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

Programmed Skilled Workforce Pty Ltd Trading AS Programmed, The TESA Group Pty Ltd

Application for a regulated labour hire arrangement order - application for order to produce documents

• [1] The Mining and Energy Union (MEU) has made an application[1] under s.306E of the Fair Work Act 2009 (Cth) (Act) for a regulated labour hire arrangements order (RLHA Order), covering Glendell Mining Pty Limited as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (together WorkPac) as the employers in respect of employees who perform work at Mt Owen/Glendell Operations near Singleton in New South Wales.

• [2] This matter is listed for hearing with a related matter involving Programmed Skilled Workforce Pty Ltd and The TESA Group Pty Ltd[2] as the employers on 27 and 28 March 2025.

• [3] On 10 March 2025, the MEU made an application for an order for production of documents. This application sought the production of 11 categories of documents by WorkPac. The parties advised that there was disagreement in relation to some of those categories so I listed the matter for hearing on 18 March 2025.

• [4] At the hearing, the parties advised that they were in agreement in relation to all categories of documents apart from Categories 3 and 4. The MEU filed an amended application for an order for production of documents on 18 March 2025 which reflected this agreement, as well as Categories 3 and 4. The MEU submitted, among other things, that the documents sought were relevant to test some aspects of the evidence of Mr Cameron Hockaday, Chief Commercial and Risk Officer of WorkPac Group Pty Ltd who has filed a witness statement dated 27 November 2024 (Mr Hockaday's Statement).

An original or one copy of tenders submitted by WorkPac Pty Ltd and/or WorkPac Mining Pty Ltd since 1 January 2024 in relation to the performance of work by its employees in the black coal mining industry, including such tenders as referred to from that date as referred to at [51] to the Hockaday Statement.

• [6] The MEU submitted that the Category 3 documents are referred to in paragraph 51 of Mr Hockaday's Statement which relevantly provides:

WorkPac tenders for its services contracts, and those tenders are costed on the basis that the 2019 Coal EA will continue to apply in accordance with its terms until it is terminated or replaced.

• [7] The MEU submitted that it is part of WorkPac's case that it is not fair and reasonable for the Commission to make the RLHA Order sought by the MEU as there is a current enterprise agreement, which sets the rates on which WorkPac bases its tenders. The MEU submitted that the Category 3 documents are relevant to this issue, which is raised by WorkPac and that these documents are required to test the assertion at paragraph 51 of Mr Hockaday's Statement.

• [8] WorkPac submitted that paragraph 51 of Mr Hockaday's Statement refers to tenders in the context of a process rather than any particular documents. WorkPac submitted that it is not clear what is meant by the term 'tender' and that it would not know what documents it is required to produce in response to that category.

• [9] WorkPac also objected to the Category 3 documents on the grounds of apparent relevance and submitted that such documents will not disclose the basis upon which those tenders are costed. All the documents will do is disclose the terms on which WorkPac is prepared to provide labour at other mines. Further, the documents will not provide a full picture on the terms upon which WorkPac might have broader arrangements with other hosts.

• [10] I do not accept WorkPac's submissions that it is not clear what is meant by the word 'tender'. This is clear and unambiguous language which is used by Mr Hockaday in his witness statement. Mr Hockaday's reference to 'those tenders' appears to be a reference to specific tenders which Mr Hockaday had in mind when he said that they are costed on the basis that the 2019 Coal EA will continue to apply.

• [11] I accept the MEU's submission that these documents are relevant because they are referred to in Mr Hockaday's Statement to support an assertion which WorkPac appears to rely upon in contending that it is not fair and reasonable for the Commission to make the RLHA Order sought by the MEU. To the extent that the documents may not disclose the basis upon which those tenders are costed, this is a matter which may affect the admissibility of the tenders into evidence or may be a matter which the parties wish to make submissions about. However, this matter does not change the apparent relevance of the documents.

• [12] I find that the documents in Category 3 have apparent relevance to the issues I am required to determine at the hearing. For this reason, I have decided to make an order requiring WorkPac to produce the documents in Category 3.

An original or one copy of any contract, agreement (including any framework or umbrella agreements) or other documents evidencing the current terms on which WorkPac is engaged to provide employees to the mines and regulated hosts which were the subject of the Regulated Labour Hire Arrangement orders referred to at [56]-[57] to the Hockaday Statement, including any variations or alterations to those terms following the making of RLHA orders at:

1. the Callide Mine, in relation to which Batchfire Callide Management Pty Ltd is the regulated host and in relation to a RLHA order was made on 24 July 2024 following a decision of the Full Bench of the Fair Work Commission in Application by the Mining and Energy Union [2024] FWCFB 299;
2. the Coppabella Mine, in relation to which Peabody Australia PCI Mine Management Pty Ltd is the regulated host and in relation to a RLHA order was made on 1 November 2024 following a decision of the Full Bench of the Fair Work Commission in Applications by Mining and Energy Union re Coppabella Mine [2024] FWCFB 413;
3. the German Creek mining area near the town of Middlemount in Queensland, in relation to which Anglo Coal (Capcoal Management) Pty Ltd is the regulated host and in relation to a RLHA order was made on 1 November 2024 following a decision of the Full Bench of the Fair Work Commission in Applications by the Mining and Energy Union re Capcoal Surface Operations [2024] FWCFB 411; and
4. the Poitrel Mine, in relation to which Stanmore SMC Pty Ltd is the regulated host, and in relation to a RLHA order was made on 1 November 2024 following a decision of the Full Bench of the Fair Work Commission in [2024] FWCFB 412

• [14] The MEU referred the Commission to paragraph 56 of Mr Hockaday's Statement which states that WorkPac has been the subject of four RLHA Orders which have commenced operation.

• [15] Mr Hockaday asserts at paragraph 58 of his statement that there are potential implications for WorkPac upon the making of a RLHA Order, which are exacerbated by an accumulation of such orders. Amongst other things, Mr Hockaday specifically relies upon the four RLHA Orders that have come into effect as pointing against the making of the order in these proceedings.

• [16] At paragraph 58(g), Mr Hockaday states the extent by which annual leave and personal leave liabilities have increased at the four sites where RLHA Orders apply. He does not say whether or not WorkPac and its clients at those four sites have negotiated or entered into contracts or variations to contracts which have resulted in WorkPac being paid more for the provision of labour at those sites subsequent to the making of the RLHA Orders.

• [17] Mr Hockaday asserts at paragraph 58(i) that unless WorkPac's commercial arrangements allow the increased costs arising from the making of a RLHA Order to be recovered from the client, those additional costs will significantly impact WorkPac's operations. The MEU submitted that Mr Hockaday does not explain the terms of the commercial arrangements between WorkPac and the four entities it contracts with at each of the four mines which are the subject of the RLHA Orders.

• [18] The MEU asserts that paragraphs 18(e) and (g) of WorkPac's submissions rely upon these assertions by Mr Hockaday. These paragraphs state:

Additionally, a number of RLHAOs have been made in respect of WorkPac and it is the subject of a number of applications for RLHAOs. WorkPac estimates that for the RLHAOs which have been made to date, the retrospective value of annual leave and sick/personal leave entitlements have increased by an additional amount in the order of over [redacted]. The cumulative effect of the making of RLHAOs will represent a material impact on WorkPac's profit.

Unless WorkPac's commercial arrangements with its clients allow for the recovery of the increased cost associated with the necessary payments having to be made by WorkPac to its employees covered by a particular RLHAO, the additional cost will have a significant impact on WorkPac's operations. As Mr Hockaday states, many arrangements may become wholly unviable and WorkPac would need to consider its options to respond to those challenges, which may include terminating commercially unsustainable arrangements.

• [19] The MEU submits that as that WorkPac relies expressly upon the asserted accumulative effect of all of these RLHA Orders that have been made against it, without putting into evidence its commercial arrangements with its clients that apply at the mine sites where those RLHA Orders apply, it is clearly relevant to the issues in the case for the Category 4 documents to be produced. Those are also matters which are capable of bearing upon the cross examination of Mr Hockaday.

• [20] WorkPac submitted that it is not clear how the documents sought in Category 4 would shed any light on the extent to which the leave accruals have increased or not increased. They also will not shed any light on the likelihood of any increase in rates being passed on to Glencore, in circumstances where none of the orders made in respect of any other of the mines concerned Glencore entities.

• [21] WorkPac submits that Category 4 is cast too broadly and the number of sites referred to makes the category oppressive. The documents are not confined to the contracts themselves but extend to, for example, purchase orders, remittances, revenue receipts. All of those documents could conceivably evidence the terms upon which WorkPac provides labour. The Category 3 and 4 documents are commercially sensitive not only to WorkPac but to the host entities with those to which tenders were provided and in respect of which orders have been made.

• [22] WorkPac submitted that the Category 4 documents are a fishing exercise as the MEU does not know what those documents disclose.

• [23] Mr Hockaday states that there are potential implications for WorkPac upon the making of a RLHA Order, each of which are exacerbated by an accumulation of RLHA Orders. In paragraph 58 of Mr Hockaday's Statement, he refers to a number of potential negative impacts of an RLHA Order being granted in relation to the current application and also refers to the cost impacts of one or more RLHA Orders and the implications for the broader WorkPac business. In my view, the commercial arrangements in relation to the four sites where RLHA Orders apply are relevant to the Commission's assessment of this evidence.

• [24] I do not accept that the production of documents covered by Category 4 is oppressive. The category is directed to a contract or agreement which 'evidenc[es] the current terms on which WorkPac is engaged to provide employees to the mines and regulated hosts' in relation to four work sites. In my view, the reference to 'or other documents' rather than 'and other documents' is intended to include a document that provides for terms of engagement where there is no contract or agreement in existence. I do not accept that Category 4 includes purchase orders, remittances and revenue receipts as these are not documents which would ordinarily contain 'current terms on which WorkPac is engaged to provide employees to the mines and regulated hosts'.

• [25] The notion of a "fishing expedition" is that an order to produce is not to be used for the purpose of exploring whether there is a supportable basis for a case that might potentially be advanced.[3] I do not accept that the MEU is engaging in a fishing expedition in seeking the documents in Category 4. I accept the MEU's submission that the documents sought are for the purpose of testing Mr Hockaday's evidence about the accumulative effect of four RLHA Orders that have been made against it. This evidence includes that the retrospective value of leave entitlements have increased at the four sites, that the making of an RLHA Order will have a significant impact on Workpac's operations, and that the cost impacts of one or more RLHA Orders will have direct implications for WorkPac's clients. There is no basis for me to find that the Category 4 documents are sought for the purpose of exploring whether the MEU has a supportable case.

• [26] I find that the documents in Category 4 have apparent relevance to the issues I am required to determine at the hearing. I do not accept that the production of these documents would be oppressive or that the MEU is engaging in a fishing expedition. For these reasons, I have decided to make an order requiring WorkPac to produce the documents in Category 4.

• [27] I have issued an order for production of documents in the terms sought by the MEU in its amended application filed on 18 March 2025. This order includes documents in Categories 3 and 4 as described in this decision. The parties are granted leave to apply for confidentiality orders with respect to the documents produced.

Mr P. Boncardo, Counsel, for the Mining and Energy Union

Mr T. Sanders, Solicitor for Glendell Mining Pty Ltd

[3] APESMA v Great Southern Energy [2024] FWCFB 106, [25], citing Kirkman v DP World Melbourne Ltd [2015] FWCFB 3995, [19], and Woodside Energy Ltd v Australian Worker's Union [2022] FWCFB 168, [29].

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