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

Application for referral of a dispute under s 306P of the Fair Work Act 2009 (Cth) to a Full Bench under ss 615 or 615A - Dispute about how an employee is to be classified for the purposes of determining what the protected rate of pay is - Whether in the public interest for the function of arbitrating the dispute to be dealt with by a Full Bench - Application granted.

• [1] Loretta Bennett is a mineworker employed by WorkPac Pty Ltd at the Blackwater Mine in central Queensland. She has been employed at the mine since 21 June 2023. A regulated labour hire arrangement order has been made under s 306E of the Fair Work Act 2009 (Cth) (the Act) that covers employees of WorkPac who perform work at the mine and came into force on 21 July 2025. The relevant host employment instrument is the BMA Enterprise Agreement 2022 (the BMA Agreement) and the regulated host is Whitehaven Coal Mining Ltd.

• [2] The effect of the regulated labour hire arrangement order is that WorkPac must pay Ms Bennett at no less than the protected rate of pay in connection with work she performs for Whitehaven in accordance with s 306F(2). There is a dispute as to how Ms Bennett is to be classified under the BMA Agreement for the purposes of determining what the protected rate of pay is for her as defined in s 306F(4). Ms Bennett is represented by the Mining and Energy Union (the MEU) in relation to the dispute.

• [3] In short, the dispute concerns whether the period Ms Bennett worked at the mine before the regulated labour hire arrangement order came into effect is to be counted as service for the purpose of determining the rate of pay that would be payable to her if the BMA Agreement applied to her. The MEU contends that Ms Bennett would be entitled to be paid at the rate for Mineworker Level 2 on the basis that she has at least 24 months service at the mine. WorkPac, on the other hand, contends that only service after the commencement of the regulated labour hire arrangement order is relevant and, as such, the rate of pay that would be payable if the BMA Agreement applied to her is the rate for a Mineworker Level 1.

• [4] On 29 October 2025, WorkPac applied to the Commission under s 306P(4) for the Commission to resolve the dispute. In resolution of the dispute, WorkPac seeks a determination that the relevant classification under the BMA Agreement by reference to which WorkPac must pay Ms Bennett in connection with her work at the mine is MineWorker Level 1. This application prompted the MEU to commence proceedings in the Federal Court of Australia seeking a declaration that the protected rate of pay for Ms Bennett is set, for the purposes of s 306F(4), in accordance with the full rate of pay for the Mineworker Level 2 classification under the BMA Agreement. On 21 November 2025, Collier J stayed those proceedings until WorkPac's application to the Commission is heard and determined.[1]

• [5] On 2 December 2025, Ms Bennet applied to the President of the Commission for an order under s 615A of the Act that a Full Bench be constituted and directed to hear and determine the whole of the proceedings in Matter Number C2025/10667. On 5 December 2025, in relation to the application that the proceedings be referred to a Full Bench, the President delegated to me his functions and powers under ss 615, 615A and 582 of the Act to direct that the matter in Matter Number C2025/10667 be dealt with by a Full Bench.

• [6] A short hearing was conducted in relation to the application that the matter be referred to a Full Bench this morning. WorkPac indicated that it opposes the application for the matter to be dealt with by a Full Bench and submitted that its application should progress in the usual course. For the reasons that follow, I am satisfied that I am required to direct that the function of resolving the dispute be performed by a Full Bench for the purposes of s 615A(1) because an application has been made and it is in the public interest to do so.

• [7] Section 615A of the Act relevantly provides:

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and

(b) the President is satisfied that it is in the public interest to do so.

Note: The President gives directions under section 582.

(2) For the purposes of paragraph (1)(a), the following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter;

(b) the Minister.

• [8] There is no dispute that Ms Bennett is a person who will make submissions for consideration in the matter and is able to apply to have a Full Bench perform the function of arbitrating the dispute for the purposes of s 615A(2)(a). As such, s 615A(1)(a) is satisfied. It is then necessary to consider whether directing that the Full Bench perform that function or exercise that power is in the public interest for the purposes of s 615A(1)(b). If I am satisfied that it is in the public interest that the function or power be exercised by a Full Bench, I must make such a direction. Section 615 separately confers a broad discretion to direct that a function or power be exercised by a Full Bench.

• [9] The expression "in the public interest", when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute.[2] In addition, ss 577 and 578 of the FW Act are relevant to consideration of an application under s 615A.[3] Section 577(a) and (b) require that the Commission must perform its functions and exercise its powers in a manner that is fair and just and is quick, informal and avoids unnecessary technicalities. Section 578 directs the Commission to take into account, among other things, the objects of the Act and "equity, good conscience and the merits of the matter".

• [10] The MEU submits that it is in the public interest for a Full Bench to perform the function of resolving the dispute filed by WorkPac for a number of reasons. It contends that the BMA Agreement also applies at three other large coal mines in Queensland and the MEU is in dispute with a number of other labour hire providers in relation to the same issue, service-based progression is a common feature of classification structures in other industrial instrument and similar issues are likely to arise in other industries, the argument advanced by WorkPac has significant implications for the operation of the scheme created by Part 2-7A of the Act and that guidance from a Full Bench is likely to assist in the settlement and prevention of other disputes.

• [11] The MEU relied on a witness statement of the President of the Queensland District Branch, Mitch Hughes. Mr Hughes states that there are approximately 1,790 employees of WorkPac, Chandler MacLeod, OS MCAP Pty Ltd and OS ACPM Pty Ltd performing work at mines covered by regulated labour hire arrangement orders for which the BMA Agreement is the host instrument. Correspondence attached to Mr Hughes' witness statement suggests that the other employers have taken the same view as WorkPac in relation to the determination of the protected rate of pay by reference to the BMA Agreement. Mr Hughes indicates that he has received a significant number of inquiries from MEU members in relation to the correctness of the protected rate of pay being received.

• [12] As I have observed, WorkPac opposes a direction being made for its application be determined by a Full Bench. WorkPac accepts that there will be other matters which raise the same, or similar, issues in relation to the determination of the protected rate of pay. It submits, however, that the jurisprudence of the Commission in relation to the calculation of the protected rate of pay for an employee should develop in the usual way. It also referred to the possibility of other entities seeking to intervene in the proceedings and the potential for that to extend the hearing or complicate the determination of its application.

• [13] There is some force to the proposition that the jurisprudence of the Commission should ordinarily be permitted develop through the usual process of first instance decision-making and, where appropriate, appeals. The Commission should not too readily accede to requests to bypass first instance decision-making. However, three considerations have persuaded me that it is appropriate to direct that the application be dealt with by a Full Bench.

• [14] First, the dispute concerns a discrete question as to the approach to be adopted when determining the protected rate of pay for the purposes of s 306F(4) of the Act. The question is whether a period of service prior to the commencement of the regulated labour hire arrangement order is to be considered when assessing the relevant classification according to which the rate should be calculated. This involves an important, but relatively confined, question of interpretation capable of being determined by a Full Bench. It is not suggested there is any substantial factual dispute which will need to be determined.

• [15] Second, the matter at issue in this dispute potentially applies to a large number of workers covered by regulated labour hire arrangement orders in relation to which the BMA Agreement is the host employment instrument. There is already evidence of a number of other disputes which raise the same question as to the relevance of service prior to the commencement of an order to the determination of the protected rate of pay. A decision of a Full Bench has the potential to avoid the time and resources of the Commission and the parties being consumed dealing with numerous similar disputes.

• [16] Third, Part 2-7A of the Act represents an important, and relatively new, aspect of the Commission's jurisdiction. A regulated labour hire arrangement order made under s 306E was able to commence from 1 November 2024. A large number of orders have now been made and come into force. The Commission is now starting to receive applications under s 306P to deal with disputes in relation to the protected rate of pay. I am satisfied it is in the public interest for a Full Bench to have the opportunity to provide early guidance in relation in relation to the proper construction and application of the Commission's jurisdiction under ss 306P and 306Q to deal with disputes relating to the protected rate of pay.

• [17] For these reasons, I am satisfied that it is in the public interest to direct that the Commission's functions and powers be exercised by a Full Bench in relation to WorkPac's application. I have also considered whether the matter should be heard together with an appeal from the decision of Lake DP in Loudon v WorkPac Pty Ltd t/as WorkPac [2015] FWC 2554 which is listed for hearing in February 2025. Although that matter raises a potentially related issue concerning the protected rate of pay at another mine, I do not consider that it is practical for the matters to be heard together, particularly given the potential for interveners. However, if it can be arranged, WorkPac's application will be dealt with by the same Full Bench as is hearing that appeal.

• [18] In accordance with s 615A(1), I direct that a Full Bench perform the function and exercise the powers involved in the Commission dealing with the dispute filed by WorkPac in Matter Number C2025/10667.

A Sage, Senior National Legal Officer, with C Newman for the Mining and Energy Union.

D Williams, solicitor, of MinterEllison for WorkPac Pty Ltd

J Wells, solicitor, of Mills Oakley for Stanmore SMC Pty Ltd.

[1] Mining and Energy Union v WorkPac Pty Ltd [2025] FCA 1454 at [16] (Collier J).

[2] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 (Mason CJ, Brennan, Dawson and Gaudron JJ); Hogan v Hinch (2011) 243 CLR 506 at [69] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

[3] See Aurizon Operations Ltd t/as Aurizon v Australian Federated Union of Locomotive Employees [2023] FWC 555 at [9] (Hatcher J, President) and the authorities there referred to.

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