poultry to manually debone chickens, once they have been trained to do so. The wide nature of the work covered by the classifications in clause 15 of the Agreement supports the broad categorisation of "work" within the meaning of s 311(1)(c) of the Act as work in the poultry processing facility.

• [31] I also consider that broadly categorising the relevant work in this case as work in the poultry processing facility is consistent with the primary purpose of s 311 of the Act, which is to "protect the terms and conditions of employment under the relevant industrial instruments and prevent their avoidance in the event of a transfer of business to 'an associated entity'".[12]

[32] Further, if the narrow approach suggested by Bartter and J&T were adopted, it would give rise to potentially anomalous outcomes. The following hypothetical examples demonstrate the types of anomalous outcomes that could result from a narrow categorisation of the work in question:

• (a) If Steggles employed five employees to hang live birds[13] and dismissed those employees for misconduct shortly before the transfer of business to Bartter in mid-2023, with an intention to employ new employees to hang live birds shortly after the transfer of business to Bartter, then the work of hanging live birds would not, according to the argument advanced by Bartter and J&T, constitute "transferring work" within the meaning of s 311(1)(c) of the Act because such work was not being undertaken by the transferring employees at the time of the transfer. The result would be that the Agreement would not apply to the new employees employed by Bartter to hang live birds shortly after the transfer of business.

(b) If Steggles employed a Process Employee Level 3 under the Agreement and at different times instructed the employee to perform work weighing live birds or performing manual eviscerations, but for the month leading up to and including the transfer of business only required the employee to weigh live birds, then the work of performing manual eviscerations (assuming it was not being done by other transferring employees at the time of the transfer) would not, according to the argument advanced by Bartter and J&T, constitute "transferring work" within the meaning of s 311(1)(c) of the Act because such work was not being undertaken by the transferring employees at the time of the transfer. The result would be that the Agreement would not apply to any employee engaged by Bartter after the transfer of business to perform manual eviscerations.

[33] The nature or character of work at the poultry processing facility remained the same, or substantially the same, prior to the transfer of business from Steggles to Bartter as it did after the transfer. Such work included the manual deboning of chickens performed by the J&T Employees at the poultry processing facility.

[34] For these reasons, I reject the contention advanced by Bartter and J&T that the Agreement would not apply to the J&T Employees even if Bartter were to employ them to perform the manual chicken deboning work in question. This is one of the mandatory requirements that must be satisfied for a regulated labour hire arrangement order to be made (s 306E(1)(b) of the Act). It has been met to my satisfaction in this case.

• [35] The purpose of ss 306E(1A) and (7A) of the Act is to exclude from the operation of orders made under Part 2-7A instances where work is performed by employees of contractors that provide services beyond the mere supply of labour.[14] Section 306E(1A) seeks to ascertain the purpose of the performance of work by the regulated employees.[15] Section 306E(7A) gives some context and content to the types of considerations which will bear on whether the purpose of the performance of work by the regulated employees is to provide a service or, alternatively, the supply of labour.[16]

[36] Having considered all the evidence before the Commission, I am comfortably satisfied that the purpose of the performance of manual chicken deboning work by the J&T Employees at the poultry processing facility is not for the provision of a service. In reaching this evaluative assessment, I have had regard to the matters in s 306E(7A) of the Act.

[37] In 2015, Mr Zhong founded J&T's business. J&T recruits employees by using third party recruitment agents who specialise in finding workers for the poultry processing industry, particularly employees with skill and experience in the manual deboning of chickens. J&T enters into contracts with businesses such as Bartter that operate poultry processing facilities to provide processing services, primarily manual chicken deboning.

[38] J&T is responsible for paying the J&T Employees their wages and entitlements. J&T uses a payroll provider that is controlled by Bartter.

Work undertaken by the J&T Employees at the poultry processing facility

[39] Poultry is delivered, slaughtered and processed at the Top Plant within the facility. The processing sequence for chicken in the Top Plant is generally as follows:

(a) chickens are slaughtered, defeathered, and eviscerated;

(b) after evisceration, chicken carcasses are cooled in the chillers;

(c) once cooled, chicken carcasses are then allocated for whole bird packing or broken down into pieces and fillets either partially or completely by machine, with the more speciality cuts done completely by hand; and

(d) chicken is then allocated to a packing area, to be turned into a final product.

[40] The processing sequence for turkey at the Top Plant is the same as that described above for chicken. Once cooled, all turkey carcasses are processed and packed manually in the Turkey Plant.

[41] Most poultry processing work at the facility is performed by Bartter employees or labour hire workers. In order to efficiently process certain speciality chicken cuts, Bartter engages J&T to perform most of the manual chicken deboning that cannot be automated.

[42] J&T currently has about 50 employees working at the poultry processing facility, including one manager who reports to Mr Zhong and two supervisors who report directly to the manager. Typically, J&T rosters about 30 J&T Employees to work the day shift and about 20 J&T Employees to work the afternoon shift each day at the facility. Day shift starts at 6am and finishes at 2pm. Afternoon shift starts at 2pm and finishes at 9pm.

• [43] The contract between J&T and Bartter provides for Bartter to pay J&T by reference to the quantity (weight) of chicken meat deboned by the J&T Employees, not by reference to the hours or time worked by the J&T Employees.[17]

[44] The J&T Employees undertake manual chicken deboning work in two areas of the facility:

(b) the Charlie Girl Room, which is an enclosed area off the Tray Pack Room.

• [45] J&T has a contractual right to occupy these parts of the poultry processing facility to undertake the chicken deboning work.[18]

• [46] In the Long Room, the J&T Employees mainly complete whole bird, leg, thigh and Maryland deboning work. Mr Neasay exhibited a confidential video of the J&T Employees working in the Long Room. It shows some of the J&T Employees working on a long table, using sharp knives to manually cut the bones out of pieces of chicken. The deboned chicken meat is placed by the J&T Employees into blue crates, which are removed by employees of Bartter once the crates are filled with deboned chicken. There are no employees of Bartter cutting chicken in the Long Room. The team of eight Bartter employees in the Long Room also weigh the crates of chicken cut by the J&T Employees and perform some quality assurance checks on the chicken products.[19] The Bartter employees do not direct the J&T Employees on their deboning work. Instructions are given to the J&T Employees in the Long Room by the J&T supervisor.

[47] In the Charlie Girl Room, the J&T Employees mainly complete custom portion cuts and whole bird deboning. Mr Neasay exhibited a confidential video of the J&T Employees working in the Charlie Girl Room. It shows some of the J&T Employees working next to benches along the outside of the room, where they place a whole chicken onto a cone which is situated at the top of a stand and then use a sharp knife to manually cut pieces of chicken away from the main body of the chicken. The deboned chicken meat is placed by the J&T Employees into blue crates, which are removed by employees of Bartter once the crates are filled with deboned chicken. Once a J&T Employee has finished cutting meat from the body of the chicken, the remaining carcass is thrown by the J&T Employee into a large crate covered in pink plastic. Bartter employees are tasked with moving buckets of the whole chickens onto the bench next to each J&T Employee, so they have a ready supply of whole chickens to debone. There are no employees of Bartter cutting chicken in the Charlie Girl Room. The Bartter employees do not direct the J&T Employees on their deboning work. Instructions are given to the J&T Employees in the Charlie Girl Room by the J&T supervisor.

[48] It is useful to compare the manual chicken deboning work being undertaken by the J&T Employees in the Long Room and the Charlie Girl Room with trimming work being undertaken by Bartter employees at the facility. A necessary part of machine deboning involves Bartter employees checking deboned meat and 'trimming' unwanted material such as sinew from the meat. All machine boned meat needs to be trimmed. The trimming work is undertaken with a knife or scissors. The trimming is only completed manually because machines cannot do it. The J&T Employees also undertake 'trimming' on the cut they are completing.

[49] Mr Neasey exhibited a confidential video of Bartter employees undertaking trimming work. It shows employees picking up pieces of chicken from a bench and using a pair of scissors to cut sinew and other unwanted material from the pieces of chicken. The trimmed chicken piece is then placed on to a conveyor belt to transport it to another part of the facility.

• [50] About a year ago, a few Bartter employees commenced undertaking manual chicken deboning work at the facility. This is undertaken in a different area of the facility to where the J&T Employees work. The few Bartter employees undertake this manual chicken deboning work because the barrel (top half of the chicken) often releases from the cone device from which it is being held while various machines automatically remove meat from the chicken. The Bartter employees then manually debone the chicken breast and tenderloins.[20] However, I accept Mr Neasey's evidence that the cuts performed by these few Bartter employees performing manual chicken deboning work are less complex than those performed by the J&T Employees in their manual deboning of chicken at the facility.[21]

[51] It is clear from the videos and other evidence to which I have referred that the J&T Employees who are undertaking manual chicken deboning and the Bartter employees who are undertaking trimming work or manual chicken deboning work are cutting chicken, using a knife or scissors, as part of the poultry process work being undertaken at the facility. It is also clear that the manual chicken deboning work undertaken by the J&T Employees requires more skill than the trimming work and manual chicken deboning work undertaken by Bartter's employees.

• [52] I accept the evidence adduced by Bartter and J&T to the effect that manual chicken deboning work is more complex and requires a higher level of skill than manual turkey deboning work. This is essentially because turkeys are much larger than chickens and the day-to-day cuts of turkeys are simpler than for chickens. Deboning a turkey does not require the same level of speed and precision as deboning a chicken. A turkey has relatively large bones, which a knife does not dig into easily. With a chicken, if a deboner digs in with their knife, they will likely cut the bone. In contrast, the larger bones of the turkey mean that the deboner's knife usually just runs along the bone. I prefer this evidence about the differences between chicken deboning and turkey deboning over the evidence given by Ms Shannon, a manual poultry deboner employed by Inghams who has never worked at the facility. Ms Shannon gave evidence in her witness statement that deboning a chicken "can be slightly more fiddly because it is a smaller animal".[22]

[53] Bartter employees who manually debone turkey at the facility are classified under the Agreement as a Process Worker Level 4.

[54] I will now address the mandatory matters that must be considered under s 306E(7A) of the Act.

• [55] There is a degree of overlap between s 306E(7A)(a), (b) and (c) of the Act.[23] Although I will deal with each of these matters separately below, I have considered each of the matters discussed as part of the overall assessment I am required to make irrespective of the heading under which that consideration appears.

Involvement of J&T in matters relating to the performance of work (s 306E(7A)(a))

[56] Each day, Bartter notifies J&T the number and types of chicken cuts that are required to be produced that day. This information is set out in a 'daily direction sheet' prepared by the Bartter planning department and issued each morning before the processing shift begins. The J&T supervisor is then responsible for ensuring that amount of product is produced. Bartter provides the raw product, which is then deboned by the J&T Employees. Bartter does not give directions to the J&T Employees as to how the manual chicken deboning work is to be performed.

[57] Bartter is not involved in, or responsible for, the performance or disciplinary management of the J&T Employees. The contract between J&T and Bartter requires J&T to adhere to Bartter's disciplinary guidelines. Although the contract between J&T and Bartter does not oblige the J&T Employees to comply with the disciplinary guidelines, the site induction for the facility requires a similar code of conduct to be agreed as a condition of entry. The disciplinary guidelines and code of conduct are consistent with a typical behavioural requirement for any person attending another's worksite. They prohibit behaviours on site such as bullying and harassment, gambling, and bringing drugs or alcohol to site.

[58] J&T is responsible for providing and maintaining the equipment the J&T Employees use, including knives, mesh gloves, deboning cones, and knife sharpening tools.

[59] Bartter provides a storage area for J&T to store their equipment at the poultry processing facility.

[60] J&T is permitted to use the Bartter training rooms at the Top Plant to train their workers. All training is delivered by J&T. Bartter does not deliver any training to the J&T Employees.

[61] Bartter requires J&T to comply with its extensive policies and procedures, primarily relating to site-specific work, health and safety matters. Those policies do not cover how the chicken deboning work is to be undertaken by the J&T Employees. J&T has its own policies and procedures in relation to how the work is to be performed. I accept Mr Zhong's evidence that J&T developed those policies but sought input from Bartter before they were finalised. Bartter's baseline policies, such as work health and safety, and bullying and harassment, are explained to the J&T Employees prior to the commencement of work at the poultry processing facility. This is a typical feature of a workplace and arises from applicable duties under work health and safety law. It does not carry much weight in the assessment of whether the performance of work by the J&T Employees at the facility is for the provision of a service, rather than the supply of labour.

[62] The evidence establishes that Bartter determines where, how much and what type of manual chicken deboning work is to be performed by the J&T Employees each day. J&T determines how many of its employees will undertake the work and how such work will be performed. J&T is also responsible for the organisation, supervision and performance management of the J&T Employees who do the work.

Extent to which J&T directs, supervises or controls the J&T Employees (s 306E(7A)(b))

[63] Bartter does not direct, supervise or control when or how the J&T Employees perform work. Bartter does not assign tasks to individual J&T Employees. That is the role of the J&T supervisors.

[64] Bartter is not involved in the rostering of the J&T Employees. Bartter never requests that J&T provide a specific number of workers, nor does Bartter receive copies of J&T rosters.

[65] Provided the Top Plant is open (i.e. not undergoing sanitation cleaning), it is up to J&T to decide when the J&T Employees attend the facility, within the window of time determined by Bartter, to undertake the manual chicken deboning work. Bartter does provide J&T with an indication of the estimated volume of work and expected processing times so that J&T can manage its workforce effectively.

[66] As to reviewing the quality of work, Bartter provides feedback to J&T about the quality of the product in two ways. First, if a customer provides feedback about a product, Bartter will raise the feedback with the J&T supervisor. Secondly, if the chicken deboned by the J&T Employees goes for secondary processing, for example, to Tray Packing and there is a weight discrepancy or bones in the product, then the Bartter supervisor will speak to the J&T supervisor. Bartter does not provide feedback to individual J&T Employees about the quality of their work.

• [67] Bartter directs the J&T Employees to a particular area within the facility to perform work and provides a list of the product that Bartter requires the J&T Employees to debone each day. Bartter also weighs the chicken meat deboned by each J&T Employee. In addition, a Bartter supervisor oversees the operation of the fillet line where the J&T Employees work. The Bartter supervisor coordinates all the chickens to be processed, manages the orders and is in charge of work health and safety. Bartter's managers also conduct 'walk throughs' of the fillet line where the J&T Employees work to check the quality and method of deboning. This includes checking the amount of meat that has been deboned from a chicken, assessing the wastage from the chicken carcass, and ensuring that there is no lost product on the chicken carcass.[24]

Extent to which the J&T Employees use systems, plant or structure of J&T (s 306E(7A)(c))

• [68] J&T supplies knives, mesh gloves, cones and a knife sharpener to the J&T Employees so that they can perform chicken deboning work at the facility. However, as Deputy President Butler observed in a similar case involving manual chicken deboners working in a poultry processing facility operated by Bartter in Mareeba, Queensland, I do not consider such tools and equipment to constitute plant or structures.[25]

[69] Bartter provides J&T with dedicated areas for the J&T Employees to perform their work at the facility. In those areas, the J&T Employees work at benches provided by Bartter and place the chicken meat they have deboned into crates supplied by Bartter.

[70] The J&T Employees have their own storage cage at the poultry processing facility to keep their tools and equipment after each shift. The Bartter employees have a separate storage cage to keep their equipment. The J&T Employees are not allowed to keep their tools and equipment in the Bartter storage cage.

[71] Despite there being a knife sharpening machine at the poultry processing facility, it is not available for the J&T Employees to use. J&T supplies its own knife sharpener to the J&T Employees. Bartter does not sharpen the knives of the J&T Employees.

[72] The J&T Employees use the same lunchroom and amenities at the facility as Bartter's employees.

Extent to which J&T or another person is subject to industry or professional standards or responsibilities in relation to the J&T Employees (s 306E(7A)(d))

[73] Bartter is in the business of food production for human consumption. Bartter is therefore subject to strict health and safety regulations.

[74] The processing work performed at the facility is regulated by the Australia New Zealand Food Standards Code. Chapter 4 of the Food Standards Code deals with Primary Production Standards in Australia. Standard 4.4.4 is entitled, 'Primary Production and Processing Standard for Poultry Meat.'

[75] The processing work performed at Top Plant is regulated by Standard 4.2.2 of the Food Standards Code. This includes that:

(a) Bartter's workers are poultry handlers who must exercise personal hygiene and health practices that do not make the poultry unsuitable: - cl 6(1)

(b) Bartter has a duty to keep all premises, equipment, and transport vehicles effectively cleaned, sanitised, and well-maintained to prevent contamination and ensure poultry remains safe and suitable; - cl 9

(c) Bartter is a 'poultry processor' who must operate according to a food management statement that sets out how Division 3 of the Food Standards Code is being complied with; - cl 12(4) and

(d) Bartter has numerous duties in relation to the examination of its processing operations to identify potential hazards and implement control measures to address those hazards, as well as in relation to the storage, handling and disposal of waste (including "unsuitable" poultry and unsuitable poultry product, sewage, waste water and garbage): - cl. 12 and cl. 15.

[76] I do not consider that this regulation is particularly indicative one way or another as to the character of the engagement being for services or for labour. However, I do accept that the regulation provides relevant context in understanding why Bartter imposes various contractual obligations on J&T.

Extent to which the work is of a specialist or expert nature (s 306E(7A)(e))

• [77] The fact that witnesses such as Ms Lin gave uncontested evidence that manual chicken deboning is "a highly specialised process requiring significant skill and precision"[26] does not necessarily mean that the work is of a specialist or expert nature. I accept that is Ms Lin's opinion and I will give it appropriate weight in my assessment of all the evidence.

[78] I am satisfied on the evidence before the Commission that the manual chicken deboning work undertaken by the J&T Employees at the poultry processing facility is skilled work, particularly insofar as it requires the J&T Employees to operate with speed and precision when they are manually deboning chickens.

• [79] I accept that the manual chicken deboning work performed by the J&T Employees at the poultry processing facility is of a specialist or expert nature to a moderate degree. However, I consider that the weight to be accorded to this matter should is lessened by the following factors:[27]

(a) chicken deboning work is an integral part of the processing of poultry that is undertaken on a very regular basis at the facility;

(b) the manual chicken and turkey deboning work and trimming work performed by Bartter's employees at the facility is similar in nature to the manual chicken deboning work undertaken by the J&T Employees at the facility, but requires less skill for the reasons explained above; and

(c) the specialist/expert nature of the work undertaken by the J&T Employees is not such that it would affect the capacity of Bartter to control or supervise such work.

Conclusion on provision of a service v supply of labour

[80] Having regard to all the circumstances, I am satisfied, in accordance with s 306E(1A) of the Act, that "the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A)". In my assessment, the purpose of the performance of work by the J&T Employees at the facility is essentially for the supply of skilled labour, in the form of manual chicken deboning work. I accept there are some matters that weigh in support of a conclusion that the work undertaken by the J&T Employees at the poultry processing facility is for the provision of a service, including the fact that J&T organises, trains, directs and supervises the skilled work performed by the J&T Employees. However, apart from minor tools such as knives and mesh gloves, J&T does not supply any significant plant, equipment or structures to enable the work to be done. Further, the work undertaken by the J&T Employees at the facility is an integral part of poultry processing. The J&T Employees perform the manual chicken deboning work at Bartter's poultry processing facility, using Bartter's benches, crates etc, in an integrated way with Bartter's employees. Bartter's employees supply chickens or chicken pieces to the J&T Employees and take away the deboned chicken meat once it has been cut by the J&T Employees. Work of a similar, albeit less-skilled, nature to that undertaken by the J&T Employees at the poultry processing facility is performed by employees of Bartter who perform chicken and turkey deboning, as well as trimming.

• [81] Section 306E(2) requires that the Commission not make an order if satisfied it is not fair and reasonable to do so "having regard to any matters in subsection (8) in relation to which submissions are made". Neither Bartter nor J&T made any submissions about any matters in s 306E(8) of the Act. In the absence of any such submissions, I do not need to have regard to those matters.[28]

[82] Bartter and J&T submit that the deboning function at the poultry processing facility has historically been a skilled function and it is a high bar to satisfy the training requirements to undertake such work. Mr Compton was employed at the poultry processing facility from 1994 and remained employed there when the deboning function was contracted out shortly after 2008 or 2009. Mr Compton described in his evidence, which I accept, how J&T has managed to improve that function and increased the efficiency of chicken deboning work to a significant extent.

[83] Bartter submits that where the existing arrangements are facilitating work being carried out in the most efficient manner seen by Bartter. An order that risks jeopardising that is neither fair nor reasonable, particularly where the evidence suggests it is in relation to work that the direct workforce did not perform to the level being achieved now when it was in-house.

[84] Bartter also submits that it is reasonable to expect that making a regulated labour hire arrangement order in relation to manual chicken deboning work undertaken by the J&T Employees at the facility may threaten the viability of J&T's business model. In this regard, Bartter relies on the evidence of Mr Burton, Site Manager at Mareeba, as to what happened when a regulated labour hire arrangement order was made in relation to manual chicken deboning work at Bartter's facility in Mareeba.

• [85] My broad value judgment is that I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order with respect to the J&T Employees who work at the poultry processing facility. I have reached this conclusion after having regard to all the circumstances, including the evidence before the Commission and the submissions made by each of Bartter, J&T and the AMIEU. I have balanced the various interests that would be affected by an order.[29]

• [86] I accept that the existing arrangements facilitate manual chicken deboning work being carried out in the most efficient manner by Bartter. However, if a regulated labour hire arrangement order is made, I consider it more likely than not that Bartter will continue to be able to have manual chicken deboning work at the poultry processing facility performed in much the same way as it is currently. The principal reason the work is being performed efficiently now is because it is being undertaken by skilled workers (mostly from China), who are properly trained and supervised. There is no reason why that cannot continue. It could happen in one of two ways. Either Bartter continues to contract with J&T to supply the J&T Employees to the facility to perform the manual chicken deboning work, albeit in circumstances where a regulated labour hire arrangement order ensures that the J&T Employees are paid no less than the full rate of pay that would be payable if the Agreement applied to them. Alternatively, as happened at the Mareeba site after a regulated labour hire arrangement order was made in mid-2025, J&T may advise Bartter that it cannot afford to pay the rates payable under the Agreement, in which case Bartter may decide to make offers of employment to the J&T Employees, potentially on the basis of piece rates (as happened at Mareeba) with an assurance that the employees will not be paid less than the full rate of pay payable under the Agreement.[30] In either case, Bartter could seek to employ or otherwise engage the same supervisors currently supplied by J&T to supervise and train the manual chicken deboners at the facility.

[87] No submissions were made by any party about the quantum of any increase in costs that would or might be incurred by Bartter or J&T if a regulated labour hire arrangement order were made. Similarly, no submissions were made as to the quantum of any increase in remuneration that might be enjoyed by the J&T Employees if a regulated labour hire arrangement order were made.

[88] If, as happened at Mareeba, the making of a regulated labour hire arrangement order means that J&T is unable to afford to pay the J&T Employees the applicable rate of pay under the Agreement, then J&T is likely to lose the benefit of its contract with Bartter to supply manual chicken deboners to the poultry processing facility. This would be unfair to J&T and I have taken this into account.

[89] The converse of the scenario set out in the previous paragraph is that the J&T Employees would become entitled to a higher remuneration than they currently enjoy with J&T. This would be to the benefit of the J&T Employees. From their perspective, it would be fair and reasonable to be paid no less than the Process Employee Level 4 rate of pay under the Agreement, which is payable to manual deboners at the Top Plant, including the Bartter employees who manually debone turkeys, which requires less skill than manually deboning chickens.

• [90] Section 306E(1A) of the Act prevents the Commission from making a regulated labour hire arrangement order unless the Commission reaches a positive state of satisfaction that the performance of work by the employees supplied to the regulated host is not, or will not be, for the provision of a service, rather than for the supply of labour.[31] For the reasons explained above, I have reached this state of satisfaction. I am satisfied that the performance of the manual chicken deboning work by the J&T Employees at the poultry processing facility is not for the provision of a service.

[91] I am satisfied that it is fair and reasonable in all the circumstances to make the order.

[92] I am also satisfied that the other applicable requirements for the making of an order under s 306E have been met.

[93] I will publish an order concurrently with this decision.

B Swan, National Industrial Officer of the Australian Meat Industry Employees Union, for the Applicant

M Minucci, of counsel, for Bartter Enterprises Pty Ltd and J&T Trade Pty Ltd

P Willink, of counsel, for Bartter Enterprises Pty Ltd

[1] [2022] FWCA 4404

[4] Hearing Book at pp 568[10] & 573[39]

[5] [2021] FCA 8

[6] Application by the Australasian Meat Industry Employees Union in relation to the Steggles Beresfield Site (Production & Distribution) EA 2022-2026 [2025] FWC 3159

[7] PR792856

[10] CPSU v Northcott Supported Living Limited [2021] FCA 8 at [158]

[12] CPSU v Northcott Supported Living Limited [2021] FCA 8 at [161]

[14] BHP Coal Pty Ltd v Mining and Energy Union [2025] FCAFC 194 at [36]

[15] BHP Coal Pty Ltd v Mining and Energy Union [2025] FCAFC 194 at [39] & [55]

[23] Application by the Mining and Energy Union re Goonyella [2025] FWCFB 134 at [159]

[25] Application by the Australasian Meat Industry Employees Union [2025] FWC 2115 at [113]

[27] Application by the Mining and Energy Union re Goonyella [2025] FWCFB 134 at [262]- [264]

[28] Application by the Mining and Energy Union re Goonyella [2025] FWCFB 134 at [269]

[29] Application by the Mining and Energy Union re Goonyella [2025] FWCFB 134 at [275]

[30] Hearing Book at pp 635-6 [6]-[10]

[31] BHP Coal Pty Ltd v Mining and Energy Union [2025] FCAFC 194 at [35]

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