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

Application by the United Workers' Union re Asahi Beverages Pty Ltd - Huntingwood Site

Application for a regulated labour hire arrangement order in respect of Staff Australia Pty

Ltd and Ready Workforce (A Division of Chandler Macleod) Pty Ltd in relation to work

performed for Asahi Beverages Pty Ltd at the Huntingwood Site.

• [1] The United Workers' Union (UWU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Asahi Beverages Pty Ltd (Asahi) as the regulated host, and Staff Australia Pty Ltd and Ready Workforce (A Division of Chandler Macleod) Pty Ltd (together, employers) as the labour hire employers. The relevant employees are employees who perform various roles for Asahi at the Huntingwood site in the State of New South Wales (site). The host employment instrument is the Asahi Beverages Huntingwood Enterprise Agreement 2023[1] (Agreement).

• [2] In its application, the UWU describes the arrangement whereby the employers supply labour to Asahi for the performance of work at the site as follows:

1. The Work being performed by the Regulated Employees at the Site includes work in the following roles:

1. The Work is equivalent to that of employees of Asahi engaged under the Asahi EA in the Level 1, 2 and 3 classifications

• [3] The contentions of fact submitted by the UWU, with the agreement of Asahi and the employers, explains how the performance of work by the employees is for the supply of labour and is not and will not be for the provision of a service as follows:

1. perform work described in Appendix B of the Agreement;
2. receive on-the-job training from employees of the Regulated Host in relation to the work they perform for the Regulated Host (in addition to any other training provided by the Regulated Employers);
3. when performing work for the Regulated Host, are allocated duties by employees of the Regulated Host and are required to comply with the Regulated Host's instructions or directions;
4. are required to follow the policies and procedures of the Regulated Host that apply to the labour hire employees who perform work for the Regulated Host;
5. utilise the Regulated Host's equipment when performing work for the Regulated Host;
6. take breaks per clause 17 of the Agreement at the direction of the Regulated Host when performing work for the Regulated Host;
7. have access the same rooms as the Regulated Host employees, including lunch rooms and toilets;
8. generally, work the same rostered shifts as employees of the Regulated Host;
9. receive the same induction to the worksite and work health and safety protocol upon commencement as Regulated Host employees; and
10. do not perform work for the Regulated Host that can be said to be specialist or expert in nature.

• [4] Each of the employers and Asahi have filed a Form F86A response in which they have indicated that they neither oppose the application nor wish to bring any other issue with it to the Commission's attention. The only issue noted by Asahi in their response is the correction of the company's ACN in the form. No other party has indicated an interest in the application.

• [5] During the directions hearing held on 16 April 2025, I directed Ready Workforce (A Division of Chandler Macleod) Pty Ltd to submit their Form F86A response by 30 April 2025, and the UWU to file contentions of facts, with agreement from the respondents, specifically addressing the requirements of s 306E(7)(a). On the basis of the material in the UWU's application, the Form F86A responses and the contentions of facts, and applying the principles in outlined in Application by the Mining and Energy Union,[2] I make the following findings.

• [6] I am satisfied that the UWU is entitled to represent the industrial interests of the employees supplied by the employers to Asahi and is therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c). 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) The employers supply their employees to perform work for Asahi at the site.

(b) The Agreement would apply to the employees if they were directly employed by Asahi to perform work at the site. The employees work alongside and perform the same work as employees of Asahi to who the classifications in the Agreement apply.

• [7] I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by the regulated employees 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:

• There is nothing before me to indicate that the employers are involved in matters relating to the performance of the employees' work.
• Asahi (and not the employers) generally allocates duties to the employees, and instructs and directs them in the performance of their work.
• Asahi, not the employers, provides all equipment, training and facilities required for the employees to complete their work.
• The employees are required to comply with Asahi's policies and procedures at the site.
• The employees perform work that is substantially the same as that performed by Asahi's direct employees at the site. It is not of a specialist or expert nature.

• [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 the UWU. 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] Having made the findings above, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the UWU. 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, consistent with s 306E(9)(e)(ii), be the date of this decision.

G D'Costa, R Karanfilovski and K Pinsent for Asahi Beverages Pty Ltd.

J Elias for Ready Workforce (A Division of Chandler Macleod) Pty Ltd.

Sydney, via video using Microsoft Teams (initial mentions/directions):

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

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