Application by Shop, Distributive and Allied Employees Association re Australian Liquor Marketers Distribution Centre

[2025] FWC 1120

[2025] FWC 1120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by Shop, Distributive and Allied Employees Association re Australian Liquor Marketers Distribution Centre

(LH2025/12)

JUSTICE HATCHER, PRESIDENT SYDNEY, 22 APRIL 2025

Application for a regulated labour hire arrangement order in respect of Tusk Group Pty Ltd, Action Workforce Pty Ltd and Aussie United Group Pty Ltd in relation to work performed for Metcash Trading Limited.

1. The Shop, Distributive and Allied Employees Association (SDA) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Metcash Trading Limited (Metcash) as the regulated host and Tusk Group Pty Ltd, Action Workforce Pty Ltd and Aussie United Group Pty Ltd (employers) as the labour hire employers. The relevant regulated employees are storeworkers who perform work such as picking and packing, storing, receiving, dispatching, forking and cleaning at Metcash’s Australian Liquor Marketers Distribution Centre (Distribution Centre) in the State of Victoria. The host employment instrument is the Metcash Australian Liquor Marketers Victoria Enterprise Agreement 2023 (Agreement).[1]

1. In its application, the SDA describes the arrangement whereby the employers supply labour to Metcash for the performance of work at the Distribution Centre as follows:

1. The employees perform work for Metcash as they perform work that is wholly or principally for the benefit of Metcash or its enterprise at the Australian Liquor Marketers Distribution Centre satisfying the precondition under s 306E(1)(a) of the Fair Work Act 2009 (FW Act).

…

3. The Agreement would apply to the employees of the listed employers… that are subject of the proposed order if Metcash were to employee those employees to perform work that is covered by the Agreement. The storeworker work performed by the Regulated Employees falls within the coverage of the Agreement satisfying s 306E(1)(b).

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 (statutory headings omitted): 

2.    The Employers have no embedded supervisory or management capacity at the Distribution Centre. Supervisory or management employees of the Employers attend the Distribution Centre on an irregular basis and have very limited involvement in matters relating to the performance of work.

3.    The Regulated Employees are wholly integrated into the Regulated Host's operations. The Regulated Employees are:

a)required to undertake the Regulated Host’s induction at the commencement of their employment at the Distribution Centre. The induction is carried out by the Regulated Host and includes:

i. Provision of the Regulated Host’s policy and procedure book, which policies and procedures the Regulated Employees are equally required to comply with; and

ii. 4 days of training conducted by the Regulated Host prior to commencing independent work in the Distribution Centre;

b)allocated into section teams by the Regulated Host and are:

i.      allocated duties by;

ii.     required to comply with instructions and directions from; and

iii.    required to report to;

the Regulated Hosts’ team leaders/supervisors;

c)given directions as to picking orders via the Regulated Host’s headsets utilising the Regulated Host’s picking director technology;

d)required to attend team talks (toolbox talks) convened by the Regulated Host’s team leaders/supervisors (alongside employees of the Regulated host; and

e)required to undertake ongoing training which is arranged and conducted by the Regulated Host, including policy or procedure updates rolled out by the Regulated Host at team talks (toolbox talks).

4.    The Employers do not direct, supervise or control the Regulated Employees when they perform work for the Regulated Host.

5.    In relation to when the work is performed, the Regulated Employees:

a)are rostered for work by the Regulated Host through provision of roster details provided to the Employers;

b)take breaks (within their teams) at the Regulated Host’s direction (and at the same times and in the same break room as the Regulated Host Employer’s employees); and

c)make requests for leave or time off work through the Employer’s in collaboration with the Regulated Host and are required to notify the Regulated Host if they will be absent from work due to illness through the Employers’.

6.    In relation to the assignment of tasks and the Employers’ capacity to review the quality of work, we refer to and repeat the matters outlines in paragraphs 2 and 3 above.

7.    The Regulated Employees exclusively utilise the Regulated Host’s systems, plant and equipment in the course of their employment including (without limitation) Electric Pallet Jack pick machines, headsets and forklifts.

8.    The Regulated Employees do not utilise the Employer’s systems, plant or equipment in carrying out duties in the Distribution Centre.

9.    The Regulated Employees are employed by the Employer’s in accordance with the Storage Services and Wholesale Award 2020 (the Award) and perform duties within the classifications.

10.     The Regulated Employees work alongside and perform the same duties as the Regulated Host’s employees employed pursuant to the Host Employment Instrument, including but not limited to:

i.    picking and packing/assembly of orders;

ii.   replenishment of pick slots,
iii.  cleaning duties,
iv.  operation of manual handling equipment;

v.     loading and unloading trucks;
vi.    receiving goods,
vii. dispatching goods; and
viii. operating forklifts.

11.     The duties performed by the Regulated Employees cannot be said to be specialist or expert in nature in circumstances where they are substantially the same as the duties performed by the Regulated Host’s employees.

12.     The placement of Regulated Employees with the Regulated Hostis not for a defined purpose or defined task (or purposes or tasks) which differ from the duties or functions performed by the employees of the Regulated Host under the Host Employment Instrument.

13.     The placement of the Regulated Employees with the Regulated Host is not subject to any defined temporal limitation.

1. Each of the employers and Metcash have filed a Form F86A response in which they have indicated that they neither oppose the application nor wish to bring any other issue with it to the Commission’s attention. No other part has indicated an interest in the application.

1. Metcash and the employers who appeared at the directions hearing held on the 25 February 2025 each confirmed that they do not contest any of the factual assertions set out in the SDA’s originating application. Accordingly, on the basis of the material in that application and the Form F86A responses, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

1. I am satisfied that the SDA is entitled to represent the industrial interests of the employees supplied by the employers to Metcash and therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c). I am also 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)The employers supply their employees to perform work at the Distribution Centre.

(b)The Agreement would apply to the employees if they were directly employed directly by Metcash to perform storeworker work at the Distribution Centre.

(c)Metcash 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:

·The employers have very little involvement in matters relating to the performance of the employees’ work.

·The employers do not assign or manage the employees’ work.

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

·The employees are required to comply with Metcash’s policies and procedures at the Distribution Centre.

·The employees perform work that is substantially the same as that performed by Metcash’s direct employees at the Distribution Centre. It 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 SDA. 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 SDA. 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, consistent with s 306E(9)(e)(ii), the date of this decision.

PRESIDENT

Appearances:

D D’Angelo for the Shop, Distributive and Allied Employees Association.
J Raptis for Metcash Trading Limited.
J Patel and M Sany for Aussie United Group Pty Ltd.
M Diamond, solicitor, for Action Workforce Pty Ltd.
[There was no appearance for Tusk Group Pty Ltd].

Hearing details:

2025.

Sydney, via video using Microsoft Teams (mention and directions):
25 February.

[1] AE523437.

[2]  [2024] FWCFB 299, 333 IR 249.

Printed by authority of the Commonwealth Government Printer

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