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

Application by the United Workers' Union re Australian Pharmaceutical

Application for a regulated labour hire arrangement order in respect of National Workforce Pty Ltd and ProQuest Pty Ltd in relation to work performed for Australian Pharmaceutical Industries Pty Ltd.

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 Australian Pharmaceutical Industries Pty Ltd (API) as the regulated host and National Workforce Pty Ltd and ProQuest Pty Ltd (employers) as the labour hire employers. The relevant employees are employees of the employers who perform work at the Distribution Centre operated by API (Distribution Centre) in the State of Victoria. The host employment instrument is the Australian Pharmaceutical Industries Melbourne Distribution Centre Enterprise Agreement 2023 (Agreement).[1]

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

1. The relevant employees of National Workforce and ProQuest perform warehousing and logistics work including, but not limited to picking, packing, sorting and transporting items for stores and customer orders.
2. The work performed by Regulated Employees for API:
   1. would, if performed by employees of API, be work to which the Enterprise Agreement would apply; and
   2. is not different, in any substantial way, to work which is also performed by employees of API.

• [3] The application further 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. The work performed by Regulated Employees:
   1. is performed using the systems, plant and structures of API;
   2. is directed and controlled by API and its officers and employees; and
   3. is not specialist or expert work that is typically performed by a person involved in the provision of a service.

1. There are no professional or industry standards which apply to the Regulated Employees which would weigh in favour of a finding that the Regulated Employees are involved in the provision of a service.

• [4] Each of the employers and API 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. No other party has indicated an interest in the application.

• [5] API and the employers who appeared in the directions hearing held on the 13 February 2025 each confirmed that they do not contest any of the factual assertions set out in the UWU's originating application. On 20 March 2025, the UWU on behalf of all the parties filed a 'Joint Statement of Agreed Facts'. On the basis of the material in the UWU's application, the Form F86A responses and the agreed statement of agreed 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 UWU is entitled to represent the industrial interests of the employees supplied by the employers to API 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 warehousing and logistics work for API at the Distribution Centre.

(b) The Agreement would apply to the employees if they were directly employed by API to perform work at the Distribution Centre.

• [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.
• API (and not the employers) generally rosters the employees to work the same shifts as its direct employees, allocate duties to the employees, instructs and directs them in the performance of their work, and directs them when to take their breaks.
• API, not the employers, provides all equipment, training and facilities required for the employees to complete their work.
• The employees are required to comply with API's policies and procedures at the Distribution Centre.
• The employees perform work that is substantially the same as that performed by API's direct employees at the Distribution Centre. 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.

E Orman and L McDonald for the United Workers' Union

S Novak and J Russell for National Workforce Pty Ltd

D Twyford and S Stratford for Australian Pharmaceutical Industries Pty Ltd

Sydney, via video using Microsoft Teams (mention and directions):

1. [1]AE521196.
2. [2] [2024] FWCFB 299, 333 IR 249.

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