Application by Boggabri Coal Operations Pty Ltd re Mineco Pty Ltd
[2025] FWC 2785
•18 SEPTEMBER 2025
| [2025] FWC 2785 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.306ED - Application to vary a regulated labour hire arrangement order to cover new employers and their relevant regulated employees
Application by Boggabri Coal Operations Pty Ltd re Mineco Pty Ltd
(LH2025/48)
| Mining industry | |
| VICE PRESIDENT GIBIAN | SYDNEY, 18 SEPTEMBER 2025 |
Application to vary a regulated labour hire arrangement order to cover a new employer under s 306ED of the Fair Work Act 2009 (Cth) – Order made on 1 November 2024 to apply to employees supplied to perform work at the Boggabri Coal Mine – New employer started to supply employees to perform work of a kind to which the order relates – Regulated host required to apply to vary the regulated labour hire arrangement order – New employer and regulated host agree to the making of the variation – Commission must vary the regulated labour hire arrangement order – Form of variation.
Background
This decision concerns an application made by Boggabri Coal Operations Pty Ltd under s 306ED(2) of the Fair Work Act 2009 (Cth) (the Act) to vary Boggabri Coal Operations Pty Ltd Regulated Labour Hire Arrangement Order (LH200011 PR780875). This is the first application under s 306ED to vary a regulated labour hire arrangement order to be considered by the Commission.
The order to which the application relates was made by a Full Bench of the Commission on 1 November 2024 and came into force on 4 November 2024.[1] The regulated host covered by the order is Boggabri Coal and the employer covered by the order is FES Coal Pty Ltd. The regulated employees covered by the order are employees of FES Coal who perform work at the Boggabri Coal Mine in the State of New South Wales who would, if employed by Boggabri Coal, be covered by the Boggabri Coal Operations Enterprise Agreement 2024.[2]
The present application was made by Boggabri Coal on 12 September 2025. The application seeks to vary the order to cover a new employer, Mineco Pty Ltd, and relevant employees of Mineco supplied to perform work at the Boggabri Coal Mine. The application indicates that Mineco supplies one or more employees to perform work for Boggabri Coal at the Boggabri Coal Mine and that the work of those employees includes work carried out wholly or principally for the benefit of Boggabri Coal or the enterprise that Boggabri Coal operates.
Solicitors for Boggabri Coal sent an email to my chambers on 16 September 2025 attaching a proposed order to vary the regulated labour hire arrangement order which it was indicated had been agreed to by the parties. A short hearing was conducted in relation to the application on 17 September 2025, at which the solicitor for Boggabri Coal and the solicitor for Mineco both indicated that their respective clients agreed to the making of the variation to cover Mineco and relevant employees of Mineco. The application is also supported by the Mining and Energy Union (the MEU). The MEU was the applicant in the proceedings which resulted in the Commission making the original order in November 2024.
Legislative Framework
Part 2-7A of the Act is entitled “Regulated labour hire arrangement orders” and provides, among other things, for the Commission to make such orders and sets out the obligations of employers and regulated hosts covered by those orders. The key provision is s 306E which sets out when the Commission must make a regulated labour hire arrangement order. If the Commission makes a regulated labour hire arrangement order, certain obligations are imposed on the regulated host. One of those obligations is that, in certain circumstances, the regulated host is required to apply to vary the order. Relevantly, s 306ED provides:
306ED Varying regulated labour hire arrangement order to cover new employers:
(1) This section applies if:
(a) a regulated labour hire arrangement order that covers a regulated host and one or more employers, and relates to a kind of work, is in force or has been made but is not yet in force; and
(b) one or more other employers (each of which is a new employer) start or will start to supply employees (each of whom is a relevant regulated employee) to perform work of that kind for the regulated host, in a manner referred to in paragraph 306E(1)(a); and
(c) the new employers are not covered by any regulated labour hire arrangement order (whether in force, or made but not yet in force) that covers or will cover the relevant regulated employees in relation to the performance of that work; and
(d) the FWC did not make a determination under subsection 306EA(1) in relation to the new employers and the application for the regulated labour hire arrangement order.
Note: The employees referred to in paragraph (b) of this subsection are regulated employees (see subsection 306E(5)).
Regulated host must make application
(2)As soon as practicable after the regulated host becomes aware of the circumstances referred to in paragraph (1)(b), the regulated host must apply to the FWC for an order under this section varying the regulated labour hire arrangement order to cover the new employers and the relevant regulated employees of those employers.
Note: This subsection is a civil remedy provision (see Part 4 – 1).
(3) Section 588 (discontinuing applications) does not apply in relation to the application unless the circumstances referred to in paragraph (1)(b) of this section no longer exist.
(4) As soon as possible after the application is made, the regulated host must give written notice of the following to each of the new employers:
(a) that the application has been made;
(b) the effect of subsection (11) in relation to the application.
Note: This subsection is a civil remedy provision (see Part 4 – 1).
FWC must decide whether to make variation order
(5) The FWC must:
(a) decide whether to make an order under this section varying the regulated labour hire arrangement order in accordance with subsection (6) or (7) to cover:
(i)any or all of the new employers; and
(ii)relevant regulated employees of those employers; and
(b) take all reasonable steps to make the decision before the time any of those employees start to perform the work referred to in paragraph (1)(b).
(6) The FWC must vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the regulated host and the new employer notify the FWC that the regulated host and the new employer agree to the making of the variation.
(7) Subject to subsections (8) and (9), the FWC must also vary the regulated labour hire arrangement order to cover a new employer and the relevant regulated employees of the employer if the FWC is satisfied of the matters referred to in subsection 306E(1) in relation to the regulated host, the new employer and the relevant regulated employees.
(8) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) unless the FWC is satisfied that the performance of work by the relevant regulated employees is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters referred to in subsection 306E(7A) in relation to the new employer and the relevant regulated employees.
(9) The FWC must not vary the regulated labour hire arrangement order in accordance with subsection (7) if the FWC is satisfied that it is not fair and reasonable in all the circumstances to make the variation, having regard to any matters referred to in subsection 306E(8) in relation to which submissions have been made in respect of the variation.
When variation order comes into force
(10)An order under this section comes into force on a day specified in the order.
Interim arrangements before the FWC decides application
(11)If the FWC does not decide whether to make an order under this section by the time referred to in paragraph 5(b), the regulated labour hire arrangement order is taken (so long as it is in force) to cover the new employers and the relevant regulated employees from the time the application for the order under this section is made until:
(a) if the FWC decides not to make an order under this section – the time the FWC makes that decision; or
(b) if the FWC decides to make an order under this section – the time that order comes into force.
Section 306ED(2), perhaps unusually, imposes an obligation on the regulated host covered by an existing regulated labour hire arrangement order to apply to vary the order as soon as practicable after it becomes aware that a new employer has started or will start to supply employees to perform work of a kind to which the existing order relates. The application must be for an order to vary the regulated labour hire arrangement order to cover the new employers and the relevant regulated employees of those employers. An obligation is presumably imposed on the regulated host to make that application because it is likely to be in the best position to know that a new employer is, or will, supply employees to perform work of a kind covered by the existing regulated labour hire arrangement order.
Section 306ED(5) requires that the Commission decide whether to make an order under this section varying the regulated labour hire arrangement order and “take all reasonable steps to make the decision before the time any of those employees start to perform the work referred to in paragraph (1)(b)”. The intention of s 306ED(5) is that, if appropriate, the regulated labour hire arrangement order will be varied to cover a new employer before any of its employees are supplied to perform relevant work for the regulated host. That is underscored by s 306ED(11) which provides that, if the Commission does not decide the matter prior to employees starting to perform work for the regulated host, the existing regulated labour hire arrangement order is taken to cover the new employer and relevant regulated employees until the Commission either makes a decision or an order comes into force.
Section 306ED(6) and (7) dictate when the Commission must make the variation. There are two alternatives. The first is that, under s 306ED(6), the Commission must vary the order if the regulated host and the new employer notify the Commission that the regulated host and the new employer agree to the making of the variation. The second is that, under s 306ED(7), the Commission must vary the order if it is satisfied of the matters referred to in s 306E(1) in relation to the regulated host, the new employer and the relevant regulated employees. However, s 306ED(8) and (9) dictate that the Commission must not vary the order under s 306ED(7) unless it is satisfied the performance of work by the relevant regulated employees is not or will not be for the provision of a service, rather than the supply of labour or if it is satisfied that it is not fair and reasonable in all the circumstances to make the variation.
The parties submit, and I accept that the plain language of s 306ED(6) means that the Commission must vary the regulated labour hire order if that regulated host and the new employer agree. In that situation, it is not necessary for the Commission to consider the requirements in s 306E(1) or conduct the service/labour or fair and reasonable assessments that otherwise arise under s 306ED(8) and (9). If the regulated host and the new employer notify the Commission that they agree to the making of the variation that is sufficient to require the Commission to vary the regulated labour hire arrangement order.
Section 306ED(7) contemplates that, despite having been compelled to make the application, the regulated host or the new employer might not agree to the variation. In that situation, the Commission will need to consider whether it is satisfied that the requirements in s 306E(1) or s 306ED(8) and (9) are met. That will, in most cases, require there to be satisfactory evidence before the Commission in relation to the operations of the regulated host and the new employer and the work being performed, or to be performed, by the relevant regulated employees.
Determination
During the hearing of the present application, the solicitor for Boggabri Coal informed me that Mineco had been supplying employees at the Boggabri Coal Mine for some time undertaking work related to the provision of a service which did not involve performing work of a kind to which the existing regulated labour hire arrangement order relates. More recently, employees of Mineco had been performing work of a kind to which the order relates and, after consultation with Mineco, it was agreed that Boggabri Coal was required to make an application under s 306ED.
On the information provided, it appears that the Commission is not in a position to make a decision in relation to the application before employees of Mineco start to perform the relevant work for Boggabri Coal. It appears that at least some employees of Mineco were performing such work prior to the application being made. In the circumstances, it appears to me to be appropriate to make a decision as soon as practicable. It is not necessary for me to consider the operation of s 306ED(11) in the circumstances. That is a matter which it may be necessary for Boggabri Coal and Mineco to consider.
In circumstances in which the legal representatives for Boggabri Coal and Mineco confirmed during the hearing that their clients agreed to the variation, I am satisfied that both the regulated host and the new employer have notified the Commission that they agree to the making of the variation. Section 306E(6) requires that the Commission must make the variation as a result of being notified that the regulated host and new employer agree. It is not necessary for me to consider the requirements in s 306E(1) or s 306ED(8) and (9).
The parties have proposed a form of order which they submit gives effect to the variation the Commission is required to make. I raised whether it is necessary, or useful, for the Commission to make a consolidated regulated labour hire arrangement order rather than a separate order to vary the existing order. The parties asked the Commission to make a separate variation order so that the provisions applicable specifically to Mineco are clear from one document. In the circumstances of this matter, I accept that is an appropriate course.
Order
An order will be published together with this decision to vary the Boggabri Coal Operations Pty Ltd Regulated Labour Hire Arrangement Order to cover Mineco Pty Ltd and employees of Mineco supplied to perform work for Boggabri Coal Mine who would, if employed by Boggabri Coal, be covered by the Boggabri Coal Operations Enterprise Agreement 2024. The order will come into force today.
VICE PRESIDENT
Appearances:
J Lovell, solicitor, of Ashurst Australia for Boggabri Coal Operations Pty Ltd.
S Burke, solicitor, of Sparke Helmore for Mineco Pty Ltd.
K Endacott, Industrial Officer, for the Mining and Energy Union.
Hearing details:
17 September 2025.
Sydney (using Microsoft Teams).
[1] Application by Mining and Energy Union re Boggabri Coal Mine [2024] FWCFB 415.
[2] Print PR780875.
Printed by authority of the Commonwealth Government Printer
<LH200011 PR791845>
0
0
0