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

Application by the United Workers' Union re Premier Retail Services - Truganina Distribution Centre

Application for a regulated labour hire arrangement order in respect of Quest Personnel Pty Ltd and ASAP Recruitment Pty Ltd in relation to work performed for Premier Retail Services 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 Premier Retail Services Pty Ltd (Premier Retail) as the regulated host, and Quest Personnel Pty Ltd and ASAP Recruitment Pty Ltd (employers) as the labour hire employers. The relevant employees are employees who perform store work at the distribution centre operated by Premier Retail in Truganina in Victoria (Distribution Centre). The host employment instrument is The Just Group Distribution Centre Agreement 2021 (Agreement).[1]

• [2] The UWU's original Form F86 application commencing this matter, filed on 4 December 2024, identified Just Jeans Group Pty Ltd (Just Jeans) as the regulated host. However, on or around 26 January 2025, the Just Jeans business was acquired by Premier Retail, which from that date operated the Distribution Centre and employed the storeworkers previously employed by Just Jeans. It is not in dispute that this constituted a transfer of business within the meaning of s 311 of the FW Act and that, as a consequence, Premier Retail became the employer to which the Agreement applies by force of s 313. The Agreement also continued to apply to the employees whose employment transferred from Just Jeans to Premier Retail.

• [3] On 20 February 2025, the UWU filed an amended application naming Premier Retail as the regulated host instead of Just Jeans. Premier Retail and each of the employers has filed an amended Form F86A response in which they have indicated that they neither oppose the application nor wish to bring any other issue concerning the application to the Commission's attention. No other party has indicated an interest in the application. At the report-back hearing on 5 March 2025, the respondent parties who appeared confirmed that they do not contest any of the factual assertions set out in the UWU's application, and all the parties also consented to the order's operative date being at the Commission's discretion. On 24 March 2025, the parties filed an Agreed Statement of Facts which was signed by representatives of the UWU, Premier Retail and each of the employers.

• [4] On the basis of the material contained in the amended application and the Agreed Statement of Facts, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

• [5] First, I am satisfied that the UWU is entitled to represent the industrial interests of the employees supplied by the employers to Premier Retail and therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c).

• [6] Second, I am 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 store work for Premier Retail at the Distribution Centre.

(b) The Agreement would apply to the regulated employees if they were directly employed by Premier Retail to perform store work at the Distribution Centre. The work they perform, which consists of warehousing and logistics duties including picking, packing, sorting and transporting items for stores and customer orders, falls within the 'Storeworker' classifications in the Agreement.

(c) Premier Retail is not a small business employer.

• [7] Third, 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 no material before me which indicates that the employers are involved in matters relating to the performance of the employees' work, with the exception that the employees' rosters are texted to them by the employers as well as by Premier Retail and that employees must notify their employer as well as Premier Retail if they are unable to attend work when rostered to do so.
• Premier Retail, rather than the employers, allocates work to the employees, and Premier Retail through its directly-employed Team Leaders supervises, instructs, directs and performance manages the employees in their work.
• Premier Retail, not the employers, provides all the plant, equipment and structures used for the performance of work by the regulated employees, and the regulated employees work alongside the direct employees of Premier Retail performing the same work according to the same system.
• The employers are not subject to industry or professional standards or responsibilities in relation to the regulated employees.
• The store work performed by the regulated employees is not of a specialist or expert nature.

• [8] Fourth, 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] In the circumstances set out 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.

S Howe with R Whyllie and O Blackney for the United Workers' Union

A Oxley with G Chapelhow for Premier Retail Services

[There was no appearance for ASAP Recruitment Pty Ltd.]

Sydney, via video using Microsoft Teams (report-back):

1. [1]AE513902.
2. [2] [2024] FWCFB 299, 333 IR 249.

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