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[2026] FWC 1054
General information, not legal advice.
Fair Work Commission
2026-03-27
Original judgment source is linked above.
s.306P - Application to deal with a dispute about a regulated labour hire arrangement
Dispute about whether regulated labour hire arrangement order applies to employee - whether role falls within the host employment instrument - whether order should apply retrospectively - arbitration order made to apply from date of decision
[2] I conducted a hearing in Sydney on 12 March 2026. Mr Vile provided evidence in support of his application. WorkPac relied on evidence from Ellie Murray (Senior Site Manager) and Cameron Hockaday (Chief Commercial & Risk Officer).
[3] Mr Vile has a written contract of employment with WorkPac dated 8 July 2025. The contract identifies Mr Vile's Client Site Position as Carpenter and Classification Level as Mineworker 4. The WorkPac Coal Mining Agreement 2019 (WorkPac Agreement) applies to Mr Vile's employment. Mr Vile's employment falls within the classification of Level 4 - Mineworker (Advanced) in the WorkPac Agreement. That is the classification level for a Qualified Tradesperson.
[4] Mr Vile's evidence about his work is the following:
(i) Mr Vile works in an infrastructure crew on a two panel 40 hour condensed roster as part of B crew. Mr Vile is rostered to work from 6:30am to 4:30pm from Monday to Friday.
(ii) Mr Vile attends pre-start meetings with other infrastructure employees at the beginning of the day. Most of these employees are directly employed by HVO. Mr Vile works under the supervision of HVO employees.
(iii) Mr Vile's principal duties are the general maintenance of mine infrastructure and work related to that maintenance including assistance with delineation, inspection, and other general site duties.
(iv) Mr Vile works alongside boilermakers, electricians, fitters, and other tradespeople.
(v) Mr Vile uses his carpentry trade skills when performing his duties but also undertakes other duties that do not require carpentry skills.
(vi) Mr Vile works throughout the mine site including at coal handling and preparation plants and coal loading points.
(vii) A significant amount of Mr Vile's work is maintenance on crib huts and ablution blocks.
(viii) Mr Vile works in an infrastructure crew that comprises some people with trade qualifications and a small number that do not.
[5] Ms Murray provided an email from Brett Johnson (HVO Manager) which provides a basic description of Mr Vile's role.
[6] Mr Johnson's email states "we don't have an exact role description for the carpenters, but the basis description is as follows..."
[7] Mr Johnson's email identifies the primary purpose of the role in the following terms:
"The carpenters are responsible for the maintenance, repair, and minor construction of site buildings, amenities, and associated infrastructure across Hunter Valley Operations to ensure facilities are safe, functional, and fit for purpose."
[8] Mr Johnson's email identifies Mr Vile's key duties as:
[9] The dispute essentially turns on whether Mr Vile would be covered by the HVO Agreement if he was employed by HVO to perform the work he performs as a WorkPac employee.
[10] The classification structure in the HVO Agreement is contained in Appendix 1. The only classification in the HVO Agreement is that of a Mine and Process Technician. This role is defined in the following terms:
Mine and Process Technician - means an employee engaged in production and engineering tasks carried out in any part of the mine, maintenance, coal preparation and/or support services work areas.
The classification in this the (sic) Agreement will be:
Mine and Process Technician - engaged in production and engineering work and includes mine worker, maintainer and CHPP Operator/maintainer."
[11] Clause 10 of the HVO Agreement permits HVO to direct its employees to carry out work that is within their skills, training, experience, and knowledge subject to safety and statutory requirements.
"Work at HVO is based on flexibility and co-operation between all employees. There will be no demarcation..."
CONSIDERATION - WOULD MR VILE BE COVERED BY THE HVO AGREEMENT
[13] I consider Mr Vile's work would fall within the broadly defined classification of a Mine and Process Technician under the HVO Agreement. Mr Vile works in an infrastructure team that performs a variety of tasks around all parts of the mine site. Mr Vile performs some work which would fall within his carpentry trade as normally understood, but he performs many other duties which would not.
[14] In any event, even if Mr Vile only performed carpentry work as part of the infrastructure team, he would still fall within the Mine and Process Technician classification. I cannot see any indication in the words used in Appendix 1 of the HVO Agreement that carpenters are intended to be treated differently to be any other tradespeople or other employees that work as part of an infrastructure team. The award history referred to by Mr Vile also supports this position given carpenters were expressly within the scope Interim Consent Award - Coal Mining Industry (Production & Engineering).
[15] I consider Mr Vile is engaged in production and engineering tasks carried out in any part of the mine as described in the definition appearing in Appendix 1 of the HVO Agreement. The duties described by Mr Vile and Mr Johnson fall comfortably within that description.
[16] I also consider Mr Vile meets the description of being "engaged in production and engineering work and includes mine worker, maintainer, and CHPP operator/maintainer." Mr Vile is classified as a mine worker under the WorkPac EA, and he performs an array of maintenance or maintainer work at the mine site.
[17] I agree with Mr Endacott's submission that the black coal mining industry has moved away from strict demarcations of roles in industrial instruments. Employees are now expected to perform any work which is within their skills, training, experience, and knowledge. The HVO Agreement, WorkPac Agreement, and the Black Coal Mining Industry Award 2020 all proceed on that basis. In that industrial context, it is somewhat odd that it is now being argued in this case that an employee working in an infrastructure team which performs various work as required around any part of the mine site is to be treated differently just because their trade is that of a carpenter.
[18] I determine that Mr Vile is a regulated employee covered by the regulated labour hire arrangement order made on 15 August 2025 because if Mr Vile was employed by HVO, his employment would be covered by the HVO Agreement.
[19] WorkPac has indicated it seeks to rely on s.306F(3) of the FW Act to argue it has not contravened the obligation in s.306F(2) of the FW Act to pay the protected rate of pay to Mr Vile because it reasonably relied on information provided by HVO to the effect that Mr Vile is not covered by the regulated labour hire arrangement order. I do not need to consider that issue because I am dealing with an arbitrated dispute and not whether a civil remedy provision has been breached by WorkPac.
[20] Mr Vile submitted that I should make a retrospective order that WorkPac must pay him the applicable protected rate of pay prescribed by the regulated labour hire arrangement order from when the order commenced operating on 31 August 2025.
[21] WorkPac submitted that any order made should not have retrospective effect because it relied on information provided by HVO.
[22] Section 306Q of the FW Act draws a distinction in terms of when an arbitrated protected rate of pay order may apply based on whether the parties have notified the Commission that they agree to the Commission arbitrating the dispute. The distinction appears intended to ensure that the Commission does not exercise judicial power when arbitrating a dispute.
[25] In this case, I do not consider Mr Vile and WorkPac notified the Commission that they agree to the arbitration within the intended operation of s.306Q of the FW Act. There was a degree of confusion about the arbitration process in relation to what are relatively new provisions. Although WorkPac did not raise opposition to the dispute proceeding to arbitration after agreement was not reached in conciliation, I do not consider that is the same as the parties providing notice that they agree to arbitration as contemplated by s.306Q(4) of the FW Act. That view is strengthened by the fact that WorkPac is opposing a retrospective order.
[26] I am satisfied that a dispute has arisen about a regulated labour hire arrangement order that is in force for the purposes of s.306P of the FW Act. The dispute is about whether Mr Vile is a regulated employee that is being paid less than the protected rate of pay prescribed in the order.
[28] I will make an arbitrated protected rate of pay order that WorkPac must pay Mr Vile the protected rate of pay determined in accordance with the regulated labour hire arrangement order made by the Commission on 15 August 2025 in PR790761. The order will take effect from the date of this decision. An order will be issued concurrently with this decision.
[29] I encourage the parties to negotiate about retrospective arrangements in good faith to avoid the need for further litigation.
Mr K Endacott from the Mining and Energy Union representing Mr Vile_._
Printed by authority of the Commonwealth Government Printer
Bohdi Vile
WorkPac Mining Pty Ltd [2026] FWC 1054