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

Application by the United Workers' Union re Australian Pharmaceutical Industries - Queensland

Application for a regulated labour hire arrangement order in respect of 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 ProQuest Pty Ltd (ProQuest) as the employer. The proposed order would apply to employees for ProQuest who perform warehouse work for API in the State of Queensland (regulated employees). The covered employment instrument is the Australian Pharmaceutical Industries Pty Ltd (QLD) Enterprise Agreement 2023 (Agreement).[1] Clause 1.4 of the Agreement provides that it applies to API at its premises located at Bundamba, Cairns in Queensland and such other sites as API may open operations or move part or all of its business to.

• [2] ProQuest filed a Form F86A response to the application indicating that they neither objected to the application nor wished to bring any other issue with it to the Commission's attention.

• [3] API filed a Form F86A response to the application advising it did not object to the application but advised that it wanted to bring the following factual issue with the application to the attention of the Commission:

In the Applicant's Application states that "relevant employees of Proquest perform work in the

pharmaceutical industry, including but not limited to picking, forklift, receiving, dispatch, cool room picking volt picking, and decanting".

For clarity, the Respondent does not use Proquest employees in the areas of vault or cool room /fridge.

• [4] The original application in section 1.3 named the Shop, Distributive and Allied Employees Association (SDA) as an employee organisation that is entitled to represent the industrial interests of a regulated employee or employee of the regulated host. I also note that the SDA is covered by the Agreement. Although the SDA has been copied on all correspondence regarding the matter, it has not expressed an interest in the matter or responded to any correspondence regarding the matter.

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

• [6] On 29 October 2025, the UWU filed a statement of agreed facts on behalf of all parties to the matter, pursuant to my direction issued on 8 October 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

• • ProQuest employs regulated employees who perform picking, packing, forklift, receiving, dispatch and decanting work for API at their distribution facility in Cairns and such other facilities as API may operate in Queensland (worksites). The Pharmaceutical Industry Award 2020[2] (Award) covers each of the employees.

• The classifications in the Agreement match the classifications in the Award as set out in the following table:

• At the worksites, the regulated employees work alongside and perform the same work as the employees of API who perform work in the above Agreement classifications.

• The regulated employees:
  • receive on-the-job training from officers and employees of API;
  • are allocated duties by officers and employees of API and are required to comply with API's instructions or directions;
  • are required to follow API's policies and procedures;
  • utilise API's equipment;
  • access the same rooms as API's employees, including lunch rooms and toilets;
  • are generally rostered to work the same rostered shifts as the employees of API;
  • receive the same induction to the worksite and work health and safety protocol upon commencement as API's direct employees;
  • attend team meetings and team talks with API's direct employees;
  • are expected to follow the code of conduct of API; and
  • do not perform duties that can be said to be specialist or expert in nature.

• [7] In Application by the Mining and Energy Union,[3] 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.

• [8] The parties agree, and I am satisfied for the purposes of s 306E(7) of the FW Act, that the UWU is an organisation entitled to represent the industrial interests of employees of ProQuest employed to perform work at the worksites. Accordingly, the UWU 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) ProQuest provides its employees to perform picking, packing, forklift, receiving, dispatch and decanting work for API at the worksites.

(b) The Agreement would apply to ProQuest's employees who perform work for API at the worksites if API 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) There is no evidence that ProQuest is involved in matters relating to the regulated employees' performance of work at the worksites.

(b) Rather, the evidence demonstrates that API directs, supervises, controls and assigns work to employees of ProQuest at the worksites.

(c) The regulated employees receive the same induction and training as direct API employees, from API employees, and work within API's policies and procedures at the worksites. They operate equipment belonging to API.

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

(e) The work undertaken by the regulated employees at the worksites involves the operation of equipment within API's systems, but does not involve 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 UWU. 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 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 be today, 24 November 2025, consistent with s 306E(9)(e)(ii).

[2] MA000069.

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

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