//
[10]
[2024] FWCFB 412
General information, not legal advice.
Fair Work Commission (Full Bench)
2024-11-01
Original judgment source is linked above.
s.306E - Application for a regulated labour hire arrangement order
Application by the Mining and Energy Union re Poitrel Mine
Application for a regulated labour hire arrangement order in respect of WorkPac Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed for Stanmore SMC Pty Ltd at the Poitrel Mine - order not opposed by any party - application determined on the papers - regulated labour hire arrangement order made.
[1] The Mining and Energy Union (MEU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to Stanmore SMC Pty Ltd (Stanmore) as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (together, WorkPac) as employers. The application was made on 24 June 2024. The proposed order would apply in respect of employees who perform work at a black coal mine operated by Stanmore known as the Poitrel Mine (Mine).
[2] The MEU filed submissions and evidence in support of the application on 19 July 2024. On 20 September 2024, the Commission was advised that Stanmore and WorkPac do not oppose the application and do not wish to file evidence or make any submissions in relation to the application. The Commission was further advised that, if we are satisfied that the regulated labour hire arrangement order should be made pursuant to s 306E of the FW Act, then WorkPac and Stanmore do not oppose an order being made in the form proposed by the MEU. No other person has expressed an interest in the application.
[3] The evidence before the Commission in relation to the application comprised:
A witness statement of Brad Lillis filed 19 July 2024. Mr Lillis is an Operator employed by WorkPac and assigned to Stanmore.
A witness statement of Mitch Hughes filed 19 July 2024. Mr Hughes is the Queensland District President of the MEU.
[4] The evidence indicates, and we find, that:
The Poitrel Mine is an open-cut black coal mine located outside Moranbah in Central Queensland. The mine is owned and operated by Stanmore SMC Pty Ltd[1].
Stanmore employs persons to perform work operating mining machinery and equipment at the Mine. Stanmore and its employees are covered by an enterprise agreement known as the Stanmore Poitrel Mine Enterprise Agreement 2022 (Stanmore Agreement). The Stanmore Agreement is expressed to apply, relevantly, to Stanmore and 'all employees of [Stanmore] who are engaged to work at the Stanmore Poitrel Mine and for whom classifications and rates of pay are prescribed by this agreement'.
The Stanmore Agreement contains classifications for both production and engineering employees. Clause 10 sets out the three classification levels which are as follows:
Mineworker Level 1 being a new employee without a relevant trade or mining experience;
Mineworker Level 2 being a new employee who has a relevant trade or relevant operating skills and mining experience, or an employee who commenced at Level 1 and has subsequently gained the required skills and six months' service; and
Mineworker Level 3 being an employee with specific trade qualifications and experience or an operator with specific competencies to operate machinery listed in clause 10.1(d).
In addition to the directly-employed workforce, WorkPac supplies a substantial number of employees to Stanmore to perform work operating mining machinery and equipment at the Mine.
The MEU is entitled to represent the industrial interests of Stanmore and WorkPac employees who work at the Mine under its rules. A substantial number of the workers employed by Stanmore and by WorkPac to perform work at the Mine are members of the MEU.
Stanmore owns several items of plant and equipment to perform all parts of the coal mining operations. These include draglines, excavators, dozers, loaders, haul trucks, graders and water carts. Both Stanmore and WorkPac employees use those items.
Both Stanmore and WorkPac employees attend the same pre-start meeting each day where the work to be performed is detailed by a Stanmore supervisor. Stanmore supervisors direct both its employees and WorkPac employees to operate the machines used to undertake coal mining work.
Whilst performing work, Stanmore and WorkPac employees operate the same Stanmore-owned or -leased machines and equipment and perform the same production work. Stanmore and WorkPac employees work alongside one another and are, in a practical sense, indistinguishable insofar as they comply with Stanmore instructions, do the same work and operate the same plant and equipment.
Consistent with its obligations under Coal Mining Safety and Health Act 1999 (Qld), Stanmore maintains a Safety and Health Management System at the Mine. Stanmore also maintains and enforces policies and procedures including Standard Operating Procedures for plant and equipment at the Mine which deal with risks arising from the conduct of particular work or the operation of the items of plant and equipment.
[6] We are satisfied, for the purposes of s 306E(7) of the FW Act, that the MEU is an employee organisation that is entitled to represent the industrial interests of the employees of WorkPac who are supplied to perform work for Stanmore at the Mine and employees of Stanmore employed to perform work at the Mine. Accordingly, the MEU is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation of s 306E(7)(c).
[7] We are further satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied to trigger the obligation to make a regulated labour hire arrangement order, are met. Specifically, on the basis of the material before us, we are satisfied that:
(a) WorkPac supplies its employees to perform work for Stanmore at the Mine involving operating mining machinery and equipment.
(b) The Stanmore Agreement would apply to WorkPac's employees who perform work for Stanmore at the Mine if Stanmore were to employ those employees directly to undertake the same kind of work.
(c) Stanmore is not a small business employer.
[8] For the purposes of s 306E(1A) of the FW Act, we are 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 this view, we have had regard to the matters set out in subsection (7A). In relation to the matters referred to in s 306E(7A), we make the following findings:
(a) There is no evidence that WorkPac has any involvement in matters relating to the performance of work by its employees working at the Mine.
(b) The evidence indicates that Stanmore directs, supervises and controls the WorkPac employees who are supplied to perform work at the Mine. WorkPac employees are assigned work by a Stanmore supervisor. Stanmore supervisors direct, instruct and monitor the work of WorkPac employees. WorkPac employees are rostered on the same rosters and allocated to the same production crews as Stanmore employees.
(c) WorkPac employees assigned to perform work at the Mine operate the same equipment and machinery as Stanmore employees and are subject to the same Safety and Health Management System, Standard Operating Procedures and policies, procedures and directions as Stanmore employees.
(d) There is no evidence that WorkPac is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to Stanmore.
(e) The work undertaken by WorkPac employees at the Mine involves the operation of plant and equipment but does not involve work of a specialist or professional nature.
[9] Having regard to the consideration referred to in s 306E(7A) of the FW Act, it is clear that the performance of work by WorkPac employees supplied to Stanmore at the Mine is not and will not be for the provision of a service, rather than the supply of labour. We are satisfied that WorkPac supplies labour to Stanmore.
[10] In relation to s 306E(2) of the FW Act, we are not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the MEU. Section 306E(2) requires the Commission to have regard to the matters listed in subsection (8) in relation to which submissions have been made. In this case, no submissions were made to the Full Bench in relation to any of the matters listed in subsection (8). Accordingly, we are not required to have regard to those matters.
[11] In those circumstances, we are required by s 306E of the FW Act to make the regulated labour hire arrangement order the MEU seeks. We 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 4 November 2024, consistent with s 306E(9)(e)(ii).
L Dixon and T Walthall of MinterEllison with D Gosewisch for WorkPac Pty Ltd and WorkPac Mining Pty Ltd.
J Wells of Mills Oakley with R Fleming for Stanmore SMC Pty Ltd.
Sydney by video link using Microsoft Teams (directions):
Printed by authority of the Commonwealth Government Printer
Stanmore organises and directs the day-to-day conduct of work by workers at the Mine. Its supervisors direct, instruct and monitor the work performed by all production workers. Any issues that workers may have about their work are dealt with by supervisors engaged by Stanmore.
WorkPac employees who are supplied to work at the Mine are subject to the same Safety and Health Management System, Standard Operating Procedures and other policies, procedures and directions as Stanmore employees. They are required to perform work in accordance with Stanmore directions, policies and procedures and are directed by Stanmore in the performance of work.
Stanmore and WorkPac employees are rostered on the same rosters and allocated into the same production crews. WorkPac employees take breaks at times determined by Stanmore and usually at the same time as Stanmore employees. They share crib facilities with Stanmore employees. Employees of WorkPac apply for leave through their employer but they are expected to inform their Stanmore supervisor of the leave as well.
The remuneration received by Stanmore employees is substantially higher than that received by WorkPac employees. For example, a Mineworker Level 2 employee under the Stanmore Agreement undertaking a seven-day-on, seven-day-off roster is currently paid an annual package of $164,715.36 as well as an incentive payment of up to $16,000 per annum and superannuation. WorkPac employees undertaking the same roster cycle are paid approximately $51 per hour for all hours worked plus a monthly attendance bonus.