Application by Mining and Energy Union re Dawson Mines - [2025] FWC 1096

[2025] FWC 1096

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.306E—Application for a regulated labour hire arrangement order

Application by Mining and Energy Union re Dawson Mines

(LH2024/58)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 17 APRIL 2025

Application for a regulated labour hire arrangement order in respect of WorkPac Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed for Anglo Coal (Dawson Services) Pty Ltd.

The Mining and Energy Union (MEU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Anglo Coal (Dawson Services) Pty Ltd (Anglo) as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively, WorkPac) as the labour hire employers. The relevant employees of WorkPac are employees who perform work at the Dawson Mines (Mines) near Moura in Queensland. The host employment instrument is the Dawson Mines Collective Enterprise Agreement 2024 (Agreement).[1]

In its application, the MEU asserts that WorkPac supplies one or more employees, directly or indirectly, to perform work that is for the benefit of Anglo or the Mines.

The application further explains how the performance of work by the employees is for the supply of labour and is not and will not be for the provision of a service as follows:

1.WorkPac is a labour-hire business that operates in the mining industry.

2.As in other [regulated labour hire arrangement order] applications involving WorkPac, the Regulated Employees in the present matter:

a.work in the same crews as employees of Anglo (the Host Employees);
b.work to the same roster as the Host Employees;
c.perform work of the same, or substantially similar, kind as the Host Employees;
d.are required to comply with the same instructions as the Host Employees given by Anglo management and supervisors;
e.use the same machine and plant as the Host Employees;
f.work in accordance with the operating procedures of Anglo, including safety systems established by Anglo at the Mines;
g.perform the standard duties of operator classifications within the black coal mining industry, consistent with the work of the Host Employees.

3.The Commission can be satisfied that the performance of work by the Regulated Employees is not and will not be for the provision of a service, rather than the supply of labour. See MEU v Batchfire Callide Management Pty Ltd, WorkPac Pty Ltd & Anor[2024] FWCFB 299.

4.With respect to the mandatory factors in s 306E(7A):

a.the employer, WorkPac, has no or minimal involvement in matters relating to the performance of the work;
b.in practice, Anglo or a person acting on behalf of Anglo (rather than WorkPac or a person acting on behalf of WorkPac) directs, supervises and controls the Regulated Employees when they perform the work, including in managing rosters, assigning tasks and reviewing the quality of the work;
c.the Regulated Employees use systems, plants and structures of Anglo, not WorkPac, to perform the work;
d.WorkPac is not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1096
Decision Date: 17 APRIL 2025

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Mining and Energy Union (MEU) under section 306E of the Fair Work Act 2009 (Cth) for a regulated labour hire arrangement order. The application sought to regulate the relationship between Anglo Coal (Dawson Services) Pty Ltd (Anglo) as the host employer and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively, WorkPac) as the labour hire employers. The employees in question were those supplied by WorkPac to perform work at the Dawson Mines near Moura in Queensland. The relevant employment instrument was the Dawson Mines Collective Enterprise Agreement 2024 (Agreement). The MEU claimed that WorkPac supplied employees to perform work for the benefit of Anglo, and that the employees' work was for the supply of labour, not the provision of a service.

The primary legal issues before the Commission were whether the requirements of section 306E(1) of the Fair Work Act were satisfied and whether it was fair and reasonable to make the regulated labour hire arrangement order as sought by the MEU. The Commission needed to determine if WorkPac supplied employees to perform work for Anglo, if the Agreement would apply to the employees if they were directly employed by Anglo, and if Anglo was not a small business employer. Additionally, the Commission had to assess if the performance of work by the employees was for the supply of labour and not for the provision of a service. Finally, the Commission needed to consider if it was fair and reasonable in all the circumstances to make the regulated labour hire arrangement order.

The Commission found that the MEU was entitled to apply for a regulated labour hire arrangement order under section 306E(7)(c) of the Fair Work Act. The Commission was satisfied that the requirements of section 306E(1) of the Fair Work Act were met, as WorkPac supplied employees to perform work for Anglo, and the Agreement would apply to the employees if they were directly employed by Anglo. The Commission also found that the performance of work by the employees was not and would not be for the provision of a service, but rather for the supply of labour. Importantly, the Commission determined that it was fair and reasonable in all the circumstances to make the regulated labour hire arrangement order as sought by the MEU. Anglo and WorkPac did not oppose the making of the order, and no other interested party opposed the grant of the MEU's application. Therefore, the Commission made the regulated labour hire arrangement order sought by the MEU, effective from 28 April 2025.

The Fair Work Commission granted the regulated labour hire arrangement order sought by the Mining and Energy Union in relation to WorkPac Pty Ltd and WorkPac Mining Pty Ltd as labour hire employers, and Anglo Coal (Dawson Services) Pty Ltd as the host employer. The order regulates the relationship between the parties and applies the Dawson Mines Collective Enterprise Agreement 2024 to the employees supplied by WorkPac to Anglo. The order was made effective from 28 April 2025, as agreed by the parties.

Orders