s.306E - Regulated labour hire arrangement order

Kelsey Aretha Cherrington & Ors re Olympic Dam Mine

(LH2024/28; LH2024/29; LH2024/30; LH2024/31; LH2024/32; LH2024/33; LH2024/34; LH2024/35; LH2024/36; LH2024/37; LH2024/38; LH2024/39; LH2024/40; LH2024/43; LH2024/44; LH2024/48; LH2024/56)

Application for a regulated labour hire arrangement order in relation to Shutdown Staffing Pty Ltd trading as Readi in relation to work performed for Boom Logistics Ltd at Olympic Dam Mine - making of a regulated labour hire arrangement order not opposed by any party

• [1] This decision concerns applications made under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order. The applicants are seventeen employees of Shutdown Staffing Pty Ltd trading as Readi (SSPL). The applications were made on various dates between 30 October 2024 and 25 November 2024.

• [2] The proposed order would cover SSPL as the employer, Boom Logistics Ltd (Boom) as a regulated host and also employees of SSPL who work at Olympic Dam or within 100kms of the township of Roxby Downs in South Australia, who would, if employed by Boom be covered by the Boom Logistics Ltd Olympic Dam Enterprise Agreement 2022 (the Boom EA 2022).

• [3] The making of an order is not opposed by the respondents, being Boom and SSPL. Shortly before the hearing of the applications on 23 April 2025, the parties reached agreement on the form of the order.

• [4] Nevertheless, it is necessary for the Commission to be satisfied that any applicable requirements of s 306E are met before making a regulated labour hire arrangement order.

• [5] The applicants rely on the applications, two written submissions and on the witness statements and associated annexures of:
  • Kelsey Cherrington, an employee of SSPL, who is engaged as casual rigger at Olympic Dam; and
  • Travis Hera-Singh, the Executive Officer of the South Australian Divisional Branch of the Construction and General Division of the Construction, Forestry and Maritime Employees Union.

• [6] The respondents did not tender any evidence or rely on any written submissions in light of the agreement between the parties on the form of the order.

• [7] Arising from the applicants' written submissions and the uncontradicted evidence of Ms Cherrington and Mr Hera-Singh, I make the following factual findings:

(a) The Olympic Dam mine site is operated by BHP Ltd and is a large copper, uranium, silver and gold mine in South Australia;

(b) Boom is a trading corporation incorporated under the Corporations Act 2001 (Cth) and is a national crane hire company which employs in order of 750 employees;

(c) Boom is engaged by BHP to provide crane and other services for the purposes of shutdown, maintenance and construction of airflow systems at Olympic Dam;

(d) Boom directly employs a number of employees to perform work at Olympic Dam;

(e) The Boom EA 2022, being an enterprise agreement made under the FW Act, covers and applies to Boom and any Boom employees in the classifications set out in the agreement who are engaged by Boom and carry out work at Olympic Dam or within 100km of the township of Roxby Downs, South Australia;

(f) There are eight classifications in the Boom EA 2022 being Mechanic, Yards Person, Crane Operator - Non-Slew, Crane Operator - Slew up to 199T, Crane Operator - Slew Crane 200T & Over, Rigger/ Dogger - Basic, Rigger / Dogger - Advanced and Relief Supervisor/ Scoper;

(g) SSPL is a wholly owned subsidiary of Boom;

(h) Boom engages SSPL under contract to provide employees to perform work for Boom at Olympic Dam and as such SSPL operates as a labour hire provider to Boom;

(i) The employees of SSPL at Olympic Dam who perform work for Boom include persons performing duties of a mechanic, rigger, dogger and crane operator;

(j) The applicants are employees of SSPL who perform work for Boom at Olympic Dam;

(k) The SSPL Enterprise Agreement 2016 (SSPL EA 2016), being an enterprise agreement made under the FW Act, covers and applies to SSPL and also SSPL employees who are within the classification structure of that agreement;

(l) The applicants are all covered by the SSPL EA 2016;

(m) SSPL employees who work at Roxby Downs are paid significantly less than Boom employees who perform work of the same kind; and

(n) The manner in which SSPL employees perform work for Boom at Olympic Dam is as follows:

• Cranes and lifting equipment are supplied by Boom or BHP rather than SSPL;
• Elevated Work Platforms and forklifts used by SSPL employees are made available by BHP via a third party hire company;
• Start and finish times are set by BHP and Boom allocates SSPL employees to positions on the roster;
• SSPL employees work alongside Boom employees and BHP employees;
• Training for SSPL employees is provided by Boom or BHP rather than SSPL;
• On-site gear, uniforms and PPE utilised by SSPL employees is supplied by BHP and off-site gear is supplied by Boom;
• Systems of work (eg safe work method statements, job safety analyses, lifting documents) utilised by SSPL employees are set by Boom, by other contractors or BHP, rather than SSPL;
• Operational supervision and direction of SSPL employees is provided by Boom or BHP rather than SSPL; and
• Managers of Boom deal with matters such as leave, medical injury or discipline in respect of SSPL employees.

• [8] The proper approach to determination of applications made under s 306E of the FW Act is set out in a decision of a Full Bench of the Commission in Application by the Mining and Energy Union re Callide Mine.[1] I adopt the principles set out in that decision.

• [9] I am satisfied that each applicant is a regulated employee within the meaning of s 306E(5). This is because their employer SSPL, supplies each of them to perform work for Boom, which is regulated host as it a constitutional corporation. Consequently, each applicant has standing under s 306E(7) to apply for a regulated labour hire arrangement order made under s 306E.

• [10] I am satisfied that the requirements set out in s 306E(1) are met in that:

(a) SSPL supplies its employees to perform work for Boom at Olympic Dam;

(b) The Boom EA 2022 would apply to the SSPL employees if Boom were to employ them directly to perform work of the same kind; and

• [11] As I am satisfied of the requirements in s 306E(1), I am required to make a regulated labour hire arrangement order under s 306E, provided that that I am also satisfied that the prohibitions in s 306E(1A) and s 306E(2) do not apply.

• [12] In respect of s 306E(1A), I am 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. I am satisfied that SSPL supplies labour to Boom. In reaching this conclusion, I have had regard to the matters set out in s 306E(7A) and find as follows in respect of those matters:

(a) SSPL has minimal involvement in matters relating to the performance of work by the SSPL employees at Olympic Dam;

(b) Boom or BHP direct, supervise and control SSPL employees in their performance of work, including rostering, allocating tasks and supervising work including the quality of work;

(c) SSPL employees use negligible systems, plant or structures of SSPL in circumstances where:

• Boom supplies cranes and lifting equipment for use by SSPL employees;
• BHP supplies lifting equipment for use by SSPL employees;
• BHP arranges the supply of elevated work platforms and forklifts for use by SSPL employees;
• Boom, BHP or other contractors provide SSPL employees the following documents relating to performance of work: - safe work methods statements, job safety analyses and documents relating to lifting; and
• BHP and Boom provide training to SSPL employees;

(d) There is no evidence and the parties made no submissions that SSPL, Boom or any other person is or will be subject to industry or professional standards or responsibilities in relation to SSPL employees at Olympic Dam; and

(e) The parties made no submissions as to whether the work was of a specialist or expert nature. I note that work performed by SSPL employees requires licences or certificates as it involves the operation of plant and equipment or the performance of mechanical trade work. Nevertheless, I do not consider that work performed by SSPL employees is work which can be characterised as being of a specialist or expert nature.

• [13] In respect of s 306E(2), I am not satisfied that it is not fair and reasonable in all of the circumstances to make a labour hire arrangement order. I note that SSPL is a wholly owned subsidiary of Boom, SSPL is a labour hire provider to Boom and also that SSPL employees who perform the same kind of work as Boom employees at Olympic Dam are paid substantially less than Boom employees. Given the agreement of the parties on the form of the regulated labour hire order, the parties have not pressed any submission on the matters set out in s 306E(8) and consequently I am not required to have regard to those matters.

• [14] In light of the matters set out above, I am required to make a regulated labour hire arrangement order.

• [15] The parties have agreed upon the form of the order including an operative date. The operative date of the proposed order is 9 June 2025 which is permissible under s 306E(9)(e)(ii). The agreement on an operative date resolves a matter which was of contention between the parties. In those circumstances, the parties have jointly requested the Commission to note in the order an undertaking by SSPL to pay Regulated Employees no less than the protected rate of pay for the period between 19 May 2025 and 9 June 2025. The undertaking speaks for itself and I am prepared to record the undertaking as a note in the order.

• [16] Otherwise, the agreed form of order specifies the matters required under s 306E(9) of the FW Act and I am prepared to make an order in those terms. The parties did not seek that the order specify when it ceases to be in force and so the order does not specify a cessation date.

• [17] The order will be published together with this decision.[2]

A Pollock, counsel, for Boom Logistics Ltd and Shutdown Staffing Pty Ltd.

[1] [2024] FWCFB 299.

[2] LH200032, PR786461.

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