Fair Work Act 2009

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

Application by the Mining and Energy Union re Vickery Mine

Application for a regulated labour hire arrangement order in respect of TESA Group Pty Ltd

in relation to work performed for Whitehaven Coal Mining Ltd at the Vickery Mine.

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 to apply to Whitehaven Coal Mining Ltd (Whitehaven) as the regulated host and TESA Group Pty Ltd (TESA) as the employer. The proposed order would apply to the employees of TESA (regulated employees) who perform work for Whitehaven at the Vickery open-cut coal mine in the Gunnedah Basin Coalfields in north-west New South Wales (Mine). The covered employment instrument is the Whitehaven Coal Vickery Mine Greenfield Enterprise Agreement 2023 (Whitehaven Agreement).[1]

• [2] Whitehaven filed a Form F86A response to the application indicating that it neither consented to nor objected to the order sought in the application and advising that it did not wish to bring any other issue with it to the Commission's attention.

• [3] TESA also filed a Form F86A response to the application indicating that it did not object to the application. However, it reserved its rights with respect to the terms of the order. TESA also advised the following:

TESA will require approximately two (2) weeks from the making of any Order to ensure its payroll system is configured to pay employees in accordance with the Order. Accordingly, TESA seeks that any Order come into force no earlier than two weeks from the date the Order is made.

TESA further seeks any Order made to commence on a Sunday to align with the weekly pay cycle.

• [4] No other person has indicated an interest in the application.

• [5] On 21 November 2025, the MEU filed a statement of agreed facts on behalf of all parties to the matter pursuant to my direction issued on 30 October 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

• The mining work at the Mine is carried out by Whitehaven employees, the regulated employees employed by TESA and employees of another labour hire company.

1. The Black Coal Mining Industry Award 2020[2] (Award) covers each of the regulated employees.

• The work performed by the regulated employees would, if they were directly employed by Whitehaven, fall within the classifications in the Whitehaven Agreement.

1. The TESA Group - Enterprise Agreement 2022[3] applies to the regulated employees. It provides for lower rates of pay than for equivalent classifications in the Whitehaven Agreement.

• At the Mine, the regulated employees perform the same, or substantially the same, duties as those performed by Whitehaven employees who are covered by the Whitehaven Agreement.

• work within the same mine working centres as Whitehaven's employees;
• follow the same sign-on procedures, including swipe-in, breath-testing and completion of timesheets;
• attend the daily pre-start meetings conducted by Whitehaven;
• are allocated work through the same process as Whitehaven's employees;
• receive the same induction before commencing work at the Mine;
• work under the same health and safety management system that is established and maintained by Whitehaven;
• operate under the same procedures, policies and rules as Whitehaven's direct employees;
• are rostered to work the same shifts as Whitehaven's employees;
• receive the same supervision and are allocated the same crews;
• communicate with supervisors via the same means, and receive the same directions and instructions as Whitehaven's direct employees; and
• use the same crib facilities, bathhouses, mining infrastructure areas, noticeboards and general site amenities as Whitehaven's direct employees.

• [6] TESA currently provides a Drill Supervisor/Trainer to Whitehaven to work at the Mine, and it provides the regulated employees with personal protective equipment (PPE) and work clothing. Apart from this:

• TESA does not provide the equipment, systems, plant, machinery, infrastructure or operational structures used by the regulated employees.

• TESA does not direct, supervise or control the regulated employees it supplies to work at the Mine, and had no on-site managers, coordinators or representatives who direct, oversee, allocate tasks to or otherwise oversee the work of the regulated employees.

• [7] In Application by the Mining and Energy Union,[4] 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.[5]

• [8] The parties agree, and I am satisfied for the purposes of s 306E(7) of the FW Act, that the MEU is an organisation entitled to represent the industrial interests of the regulated employee of TESA, as well as the employees of Whitehaven, who perform mineworker duties 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).

• [9] 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. Specifically, on the evidence before me, I am satisfied that:

(a) TESA provides the regulated employees to perform mineworker duties for Whitehaven at the Mine.

(b) The Whitehaven Agreement would apply to the regulated employees who perform work for Whitehaven at the Mine if Whitehaven were to employ these employees directly to undertake the same kind of work.

• [10] For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work 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 subsection (7A). In relation to the matters set out in s 306E(7A), I make the following findings:

(a) TESA is not involved in matters relating to the regulated employees' performance of work at the Mine, apart from the provision of PPE and work clothing.

(b) Whitehaven directs, supervises, controls the performance of work by the regulated employees of TESA at the Mine, including by managing rosters, assigning tasks and maintaining overall responsibility for the conduct of operations in a safe manner.

(c) The regulated employees use Whitehaven's systems, plant and structures in the performance of work.

(d) There is no evidence that TESA is or will be subject to industry or professional standards or responsibilities in relation to the work of the regulated employees.

(e) The work undertaken by the regulated employees at the Mine is the same, or substantially the same, as the work performed by mineworkers employed directly by Whitehaven, and is not work of a specialist or professional nature.

• [11] 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 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 in relation to any of the matters listed in subsection (8). Accordingly, I am not required to have regard to those matters.

• [12] In those circumstances, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the MEU. 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 of the order will be 25 January 2026, consistent with s 306E(9)(e)(ii) and TESA's position.

1. [1]AE520892.
2. [2]MA000001.
3. [3]AE518797.
4. [4] [2024] FWCFB 299, 333 IR 249.
5. [5]Ibid [8]-[17].

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