Fair Work Act 2009

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

Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd

Application for regulated labour hire arrangement orders in respect of Skilled Workforce Solutions (NSW) Pty Ltd in relation to work performed at the Bengalla Mining Operations for the Bengalla Mining Company Pty Ltd - Order previously made by the Full Bench quashed - New order made by consent.

[1] On 13 March 2025, the Full Bench made a regulated labour hire arrangement order under s 306E of the Fair Work Act 2009 (Cth) (the FW Act) with respect to employees of Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) supplied to perform work for the Bengalla Mining Co Pty Ltd (Bengalla) at the Bengalla Mining Operations near Muswellbrook in New South Wales.[1] The order was expressed to come into force on 13 April 2025.[2]

[2] On 4 April 2025, Skilled commenced proceedings in the Federal Court of Australia seeking judicial review of the decision of the Full Bench. Skilled sought that a writ of certiorari be issued quashing the regulated labour hire arrangement order made with respect to it and its employees in matter number NSD496/2025. In ground 1 of its application, Skilled contended that the Full Bench erred in concluding that its exercise of jurisdiction to make a regulated labour hire arrangement order did not result in an acquisition of property other than on just terms. Skilled did not ultimately press that ground. The remaining two grounds advanced by Skilled concerned, in substance, the form of the order made by the Full Bench.

[3] On 19 December 2025, the Full Court of the Federal Court published its decision in Skilled Workforce Solutions (NSW) Pty Ltd v Mining and Energy Union [2025] FCAFC 195 (Rangiah, Raper and Shariff JJ). With respect to matter number NSD496/2025, the Full Court ordered that:

3. A writ of certiorari be issued quashing the regulated labour hire arrangement order (LH200021 PR785173) made by the Full Bench of the Fair Work Commission on 13 March 2025 in proceedings C2024/4712.

4. A writ of mandamus be issued to compel the Fair Work Commission to hear and determine according to law the application in proceedings C2024/4712.

[4] In summary, the Full Court concluded that the "regulated employees" covered by the regulated labour hire arrangement order made by the Full Bench with respect to Skilled were specified in a manner that was not confined to the "regulated employees" subject of the state of satisfaction formed for the purposes of s 306E(1)(a) of the FW Act.[3] Most instructively, the Full Court said (at [132]):

In relation to the Bengalla RLHA Order, the Commission fell into the same error. There, the Full Bench of the Commission was satisfied for the purpose of s 306E(1)(a) that, relevantly, Skilled supplies employees that it employs to "perform work for Bengalla at the Bengalla Mine involving engagement in production work associated with the mining and extraction of coal and its transport to the Coal Handling and Preparation Plant": BD [74(a)]. Again, this was the class or cohort of employees that were the "regulated employees" for the purpose of s 306E(5) and who were required to be specified in the RLHA Order in accordance with s 306E(9)(c). As in the Mt Arthur case, the Commission appears to have considered that it could make an RLHA Order beyond the scope of the "regulated employees" in respect of whom it had reached a state of satisfaction under s 306E(1)(a). In doing so, the Commission exceeded its power for the reasons stated above.

[5] As such, the error identified by the Full Court concerned the description in the order of the class or cohort of employees that were the "regulated employees" required to be specified by s 306E(9)(c).

[6] We observe that, in the proceedings before the Full Bench, there was a dispute as to whether employees of Skilled performing work for Bengalla as "wash technicians" were employees to whom the Bengalla Enterprise Agreement 2022 (the Bengalla Agreement) would apply if they were employed by Bengalla to perform the same kind of work for the purposes of s 306E(1)(b). The Full Bench concluded that the Bengalla Agreement would apply to the wash technicians if they were employed by Bengalla.[4] No challenge was, or is, made to that conclusion. Otherwise, it was accepted that the Bengalla Agreement would apply to all employees supplied by Skilled if they were employed by Bengalla to perform the same kind of work and that all the employees supplied by Skilled could be covered by a regulated labour hire arrangement order. The difficulty with the order as made was that it potentially extended beyond that class or cohort of those regulated employees.

[7] To comply with the writ of mandamus made by the Full Court, the application in matter number C2024/4712 with respect to Skilled was listed for a case management conference on 23 December 2025 before Vice President Gibian. The Vice President proposed that the application be resolved by the Full Bench making a new order in the same terms as that made on 13 March 2025 other than that the regulated employees covered by the order would be specified in paragraph A.3 in the following terms:

A.3 The regulated employees covered by the order are employees of Skilled Workforce Solutions (NSW) Pty Ltd who perform production work associated with the mining and extraction of coal and its transport to the Coal Handling and Preparation Plant (including wash technicians) (the regulated employees).

[8] After an adjournment to permit instructions to be obtained, counsel for the Mining and Energy Union, Skilled and Bengalla indicated that each of their respective clients had no objection to an order being made in those terms.

[9] Based on the findings made by the Full Bench in its earlier decision, which were not challenged or disturbed in the Federal Court proceedings, we are satisfied in relation to each of the matters set out in s 306E(1), (1A) and (2). To be clear, in relation to s 306E(2), we are not satisfied that it is not fair and reasonable in all the circumstances to make the order. The consequence is that the Full Bench is required, by s 306E(1), to make a regulated labour hire arrangement order.

[10] We are satisfied that form of the order to which the parties consent is appropriate. The description of the regulated employees covered by the order picks up the description of the employees supplied by Skilled to perform work for Bengalla provided in paragraph [74](a) of the Full Bench decision in a manner that reflects the guidance provided in paragraph [132] of the Full Court decision. For the avoidance of doubt, we have clarified that the specification of the employees covered by the order as being employees who "perform production work associated with the mining and extraction of coal and its transport to the Coal Handling and Preparation Plant" is intended to encompass the wash technicians considered in the Full Bench decision. As we have observed, no party objected to an order being made in those terms.

[11] The Full Bench will publish the order together with this decision, setting out the matters specified in s 306E(9) of the FW Act. Section 306E(9)(e)(ii) provides that the day an order will come into force must be the day the order is made or a later day. In circumstances in which a regulated labour hire order was in existence with respect to employees supplied by Skilled to Bengalla from 13 April 2025 until it was quashed on 19 December 2025, we are satisfied that the new order should come into force on the day it is made. No party submitted that the order should specify when it will cease to be in force for the purposes of s 306E(10). Accordingly, the order will also not contain such a specification.

R Reitano, of counsel, with K Endacott for the Mining and Energy Union.

J McLean, of counsel, instructed by Herbert Smith Freehills for Bengalla Mining Company Pty Ltd.

L Howard, of counsel, instructed by Kingston Reid for Skilled Workforce Solutions (NSW) Pty Ltd.

[1] Mining and Energy Union v Bengalla Mining Co Pty Ltd [2025] FWCFB 53; (2025) 342 IR 132.

[3] Skilled Workforce Solutions (NSW) Pty Ltd v Mining and Energy Union [2025] FCAFC 195 at [114]- [117] and [132].

[4] Mining and Energy Union v Bengalla Mining Co Pty Ltd [2025] FWCFB 53; (2025) 342 IR 132 at [128]- [133].

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