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

Application by the United Workers' Union re Winc Australia Pty Ltd

Application for a regulated labour hire arrangement order in respect of Toll Personnel Pty

Ltd, Action Workforce T1 Pty Ltd and Staff Australia Payroll Services 2 Pty Ltd in relation to

• [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 Winc Australia Pty Ltd (Winc) as the regulated host and Toll Personnel Pty Ltd, Action Workforce T1 Pty Ltd and Staff Australia Payroll Services 2 Pty Ltd (together, employers) as the labour hire employers. The proposed order would apply to the employees of the employers (regulated employees) who perform work for Winc at the National Distribution Centre at 24 - 66 Lockwood Road, Erskine Park, New South Wales (the Site). The covered employment instrument is the Winc - Enterprise Agreement 2024 (Agreement).[1]

• [2] Winc and the employers each 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] No other person has indicated an interest in the application.

• [4] On 24 October 2025, the UWU filed a joint statement of agreed facts on behalf of all the parties to the matter pursuant to my direction issued on 3 October 2025. On the basis of the application and the statement of agreed facts, I make the following findings:

• • The employers employ regulated employees who perform warehouse duties for Winc at the Site. The Storage Services and Wholesale Award 2020[2] (Award) covers these employees.

• The classifications in the Agreement correspond to those in the Award as follows:

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

• The regulated employees:
  • receive on-the-job training from Winc's direct employees;
  • are allocated duties by employees of Winc, and are required to comply with Winc's instructions or directions;
  • are required to follow Winc's policies and procedures;
  • utilise Winc's equipment when performing the work;
  • take breaks at Winc's direction;
  • access the same rooms as Winc's employees, including lunchrooms and toilets;
  • are generally rostered to work the same rostered shifts as Winc's direct employees;
  • receive the same induction to the Site and work health and safety protocol upon commencement as Winc's employees; and
  • do not perform duties that can be said to be specialist or expert in nature.

• [5] 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.

• [6] 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 the employers who perform work at the Site. 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).

• [7] 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) The employers provide their respective employees to perform warehouse duties for Winc at the Site.

(b) The Agreement would apply to the employers' employees who perform work for Winc at the Site if Winc were to employ these employees directly to undertake the same kind of work.

• [8] 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 the employers are involved in matters relating to the regulated employees' performance of work at the Site.

(b) Rather, the evidence demonstrates that Winc directs, supervises, controls and assigns work to employees of the employers at the Site.

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

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

(e) The work undertaken by the regulated employees at the Site involves the operation of equipment within Winc's systems, but does not involve work of a specialist or professional nature.

• [9] 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.

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] MA000084.

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

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