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

Mining and Energy Union - Northern Mining and NSW Energy District Branch

Application for regulated labour hire arrangement orders in respect of Programmed Skilled Workforce Pty Ltd, The TESA Group Pty Ltd, WorkPac Pty Ltd, WorkPac Mining Pty Ltd, CoreStaff NSW Pty Ltd and Action Plant Service Pty Ltd in relation to work performed for United Wambo Open Cut Pty Ltd- whether performance of work is for provision of services - whether it is not fair and reasonable to make a regulated labour hire arrangement order - form of order - orders made.

• [1] The Mining and Energy Union (MEU) seeks four regulated labour hire arrangement orders (RLHA orders) under section 306E of the Fair Work Act 2009 (Cth) (Act). The orders are sought with respect to work performed by employees of Action Plant Service Pty Ltd (APS), CoreStaff NSW Pty Ltd (CoreStaff), Programmed Skilled Workforce Pty Ltd and The TESA Group Pty Ltd (Programmed), and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac). The work to be covered by the orders is performed at the United Wambo Open Cut Mine (Mine). I will refer to APS, CoreStaff, Programmed, and WorkPac collectively as the labour hire employers.

• [2] Each of the RLHA orders sought specify United Wambo Open Cut Pty Ltd (Glencore) as the regulated host, the relevant regulated employees to be covered by the order, the relevant labour hire employer to be covered by the order, and the United Wambo Open Cut Enterprise Agreement 2022 (Agreement) as the host employment instrument.

• [3] The consequences of the making of the orders will be that APS, CoreStaff, Programmed and WorkPac will be required to pay any employees engaged to work at the Mine no less than the protected rate of pay under the terms of the Agreement.

• [4] Glencore and each of the labour hire employers oppose the orders being made. Submissions are also made that if orders are made, they should be confined in scope by limiting the way the regulated employees are specified.

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

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

• [7] Programmed also advances what is said to be a jurisdictional objection to the application. It said that the RLHA Order cannot be made by operation of s. 39 of the Act as it will result in the acquisition of Programmed's property otherwise than on just terms contrary to s 51(xxxi) of the Constitution. I reject the argument and adopt the reasoning of the Full Bench of the Commission in Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd[1] (Bengalla) in that regard.

• [8] Further complaints are made about the terms of the RLHA orders proposed by the MEU. I reject those complaints and make the orders as sought as I consider they meet the requirements in s. 306E(9). The proposed orders are in similar terms to other orders made under s. 306E by the Commission.

• [9] Each party sought to be represented by lawyers. Parties may be legally represented by permission of the Commission granted under s. 596. One of the prerequisites for granting permission is that the representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The provisions of Part 2-7A are complex. It might be said unnecessarily so. I considered that legal representation would enable the matters to be dealt with more efficiently and granted permission in each case.

• [10] The following evidence was received:

(i) Reece Howells, who is employed by Glencore at the Mine as an Operator, is covered by the Agreement and is the MEU's Lodge President.

(ii) Michael Taggart, MEU District Vice President.

(iii) Matthew James Ford, employed by APS as a Serviceperson at the Mine.

(iv) Crystal Bidella Burkett, who was employed by CoreStaff at the mine at the time of preparing her statement. She was due to commence employment with Glencore at the mine at the time of the hearing.

b) For APS, witness statements from:

(i) Matthew Hilder who is employed as a Trades Assistant by APS at the Mine

(ii) Trent McKenna who is employed as a Trades Assistant by APS at the Mine

(iii) Alex Ashman who is employed as a Trainee Plant Mechanic by APS at the Mine

(iv) Michael Draman who is employed as a Spotter by APS at the Mine

(v) Cassandra Major who is employed as a Trades Assistant by APS at the Mine

(vi) Anthony Munzeberger who is APS's Operations Manager and APS's site manager for the Mine.

(vii) Jason Wright who is the founder and part owner and Commercial Manager for APS.

1. For Glencore, a witness statement of Nicholas Leslie Slater, Operations Manager at the Mine.

d) For Programmed, a witness statement of Joel Cribb, General Manager North - Energy and Resources.

e) For WorkPac, two witness statements of Cameron Hockaday, Chief Commercial & Risk Officer.

f) For CoreStaff, a witness statement of Renee Kearney, Business Manager - Hunter Valley.

• [11] Confidentiality orders were made prior to and during the proceedings, as it was submitted that the evidence included information that was commercial in confidence. The orders were made by consent. They prevented the disclosure of, amongst other things, the number of employees provided by each of the labour hire employers, the specific charge out rates for the labour and the profit margins applied to it by the labour hire employers. To preserve the confidentiality of that material I have avoided going to the specifics of that evidence.

• [12] The applications relate to production and maintenance employees. There is no contest that the labour hire employers provide labour to Glencore to perform work at the Mine. Programmed, WorkPac and CoreStaff provide production employees. APS provides maintenance employees.

• [13] The evidence concerning the production employees is that there are 4 crews working the Mine. The crews are comprised of Glencore employees and labour hire employees. All of the employees, whether engaged by Glencore or the labour hire employers, work the same roster - a four panel roster. Glencore has a safety management system (SMS) as required by the Work Health and Safety (Mines and Petroleum Sites) Regulation 2022. The SMS applies to everyone working at the Mine. Glencore also has various policies and procedures that apply to all those working at the Mine. Ultimate responsibility and control of all employees at the mine resides with Glencore's supervisors.

• [14] Schedule A of the Agreement contains an indicative aggregated annual wage for production employees and of $158.261. A bonus scheme also applies. It includes a fixed bonus of $420.00 per week and a variable bonus capped at $8,000.00 per annum. I was provided with estimates of the earnings of the labour hire employees. Those employees earn considerable less.

• [15] The evidence concerning the maintenance employees provided by APS was that they fall into six classifications: in-pit trades assistants, fuel farm attendants, spotter, serviceperson, trainee plant mechanics and plant mechanics. A spotter performs safety functions, primarily observing and facilitating the safe completion of welding works carried out by a trades qualified welder. The welders they assist are supplied to Glencore by another contractor. Servicepersons are non-trade qualified employees responsible for operating service trucks and providing daily services such as refuelling and refilling oil to maintain in-pit mining equipment. The fuel farm attendants perform similar duties at a fixed place on the Minesite, trades assistants perform various support functions to trades qualified maintenance employees that do not require trade qualifications. They assist maintenance employees in the Mine's workshop, perform some in-pit servicing such as refuelling, assisting in maintaining site infrastructure, such as communications, lighting, and water reticulation systems, and conduct minor services and refuelling that does not require a trade qualification. Plant mechanics perform major service work on site plant and mining equipment, do defect repairs, and replace parts or components as needed.

• [16] The evidence is that different rosters are worked by the APS employees depending on the service they provide. Spotters work mainly with the contract maintenance employees they assist. They sometimes assist Glencore maintenance employees. Servicepersons and trades assistants work on the four panel roster. The work of APS employees is subject to some supervision by APS managers but is ultimately supervised by a Glencore crew supervisor. APS also has its own safety procedures however the APS employees must observe the Glencore SMS and policies and procedures.

• [17] The Agreement contains an indicative aggregated annual wage for trades qualified maintenance employees of $165,154 (see Schedule A). The bonus scheme applying to production workers applies to the maintenance employees. The APS employees also earn considerably less.

Section 39

• [18] Before turning to Part 2-7A of the Act, I deal with the submission put by Programmed that a RLHA order would give rise to an acquisition of its property otherwise than on just terms for the purposes of s 51(xxxi) of the Commonwealth Constitution and as contemplated in s. 39 of the Act Programmed submitted that as a consequence the Commission has no jurisdiction to make the order sought.

• [19] The Full Bench in Bengalla at [43] to [71] found that s. 39 of the Act would not be engaged by the making of a RLHA order and so does not deprive the Commission of jurisdiction to make an order_._ Programmed made the formal submission that the Full Bench in Bengalla was wrong but accepted that I would apply the reasoning in paragraphs [43] to [71] of Bengalla. Accordingly, I find that s. 39 of the Fair Work Act does not affect the Commission's jurisdiction in this matter and does not otherwise provide a reason not to make an RLHA orders sought. I apply the reasoning of the Full Bench and reject the jurisdictional argument.

Part 2-7A

• [20] Section 306E appears in Part 2-7A of the Act. The Part commenced operation on 15 December 2023. Full Benches of this Commission have set out the principles for the proper application of Part 2-7A in Application by MEU re Callide Mine[2] (Batchfire), Application by the Mining and Energy Union re Rix's Creek[3] (Rix's Creek), and Bengalla. I will apply, but do not repeat, the principles stated in those decisions.

• [21] I have also had regard to the first instance decisions in Applications by the Mining and Energy Union Re Bulga Open Cut Mine,[4] Application by the Mining and Energy Union Re Mount Thorley/Warkworth Mine,[5] and Applications by Mining and Energy Union re Maules Creek Mine[6] each of which applied the approach taken in the Full Bench cases. While each case will turn on its own facts, I note that orders were made in each of those matters. I also note that similar arguments to those advanced here were advanced in those matters.

• [22] The key provision in Part 2-7A is s. 306E. In Batchfire at [9] to [17] the Full Bench made observations about the operation of s. 306E. Relevant to this matter the Full Bench observed:

a) For the Commission's jurisdiction to be validly enlivened under s. 306E, the application must be made by a person described in s. 306E(7). If made by an employee organisation, the organisation must be entitled to represent the industrial interests of a regulated employee or an employee of the regulated host. > > b) The Commission must make a regulated labour hire arrangement order if it is satisfied that the criteria in s. 306E(1)(a), (b), and (c) are met, and neither of the prohibitions in ss. 306E(1A) and 306E(2) apply. The evaluation of these criteria involves a degree of latitude and subjectivity but must be based on reasonable grounds and probative material. > > c) Under s. 306E(1A), the Commission must be satisfied that the work performed by employees is not for the provision of a service but for the supply of labour. The matters in s. 306E(7A) guide this determination. > > d) The prohibition in s. 306E(2) applies only if the Commission is positively satisfied that making the order is not fair and reasonable. Consideration of matters in s. 306E(8) is required only if submissions are made about them. > > e) Section 306E(9) specifies mandatory terms for a regulated labour hire arrangement order, including the host employment instrument covered by the order.

• [23] I will apply the relevant requirements in s. 306E in accordance with the observations of the Full Bench.

Section 306E(7)

• [24] It was not contested, and I find, for the purpose of s. 306E(7)(c), that the Commission's jurisdiction is validly enlivened as the MEU is an employee organisation that is entitled to represent the industrial interests of the employees of the regulated host - Glencore, and the regulated employees of CoreStaff, Programmed, WorkPac, and APS.

Section 306E(1)

• [25] Section 306E(1) requires that I make an RLHA order if satisfied of three things. It reads:

(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.

• [26] The matters described in s. 306E(1) are largely not in dispute. APS raises an issue about whether the Agreement covers all of its employees who perform work at the Mine. The coverage of the Agreement also arises in arguments put concerning s. 306E(2). It is convenient to set out the relevant provisions going to coverage now.

• [27] Clause 2 of the Agreement describes the Agreement's incidence and application. Clause 2.1 reads_:_

b) Employees of the Company employed at the United Wambo Open Cut mine (the Mine) who are engaged across the United Wambo operation, in the classes of work contained in Schedule A of the Black Coal Mining Industry Award 2010.

• [28] Schedule A of the Black Coal Mining Industry Award 2010 sets out the classification structure that covers production and engineering employees working in the black coal mining industry. It is described in clause A1.2 as follows:

The structure is a single stream structure, which does not contain any demarcations relating to the performance of work. It allows for a list of minesite competencies to be developed. Each mine's indicative competencies will use as a guide the competency standards contained in the Coal Industry Training Package.

• [29] There are five classifications. The descriptions of the classifications are broad:

A.2.1 Mineworker - Induction Level I

Mineworker - Induction Level 1 is the entry level for a non-trade person who is undertaking the statutory/generic and/or minesite induction and who remains at this level until assessed by the employer to have successfully completed the induction requirements when they then advance to a Mineworker - Training.

A.2.2 Mineworker - Induction Level 2 / Mineworker - Training

Mineworker - Induction Level 2 is the entry level for a certificated tradesperson who is undertaking the statutory/generic and/or minesite induction. The tradesperson after successful completion of the induction phase then becomes a Mineworker - Training at this level.

A Mineworker - Training is an employee who trains in and performs the required tasks under direct supervision. This classification applies to employees until assessed by the employer as meeting the requirements to be classified as a mineworker.

A.2.3 Mineworker

A Mineworker is an employee who is assessed by the employer as competent to perform the required tasks in a variety of operating circumstances and under limited supervision. An employee continues in this classification until assessed for advancement to Mineworker - Advanced.

A.2.4 Mineworker - Advanced

A Mineworker - Advanced is an employee who is assessed by the employer against the employer's available criteria as competent to perform the required tasks in all relevant operating circumstances at a level above that of a Mineworker.

A Mineworker - Advanced may be required to supervise the work of other employees.

A.2.5 Mineworker - Specialised

A Mineworker - Specialised is an employee assessed by the employer as competent to perform specialised functions beyond the level of a Mineworker - Advanced. An employee appointed to this classification will undertake a specialised role, which requires them to exercise independent discretion in undertaking functions within the bounds set by the employer.

The performance of this role may require the employee to supervise the work of other employees.

• [30] Indicative competencies for Open Cut mines are found in clause A5.1:

A.5.1 Open cut mines

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

INDUCTION

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

ADVANCEMENT COMPETENCIES

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.

• [31] Clause 3 of the Agreement describes its application. It reads:

3. Application of the Agreement

This Agreement sets out all the entitlements to remuneration and conditions of employment for Employees engaged at the Mine and covered by this Agreement. This Agreement supersedes and replaces all past agreements, customs and practices, either written or verbal.

19.1 Classification structures will be as defined, and the associated Base Hourly Rates will be in accordance with the following table:

• [33] Clause 19.8 includes rates for Trainee Operators who are described as persons who are signatory to a training agreement registered with a relevant state training authority.

• [34] CoreStaff, Programmed, and WorkPac supply employees who are engaged in production work at the Mine. Those workers ostensibly operate haul trucks. Truck operation is a competency described in clause A5.1 of the Award. Clause 2.1 therefore applies. Consequently, if the contracted employees were employed by Glencore, they would be covered by the Agreement, and it would apply to them. Further, their remuneration would be set in accordance with the terms of the Agreement, including their hourly rates of pay which are allocated according to their classification as described in clause 19. They would be classified and paid a base hourly rate as operators.

• [35] APS submits that it supplies a number of employees to Glencore to work at the Mine but most of those would not be covered by the Agreement and so it would not apply to those employees. APS supplies employees to perform work in the following roles: APS Site Manager, Trades Assistant, Spotter, Plant Mechanic, Trades Assistant and Serviceperson.

• [36] APS does concede that the Agreement would apply to at least one category employee APS supplies to the mine, plant mechanic, if Glencore employed that employee directly to undertake the same work. The concession means that I am satisfied for the purpose of s. 306E(1)(a) that APS supplies plant mechanics and so supplies one or more employees to perform work for Glencore and the Agreement would apply to those employees.

• [37] Further, APS employs seven service operators. Service operators are responsible for driving service carts in the pit to refuel and replenish fluids such as oil, grease, coolant, and diesel for mining equipment. They do not perform mechanical repairs or diagnostic evaluations of equipment. ​​ Their tasks are limited to refuelling and topping up fluids. ​The service operators employed by APS are not trade qualified. They do not carry out mechanical repairs or diagnostics. ​​ Glencore employs one service operator who is a qualified heavy diesel mechanic. ​He performs additional tasks, including maintenance and repair work on the service carts and other equipment. ​​ In the evidence the APS employees in this group were described as service cart operator or role of serviceperson. There was debate about how the service cart operators or servicepersons would be classified under the Agreement. The debate turned on whether the table in clause 9.1 should be read as requiring a serviceperson to be qualified. The other possibility is that the APS servicepersons or service cart operators could be classified as operators under the Agreement. ​​​​ The MEU argued that service cart operators fall under the classification of operators because they operate service carts which are heavy vehicles.​​ APS and Glencore contested this, suggesting that service operators are distinct from production operators and do not fall under the same classification.

• [38] Based on the description of the work performed by the APS service cart operators, I am satisfied that if they were employed by Glencore they would be covered by the Agreement. Operating service carts on a mine falls within the classifications described in Schedule A of the Award. The Agreement would also apply to them if Glencore employed them. Clause 19.1 includes rates of pay for serviceperson or operator. I consider they fall within one or other the description in clause 19.1 in the Agreement and are covered by it. I deal with this issue further below.

• [39] For the purpose of s. 306E(1), I am satisfied that:

a) CoreStaff, Programmed, WorkPac, and APS supply operators to perform work for Glencore at the Mine. The CoreStaff, Programmed, and WorkPac generally operate haul trucks. Some are described as trainees. APS supply workers to perform maintenance work.

b) The Agreement would apply to workers employed by CoreStaff, Programmed, and WorkPac if Glencore employed those employees directly to undertake the same kind of work. APS concedes that it supplies at least one classification of employee that would be covered by the Agreement, a qualified tradesperson, who if employed directly by Glencore would be covered by the Agreement and the Agreement would apply to that person. I find APS also employs servicepersons who would be covered by the Agreement if employed directly by Glencore to undertake the same kind of work.

c) Glencore is not a small business employer.

• [40] Accordingly, I am satisfied that the requirements in s 306E(1)(a), (b) and (c) are met in relation to each of the orders sought and, unless I am otherwise prevented from doing so, I must make the orders.

Section 306E(1A)

• [41] Section 306E(1A) reads:

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).

• [42] Section 306E(7A) reads:

(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.

• [43] There was no suggestion that for the purposes of subsection 306E(1A) of the Act, having regard to the matters set out in subsection (7A), that the performance of work by employees supplied by CoreStaff, Programmed, and WorkPac, is not, and will not be, for the provision of a service. I am satisfied that each of CoreStaff, Programmed, and WorkPac, supplies labour to Glencore at the Mine. I am satisfied that the prohibition on making an order in s306E(1A) does not apply in relation to the RLHA orders sought in relation to employees of those employers.

• [44] APS submits that its employees at the mine perform work that is for the provision of a service, rather than the supply of labour. For the purposes of s. 306E(7A) APS submits that it has direct involvement in managing its employees, including rostering, training, leave management, and oversight of performance. It also submits that its employees use APS equipment, such as light vehicles, tools, and personal protective equipment and has APS-specific safety management plans and inductions. ​It describes the work that its employees do as discrete and specialist work.

• [45] Glencore submits that the roles performed by APS employees such as trades assistants, fuel farm attendants, service cart operators, trainee plant mechanics, plant mechanics, and spotters are distinct roles. They are largely specialised roles which are not performed by the Company's directly employed workforce. Glencore, however, states that plant mechanics and service cart operators supplied by APS do perform the same work as employees of the company.

• [46] The MEU submits that APS's submissions regarding section 306E(1A) are incorrect or incomplete. The MEU refutes the proposition that the work performed is for the provision of a service rather than the supply of labour. It contends that the Commission must evaluate the practical reality of the arrangement using the mandatory factors in section 306E(7A). The MEU submits that APS fails to adequately address the extent to which it directs, supervises, or controls employees in circumstances where those employees are subject to the direction and supervision of Glencore's managers on a daily basis. It also submits that APS employees use the systems, plant, and structures of Glencore, which suggests the work is for the supply of labour. The MEU also argues that the work performed by APS employees is not of a specialist or expert nature. The MEU submits that the APS that the evidence supports the conclusion that section 306E(1A) does not prohibit the making of an RLHA order.

• [47] I am not satisfied that the performance of the work by the relevant APS employees is not or will not be for the provision of a service rather than the supply of labour. I note that I was not provided with the contract, or contracts, between Glencore and APS that underpinned the work performed by the APS employees. It can be expected that the contract governing commercial arrangements for the provision of services will provide some insight into matters mention in s. 306E(7A). Those matters require an assessment of the service provided and how it is provided and supervised, the extent to which, and by whom, direction, supervision or control of the work is carried out and what systems, plant or structures are to be used in the performance of the work, and the extent to which industry or professional standards or responsibilities are to be adhered to and how.

• [48] As there is no contract to describe these matters that assessment will turn on the evidence of the work performed by the APS employees. The focus here is the work of the plant mechanic and serviceperson who I have identified as satisfying the requirement in s. 306E(1)(a). The plant mechanics work alongside Glencore's maintenance staff. They have trade qualifications. They perform maintenance work on fixed plant and mining equipment.

• [49] I have already described the work performed by the service operators. They work on service carts. There are three service carts; two are owned by Glencore, the third is hired by Glencore. These service carts are large off-road vehicles, similar to haul trucks but smaller in scale, and are used for carrying fluids such as diesel, hydraulic fluid, AdBlue, and engine oils. The service carts operate in the pit at the mine and are used to service the haul trucks and other mining equipment. APS emphasised that the work is not specialist work. These employees work rosters that align with the rosters of the Glencore employees they work alongside. Supervision of all operations, and operators in the pit ultimately falls with Glencore crew supervisors. While APS has its own safety systems, Glencore's safety systems apply to the work performed by the APS employees.

• [50] There is nothing in the submissions made or evidence provided that suggests that these APS employees are provided in a manner different to the employees of the other labour hire employers.

• [51] For the purpose of s. 306E(1A), taking into account the matters in s. 306E(7A), I am satisfied that the performance of the work by APS plant mechanics and service operators is not or will not be for the provision of a service, rather than the supply of labour. Consequently, I find that the prohibition in s 306E(1A) does not apply.

Section 306E(2)

• [52] Having found that the requirements in s 306E(1) are met and the prohibition in s. 306E(1A) does not prevent the making of the orders, I am required, to consider whether s. 306E(2) prohibits the making of an RLHA order. It reads:

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.

• [53] Each of the employer parties contend that it would not be fair and reasonable to make the order sought and have made submissions in relation to matters contained in subsection 306E(8).

(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;

• [55] Oddly, there is no paragraph (b) in subsection 306E(8).

• [56] The circuitous requirement in 306E(2) that the Commission not make an order if it is satisfied that it is not fair and reasonable in all the circumstances to do so has been the subject of some consideration. As the Full Bench in Bengalla noted at [78], s. 306E(2) operates to impose a prohibition on the Commission making a RLHA order, however, that prohibition only arises if the Commission is positively satisfied that it is not fair and reasonable to make the order[7]. The Full Bench also noted that the matters in subsection 306E(8) are only mandatory considerations if a submission is made and the Commission is to take account of such matters as part of "all of the circumstances"[8]. All of the circumstances may include an assessment of whether it would not be fair and reasonable to make orders having regard to the statutory context in which Part 2-7A of the Act appears including the objects of the Act, and also the interaction between RLHA orders, collective bargaining, and enterprise agreements.

• [57] A broad value judgement is required, balancing various interests affected by the order[9]. There is no presumption that it is fair and reasonable to make an order.[10] The fact of the supply of labour, and the arrangements under which employees are supplied, can be considered as part of "all of the circumstances". The fact that, and the degree to which, labour hire employees receive a lesser rate of pay compared with the regulated host's employees may also be relevant to the "not fair and reasonable" assessment.[11]

• [58] Section 306E(8)(a) raises the pay arrangements applying to the host employer's employees and the employees of labour hire employers. Glencore submitted that the Agreement provides a single rate of pay across three classifications: Operator, Qualified Tradesperson, and Qualified Serviceperson and does not cater for differential pay rates to apply to the inexperienced mineworkers or non-trade-qualified personnel supplied by the labour hire employers. The pay rates under the Agreement were said to reflect the higher skill and experience of Glencore's directly employed workforce, which includes multi-skilled and experienced employees critical to mine operations. ​​It submitted that the employees of the labour hire employees are generally less experienced and less skilled. That was reflected in the pay rates under their respective enterprise agreements or the Award which were lower than those under the Agreement. ​It also submitted that the Agreement has never been applied to inexperienced production operators who have recently completed a traineeship. These submissions were underpinned by evidence about the relative experience of the directly employed workers and the workers supplied by the labour hire employers. In relation to the APS servicepersons it was submitted that for the purpose of s. 306E(8)(a)(ii) Glencore had never applied the Serviceperson rate to servicepersons without trades qualifications.

• [59] WorkPac's submission under s. 306E(8)(a) was that its enterprise agreement has a pay and classification structure closely aligned with the Award, was approved by a majority of its employees, passed the better off overall test on approval, and provides certainty to WorkPac in tender processes across the industry. WorkPac also points to the difference between its tiered classification structure and the flat structure in the Agreement. It submits that imposing the Agreement structure on WorkPac is not reasonable nor fair as it would disturb the existing arrangements. It further submits that there is no evidence of WorkPac undercutting the security of employment of Glencore's employees, undermining the collective strength of Glencore's employees, or undercutting the wages of Glencore employees. WorkPac argues that the parties to the Agreement did not seek to regulate contractors which suggests the parties were content for contractors to be used and regulated by their own arrangements.

• [60] APS submitted that its employees are paid at or above the Award rates as appropriate for their qualifications and experience. ​​ It also submitted that the Agreement does not provide suitable pay rates for non-trade-qualified maintenance employees such as APS's Trades Assistants, Servicepersons, and Spotters. It said making a RLHA order would compel APS to pay inexperienced and non-trade-qualified employees the same rates as the experienced and trade-qualified Glencore employees, which would be unfair and unreasonable. It submitted that this would reduce the incentive for APS employees to gain trade qualifications, cause discontent at the Mine between trades qualified workers and non-qualified workers who are paid the same and could not be said to address the undercutting of wages and conditions because the Agreement does not have non-qualified rates that are currently being undercut.

• [61] I do not accept that the matters raised by the respondents under s. 306E(8)(a) support a conclusion that it is not fair and reasonable to make the orders sought.

• [62] First, any order will require the labour hire employers to pay no less than the protected rate of pay under the terms of the Agreement. Protected rate of pay is defined at s. 306F(4). It is the full rate of pay that would be payable to the employee if the Agreement were to apply to the employee. Full rate of pay is defined in s. 18. It includes incentive based payments and bonuses, loadings, monetary allowances, overtime or penalty rates, and any other separately identifiable amounts. I do not accept the characterisation of the respondents that the flat base rate of pay in cl 19.1. means the Agreement does not distinguish between employees on the basis of qualifications or experience. The Agreement does make distinction in remuneration based on experience and qualifications, for example, the trade skill allowance at clause 20.9; the leading hand allowances at 20.10; and the emergency response team allowance at 20.13 all account for employees with experience or qualifications. Further, separate base hourly rates are provided for trainees in clause 19.10. These differential payments are means by which the Agreement provides for different payment for differing qualifications and experience of employees.

• [63] I was taken to other provisions of the Agreement. Clause 5 refers to employees working efficiently and flexibly to meet operational needs and the objective of the Agreement to provide flexible and productive operations. Clause 8.5 refers to Glencore's right to direct employees to carry out work within their skills, training, experience and knowledge and to allocate tasks by directing the most effective employee available to a task. These provisions do not suggest that the Agreement does not accommodate employees such as the employees of the labour hire employers who have limited skills and experience. Rather they suggest that the Agreement accommodates different levels of skills and experience, and that work will be allocated accordingly.

• [64] Second, I was provided with detailed evidence about the qualification and experience of employees working at the mine. There are four crews. A summary of the qualifications and experience of each employee working on one of the crews as at 11 May 2025 was provided. As was aggregate accounts of the skills held by employees of Glencore and employees of the labour hire employers. Further evidence was given about the equipment that is used and that more experienced operators work on what are described as Tier 1 trucks under Tier 1 excavators. Tier 1 equipment is bigger.

• [65] The table showing the skills of the employees on the crew shows that labour hire employees do, as a general proposition, as there are some exceptions, have fewer qualifications and less experience than the Glencore employees. However, the number of skills held by the Glencore employees working on the crew also ranged widely - from 3 skills to 24 skills. The Glencore employee with 3 skills is paid the same base hourly rate under the Agreement as the employee with 24 skills. Similarly, the years' experience also varied greatly with the longest serving Glencore employee having worked at the Mine for more than 12 years and the shortest less than a year. Again, the recently employed employee is paid the same base rate as the longest serving employee. For the labour hire employees working on the crew skills ranged from trainees who had no skills and were in training to those who had completed their traineeship and had 5 skills. The labour hire employees' skills were generally limited to haul trucks.

• [66] The table with the aggregate figures of skills held by employees of each employer showed a similar pattern. Most of the Glencore employees are multi-skilled, but not all are. The skill with the greatest prevalence was the truck operations skill. The next most prevalent skill is on water trucks, then dozers, and the least prevalent skill was the excavator skill. The summary suggests that not all Glencore employees had skills on all pieces of equipment. Far more Glencore employee had truck skills (for example, 245 had the Haul Truck Ops_CAT 789C skill) than excavator skills (59 had the HYD Excavator Ops_Hitachi EX2500 skill). The labour hire employees were less multi-skilled. The skills of the labour hire employees were skewed towards haul truck operations although some had water truck skills, and there were a small number who had excavator, or dozer skills as well. The single hourly base rate of pay applies to all of the Glencore employees regardless of how many of those skills they possess.

• [67] If there is unfairness or unreasonableness associated with applying the single base rate of pay to all regardless of skill or experience, then it applies equally between Glencore employees. The parties to the Glencore Agreement did not consider this to be unfair or unreasonable having entered into those arrangements. It would not be unfair to make an order that extended those arrangements, with this perceived shortcoming to the labour hire employees.

• [68] Taking these matters into account, and considering the Agreement includes trainee rates for trainees who are not qualified, and has mechanisms for rewarding qualifications such as trade qualifications in the full rate of pay by way of allowances, and the Glencore workforce has varying qualifications and experience, I do not consider that the extension of the flat base hourly pay structure used in the Agreement to the labour hire employees is not fair or reasonable.

• [69] There was also some argument about the way in which the Agreement applies to the Serviceperson classification. Glencore led evidence that its only directly employed serviceperson was trade qualified. Consequently, there was a practice for the purpose of s. 306E(8)(a)(ii) that the rate of pay in clause 9.1 was only paid to a trade qualified serviceperson. It also submitted that the description in the table in clause 9.1 of the classifications should be read as requiring the serviceperson to be trades qualified. The import of this argument is that it would be not fair or reasonable to make an order that lifted the rates of unqualified servicepersons to the same rate as qualified servicepersons.

• [70] The classifications described in the first column in the table in clause 9.1 appear in this way:

• [71] I do not read the word qualified as applying beyond the word that follows it, that is, tradesperson. I agree with the interpretation contended for by the MEU. Which is to say, I read the three classifications as operator, qualified tradesperson, and serviceperson. If I am wrong, given the APS servicepersons operate a service cart, which is a large vehicle, described as the size of a small haul truck, the employees would be operators. The service cart is considered part of the plant and equipment provided by Glencore, and its use is integrated into the Mine's operations. Service cart operator falls comfortably within the competencies described in Schedule A of the Award albeit it is not mentioned in the non-exhaustive list of indicative competencies described in Schedule A. For these reasons I am not satisfied that the issue raised about the manner in which the servicepersons may be classified as giving rise to it being not fair or reasonable to make the order sought. The service persons are working in the pit, alongside employees of Glencore, operating mining equipment and servicing other mining equipment in a role contemplated by the Agreement. It is fair and reasonable that an order be made that they receive the same pay as the Glencore employees.

• [72] In relation to s. 306E(8)(c), which goes to the history of industrial arrangements, ​​​Glencore submitted the Agreement was negotiated with the MEU and approved by the required majority of directly engaged employees. It does not restrict the use of contracted labour and reflects the primacy of enterprise level bargaining. ​​​It also submitted it would be unfair to disrupt the arrangements at Programmed, WorkPac, and CoreStaff which involve a history of negotiating enterprise agreements with the MEU, and their employees are covered by those agreements. ​

• [73] APS submitted that its employees are covered by the Award, and their pay and conditions are not used to undercut the Agreement. ​​ APS provides training and career opportunities for inexperienced workers, supporting their advancement in the mining industry. CoreStaff submitted that it has its own enterprise agreement which has applied to CoreStaff employees since 2 July 2019. ​ Employee wages are a result of bargaining with CoreStaff's employees, and the Agreement does not undercut bargained rates of pay. Its employees are paid base rates and flat rates higher than those provided by the CoreStaff Agreement, reflecting competitive recruitment needs in the Hunter Valley. ​It submitted that making an RLHA order would override the bargained agreement between CoreStaff and its employees, which is not aligned with the "mischief" the legislation aims to address.

• [74] I do not accept Glencore's submission that the absence of a provision in the Agreement restricting the use of contractors raises fairness and reasonableness issues of the type contemplated by subsection 306E(2). The fact that an agreement was concluded that is silent on the topic of contractors does not evince an intention to allow labour hire employees to be engaged on lower rates of pay to perform similar work to the employees covered by the Agreement. This argument may give rise to relevant fairness or reasonableness had the Agreement expressly dealt with the issue of how labour hire employees might be engaged, but it does not.

• [75] In relation to submissions about disturbing the industrial arrangements that the labour hire employers have in place, similar arguments were raised in Bengalla. There it was submitted that it was not fair and reasonable to make a RLHA order because the order would be to disrupt, to some degree, an enterprise agreement that applies to the regulated employees. The argument was put by reference to the object in s. 3(f) of the Act. The Full Bench found that there was no cause to proceed on a presumption that it is not fair and reasonable to make a regulated labour hire arrangement order simply because the effect of the order would be to disrupt an enterprise agreement that applies to the regulated employees. I apply that reasoning here. Nothing submitted leads to a conclusion that disturbing the existing arrangements would not be fair or reasonable.

• [76] Section 306E(8)(d) and (da) deal with the relationship between the regulated host and the labour hire employers including whether they are related bodies corporate or engaged in a joint venture or common enterprise or whether the work will be performed for the benefit of a joint venture or common enterprise.

• [77] Glencore submitted that it and the labour hire employers are not related body corporates, ​​the arrangements for the supply of labour are negotiated in good faith and at arm's length. The Respondents pointed to the labour hire employers providing traineeships for unqualified operators, creating a pathway for new-to-industry employees to gain experience and qualifications. It points to the labour hire employers' expertise in recruiting new employees, an expertise that Glencore places some value on and has relied upon for some time. APS submitted that it provides discrete maintenance services, not supplementary labour in the sense that workers are deployed to the Mine as additional labour that can be utilised across the various maintenance tasks undertaken by Glencore employees. The services provided are specific, discrete maintenance functions for which APS employees are appropriately qualified and trained. Most APS personnel are not trade qualified and cannot be deployed to undertake other maintenance. CoreStaff submitted that it and Glencore are unrelated entities, with no relationship beyond the contractual arrangement for assigning employees to the Mine. CoreStaff provides a valuable pathway for employees for upskilling and conversion to permanent employment with Glencore and enables Glencore to establish a pool of labour from which to recruit permanent staff where required. The relatively short tenure of CoreStaff employees at the Mine and their transition to permanent employment with Glencore was said to demonstrate that this situation does not reflect the "mischief" the legislation seeks to address.

• [78] The matters raised do not give rise to unfairness or unreasonableness. The orders will not impact on the current arrangements other than improve rates of pay for those labour hire employees provided by the labour hire employers who do work that is covered by the Agreement. It will not impact on the rates of pay of those engaged in training arrangements as they are excluded from the operation of a RLHA order by s306G. An order will not prevent the labour hire employers continuing to recruit and supply new employees with little experience should Glencore wish to rely on those companies as a means of sourcing new employees. I do not regard the submissions advanced under s306E(8)(d) and (da) as leading to a conclusion that it would not be fair and reasonable to make the orders sought.

• [79] Programmed's submissions did not engage expressly with the matters listed in subsection (8). Programmed did however submit that the making of the order would give rise to unfairness in a general way, first to its employees, second between employees of the different entities, and third to Programmed. The first proposition is put on the basis that the employees of Programmed have access to the bargaining mechanisms in Part 2-4 of the Act which provides a process whereby any perceived wage injustice between a labour hire provider and host can be bargained over, in exchange for productivity improvements. The second proposition is that there is already an enterprise agreement applying to it as a labour hire provided which was negotiated with its employees against a backdrop of the work to be performed, the skills to be applied to that work, and the productivity benefits. The Agreement negotiated by Glencore and its employees against a different backdrop of work, skills and productivity benefits. The submission goes on to argue that the employees supplied by Programmed are predominantly new entrants to black coal mining industry with limited to no experience. By contrast, the Agreement fixes a single, higher rate of pay for all (non-trainee) employees covered by it, which reflects the higher levels of experience of the workforce employed under it. The third proposition is that an RLHA order is unfair to Programmed as it will have an adverse impact on its profits, it already has an enterprise agreement that was negotiated before TESA negotiated the agreement when Part 2-7A of the Act was not anticipated, and it will be required pay a rate of pay that is not informed by the productivity benefits that were negotiated by Glencore and its employees when the Agreement was made.

• [80] Programmed also submitted the matters outlined in s 306E(8) do not materially influence what is fair and reasonable in all of the circumstances in these proceedings. The criteria in s. (8) were described by Programmed as being directed to other situations: such as where RLHA order has already been accounted for in negotiations for the labour supply, or where there are less sophisticated labour hire-host arrangements. I take Programmed submissions as asking that I take these matters into account under s. 306E(8)(f) as other matters that may be relevant.

• [81] I do not consider that it would not be fair and reasonable to the Programmed employees, between the employees of the different entities, or to Programmed if the RLHA order was made. In relation to the first proposition the order will not preclude Programmed and its employees engaging in bargaining. The subject matter of the bargaining may be influenced in that the rates of pay from which the bargaining proceeds will be no less than the rates required to be paid to meet the order. But that is not unfair and unreasonable on the employees of either Programmed or Glencore. It does have an adverse impact on Programmed but not in an unfair and unreasonable way. It is simply a consequence of the protection provided to the employees of ensuring they are paid fairly for the work they perform at the mine. I apply the same reasoning to the second proposition that there is already an enterprise agreement applying to Programmed which was negotiated with its employees against a backdrop of the work to be performed, the skills to be applied to that work, and the productivity benefits associated with that agreement. The juxtaposition with the Agreement negotiated by Glencore and its employees against a different backdrop of work, skills and productivity benefits takes the argument no further. The matters raised about the single rate of pay in the Agreement have already been dealt with. That reasoning applies equally here. It is the case that the circumstances underpinning the two agreements will change as a result of an order being made. That does not give rise to a conclusion that it would not be fair and reasonable as contemplated by s. 306E(2). The third proposition that a RLHA order is unfair to Programmed, as it will have an adverse impact on its profits, is also not a matter that suggests making the order is not fair and reasonable. It may be a consequence of the order, but it is something to be addressed in the commercial arrangements between Programmed and Glencore. It does not speak to the order being unfair or unreasonable. So far as the other labour hire employers make this submission, I apply the same reasoning.

• [82] The MEU criticises Programmed's arguments as irrelevant, particularly its complaints about increased costs and bargaining impacts. ​ The submission asserts that these outcomes align with the legislative intent to "close the labour hire loophole". ​WorkPac's claims about financial impacts and disruption to its arrangements are said to be irrelevant and unsupported by evidence. ​ The MEU notes that WorkPac has consented to similar RLHA orders in other cases. The MEU argues that ​CoreStaff's argument that the RLHA order will undermine its enterprise agreement is challenged on the basis that CoreStaff already pays its employees more than the rates in its enterprise agreement. In response to APS the MEU contends that trade-qualified workers should be paid more than non-trade-qualified workers should be rejected, as the Agreement already provides allowances for trade-qualified workers.

• [83] In its final submission Glencore recast its arguments under s306E(8) by indicating that a number of its submissions on specific paragraphs of s. 306E(8) traversed other paragraphs of the subsection. I accept that they do. For example, the arguments put about the nature, circumstances and outcome of the negotiations for the Agreement were characterised as relevant under s. 306E(8)(a), (c) and (f). The arguments of the parties under s. 306E(8) do follow a number of themes. First, there is a focus on the relative qualifications and experience of the employees working at the Mine. All parties acknowledge the differences in qualifications and experience between directly employed Glencore workers and labour hire employees. ​ Glencore highlights that its workers have more skills and experience, while APS, CoreStaff, and Programmed argue that their employees have a benefit in accessing mining industry jobs with fewer skills and less experience, and in the case of APS to non-trade qualified maintenance work. Related arguments were put regarding pay structures. Glencore pointed to the Agreement's higher rates for skilled workers and submitted that pay relativities arose from the current arrangements. The employees with fewer skills and less experience were appropriately remunerated under the lower pay arrangements with the labour hire employers. APS and CoreStaff defended their pay rates as appropriate for the skills and experience of their employees and Programmed highlighted the adverse impact of a RLHA order on its negotiated pay structures. The employer parties argued that it would be unfair to apply the same pay rates to less experienced or non-trade-qualified workers. CoreStaff and Programmed highlighted the potential unfairness of overriding their existing enterprise agreements. Glencore, APS, and CoreStaff refer to pathways for training, upskilling, or career advancement for labour hire employees, supporting their progression in the mining industry. ​The Respondents point to the contractual arrangements entered into associated with the supply of labour. They raise the unfairness in a RLHA order disturbing those commercial arrangements.

• [84] I am not satisfied on any of those arguments that it is not fair and reasonable to make the orders. The pay disparity between the employees employed by the labour hire firms and Glencore is considerable. I have found that they perform the same work. The haul truck drivers engaged by the labour hire employers drive the same trucks, work on the same crews, and work the same rosters as Glencore employees. On a shift by shift basis they are doing the same job as many of the Glencore employees but are being paid less.The arguments about whether they have as much experience or are as multiskilled as the Glencore employees does not change the fact that they do the same work. Similarly, the plant mechanics employed by APS do the same work as the Glencore employees. The servicepersons employed by APS work alongside a trade qualified serviceperson employed by Glencore doing the same work save for work they requires trade skills. I accept that the Glencore serviceperson does from time to time carry out tasks that his trade qualification permits him to do, but the job performed is still a serviceperson role. I consider these factors relevant to my consideration of whether it is not fair and reasonable to make the order. They tell against a finding that it is not fair and reasonable to do so.

• [85] During the course of the hearing, I noted the dispute associated with the coverage of the orders. Arguments were raised about whether the order should be confined to certain categories of employees such as haul truck drivers, whether storepersons employed by CoreStaff were covered and whether all of the employees of APS who were performing work at the Mine could be clearly identified as performing work covered by the Agreement. In that regard the MEU conceded that there was doubt as to whether the spotters employed by APS would be covered. I suggested that those circumstances may be relevant to whether it was not fair and reasonable to make orders that would lead to disputation. I have considered that question and have concluded that as the Act at ss. 306P to 306R provides a disputes mechanism to resolve such disputes, I am satisfied that it is not a matter that is relevant to my consideration under s. 306E(2).

• [86] I have addressed the various arguments about whether it would not be fair and reasonable to make the orders as they arose in relation to the matters in s. 306E(8). I have had regard to all the circumstances, including the evidence and the submissions made by each of the respondents and the MEU. My assessment, after balancing the various interests affected by the proposed orders in each case, is that the employees of the labour hire employers are working at the Mine doing the same job as direct employees of Glencore but they are being paid significantly less than the direct employees, and that factor weighs heavily in my assessment against a conclusion that it is not fair and reasonable in all the circumstances to make the orders sought. I am not positively satisfied that making the order is not fair and reasonable.

Section 306E(9)

• [87] Glencore submitted that each order should be confined in the way it covers regulated employees. The limitation should be based on the kind of work undertaken by the employees of the labour hire employers. Draft provisions were provided which specified the regulated employees by reference to the classifications in the Award. Glencore gave an example of the Commission taking a similar approach in MEU re Appin Colliery [2024] FWC 3418 where the order described the regulated employees as employees who were production and engineering employees within the meaning of the Award. Glencore's proposal goes one step further and specifies the classification in the Award.

• [88] Programmed also made some complaint about the form of the orders sought. It argued that the jurisdiction of the Commission is to make findings in relation to work and then make orders by reference to that work. It contended that the evidence in the matter only went to the mineworker level 3 classification and asked that the order be confined to cover regulated employees who are at mineworker level 3. Programmed also asked that the order make exclusions for the provision services that it may provide to the Mine in the future and for it to exclude trainees.

• [89] Counsel acknowledged that similar requests had been made previously and been refused in Boggabri and Bengalla. The proposed orders are in the same terms as orders issued in similar cases in the coal mining industry. They include specification of the regulated host, the employer covered, the regulated employees, the host employment instruments, and the date of commencement. I do not propose to make the variations sought by Programmed and will follow the reason in earlier cases including Boggabri and Bengalla. Should any disputation remain about who is covered that can be resolved used the provisions in Part 2-7A directed at such disputes.

• [90] The labour hire respondents asked that the commencement date be a Sunday to assist in the administrative burden associated with implementation. There was no opposition to that course.

• [91] For the reasons set out above, I am satisfied that the requirements in s. 306E(1) are satisfied in each matter. I am also satisfied that the prohibitions in s. 306E(1A) and s. 306E(2) do not apply. Consequently, I am required to a make RLHA orders.

• [92] The orders will be in the form proposed by the MEU and are published separately.[12] The operative date of each order will be Sunday, 20 July 2025.

Mr J Murdoch KC with Mr K Brotherson, Counsel for United Wambo Open Cut Pty Ltd

Mr L Howard, Counsel for Programmed Skilled Workforce Pty Ltd and TESA Group Pty Ltd

Mr B Edghill, Solicitor for Actional Plant Services

[1] [2025] FWCFB 53

[2] [2024] FWCFB 299

[3] [2025] FWCFB 12

[4] [2025] FWC 1273

[5] [2025] FWC 973

[6] [2025] FWC 1499

[7] See also Batchfire at [16] and Rix's Creek at [49]-[50].

[12] LH200054, LH200055, LH200056 & LH200057

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