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 Batchfire Callide Management Pty Ltd.

Introduction and factual background

The Mining and Energy Union (MEU) has applied under s 306Eof the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to Batchfire Callide Management Pty Ltd (Batchfire) as the regulated host and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively, WorkPac) as employers in respect of employees who perform work at the Callide Mine, a black coal mine operated by Batchfire, near the town of Biloela in Queensland (Mine). Neither Batchfire nor WorkPac oppose the making of the order sought by the MEU.

The factual background may be ascertained from the facts pleaded in the MEU’s application and the witness statements of Cornelis Westra, an employee of WorkPac who performs mining work at the Mine, and David Wieden, an employee of Batchfire who works at the Mine and is the Secretary of the Callide Valley Lodge of the MEU, filed by the MEU. The facts are not disputed by Batchfire or WorkPac and may be summarised as follows.

The Mine is an open-cut coal mine which produces thermal coal for energy generation. Batchfire operates the Mine and employs about 237 production employees and 110 maintenance employees, as well as supervisory, technical and administrative staff, for that purpose. Batchfire and its employees are covered by the Callide Mine Union Enterprise Agreement 2021[1] (Agreement), an enterprise agreement in operation under the FW Act. Clause 3 of the Agreement provides that it covers Batchfire and ‘…each Employee of [Batchfire] who is eligible to be a member of the CFMMEU or AMWU or CEPU, and employed in a classification set out in clause 9…’. The reference to the CFMMEU in clause 3 is to be read as a reference to the MEU.[2] Clause 9 contains classifications for all grades of production employees as well as engineering employees.

WorkPac is, among other things, a labour hire business operating in the mining industry. WorkPac supplies about 324 production workers which it employs to Batchfire to work at the Mine.

Production employees at the Mine, whether employed by Batchfire or WorkPac, are eligible to be members of the MEU, and a significant number of such employees are in fact members of the MEU (including those employed by WorkPac). Rule 2(A) of the MEU’s rules provides that all employees engaged in or in connection with the coal and shale industries are eligible for membership of the MEU and, in addition, rule 2(B) relevantly provides that all classes of engine drivers and other specified operators of plant and equipment engaged… in or in connection with the…

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.

Continue reading Application by the Mining and Energy Union

Details

AGLC: Application by the Mining and Energy Union [2024] FWCFB 299
Case: [2024] FWCFB 299
Decision Date: 1 JULY 2024

CaseChat Overview and Summary

The Mining and Energy Union (MEU) has applied for a regulated labour hire arrangement order under section 306E of the Fair Work Act 2009 (FW Act) in relation to WorkPac Pty Ltd and WorkPac Mining Pty Ltd, which supply employees to Batchfire Callide Management Pty Ltd for work at the Callide Mine. Batchfire and WorkPac do not oppose the application. The key legal issues the Fair Work Commission (FWC) was required to decide included whether the application was made by a person entitled to do so, whether the criteria for making the order were satisfied, whether the work supplied by WorkPac was for the provision of a service rather than labour, and whether it was fair and reasonable to make the order. The FWC found that the MEU was entitled to apply, that the criteria for making the order were satisfied, that the work was for the supply of labour rather than a service, and that it was fair and reasonable to make the order. The FWC concluded that it was required to make the order as sought by the MEU.

The FWC determined that it was satisfied that the MEU was an employee organisation entitled to represent the industrial interests of the WorkPac employees and Batchfire employees who work at the Mine. The FWC found that the criteria for making the order were satisfied because WorkPac supplies employees to Batchfire, the Agreement would apply if Batchfire employed the WorkPac employees directly, and Batchfire is not a small business employer. The FWC also found that the performance of work by the WorkPac employees was not and will not be for the provision of a service rather than labour. Finally, the FWC concluded that it was not satisfied that it was not fair and reasonable to make the order as no submissions were made about the relevant matters. The FWC was therefore required to make the order sought by the MEU.

Orders