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 - Application to stay proceedings pending determination of other matters by the Federal Court and the Full Bench of the Commission - Whether the interests of justice favour granting a stay - Application dismissed.

• [1] On 13 August 2024, the Mining & Energy Union (the MEU) applied under s 306E of the Fair Work Act 2009 (Cth) (the Act) for a regulated labour hire arrangement order to apply to employees of RStar Mining Pty Ltd performing work at the Tahmoor coal mine located at Tahmoor in New South Wales. The regulated host is Tahmoor Coal Pty Ltd.

• [2] The parties were initially directed to confer in relation to the application in September 2024. An amended application and draft order were subsequently filed by the MEU on 13 December 2024. RStar and Tahmoor Coal filed responses (Form R86A) to the application on 12 February 2025. Directions were then issued by the President of the Commission on 13 February 2025 requiring the MEU, RStar and Tahmoor Coal to file and serve outlines of submissions and evidence. The MEU filed its submissions and evidence on 13 March 2025. RStar and Tahmoor Coal filed their submissions and evidence on 24 April 2025. The MEU filed evidence and submissions in reply on 16 May 2025.

• [3] The application was listed for directions before the President of the Commission on 20 May 2025. On 19 May 2025, the MEU communicated with the chambers of the President with consent of RStar and Tahmoor Coal and requested that the directions hearing be vacated on the basis that the parties would provide a list of mutually available dates for a three day hearing of the application in Sydney. Then, on 20 May 2025 and without prior notice to the MEU or the Commission, RStar filed an application seeking an order that the proceedings be stayed pending the determination of certain other proceedings in the Commission and the Federal Court.

• [4] The form of the order sought is as follows:

The proceedings in matter C2024/5571 be stayed, or otherwise adjourned, until the below listed applications in the Fair Work Commission currently before the Full Bench of the Fair Work Commission, and in the Federal Court of Australia, are heard and determined:

• In the Fair Work Commission, C2024/3846, C2024/3847, C2024/3848, C2024/3849, C2024/3850, C2024/3851, C2024/3853, C2024/3856, C2024/3857, C2024/3858, C2024/3859, C2024/3860, C2024/3861; and
• In the Federal Court of Australia, NSD496/2025.

• [5] Tahmoor Coal has communicated that it supports the application made by RStar, but it has not filed any separate submissions. Notwithstanding the stay application, RStar consented to hearing dates being reserved for the hearing of the application. Hearing dates have been set aside on 29, 30 and 31 July 2025.

• [6] To understand the basis of the stay application, it is necessary to reflect briefly on the position of the parties in the proceedings. RStar opposes the application on three grounds: first, that the making of a regulated labour hire arrangement order would result in the acquisition of its property other than on just terms for the purposes of s 39 of the Act; second, that RStar provides "services" to Tahmoor Coal, rather than supplying labour, for the purposes of s 306E(1A); and, third, that it would not be fair and reasonable to make the order for the purposes of s 306E(2). Tahmoor Coal also opposes the order. It does not raise the operation of s 39 of the Act. It submits that the Commission should not be satisfied that the order can be made having regard to the matters raised in s 306E(1A) and (2).

• [7] RStar submits that the present application should be stayed pending the determination of two separate proceedings. The first set of proceedings concern applications made for regulated labour hire arrangement orders with respect to BHP's operations at the Goonyella Riverside, Peak Downs and Saraji mines in Queensland (the BHP Proceedings). The Full Bench of the Commission has reserved its decision in those proceedings. RStar submits that the Commission's decision will cast light on the proper application of s 306E(1A) of the Act and, for that reason, are relevant to this matter. The second proceeding involves Federal Court proceedings NSD496/2025 which are judicial review proceedings concerning the decision of the Full Bench of the Commission making a regulated labour hire arrangement order for employees working at the Bengalla mine (the Bengalla Federal Court Proceedings). The decision of the Commission in that matter considered whether a regulated labour hire arrangement order would result in the acquisition of the property of Skilled Workforce Solutions (NSW) Pty Ltd for the purposes of s 39 of the Act. RStar says that the decision of the Federal Court with respect to that matter will determine whether its contention that s 39 of the Act is engaged in these proceedings is sustainable.

• [8] For the reasons that follow, I am not satisfied that it is appropriate to stay the application or vacate the hearing dates which have been set aside.

• [9] 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. It is also appropriate to record that, in performing its functions, including when making procedural decisions of that type, the Commission is directed by s 577 to do so in a manner that is, among other things, fair and just and is quick, informal and avoids unnecessary technicalities.

• [10] The question of whether proceedings should be stayed to await the outcome of an appeal in another matter has arisen on many occasions. In Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745, Bennett J identified the following principles as being generally apposite to assist in identifying how the discretion to award a stay should be exercised:[1]

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16] at 19).

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification of proper grounds (Rochfort at 19).

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with (Jefferson Ltd v Bhetcha [1979] 2 All ER 1108 at 1113).

(d) The Court's task is one of 'the balancing of justice between the parties', taking account of all relevant factors (Jefferson at 1113).

(e) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (Jefferson at [905]).

• [11] There is no dispute that the discretion conferred by s 589 of the Act is sufficiently wide to permit the Commission to stay proceedings pending the outcome of other litigation if persuaded that is the appropriate course. However, the exercise of the discretion to stay proceedings pending the outcome of an appeal or application for judicial review should generally be approached on the basis that proceedings before the Commission should be dealt with in the ordinary course unless sufficient reason is shown for departing from that approach.

• [12] It has been said that the "Courts of law ... can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that that may be made in the future".[2] There will, nonetheless, be cases in which it is appropriate for the Commission to defer the determination of proceedings pending the determination of other proceedings.[3] Dean J said in R v Whiteway; ex parte Stephenson [1961] VicRp 26; [1961] VR 168, for example, that "[s]ometimes adjournments have been made pending the decision of another case and, in general, this is legitimate enough".[4] The parties usefully referred to the following passage from the judgment of Ormiston JA (Calloway JA agreeing) in Geelong Football Club Ltd v Clifford [2002] VSCA 212 in which his Honour said:[5]

The error here demonstrated was the judge's failure to appreciate that a party is entitled to a trial of a proceeding ready for hearing unless it is clearly shown that injustice is likely to be caused if the adjournment is refused. It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. It is not, for example, necessary to say anything here about the adjournment of criminal trials, where the accused may suffer the stigma of being found guilty of an offence where the constituent elements are under direct challenge in an appeal court. On the civil side there may be cases involving some technical rule of law or the disputed meaning of a particular section, where an appeal court has reserved its decision (or, even, is just about to hear argument), where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case, such that it would be preferable to await the expected outcome. The sooner the appeal is likely to be resolved, the stronger may be the argument in favour of delay, especially in terms of convenience to parties and the trial court itself.

Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial. It is not necessary to examine such authorities as there are on the subject, for they were not referred to in argument and all deal with particular cases. Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply in the subject proceeding. In the end, as I have said on another occasion, it is the principle which counts, not the outcome of a particular case. Many issues are on appeal in the High Court at any one time and many applications for special leave are in the pipeline, but one cannot demand that trials be delayed and adjourned merely because the outcome of any one of those appeals may have a bearing on the outcome of a particular trial. One may think of exceptions, particularly where the issue is limited and the appeal to the High Court is intended to resolve a dispute between two directly conflicting lines of authority binding on the trial court, but that would seem to be a rare situation.

• [13] Whilst acknowledging that it is seeking a departure from the usual course, RStar submits that it falls within the class of case in which "where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case, such that it would be preferable to await the expected outcome". The MEU relies upon the observation that a party is entitled to a trial of a proceeding ready for hearing "unless it is clearly shown that injustice is likely to be caused if the adjournment is refused".

• [14] It has been said that a pending appeal which will deal with a relevant question of law might provide a greater justification for a stay of proceedings than a proposal for legislative amendment. The rationale given for that approach is that there is a level of certainty that the point will be addressed; and knowledge that if and when it is, the decision of the court higher in the appellate chain will declare the law on the relevant topic with retrospective effect.[6] It remains, nonetheless, a question of where the interests of justice lie. Many factors may be relevant. In the passage set out above from Geelong Football Club Ltd, Orminston JA noted that the sooner the appeal is likely to be resolved, the strong the argument for delay. The extent of the cost and inconvenience to the parties in a proceeding going forward will also be relevant. A twelve week trial may raise different considerations to a one day hearing. Any prejudice to the party seeking to have their case heard will also be relevant.

• [15] Ultimately, the question turns on whether it is in the interests of justice that the determination of the proceedings be delayed to await the determination of separate proceedings, having regard to the position of the parties. In case of proceedings before the Commission, it must also have regard to the requirement that the Commission exercise its functions in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities and the direction that the Commission take into account, among other things, the objects of the Act and equity, good conscience and the merits of the matter.

• [16] To deal with the stay application, it is necessary to consider the relevance of the BHP Proceedings and the Bengalla Federal Court Proceedings to the present application. The BHP Proceedings were heard by a Full Bench in January and February 2025 with the hearing concluding on 18 February 2025. The BHP Proceedings raise for consideration the construction and application of s 306(1A) of the Act. They are the first matter under Part 2-7A of the Act which have squarely done so. The decision in that matter may provide some guidance in relation to the operation of that provision. However, it is far from clear that any decision in the BHP Proceedings would be dispositive in relation to the present application.

• [17] In any event, it is to be expected that the decision in the BHP Proceedings will be handed down in advance of the hearing of this matter. In those circumstances, the BHP Proceedings do not justify a stay. RStar submitted that, even if the decision in the BHP Proceedings is handed down before the hearing of this application, it may require supplementary submissions or evidence to the prepared and, in that way, then endanger the hearing dates. Whether that will be the case cannot now be known. If the decision in the BHP Proceedings is handed down prior to July and any party believes that the decision necessitates further submissions and evidence to be prepared which cannot be done before the hearing, it is open to the party to then seek an adjournment. Any such difficulty, if it were to arise, should be dealt with at that time. That possibility does not support the proceedings now being stayed.

• [18] In the Bengalla Federal Court Proceedings, Skilled Workforce Solutions contends that the Commission erred by concluding that its exercise of jurisdiction to make a regulated labour hire arrangement order would not result in the acquisition of property otherwise than on just terms and, as a result, erred in exercising jurisdiction under the Act. The question of whether there would be an acquisition of property as a result of an order being made under Part 2-7A is likely to turn, at least in part, on the contractual arrangements between the regulated host and the supplier of labour.[7] It is unclear whether the same conclusion would necessarily follow in this matter if Skilled is successful in the Federal Court. However, for the purposes of the stay application, I am prepared to accept that the outcome of the Bengalla Federal Court Proceedings would, at least if Skilled is successful, have implications for the arguments RStar raises in relation to the present application and that those implications are potentially dispositive.

• [19] Notwithstanding the potential implications of the Bengalla Federal Court Proceedings to the objection made by RStar in this matter, I do not believe it is appropriate to stay the determination of the present application or that the interests of justice favour granting a stay. I have formed that view for essentially three reasons.

• [20] First, the stay application will, if granted, be likely to result in a substantial delay in the determination of the proceedings. The MEU informed the Commission that the Federal Court has communicated that the Bengalla Federal Court Proceedings are likely to be listed in the Full Court sitting period in November 2025. Although predicting the future course of litigation is always difficult, if the Bengalla Federal Court Proceedings are heard in November 2025, a decision of the Full Court could be expected at the end of the year at the earliest and most likely some time in 2026. Having regard to the fact that the application was filed in August 2024, that would represent a significant delay and a material interference in the usual course of proceedings before the Commission. Such a delay is not, in my opinion, justified in this matter. In forming that view, I have taken into account the requirements imposed on the Commission by s 577 of the Act.

• [21] Second, the potential prejudice which would be occasioned to the MEU, its members and other employees of RStar engaged at the Tahmoor coal mine if the stay application is granted, outweighs any prejudice to RStar if the proceedings go forward as currently planned. If the Commission makes a regulated labour hire arrangement order, employees of RStar would benefit from receiving the "protected rate of pay" determined in accordance with s 306F, being the full rate that would be payable if the Tahmoor Coal Enterprise Agreement 2021 applied to their employment. Section 306E(9)(e)(ii) provides that a regulated labour hire arrangement order must specify the day the order comes into effect which, relevantly, must be "the day it is made or a later day". The order cannot be made to have retrospective effect.

• [22] The consequence is that a delay in the hearing of the application denies employees of RStar the opportunity to obtain an order which would entitle them to a higher rate of pay for a substantial period of time. The MEU points out that the evidence filed in the substantive proceedings suggests that approximately 242 employees of RStar are likely to be affected by the proceedings and that the effect of an order for those employees would be to increase their rates of pay by between $13,744 and $24,945 per annum. The increase in the rates of pay of those employees will, of course, only occur if the MEU's application is successful. Nonetheless, a delay of proceedings having the potential to substantially increase the rates of pay of a large group of employees is a matter that, in my opinion, must be given substantial weight in the exercise of the Commission's procedural discretion. That prejudice is likely to be incapable of being subsequently remedied even if an order is later made.

• [23] Third, the only prejudice which would be caused to RStar if the stay application is refused is the cost and inconvenience of participating in the proceedings before the Commission in circumstances in which it is possible that the Bengalla Federal Court Proceedings might mean the proceeding lacks utility. Although some expense and inconvenience will be caused by participation in the proceedings, I cannot regard that prejudice as comparable to the loss of the opportunity for employees to obtain an order which would result in an increase in their pay. It is likely that much of the cost associated with the proceedings has already been incurred. The written evidence and outlines of submissions have been prepared and filed, and the parties agree that the matter is ready for hearing. The parties have estimated that three days of hearing will be required. The prejudice of which RStar complains does not warrant a stay, particularly when regard is had to the potential prejudice to the MEU, its members and other employees if the determination of the proceedings is delayed.

• [24] RStar submitted that the fact the evidence and submissions have been prepared, and the proceedings are ready for hearing, favours a stay being granted. RStar says that, because the proceedings are already prepared, they can be quickly resumed once the decisions in the BHP Proceedings and Bengalla Federal Court proceedings are handed down. I accept that is a relevant aspect of the circumstances. However, the fact that the proceedings are already prepared means that the prejudice to RStar, and Tahmoor Coal, in the proceedings going forward is reduced. Both consequences are relevant and should be taken into account. However, for the reasons I have given, the potential prejudice to employees of RStar is substantial even if the proceedings are able to be resumed quickly after decisions are made in the BHP Proceedings and Bengalla Federal Court proceedings.

• [25] The MEU also submits that the conduct of RStar in relation to seeking a stay is disqualifying and itself a reason to refuse the application. The BHP Proceedings were heard in January and February 2025. The Full Bench decision in the Bengalla matter was handed down on 13 March 2025. Skilled Workforce Solutions commenced the Bengalla Federal Court Proceedings on 4 April 2025. No application for a stay was made until 20 May 2025. Furthermore, on 19 May 2025, the parties had requested that the scheduled directions hearing should be vacated on the basis that the parties agreed to the application being set down for hearing on convenient dates. Only after the directions hearing was vacated did RStar apply for a stay. Delay in seeking a stay may be a relevant to whether a stay should be granted.[8] It appears to me that RStar did not act promptly to seek a stay or even foreshadow that it was considering that course. However, given that I am otherwise not persuaded it is in the interests of justice to grant a stay, it is unnecessary to rely on that consideration.

• [26] For those reasons, the application made by RStar to stay, or adjourn, the application is dismissed.

C Murdoch KC, of counsel, for RStar Mining Pty Ltd.

A Wu, solicitor, Ashurst for Tahmoor Coal Pty Ltd.

A Sage and A Jacka, for the Mining and Energy Union.

[1] Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 at [9] (Bennett J). See also ResMed Ltd v Australian Manufacturing Workers Union (No 2) [2015] FCA 537; (2015) 243 FCR 366 at [49]- [50] (Perry J) and Australian Rail, Tram and Bus Industry Union v Transit Systems West Services Pty Ltd (No 2) [2022] FCA 389 at [55] (Rares J).

[2] Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253 (Starke J). Followed in Thornton v Repatriation Commission [1981] FCA 76; (1981) 52 FLR 285 at 291‑292 (Fisher J), Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 251, City of Sydney Council v Satara [2007] NSWCA 148 at [20] (McColl JA, Beazley and Tobias JJA agreeing); Esso Australia Resources Pty Ltd v Federal Commissioner of Taxation (No 1) [2011 FCAFC 134; (2011) 196 FCR 560 at [15]‑[16] (Edmonds and Perram JJ); Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [7] (McKerracher J).

[3] See, for example, Deliveroo Australia Pty Ltd v Franco [2021] FWCFB 5015 and Nawaz v Rasier Pacific Pty Ltd (t/as Uber BV) [2021] FWC 5178.

[4] R v Whiteway; ex parte Stephenson [1961] VicRp 26; [1961] VR 168 at 171 (Dean J) referring to Re Yates Settlement Trusts [1954] 1 All ER 619.

[5] Geelong Football Club Ltd v Clifford [2002] VSCA 212 at [6]- [7] (Ormiston J).

[6] Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [10]- [11] (McKerracher J) referring to Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 at 534 (Mason P, Sheller and Beazley JJA agreeing).

[7] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [54]- [55].

[8] Newmont Canada FN Holdings ULC v Commissioner of Taxation [2018] FCA 958 at [16] (McKerracher J).

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