Application by Nicholas Driver

[2024] FWCFB 394

[2024] FWCFB 394

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Nicholas Driver

(C2024/3841)

JUSTICE HATCHER, PRESIDENT

VICE PRESIDENT ASBURY
VICE PRESIDENT GIBIAN

SYDNEY, 11 OCTOBER 2024

Application for a regulated labour hire arrangement order in respect of TP Human Capital Pty Ltd in relation to work performed for South32 Cannington Pty Ltd.

1. Nicholas Driver (applicant) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to South32 Cannington Pty Ltd (South32) as the regulated host and TP Human Capital Pty Ltd (TPHC) as the employer. The proposed order would apply in respect of employees who perform work at South32’s Cannington silver, lead and zinc mine (Mine) near McKinlay in the state of Queensland. South32 and TPHC do not oppose the application. Both also consent to the terms of the order proposed by the applicant.

1. The applicant and the Australian Workers’ Union (AWU) filed submissions and evidence in support of the application. South32 and TPHC advised the Commission that they did not wish to file any material. No other person has indicated an interest in the application.

1. The evidence before the Commission comprised:

·the applicant’s own witness statement dated 30 July 2024, and

·a witness statement of Gavin Lawrence, an AWU organiser based in Mount Isa, dated 1 August 2024, filed by the AWU.

1. The evidence indicates, and we find, that:

·A substantial proportion of workers at the Mine are directly employed by South32. The South32 Cannington Enterprise Agreement 2023[1] (South32 Agreement) applies to these workers, being expressed to cover ‘[e]mployees of [South32] at the Cannington Mine who are covered by the classifications set out in clause 7(a) of the Agreement undertaking mining activities of any kind (including underground and open cut)’.[2]

·At least as at 22 September 2023 (per the Form F17A declaration in support of approval of the South32 Agreement by the Commission), there were 286 employees covered by the South32 Agreement.

·The balance of workers at the Mine are employed by various other entities including TPHC and are commonly referred to as ‘contractors’.

·There is a total of about 800-900 mining employees at the Mine.

·TPHC employees perform various roles at the Mine, including in relation to:

omining operations;

oprocessing;

otransport and logistics;

oinfrastructure and maintenance; and

ohealth and safety.

·TPHC employees engaged in mining operations at the Mine (such as the applicant) work in the same crews alongside direct employees of South32. They perform the same production work, operate the same machinery and equipment, and work pursuant to the same rosters.

·The applicant is an employee of TPHC and his role is to drive a haul truck at the Mine.

·The chartered flights and buses that transport workers to and from the Mine, which is in a remote location, are organised by South32 for both direct employees and contractors. TPHC has never organised a flight or other transport for the applicant in relation to his work at the Mine.

·While on a ‘swing’ (at least seven consecutive 12-hour shifts of work) at the Mine, all workers including contractors must reside at the nearby ‘village’ provided by South32. Any worker that wishes to leave the village to go somewhere other than the Mine must seek approval from South32 management to do so.

·South32 requires all workers at the Mine (including contractors) to complete a Journey Management Plan. TPHC has never required the applicant to complete such a plan.

·South32 conducts random drug and alcohol testing and blood tests to monitor lead levels for all workers, including contractors, at the Mine. TPHC has never required the applicant to undergo such testing.

·The applicant’s supervisor is a direct employee of the Mine, and that supervisor in turn reports to the Superintendent of the Mining department. That supervisor approves the applicant’s timesheets.

·The applicant has never seen a TPHC representative at the Mine.

·The applicant’s supervisor and Superintendent allocate tasks to workers regardless of whether they are South32 direct employees, TPHC employees, or contractors employed by other entities.

·Any movement of any worker at the Mine from one workstream or crew to another is exclusively managed by South32.

·The information and training in relation to underground mining the applicant has received have been provided by South32. The applicant’s training at the commencement of his time working at the Mine was conducted by a direct employee of South32. There were direct employees of South32 undertaking the training alongside him. TPHC has not provided him with any such information or training.

·The plant, equipment, safety systems and consumables the applicant has used while working at the Mine are all supplied by South32. TPHC has not supplied the applicant with these.

·There is a limitation on the number of workers who can take annual leave at any one time which is applied equally to Soth 32 and TPHC employees.

·While some non-South32 employers of workers at the Mine supply mobile plant items to the Mine, TPHC does not.

·Workers’ daily pre-start meetings are conducted by South32. The applicant has never attended a pre-start meeting conducted by TPHC, nor has he ever seen a TPHC representative at such a meeting.

·At the pre-start meetings, workers receive shift sheets containing information relating to the work day. These sheets are prepared by South32, not TPHC.

·TPHC employees and South32 employees interchangeably operate haul trucks at the Mine.

·Employees to whom the South32 Agreement applies receive a base annual salary (between $100,000 and $180,000 for employees in the Mining department) as well as various other payments, including allowances and a Holiday Bonus Payment of $1000 if working on either Easter Sunday or Christmas Day.[3]

·The applicant receives a flat pay rate of $45 per hour. He does not receive any additional allowances, loadings or penalty rates (for public holidays or otherwise).

·The applicant has a South32 email account and access to its Microsoft Office programs.

·South32’s Contractor Management Procedure distinguishes between ‘Agency Contractors’ and ‘Specialist Contractors’.

oAgency Contractors are individuals whose employer has an agreement with South32 to supply labour. The procedure provides that ‘[a]gency contractors must be onboarded through [South32’s] Human Resource processes, managed as an employee and [are] always supervised by a Cannington employee’.[4]

oThe procedure states that compared to South32, Specialist Contractors will have ‘superior technical expertise, qualifications and licenses’ to execute relevant work or ‘equal technical expertise, qualifications and licences… but has been appointed by [South32] as part of an outsourcing approach to manage capacity shortfalls’.[5]

oThe procedure further states that Specialist Contractors ‘execute work using their own work methods’ and ‘will not be directly supervised by [South32]’.[6]

·South32’s ‘List of Contractors + Contracts Doing High Risk Work at [the Mine]’,[7] which the applicant terms the ‘Contracts Register’, describes TPHC as ‘Agency / Labour Hire’ and is described as undertaking work involving ‘(the) provision of labor (sic) hire services for back fill of org structure positions’.

·TPHC holds a labour hire services licence issued under the Labour Hire Licensing Act 2017 (Qld) which, amongst other things, permits it to operate a labour hire business within the McKinlay Shire Council area and in the ‘Metal Ore Mining’ industry.

·While at the Mine, TPHC employees must adhere to South32’s policies and procedures, as well as various legislative requirements relating to health and safety.

Consideration

1. In Application by the Mining and Energy Union[8], a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[9] We apply, but do not repeat, the principles stated in that decision.

1. We are satisfied, for the purposes of s 306E(7) of the FW Act, that Mr Driver is an employee of TPHC who is supplied by TPHC to perform work for South32 Cannington Pty Ltd at its Cannington mine site. Accordingly, he is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act as he is a ‘regulated employee’ for the purposes of s 306E(7)(a).

1. We are further satisfied that the requirements in s 306E(1) of the FW Act, in relation to which we must be satisfied to trigger the obligation to make a regulated labour hire arrangement order, are met. Specifically, we are satisfied on the material before us, that:

(a)TPHC supplies employees employed by them to South32 to perform mining operations work as well as other functions at the Mine.

(b)Given the broad terms in which its scope is expressed, the South32 Agreement would apply to the employees of TPHC supplied to perform work at the Mine if South32 were to employ those employees directly to perform the same kind of work.

(c)South32 is not a small business employer.

1. For the purposes of s 306E(1A) of the FW Act, we are satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. In forming that view, we have had regard to the matters set out in subsection (7A). In relation to the matters set out in s 306E(7A), we make the following findings:

(a)There is no evidence that TPHC has any involvement in matters relating to the performance of work by its employees working at the Mine.

(b)The evidence indicates that South32 supervises and controls the work of TPHC employees working at the Mine. South32, not TPHC, is responsible for rostering, allocating tasks and the overall management of the employees. There is no evidence that TPHC, or any person on behalf of TPHC, directs, supervises or controls the employees supplied to South32 when they perform work at the Mine.

(c)TPHC employees working at the Mine do so under the same residential conditions, rostering arrangements, policies, procedures and legislative requirements, and using the same plant, equipment, safety systems and consumables as direct employees of South32.

(d)There is no evidence that TPHC is or will be subject to industry or professional standards or responsibilities in relation to the work of its employees supplied to South32.

(e)The evidence indicates that the work undertaken by TPHC employees at the Mine requires on-the-job training (conducted by South32) but does not involve work of a specialist or professional nature.

1. Having regard to the considerations referred to in s 306E(7A), it is clear that the performance of work by the employees supplied by TPHC to South32 at the Mine is not and will not be for the provision of a service. We are satisfied that TPHC supplies labour to South32.

1. In relation to s 306E(2) of the FW Act, we are not satisfied that it is not fair and reasonable in all the circumstances to make the order Mr Driver seeks. Section 306E(2) indicates that the Commission is required to have regard to the matters listed in subsection (8) in relation to which submissions have been made. No submissions were made to the Full Bench in relation to any of the matters in subsection (8). Accordingly, we are not required to have regard to those matters.

1. In those circumstances, we are required by s 306E of the FW Act to make the regulated labour hire arrangement order Mr Driver seeks. We 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 orders will be 1 November 2024, consistent with s 306E(9)(e)(i). No party submitted that the orders should specify when they cease to be in force pursuant to s 306E(10). Accordingly, the orders will not contain such a specification.

PRESIDENT

Appearances:

N Driver, the applicant, in person.
H Pararajasingham, counsel, for TP Human Capital Pty Ltd
A Towler, solicitor, for South32 Cannington Pty Ltd.
S Miller for The Australian Workers’ Union.
R Bhatt for The Australian Industry Group.

Hearing details:

2024.

Sydney by video link using Microsoft Teams (directions):
20 June.

Determined on the papers.

Written submissions:

Nicholas Driver: 1 August 2024.
The Australian Workers’ Union: 1 August 2024.

[1]  AE521931.

[2]  Ibid clause 2(b).

[3]  Ibid clause 10(b).

[4]  Witness statement of Nicholas Driver, 30 July 2024 annexure ND-23 appendix 1 (definition of ‘Agency Contractor’).

[5]  Ibid annexure ND-23 appendix 1 (definition of ‘Specialist Contractor’).

[6]  Ibid.

[7]  Ibid annexure ND-25.

[8]  [2024] FWCFB 299.

[9] Ibid [8]–[17].

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