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

Application by United Workers' Union re UnitingCare Queensland Limited

Application for a regulated labour hire arrangement order in respect of HealthX Group Pty Ltd in relation to work performed for UnitingCare Queensland Limited.

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 UnitingCare Queensland Limited (UnitingCare) as the regulated host and HealthX Group Pty Ltd (HealthX) as the employer. The proposed order would apply to employees of HealthX who perform work for UnitingCare in Queensland (regulated employees). The covered employment instrument is the BlueCare Care and Support Employees Enterprise Agreement 2023 (Agreement).[1] The Agreement also covers the following employee organisations:

• Australian Nursing and Midwifery Federation (ANMF)
• Health Services Union (HSU)
• Australian Municipal, Administrative, Clerical and Services Union (ASU)
• The Australian Workers' Union (AWU).

• [2] UnitingCare, the ANMF, the ASU and the AWU 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] HealthX filed a Form F86A response to the application advising it did not object to the application, but wanted the Commission to consider the following in determining whether to issue the order sought:

HealthX has assisted UnitingCare Queensland Limited address workforce shortages through the provision of on-hire labour services for over 10 years.

Throughout this time HealthX has paid employees at rates equivalent to staff directly employed by Blue Care, in accordance with the applicable industrial instrument and advice provided by Blue Care.

• [4] The HSU filed a Form F86A response stating that it did not object to the application, but wished to draw other enterprise agreements applying to UnitingCare to the Commission's attention.

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

• [6] On 9 September 2025, the UWU filed a statement of agreed facts on behalf of all parties to the matter, pursuant to my direction issued on 18 August 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

1. HealthX employs regulated employees who perform personal care or hospitality work for UnitingCare at UnitingCare's residential aged care facilities in Queensland (Queensland Facilities). Either the Aged Care Award 2010[2] or the Social, Community, Home Care and Disability Services Industry Award 2010[3] (together, Awards) covers each of these employees.

• The classifications in Appendices 1 to 3 to the Agreement match the classifications in the Awards as set out in the following tables:

Aged Care Award 2010 - General - most senior food services employees

Aged care employee - general - level 4 - most senior food services employee

Aged care employee - general - level 5 - most senior food services employee

Aged care employee - general - level 6 - most senior food services employee

Aged care employee - general - level 6 - most senior food services employee

Social, Community, Home Care and Disability Services Industry Award 2010 ** - Home care stream**

SCHADS Home care employee - Aged care - level 1, pay point 1

SCHADS Home care employee - Aged care - level 2, pay point 1

SCHADS Home care employee - Aged care - level 2, pay point 2

SCHADS Home care employee - Aged care - level 3, pay point 1

SCHADS Home care employee - Aged care - level 3, pay point 2

SCHADS Home care employee - Aged care - level 4, pay point 1

SCHADS Home care employee - Aged care - level 4, pay point 2

SCHADS Home care employee - Aged care - level 5, pay point 1

SCHADS Home care employee - Aged care - level 5, pay point 2

Social, Community, Home Care and Disability Services Industry Award 2010 ** - Social and community services stream**

• At the Queensland Facilities, the regulated employees work alongside and perform the same work as employees of UnitingCare who perform work described in Appendices 1 to 3 to the Agreement.

• The regulated employees:
  • perform work described in Appendices 1 to 3 to the Agreement;
  • receive on-the-job training from officers and employees of UnitingCare;
  • are allocated duties by officers and employees of UnitingCare and are required to comply with UnitingCare's instructions or directions;
  • are required to follow UnitingCare's policies and procedures;
  • utilise UnitingCare's equipment;
  • at the direction of UnitingCare, take breaks per the Agreement;
  • access the same rooms as UnitingCare's direct employees, including lunch rooms and toilets;
  • are generally rostered to work the same rostered shifts as employees of UnitingCare;
  • receive the same induction to the worksite and work health and safety protocol upon commencement as UnitingCare's direct employees;
  • attend team meetings and team talks with UnitingCare's direct employees; and
  • are expected to follow UnitingCare's code of conduct.

• [7] In Application by the Mining and Energy Union,[4] a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[5] 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 HealthX employed to perform work at the Queensland Facilities. 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) HealthX provides its employees to perform personal care and hospitality work for UnitingCare at the Queensland Facilities.

(b) The Agreement would apply to HealthX's employees who perform work for UnitingCare at the Queensland Facilities if UnitingCare were to employ these employees directly to undertake the same kind of work.

(c) UnitingCare is not a small business employer.

• [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 HealthX is involved in matters relating to the regulated employees' performance of work at the Queensland Facilities.

(b) Rather, the evidence demonstrates that UnitingCare directs, supervises, controls and assigns work to employees of HealthX at the Queensland Facilities.

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

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

(e) The work undertaken by the regulated employees at the Queensland Facilities involves the operation of equipment within UnitingCare'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, 28 October 2025, consistent with s 306E(9)(e)(ii).

1. [1]AE521061.
2. [2]MA000018.
3. [3]MA000100.
4. [4] [2024] FWCFB 299, 333 IR 249.
5. [5]Ibid [8]-[17].

Printed by authority of the Commonwealth Government Printer