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.

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]

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.

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.

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…

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

AGLC: Application by Mining and Energy Union re Dendrobium Colliery [2025] FWC 577
Case: [2025] FWC 577
Decision Date: 25 FEBRUARY 2025

CaseChat Overview and Summary

In the matter of the Fair Work Act 2009, the Mining and Energy Union made an application before the Fair Work Commission for a regulated labour hire arrangement order concerning work performed by employees of Nexus Mining Pty Ltd for Illawarra Coal Holdings Pty Ltd at the Dendrobium Colliery. The union argued that the employees were engaged under a labour hire arrangement, and the terms and conditions of employment were not compliant with the relevant award or agreement. The application sought to regulate the labour hire arrangement to ensure fair terms and conditions of employment for the workers.

The primary legal issue before the Commission was whether the workers employed by Nexus Mining Pty Ltd were engaged under a labour hire arrangement, as claimed by the union, and if so, whether the terms and conditions of employment provided to these workers were compliant with the Fair Work Act 2009 and relevant awards or agreements. The Commission had to examine the contractual relationships, the nature of the work performed, and the control exercised by Illawarra Coal Holdings Pty Ltd over the workers.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the workers were indeed engaged under a labour hire arrangement. The Commission concluded that Illawarra Coal Holdings Pty Ltd exercised significant control over the workers, including their work hours, tasks, and the provision of necessary equipment and safety gear. Given these findings, the Commission determined that the terms and conditions of employment were not compliant with the Fair Work Act 2009 and the relevant award. Consequently, the Commission made a regulated labour hire arrangement order, specifying the terms and conditions that must apply to the workers engaged by Nexus Mining Pty Ltd for Illawarra Coal Holdings Pty Ltd at the Dendrobium Colliery.

The final orders of the Commission included the regulation of the labour hire arrangement to ensure the workers received fair and reasonable terms and conditions of employment, including minimum wage rates, leave entitlements, and other employment benefits as specified in the relevant award. The Commission also directed that both parties comply with the regulated terms and conditions and report back on any compliance issues within specified timeframes.

Orders