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

Applications by the Mining and Energy Union re Ravensworth Coal

Applications for regulated labour hire arrangement orders in respect of Programmed Skilled Workforce Pty Ltd and the TESA Group Pty Ltd, CoreStaff NSW Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed at the Ravensworth Mine for Ravensworth Coal Management Pty Ltd - Parties accept that requirements in s 306E(1) and (1A) are met - Whether the Commission should be satisfied making the orders sought is not fair and reasonable in all the circumstances - Where some difference in skills and experience of directly engaged and labour hire employees - Where one rate of pay for all employees under the host employment instrument - Whether not fair and reasonable for labour hire employees to receive the same rate of pay - Impact of orders on labour hire employers - Whether necessary to specify classification of regulated employees covered by orders - Whether necessary to determine if labour hire employees would be covered by host employment instrument - Orders made.

• [1] On 9 December 2024, the Mining and Energy Union (the MEU) filed three applications for regulated labour hire arrangement orders under s 306E of the Fair Work Act 2009 (Cth) (the Act). The orders sought by the MEU would apply to workers employed by CoreStaff NSW Pty Ltd (CoreStaff), Programmed Skilled Workforce Pty Ltd and TESA Group Pty Ltd (TESA) and WorkPac Mining Pty Ltd (WorkPac), respectively, who perform work for Ravensworth Coal Management Pty Ltd (Ravensworth) at the Ravensworth Mining Operations (the Ravensworth Mine or the Mine). The host employment instrument is the 2021 Ravensworth Open Cut Enterprise Agreement (AE513147) (the Ravensworth Agreement).

• [2] The Ravensworth Mine is an open cut coal mine situated between Singleton and Muswellbrook in the Hunter Valley in New SouthWales, and produces thermal and metallurgical coal for export. The mine was acquired in 2003 by Xstrata Coal (now Glencore) and is 100 per cent owned and operated by Glencore. Approximately 431 workers are engaged as production operators at the Mine. A majority of the workers are directly employed by Ravensworth. In addition, labour hire workers are supplied to perform work at the Mine by CoreStaff, TESA and WorkPac. At the time of the hearing of the applications, 299 production operators were employed at the Mine by Ravensworth, 35 workers were supplied by CoreStaff, 97 workers were supplied by TESA and a single service cart operator was supplied by WorkPac. A small number of other employees were supplied by CoreStaff and TESA in other roles.

• [3] The matters about which the Commission must be satisfied for the obligation to make a regulated labour hire arrangement order to arise are set out in s 306E of the Act, primarily s 306E(1), (1A) and (2). It is appropriate to record at the outset that Ravensworth, CoreStaff, TESA and WorkPac each accept that the Commission can be satisfied of the matters set out in s 306E(1) and (1A). That is, CoreStaff, TESA and WorkPac each accept that they supply employees to perform work for Ravensworth, that those employees would be covered by the Ravensworth Agreement if they were employed by Ravensworth to perform work of that kind, that Ravensworth is not a small business employer and that the performance of work by the employees supplied to Ravensworth is not or will not be for the provision of a service rather than the supply of labour.

• [4] Section 306E(2) also provides that the Commission must not make the order otherwise required to be made under subsection (1) if it is satisfied "that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made". Each of Ravensworth, CoreStaff, TESA and WorkPac submit, for somewhat different reasons, that the Commission should be satisfied that it is not fair and reasonable in all the circumstances to make the orders sought by the MEU. In addition, TESA submits that the MEU application with respect to its employees must be dismissed because it would result in the acquisition of property otherwise than on just terms for the purposes of s 39 of the Act and makes submissions as to the form of the orders required to be made so as to "specify" the regulated employees covered by the order for the purposes of s 306E(9)(c).

• [5] For the reasons that follow, I am satisfied that the requirements in s 306E(1) and that the performance of work by regulated employees supplied by CoreStaff, TESA and WorkPac is not for the provision of a service rather than the supply of labour for the purposes of s 306E(1A). I am not satisfied that it is not fair and reasonable in all the circumstances to make orders with respect to CoreStaff, TESA and WorkPac for the purposes of s 306E(2). Section 39 of the Act is not engaged by a regulated labour hire arrangement order that covers relevant employees and, in my opinion, does not deprive the Commission of jurisdiction to make the orders sought by the MEU. As a result, the Commission is required by s 306E(1) to make regulated labour hire arrangement orders in each case.

• [6] The evidence before the Commission in relation to the applications comprised the following:

(a) A witness statement of Ben Fernie dated 3 February 2025 and a witness statement in reply of Mr Fernie dated 10 March 2025. Mr Fernie is employed by Ravensworth as a maintenance electrician at the mine and is the site electrical safety and health representative and vice chairperson of the work health and safety committee at the mine. Mr Fernie gives evidence in relation to the operations of the mine, the work performed by employees at the mine and the working arrangements for employees of Ravensworth and labour hire suppliers.

(b) A witness statement of Matthew Howard dated 3 February 2025. Mr Howard is District Vice President of the Northern Mining and NSW Energy District Branch of the MEU. Mr Howard gives evidence in relation to the operations of the mine, the history of enterprise bargaining at the mine and the contracts, assignment sheets and payslips of employees of TESA, CoreStaff and WorkPac who are supplied at the mine.

(c) A witness statement of Thomas Hubert filed 3 March 2025. Mr Hubert is employed by Glencore Coal Assets Australia Pty Ltd as the Operations Manager at the Ravensworth mine. Mr Hubert gives evidence in relation to the nature of the operations of the mine, the duties of the production workforce, the labour hire employees supplied to perform work at the mine and the arrangement and deployment of the workforce.

(d) A witness statement of Selena Davis filed on 3 March 2025. Ms Davis is employed by Glencore Coal Assets Australia Pty Ltd as Human Resources Manager at the mine. Ms Davis gives evidence in relation to the recruitment processes adopted with respect to production operators and the making of the current Ravensworth Agreement.

(e) A witness statement of Renee Kearney dated 3 March 2025. Ms Kearney is Business Manager - Hunter Valley for CoreStaff NSW Pty Ltd. Ms Kearney gives evidence in relation to the supply of employees of CoreStaff to the mine, the experience and skills of those employees, the allocation of work and rostering of employees at the mine and the terms of the CoreStaff NSW Black Coal Enterprise Agreement 2018 including with respect to pay.

(f) A witness statement of Cameron Hockaday dated 3 March 2025, and a supplementary statement of Mr Hockaday dated 8 April 2025. Mr Hockaday is Chief Commercial & Risk Officer of WorkPac Group Pty Ltd which is the parent company in WorkPac Mining Pty Ltd. Mr Hockaday gives evidence providing an overview of WorkPac's operations, the history of enterprise bargaining by WorkPac and the asserted implications of a regulated labour hire arrangement order being made, including financial impacts.

(g) A witness statement of Joel Cribb dated 3 March 2025. Mr Cribb is employed by Programmed TESA Workforce Ltd as General Manager North - Energy and Resources. Mr Cribb gives evidence in relation to the supply contract between TESA and Ravensworth, the number and skills mix of employees supplied to the mine and the effect of a regulated labour hire arrangement order on the leave liabilities of TESA.

• [7] The witness statements were each admitted into evidence and oral evidence was also given by Mr Howard, Mr Fernie, Mr Hockaday, Mr Cribb, Ms Davis and Mr Hubert. Confidentiality orders were made with respect to certain aspects of the witness statements of Mr Hockaday and Mr Cribb, as well as the annexures to those witness statements, which contained reference to sensitive financial information of those businesses. Some other documents were tendered. I have considered and taken into account all of the evidence filed by the parties and the oral evidence given by the witnesses who were required for cross-examination.

• [8] The Ravensworth mine is an open cut coal mine. The mine is comprised of an open cut pit from which coal is extracted, a coal handling and preparation plant (the CHPP), train loading infrastructure, coal stockpiling and reclaim areas, a maintenance workshop and site offices. The mine had six "benches" within a single pit which permit access to 64 separate coal seams. The mine operates 24 hours a day, seven days a week and covers an area of approximately 4,683 hectares.

• [9] The mine utilises a fleet of hydraulic shovels, excavators and haul trucks to produce thermal and metallurgical coal. In overview, the mining operations involve stripping of topsoil using an excavator which loads the topsoil onto haul trucks for it to be transported to a designated stockpile area, drill and blast operations in which explosives are used to break up the overburden layer above the coal seams, overburden removal involving use of excavators to dig and load the overburden onto haul trucks for removal and coal mining involving excavators digging and loading coal onto haul trucks to be transported to either a Run-of-Mine hopper or coal stockpile area. The Run-of-Mine hopper transports the coal to the CHPP where it is crushed, washed and further treated. Once processed, the coal is loaded directly onto rail cars for transport.

• [10] The production equipment in use at the mine includes hydraulic shovels, excavators, loaders, haul trucks, water carts, dozers, graders and drills. The role of production operators is to operate the various types of heavy machinery. The production operator workforce is divided into twelve crews being Drilling and Blasting Crew 1, 2, 3 and 4, Overburden Crew 1, 2, 3 and 4 and Coal and Partings Crew 1, 2, 3 and 4. Each crew has three supervisors who are, among other things, responsible for assigning operators to particular pieces of equipment. At the time of the preparation of the evidence in the proceedings, Ravensworth operated 103 pieces of machinery at the mine being 3 hydraulic shovels, 6 excavators, 2 loaders, 57 haul trucks, 5 water carts, 18 dozers, 5 graders and 7 drills.

• [11] To operate a particular piece of machinery, a production operator must be tested and certified as competent by a trainer/assessor. This is referred to as being "passed out". Mr Hubert gives evidence that production operators are allocated to machinery based on their skill and proficiency and that the allocation at the start of the shift may need to change as a result of prevailing operational or environmental conditions. Circumstances that may require a change to the allocation of work include machinery breakdowns, dry weather, wet weather, changes to the mine plan and absenteeism. Mr Hubert suggests that it is, therefore, critical to the safe and efficient operation of the mine that the production operator workforce is passed out on a variety of mining equipment so that supervisors have the flexibility to allocate workers to different pieces of machinery as needed.

• [12] There was some dispute on the evidence as to the extent to which supervisors are in a position to assess the skills of particular production operators beyond that a worker has been passed out as competent to operate particular pieces of machinery. Mr Fernie contested that allocations are based on the degree of skill or proficiency of a worker. I do not consider that anything turns on that issue for present purposes. I accept that there is a benefit to Ravensworth in having production operators who are able to operate multiple pieces of machinery as it assists by providing flexibility in the deployment of staff. Having said that, on any shift the majority of production operators will be operating haul trucks because of the number of haul trucks being operated at any time compared to other machinery types.

• [13] Mr Hubert indicates that efficient production at the mine is primarily driven by the interaction between haul trucks and load units. The mine operates two models of haul trucks being a CAT 797 and CAT 789. The CAT 797 truck is referred to as a class Tier 1 vehicle whereas the CAT 789 is a class Tier 2 vehicle. Mr Hubert gives evidence that Tier 1 loading units and haul trucks have the greatest impact on the overall productivity of the mine as they move approximately 75 per cent of the mine's material. The target number of buckets per hour for Tier 1 loading units is 50-55 buckets. The Tier 1 haul trucks are on average budgeted to move 360 cubic metres of material per hour, while the Tier 2 haul trucks are budgeted to move 200 cubic metres per hour. I accept that aspect of Mr Hubert's evidence.

• [14] The production operator workforce at the time of the preparation of the evidence comprised 399 employees of Ravensworth, 35 employees of CoreStaff and 97 employees of TESA. Of the 97 employees of TESA supplied to the mine, 28 are currently trainees. In addition, TESA employs five bench hands and one dozer operator who undertakes rehabilitation work, Corestaff employs five bench hands and one warehouse officer and WorkPac employs one service cart operator. "Bench hands" undertake work assisting licenced shot firers and are generally gaining skills and experience with a view to becoming shot firers. Ravensworth does not directly employ bench hands. There is also a debate between the parties as to whether the dozer operator employed by TESA performing rehabilitation work would be covered by the Ravensworth Agreement if employed directly by Ravensworth.

• [15] Mr Hubert indicates that there is a difference between the level of experience and skills of employees of Ravensworth when compared with the employees of CoreStaff and TESA. Mr Hubert indicates that 98 per cent of production operators employed by Ravensworth have three or more competencies and are competent to operate a range of machinery. The MEU submits that this evidence overstates the degree to which Ravensworth employees are multi-skilled. The MEU asserts, and Mr Hubert accepted in cross-examination, that the information provided by Ravensworth indicated that 72 of the production operators directly employed by Ravensworth are currently only competent to operate haul trucks and no other machinery. Of those, three are only competent to operate the CAT 789 haul truck and not the CAT 797 haul truck. Ravensworth did not dispute that information. However, Mr Hubert clarified that 21 of those were in training for other operators and some had been redeployed from other mines as a result of being redundant at another site.

• [16] The employees of TESA are almost exclusively competent and signed-off only to operate haul trucks. Mr Hubert indicates that production operators who are new to the industry commence as trainees. The traineeship takes approximately 12 months and trainees are initially trained to operate the CAT 789 haul truck and then move on to be trained on the CAT 797 truck. Mr Hubert said it is rare for a trainee to become competent with a CAT 797 truck prior to completing their traineeship. The evidence indicates that 71 TESA employees are competent to operate the CAT 789 truck and, of those, 47 are competent to also operate the CAT 797 truck. One TESA employee is also competent to operate a dozer, and another is competent to operate a drill. In relation to Corestaff, the evidence indicates that 19 CoreStaff employees are competent only to operate the CAT 789 truck and 14 are able to operate a CAT 789 and CAT 797 truck. In addition, one CoreStaff employee can operate a CAT 789 truck and a scraper and another CoreStaff employee can operate a CAT 789 truck and a grader.

• [17] Many of Ravensworth's employees have been employed at the mine for substantial periods of time. The evidence indicates that 16 Ravensworth employees have been employed at the mine for less than one year, 35 between one and two years, 58 between two and five years, 94 between five and ten years, 91 between ten and fifteen years and 8 for more than fifteen years. The employees of CoreStaff and TESA are generally employed at the mine for shorter periods of time. In relation to TESA employees, 40 have been employed at the mine for less than one year, 35 for between one and two years, 13 for between two and three years and 8 for more than three years. In relation to CoreStaff employees, 14 have been employed at the mine for less than one year, 10 for between one and two years, 5 for between two and three years and 4 for more than four years.

• [18] Ravensworth states that it will often recruit directly employed employees from the employees of TESA, CoreStaff or WorkPac who are supplied to perform work at the mine. Ms Davis gives evidence that, since 1 January 2023, Ravensworth has recruited 51 production operators who were previously employed by TESA, CoreStaff or WorkPac and has only advertised outside the mine's workforce to fill vacancies in the production department at the mine. Mr Hubert states that employees of TESA or CoreStaff who have been working at the mine for more than three years are likely to have applied to perform work at the mine and been unsuccessful. He also says that four of the TESA employees who have been employed for more than three years are "floaters", that is, casual employees who work variable hours and in different crews to fill resourcing needs.

• [19] Only a single employee is supplied by WorkPac who performs work as a service cart operator. The service cart operator works within the maintenance department at the mine. Ravensworth employs 98 maintenance employees, 5 are trade qualified auto-electricians, 18 are trade qualified electricians, 71 are trade qualified heavy diesel fitters; and 4 are service cart operators. A service cart is a truck that has been fitted with a large tank, which stores fuel, oils and other fluids. The role of service cart operator is to operate a service cart and replenish the fuel, oils and other fluids for the plant and equipment operating in the pit. Mr Hubert indicates that the service cart operator employed by WorkPac is not trade qualified.

• [20] The relevant covered employment instrument for the purposes of s 306E(1)(b) is the Ravensworth Agreement. The Ravensworth Agreement was approved on 17 September 2021. The coverage of the Agreement is dealt with in clause 4.2 in the following terms:

4.2 This Agreement applies to the Company and Employees who, but for this Agreement, would be covered by Schedule A of the Award.

• [21] Clause 1 contains a number of definitions which inform clause 4.2. The "Award" is a reference to the Black Coal Mining Industry Award 2010 (the Black Coal Award), the "Company" is a reference to Ravensworth and the "Employees" is a reference to a "person performing work under this Agreement to which classifications of the award would apply but for this Agreement".

• [22] Clause 5 is entitled "Employees Duties and Flexibility" and, relevantly, provides:

1.Employees will work flexibly to meet the needs of the Company. There will be no demarcation of work or limitations upon the tasks that an Employee may be required to perform. The principle to be applied will be that Employees may be required to undertake any work that the Company deems them competent to perform and provided it is safe to do so.

• [23] Clause 9.1 provides that employees will be paid in accordance with the salaries detailed in Appendix 1 to the Ravensworth Agreement. Appendix 1 provides for a base salary of $62,341 at the commencement of the Agreement which increases annually for each of the following five years. Appendix 1 then contains a specified "Total Annual Salary" which varies depending on the roster pattern of the employee. The rates of pay under the Ravensworth Agreement do not provide for different rates on account of the skills, competencies or experience of the employees.

• [24] As I have observed, the coverage of the Ravensworth Agreement is provided for by reference to schedule A of the Black Coal Award. The Black Coal Award covers employees who are employed in the black coal mining industry, whose duties are carried out at or about a place where black coal is mined or who are employed by an employer in the black coal industry, and are "directly connected with the day to day operation of a black coal mine" and employed in a classification or class of work in Schedule A or Schedule B.[1]

• [25] Schedule A to the Black Coal Award is entitled "Production and Engineering Employees". Schedule A only refers to a classification of "Mineworker" from Mineworker - Induction Level 1 to Mineworker - Specialised. Schedule A contains a single stream structure, which does not contain any demarcations relating to the performance of work. The definitions for each of the classification levels are "necessarily general" as they are intended to cover the various types of work actually performed under the Award.[2] In relation to Schedule A, White J commented in Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 that:[3]

The only classification for which Schedule A provides is that of "Mineworker" (putting to one side apprentices and juniors). The Black Coal Award does not contain any definition of the term "Mineworker". It is evident, however, that it is intended as a generic description intended to cover all workers in a mine other than those who are "Staff Employees" for whom Schedule B makes provision.

• [26] Clause A5 of Schedule A does provide for indicative competencies relevant to the Mineworker classifications. Relevant to open cut mines, clause A.5.1 provides:

The following lists are not exhaustive, but rather are indicative of the types of competencies utilised in open cut mines.

Induction (Generic, Minesite); Interpersonal; First Aid; Fire Fighting; Work Health and Safety.

Dragline operation; Auger operation; Truck operation; Shovel operation; Cable handling; Drilling; Blasting; Shotfiring; Scraper operation; Excavator operation; Loader operation; Grader operation; Dozer operation; Pit Dewatering; Equipment servicing and maintenance; Washplant operation; Coal handling; Reclaim operation; Loader operation; Grader operation; Load out operation; Crusher/conveyor operation; Washplant servicing and maintenance; Tyre fitting; Crane operation; Rigging and dogging; Cross-trade skilling.

While an employer may require an employee to become competent in one or more of the following, these competencies will not be required for advancement through the classification structure:

Equipment servicing; Medium vehicles operation; Low loaders operation; Scaffolding; Minor maintenance; Conveyors; Bobcat; etc.

• [27] In addition, clause A.3 provides for progression through the Mineworker classifications based on possessing trade qualifications and/or a number of advanced competencies.

• [28] It is necessary to then refer to the evidence of CoreStaff, TESA and WorkPac. CoreStaff is in the business of providing labour hire and outsourced recruitment services for various clients across a broad range of industries including construction, mining, transport and manufacturing. Among other things, CoreStaff provides labour hire services to Ravensworth. CoreStaff employees perform work as production operators, as part of the Drill and Blast team and as bench hands. Ms Kearney gives evidence that CoreStaff advertises that a minimum of 12 months industry experience is required to be classed as an experienced operator. Ms Kearney indicates that CoreStaff employees who are recruited to work at the Ravensworth mine have all completed traineeships at another site and may have developed competencies from other mining sites they have worked at, or in other industries. All CoreStaff employees supplied to perform work at the mine must at least be competent and passed out to operate the haul trucks used at the mine and sometimes its employees have other competencies.

• [29] The terms and conditions of employees of CoreStaff who perform work at the mine are covered by the CoreStaff NSW Black Coal Enterprise Agreement 2018 (the CoreStaff Agreement). The CoreStaff Agreement contains classification levels from Mineworker Production Level 1 to Level 4 and Mineworker Engineering Level 1 to Level 4. Most CoreStaff employees performing work at the mine are employed on a casual basis. Permanent CoreStaff employees are paid a permanent base rate according to their classification plus penalty rates, allowances and overtime as appropriate. Casual employees are paid flat rates of pay depending on the specific roster pattern which are calculated to compensate for penalty rates, shift loadings, overtime and a casual loading. Ms Kearney states that CoreStaff employees performing work at the mine are paid at rates higher than required under the CoreStaff Agreement "because the market in the Hunter Valley means higher rates are required to attract and retain staff". CoreStaff is paid a fixed price by Ravensworth for supplying employees calculated as a percentage of the payroll amount for each employee.

• [30] Programmed Skilled Workforce Pty Ltd and TESA Group Pty Ltd, which I have been referring to collectively as TESA, are part of the Programmed group of companies which provide various staffing and labour hire, facility management, property maintenance, care, recruitment, training, and other services in a range of industry sectors across Australia and New Zealand. The Programmed Group has a significant presence in New South Wales black coal mining operations. Mr Cribb states that all employees subject of the application are employed by TESA Group Pty Ltd and that Programmed Skilled Workforce Pty Ltd does not employ any relevant employees. Programmed Skilled Workforce has a supply contract with Ravensworth comprising an umbrella contract dated 1 June 2023, and specific terms of engagement executed on 9 February 2024.

• [31] At the date of the hearing, TESA supplied 97 employees who performed work at the mine, including 28 trainees. The TESA Group Enterprise Agreement 2022 (the TESA Agreement) applies to those employees. Leaving aside the trainees, the majority of TESA employees are employed on a full-time basis and work according to a 7-day rotating roster of 12.5 hour shifts. There are also a small number of casual employees who either work the same roster or as "floaters" and a single part-time employee. Mr Cribb states that of the 68 employees who performed work at the mine at the time he prepared his statement who were not trainees, 20 had some prior coal mining experience, 15 had relevant experience from other prior employment and the remainder had no relevant experience. Of those employees 49 had completed traineeships at the mine.

• [32] Mr Cribb gives evidence in relation to the increase in the extent of the leave liabilities of TESA which will arise if a regulated labour hire arrangement order is made. He states that TESA have no mechanism to recover this increased liability as it has accrued to TESA for work that has already been completed, invoiced and paid for by Ravensworth. Mr Cribb indicates that TESA currently calculates the rates it pays employees by reference to the Black Coal Award because the rates in the TESA Agreement are lower than the Award. It says it has a narrow profit margin and that the value of the increased leave liabilities will exceed the profit margin earned under the contract with Ravensworth.

• [33] WorkPac is one of Australia's largest privately owned workforce services business, delivering end-to-end recruitment solutions, skills development and career opportunities. WorkPac employs over 15,500 on-hire employees in Australia each year supplied to perform work in a range of industries. A large number of those employees are coal mine workers and are covered by the WorkPac Coal Mining Agreement 2019 (the WorkPac Agreement). Mr Hockaday gives evidence that WorkPac has a 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 industry. It has made a series of enterprise agreements applying to employees in the black coal industry since 2007 and the MEU has been a bargaining representative for the agreements made in 2012 and 2019.

• [34] The WorkPac Agreement contains various classification levels from Trainees to CMW Level 5. The single employee supplied to perform work at the Ravensworth mine is a permanent CMW Level 3 employee. WorkPac Pty Ltd is a party to a contract with Glencore Coal Assets Australia Pty Ltd signed by WorkPac for the provision of services by WorkPac to Glencore. Mr Hockaday gives evidence in relation to the total revenue derived from the supply of employees to perform work at various mines operated by Glencore, not limited to Ravensworth. Mr Hockaday indicates that it is difficult to particularise with precision the direct employment cost for WorkPac employees at these mines but says that it is generally a large proportion of the revenue generated. Mr Hockaday also gives evidence as to the total revenue and profit of the WorkPac group. Mr Hockaday describes what he says will be the impact of regulated labour hire orders on WorkPac with respect to Glencore's operations generally, including increases in leave liabilities, increased labour costs which cannot be passed on and that clients may choose to reduce their use of WorkPac employees.

• [35] For permanent employees working a 12 hour plus changeover, 7 day roster under the Ravensworth Agreement, Mr Hockaday estimates they would be paid approximately $70.72 per hour (inclusive of fixed and variable bonuses) compared to $49.29 per hour for a CMW Level 3 employee under the WorkPac Agreement. Mr Hockaday states that the provision of CMW Level 3 employees at the mine would become unprofitable for WorkPac because the charge rate currently agreed with Ravenswood would not be sufficient to cover all of the costs associated with employing the employee in question.

• [36] Part 2-7A of the Act is entitled "Regulated labour hire arrangement orders" and provides, among other things, for the Commission to make such orders and sets out the obligations of employers and regulated hosts covered by those orders. The key provision in Part 2-7A is s 306E which sets out when the Commission must make a regulated labour hire arrangement order. The most relevant parts of s 306E for present purposes are as follows:

306E FWC may make a regulated labour hire arrangement order

(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:

(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and

(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and

(c) the regulated host is not a small business employer.

Note: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short - term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes).

(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).

(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.

(4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.

Matters that must be considered in relation to whether work is for the provision of a service

(7A) For the purposes of subsection (1A), the matters are as follows:

(a) the involvement of the employer in matters relating to the performance of the work;

(b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;

(c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;

(d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;

(e) the extent to which the work is of a specialist or expert nature.

(8) For the purposes of subsection (2), the matters are as follows:

(a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:

(i) whether the host employment instrument applies only to a particular class or group of employees; and

(ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and

(iii) the rate of pay that would be payable to the regulated employees if the order were made;

(c) the history of industrial arrangements applying to the regulated host and the employer;

(d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;

(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:

(i) the nature of the regulated host's interests in the joint venture or common enterprise; and

(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);

(e) the terms and nature of the arrangement under which the work will be performed, including:

(i) the period for which the arrangement operates or will operate; and

(ii) the location of the work being performed or to be performed under the arrangement; and

(iii) the industry in which the regulated host and the employer operate; and

(iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;

• [37] Section 306E has now been considered by the Full Bench in a number of significant decisions, including Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 (Batchfire), Application by the Mining and Energy Union re Rix's Creek [2025] FWCFB 12 (Rix's Creek), Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 (Bengalla) and Applications by the Mining and Energy Union re Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134 (Goonyella Riverside). In Batchfire, the Full Bench outlined a number of principles concerning the proper interpretation and application of s 306E.[4] As noted by the Full Bench, s 306E(1) requires the Commission to make a regulated labour hire arrangement order if it is satisfied that the criteria specified in paragraphs (a), (b) and (c) of the subsection are met and neither of the prohibitions upon the making of such an order ("must not") in ss 306E(1A) and 306E(2) apply.

• [38] TESA alone submits that a regulated labour hire arrangement order would operate to acquire TESA's property otherwise than on just terms for the purposes of s 39 of the Act. Section 39 of the Act provides as follows:

This Act, or any instrument made under this Act, does not apply to the extent that the operation of this Act or the instrument would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph).

• [39] The submission that s 39 of the Act is engaged by an order made under s 306E(1) was considered by the Full Bench in Bengalla. The Full Bench found that s 39 of the Act would not be engaged by the making of a regulated labour hire arrangement order and that the section did not affect the Commission's jurisdiction to make the orders sought.[5]

• [40] TESA does not submit that the contractual arrangements it has with Ravensworth give rise to any different considerations than those considered in Bengalla and accepted that I am bound to follow the decision of the Full Bench. Although the Commission is not, as a non-judicial body, bound by principles of stare decisis, there are important public interest considerations relating to consistency of decision-making and institutional integrity which dictate that single members of the Commission should adhere to decisions of a Full Bench that are relevant to the matter being determined.[6] TESA did not suggest it was appropriate that I depart from the decision in Bengalla or that it was distinguishable in any way.

Whether a regulated labour hire arrangement order must be made (s 306E(1) and (1A))?

• [41] No party disputes that the Commission should be satisfied that the requirements in s 306E(1) of the Act that must be met for the obligation to make a regulated labour hire arrangement order in each application are met or that the Commission should not be satisfied that the performance of work by employees of CoreStaff, TESA and WorkPac is not, and will not be, for the provision of a service rather than the supply of labour for the purposes of s 306E(1A). Leaving to one side s 306E(2), I am satisfied that each of the requirements of s 306E(1) are met and that the prohibition in s 306E(1A) does not apply.

• [42] There is also no dispute and I am satisfied, for the purposes of s 306E(7), that the MEU is an employee organisation that is entitled to represent the industrial interests of the employees of CoreStaff, TESA and WorkPac who are supplied to perform work for Ravensworth at the Ravensworth mine as well as employees of Ravensworth employed to perform work at the Mine. It is sufficient to observe that rule 2(A) of the MEU's rules provide that all employees engaged in or in connection with the coal and shale industries are eligible to be members of the MEU.[7] Accordingly, the MEU is entitled to apply for regulated labour hire arrangement orders under s 306E by operation of s 306E(7)(c) and, as such, for the purposes of s 306E(1).

• [43] I am satisfied that the requirements of s 306E(1) of the Act are met. Specifically, on the basis of the material before the Commission, I am satisfied that:

(a) CoreStaff, TESA and WorkPac supply employees they employ to perform work for Ravensworth at the Ravensworth mine involving engagement in production work associated with the mining and extraction of coal primarily as production operators as well as a small number of employees as bench hands, a dozer operator and a warehouse employee.

(b) The Ravensworth Agreement applies to all employees of Ravensworth who would, but for the Agreement, be covered by Schedule A to the Black Coal Award. The work undertaken by employees of CoreStaff, TESA and WorkPac is production or engineering work covered by Schedule A to the Black Coal Award. Leaving aside the issues raised in relation to the warehouse employee supplied by CoreStaff and the dozer operator supplied by TESA which I will address below, no party disputed that the Ravensworth Agreement would apply to employees of CoreStaff, TESA and WorkPac supplied to perform work at the mine if those employees were directly employed by Ravensworth to undertake the same kind of work and I find that it would.

(c) Ravensworth is, obviously enough, not a small business employer.

• [44] For the purposes of s 306E(1A) of the Act, I am satisfied that the performance of work by CoreStaff, TESA and WorkPac employees is not and will not be for the provision of a service, rather than the supply of labour, having regard to the matters in s 306E(7A). In relation to the matters set out in s 306E(7A) to be considered in being satisfied of the requirement in s 306E(1A), I make the following findings:

(a) There is no evidence before the Full Bench that CoreStaff, TESA and WorkPac have substantial involvement in matters relating to the performance of work by their employees working at the Ravensworth mine. In relation to CoreStaff employees, Ms Kearney does give evidence that she, or another employee of CoreStaff, may have some involvement if disciplinary or performance issues are raised in relation to CoreStaff employees and that some additional training and induction is provided by CoreStaff. The evidence suggests CoreStaff has some involvement in matters at least relating to the performance of the work and I have taken that evidence into account. However, the evidence suggests that the degree of involvement is relatively minor, and this is not a significant consideration for the purposes of s 306E(1A). There is otherwise no evidence that TESA or WorkPac are involved in matters relating to the performance of work by their employees.

(b) The evidence indicates that Ravensworth directs, supervises and controls the work of CoreStaff, TESA and WorkPac employees who are supplied to perform work at the Ravensworth mine. Ravensworth takes at least primary responsibility for the administration of training and assessment of CoreStaff, TESA and WorkPac employees in relation to their work at the mine. The contracts of employment of CoreStaff, TESA and WorkPac employees require that those employees comply with directions of Ravensworth and are subject to policies and procedures of Ravensworth.

(c) CoreStaff, TESA and WorkPac employees assigned to perform work at the Ravensworth mine operate the same plant and equipment as Ravensworth employees which is all supplied by Ravensworth and are subject to the same safety policies, inductions, sign-on/sign-out and site policies and procedures as Ravensworth employees which are administered and enforced by Ravensworth. CoreStaff, TESA and WorkPac employees work alongside Ravensworth employees in the same crews and, with the exception of "floaters", work the same roster patterns as Ravensworth employees.

(d) There is no evidence before the Commission that CoreStaff, TESA and WorkPac, or any other persons, are or will be subject to industry or professional standards or responsibilities in relation to the work of their employees supplied to Ravensworth.

(e) The work undertaken by CoreStaff, TESA and WorkPac employees at the Ravensworth mine involves the operation of complex plant and equipment at a large mine site and is, to some degree at least, of a specialised or expert nature. However, in the circumstances of this matter, that does not suggest that the work performed by CoreStaff, TESA and WorkPac employees is for the provision of a service rather than the supply of labour given that it is the same kind of work as is performed by Ravensworth employees.[8]

• [45] Having regard to the considerations referred to in s 306E(7A), I am satisfied that the performance of work by CoreStaff, TESA and WorkPac employees is not for the provision of a service but is for the supply of labour for the purposes of s 306E(1A).

Whether it is not fair and reasonable to make the orders (s 306E(2))?

• [46] As I have observed, the only basis upon which Ravensworth, CoreStaff, TESA and WorkPac contend that regulated labour hire arrangement orders cannot be made is that those parties submit that the Commission should be satisfied that it is not fair and reasonable to make the orders sought by the MEU for the purposes of s 306E(2). Section 306E(2) provides that the Commission must not make an order if it is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in s 306E(8) in relation to which submissions have been made.

• [47] In Goonyella Riverside, the Full Bench discussed the approach to be applied to s 306E(2) in considerable detail.[9] I propose to adopt the approach described by the Full Bench. It is unnecessary to repeat all that was said by the Full Bench in that decision. It is sufficient to set out the following passage:[10]

In our opinion, the subsection requires the Commission to make a broad value judgment as to whether it is not fair and reasonable to make an order in all of the circumstances. That evaluative assessment is likely to involve a balancing of various interests that would be affected by an order having regard to the matters listed in s 306E(8), including any matter not specifically identified in the subsection that the Commission considers relevant. It is also the case that the Commission is entitled, although not required, to have regard to a matter as part of "all of the circumstances" even if no submission is advanced about it.

The assessment of the fairness and reasonableness of making an order will inevitably involve consideration of the consequences of an order being made or not made. The principal consequence of an order is that the employer must pay the regulated employee at no less than the "protected rate of pay" in connection with the work performed for the regulated host in accordance with s 306F(2). The order is likely, for that reason, to have consequences for the employer, and perhaps the regulated host, that might be thought to be adverse in that the order will increase employment costs and positive for the regulated employees in that they will receive a higher rate of pay. However, the assessment to be made requires consideration to the whole of the circumstances, including (when relevant) the pay arrangements for employees of the regulated host, the industrial arrangements applying to the regulated host and the employer, the relationship between the regulated host and the employer and the arrangements between the regulated host and the employer. It is not a one-dimensional trade-off between the benefits to employees and asserted detriments to the employer or regulated host.

• [48] In summary, s 306E(2) requires that the Commission make a broad value judgment as to whether it is not fair and reasonable to make an order in all of the circumstances having regard at least to those matters listed in s 306E(8) in relation to which submissions have been made.

• [49] The primary contention advanced by Ravensworth in relation to s 306E(2) is that it would not be fair and reasonable to make regulated labour hire arrangement orders in this case because the orders would entitle less experienced and less skilled employees of CoreStaff, TESA and WorkPac to the same rate of pay as more experienced and multi-skilled employees of Ravensworth who work at the mine. Ravensworth submits that these circumstances represent a compelling example of where it is not fair and reasonable to make a regulated labour hire arrangement order.

• [50] Each of CoreStaff, TESA and WorkPac supported the primary submission made by Ravensworth. In addition, Ravensworth makes some distinct submissions in relation to other matters referred to in s 306E(8) which are applicable to the orders sought with respect to CoreStaff, TESA and WorkPac. CoreStaff, TESA and WorkPac make separate submissions as to why it is not fair and reasonable to make an order with respect to their particular operations. In the circumstances, it is convenient to address the primary submission made by Ravensworth at the outset. It must be recognised that the assessment of whether it is not fair and reasonable to make an order in relation to each application must be considered separately and in light of all of the circumstances in each case. I have considered, in each case, the submissions advanced by Ravensworth together with the submissions separately made by CoreStaff, TESA and WorkPac in relation to each of their specific circumstances.

• [51] In relation to the primary contention made by Ravensworth, I accept that the evidence concerning the level of experience, skills and competencies of employees of Ravensworth and employees supplied by CoreStaff, TESA and WorkPac, and the arrangement that Ravensworth describes of having less experienced employees supplied by labour hire providers, is relevant to the assessment required by s 306E(2). Those submissions raise matters that are relevant to s 306E(8)(a) (because it concerns the pay arrangements for Ravensworth employees) and s 306E(8)(c) (because it raises the history of industrial arrangements that apply to Ravensworth and CoreStaff, TESA and WorkPac). In any event, I consider that the submission is a matter that is relevant for the purposes of s 306E(8)(f) and must be considered. I have taken the evidence and that submission into account. However, there are a number of points which must be made in relation to the weight which can be attached to the submission in assessing whether it is not fair and reasonable to make an order.

• [52] First, the evidence indicates that Ravensworth employees have longer periods of service and are generally competent to operate a wider range of machinery than employees of CoreStaff, TESA and WorkPac. However, it is not correct to say that relevant employees of CoreStaff, TESA and WorkPac are unskilled and inexperienced. A number of employees supplied by TESA are trainees and will not be required to be paid the protected rate of pay if orders are made.[11] Employees of CoreStaff, TESA and WorkPac who are not trainees will have at least 12 months experience and at least be competent to operate CAT 789 haul trucks. In addition, 47 TESA employees and 14 CoreStaff employees are also competent to operate the larger CAT 797 haul truck. Those employees have the same competencies as 72 out of 299 of Ravensworth's directly engaged employees, although Mr Hubert did indicate that many of those employees were likely to be in training in relation to other forms of machinery.

• [53] Second, the Ravensworth Agreement covers all employees who, but for this Agreement, would be covered by Schedule A of the Black Coal Award. The classifications contained in Schedule A of the Black Coal Award include Mineworker Induction Level 1, Mineworker Induction Level 2, Mineworker - Training, Mineworker - Advanced, and Mineworker - Supervised. Progression between these classifications under the Black Coal Award occurs when the employer assesses the employee as competent to perform the tasks required at the relevant classification level and the applicable level of supervision, or supervisory skill, is attained. It follows that employees at each of these levels will be covered by the Ravensworth Agreement and the drafters of the Agreement, and the employees who approved the Agreement, were evidently content for the same base salary to apply to all employees irrespective of the level of experience, competencies or qualifications of the employee. There is nothing necessarily unfair or unreasonable in the same provision being made for labour hire workers performing the same type of work as directly engaged employees.[12]

• [54] Third, Ravensworth submits that the Ravensworth Agreement was negotiated on the basis of the skills and competence of the existing workforce. There is no evidence of any substance in relation to the negotiations which resulted in the making of the Ravensworth Agreement and the Agreement itself contains no reference to the basis upon which the rates of pay were determined. At its highest, Ms Davis said in her witness statement:[13]

The parties agreed to a base salary of $62,341 with 2% increase on each anniversary of the agreement until the nominal expiry date. Every employee covered by the Ravensworth EA receives the same base salary, including tradespersons, that reflects their skills and competency and the express requirement in the Ravensworth EA that the Employee may be required to undertake any work they are competent to perform.

• [55] The second sentence of that paragraph can only be read as reflecting the subjective opinion or understanding of Ms Davis. Although Ms Davis was a member of the negotiating team, no evidence was given as to the content of the negotiations or any communications with employees which could establish that there was a common understanding as to the basis upon which the rates were determined. Indeed, Ms Davis says that the current Ravensworth Agreement was effectively a "rollover" of the previous agreement.[14]

• [56] Fourth, Ravensworth submits that a regulated labour hire arrangement order would destroy wage relativities between more experience and skilled workers employed by Ravensworth and the less experienced and less skilled labour hire workers. Ravensworth suggests there will be "consequences" and produce disharmony if wage relativities are collapsed. In particular, Ravensworth referred to the example of trade qualified shot firers being paid the same amount as unqualified bench hands. The suggestion that a regulated labour hire arrangement order would produce disharmony among Ravensworth employees is supported by nothing other than assertion. I do not consider that it is a natural inference to be drawn in the circumstances. As has been indicated, the employees approved the Ravensworth Agreement that provides for a single rate of pay payable to trade qualified and non-trade employees alike and employees with little or long periods of experience. The employees were presumably content with that arrangement.

• [57] Fifth, Ravensworth submits that it is not fair and reasonable to make an order which would have the effect of providing for rates of pay that do not reflect the work value of the labour hire employees. However, there is no evidence to suggest that the rate of pay in the Ravensworth Agreement were set on the basis of a work value assessment of any nature. Furthermore, the difference between the rate of pay in the Ravensworth Agreement and the rates paid to employees of CoreStaff, TESA and WorkPac is substantial. By way of example, the Ravenwsorth Agreement rate is approximately 43 per cent higher than the current WorkPac rate. The rate in the TESA Agreement, at least for the ML3 classification, has now fallen below the rate in the Black Coal Award. There is no basis to infer that a difference of that magnitude is justified on work value grounds.

• [58] Sixth, Ravensworth submits that Ravensworth employees have a greater impact on productivity at the mine because they are multi-skilled and able to operate machinery that contributes to a greater degree to the productive capacity of the mine. For example, the CAT 797 haul truck is able to transport a greater load that a CAT 789 haul truck. I accept that it is a benefit to Ravensworth to have multi-skilled employees. However, Ravensworth obviously has a greater need for haul truck operators than for employees who operate other types of machinery as a result of the number of haul trucks it operates. As I have recorded, the mine operates 57 haul trucks, 3 hydraulic shovels, 6 excavators, 2 loaders, 5 water carts, 18 dozers, 5 graders and 7 drills. Although CAT 789 haul trucks carry a smaller load, Ravensworth has more of those trucks and they are used and suitable for certain tasks. For example, Mr Hubert gave evidence that the CAT 789 truck is generally used for coal mining operations.

• [59] For these reasons, I have taken into account the average difference in competencies and experience of the Ravensworth employees and employees of CoreStaff, TESA and WorkPac. However, in the circumstances I have discussed, I do not accept the argument that it would be unfair or unreasonable to make the regulated labour hire arrangement orders sought because they would increase the wage rates of less skilled and less experienced employees to the wage rates of Ravensworth employees or that this circumstance weighs in favour of that conclusion to any substantial degree.

• [60] Corestaff submit that the Commission should be satisfied that it is not fair and reasonable in all the circumstances to make the order sought by the MEU, taking into account the matters in s 306E(8). In summary, CoreStaff submits that this is because:

(a) The history of the industrial arrangements applying to CoreStaff and its employees who work at the Ravensworth mine;

(b) The relationship between Ravensworth and CoreStaff; and

(c) Assignments at the Ravensworth Mine provide CoreStaff employees with a pathway to enter the mining industry and to transition to direct employment at the Ravensworth mine, as well as an opportunity to gain valuable experience as a production operator, rather than the situation being one where CoreStaff employees have long tenure at Ravensworth as labour hire employees.

(d) The rate of pay in the Ravensworth Agreement is not appropriate for employees who would be covered by the proposed order while they remain in training as they have significantly less experience working with Ravensworth and at the mine than Ravensworth employees; and

(e) The Ravensworth Agreement entitles employees to a performance payment (or percentage of a performance payment) if certain metrics or Key Performance Indicators are achieved by Ravensworth.

• [61] The contentions referred to in paragraphs (c) and (d) above reflect the submission advanced by Ravensworth which I have considered above. I have taken into account those matters as matters that are relevant at least to s 306E(8)(a), (c) and (f).

• [62] To the extent that CoreStaff submits that the assignment of CoreStaff employees to the Ravensworth mine provides a pathway to direct employment in the mining industry, I do not find the submission persuasive. A regulated labour hire arrangement order will not, in any formal sense, prevent CoreStaff continuing to supply employees to the Ravensworth mine. It only affects the rate that must be paid to employees who work at the mine. It may be that a regulated labour hire arrangement order might influence the willingness of Ravensworth to continue to use CoreStaff employees. However, no evidence was given by Ravensworth to the effect that it would cease utilising CoreStaff employees. Furthermore, if the supply of CoreStaff employees was not available as a pathway to direct employment by Ravensworth, a different pathway would presumably need to be found, most likely by Ravensworth directly engaging the employees at an earlier time.

• [63] In relation to the matter referred to in s 306E(8)(a), CoreStaff submits it is not fair and reasonable to make the order because the Ravensworth Agreement entitles Ravensworth employees to performance pay comprised of a Key Performance Indicator payment and a Flexibility Allowance payment. The Key Performance Indicator payment is based on a number of items, including the performance of the business through measures such as the volume of coal mined, total recordable injuries and leading safety indicator measures. CoreStaff says that it is not fair and reasonable to make the order which would require it to pay rates depending on Ravensworth's performance when it is not entitled to any direct financial benefit by reason of Ravensworth's performance.

• [64] I have taken this matter into account and given it some weight. However, I observe that the protected rate of pay required to be paid to regulated employees is defined, in s 306F(4), to be the "full rate of pay" including "incentive-based payments and bonuses".[15] Whilst this matter may be relevant to the fair and reasonable assessment, the Act contemplates that labour hire employees will receive incentive payments required to be paid by the host instrument. There is also no evidence as to the total amount of performance payments which would, or might, be required to be paid to CoreStaff employees if a regulated labour hire arrangement order is made. Whilst the amount of the payment is not small, it does not represent a large proportion of the total annual salary of Ravensworth employees.

• [65] In relation to the matter referred to in s 306E(8)(c), CoreStaff submits that the CoreStaff Agreement has applied to CoreStaff employees since 2019 and an order would abrogate the bargained agreement between CoreStaff and its employees. A regulated labour hire arrangement order would not "abrogate" the CoreStaff Agreement. The CoreStaff Agreement would continue to apply to CoreStaff employees supplied to perform work for Ravensworth albeit CoreStaff would be required to ensure that employees at least receive the protected rate of pay. That might have substantial impact on the pay of CoreStaff employees, but CoreStaff has not identified any other aspect of the CoreStaff Agreement that would be affected by an order or is relevant to whether it is not fair and reasonable to make an order.

• [66] Further, I do not accept that the mere fact that CoreStaff has an existing enterprise agreement, which has long passed its nominal expiry date, means that the CoreStaff Agreement does not operate to undercut bargained rates in a manner that attracts the mischief to which Part 2-7A of the Act is directed. The mischief to which Part 2-7A is directed is not as limited as is suggested. Part 2-7A is at least directed at protecting the rates bargained between Ravensworth and Ravensworth's employees. That mischief is not only engaged in circumstances in which employees of the labour hire employer are not covered by an enterprise agreement.

• [67] In relation to the matter referred to in s 306E(8)(d), I accept that there is no relationship between Ravensworth and CoreStaff save for the contractual arrangement under which CoreStaff supplies employees to perform work at the mine. I have taken that matter into account in the assessment required by s 306E(2).

• [68] No other matters are raised by CoreStaff in its submissions. Having considered each of the matters in relation to which submissions have been made by CoreStaff and other matters I consider relevant, I am not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to CoreStaff employees supplied to perform work for Ravensworth. The consequence is that the Commission is required by s 306E(1) to make a regulated labour hire arrangement order.

• [69] TESA submits that the matters outlined in s 306E(8) do not materially influence what is fair and reasonable in all of the circumstances, in this particular proceeding. Rather, TESA makes submissions by reference to what it asserts is fairness as between fairness to employees, fairness between employees, fairness to employers, fairness between employers, and fairness between employees and employers.

• [70] The first submission made is in relation to fairness between employees and reflects the submission advanced by Ravensworth, namely, that it is not fair and reasonable to make an order given that the employees supplied by TESA are predominantly new entrants into black coal mining work with limited experience. That contention has been addressed above in addressing the submissions made by Ravensworth and TESA advances no different or additional submission in that respect.

• [71] In relation to fairness to TESA, it submits that it is clearly unreasonable to make an order from the perspective of TESA. TESA says that, if an order is made, the fruit of the labour hire contract will be taken away, an order will overturn the negotiation and the "productivity exchange" underpinning the TESA Agreement and TESA will be forced to pay a rate of pay which it says is not informed by the "productivity exchange" negotiated between Ravensworth and Ravensworth's employees. TESA also submits that it will be denied the right to enter into enterprise agreements enjoyed by other employers and employees.

• [72] A regulated labour hire arrangement order does not prevent TESA and its employees engaging in enterprise bargaining or render the TESA Agreement inoperative. The TESA Agreement will continue to apply to TESA employees albeit that TESA would be required to ensure that employees are paid at least the protected rate of pay. Other than the obligation to pay a higher rate of pay, TESA does not point to any consequence of a regulated labour hire arrangement order on its employees for the terms contained in the TESA Agreement. I do not accept that the mere existence of the facility for enterprise bargaining under Part 2-4 of the Act favours a conclusion that it is not fair and reasonable to make an order.[16]

• [73] The financial impact of an order on TESA by reason of the increase in contingent leave liabilities, and in labour costs going forward, is a relevant matter to be considered in assessing whether it is not fair and reasonable to make the order. Mr Cribb gives evidence as to the amount of increase in leave liabilities and that, at least on the charge rates currently paid by Ravensworth, the contract will become unprofitable if an order is made. However, there is no evidence in relation to the total costs that will be incurred by TESA if an order is made, the size of TESA's operations, its financial position, or that the making of an order would cause it financial difficulties. Although I have taken the potential impact into account, it is difficult to give substantial weight to the financial impact of an order on TESA in assessing whether it is not fair and reasonable to make the order in circumstances where there is no evidence of its specific impact.

• [74] In relation to the matter referred to in s 306E(8)(d), I accept that there is no relationship between Ravensworth and TESA save for the contractual arrangement under which TESA supplies employees to perform work at the mine. I have taken that matter into account in the assessment required by s 306E(2).

• [75] No other matters are raised by TESA in its submissions. Having considered each of the matters in relation to which submissions have been made by TESA and other matters I consider relevant, I am not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to TESA employees supplied to perform work for Ravensworth. The consequence is that the Commission is required by s 306E(1) to make a regulated labour hire arrangement order.

• [76] WorkPac raises a number of matters in addition to the submissions made by Ravensworth which it submits support a conclusion that it is not fair and reasonable to make an order with respect to its operations.

• [77] In relation to the matters referred to in s 306E(8)(a) and (c), WorkPac submits that it is an established, sophisticated and substantial employer and has direct, meaningful and established arrangements with on-hire employees. Those arrangements include providing opportunities for trainees and apprentices, providing a designated contact person for dealing with employment-related matters and dealing with employee grievances and disputes. WorkPac also refers to its history of engaging in enterprise bargaining, including that the MEU has been a bargaining representative with respect to at least more recent enterprise agreements. WorkPac submits that making a regulated labour hire arrangement order will inevitably disturb and distort the arrangements it has bargained for and agreed to with its employees in circumstances in which that imposition is not justified.

• [78] The evidence concerning the arrangements WorkPac has in place to support or provide opportunities to its employees deployed at different workplaces do not, in my opinion, suggest that it is not fair and reasonable to make a regulated labour hire arrangement order. Making such an order will not prevent WorkPac supplying employees to Ravensworth or disturb any practical arrangements it has in place with respect to those employees. WorkPac could continue to support employees supplied to work at the Ravensworth mine to the extent Ravensworth continues to engage WorkPac to supply employees at the mine.

• [79] The existence of the WorkPac Agreement, and WorkPac's history of enterprise bargaining, is relevant to whether the Commission can be satisfied that it is not fair and reasonable to make an order and I have taken that consideration into account. However, whilst a regulated labour hire arrangement order is likely to have a significant impact on the rates of pay of employees, it does not entirely displace the WorkPac Agreement albeit that WorkPac would be required to ensure that employees are paid at least the protected rate of pay. The only specific aspect of the WorkPac Agreement referred to by WorkPac is that it contains a "tiered classification structure" which is distinguishable from the pay arrangements in the Ravensworth Agreement. In that respect, there is no evidence that the different classification structure and pay arrangement in the WorkPac Agreement and the Ravensworth Agreement gives rise to any difficulty or unfairness in itself. In that regard, WorkPac only currently supplies a single employee and WorkPac did not lead evidence as to the circumstances of that employee or the effect of an order on the work or pay of that employee.

• [80] In relation to the matter referred to in s 306E(8)(d), I accept that there is no relationship between Ravensworth and WorkPac save for the contractual arrangement under which WorkPac supplies employees to perform work at the mine. I have taken that matter into account in the assessment required by s 306E(2).

• [81] In relation to the matters referred to in s 306E(8)(e) and (f), WorkPac submits that a regulated labour hire arrangement order would have a material adverse impact on its accrued leave liabilities, the increase in labour costs which will follow from an order will likely result in the costs of supplying labour exceeding the charge rates WorkPac currently receives from that labour under its contract with Ravensworth and that there is a prospect that making a regulated labour hire arrangement order will cause WorkPac's clients to reduce the use of WorkPac's employees. WorkPac submits that making a regulated labour hire arrangement order will diminish the security of, or opportunity for, employment for all WorkPac employees, including those who work in sectors other than black coal mining.

• [82] I accept that the increase of labour costs to WorkPac, and any increase in its accrued leave liabilities, is relevant to whether it is not fair and reasonable to make an order. However, in my opinion, little weight can be given to that matter in the context of the present matter given that WorkPac supplies a single employee to work at the Ravensworth mine. Mr Hockaday set out in his witness statement the total revenue of the WorkPac group. It is clear that it is a very large operation. Although I accept that it is not necessary for the impact of an order to be catastrophic for a business for it to be relevant to the assessment required by s 306E(2), it could not remotely be suggested that the additional costs of paying a single employee the protected rate of pay will have any meaningful impact on WorkPac. Furthermore, the financial impact on WorkPac must be considered in light of the fact that, on the evidence, the employee has been receiving 43 per cent less than the rate prescribed by the Ravensworth Agreement for work of that type.

• [83] Mr Hockaday does give evidence in relation to revenue received by WorkPac from supplying employees to Glencore operations other than Ravensworth and that other regulated labour hire arrangement orders have been made with respect to WorkPac at those sites. It is possible that the impact of a particular regulated labour hire arrangement order on the business of a particular employer might need to be considered in light of the impact of other similar orders which have been made and cover the same employer. However, whilst it is clear that WorkPac has earned a considerable amount of revenue from other Glencore mines, Mr Hockaday does not provide any evidence as to the cumulative effect of regulated labour hire orders on WorkPac. In those circumstances, it is difficult to give any substantial weight to the consequences for WorkPac of other orders.

• [84] WorkPac relied on evidence given by Mr Hockaday that WorkPac would cease supplying the single employee at the Ravensworth mine if it became unprofitable. It submits that it cannot be fair and reasonable for an order to be made if it would result in the employee losing their employment. I do not accept the submission that this evidence dictates a conclusion that it is not fair and reasonable to make an order. Mr Hockaday gave evidence that WorkPac has generally continued to supply employees at sites where regulated labour hire orders have been made. Mr Hockaday's oral evidence included:[17]

You were asked some questions in the BHP proceedings in Brisbane about what had happened after regulated labour hire orders had been made at various other sites. (Indistinct) Creek was one or another of them - and that was that you had continued to provide labour at those sites?---Yes.

Has that situation changed at all since - that was in February, I think. Maybe it was in late January, I can't recall now?---In some sites we have reduced (indistinct).

I understand. So generally in the sites where there's been an order that has been made that applies to WorkPac, you've continued to provide workers but, in some instances, there are less workers than there was in the past, is that?---Yes.

• [85] Although Mr Hockaday said that WorkPac would not continue to supply the employee to Ravensworth, the basis of the assertion was not explained and, it appears to me, whether that occurs is likely to depend on future events. Generally, that has not been the consequence of a regulated labour hire arrangement order being made. Furthermore, there is no evidence before the Commission as to whether Ravensworth would consider directly employing the employee or whether it would increase the rates it pays to WorkPac. Whilst I have taken into account Mr Hockaday's evidence, I do not consider great weight can be attached to his assertion.

• [86] No other matters are raised by WorkPac in its submissions. Having considered each of the matters in relation to which submissions have been made by WorkPac and other matters I consider relevant, I am not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to WorkPac employees supplied to perform work for Ravensworth. The consequence is that the Commission is required by s 306E(1) to make a regulated labour hire arrangement order.

• [87] The MEU seeks regulated labour hire arrangement orders in the form set out in its initial written submissions. The form of the orders sought reflects the orders which have commonly been made in applications to the Commission under s 306E of the Act. Ravensworth and CoreStaff made no submission that a different form of order is appropriate or required and did not join the submissions made by TESA in this respect. The regulated employees specified in the orders proposed by the MEU are described as follows:

The regulated employees covered by the order are employees of the Employer who perform work at the Ravensworth Mine near Muswellbrook in the State of New South Wales who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4.

• [88] TESA provided an alternative form of order at the hearing of the applications. TESA's submissions in this regard are supported by WorkPac. TESA submits that the regulated employees specified in an order covering to it for the purposes of s 306E(9)(c) should be limited to:

... all Experienced Mineworkers (classified as ML3) employed by the Employer who perform work at the Ravensworth Mine near Muswellbrook in the State of New South Wales who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4.

• [89] The basis of the submission is that the assertion that any order made under s 306E must be limited to the regulated employees described in the evidence before the Commission. Notwithstanding that submission, the form of order proposed by TESA does not seek to limit the description of the regulated employees covered by the order by reference to the type of work performed. It simply seeks to limit the order to employees classified as ML3 under the TESA Agreement.

• [90] I am not convinced that specification is required by s 306E(9)(c) or otherwise appropriate. The evidence indicates that TESA currently supplies employees to Ravensworth who are either trainees or classified as ML3 under the TESA Agreement. Mr Cribb states that TESA also supplies an employee classified at ML1 under the TESA Agreement. Furthermore, the supply contract with Ravensworth provides that TESA will provide "suitably qualified and competent labour to perform production operator tasks as directed by the Client" and that the supply will include (but is not limited to) "Trainee & Experienced Operator Labour" and "Shotfirer & Shotfirer Assistant Labour".[18] The supply contract does not limit the type of work TESA employees may be required to perform or the level or classification of the employees to be supplied. In the circumstances, I am satisfied it is appropriate to make orders broadly in the form sought by the MEU.

• [91] TESA also submits that the order should expressly exclude any employees of TESA in the event that those employees perform work in respect of the provision of a service to the regulated host in the future for the purposes of s 306E(1A) and any trainees. It is not suggested that TESA's employees perform work for the provision of a service, or that there is any proposal or likelihood of TESA providing a service in the future. I do not think it is necessary, or appropriate, to make the first exclusion. In relation to trainees, s 306G(1) provides that the protected rate of pay in s 306F does not apply if a training arrangement applies to a regulated employee in respect of work for the regulated host. Section 306G(1) operates by force of the Act and there is no need to exclude trainees from the terms of the order.[19]

• [92] Finally, there is no dispute that employees supplied by CoreStaff, TESA and WorkPac at the Ravensworth mine would be covered by the Ravensworth Agreement if employed by Ravensworth with two exceptions. TESA supplies one dozer operator who performs rehabilitation work. Ravensworth submits that this employee is not undertaking production and engineering work for the purposes of Schedule A to the Black Coal Award and is not covered by the Ravensworth Agreement. Mr Howard was uncertain whether that is the case.[20] Only brief submissions were advanced in relation to the question, but I do not understand why rehabilitation work undertaken at an operational mine site using mining equipment is not capable of being production and engineering work falling within Schedule A to the Black Coal Award. CoreStaff also employs one warehouse officer. There is no evidence in relation to the nature of the work of the warehouse officer, although it appears less likely that this employee is covered by Schedule A to the Black Coal Award.

• [93] However, in the circumstances of this case, I do not think it is necessary to resolve the question of whether these two employees would be covered by the Ravensworth Agreement or necessary to make express reference to these employees in the terms of the orders. The orders will only cover regulated employees who would, if employed by Ravensworth, be covered by the Ravensworth Agreement. If there is a dispute as to whether the dozer operator or the warehouse officer would be covered by the Ravensworth Agreement if employed by Ravensworth, that dispute can be resolved in appropriate proceedings where more detailed evidence can be presented in relation to the work of those employees which will permit the question to be determined.

• [94] For these reasons, I am required by s 306E(1) of the Act to make regulated labour hire arrangement orders which apply to employees supplied by CoreStaff, TESA and WorkPac to perform work at the Ravensworth mine. I will publish the orders together with this decision, setting out the matters in s 306E(9). Section 306E(9)(e)(ii) provides that the day an order will come into force must be the day the order is made or a later day. The orders will come into force on Sunday 5 October 2025. No party submitted that the order should specify when it will cease to be in force for the purposes of s 306E(10). Accordingly, the order will also not contain such a specification.

S Mueller, Legal Officer, for the Mining and Energy Union.

J Murdoch KC, of counsel, instructed by Corrs Chambers Westgarth for Ravensworth Coal.

L Howard, of counsel, instructed by Kingston Reid for Programmed and TESA.

C Pase, of counsel, instructed by KHQ Lawyers for CoreStaff NSW Pty Ltd.

J McLean, of counsel, instructed by MinterEllision for WorkPac Mining Pty Ltd.

[1] Black Coal Mining Industry Award 2020, clause 4.1(b)(i) and (ii).

[2] Black Coal Mining Industry Award 2020, Schedule A clause A.1.2 and A.1.3. See also Bis Industries Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [312] (White J).

[3] Bis Industries Limited v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [270] (White J). See also Kestrel Coal Pty Limited v Lennox [2025] FWCFB 114 at [51].

[4] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [8]- [17].

[5] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [43]- [71].

[6] Re Furnishing Industry Association of Australia (Queensland) Ltd Union of Employers (unreported, Print Q9115, Giudice J, Watson SDP, Hall DP, Bacon C and Edwards C, 27 November 1998); Cetin v Ripon Pty Ltd (t/as Parkview Hotel) (2003) 127 IR 205 at [48]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2017] FWCFB 250; (2017) 266 IR 242 at [35].

[7] See, for example, Mining and Energy Union v Glencore Coal Assets Australia Pty Ltd [2025] FWCFB 107; (2025) 340 IR 372 at [35]- [36].

[8] See discussion in Applications by the Mining and Energy Union re Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134 at [256]- [266].

[9] Applications by the Mining and Energy Union re Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134 at [273]- [287].

[10] Applications by the Mining and Energy Union re Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134 at [275]- [276].

[11] Fair Work Act 2009 (Cth), s 306G(1).

[12] See discussion in Applications by the Mining and Energy Union re Bulga Open Cut Mine [2025] FWC 1273 at [83] and [88].

[13] Witness statement of Selena Davis filed on 3 March 2025 at [19].

[14] Witness statement of Selena Davis filed on 3 March 2025 at [17].

[15] Fair Work Act 2009 (Cth), s 18(1)(a).

[16] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [124].

[17] Transcript, 30 April 2025, PN1130-1132.

[18] Terms of Engagement executed on 9 February 2024, Annexure 1 clause 1.1 and 1.2.

[19] See Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [136]- [137].

[20] Transcript, 30 April 2025, PN186-189.

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