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

Application for a regulated labour hire arrangement order with respect to employees of RStar Mining Pty Ltd performing work for Tahmoor Coal Pty Ltd at the Tahmoor colliery - Application to vacate hearing and adjourn proceedings - Mining operations suspended from December 2024 and employees directed not to attend work from February 2025 - Mining operations did not recommence as announced - Tahmoor Coal experiencing financial difficulties - Unclear whether and when mining will recommence - Proceedings potentially of no utility - Whether proceedings should be discontinued - Hearing vacated and proceedings adjourned for report back in two months.

• [1] On 13 August 2024, the Mining and Energy Union (the MEU) applied for a regulated labour hire arrangement order to apply to employees of RStar Mining Pty Ltd supplied to perform work at the Tahmoor colliery near Wollongong. The mine is operated by Tahmoor Coal Pty Ltd. The application is listed for hearing from 29 to 31 July 2025. Yesterday, the MEU applied for an order vacating the hearing and adjourning the proceedings for a period of two months. The application is opposed by RStar and Tahmoor Coal who both say that the hearing should proceed next week.

• [2] There is considerable irony in the positions now adopted by the parties. On 20 May 2025, RStar applied for an order that the proceedings be stayed pending the determination of certain other proceedings in the Commission and the Federal Court. The effect of the order sought would likely have been to stand the proceedings over until late this year or some time in 2026. That application was opposed by the MEU. The MEU asked the Commission to program the proceedings for hearing. On 2 June 2025, I determined that the proceedings should not be stayed and should proceed in the ordinary course.[1]

• [3] The MEU now seeks to have the hearing vacated, and the proceedings stood over, for different reasons. The reasons are explained in a witness statement of a Senior National Legal Office for the MEU, Adam Jacka, dated 24 July 2025. The course of events commences with directions made by the Commission. On 17 July 2025, the Commission made directions permitting the parties to file further or supplementary submissions or evidence in light of the decision of the Full Bench in Application by the Mining and Energy Union re; Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134.

• [4] On 21 July 2025, RStar filed a witness statement of Jarred Danaher of the same date together with its supplementary submissions. The witness statement of Mr Danaher was not received by the MEU in an unredacted form until 23 July 2025. Mr Jacka says that Mr Danaher's witness statement contains new information of which the MEU was not previously aware and asserts that Mr Danaher's statement raises significant concerns about the ongoing viability of Tahmoor Coal and its operations at the mine. It is not necessary or appropriate to refer to that information in detail in this decision as it is commercially sensitive and subject to confidentiality orders made by the Commission.

• [5] The present circumstances as they are understood by the MEU are summarised in Mr Jacka's witness statement as follows:

19. Tahmoor has not produced coal at the Mine since about December last year. Employees who worked at the Mine were placed on stand by in February this year.

20. The MEU apprehended that the Mine would recommence operations or otherwise have announced that it would recommence operations by mid-2025. It had been announced that the Mine would recommence operating on 24 May 2025. This did not occur.

21. There has, however, been nothing said by Tahmoor to indicate that the Mine will recommence operating and the information in Mr Danaher's statement indicates that Tahmoor is in significant financial difficulty and may never re-commence operating the Mine.

• [6] The witness statement of Mr Danaher confirms that, since 10 February 2025, Tahmoor has directed its employee not to attend for work except for a skeleton crew engaged in performing essential tasks on rotation. Similarly, all RStar employees at the mine have been directed not to attend for work again with the exception of employees engaged as part of the skeleton crew. Mr Danaher further indicated that a number of RStar employees who had previously worked at the mine have obtained alternative employment and ceased their employment with RStar.

• [7] Tahmoor Coal did not dispute that, although it had earlier announced that mining operations were to recommence on 24 May 2025, this did not occur. Tahmoor Coal accepts that it is uncertain when or whether mining operations will recommence at the mine, although it emphasises that its hope and expectation is that mining operations will recommence at some point in the future. Tahmoor Coal further accepts that it is, at present, uncertain when mining operations might recommence and, if they do, the nature and scope of the mining operations that will occur at the mine.

• [8] The MEU submits that the hearing should be vacated, and the proceedings adjourned for a period, in circumstances in which the mine has not recommenced operating as foreshadowed by Tahmoor Coal, Tahmoor Coal has not indicated if and when the mine will recommence operating and it appears Tahmoor Coal has significant financial difficulties. In those circumstances, the MEU submits that the conduct of the hearing may end up being an exercise in futility, cause the parties unnecessary cost and expense given that there is no certainty that Tahmoor will recommence operating the mine and result in a significant waste of the Commission's time and resources as, even if orders are made as sought in the MEU's application, those orders may never have any operation. The MEU indicates that it does not wish to discontinue its application at this point given that the matter has been readied for hearing and evidence and submissions filed, and as there is still uncertainty about whether Tahmoor Coal will recommence operating the mine.

• [9] RStar and Tahmoor Coal both oppose the application. In short, RStar submits that it has prepared for the hearing, is ready to proceed next week and has incurred significant legal costs and expended considerable resources in preparing for the hearing. It says that, if the MEU has formed the view that the proceedings are an exercise in futility, it should discontinue the application. RStar submits that it should not be put in the position of having the proceedings hanging over its head for an extended period. Tahmoor Coal made submissions to a similar effect. It also submits that, if the MEU believes the proceedings are futile, it should withdraw the proceedings and that it should not have ongoing proceedings hanging over its head.

• [10] The Commission has a broad discretion under s 589(1) of the Act to make decisions as to how, when and where a matter before it is to be dealt with. There is no dispute that the discretion includes that the Commission may determine to vacate a hearing if proper cause is demonstrated for adopting that course. In performing its functions, including when making procedural decisions of that type, the Commission is directed by s 577 of the Act to do so in a manner that is, among other things, fair and just and is quick, informal and avoids unnecessary technicalities. In considering an adjournment application, the Commission is generally required to undertake a balancing of justice between the parties.[2] The proper deployment of the resources of the Commission and the effect on other litigants is also relevant.[3]

• [11] It is regrettable that the application to vacate the hearing and adjourn the proceedings has been made so close to the hearing. The manner in which the proceedings have been conducted by the MEU, in this respect, is not beyond criticism. Although the MEU asserts that the application was prompted by information contained in the recent witness statement of Mr Danaher, it appears to me that the MEU has known for some time that there is considerable uncertainty in relation to the future operations at the mine. At least after mining operations did not recommence on 24 May 2025 as had been promised by Tahmoor Coal, it should have occurred to the MEU that the uncertainty surrounding the operation of the mine, and the implications for the proceedings, should have been brought to the attention of the Commission. It is disappointing that only occurred yesterday.

• [12] The question remains, however, what is now the appropriate and sensible procedural course to be adopted? Having considered all the circumstances, I believe the appropriate course is to vacate the hearing and adjourn the proceedings for a period. A number of considerations appear to me to be significant.

• [13] First, it is undesirable for the time and resources of the parties and of the Commission to be consumed by hearing a case of some complexity in circumstances in which there may turn out to be no utility in an order being made. Given that it is uncertain whether or when mining operations will resume at the mine, there is a distinct possibility that an order, if made, will have no practical operation. The principal operative effect of a regulated labour hire arrangement order would be to require RStar to pay its employees no less than the protected rate of pay in connection with work performed by the employees for Tahmoor Coal.[4] If mining operations do not recommence, or mining operations recommence but RStar no longer supplies employees to perform work at the mine, an order would have no work to do and the proceedings will have been for nothing.

• [14] Second, the uncertainty associated with the future operations of the mine extends beyond whether mining operations will resume or not. If mining operations do recommence, there is every likelihood that the nature of the operations, the working arrangements applying to employees of Tahmoor Coal or RStar and the financial arrangements between Tahmoor Coal and RStar might be different. In this matter, the Commission is required to address whether it is satisfied that the performance of work by RStar employees is not or will not be for the provision of a service, rather than the supply of labour, for the purposes of s 306E(1A) and whether it is not fair and reasonable in all the circumstances to make an order for the purposes of s 306E(2). The Commission is directed by s 306E(7A) and (8) to have regard to matters including the working arrangements of the employees concerned, the involvement of RStar in the work of the regulated employees, the use of systems, plant and structures of RStar, the pay arrangements of the employees, the relationship between RStar and Tahmoor Coal and the terms and nature of the arrangement under which the work is performed. Tahmoor Coal and RStar both make extensive submissions in relation to each of these matters

• [15] In my opinion, it is undesirable for the Commission to consider and determine the questions posed by s 306E(1A) and (2) in circumstances in which the nature of the arrangements under which work will be performed by RStar employees at the mine, if mining operations do recommence, are unclear. If the application is pressed next week and determined, the Commission will be asked to assess whether work performed by RStar employees is for the provision of a service rather than the supply of labour, and whether it is not fair and reasonable to make an order, based on a hypothetical set of circumstances which may or may not reflect the arrangements which will apply at the mine in the future. The preferrable course is for the Commission to assess questions posed by s 306E(1A) and (2) when there is some clarity as to the nature of the arrangements which will apply at the mine, and to the work of RStar employees, if mining operations recommence.

• [16] Third, pressing forward with the application at this time has the potential to raise, and require determination of, a range of issues which will not arise if mining operations recommence and there is clarity as to the nature of the future arrangements at the mine. For example, it is unclear whether, at present, the Commission could be satisfied that RStar supplies, or will supply, employees to perform work for Tahmoor Coal for the purposes of s 306E(1) other than the skeleton crew. The application might be unsuccessful on that basis either because s 306E(1)(a) is not satisfied or because the assessment under s 306E(1A) and (2) is required to be conducted by reference only to the skeleton crew employees. If mining operations then recommence and RStar again supplies employees to perform work at the mine, the MEU could make a further application. That course of events would result in the same application being heard and determined by the Commission twice. It is not in the interests of the Commission, or of the parties, to create the potential for essentially the same application to be determined on multiple occasions.

• [17] RStar also makes submissions in relation to its financial position and the financial consequences to it if a regulated labour hire arrangement order is made. RStar relies on the impact of the current circumstances, including its current financial interactions with Tahmoor Coal, to submit that it is not fair and reasonable for a regulated labour hire arrangement order to be made. That is understandable and there is no reason to criticise RStar for making that submission. However, there is at least some prospect that, if mining operations recommence, RStar's position will change. It is, in my opinion, better to determine whether it is fair and reasonable to make an order when the future operational arrangements at the mine and the nature of the arrangements between RStar and Tahmoor Coal going forward are known. The present situation is one of considerable uncertainty.

• [18] Fourth, I have some sympathy for the position of RStar and Tahmoor Coal that they should not have proceedings hanging over their heads for a substantial period and that the MEU should consider discontinuing the proceedings. However, there may be little practical difference between the proceedings being adjourned and discontinued. If the application is discontinued and mining operations do subsequently recommence, it would then be open to the MEU to make a further application. The MEU confirmed that, if the proceedings are discontinued and mining recommences, it would pursue an application at that time. In that sense, the prospect that a regulated labour hire arrangement order might be made by the Commission will continue to hang over the heads of Tahmoor Coal and RStar whether the proceedings are stood over or discontinued. I also observe that RStar and Tahmoor Coal previously asked the Commission to stand the proceedings over for a significantly longer period.

• [19] I accept that the MEU's late application to vacate the hearing listed for next week is likely to have caused RStar and Tahmoor Coal to incur some avoidable costs and inconvenience in preparing for the hearing. It would have been preferable if the application had been made at an earlier time. That could have avoided the parties having to incur unnecessary costs. However, I do not consider that fact favours refusing the application to vacate the hearing. The bulk of the evidence and submissions in the matter were prepared some months ago and the associated costs could not have been avoided. Furthermore, however regrettable it is that avoidable costs have been incurred, the fact that some unnecessary costs have been incurred is not a good argument for further unnecessary cost and inconvenience being caused to the parties and the Commission by going forward with a hearing which may serve no purpose.

• [20] For these reasons, the hearing in Matter Number C2025/5571 listed from 29 to 31 July 2025 is vacated. The application will be listed for a case management hearing at 9.30am on 26 September 2025.

P Boncardo, of counsel, instructed by A Jacka for the Mining and Energy Union.

B Rauf, of counsel, instructed by A Wu of Ashurst for Tahmoor Coal Pty ltd.

C Murdoch KC, of counsel, instructed by T Sebbens of Ashurst for RStar Mining Pty Ltd.

[1] Mining and Energy Union v RStar Mining Pty Ltd trading as RStar Mining [2025] FWC 1504.

[2] National Union of Workers (NSW) v Belan [2017] FWC 1439 at [8].

[3] Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [114] (Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[4] Fair Work Act 2009 (Cth), s 306F(2).

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