Fair Work Act 2009

s.306P - Application to deal with a dispute about a regulated labour hire arrangement

Application to deal with a dispute about the operation of Part 2-7A of the Fair Work Act - dispute about whether protected rate of pay (PROP) has been paid - incentive scheme - entitlement to incentive scheme assessed as at 31 December each year - whether regulated employees who were covered by the regulated host instrument since 4 November 2024 are required to be paid the full incentive bonus based on service as at 31 December 2024 - where incentive scheme has initial qualifying period - pre-requisites to arbitration satisfied - matter arbitrated under s.306Q - consideration of retrospectivity - arbitrated protected rate of pay order not made

• [1] Mr Teyon Loudon (the Applicant) is covered by a Regulated Labour Hire Arrangement Order (RLHAO) issued by the Full Bench of the Fair Work Commission (the Commission) on 1 November 2024.[1] The RLHAO came into force on 4 November 2024. The order covers the regulated employees, including the Applicant; WorkPac Pty Ltd Trading as WorkPac (WorkPac), the Regulated Employer; and Stanmore SMC Pty Ltd (Stanmore), the Regulated Host. The host employment instrument is the Stanmore Poitrel Mine Enterprise Agreement 2022 (the Agreement).

• [2] On 9 April 2025, the Applicant lodged an application under s.306P of the Fair Work Act 2009 (Cth) (the Act), raising a dispute on the operation of Part 2-7A. The Respondent in this dispute is WorkPac. The dispute relates to the Incentive Scheme under Appendix 2 of the Agreement for the 2024 calendar year.

• [3] In summary, WorkPac paid regulated employees a two-month pro-rata payment for the incentive bonus, from 4 November 2024, the effective date of the RLHAO, to 31 December 2024, the eligibility date under the incentive scheme.

• [4] The Applicant contends that WorkPac is not entitled to make a pro-rata payment under the incentive scheme and that the regulated employees should receive an incentive payment according to their service over the calendar year, as part of the protected rate of pay (PROP).[2]

• [5] WorkPac contests the Applicant's position and argues that the Agreement only had relevance to the regulated employees, through the RLHAO, from 4 November 2024.

• [6] On 24 April 2025, I conducted a conciliation conference with the parties. The matter was not resolved in conciliation. Following the conciliation conference, I issued directions and listed the matter for arbitration.

• [7] I granted leave for Stanmore to intervene in the dispute. The Applicant and WorkPac did not object to Stanmore intervening.

• [8] The hearing was held on 17 July 2025. The Applicant was represented by Mr Chris Newman of the Mining and Energy Union (MEU). I granted leave for WorkPac and Stanmore to be legally represented as the dispute relates to a novel provision of the Act. WorkPac was represented by Mr Dan Williams from Minter Ellison, and Stanmore was represented by Mr Jamie Wells from Mills Oakley.

• [9] For the reasons set out below, I have not made the arbitrated protected rate of pay order sought by the Applicant.

• [10] On 1 November 2024, the Full Bench of the Commission issued a decision in Application by the Mining and Energy Union re Poitrel Mine (the RLHAO Decision)[3] finding that a RLHAO should be issued for the Poitrel Mine, owned by Stanmore. Neither Stanmore nor WorkPac objected to the RLHAO being issued.

• [11] Relevantly, the Full Bench in the RLHAO Decision made the following findings of fact at [4]:

• Both Stanmore and WorkPac employees attend the same pre-start meeting each day where the work to be performed is detailed by a Stanmore supervisor. Stanmore supervisors direct both its employees and WorkPac employees to operate the machines used to undertake coal mining work.

• Whilst performing work, Stanmore and WorkPac employees operate the same Stanmore-owned or -leased machines and equipment and perform the same production work. Stanmore and WorkPac employees work alongside one another and are, in a practical sense, indistinguishable insofar as they comply with Stanmore instructions, do the same work and operate the same plant and equipment.

• Consistent with its obligations under Coal Mining Safety and Health Act 1999 (Qld), Stanmore maintains a Safety and Health Management System at the Mine. Stanmore also maintains and enforces policies and procedures including Standard Operating Procedures for plant and equipment at the Mine which deal with risks arising from the conduct of particular work or the operation of the items of plant and equipment.

• Stanmore organises and directs the day-to-day conduct of work by workers at the Mine. Its supervisors direct, instruct and monitor the work performed by all production workers. Any issues that workers may have about their work are dealt with by supervisors engaged by Stanmore.

• WorkPac employees who are supplied to work at the Mine are subject to the same Safety and Health Management System, Standard Operating Procedures and other policies, procedures and directions as Stanmore employees. They are required to perform work in accordance with Stanmore directions, policies and procedures and are directed by Stanmore in the performance of work.

• Stanmore and WorkPac employees are rostered on the same rosters and allocated into the same production crews. WorkPac employees take breaks at times determined by Stanmore and usually at the same time as Stanmore employees. They share crib facilities with Stanmore employees. Employees of WorkPac apply for leave through their employer but they are expected to inform their Stanmore supervisor of the leave as well.

• The remuneration received by Stanmore employees is substantially higher than that received by WorkPac employees. For example, a Mineworker Level 2 employee under the Stanmore Agreement undertaking a seven-day-on, seven-day-off roster is currently paid an annual package of $164,715.36 as well as an incentive payment of up to $16,000 per annum and superannuation. WorkPac employees undertaking the same roster cycle are paid approximately $51 per hour for all hours worked plus a monthly attendance bonus

• [12] The RLHAO was issued on 1 November 2024 and took effect on 4 November 2024.

• [13] Appendix 2 of the Agreement provides:

1. Motivate Employees by rewarding them for company performance within the accountability of their role and alignment with Stanmore Values.
2. Directly base each Employee's incentive payments on the achievement of high performance and meeting intended objectives.

The Incentive Scheme will provide for an individual target incentive payment of $16,000 per annum (target incentive payment), as follows:

Organisational objectives (70%). The organisational objectives will be reflected in the Mine's KPIs.

The Mine's KPIs will account for 70% of the target incentive payment. The Mine KPIs (including the number and focus of them, the measures and their weightings) are determined by the Company (at its discretion) and may include:

(a) Mine specific targets (note: safety performance is to be assessed on the performance of Employees (as defined in this agreement) only); and / or

(b) Company specific targets (is Poitrel Mine tonnage per annum)

In February / March each financial year the Mine KPIs will be communicated to Employees.

Individual objectives (30%). Individual objectives will account for 30% of the target incentive payment.

The individual objectives will be notified to the Employee at the beginning of each financial year.

For duration of the EA, the criteria will be the following:

(a) an Employee is not directly, or indirectly, responsible for any safety incident, at the Poitrel Mine during the incentive year (safety incident is defined as equipment damage)* (10% of the 100% which makes up the 30% percent of the 100);

(b) an Employee completes one 'Take 5' per rostered shift) (10% of the 100% which makes up the 30% percent of the 100); and

(c) an Employee has no performance management or disciplinary issues during the incentive year (10% of the 100% which makes up the 30% percent of the 100).

* Acts of God (including, for example falling rocks which damage equipment) would not be included in these occurrences

The amount payable for the individual objectives will be determined by the Company considering each Employee's overall performance and alignment against their job objectives, individual KPIs, behaviours and Charter Values in the relevant financial year.

Mine and individual employee performance will be measured as at 31 December each year against the applicable KPIs for the relevant financial year. This calculation, as it applies to each Employee, will determine the annual incentive payment that each Employee will be paid (provided they are employed at the Mine at the date of payment - refer below).

The annual incentive payment for each Employee is the sum of the Mine's performance against its KPIs (70% of the target incentive payment) plus the Employee's individual performance (30% of the target incentive payment), multiplied by the target payment of $16,000pa.

The annual incentive payment under the Incentive Scheme will be made in a single payment to employees in February / March.

To be eligible for the annual incentive payment under the Incentive Scheme, an Employee must be employed at the Mine at the date the annual incentive payment is paid or must have been employed at the mine as at 31 December in the year that the incentive payment is paid. An Employee is not entitled to a pro-rata / partial incentive payment under the Incentive Scheme when he/she ceases to be employed at the Mine before 31 December that year.

An Employee who joins the Mine part way through the year will be entitled to participate in the Incentive Scheme after an initial qualifying period of employment of three months. KPIs for new Employees will be established in consultation with and notified to the Employee during that period. Annual incentive payments to Employees who join the Mine part way through the year are calculated on a pro-rata basis according to their length of service in that year.

For the period commencing 1 July 2022 and ending 31 December 2022 (Incentive Period), the Company will honour the incentive scheme outlined in Appendix 2 of the BHP Billiton Mitsui Coal Pty Ltd Poitrel Mine Enterprise Agreement 2019 ( [2019] FWCA 6455) (Incentive Scheme).

As to eligibility, an Employee is eligible to qualify for a payment under the Incentive Scheme if they were employed at the Poitrel Mine as at 31 December 2022.

An Employee who commences employment during the Incentive Period is eligible to qualify for a pro rata payment under the Incentive Scheme, provided they were employed at the Poitrel Mine on or before 30 September 2022.

1. communicating KPIs to eligible employees on or before 30 October 2022; and
2. making any payments (subject to the maximum payment amount set out below) within 4 weeks of a 'Yes' vote for this Agreement;

1. the Incentive Scheme will operate until 31 December 2022, after which time the replacement scheme in this Agreement will apply;
2. an Employee is not entitled to a pro-rata / partial incentive payment under the Incentive Scheme if they are not employed at the Poitrel Mine on 31 December 2022;
3. any amounts paid under the Incentive Scheme will be paid at the absolute discretion of the Company; and
4. the maximum payment amount will be $8,000 per Employee.

Events leading up to the Application in the Commission

• [14] Although this dispute concerns one Applicant, Mr Loudon, it has ramifications potentially affecting every regulated employee under the RLHAO.

• [15] The bonuses under the Stanmore incentive scheme are paid to qualifying employees if certain conditions are met as at 31 December each calendar year.

• [16] On 20 February 2025, the MEU wrote to WorkPac requesting that WorkPac advise when the regulated employees can expect to receive their bonus under the Agreement.[4]

• [17] On 6 March 2025, WorkPac wrote to the MEU advising that regulated employees would be paid a pro-rata amount:[5]

Upon review of the RLHAO, the Client's Stanmore Poitrel Mine Enterprise Agreement 2022 ('the Client EA') and upon consultation with the Client, WorkPac confirms that a pro-rata value of the Mine Incentive Scheme ('the Incentive Scheme') stipulated by the Client's EA will be paid to eligible WorkPac employees.

Specifically, a payment of up to $2,666.00 may be payable (a two (2) month pro rata value of the $16,000.00 per annum Incentive Scheme) ('the Payable Value') to eligible casual and permanent employees that were:

• Employed by WorkPac and undertaking an assignment at Poitrel Mine as at 31 December 2024; and
• Had held at least three (3) months tenure on assignment at Poitrel Mine prior to 31 December 2024;

(Collectively the 'Pro-Rata Eligibility Criteria').

The abovementioned pro-rata value of the Incentive is made up of and paid in accordance with meeting the following two (2) objectives:

1. Organisational Objectives - 70% of the Incentive Scheme ($1,866.20); and

2. Individual Objectives - 30% of the Incentive Scheme ($799.80).

• [18] On 11 March 2025, the MEU wrote back contesting WorkPac's decision to pay a pro-rated amount equivalent to two months.[6] The MEU's position is that the bonus under the incentive scheme can only be pro-rated where the relevant employee commenced working at the mine site part way through the year.[7]

• [19] Further correspondence was exchanged on 17 March and 18 March 2025.[8] WorkPac confirmed its position that regulated employees would only be paid a pro-rated amount of two months, as the Agreement only applied to them, by virtue of the RLHAO, from 4 November 2024 onwards.[9]

• [20] On 18 March 2025, the MEU advised that it would lodge a dispute in the Commission unless notified of a change in WorkPac's position.[10] The dispute was subsequently lodged on behalf of the Applicant on 9 April 2025.

(1) This Division applies to a dispute about the operation of this Part if:

(a) a regulated labour hire arrangement order is in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host; or

(b) a regulated labour hire arrangement order has been made but is not yet in force that covers a regulated host, an employer and a regulated employee of the employer performing work for the regulated host.

(2) Without limiting subsection (1), this Division applies to a dispute about:

(a) what the protected rate of pay for a regulated employee is; or

(b) whether a regulated employee has been, or is being, paid less than the protected rate of pay for the employee.

Parties must attempt to resolve dispute at workplace level

(3) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level by discussions between the parties.

(4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply to the FWC to resolve the dispute.

(5) If a party to the dispute makes an application under subsection (4):

(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in accordance with section 306Q.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

(6) The employer, employee or regulated host may appoint a person or organisation that is entitled to represent the industrial interests of the employer, employee or regulated host to provide the employer, employee or regulated host (as the case may be) with support or representation for the purposes of:

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

(7) Without limiting section 609, the procedural rules may provide for the joinder, as parties to a dispute in relation to which an employee has made an application under subsection (4), of any other employees who have a dispute about the operation of this Part with the same regulated host or employer.

• [22] Section 306P establishes pre-requisites for arbitration under s.306Q of the Act. The pre-requisites in s 306P are similar to those in other sections of the Act, requiring the parties to attempt to resolve the dispute informally before bringing the dispute to the Commission. Section 306P prescribes subject matter and process requirements.

• [23] The parties are largely in agreement that the pre-requisites to arbitration have been met.

• [24] Subsection (1) notes that Part 2-7A, Division 3 applies to a "dispute about the operation of this Part" if the RLHAO is in force or has been made but is not yet in force. Subsection (2) states that the Division applies to a dispute about "what the protected rate of pay for a regulated employee is" or "whether a regulated employee has been, or is being, paid less than the protected rate of pay for the employee." The Full Bench has observed that s.306P may be capable of broader application.[11]

• [25] The parties submit that the dispute is about whether a regulated employee, Mr Loudon, has been paid less than the protected rate of pay.[12] I accept that the dispute relates to whether Mr Loudon should have received the full incentive payment for the 2024 year as part of the protected rate of pay. The dispute is therefore one to which Division 3 applies.

• [26] Subsections (3) and (4) require the parties to first attempt to resolve the dispute at a workplace level before bringing the dispute to the Commission. WorkPac contests the manner in which the Applicant raised the dispute, but otherwise accepts that the parties attempted to resolve the dispute at a workplace level before the Applicant brought the dispute to the Commission.[13]

• [27] Subsection (5)(a) requires the Commission to first attempt to resolve the dispute with methods other than arbitration, unless exceptional circumstances exist. The Applicant did not argue that exceptional circumstances exist. I conducted a conciliation conference between the parties on 24 April 2025. The dispute was not resolved in conciliation.

• [28] Subsection (5)(b) states that the Commission may deal with a dispute by arbitration in accordance with s. 306Q.

• [29] Subsection (6) allows the employee, employer or regulated host to appoint a representative for the dispute. Mr Loudon and WorkPac both appointed representatives for the dispute. Permission was granted for WorkPac to be legally represented noting the novel issue raised.

• [30] I am satisfied that the pre-requisites to arbitration have been met.

(1) The FWC may deal with the dispute by arbitration, including by making an order (an arbitrated protected rate of pay order) determining:

(a) how the rate of pay at which the employer must pay the employee in connection with the work is to be worked out; and

(b) that the employer must pay the rate of pay worked out in that way to the employee in connection with the work.

(2) If the employer is a national system employer only because of section 30D or 30N, the rate of pay for the purposes of paragraph (1)(a) of this section must not include any amount that relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).

Note: Sections 30D and 30N extend the meaning of national system employer.

(3) The FWC must not make an arbitrated protected rate of pay order unless the FWC considers that it would be fair and reasonable to make the order.

(4) If the parties have notified the FWC, in writing, that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply in relation to work performed at any time on or after the day the regulated labour hire arrangement order comes into force.

(5) If the parties have not notified the FWC that they agree to the FWC arbitrating the dispute, an arbitrated protected rate of pay order made in relation to the dispute may apply only in relation to work performed on or after:

(a) if the arbitrated protected rate of pay order is made before the regulated labour hire arrangement order to which the order relates comes into force--the day the regulated labour hire arrangement order comes into force; or

(b) otherwise--the day the arbitrated protected rate of pay order is made.

(6) If the FWC makes an arbitrated protected rate of pay order in relation to the dispute, the order has effect, in relation to so much of the work as is performed during the period to which the order applies, despite the following:

(a) section 306F (protected rate of pay payable to employees if a regulated labour hire arrangement order is in force);

(b) any provision of the following that provides for a lower rate of pay than that worked out in accordance with the order:

(i) a fair work instrument that applies to the employee;

(ii) a covered employment instrument (other than a fair work instrument) that applies to the employee;

(7) A person must not contravene a term of an arbitrated protected rate of pay order.

Note: This subsection is a civil remedy provision (see Part 4 - 1).

(8) In making an order under this section, the FWC must ensure that, if an exception in section 306G would apply to the requirement to pay the regulated employee at no less than the protected rate of pay, the exception also applies in relation to the requirement to pay the employee at the rate worked out under the arbitrated protected rate of pay order

• [32] The essential positions of the parties are more or less captured within the correspondence exchanged between the MEU and WorkPac in February and March 2025.

• [33] The Applicant's position is that Appendix 2 of the Agreement conclusively states when the incentive payment may be pro-rated. That is, where the relevant employee commences their tenure at the mine site part way through the year, provided the employee has at least three months of service.[14] The Applicant argues incentive scheme operates as follows:

• (i) The entitlement to access the incentive scheme crystallises on 31 December when the employee is employed on that date.[15] For example, the Applicant notes that if an employee were summarily dismissed on 30 December, they would have no entitlement to a payment under the scheme.[16]

• (ii) Then, the individual and organisational criteria are assessed.[17] The assessment of the organisational criteria is at the discretion of Stanmore. For the 2024 Incentive year, Stanmore advised that the organisational criteria were met. The individual component is made up of three criteria weighted at 10% each.

• (iii) Once the relevant performance criteria are assessed, then if the relevant employee transferred to the mine partway through the year and has at least 3 months service, the amount of the bonus is pro-rated to reflect the employee's length of service.[18]

• [34] In relation to s.306F(4) of the Act, the Applicant notes that the obligation on the regulated employer is to pay the regulated employee "as if they were an employee covered by the host employment instrument".[19] Applicant submits that the regulated employees should be treated the same as Stanmore's employees. That is, the regulated employees are assessed by the same criteria as Stanmore employees and only if they commenced working at the mine part way through the year do they receive a pro-rated bonus. [20]

• [35] The Applicant submits that there was no meaningful distinction between the work performed by regulated employees and host employees during the 2024 year.[21] The Applicant notes that the regulated employees also performed the same "Take 5s" as host employees.[22] Both sets of employees performed the same work which contributed to the mine's performance in 2024. For example, the Applicant argues that there is no evidence that regulated employees did not seek to maximise production or disregarded safety concerns as a result of not being aware of the incentive targets.[23]

• [36] The Applicant rejects the argument that regulated employees should be treated analogously to new employees at the mine.[24]

• [37] The Applicant submits the Commission should make an arbitrated protected rate of pay order, determining that WorkPac should calculate the incentive payment to regulated employees employed at the mine based on their service at the mine site, and find WorkPac are not permitted to pay regulated employees a pro-rated equivalent of two months payment for the 2024 year.

• [38] The Applicant submits that the order sought is fair and reasonable because both regulated employees and host employees contributed to the mine output and safety of the mine site as they performed the same job in the qualifying period.[25] The Applicant submits that the intent of the RLHAO is that employees be remunerated equally for their efforts.[26] The Applicant notes that by paying regulated employees a pro-rated amount of two months, the regulated employees received one-sixth of what host employees received.[27] The Applicant also notes that even though WorkPac employees receive a separate bonus under WorkPac Enterprise Agreement, this does not mean WorkPac employees are better off than Stanmore employees, as the Full Bench previously found that the regulated were paid substantially less than host employees.[28]

• [39] WorkPac notified the Commission in writing that they consented to the dispute being arbitrated under s.306Q of the Act.[29]

• [40] WorkPac submits that the regulated employer's obligations under the RLHAO are encompassed in ss.306F(2) and 306F(4). Under s.306F(2), the regulated employer is obliged, when the RLHAO is in force, to pay regulated employees no less than the protected rate of pay. Under s.306F(4), the protected rate of pay is "....the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee." WorkPac accepts that the incentive payment forms part of the "full rate of pay" by virtue of s.18(1) of the Act.[30]

• [41] WorkPac contends that s.306F(4) poses a hypothetical situation based on the words "were to apply".[31] As the RLHAO came into force on 4 November 2024, regulated employees can only be treated as if the Agreement applied to them on and from 4 November 2024. The construction contended for by WorkPac requires the employer to effectively treat the regulated employees as if they have been employed under the Agreement for two months, for example, as if they changed employers from WorkPac to Stanmore on 4 November 2024.[32] WorkPac submits that an employee who had only been employed under the Agreement for two months would not be entitled to the incentive payment at all for the 2024 calendar year, as there is a three month qualifying period. Therefore, WorkPac submits that by paying regulated employees a pro-rata payment equivalent to two months, it went beyond its obligations under the Act.

• [42] WorkPac submits that requiring the WorkPac to pay more under the incentive scheme to a WorkPac employee than Stanmore employee in same the circumstances would have received would be to give the legislation a retrospective effect, effectively requiring the employer to treat regulated employees as if they had been employees under the host instrument for the period of their employment.[33] WorkPac submits that Parliament could have legislated for the host instrument to apply to the employee's service at the mine, and chose not to.[34] WorkPac submits that the wording of s.306F(4) conveys a deliberate intention to set a scheme for the RLHAO to apply prospectively from the date of the order, but not to require hypothetical considerations of situations before that date.[35] WorkPac further notes that on a practical level, it was not assessing employees against the individual KPI criteria before the RLHAO came into effect, nor did it have the right to request information from the host employer about the incentive scheme prior to that date.[36]

• [43] On the point of retrospectivity, WorkPac argued that the employer was entitled to order its affairs according to the law which applied at the time.[37] WorkPac referred to Australian Education Union v Fair Work Australia [2012] HCA 19; (2012) 246 CLR 117:

[30] The preceding observations should not be taken as minimising the importance of the rationale underlying the common law principles of construction. In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law. The existence of those assumptions is, in the words of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union,

"a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law."

[31] Consistently with its underlying rationale, the resistance of the common law to construing statutes as taking effect before the dates of their enactment is graduated according to the extent of their propounded effects. In RS Howard & Sons Ltd v Brunton, Griffith CJ said:

"[I]t is a settled rule of construction of Statutes that a law is not to be construed as retrospective in its operation unless the Legislature has clearly expressed that intention, and a further rule that it is not to be construed as retrospective to any greater extent than the clearly expressed intention of the Legislature indicates."

• [44] WorkPac further argues that requiring it to pay the full incentive payment to regulated employees would be inconsistent with the terms of the scheme itself. WorkPac submits that the regulated employees could not have been motivated by the scheme prior to 4 November 2024, as it had no relevance to them before then and they were not notified of the objectives at the start of the year.[38] Further, WorkPac submits that the organisational objectives relating to safety expressly exclude labour hire employees.[39]

• [45] In relation to whether making an arbitrated protected rate of pay order would be "fair and reasonable", WorkPac argues that it would not be fair and reasonable to make the order for the following reasons:[40]

a) The purpose of RLHAOs is to protect bargained rates of pay by enabling the Commission to make an order that employees supplied by a labour hire employer to perform work for a regulated host are to be paid the same rate of pay as the direct employees of the regulated host for doing the same work. However, this is only in respect of service performed after an RLHAO comes into operation because the PROP is inherently linked to the work performed by the regulated employee in the period commencing from the time an RLHAO begins to operate.

b) The purpose of the Incentive Scheme is designed to have a prospective motivating effect on safe and productive operations at the Mine for persons to whom the Scheme applies. It is not intended to provide a reward for the performance of work before the Scheme had any relevance.

c) The Incentive Scheme provides a mechanism for the payment of pro-rata amounts for direct-hire employees of the host employer, subject to the minimum employment period. Again, the pro-rata amounts are referrable only to prospective periods of work.

d) The approach proposed by the Applicant would result in a windfall to WorkPac employees covered by the RLHAO.

e) Take the example of a person who became employed by Stanmore on 4 November 2024 but prior to that time had been employed by WorkPac (or another labour hire provider) at the Mine since 1 January 2024.

f) The Applicant does not suggest that those employees were entitled to a full payment under the Incentive Scheme for 2024 from the host employer, nor could they be by virtue of terms of the Stanmore EA itself. However, the Applicant's approach would put them at an advantage over newly-employed host employees, and would create an odd incentive for WorkPac employees to refuse an offer of employment from Stanmore towards the end of any calendar year.

g) It would be unfair and unreasonable to permit a disparity of this sort.

h) WorkPac's employees were eligible for and, upon qualifying, provided with bonus payments during the 2024 calendar year for their work at the Mine up to the time the RLHAO commenced operation.

1. Those bonuses were paid in circumstances where no other incentive scheme applied to WorkPac's employees at the Mine at the time. The Applicant's approach would require WorkPac to make a further payment (presumably up to the maximum payable under the Incentive Scheme for the 2024 calendar year) despite the fact that WorkPac's employees had been receiving different bonus payments throughout the year.

• [46] Stanmore supported the submissions of the WorkPac. Stanmore provided written submissions on the meaning of "work performed." Section 306F(2) obliges the regulated employer to pay no less than the protected rate of pay for "work performed" for the host. Stanmore submits that this cannot be construed to refer to work from before the RLHAO came into effect, otherwise employees would be entitled to pursue back pay claims from prior to the RLHAO.[41] Stanmore argues that while the RLHAO confers certain rights on regulated employees which derive from the Agreement, regulated employees do not become employees of the host, nor do they become covered by the Agreement, by virtue of the RLHAO.[42]

• [47] In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355, the High Court held:

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court to determine which is the leading provision and which the subordinate provision, and which must give way to the other. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".[43]

• [48] I consider that the Full Bench's comments in Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine & Ors [2025] FWCFB 134 about the approach to construction of Part 2-7A are apt:

[50] We accept that Part 2-7A can be described as containing beneficial and protective provisions. The Part generally, and s 306E in particular, is intended to permit the Commission to make an order the effect of which is to ensure that the engagement of employees through a labour hire arrangement cannot be used to pay employees lower rates of pay than those applicable to directly engaged employees of the regulated host. In a general sense, the Part should be construed so as to give the fullest relief which the fair meaning of its language will allow. However, we recognise that it can involve error to commence the task by identifying a "liberal" or "narrow" approach. For example, in Ryan v Commissioner of Police [2022] FCAFC 36; (2022) 290 FCR 369, the Full Court explained:

It is true that the High Court has more recently held that, "to commence the process of construction by posing the type of construction to be afforded - liberal, broad or narrow - may obscure the essential question regarding the meaning of the words used": New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [32]-[33]. Rather, as Gageler J pointed out at [92], "[t]he principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively". That general principle is mandated by s 15AA of the Acts Interpretation Act: Tjungarrayi v Western Australia [2019] HCA 12; (2019) 269 CLR 150 at [44] (Gageler J). However, this does not justify a simplistic assumption that whatever construction furthers the statute's primary purpose must be determinative: Tjungarrayi at [46] (Gageler J); Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5]- [7] (Gleeson CJ). We do not read the passages in IW v City of Perth as requiring any different approach.

• [49] I will start first by considering the text of the relevant provisions. Sections 306P and 306Q are within Part 2-7A of the Act dealing with regulated labour hire arrangement orders.

• [50] As noted above, s.306P replicates other dispute resolution provisions of the Act. It requires the parties to attempt to resolve the dispute at a workplace level and notes the parties' rights of representation for the dispute. It requires the Commission to first attempt to resolve the dispute by means other than arbitration.

• [51] The powers of the Commission under s.306Q are cast in broad terms. Subsection (1) notes that the Commission "may" deal with the dispute by arbitration "including" by making an order determining how the protected rate of pay is to be worked out. The language of s.306Q(1) is discretionary rather than mandatory. It is clear that the Commission is not required to arbitrate and is not required to make an order. The power is discretionary.

• [52] Section 306Q(3) states: "The FWC must not make an arbitrated protected rate of pay order unless the FWC considers that it would be fair and reasonable to make the order." A s.306P dispute application must come after the RLHAO has been issued (but not necessarily after it takes effect). This means that s.306Q(3) imposes, in effect, a second "fair and reasonable" check. Under s.306E(2), the Commission must not make the RLHAO "if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so".

• [53] Although s306Q(3) uses the word "considers", the parties agree that s.306Q(3) requires the Commission to reach a positive state of satisfaction that the order is fair and reasonable, as an intermediate step before making an arbitrated protected rate of pay order. This interpretation is reflected in the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) which uses the word "satisfied".[44] By contrast, s.306E(2) uses a double negative and requires the Commission to be satisfied, if submissions have been made on certain matters in s.306E(8), that it is not not fair and reasonable to make the order.

• [54] Reaching a positive state of satisfaction that the order would be fair and reasonable, in my view, as a matter of semantics, requires slightly more than being satisfied that the order is not not fair and reasonable.

• [55] Although s.306Q(3) requires the Commission to reach a positive state of satisfaction, the matter of which the Commission must be satisfied is more limited. When undertaking the enquiry into whether the arbitrated order would be fair and reasonable in s.306Q(3), the Commission is not limited to a specific set of considerations. However, the dispute is narrower in scope. It must be borne in mind that the Commission has already decided that it would be fair and reasonable for regulated employees to be paid the full rate of pay which would apply to host employees.

• [56] Sections 306Q(4) and 306Q(5) contemplate that the parties to the dispute (in this case, a regulated employee and regulated employer) may not consent to arbitration. However, a lack of consent does not mean the Commission has no jurisdiction to arbitrate, as one may expect. Rather, it limits the date from which the arbitrated protected rate of pay order applies.

• [57] Under s.306Q(4), if the parties have notified the Commission in writing that they agree to the Commission arbitrating the dispute, the order "may apply in relation to work performed at any time on or after the day the regulated labour hire arrangement order comes into force." If the parties have not notified the Commission that they agree to the Commission arbitrating the dispute then the order "may apply only in relation to work performed on or after" the day the arbitrated protected rate of pay order us made, or, if the application was made before the RLHAO came into effect, from the date the RLHAO comes into force. Section 306Q(4) uses the words "may apply in relation to" whereas s.306Q(5) states "may apply only in relation to". The former uses discretionary language, and latter provides a qualified level of discretion.

• [58] WorkPac has notified the Commission in writing, by filing the requisite Form F86F, that it consents to the Commission arbitrating the dispute. Given both parties have consented to arbitration, by virtue of s.306Q(4), the arbitrated protected rate of pay order "may apply in relation to work performed at any time on or after the day the regulated labour hire arrangement order comes into force."

• [59] Section 306Q(6) states that an arbitrated protected rate of pay order applies "despite" s.306F, or despite, any provision providing a lower rate of pay in a fair work instrument, covered instrument or contract of employment.

• [60] Section s.306F(4) defines protected rate of pay as follows:

the protected rate of pay for the regulated employee is the full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee.

• [61] "Full rate of pay" takes its definition from s.18(1) of the Act and includes "incentive based payments". The protected rate of pay is based on a global assessment, rather than a like-for-like, line-item comparison.

• [62] Section 306F(2) is a civil remedy provision, obliging the regulated employer to pay no less than the protected rate of pay "in connection with the work performed by the employee for the regulated host." The obligation to pay the protected rate of pay applies when the RLHAO is in force (s.306F(1)). The phrase "work performed" is not defined. However, it is clear from s.306D that the work must be performed wholly or principally for the benefit of the regulated host.

• [63] The purpose of part 2-7A can be gleaned from the text of 306F. It is apparent that the purpose of Part 2-7A is to ensure that, where a RLHAO has been made, labour hire employees are paid no less than what host employees are paid when they perform work for the regulated host.

• [64] WorkPac and Stanmore distinguished payments related between "work performed" and "service".[45] It is accepted that Part 2-7A has the effect that when annual leave (or other leave) is paid out to regulated employees after the RLHAO comes into effect, it is paid at the higher base of rate pay which applies under the RLHAO. Deputy President Saunders described this as a "retrospective" increase in the value of leave in Applications by the Mining and Energy Union re Bulga Open Cut Mine [2025] FWC 1273. The effect is retrospective because leave accruals from prior to RLHAO are paid at the higher base rate of pay under the protected rate of pay when they are paid out.

• [65] WorkPac and Stanmore submit that incentive scheme in this matter is concerned with work performed rather than service and as such, considerations related to leave accruals are not relevant.[46] Section 306NA makes specific provision for termination payments to be paid at a higher base rate post-RLHAO, including notice of termination and, potentially, redundancy entitlements. WorkPac submits that these termination payments are also service-related payments rather than payments for work performed. Workpac argues that s.306NA is the only example of Parliament contemplating a "a benefit of pay by reference to service prior to the date the order comes into effect".[47]

• [66] Bearing in mind the purpose of the statutory scheme, I consider that the Commission should be careful in prescribing an overly restrictive meaning to the phrase "in connection with ...work performed" (s.306F). Annual leave and sick leave are inherently connected with "work performed" in that when an employee has an entitlement to annual or personal leave, they are entitled to be absent in lieu of performing work at some point in the future, subject to approval or evidentiary requirements.

• [67] Though there is a distinction between the performance of work and service, in my view, it is not necessary to delve into that issue in this decision. It seems to be accepted by the parties that the individual objectives under the incentive scheme, at least, are matters which are connected to the performance of work.[48]

• [68] I note there is a separate s.739 dispute between Stanmore and the MEU about whether the incentive bonus can be pro-rated in circumstance where the employee is on unpaid leave. I do not intend to traverse that issue in this decision.

When does the obligation to pay the protected rate of pay arise?

• [69] The most relevant question to ask in this dispute is whether the obligation to pay the protected rate of pay arises when the work is performed, or when the entitlement to payment for work performed arises.

• [70] For present purposes, there are effectively two competing constructions of s.306F(4). WorkPac argues the words "...full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee" can be construed as requiring the regulated employees to be hypothetically treated as if the agreement applied to them from 4 November 2024. WorkPac submits that regulated employees are therefore in an analogous position to new starters under the Stanmore Agreement. Only their "work performed" for the purposes of the incentive scheme, such as Take 5s conducted, after the RLHAO came into effect is relevant.

• [71] The second construction involves effectively disregarding the regulated employees' status as labour hire employees. The MEU suggests that the only relevant question to ask is whether the regulated employees were employed as at 31 December 2024. The union argues that the obligation to pay the protected rate of pay attaches to payments made after the date of the RLHAO, based on when the payment is made, rather than when the work was performed. Further, the union argues that the incentive scheme is not incremental or cumulative. It is not assessed according to work performed each month. It is assessed across the calendar year. The Applicant argues that prior to 31 December 2024, no employee, either a host employee or regulated employee, had an entitlement to any amount under the incentive scheme. The entitlement to payment arose on 31 December 2024, subsequent to the RLHAO coming into force. Therefore, on the Applicant's argument, there is no retrospectivity.

• [72] The MEU submits that the Commission is permitted to look at matters from prior to the RLHAO coming into effect for the purposes of determining what the applicable protected rate of pay is.[49] In support of that submission, the Applicant refers to s.306NA. Section 306NA deals with termination payments for employees who are on leave when the RLHAO takes effect. If their employment is terminated after the RLHAO comes into force, even though the employee is absent, they receive termination-related payments at the higher rate. Theoretically, on my reading of s.306NA, even if the employee had never "performed work" when the RLHAO was in force, the employee would still be entitled to be paid at the protected rate of pay.

• [73] Firstly, section 306F operates only when an RLHAO is in force. Put another way, when reading ss.306F(1) and 306(2) together, there is no obligation to pay the regulated employee the protected rate of pay for work performed unless an RLHAO is in force. The protected rate of pay itself under s.306F(4) is the "full rate of pay that would be payable to the employee if the host employment instrument covered by the regulated labour hire arrangement order were to apply to the employee." Reading these sections together, the internal logic of s.306F is as follows. A regulated employer is not required to pay the regulated employee an amount as part of protected rate of pay, unless at least three conditions are met:

(2) The pay is in connection with work performed by the employee for the regulated host; and

(3) The pay is part of the full rate of pay which the regulated employee would be payable if the host employment instrument were to the apply to the employee.

• [74] Even if the work is performed for the regulated host, and the pay is part of the full rate of pay which the employee would receive if the employment instrument were to the apply to the employee, there is no obligation to pay the regulated employee the protected rate of pay unless the RLHAO is in force.

• [75] Secondly, I accept the submission that s.306F(4) involves a hypothetical situation, as indicated by the words "were to apply". In that hypothetical situation, the employer is required to treat the employee as if the enterprise agreement applied to them and pay them the full rate of pay from the agreement in connection with the work performed for the host. However, the obligation to hypothetically apply the enterprise agreement to the employee only applies if an RLHAO is in force, by virtue of s.306F(1). I therefore accept that, logically, there is no need for the employer to have regard to work performed prior to the RLHAO, as the first date from when the employer is required to apply the enterprise agreement to the employee (for the purposes of calculating the full rate of pay) is the day the RLHAO came into force. In the context of this dispute, from 4 November 2024 onwards, WorkPac was required to pay WorkPac employees the full rate of pay that would be payable if the Agreement were to apply to them. Prior to 4 November 2024, WorkPac was required to pay those employees according to the terms of WorkPac's own enterprise agreement. For all intents and purposes, the Agreement only "applied" to the regulated employees for two months prior to the payment of the incentive bonus.

• [76] Thirdly, it must be borne in mind that the Agreement was drafted and voted upon prior to the commencement of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. There is a certain level of dissonance involved in the application of the terms of the Agreement to regulated employees for the purposes of determining the full rate of pay. I agree with WorkPac that there an awkwardness in applying an enterprise agreement which was written for one set of employees, to another set of employees, but only for the purposes of determining the full rate of pay.

• [77] The word "apply" (s.306F(4)), in my view, is a deliberate choice by Parliament. It asks the employer to consider how the terms of the enterprise agreement would operate for the regulated employee in question. To hypothetically "apply" the terms of the agreement to an employee is not the same as that agreement covering the employee. However, it does connote that the terms of the agreement should be faithfully construed and applied in context.

• [78] I accept the Applicant's submission that the incentive scheme is not cumulative. The employee is not remunerated by reference to work they perform each month, for example. The words of the Agreement are clear in that regard. No employee is entitled to an incentive payment unless they are employed at the mine as at 31 December. As the Applicant stated, if an employee is summarily dismissed on 30 December, they will not be entitled to any incentive payment at all. However, it does not follow from the conclusion that the entitlement to the incentive crystallises on 31 December that the period in which the work at the mine was performed is simply ignored. Schedule 2 states:

An Employee who joins the Mine part way through the year will be entitled to participate in the Incentive Scheme after an initial qualifying period of employment of three months. KPIs for new Employees will be established in consultation with and notified to the Employee during that period. Annual incentive payments to Employees who join the Mine part way through the year are calculated on a pro-rata basis according to their length of service in that year.

• [79] The Applicant suggested that the phrase "[a]n Employee who joins the Mine part way through the year" should be given its ordinary meaning and applied equally to regulated employees and host employees.[50] However, in my view, this ignores the context from the host employment instrument. "Employee" and "Mine" are defined terms. Under clause 2(a)(ii) an Employee is an employee of Stanmore "who [is] engaged to work at the Stanmore Poitrel Mine and for whom classifications and rates of pay are prescribed by this agreement". I consider that if a regulated employee is to be treated as if the Agreement "applies" to them, then the same eligibility conditions which apply to host employees should apply to them. When the Agreement starts to apply to a regulated employee, they should be in the same position, for the purposes of the incentive scheme, as a Stanmore employee who commences being eligible for the full rate of pay under the Agreement. That is the effect of the language of the Agreement. The employer is not required to pay the incentive bonus for employees whose period of work performed does not meet the initial qualifying period. In my view, the appropriate conclusion to draw, is that the Agreement only applied to the regulated employees for two months and those employees do not meet the minimum qualifying period.

• [80] Fourthly, the construction contended for by the Applicant means the employer is liable to pay the protected rate of pay for work performed prior to when the RLHAO was in force and when s.306F(1) did not apply to the host employer. This does not give the Act retrospective operation, in the sense that all the work performed in this dispute was undertaken after Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) received the Royal Assent. However, the Applicant's construction does mean that the employer's obligations are modified retrospectively once the RLHAO comes into operation. I agree with WorkPac that the RLHAO should not be given retrospective operation unless clear language permits it. There is no clear language in s.306F or s.306Q to support this construction. The language of s.306F is prospective and contingent on certain conditions being met. While I should construe a beneficial piece of legislation to give effect to its purpose, I cannot rewrite the legislation through statutory interpretation. It was open to Parliament to specify that the obligation to pay the protected rate of pay applies to work performed from a date before the RLHAO takes effect. They did not do so.

• [81] Fifthly, I observe that s.306Q(4), in defining the orders the Commission may make in arbitration, specifically limits the consideration of "work performed" to work which was performed "at any time on or after the day the regulated labour hire arrangement order comes into force." The phrase "at any time on or after the day" is a prepositional phrase which, in this case, describes the time when the work is performed, rather than when the arbitrated protected rate of pay order is made. Sections 306F, 306P and 306Q were introduced in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth). The Revised Explanatory Memorandum to that bill states:

755. New subsection 306Q(4) would provide that where the parties agree to the FWC arbitrating the dispute, the protected rate of pay order could apply in relation to work performed on or after the regulated labour hire arrangement order is made. This may mean that an employer is liable to pay backpay to the regulated employee if the employer has been paying the employee less than the rate set out in the arbitrated protected rate of pay order.

756. New subsection 306Q(5) would provide that if the parties did not agree to the FWC arbitrating the dispute, the arbitrated protected rate of pay order could only apply in relation to work performed on or after the day the order is made, or on or after the day a regulated labour hire arrangement order comes into force (whichever is later). An employer will not be required to provide back pay in respect of work performed under a regulated labour hire arrangement that has been undertaken prior to an arbitrated protected rate of pay order being made in this circumstance.

• [82] The fact that s.306Q(4) states that the arbitrated protected rate of pay order can only apply to work performed on or after the date the date the RLHAO comes into force tends to align with WorkPac's submission that the Parliament intended for the regulated employer to be governed by the obligations under the law which applied to it at the time.

• [83] Finally, between January and October 2024, the regulated host and the regulated employer acted in accordance with its obligations under the law which applied to them at the time. I note s.306F is a civil remedy provision. Between January 2024 and October 2024, WorkPac did not come under the safe harbour provision in s.306F(3), as they had no entitlement to request information from Stanmore under s.306H. This suggests that the Commission should not ascribe a retrospective effect to the operation of the RLHAO, as to do so would be to undermine the operation of s.306F(3).

• [84] For the reasons outlined above, I find that the regulated employees' entitlement to payment of the incentive through the RLHAO is based on the date when the work was performed in relation to the individual objectives, rather than the date when the payment is made. For the purposes of this dispute, only work performed in relation to the individual objectives under the scheme on or after 4 November 2024 is relevant for the purposes of assessing the regulated employees' entitlement to a bonus. Therefore, I agree with WorkPac's argument that the regulated employees are not entitled to a payment under the incentive scheme. If they are entitled to such payment, it should not be for more than two months.

• [85] The dispute relates to whether the regulated employees have been paid less than the protected rate of pay. As I have found that the employees have not been paid less than the protected rate of pay, it is not necessary to make an arbitrated protected rate of pay order. Nevertheless, for completeness, I will consider whether such an order would be fair and reasonable.

• [86] The parties accepted that s. 306Q(3) requires the Commission to be positively satisfied that the arbitrated protected rate of pay order is "fair and reasonable". Section 306Q(3), in my view, requires slightly more than s.306E(2) which requires the Commission to be satisfied that it is not "not fair and reasonable".

• [87] It is relevant that the Full Bench was not satisfied in the RLHAO Decision that it was not fair and reasonable to make the RLHAO.[51] In that decision, the Full Bench took into account that the host employees received an incentive payment of up to $16,000.[52] The MEU notes that the regulated employees "made no less contribution towards the performance of the mine during the year". I accept this submission.

• [88] WorkPac argues that the Applicant's construction means that a regulated employee is in a better position than an employee who commenced working under the Agreement in November 2024. I consider this to be relevant to the assessment of whether the order would be fair and reasonable, but not determinative.

• [89] In relation to WorkPac's argument that the incentive scheme is intended to have a prospective motivating effect, I do not consider this to be particularly persuasive. I note, in respect of the individual objectives under the incentive scheme, two out of three objectives are about what an employee should not do. They should not be responsible for a safety incident and they should not have disciplinary issues. The requirement to undertake one "Take 5" per rostered shift is the only positive requirement which an employee must meet. It must be observed that the scheme establishes a low bar for what is expected of employees. An employee is likely to be equally motivated not to have a disciplinary incident out of concern for their job security.

• [90] I note the factors which the Commission may consider under s.306Q(3) are unconstrained. It is relevant to consider whether it would be fair and reasonable to impose an order which applies to work performed before the date the RLHAO came into effect. While I accept that the regulated employees perform the same work as host employees at the mine, and contribute equally to the mine's output, I consider that it is not fair and reasonable to make the order. During the period before the RLHAO came into effect, the employer was not on notice that an order may apply retrospectively to work performed under the incentive scheme and WorkPac continued to pay its employees a monthly attendance bonus.

• [91] I find that making the order contended for by the Applicant would not be fair and reasonable. Accordingly, I cannot make the order under s.306Q(3).

• [92] I acknowledge that this is a matter in which the arguments on all sides have merits. The parties have made cogent arguments in face of novel issues. I am not satisfied that the interpretation of the legislation proposed by the Applicant withstands examination. I note that, going forward, in future years, the regulated employees will be eligible for the full target incentive bonus. I am not satisfied that making the arbitrated protected rate of pay order contended for by the Applicant would be fair and reasonable. Therefore, even if I accepted the Applicant's interpretation, I cannot make the order.

C Newman from the Mining and Energy Union for the Applicant

J Wells from Mills Oakley for the Intervenor, Stanmore

[1] LH200007 PR780868

[3] [2024] FWCFB 412

[4] Annexure C to Applicant Submissions.

[5] Annexure D to Applicant Submissions.

[6] Annexure E to Applicant Submissions.

[8] Documents D and E Respondent Submissions.

[10] Document E annexed to Respondent Submissions.

[11] See Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [106].

[13] Respondent Submissions [20]-[22].

[23] Applicant Reply Submissions [13]

[29] Form F86F filed by WorkPac, 7 July 2025

[43] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 35; (1998) 194 CLR 355

[44] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [754].

[50] Applicant Submissions [11]-[12]

[51] [2024] FWCFB 412 [10]

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