Fair Work Act 2009

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

Applications by the Mining and Energy Union re Mangoola Open Cut Coal Mining Operation

Applications for regulated labour hire arrangement orders in respect of WorkPac Mining Pty Ltd, the TESA Group Pty Ltd, and HVA Technical Services Pty Limited in relation to work performed for Mangoola Coal Operations Pty Ltd - whether it is not fair and reasonable to make a regulated labour hire arrangement order - form of order - orders made.

• [1] The Mining and Energy Union ("the MEU") seeks regulated labour hire arrangement orders ("RLHA orders") under section 306E of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The orders are sought with respect to work performed by employees of:

• WorkPac Mining Pty Ltd ("WorkPac");
• The TESA Group Pty Ltd ("TESA"); and
• HVA Technical Services Pty Limited ("HVA").

• [2] TESA and HVA are part of the same corporate group, which also includes Programmed Skilled Workforce Limited ("PSW").[1] I will refer to TESA and HVA collectively as "the PSW entities." I will refer to WorkPac, TESA, and HVA as "labour hire employers."

• [3] The work to be covered by the RLHA orders is performed at the Mangoola Open Cut Mine ("the Mine") near Muswellbrook in New South Wales.

• [4] Each of the RLHA orders sought specifies Mangoola Coal Operations Pty Limited ("Glencore Mangoola") as the regulated host, the relevant regulated employees to be covered by the order, the relevant labour hire employer to be covered by the order, and the Mangoola Enterprise Agreement 2021 [AE513167] ("the Glencore Mangoola Agreement**")** as the host employment instrument.

• [5] Part 2-7A of the Act provides for the Commission to make RLHA orders and sets out the obligations of the labour hire employers and regulated host covered by those orders. Section 306E sets out when the Commission must make an RLHA order. The Commission is required to make an order if the requirements of s. 306E(1) are met, although an order must not be made if the exclusions in subsections (1A) and (2) are met.

• [6] The consequences of making the RLHA orders would be that WorkPac, TESA, and HVA will be required to pay any employees engaged to work at the Mine no less than the protected rate of pay under the terms of the Glencore Mangoola Agreement, excluding, relevantly, any employees covered by training arrangements within the meaning of that term for the purposes of the Fair Work Act.

• [7] Glencore Mangoola, WorkPac and the PSW entities oppose the RLHA orders being made. They opposed the applications on the grounds that it would not be fair and reasonable to make an RLHA order in all the circumstances.[2]

• [8] In addition, the PSW entities oppose the application on the basis that the orders would, if made, result in the acquisition of their property otherwise than on just terms,[3] contrary to s.51(xxxi) of the Constitution. I reject the argument and adopt the reasoning of the Full Bench of the Commission in Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd[4] ("Bengalla") in that regard.

• [9] Also, HVA opposes the application on the basis that it does not employ anyone who would be subject to an RLHA order, having regard to subsections 306E(9)(b) and (1)(a) and (b).[5] For reasons set out in more detail below, I have decided to make the orders sought in relation to WorkPac and TESA, but not HVA.

• [10] I am satisfied that the requirements in s. 306E(1) are met in respect of WorkPac and TESA. All parties accept that the exclusion in subsection 306E(1A) does not apply. Section 306E(2) provides that the Commission must not make the order if it is satisfied that it is not fair and reasonable in all the circumstances to do so. Glencore Mangoola and each of the labour hire employers contend that it would not be fair and reasonable to make the orders and so I must not make them. I am not satisfied that it would not be fair and reasonable to make the orders and so find that the prohibition in subsection 306E(2) does not apply.

• [11] I also heard submissions about the form of the RLHA orders, if made, and whether they should be confined in scope by limiting the way the regulated employees are specified. I have considered those submissions, and I have decided to make the orders as sought, as I consider they meet the requirements in s. 306E(9). The proposed orders are in similar terms to other orders made under s. 306E by the Commission.

• [12] The MEU filed each of the initiating applications on 3 October 2024. The President of the Commission issued Directions on 15 October 2024, and further Directions on 14 January 2025. The parties subsequently filed witness statements and outlines of submissions.

• [13] On 14 March 2025, on the application of each of the PSW entities and WorkPac, I made confidentiality orders to protect certain commercial information. Also, on 14 March 2025 the PSW entities applied for me to recuse myself from these proceedings. On 18 March 2025 I dismissed the recusal application.[6]

• [14] The matter was substantially heard on 19 and 20 March 2025 but was adjourned for closing submissions to be made on a later date. On 25 March 2025, I issued further Directions. The hearing resumed for closing submissions on 9 May 2025. Glencore Mangoola filed supplementary written submissions on 9 May 2025.

• [15] Each party sought to be represented by lawyers. Parties may be legally represented by permission of the Commission granted under s. 596. One of the prerequisites for granting permission is that the representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. After taking into account the complexity of the matter and hearing from the parties, I considered that legal representation would enable the matters to be dealt with more efficiently and granted permission in each case.

• [16] Mr Michael Carroll, a Glencore Mangoola production employee and the MEU Lodge Secretary for the lodge at the Mine, and Mr Matthew Howard, District Vice President of the MEU's Northern Mining and New South Wales Energy District, both gave evidence for the Applicant. Mr Cameron Hockaday, Chief Commercial & Risk Officer of WorkPac Group Pty Ltd, gave evidence for WorkPac. Mr Joel Cribb, General Manager North - Energy and Resources, PSW, gave evidence for the PSW entities. Mr Jacob Hundertmark gave evidence for Glencore Mangoola. The latter also tendered an affidavit of Mr Nicholas Slater, who was not required for cross-examination.

• [17] Glencore Mangoola tendered two schedules setting out, inter alia, the number of competencies held by, and length of experience at the Mine of, the workers on Production Crew C. No party opposed these schedules being admitted as exhibits. A declaration of Mr Hundertmark was also tendered without objection.[7]

• [18] Some of the evidence, going to commercial information, was covered by the confidentiality orders referred to above. I have considered all of the evidence, including the evidence covered by confidentiality orders.

• [19] The Mine is an open cut coal mine situated approximately 20 kilometres west of Muswellbrook in New South Wales. Glencore Mangoola operates the Mine. Glencore Mangoola is a wholly owned subsidiary of Glencore Coal Assets Australia Pty Ltd ("Glencore Coal Assets").[8]

• [20] The Glencore Mangoola Agreement covers Glencore Mangoola, and its employees engaged in production and engineering roles[9] of the kind that would otherwise be covered by Schedule A of the Black Coal Mining Industry Award ("the Award").[10] "Engineering" work is sometimes also referred to as "maintenance" work at the Mine.

• [21] It was not in dispute that Glencore Mangoola employs employees to perform work at the Mine.[11] In addition to the directly employed workforce, the labour hire employers supply employees to Glencore Mangoola to perform production and engineering work at the Mine.[12] As at 2 December 2024 the total workforce was 486, and by the date of the hearing it was 494.[13]

• [22] Mr Carroll said the operational centres of the Mine's workforce could be divided into four broad groups: production, including the pumpers and drillers; maintenance; Coal Handling & Preparation; and Shotfiring.[14] He said that at the Mine "production" refers to coal extraction and its transport to the Coal Handling and Preparation Plant, generally following these steps:[15]
  • Stripping of topsoil;
  • Drill and shotfiring;
  • Overburden;
  • Coal mining.

• [23] Mr Carroll said that production and engineering employees working at the Mine operate machines such as rear dump trucks, dozers, graders, water trucks, excavators, production loaders, and service carts.[16] Mr Hundertmark's evidence was to similar effect, regarding the equipment used.[17] Glencore Mangoola owns the equipment.[18]

• [24] Mr Carroll's evidence was that the production workforce at the Mine includes employees of Glencore Mangoola, WorkPac, and the PSW entities. He said there is no distinction in the day-to-day duties or work assignments between the groups. They operate the same machinery and equipment and perform identical production tasks, but only provided they possess the required skills and competencies. They work alongside each other and perform the same work. He said the WorkPac and PSW entities' employees principally operate haul trucks, dozers and water carts.[19] However, under cross-examination Mr Carroll accepted that the labour hire employees generally only operated haul trucks, with three of them also operating water carts,[20] and none operating dozers in production work as far as he knew.[21] Mr Hundertmark clarified that one of the WorkPac employees with a dozers competency had formerly been an operator at the Mine, and had left to pursue his own business ventures, and had returned via WorkPac's payroll, to work in rehabilitation (rather than coal mining) at the Mine. That person had a special arrangement and a higher rate of pay than other WorkPac employees.[22]

• [25] Employees of the PSW entities and WorkPac who work at the Mine attend the same daily pre-start meetings as the Glencore Mangoola employees. They are allocated work and equipment for their shift in the same way, [23] but jobs are allocated according to the level of skill and experience required of the operator being assigned to a particular task on a particular shift.[24] Employees of the PSW entities and WorkPac who work at the Mine must undertake the same site induction conducted by Glencore Mangoola and operate pursuant to the health and safety management systems established by Glencore Mangoola at the Mine.[25] They operate under the same sign in/off procedures as the Glencore Mangoola employees,[26] and do the same health and safety management training.[27]

• [26] There are four production crews working the Mine. The crews are comprised of Glencore employees and labour hire employees of the PSW entities and WorkPac. All of the employees, whether engaged by Glencore Mangoola or the labour hire employers, work the same roster.[28] All of the supervisors at the Mine are employed by Glencore Mangoola.[29]

• [27] Employees of the PSW entities and WorkPac who work at the Mine are initially supplied with the uniform, boots, and helmet by their respective employer. They are supplied with replacement personal protective equipment and consumables by Glencore Mangoola.[30]
• [28] Clause 6 of the Glencore Mangoola Agreement provides for remuneration. Annexure 2 of that agreement is headed "Mangoola Coal Annual Remuneration Structure." It sets out indicative roster work patterns and an amount called the "Maximum Total Cash Salary" (also referred to as "the MTCS") for working those rosters.

• [29] There is a roster work pattern referred to as Roster No 1. It involves working shifts of twelve hours and 20 minutes, on a seven-day rotating roster, with a day / night shift structure, with work on all public holidays except two. The evidence was that the vast majority of employees who work at the Mine work that roster, and that the MTCS for working that roster, at the date of his written statement, 14 November 2024, was $161,613.00.[31]

• [30] Mr Carroll explained that colloquially all workers under the Glencore Mangoola Agreement are referred to as coal miners, and there is one rate of pay, with employees paid different amounts depending on the roster they work on. He said there can also be a fluctuation with the operation of the Performance Scheme provided for in cl 6.10 of that agreement, with half of the Performance Scheme being guaranteed, and half subject to performance criteria. He said it was usual to receive the maximum performance pay, or close to it.[32]

• [31] The TESA Group - Enterprise Agreement 2022 ("the TESA Enterprise Agreement") covers and applies to employees of TESA who perform production and engineering work for Glencore Mangoola at the Mine. It applies to TESA's employees who, but for the TESA Enterprise Agreement, would be covered by the Award. The nominal expiry date was 6 January 2025.[33]

• [32] PSW is party to a contract with Glencore to provide labour to perform work at the Mine[34] The terms of that contract are derived from what is referred to as an Umbrella Agreement between PSW and Glencore Coal Assets dated 1 June 2023 ("the PSW Umbrella Agreement"). There is also another document setting out the specific engagement terms for the Mine, in a form prescribed in Schedule 5 of the Umbrella Agreement, executed 12 November 2024 ("the engagement terms").[35] I will refer to the two documents collectively as "the PSW Supply Agreement." TESA employs the employees provided under the PSW Supply Agreement.[36]

• [33] The charge out rates under the PSW Supply Agreement are arrived at by taking an hourly rate of pay from the TESA Agreement, applying various additional amounts on top to account for statutory on-costs and overheads. A small profit margin is then added.[37]

• [34] As at December 2024, TESA provided 21 workers to the Mine of whom 8 were casual employees. Fifteen were employed in the classification Mineworker Level 3 under the TESA Enterprise Agreement; six, all casual workers, were employed in classification Mineworker Level 1.[38] The classifications in the PSW Supply Agreement correspond with the classifications in the TESA Enterprise Agreement.[39] The production workers employed by TESA had varying degrees of experience, and twelve had completed black coal mining traineeships with the Programmed group.[40]

• [35] It was not in dispute that the labour hire employees supplied by TESA are paid less than the employees of Glencore Mangoola.[41]

• [36] The Award covers and applies to employees of HVA.[42] The evidence is that HVA employs only trainees.[43] Those who are remaining employed within the corporate group on completion of their traineeship are transferred to TESA.[44]

• [37] It was not in dispute that the WorkPac Coal Mining Agreement 2019 ("the WorkPac Enterprise Agreement") covers and applies to WorkPac and its employees who are employed in the black coal mining industry whose duties are directly connected with the day-to-day operation of a black coal mining site, including the Mine.[45] The nominal expiry date of the WorkPac Enterprise Agreement was 27 June 2023.

• [38] WorkPac Pty Ltd is party to an agreement with Glencore Coal Assets entitled Glencore Umbrella Agreement - Labour Supply ("the WorkPac Supply Agreement"), under which WorkPac provides supplementary labour to perform work at the Mine.[46]

• [39] The WorkPac Supply Agreement contains a schedule of 'flat pay rates', onto which are added statutory on-costs, allowances, overhead recovery and a small profit margin.[47]

• [40] Mr Hockaday's evidence was that in most cases the rate of pay required to be paid by WorkPac to its employees would increase if the application was to be granted and the order made.[48]

• [41] As at December 2024, WorkPac has employees at the Mine, including both permanent and casual employees, across the Mineworker Levels 1, 2, and 3 classifications under the WorkPac Enterprise Agreement. The specific numbers are covered by a confidentiality order.[49]

• [42] I will first deal with the PSW entities' submission as to acquisition of property, then the question of whether RLHA orders are required to be made pursuant to section 306E, then submissions as to the terms of the order.

• [43] Aa indicated above the PSW entities submitted that an RLHA order would give rise to an acquisition of its property otherwise than on just terms for the purposes of s.51(xxxi) of the Commonwealth Constitution and as contemplated in s.39 of the Fair Work Act. They submitted that as a consequence the Commission has no jurisdiction to make the order sought.

• [44] The PSW entities accepted that this issue had been dealt with by the Full Bench in Bengalla. They made the formal submission that the Full Bench in Bengalla was wrong but accepted that I would apply the reasoning in paragraphs [43] to [71] of that decision. Following the Full Bench in Bengalla, and applying the reasoning at those paragraphs, I find that s. 39 of the Fair Work Act does not affect the Commission's jurisdiction in this matter and does not otherwise provide a reason not to make the RLHA orders sought.

Whether RLHA orders required to be made under section 306E

• [45] Full Benches of this Commission have stated the principles for the proper application of section 306E, including those in Application by MEU re Callide Mine[50] ("Batchfire"), Application by the Mining and Energy Union re Rix's Creek[51] ("Rix's Creek"), and Bengalla. I will apply, but do not repeat, the principles stated in those decisions.

• [46] I have also had regard to the first instance decisions in Applications by the Mining and Energy Union Re Bulga Open Cut Mine,[52] ("Bulga"), Application by the Mining and Energy Union Re Mount Thorley/Warkworth Mine,[53] ("Mt Thorley/Warkworth"), Applications by Mining and Energy Union re Maules Creek Mine[54] ("Maules Creek") and Applications by Mining and Energy Union re United Wambo Open Cut Mine[55] ("United Wambo") each of which applied the approach taken in the Full Bench cases. While each case will turn on its own facts, similar arguments to those advanced here were advanced in those matters.

Section 306E(7)

• [47] I am satisfied, for the purposes of subsection 306E(7) of the Fair Work Act, that the MEU is an employee organisation that is entitled to represent the industrial interests of the employees of WorkPac, TESA, or HVA who are supplied to perform work for Glencore Mangoola at the Mine alongside employees of Glencore Mangoola employed to perform work at the Mine. Accordingly, the MEU is entitled to apply for a regulated labour hire arrangement order under section 306E of the Fair Work Act by operation of subsection 306E(7)(c).

Subsection 306E(1)

• [48] For the purposes of subsection 306E(1) of the Fair Work Act I am also satisfied, on the basis of the material filed, and noting these matters are not in dispute, that:

(a) WorkPac supplies employees employed by WorkPac to perform work for Glencore Mangoola at the Mine involving production work.

(b) TESA, on behalf of PSW, supplies employees employed by them to perform work for Glencore Mangoola at the Mine involving production work.

(c) The Glencore Mangoola Agreement would apply to employees of WorkPac who are supplied to perform work for Glencore Mangoola if Glencore Mangoola were to employ those employees directly to undertake the same kind of work.

(d) The Glencore Mangoola Agreement would apply to employees of TESA who are supplied to perform work for Glencore Mangoola if Glencore Mangoola were to employ those employees directly to undertake the same kind of work.

(e) Glencore Mangoola is not a small business employer.

• [49] As indicated above, HVA submitted that as it only employs trainees, an RLHA order should not be made in respect of it. It makes this submission in reliance on section 306E(9)(b) "as informed by" section 306E(1)(a) and (b).[56] The term "trainees" in this context, is a reference to persons engaged as trainees subject to "training arrangements" within the meaning of that term for the purposes of the Fair Work Act, who would not be entitled to the protected rate of pay, because of the operation of section 306G of the Fair Work Act.

• [50] Mr Cribb's evidence was that HVA supplies some employees to perform work for Glencore Mangoola at the Mine, but that "these are all indentured trainees who are performing work as part of a training arrangement under the Apprenticeship and Traineeship Act 2001 (NSW)."[57] This was not contested, and I accept that HVA does not supply any employees other than trainees.

• [51] The Glencore Mangoola Agreement covers and applies to "those employees of Mangoola covered by Schedule A of the Black Coal Mining Industry Award 2010 that perform production and engineering work at the mine."[58] Having regard to subclauses 16.1 and 16.9, and Schedule A, of that Award, I consider that while apprentices are covered by Schedule A, trainees are not. Accordingly, I find that subsection 306E(1)(b) is not met in relation to HVA, as it exclusively supplies trainees. An RLHA order will not be made in relation to HVA.

• [52] For the purposes of subsection 306E(1A) of the Fair Work Act, having regard to the matters set out in subsection (7A), I find the performance of work by the employees supplied by WorkPac or TESA to Glencore Mangoola at the Mine is not and will not be for the provision of a service. I find and am satisfied that each of WorkPac and TESA supplies labour to Glencore Mangoola.

Subsection 306E(2) and (8)

• [53] Having made the above findings, I am required, pursuant to subsection 306E(2), to make an RLHA order in respect of each of WorkPac and TESA unless I am satisfied that it would not be fair and reasonable in all the circumstances to do so, having regard to any matters in subsection 306E(8) in relation to which submissions have been made. That exclusion is in issue in these proceedings.

• [54] The parties are in dispute as to whether it would not be fair and reasonable to make the order. The labour hire employers and Glencore Mangoola submitted it would not be fair and reasonable to make the orders, enlivening the exclusion. The MEU submitted to the contrary.

• [55] Unless the Commission is positively satisfied that it is not fair and reasonable to make an RLHA order, the prohibition does not arise.[59] The matters in subsection 306E(8) are mandatory considerations if a submission is made in that regard; otherwise, the Commission may take account of such matters as part of "all of the circumstances" even if no submission is advanced.[60]

• [56] The assessment of whether it would not be fair and reasonable to make the orders must be undertaken having regard to the statutory context in which Part 2-7A of the Fair Work Act appears. That includes the objects of the Fair Work Act, and also the relationship between RLHA orders, collective bargaining, and enterprise agreements. A broad value judgement is required, balancing various interests affected by the order, and having regard to the matters in subsection (8) at least to the extent submissions are made about them.[61]

• [57] There is no presumption that it is fair and reasonable to make an order.[62] The facts of the supply of labour, and the arrangements under which employees are supplied, can be considered as part of all of the circumstances. The fact that, and the degree to which, labour hire employees receive a lesser rate of pay compared with Glencore Mangoola's employees is relevant to the "fair and reasonable" assessment.[63]

• [58] There is no assumption, by reference to section 3(f) of the Fair Work Act, that it is not fair and reasonable to make the RLHA order sought simply because doing so might affect the operation of an enterprise agreement that applies to the labour hire employer. The significance of the industrial arrangements that apply to the labour hire employer will depend on the circumstances.[64]

Whether it is not fair and reasonable to make an order to apply to TESA

• [59] The PSW entities relied on a passage regarding fairness from a judgment of a majority of the High Court of Australia, Mondelez Australia Pty Ltd v AMWU.[65] It had made a corresponding submission in Bengalla, and I will adopt the Full Bench's approach in that regard.

• [60] As to fairness to employees, TESA accepted the RLHA order if made would mean its employees would have a higher rate of pay. They submit, though, that if employees perceive that the current rates of pay are unfair to them, that unfairness in this regard "is already moderated and accounted for by the enterprise bargaining mechanisms" contained in Part 2-4 of the Fair Work Act.

• [61] The PSW entities submitted it would be unfair and unreasonable to make the RLHA order considering the position between employees. They submitted TESA's employees had negotiated the TESA Enterprise Agreement and its predecessors "against a backdrop of the work to be performed, the skills to be applied to that work, and the productivity benefits to be exchanged." They submitted that the Glencore Mangoola Agreement had been negotiated by Glencore Mangoola, and that entity's employees, against a different backdrop of work, skills and productivity exchanges. They submitted it would be unfair to Glencore Mangoola employees for TESA employees to be remunerated on the same basis as them.[66]

• [62] The PSW entities made submissions as to why making the RLHA order would be unfair and unreasonable to PSW and TESA. They submitted that if the RLHA order was made, the fruit of TESA's labour hire contract is taken away, as profit that has been earned to date is absorbed by the increased leave balances. It submitted there is no capacity in the PSW Supply Agreement to recover this amount. It submitted that under the terms of the PSW Supply Agreement it had no rights to terminate and at the very least it was unclear whether they would have any rights to pass through any additional costs incurred because of the operation of an RLHA order.

• [63] In addition, it submitted that the Fair Work Act had conferred an entitlement on TESA to negotiate an enterprise agreement with its employees. It had done so, and the TESA Enterprise Agreement had been made. TESA had negotiated that enterprise agreement at a point in time where the operation of Part 2-7A was not a prospect. They submitted that the Fair Work Act presently confers an entitlement to apply the TESA Enterprise Agreement to its workforce. It says the RLHA order if made would overturn the negotiation and the productivity exchange underpinning it, and would displace the enterprise agreement's most important terms, those relating to the rates of pay. It says the product of bargaining between Glencore Mangoola, and employees of Glencore Mangoola, reflects the circumstances of a different industrial relationship, and does not reflect TESA's bargain nor the make-up of its workforce.

• [64] As to fairness and reasonableness between employers, and between employers and employees, the PSW entities submit that all other employers and employees enjoy the right to enter into enterprise agreements which set a rate of pay in exchange for the work to be performed, the skills to be applied to that work, and the productivity benefits to be exchanged. The same cannot be said when it comes to TESA and its employees in the advent of a RLHA order. It goes on to readily accept that this is a consequence of the legislative intent behind Part 2-7A but submits that does not render the unfairness irrelevant.

• [65] To the extent that their submissions did not deal with the matters set out in subsection 306E(8), the PSW entities submitted those matters do not materially influence what is fair and reasonable in all of the circumstances in this proceeding.[67] This confirms they do not make submissions in respect of the matters in subsection (8) beyond those referred to above.

• [66] Glencore Mangoola submitted the Commission can and should be satisfied that it is not fair and reasonable in all the circumstances to make the RLHA orders. It made that submission on the basis that:[68]

(a) the Glencore Mangoola Agreement contains a single rate of pay that applies to its employees, which is reflective of its experienced and multi-skilled production operator workforce; and

(b) by comparison, the employees of the labour hire employers are overall less experienced than the employees of the Company and are predominately only able to operate haul trucks. As a consequence, their contribution to the Mine, while important, is not as valuable as the contribution of the Company's employees;

(c) it would therefore be inequitable for employees of the labour hire employers to be paid the same as Glencore Mangoola's production employees, many of whom have spent their entire career mastering a range of mining equipment.

• [67] It submitted it does not engage personnel through the labour hire employers in an attempt to undermine the rates of pay that have been negotiated in the Glencore Mangoola Agreement. Rather, Glencore Mangoola's engagement with the labour hire employer provides an important pathway for inexperienced production operators to gain valuable skills and experience at the Mine, and provided that they meet the standards the Company expects of its employees, creates the opportunity for permanent employment with Glencore Mangoola.

• [68] As to paragraph 360E(8)(a), Glencore Mangoola submitted that its enterprise agreement contains a single pay level applying to its employees who perform production and engineering work at the Mine. It says the use of this rate of pay reflects that Glencore Mangoola's employees, including qualified tradespersons and operators who are covered by the Glencore Mangoola Agreement, are multi-skilled and have significant experience working at the Mine. It says all of its employed production operators have a minimum of 12 months of relevant experience in the coal mining industry. Approximately 92% of production operators employed by Glencore Mangoola have three or more competencies, meaning they can operate multiple pieces of mobile plant and equipment across the fleet, not just haul trucks. By comparison, the production operators employed by the labour hire employers are predominately new to the industry and only competent to operate haul trucks.

• [69] Glencore Mangoola submitted the Mine relies on the efficient production of high volumes of coal, and that efficiency is driven by productivity - specifically excavator productivity and haul truck productivity. It says there are a limited number of factors that Glencore Mangoola can control in order to create the environment for excavators and haul trucks to operate efficiently. These factors are blast fragmentation, bench size, and roads. Otherwise, the productivity of the Mine depends on the excavator and haul truck operators.

• [70] Glencore Mangoola submitted that the work of production operators is allocated according to the skills and competency of the individual operators, a matter accepted by Mr Carroll in cross-examination.[69] Glencore Mangoola submitted that meant its production operators are allocated to a wide range of equipment and to higher risk mining tasks because they are generally multi-skilled and they have experience operating in a variety of challenging conditions and environments.

• [71] Glencore Mangoola submitted that as a general rule for the haul trucks, inexperienced operators are utilised on the lower priority dig tools, circuits of lower operating risk and on low-risk tip heads. It says further, suitably trained and competent operators are assigned to higher risk tasks, particularly in wet weather conditions. It submitted employing multi-skilled and experienced production operators is crucial to the day-to-day operations of the Mine because it provides the Company with the flexibility to allocate resources to meet changing operational needs, which are influenced by a range of factors, including changes to operations in response to disruption caused to operations by noise and dust; wet weather; labour availability; and logistical delays.

• [72] It submitted that the Glencore Mangoola Agreement does not include an 'inexperienced mineworker' rate or differential pay rates. The Glencore Mangoola Agreement was made prior to the Same Job, Same Pay reforms, and Glencore Mangoola did not contemplate covering employees outside of its directly employed workforce.

• [73] As to paragraph 360E(8)(c) Glencore Mangoola submitted it had an established history of active engagement with the MEU and enterprise bargaining. The production and maintenance employees are covered by the Glencore Mangoola Agreement, which contains terms and conditions that are significantly more beneficial than the Award, and which had been negotiated with the MEU's predecessor union. It submitted that the Glencore Mangoola Agreement had been approved by the required majority of employees. It submitted that that agreement does not restrict the use of contracted labour and contemplates Glencore Mangoola's right to utilise such labour to the extent it is referred to in the agreement's Security of Employment provisions. And Glencore Mangoola submitted that the Glencore Mangoola Agreement gives effect to a key object of the Fair Work Act, namely the primacy of enterprise-level bargaining.

• [74] It submitted the single rate of pay and other conditions of the Glencore Mangoola Agreement were negotiated with regard to rates of pay of production and maintenance employees in the Hunter Valley region, and reflect the particular value from the experience, qualifications, skills and competence of Glencore Mangoola's employees covered by the agreement. It submitted that there is no evidentiary basis to claim, let alone allow for a finding, that the single rate in the Glencore Mangoola Agreement has been undermined by the Company's use of contracted labour. It also noted that the PSW and WorkPac each have a history of negotiating enterprise agreements with the MEU (or its predecessors).

• [75] As to paragraph 306E(8)(d), Glencore Mangoola relied on the fact that it and the labour hire employers are not related body corporates and were parties to arrangements negotiated in good faith and at arm's length. It submitted there is no basis to claim that using labour hire has the effect of undercutting the pay rate for employees employed under the Glencore Mangoola Agreement, nor what rate (or rates) might be negotiated in any future agreement. The use of labour hire reflects commercial arrangements under which the labour hire employers provide certain production operators who are predominately new to the industry or inexperienced production operators. It submitted it does not directly employ casual employees and nor does it employ inexperienced, unqualified persons as production operators.

• [76] As to paragraph 306E(8)(e) Glencore Mangoola submitted the labour hire employers are reputable third-party businesses, with an umbrella agreement with Glencore Coal Assets. It submitted it also has a site-specific agreement with each of the labour hire employers, and raises purchase orders with them, which are governed by the terms of the umbrella agreement and site-specific agreement. The labour hire employers are also covered by their own enterprise agreements.

• [77] Glencore Mangoola submitted that the discretion afforded to the Commission at paragraph 306E(8)(f) allows the Commission to include in its assessment the particular make-up of the Company's workforce and the characteristics of the Glencore Mangoola employees compared to the employees of the labour hire employers. It submitted that by using labour hire Glencore Mangoola provides the "training ground" and opportunity for new-to-industry and other inexperienced employees to develop the skills and proficiency that reaches a level where they are likely to be suitable to be offered employment with Glencore Mangoola.

• [78] It submitted its own employees, covered by the Glencore Mangoola Agreement, constitute a workforce of particular characteristics taking into account experience, qualifications, skills and competence for which the single rate of pay has been set at a commensurate level in enterprise bargaining with those employees represented by the MEU. Glencore Mangoola submitted that it ought to be accepted that the use by Glencore Mangoola of the labour hire employees is not designed to, nor has the effect of, undercutting or undermining bargained rates under the Glencore Mangoola Agreement, nor what rate might be negotiated in any future agreement, or otherwise cause an issue that regulated labour hire arrangement regime is designed to address.

• [79] The MEU made submissions as to the proper approach to construing section 306E, the application of the objects set out in section 3 of the Fair Work Act to matters of this kind, whether considering fairness as between categories of persons was the right approach, and how to approach the assessment of whether it would not be fair and reasonable to make the order. It submitted that employees' ability to bargain for a new enterprise agreement was not relevant to the overall objectives of Part 2-7A of the Fair Work Act. In any event, it submitted, the single rate of pay in the Glencore Mangoola Agreement was not bargained for on the basis of work, skills, or productivity exchanges. It argued that the PSW entities' submissions about fairness to them amounted to little more than a complaint that they would have to pay their employees more.

• [80] In reply, the MEU submitted that the engagement of WorkPac and the PSW entities is a clear instance of outsourced labour on a permanent basis in lieu of direct engagement of employees by Glencore Mangoola. It submitted the upshot of Glencore Mangoola's practice of engaging labour hire, not for the purpose of surge work or specialist temporary work, is that wages and conditions of directly employed employees of Glencore Mangoola set by enterprise agreements are necessarily undermined. It submitted that the presence of labour hire providers paying employees less than the negotiated rate set by the Glencore Mangoola Agreement undercuts in a real practical sense the terms and conditions provided by the Glencore Mangoola Agreement at the mine.

• [81] The MEU submitted that Glencore Mangoola's reliance on the method of using inexperienced labour hire workers and determining whether to engage them directly is a matter that is not capable of bearing on the fairness and/or reasonableness of the RLHA orders sought. It submitted there is no tenable basis for Glencore Mangoola to engage inexperienced or new employees including under traineeships; historically, this is what companies in the Glencore group did before outsourcing it to lower paid labour hire employers. The MEU submitted it is unclear under what, if anything, these points have to do with fairness and reasonableness of an RLHA order, given that such an order will not preclude or otherwise impact WorkPac and PSW employees who may be inexperienced from continuing to work at the mine.

• [82] The MEU did not consider it significant, for assessing fairness and reasonableness, that Glencore Mangoola does not directly engage casual workers. As to the question of experience, the MEU's submission was that employees do not require extensive training before they are sufficiently competent to operate plant and machinery. They submitted that once an employee gains a competency on a particular item, they can operate that item without direct supervision and no further assessment. They argued that the amount of experience was not relevant; a worker was either competent or not.

• [83] The MEU submitted that many other mining companies have enterprise agreements that have a single classification. It submitted there is nothing in the Glencore Mangoola Agreement or any other objective piece of evidence which indicates that the flat classification structure is premised on Glencore Mangoola only employing employees that it says are experienced. The assertions that Glencore Mangoola may do this, as a business decision it has made, cannot point against a RLHA order being unfair or unreasonable.

• [84] The MEU submitted that the fact that the regulated host and the labour hire employees are not related bodies corporate, have arms-length supply agreements, and site-specific agreements, are neutral. They submit that in any event, the umbrella agreement makes it clear that neither WorkPac nor the PSW entities have any guarantee of ongoing work, which weigh against a finding that it would not be fair and reasonable to make an RLHA order.

• [85] I will deal first with the PSW entities' submissions. As was the case in Bengalla, there was no evidence that any employee of Glencore Mangoola considered it would be unfair if TESA employees were to become entitled to be remunerated on the same basis as them. I also do not accept it would be objectively unfair for the employees of the two entities to be paid the same given the uncontested facts as to the nature of the work, and the nature of its performance, that I have set out at earlier in this decision. I adopt, but do not repeat, the approach of the Full Bench in Bengalla.[70]

• [86] Some of the parts of the PSW Supply Agreement relevant to the calculation of charge-out rates were subject to a confidentiality order, so I will not refer to specific provisions. It is enough to say that the parties turned their mind to the calculation of rates and the circumstances in which they might change. The agreement is detailed and goes to some length to allocate costs and risks as between the parties to it. I also observe that the question of which of PSW or Glencore Coal Assets is more greatly affected by the making of such an order is an economic one, not just a legal one.

• [87] More generally, the PSW entities' submissions in this matter were to the same effect as those made by companies within the same corporate group in Bengalla, Bulga, Mt Thorley/Warkworth, Maules Creek, and United Wambo. I adopt the reasoning from those decisions with necessary adaptation. It is not necessary to recite that reasoning here.

• [88] I will now deal with the submissions about the difference between the pay structures, and the employees' levels of skill and experience, as between Glencore Mangoola and TESA. The decision in United Wambo considers a similar factual situation.

• [89] It was clear on the evidence that there were substantially more directly employed workers at the mine than labour hire employees.[71]

• [90] On the evidence, on average, employees of Glencore Mangoola had significantly more experience at the Mine than employees of the labour hire employer. As I stated, this is the position on average; there were outliers. As at 17 March 2025, one TESA and one WorkPac employee had more than two years' experience at the Mine, while several of Glencore Mangoola's employees had less than two years' experience at the Mine (though the Glencore Mangoola employees had a minimum of twelve months' experience in the coal mining industry).[72]

• [91] In cross-examination Mr Carroll accepted that the work of production operators is allocated according to the skills, competency, and experience of the individual operators.[73] However, he did not accept that inexperienced operators were utilised on lower priority dig tools, or assigned to the circuits of lower operating risk, or on low-risk tip heads. He said "everyone drives a truck, and they go everywhere. It doesn't matter where they're allocated or what the risk factor and the noise is. Truck drivers just go and do it."[74] It appeared from Mr Carroll's evidence that he considered the term 'inexperienced operator' to be interchangeable with trainees, while Glencore Mangoola considered a mineworker could have completed the traineeship but still be considered inexperienced compared with other mineworkers. This difference of opinion is reflected in the MEU and Glencore Mangoola's submissions. Mr Hockaday, for WorkPac, accepted, that once someone has finished their traineeship, they become an experienced operator and go about doing exactly the same job they have been doing, principally, for a proportion of their traineeship.[75]

• [92] Turning now to formal competencies, the evidence shows that, on average, directly hired employees held more competencies than employees of the labour hire employers. Many of them have more than five competencies; some have ten or more. On the other hand, one TESA employee has more than five competencies, while several Glencore Mangoola employees had fewer than four competencies. Of those, two had two competencies each, and one had none.[76]

• [93] The majority of the Glencore Mangoola employees are multi-skilled, including in relation to operating trucks, water carts, and, depending on the individual, dozers, graders, and excavators. Labour hire employees are generally competent only to operate haul trucks,[77] though Mr Carroll was able to indicate that three labour hire employees (all WorkPac employees) also operated water carts.

• [94] In this matter the approach to pay rates under the regulated host instrument is different to the approach under TESA's enterprise agreement. TESA has a classification structure similar to that provided in Schedule A of the Award. In contrast, the Glencore Mangoola Agreement has a single classification, which covers all its production and engineering workers.

• [95] Further, the labour hire employees generally have limited experience and tend to be working in lower classifications under the TESA Agreement. On the other hand, Glencore Mangoola employees are generally experienced and would, if classified according to the Award classifications, be working in higher classifications.

• [96] The labour hire employees are likely to be offered employment with Glencore Mangoola if they are competent and fit in with the culture; employment with the labour hire employers provides an opportunity for Glencore Mangoola to assess individuals to see if they are likely to be suitable for an offer of permanent employment, having regard to competency, cultural fit, and compatibility with the safety culture at the Mine.[78]

• [97] Despite the nature of the directly employed workforce, the coverage of the Glencore Mangoola Agreement is not confined by reference to Award classification levels. Whether or not it could have been so confined, it in fact covers "those employees of Mangoola covered by Schedule A of the Black Coal Mining Industry Award 2010 that perform production and engineering work at the mine,"[79] rather than covering only those classified at Mineworker or above. This much is clear from the coverage provisions of the Glencore Mangoola Agreement, notwithstanding when the application to approve that agreement was made it was accompanied by a declaration that indicated that the single classification in the enterprise agreement corresponded with the Mineworker classification in the award.[80]

• [98] Whatever classifications Glencore Mangoola's employees would be working in if they were covered by the Award, the agreement nonetheless, in terms, covers employees who would be. The combined effect of the enterprise agreement's coverage and its single rate of pay is that the relativities between all of the Award classifications are essentially collapsed into a single classification.

• [99] Glencore Mangoola submitted it would be desirable to maintain current relativities. It submitted that the existing relativities in pay between production operators employed under the Glencore Mangoola Agreement, and the employees of the labour hire employers, appropriately reflect the different value of the work performed, as demonstrated by the evidence in these proceedings. It submitted these applications seek to, or would in effect, destroy such relativities. It pointed out that Australian wage fixing had long had a focus on work value and the maintenance of appropriate wage relativities, tracing back to restructuring and efficiency, later called structural efficiency, a principle established in 1987, as well as references to the relationship between classification structures and the value of the work performed in more recent Full Bench decisions. It submitted the Commission could have regard to the desirability of such structures in considering subsections 306E(2) and (8). It said that it was not fair and reasonable that its significantly more experienced and multi-skilled operators should be paid the same as a new entrant to the industry employed by the labour hire employers, who may have recently completed a traineeship, and/or is accredited only to drive haul trucks.[81]

• [100] Having regard to the classification definitions in the TESA Agreement and in Schedule A of the Award, and the classifications of those working under the TESA Agreement, referred to above, it is clear enough that at least some of TESA's employees would, if working under the Award, be classified as Mineworkers, within the definition in item A.2.3 in Schedule A to the Award. It is also clear that at least some of the Glencore Mangoola employees would be classified as Mineworkers. If these employees were all paid under the Award they would be paid according to that classification.

• [101] It is clear on the evidence that the Glencore Mangoola Agreement has been approved and has taken force as an enterprise agreement. It is to be inferred that the employees at the time, at least, agreed with the single-classification model, which is to say, agreed not to have a tiered classification structure, in contrast to the structure provided for in the Award, which, even putting aside the first and second level classifications, has tiers above the Mineworker classification. In other words, even if there were a clear line between the rates of pay for labour hire workers and direct employees, attributable to work value, the higher classifications are still collapsed into one.

• [102] I have turned my mind to whether, given the different classification structures, making an RLHA order might not be consistent with harmonious workplace relations. Glencore Mangoola submitted the union could have, but did not, file evidence to demonstrate whether the applications were supported by employees. On the other hand, as stated above there is no evidence that any Glencore Mangoola employee objects to the order being made; in fact, to the contrary. I have noted, above, that employees have previously voted to support the approval of the Glencore Mangoola Agreement including its single classification structure. I also note the union is a registered organisation and is therefore subject to democratic control requirements.[82] I infer from that status that it is at least more likely that the Glencore Mangoola employees, to the extent they are union members, support rather than oppose the application.

• [103] In the circumstances I do not consider the differing approach to payment, with one agreement having a flat structure and the other agreement having a tiered structure, gives rise to a finding that it would not be fair and reasonable, given both instruments share the same coverage.

• [104] Having considered the matters in subsection 306E(8), the evidence, and the parties' submissions, I am not satisfied that it is not fair and reasonable in all the circumstances to make the RLHA order in relation to TESA.

Whether it is not fair and reasonable to make an order to apply to WorkPac

• [105] WorkPac submitted that paragraphs (a) to (e) of s.306E(8) are a non-exhaustive list of particular matters that must be considered if raised by the parties, and paragraph (f) supplements that list by including 'any other matter the [Commission] considers relevant.' It submitted the matters referred to in paragraph (f) have the same statutory significance as those specified in paragraphs (a) to (e). Relying on Bengalla, it submitted that the Commission was required to undertake an evaluative exercise.

• [106] WorkPac also made submissions as to construing "fair and reasonable" in this context. I have dealt with this issue above.

• [107] WorkPac made submissions as to paragraphs (a) and (c) of subsection 306E(8). The submissions went to the nature of WorkPac and its business, and its arrangements with its employees. It referred to its "long history of engaging in enterprise bargaining and successfully making workplace and enterprise agreements with its workforces, including in (but not limited to) the black coal mining sector," including with the MEU and the union's predecessors.

• [108] It submitted that the WorkPac Agreement:

(a) has a pay and classification structure that closely aligns with the Black Coal Mining Industry Award classification structure;

(b) was approved by a majority of the employees who participated in a vote on the proposed enterprise agreement, such that its terms and conditions contained in the applicable document was taken to have been 'agreed to' by WorkPac's employees;

(c) provides terms and conditions which passed the 'better off overall' test as against the underlying Black Coal Mining Industry Award under the Fair Work Act to allow the Commission to approve the enterprise agreements; and

(d) provides certainty to WorkPac in its tenders for opportunities with its clients across the industry.

• [109] It submitted that the classification structure and applicable pay rates under the WorkPac Agreement are different to those in the Glencore Mangoola Agreement in, relevantly, the following respects:

(a) The WorkPac Agreement contains a tiered classification structure. Progress through the classifications is generally linked to minimum competencies. Pay rates for WorkPac employees are linked to the classification for each employee.

(b) There are no classifications contained within the Glencore Mangoola Agreement; with no differentiation depending on skills or experience. All employees working the same rosters are paid the same.

• [110] WorkPac submitted that making the RLHA order sought in this proceeding, by imposing on WorkPac and its employees, terms that are extraneous to their relationship, would inevitably disturb and distort these arrangements. It submitted that it is neither fair nor reasonable to do so, particularly in circumstances where there is no demonstrated need for any such imposition. In particular, it submitted, there is no factual basis for the MEU's submission that the engagement of WorkPac has led to any:

(a) undercutting of the security of employment of Glencore Mangoola's directly employed workforce;

(b) undermining of the collective strength of Glencore Mangoola's directly employed workforce; or

(c) undercutting of the wages bargained for by Glencore Mangoola's employees and the MEU in enterprise agreements.

• [111] WorkPac points out that the Glencore Mangoola Agreement contains no restrictions on the use of contractors by Glencore Mangoola, except in limited circumstances in clause 12 of that agreement. It says this means the parties to the Glencore Mangoola Agreement did not themselves seek to regulate the rates of pay to be paid to employees of contractors being utilised at the Mine. The complete absence of such regulation suggests that the parties were content for the pay rates for any contractors utilised at the Mine to be regulated as between the contractor

• [112] WorkPac also made submissions as to paragraphs (d), (e), and (f) of subsection 306E(8). It submitted the consequential effects of the making of the RLHA orders sought in these proceedings may include a material adverse effect on WorkPac's accrued liabilities for employee entitlements for annual leave and personal leave, which are calculated on the basis of pay rates under the WorkPac Agreement. Cumulatively with other applications for RLHA orders, if granted, this will have a material impact on WorkPac's profit. The WorkPac Supply Agreement was made against a commercial context that did not include the prospect of an RLHA order. Unless WorkPac's commercial arrangements with its clients allow for the recovery of the increased cost associated with the necessary payments having to be made by WorkPac to its employees covered by a particular RLHA order, the additional cost will have a significant impact on WorkPac's operations. Many arrangements may become wholly unviable and WorkPac would need to consider its options to respond to those challenges, which may include "terminating commercially unsustainable arrangements."

• [113] WorkPac further submitted, in relation to paragraphs (d), (e) and (f) of subsection 306E(8), that even if the costs can be passed on, an RLHA order could cause WorkPac's clients to reduce their use of WorkPac employees (in part or in full) because it is not viable to continue their operations with an increased labour cost with no productivity improvement across the whole of their operation.

• [114] It submitted that any deleterious impacts on WorkPac's revenue as a result of an RLHA order would inevitably have consequential flow-on impacts across the whole of WorkPac's business. To the extent this happens, the making of the RLHA order would diminish the security of, and opportunities for, employment for all of WorkPac's current employees, including those that work in sectors other than black coal mining, and the capacity of WorkPac to continue to contribute to the Australian labour market in every sector in which it operates.

• [115] WorkPac also made submissions as to section 3 of the Fair Work Act, and particularly the extent to which RLHA orders are or would be consistent with the provision regarding "achieving productivity and fairness through an emphasis on enterprise-level collective bargaining."

• [116] In closing submissions WorkPac dealt with the form of the order, which I have dealt with below. It submitted that the Commission is bound by the decision in Bengalla, and that Bengalla contemplates a balancing or evaluative exercise, necessarily requiring the Commission to consider the particular facts in each particular application before it. WorkPac also relied on paragraphs [82] and [83] of the decision in Bengalla to submit that it is not correct to say that there is some predisposition in favour of making order, simply because the requirements of subsections 306E(1) and (1A) are satisfied.

• [117] I have set out Glencore Mangoola's submissions above. Those submissions were made in respect of both WorkPac and the PSW entities. They related to similar facts, because the WorkPac Agreement provides for a classification structure more akin to that in the Award, and because the Glencore Mangoola workforce is on the whole more experienced than the WorkPac workforce. I adopt my consideration of Glencore Mangoola's submissions, set out above, with necessary adaptations, here.

• [118] Without limiting the foregoing, I note that I have dealt with the submissions relating to the differences between the approaches to payment, and the degrees of experience and skill of the regulated host's workforce compared with the labour hire workforce, above in respect of the application regarding the PSW entities. As was the case with the PSW entities the evidence shows that on average WorkPac's employees have less experience than, and fewer competencies than, Glencore Mangoola's directly hired employees. I also consider that there are employees of both employers that would be within the same classification under the Award, if the Award applied to them. I do not consider that the differences in approach - having a single classification, versus having a more traditional tiered classification structure - does not give rise to a finding that it would not be fair and reasonable to make the RLHA orders. My earlier reasoning and findings, in respect of this issue, apply with necessary adaptation to WorkPac's submissions on this point.

• [119] Having regard to the classification definitions in the WorkPac Agreement and in Schedule A of the Award, and the classifications of those working under the WorkPac Agreement, referred to above, it is clear enough that at least some of WorkPac's employees would, if working under the Award, be classified as Mineworkers, within the definition in item A.2.3 in Schedule A to the Award. It is also clear that at least some of the Glencore Mangoola employees would be classified as Mineworkers. If these employees were all paid under the Award they would be paid according to that classification.

• [120] Many of WorkPac's submissions in this matter were to the same effect as those it had made in Bengalla, Bulga, Mt Thorley/Warkworth, Maules Creek, and United Wambo. I adopt the reasoning from those decisions with necessary adaptation. It is not necessary to recite that reasoning in detail here. In summary, and without dealing with every argument individually, I accept, and I have taken into account, that:

• WorkPac has a long history of enterprise bargaining including in the black coal mining industry;
• WorkPac's current agreement was voted on by employees and passed the better off overall test;
• Making the RLHA order would disturb and distort pay arrangements compared with those in the WorkPac Enterprise Agreement;
• Making the RLHA order would affect accrued liabilities as well as pay rates, affecting the balance sheet as well as the profit-and-loss statement;
• WorkPac and Glencore Mangoola may reconsider their current arrangements if additional costs are incurred and/or passed on.

• [121] Having had regard to the reasoning set out in the decisions I have referred to above, and having considered the matters in subsection 306E(8), the evidence, and the parties' submissions, I am not satisfied that it is not fair and reasonable in all the circumstances to make the RLHA order in relation to TESA.

• [122] In addition to omitting HVA from any RLHA order, the PSW entities sought alterations to the MEU's proposed draft orders to confine them in respect of the type of work covered, and in respect of the supply of labour and not the future provision of services, if any.[83] WorkPac adopted those submissions.

• [123] I accept that I am not confined to the relief sought by the applicant. However, for the reasons set out in Maules Creek, and with a view to consistency with other regulated labour hire arrangement orders, including those made by Full Benches in Boggabri and Bengalla, I will make the orders without making variations sought by any Respondent.

• [124] For the reasons set out above I will not make an RLHA order in respect of HVA.

• [125] For the reasons set out above, pursuant to section 306E of the Fair Work Act I am required to make regulated labour hire arrangement orders in respect of each of TESA and WorkPac, in matter numbers LH2024/14 and 15 respectively.

• [126] I will publish the orders together with this decision, setting out the matters specified in subsection 306E(9).

• [127] The labour hire employers requested that any order commence operation on a Sunday to accommodate their payroll cycles. They sought a period of two weeks before the orders took effect to prepare for implementation.

• [128] The operative date of the RLHA order in matter LH2024/14, in relation to the PSW entities, will be Sunday 17 August 2025. The operative date of the RLHA order in matter LH2024/15, in relation to WorkPac, will be Sunday 17 August 2025.

• [129] Each date has been selected to meet the requests in relation to alignment with the payroll cycle, and to give TESA and WorkPac some time to make the necessary arrangements to give effect to the orders.

• [130] The MEU's draft orders dealt with when the orders will cease to be in force. I have included the proposed specifications in that regard, in the RLHA orders.

Mr J. McLean of Counsel instructed by MinterEllison for WorkPac Mining Pty Ltd

Mr L. Howard of Counsel instructed by Kingston Reid for Programmed Skilled Workforce Limited

Mr J. Murdoch of King's Counsel and Mr K. Brotherson of Counsel instructed by Corrs Chambers Westgarth for Mangoola Coal Operations Pty Limited

[1] Exhibit 9, Statement of Mr Cribb, [6].

[2] PSW entities' outline of submissions filed 21 January 2025.

[3] PSW entities' outline of submissions filed 21 January 2025.

[4] [2025] FWCFB 53.

[5] PSW entities' outline of submissions filed 21 January 2025.

[6] Application by Mining and Energy Union [2025] FWC 779.

[8] Exhibit 9, Statement of Mr Cribb, [9].

[9] Exhibit 12, Statement of Mr Hundertmark, [14].

[10] Exhibit 1, Statement of Mr Carroll, [9] and annexure MC-1.

[11] Exhibit 12, Statement of Mr Hundertmark, [22].

[12] Exhibit 12, Statement of Mr Hundertmark, [22].

[13] Examination-in-chief of Mr Hundertmark, PN1668 - PN1672.

[14] Exhibit 1, Statement of Mr Carroll, [15].

[15] Exhibit 1, Statement of Mr Carroll, [17].

[16] Exhibit 1, Statement of Mr Carroll, [18]; cross-examination of Mr Carroll, PN748 and following.

[17] Exhibit 12, Statement of Mr Hundertmark, [29].

[18] Exhibit 1, Statement of Mr Carroll, [28].

[19] Exhibit 1, Statement of Mr Carroll, [26].

[20] Re-examination of Mr Carroll, PN792 to PN798.

[21] As to the dozers see the cross-examination of Mr Carroll, PN773.

[22] Examination-in-Chief of Mr Hundertmark, PN1684-PN1688.

[23] Exhibit 1, Statement of Mr Carroll, [29]-[32].

[24] Cross-examination of Mr Carroll, PN732.

[25] Exhibit 1, Statement of Mr Carroll, [33]-[34].

[26] Exhibit 1, Statement of Mr Carroll, [35].

[27] Exhibit 1, Statement of Mr Carroll, [36]-[41].

[28] Exhibit 1, Statement of Mr Carroll, [45]-[46].

[29] Exhibit 1, Statement of Mr Carroll, [44].

[30] Exhibit 1, Statement of Mr Carroll, [53].

[31] Exhibit 1, Statement of Mr Carroll, [57], and Exhibit 4, Statement of Mr Howard, [15].

[32] Exhibit 1, Statement of Mr Carroll, [10].

[33] Exhibit 4, Statement of Mr Howard, [17] and annexure MH-2, TESA Enterprise Agreement, cll 2, 3.2, and 11.1.

[34] Exhibit 9, Statement of Mr Cribb, annexure JC-1, cl 1.19.

[35] Exhibit 9, Statement of Mr Cribb, [10] and annexure JC-1.

[36] Exhibit 9, Statement of Mr Cribb, [12].

[37] Exhibit 9, Statement of Mr Cribb, annexure JC-1, sch 3, and annexure JC-3.

[38] Exhibit 9, Statement of Mr Cribb, [12]-[14].

[39] Exhibit 9, Statement of Mr Cribb, [15].

[40] Exhibit 9, Statement of Mr Cribb, [17]-[18].

[41] Exhibit 1, Statement of Mr Carroll, [58]-[59]. Exhibit 9, Statement of Mr Cribb, [24]-[25].

[42] Exhibit 4, Statement of Mr Howard, [32].

[43] Exhibit 4, Statement of Mr Howard, [32]. Exhibit 9, Statement of Mr Cribb, [13].

[44] Exhibit 4, Statement of Mr Howard, [34].

[45] Exhibit 4, Statement of Mr Howard, [16] and annexure MH-1, cll 1.2, 1.4, 8, Schedule 1; Outline submissions of WorkPac filed 31 December 2024.

[46] Exhibit 5, Statement of Mr Hockaday, [52].

[47] Exhibit 5, Statement of Mr Hockaday, [52] and annexure CH-1, Schedule 3.

[48] Exhibit 5, Statement of Mr Hockaday, [58(a)].

[49] Exhibit 5, Statement of Mr Hockaday, [54].

[50] [2024] FWCFB 299.

[51] [2025] FWCFB 12.

[52] [2025] FWC 1273.

[53] [2025] FWC 973.

[54] [2025] FWC 1499.

[55] [2025] FWC 1932.

[56] PSW entities' outline of submissions filed 21 January 2025.

[57] Exhibit 9, Statement of Mr Cribb, [13].

[58] Exhibit 1, Statement of Mr Carroll, annexure MC-1, Glencore Mangoola Agreement cl 1(b).

[59] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [78], applying Application by MEU re Callide Mine [2024] FWCFB 299, [16]. See also Application by the Mining and Energy Union re Rix's Creek [2025] FWCFB 12, [49]-[50].

[60] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [79].

[61] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [81].

[62] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [83].

[63] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [87]-[88].

[64] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [93].

[65] [2020] HCA 29; (2020) 271 CLR 495, [14] (Kiefel CJ, Nettle and Gordon JJ).

[66] The PSW entities' outline of submissions filed 21 January 2025, [30]-[31].

[67] PSW outline of submissions filed 21 January 2025, [35].

[68] Glencore Mangoola's outline of submissions filed 31 December 2024 and supplementary submissions filed 9 May 2025.

[69] Cross-examination of Mr Carroll, PN625.

[70] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [120]-[121].

[71] Cross-examination of Mr Carroll, PN528 - PN540.

[72] Cross-examination of Mr Carroll, PN542 - PN543.

[73] Cross-examination of Mr Carroll, PN625; PN732.

[74] Cross-examination of Mr Carroll, PN638.

[75] Cross-examination of Mr Hockaday, PN996.

[76] Exhibit 3, Mangoola - Production Crew C 17 March 2025.

[77] Cross-examination of Mr Carroll, PN544 - PN550; Exhibit 3.

[78] Cross-examination of Mr Carroll, PN570 - PN573.

[81] Glencore Mangoola's supplementary submissions filed 9 May 2025.

[82] Fair Work (Registered Organisations) Act 2009 (Cth) Ch 7.

[83] PSW entities' outline of submissions filed 21 January 2025, and closing submissions.

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