Mining and Energy Union v WorkPac Pty Ltd [2025] FCA 1454

On the grounds stated in the statement of claim, accompanying affidavit or other document prescribed by the Rules, the Applicant claims:

1. Pursuant to s 545(1) of the Fair Work Act 2009 (FWA) and/or s 21(1) of the Federal Court of Australia Act 1976 (FCAA), a declaration that:

The protected rate of pay for Ms Loretta Bennett is set, for the purposes of s 306F(4) of the FWA, in accordance with the full rate of pay for the Mineworker Level 2 classification under the BMA Enterprise Agreement 2022.

1. Pursuant to s 545(1) of the FWA and/or s 21(1) of the FCAA, a declaration that:

The respondent contravened s 306F(2) of the FWA in that between 29 September 2025 and 31 October 2025 (or such later date as appropriate) the respondent failed to pay Ms Bennett no less than the applicable protected rate of pay in accordance with the BMA Enterprise Agreement 2022.

1. Pursuant to ss 545(1) and (2)(c) of the FWA, an order that the respondent compensate Ms Bennett in the amount of her loss as set out in the Statement of Claim.
2. Pursuant to s 546 of the FWA, a pecuniary penalty payable by the respondent to the applicant for contravention of s 306F(2) of the FWA.
3. Interest up to judgment.
4. Such further or other orders as the Court deems fit.

1. In its Statement of Claim filed on 31 October 2025 the Union pleaded, in summary:
   • On 11 July 2025, the Fair Work Commission made a regulated labour hire arrangement order within the meaning of s 306E of the Fair Work Act 2009 (Cth) (Fair Work Act) entitled the WorkPac Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed for Whitehaven Coal Mining Ltd - at the Blackwater Mine - BMA Enterprise Agreement 2022 Order (the Order).
   • The Order, which commenced operation on 21 July 2025, covered WorkPac, Whitehaven Coal Mining Ltd (Whitehaven) as the regulated host, and employees of WorkPac who performed work at the Blackwater Mine in Queensland who would, if employed by Whitehaven, be covered by the BMA Enterprise Agreement 2022 (BMA Agreement).
   • On or about 18 October 2023 the corporate group of which Whitehaven was a part entered into a transaction to acquire 100% of the Blackwater Mine from BHP Mitsubishi Alliance (BMA).
   • Before the Mine Transaction was completed, BMA engaged employees at the Blackwater Mine through entities in the BHP corporate group.
   • There was a transfer of business within the meaning of s 311 of the Fair Work Act from BHP Coal Pty Ltd to Whitehaven (which included transfer of employees).
   • The BMA Agreement applied to Whitehaven and its employees.
   • The BMA Agreement was approved by the Fair Work Commission on 13 January 2023 and commenced operation for three years from 19 January 2023.
   • Ms Loretta Bennett commenced employment for the respondent at Blackwater Mine on 21 June 2023, and is entitled to receive no less than the protected rate of pay set by s 306F(4) of the Fair Work Act in respect of her work at Blackwater Mine for Whitehaven as an employee of WorkPac.
   • The protected rate of pay for Ms Bennett is the full rate of pay that would be received by a Mineworker Level 2 under the BMA Agreement.
   • From 21 July 2025 to on or about 28 September 2025, WorkPac paid Ms Bennett a protected rate of pay in accordance with the rate of pay for a Mineworker Level 2 under the BMA Agreement. However, on or about 29 September 2025, WorkPac notified Ms Bennett that on and from that date, she would be paid a protected rate of pay in accordance with the rate of pay for a Mineworker Level 1 under the BMA Agreement. WorkPac reduced Ms Bennett's rate of pay on or about the same date.
   • WorkPac was not entitled to reasonably rely on information provided by Whitehaven for the purposes of working out Ms Bennett's protected rate of pay in reaching its decision to reduce her rate of pay.
2. On 29 October 2025, WorkPac filed an application in the Fair Work Commission to deal with the dispute in respect of the applicable protected rate of pay for Ms Bennett's employment pursuant to section 306P of the Fair Work Act. In that application the matters in dispute between the parties are described as:
   1. The Respondent, Ms Bennett, is employed by WorkPac Pty Ltd (WorkPac) at the Blackwater Mine. She has been employed at the Mine since 21 June 2023.
   2. Ms Bennett's employment at the Mine is covered by the regulated labour hire arrangement order for the Mine (RLHAO) (attached as Attachment 1), with the relevant host employment instrument being the BMA Enterprise Agreement 2022 (BMA EA).
   3. A dispute exists as to how Ms Bennett is to be classified under the BMA EA for the purpose of the applicable protected rate of pay for her employment:
      1. Based on information provided to it by the regulated host, WorkPac has classified Ms Bennett at a Minework Level 1 employee under Schedule 9 of the BMA EA (Schedule 9 is attached as Attachment 2).
      2. Ms Bennett, through the Mining and Energy Union (MEU), suggest that Ms Bennett should be classified as a Mineworker Level 2 employee under Schedule 9 of the BMA EA. This is on the basis that Ms Bennett has been employed at the Mine for at least 24 months, such that she should be classified at Mineworker Level 2.
3. In the Fair Work Commission application, WorkPac identified that which it was seeking to resolve the dispute as:
   1. A determination that the relevant classification under the BMA EA by reference to which WorkPac must pay Ms Bennett in connection with her work at the Mine is to be worked out is Mineworker Level 1.
4. In its interlocutory application WorkPac sought the following relief:
   1. This proceeding be stayed until the matter identified as C2025/10667 is heard and determined by the Fair Work Commission, or until further order of the court.
   2. The Respondent is to notify the court within 3 working days of matter C2025/10667 being determined by the Fair Work Commission.
   3. The Respondent be excused, until further order, from compliance with r 16.32 of the Federal Court Rules 2011.
   4. There be liberty to apply.
5. In its interlocutory application the Union sought the following relief:
   1. To the extent necessary, compliance with rule 17.01(2) of the Federal Court Rules 2011 be dispensed with.
   2. The proceedings be expedited.
   3. Until the hearing and determination of these proceedings, and pursuant to s 562 of the Fair Work Act 2009 and s 23 of the Federal Court of Australia Act 1976, the respondent be restrained from taking further steps in the matter identified as C2025/10667 before the Fair Work Commission.
   4. The parties provide a copy of these orders to the Fair Work Commission as soon as practicable.
   5. Such further or other orders as the Court deems fit.

1. In summary WorkPac submits that its interlocutory application should be upheld, and the Federal Court proceedings stayed pending the outcome of the Fair Work Commission proceedings, because:
   • The Fair Work Proceedings were commenced first in time.
   • They were properly brought pursuant to a statutory provision expressly conferring power in relation to the relevant subject matter on the Fair Work Commission as the specialist industrial tribunal.
   • They will resolve a pressing and practical controversy between the parties, namely what is the protected rate of pay for the relevant employee under the Fair Work Act.
   • The Court proceedings would not resolve with totality the underlying practical controversy having regard to the limited nature of the relief sought from the Court.
   • The Fair Work proceedings allow for the involvement of the Regulated Host, which may be necessary to the appropriate resolution of the dispute.
   • The non-arbitral process in the Fair Work Commission has the prospect of resolving all outstanding matters between the parties.
   • It is undesirable to have competing proceedings concerning substantially the same subject matter running concurrently in different forums.
   • There is significant advantage to the parties in having the Fair Work Commission proceedings determined first, and no appreciable prejudice is occasioned to the Union in having the Court proceedings determined subsequently.
2. The Union submits that the Court proceedings ought not be stayed, but rather heard first, because, in summary:
   • Any resolution in the Fair Work Commission will not finally quell the dispute between the parties because, as matters presently stand, Ms Bennett and WorkPac have not consented to the back-dating of any arbitral determination of the Fair Work Commission to a date on which it was made.
   • If the Court determines the question of law before it concerning s 306F of the Fair Work Act, the Fair Work Commission will be bound to adopt this construction insofar as there is any residual dispute remaining once the Court has ruled.
   • Only the Court can determine whether a civil penalty provision in the Fair Work Act has been contravened.
   • The issue has broader significance than the instant cases, because the Union is currently in dispute over the proper interpretation of s 306F(4) as it concerns the classification structure of the BMA Enterprise Agreement 2022 with two other labour-hire providers.
   • The Union does not as a general rule seek to come to Court as a first resort, however in some cases the Court is the preferred venue and this is such a case; one of the reasons for the Court proceedings progressing first is that the questions raised before the Fair Work Commission are questions of law, which the Court is better qualified to address than the Fair Work Commission.

1. Similar arguments to those presented to the Court in this proceeding were considered by Jackman J in Australian Workers' Union v John Holland Pty Ltd [2023] FCA 892. In that case the Court heard an application for a temporary stay of proceedings in the Federal Court pending the hearing and determination by the Fair Work Commission of a matter commenced by John Holland Pty Ltd against the Australian Workers' Union. Relevantly his Honour said:
   1. The power of the Court to grant a temporary stay of the kind sought is an aspect of its general power to control its own proceedings, and it is exercisable where proceedings are pending in another court or tribunal and it is desirable that those proceedings should proceed to their conclusion first, recognising the general principle that it is undesirable that two courts or tribunals should determine the same dispute: Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 at [105] (Brereton JA, with whom Leeming JA and Emmett AJA agreed). Brereton JA referred to this kind of temporary stay as a "case management stay" at [103] and [106], and I respectfully regard that as an apt description of the nature of such a temporary stay, involving as it does, no more than the postponement of pre-trial preparation steps and any hearing, while the Court retains control over the proceedings. As Brereton JA stated at [103], such a stay does not involve any conclusion as to jurisdiction, or as to appropriate forum, but is a technique for the management of proceedings in the context of proceedings pending elsewhere. As his Honour said at [105], practical considerations based on common sense and fairness guide which action should proceed first. That proposition was also stated by Finkelstein J in this Court in Bella Products Pty Ltd v Creative Designs International Ltd [2009] FCA 868; (2009) 258 ALR 538 at [23].
   2. In a much-cited judgment, which was approved in Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 590 (Dawson, Gaudron, McHugh and Gummow JJ), Lockhart J in Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd [1992] FCA 71; (1992) 34 FCR 287 at 291, set out the following non-exhaustive list of considerations relevant to the grant of a temporary stay:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of a substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.
• Generally balancing the advantages and disadvantages to each party.

1. While there is some force in the contentions of the Union that the matter should proceed expeditiously in the Federal Court, on balance I consider the preferable course in this case is to stay the present Federal Court proceedings pending the determination by the Fair Work Commission of the application filed by WorkPac on 29 October 2025.
2. First, the dispute between the parties concerns protected rates of pay under a regulated labour hire arrangement order made by the Fair Work Commission pursuant to s 306E of the Fair Work Act. Part 2-7A of the Fair Work Act concerns regulated labour hire arrangement orders, and s 306P (which falls within Part 2-7A) applies to disputes which arise in respect of the operation of that Part. In particular, as is made plain by ss 306P(3) and (4) of the Fair Work Act, disputes concerning the protected rate of pay for a regulated employee, or whether a regulated employee has been, or is being, paid less than the protected rate of pay for the employee, as a general proposition are dealt with by the Fair Work Commission. There appears to be a legislative intention that disputes referable to protected rates of pay for regulated employees go, at least in the first instance after discussions between the parties, to the Fair Work Commission rather than the Courts. That is consistent with the approach of WorkPac in this case commencing an application in the Fair Work Commission.
3. Second, it is not contentious that the Fair Work Commission is a specialist industrial tribunal dealing with disputes under the Fair Work Act. The evidence of Mr Toby Walthall for WorkPac was that he anticipated the Fair Work Commission would deal with WorkPac's application in accordance with the specific process established by the legislative scheme, and that a decision would be made by the Fair Work Commission within 8-12 weeks of the hearing. There is evidence accordingly that the Fair Work Commission would deal with issues in dispute between the parties on an expedited basis.
4. Third, and in such circumstances, I am not persuaded that either party would be prejudiced by the present Federal Court proceedings being stayed pending the hearing of the application before the Fair Work Commission. I take that view because:
   • It does not appear to be in dispute that the underlying factual issues in both forums are the same. I consider there is merit in having the underlying factual issues considered and determined by the specialist industrial relation body. There is also potential benefit, as submitted by Mr McLean, of the Fair Work Commission performing its conciliation and arbitration functions in respect of the present dispute between the parties.
   • While Mr Sage for the Union submitted that the issue in dispute between the parties concerned a question of law regarding the operation of the regulated labour hire arrangement in the present case, I am not persuaded that the issues in dispute are outside the purview of the Fair Work Commission for the purposes of Part 2-7A of the Fair Work Act. Certainly, there is no submission by the Union in this matter that the Fair Work Commission cannot entertain the application filed on 29 October 2025. In any event, to the extent that relief sought is ultimately outside the powers of the Fair Work Commission, the parties are able to pursue relief in this Court.
   • The concern of the Union that any Fair Work Commission decision would not deal comprehensively with all issues between the parties, but only prospectively in the event that the Union's case in the Fair Work Commission was successful, was addressed to some degree (as submitted by Mr McLean at the hearing) by the consent of WorkPac to any decision of the Fair Work Commission relevant to the application before it having retrospective effect.
   • To the extent that the Union will continue to press its application relevant to s 545 of the Fair Work Act, the Union can return to this Court to do so.
   • I am unable to identify any tangible prejudice to either party if the Federal Court proceedings are heard and determined after the Fair Work Commission decision.
5. Fourth, as submitted by Mr McLean, there is clear benefit in having joined to the dispute all parties involved in the negotiation and operation of the relevant enterprise agreement, including the regulated host in this case (under s 306P(6)), as well as other affected employees (under s 306P(6)-(7)).
6. Finally, I note that WorkPac's proceedings relevant to the dispute between it and the Union has been proactive, while the Union has been somewhat reactive in the dispute. While not a determinative issue, I accord it some weight in my consideration of this matter, and in particular the interests of justice in the present case.
7. It is appropriate that the present Federal Court proceedings be stayed in accordance with the relief sought by WorkPac. It follows that the interlocutory application of the Union should be dismissed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.