Application by Mining and Energy Union re Dendrobium Colliery

[2025] FWC 577

[2025] FWC 577

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 Dendrobium Colliery

(LH2024/79)

JUSTICE HATCHER, PRESIDENT SYDNEY, 25 FEBRUARY 2025

Application for a regulated labour hire arrangement order in respect of Nexus Mining Pty Ltd in relation to work performed for Illawarra Coal Holdings Pty Ltd.

1. 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 Illawarra Coal Holdings Pty Ltd (ICH) as the regulated host and Nexus Mining Pty Ltd (Nexus) as the labour hire employer. The relevant employees of Nexus are production and engineering employees who perform work at the Dendrobium Colliery (Colliery) in New South Wales. The host employment instrument is the Dendrobium Mine Enterprise Agreement 2023 (Agreement).[1]

1. In its application, the MEU describes how Nexus supplies labour to ICH for the performance of work at the Colliery as follows:

1.Nexus supplies, directly or indirectly, one or more employees to [ICH] to perform work for ICH at the Colliery. The employees perform work for [ICH] as they perform work that is wholly or principally for the benefit of [ICH] or its enterprise at the Colliery.

2.The work performed (or will be performed) by Nexus employees falls within the kind of work performed by employees who are employed by [ICH] in the classifications of Production and Engineering employees covered by the Agreement. If [ICH] were to employ the Nexus employees to perform work at the Colliery the work performed (or will be performed) by the Nexus employees falls within the coverage of the Agreement.

1. 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:

a)Nexus has no or minimal involvement in matters relating to the performance of the work.

b)Nexus employees work on the same roster as [ICH] employees.

c)Nexus employees perform work of the same, or substantially similar, kind as the [ICH]employees.

d)In practice [ICH] directs, supervises or controls (or will direct, supervise or control) the Nexus employees while they are performing work at the Colliery. These functions, including the functions of managing rosters, assigning tasks and reviewing the quality of work, are undertaken by [ICH] and its employees.

e)The Nexus employees use the systems, plant and structures of [ICH].

f)The Nexus employees work in accordance with the operating procedures of [ICH], including safety systems established by [ICH] at the Colliery.

g)The production work performed at the Colliery, which involves the use of plant and equipment, is not of a specialist or expert nature.

1. Nexus and ICH have each filed a Form F86A in which they do not take issue with the factual contentions relevant to the requirements of s 306E in the MEU’s application and indicate that they do not oppose the application. No other party has indicated an interest in the application. Nexus and ICH filed an amended draft order on 18 February 2025, and advised that the parties consent to its terms and an operative date of 24 March 2025.

1. The respondents confirmed during the directions hearing held on 18 February 2025 that they do not contest any of the factual assertions set out in the originating application in response to questions 3.1, 3.2 and 3.3 of its originating application.

1. On the basis of the material contained in the originating application and the respondents’ responses, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings. I am satisfied that the employees supplied by Nexus to ICH are regulated employees entitled to apply for a regulated labour hire arrangement order under s 306E(7)(a). I am likewise satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied in order to enliven the obligation to make a regulated labour hire arrangement order, are met in that:

(a)It is clear that Nexus supplies its employees to perform work at the Colliery.

(b)The Agreement would apply to the employees if they were directly employed directly by ICH to perform production and engineering work at the Colliery.

(c)ICH is not a small business employer.

1. I am also satisfied, for the purpose of s 306E(1A) of the FW Act, 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. In forming this view, I have had regard to the matters set out in sub-s (7A) — in particular, that:

·Nexus is not involved in matters relating to the performance of the employees’ work.

·Nexus does not assign or manage the employees’ work.

·ICH, not Nexus, provides all the work instructions, equipment, training and facilities required for the employees to complete their work.

·The employees work according to the operating procedures and safety systems established by ICH at the Colliery.

·The work is not of a specialist or expert nature.

1. In relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the MEU. Section 306E(2) requires the Commission to have regard to the matters listed in sub-s (8) in relation to which submissions have been made. In this case, no submissions were made in relation to any of the matters listed in sub-s (8). Accordingly, I am not required to have regard to those matters.

1. In the circumstances set out above, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the MEU. I will publish the order together with this decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 24 March 2025, as agreed by the parties and consistent with s 306E(9)(e)(ii).

PRESIDENT

Appearances:

A Jacka with R Timbs for the Mining and Energy Union.
C Bell (solicitor, Corrs Chambers Westgarth) for Nexus Mining Pty Ltd.
L Dixon with C Young (solicitors, Minter Ellison) for Illawarra Coal Holdings Pty Ltd.

Hearing details:

2025.

Sydney, via video using Microsoft Teams (directions):
18 February.

[1]  AE520741.

[2]  [2024] FWCFB 299, 333 IR 249.

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