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

Application by Transport Workers' Union of Australia re Qantas Airways Limited - Freight Operations

Application for a regulated labour hire arrangement order in respect of Programmed Skilled Workforce Pty Ltd in relation to work performed for Qantas Airways Limited.

1. The Transport Workers' Union of Australia (TWU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Qantas Airways Limited (Qantas) as the regulated host and Programmed Skilled Workforce Pty Ltd (Programmed) as the labour hire employer. The relevant employees are ground services employees who perform work in Qantas' Freight Operations. The host employment instrument is the Qantas Airways Limited - Freight Operations Transport Workers Agreement 2023[1] (Agreement).

• [2] Programmed and Qantas have each filed a Form F86A response to the application in which they have indicated that they do not believe relevant employees working at the Perth Domestic Freight Terminal or the Adelaide Freight Terminal should be covered by an order, because those employees are currently receiving higher rates of pay than they would if the Agreement covered them. The responses indicated that 'the appropriate course is to exclude employees performing work at Perth and Adelaide from the group of employees who would be covered by the order'. Qantas further filed a draft order with its response, reflecting this exclusion. Programmed and Qantas did not otherwise the making of the order sought by the TWU. No other party has indicated an interest in the application.

• [3] At the directions hearing for this matter on 25 February 2025, the parties jointly requested an additional four weeks to discuss the application as they were hopeful of reaching a consent position. They subsequently requested additional time to allow for further discussions. On 15 April 2025, the TWU on behalf of all parties filed a draft order to be made by consent. That draft order no longer contained the 'Perth and Adelaide' exclusion. On 7 May 2025, it further filed a statement of agreed facts on behalf of all parties.

• [4] In the statement of agreed facts, the parties describe the arrangement whereby Programmed supplies labour to Qantas for the performance of Freight Operations work as follows:

1. Amongst Programmed's employees are ground services employees who perform work in Freight Operations within the meaning of the Qantas Airways Limited - Freight Operations Transport Workers Agreement 2023 (Freight Agreement) (Programmed Employees).

1. Programmed supplies the Host, Qantas Airways Limited (QAL), with the Programmed Employees to perform work for QAL.

1. QAL employs ground services employees who perform work in Freight Operations under the terms and conditions of the Freight Agreement.

1. The Freight Agreement 'applies' to QAL within the meaning of section 52 of the FW Act.

1. The Freight Agreement is expressed to cover employees who perform work in Freight Operations in the classifications specified in clause 18 of the Freight Agreement. The Freight Agreement would apply to the Programmed Employees if they were employed by QAL.

(a) are supervised and under control of QAL supervisors and managers when performing work within the Freight Operations and for QAL. This includes by attending the same start of shift meetings and work being allocated to them in the same manner as for QAL employees;

(b) are rostered within QAL's rostering system;

(c) use QAL's systems, plants and structures when performing the Freight Operations work for QAL;

(d) undertake the same induction and training as for QAL employees in Freight Operations;

(e) hold an Aviation Security Identification Card ('ASIC') issued by Qantas Group, being the property of QAL;

(f) operate under QAL policies and procedures;

(g) take breaks at times as determined by QAL supervisors.

• [5] On the basis of the material received to date, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

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

• [7] 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) Programmed supplies its employees to perform work for Qantas at various freight terminals around Australia.

(b) The Agreement would apply to the employees if they were directly employed directly by Qantas to perform ground services work in Qantas' Freight Operations as defined in the Agreement. The Agreement covers the Freight Operations of Qantas in which the relevant Programmed employees work and has classifications that are applicable to their job functions.

• [8] Third, I am 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:

• the performance of the employees' work is managed by Qantas, not Programmed;
• Qantas, rather than Programmed, rosters the employees' shifts and break times, assigns them their work tasks, issues relevant identification documents for them and directs and supervises the performance of their duties;
• Qantas, and not Programmed, provides the systems, plant, structures and training required for the employees to complete their work;
• the employees are required to comply with Qantas' policies and procedures; and
• the employees perform work that is substantially the same as that performed by Qantas' direct Freight Operations employees. It is not of a specialist or expert nature.

• [9] 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 TWU. 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.

• [10] 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 TWU. 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, consistent with s 306E(9)(e)(ii) and as agreed by the parties, will be 11 July 2025.

A Somaratna and L Biviano for the Transport Workers' Union of Australia.

M Zoetbrood for Programmed Skilled Workforce Pty Ltd.

K Srdanovic with K Hollings, solicitors, for Qantas Airways Limited.

Sydney by video link using Microsoft Teams (directions):

1. [1]AE519897.
2. [2] [2024] FWCFB 299, 333 IR 249.

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