Application by the Mining and Energy Union re Glendell Mining Pty Limited - [2025] FWC 2690

[2025] FWC 2690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by the Mining and Energy Union re Glendell Mining Pty Limited

(LH2024/4; LH2024/5)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 15 SEPTEMBER 2025

Applications for regulated labour hire arrangement orders in respect of Programmed Skilled Workforce Pty Ltd and The TESA Group Pty Ltd and WorkPac Pty Ltd and WorkPac Mining Pty Ltd in relation to work performed for Glendell Mining Pty Ltd at the Mt Owen Mine – Orders made.

The Mining and Energy Union (MEU) has made two applications under s.306E of the Fair Work Act 2009 (Cth) (FW Act) for regulated labour hire arrangements orders, covering Glendell Mining Pty Limited (Glendell) as the regulated host.

The two regulated labour hire arrangements orders are sought with respect to work performed by employees of Programmed Skilled Workforce Pty Ltd (PSW) and The TESA Group Pty Ltd (TESA) and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (collectively referred to as WorkPac in this decision) at Mt Owen Mine (the Mine) near Singleton in New South Wales.

Glendell opposes the applications on the grounds that, pursuant to s.306E(2) of the FW Act, the Commission can and should be satisfied that it is not fair and reasonable in all of the circumstances to make the orders. Glendell contends that such orders would have the effect of requiring TESA, PSW and/or WorkPac to pay their relatively inexperienced and less skilled employees a rate of pay that Glendell has negotiated for its highly experienced and multiskilled production operator workforce.

WorkPac opposes the application on the basis that the Commission can and should be satisfied that it would not be fair and reasonable in all the circumstances to make the regulated labour hire arrangements order, particularly with regard to the significant financial consequences, the existing enterprise agreement applying to its employees and the difference in work performed by Workpac employees compared to Glendell employees.

PSW and TESA oppose the application on three grounds. First, they contend that the application must be dismissed by virtue of s.39 of the FW Act. They submit that the FW Act cannot operate to dispose of the application because, if the application were granted, it would result in the acquisition of PSW’s property otherwise than on just terms. Second, and in the event that the first submission is rejected, they contend that the order sought is not fair and reasonable in all of the circumstances. Third, and in the event that the Commission is satisfied that the regulated labour hire arrangements order should be made, they contend that it should not be made in the terms that are sought, and that a number of matters need to be taken into account when framing the order.

The applications were listed for hearing on 27 and 28 March 2025.

At the hearing, the following statements were admitted into evidence:

a.   Witness Statement of Jeremy McWilliams, District Vice President of the Northern District Branch of the MEU, dated 9 December 2024
b.   Witness Statement of James Laurence Gray, Mobile Plant Operator, WorkPac, dated 1 October 2024
c.   Witness Statement of Simon John Clifford, Operator, Glendell, dated 2 October 2024
d.   Reply Witness Statement of Simon John Clifford, dated 9 December 2024
e.   Witness Statement of Samantha Moore, Operational Delivery Manager, PSW, dated 26 March 2025, who adopted the Witness Statement of Joel Cribb, General Manager North – Energy and Resources, PSW, dated 27 November 2024
f.    Witness Statement of Cameron Hockaday, Chief Commercial & Risk Officer of WorkPac Group Pty Ltd, dated 27 November 2024
g.   Witness Statement of Cameron Hockaday dated 11 March 2025
h.   Statement of Christopher Gerard, Operations Manager of the Mt Owen/Glendell Operations, dated 27 November 2024

Each of these witnesses was required for cross-examination and gave evidence at the hearing.

Background Facts

The following summary represents uncontroversial facts derived from the evidence.

Glendell is a wholly owned subsidiary of Glencore Coal Assets Australia Pty Ltd (GCAA) and part of the global Glencore plc group (Glencore group). The Mine is part of the Mt Owen/Glendell Operations (MGO) and is one of 13 operating coal mining assets in Australia within the Glencore group.[1]

The Mine is an open cut coal mine located approximately 20 kilometres from the town of Singleton in the Hunter Valley, New South Wales. The Mine extracts and processes thermal coal and semi-soft metallurgical coal before it is sent to the Port of Newcastle by rail. The MGO consists of three mines that are part of an integrated mining operation, namely:
(i) Mt Owen Mine, where there is active mining activity;
(ii) Glendell Mine, which is in care and maintenance; and
(iii) Ravensworth East Mine, where there is no active mining activity.[2]
The Mine was operated by Thiess Pty Ltd (Thiess) up until 1 January 2023 when it was converted to owner-operator. This was preceded by a period of transition during which the retention of skilled labour at the Mine was a priority for Glendell. The workforce at the Mine includes production workers, maintenance workers and staff.

When Thiess operated the Mine, its workforce included skilled and experienced operators and tradespersons who in the transition were offered direct employment with Glendell. These employees, together with existing employees of Glendell from the Glendell Mine and employees of the Liddell open cut mine that was also transitioning to closure, formed the bulk of the production and engineering employees of Glendell and the workforce at the Mine.

As of 1 November 2024, there was a total of 348 workers engaged as production operators at the Mine. Glendell directly employed 252 of these employees, all on a permanent basis. Glendell utilises the services of PSW/TESA and WorkPac to supplement its production operator workforce with 96 production operators (including trainees). 52 are employed by TESA, including 13 who are completing the formal traineeship to obtain a Certificate III qualification in Surface Extraction Operations with Skills NSW and 44 are employed by WorkPac, including 12 who are trainees under the formal traineeship. The vast majority of employees of TESA and WorkPac have worked at the mine for less than two years.

Broadly, the role of production operators is to operate the mobile plant and equipment at the Mine that is used to extract and transport coal and overburden. As at 27 November 2024, the mobile plant and equipment on site was:
(a) 46 haul trucks;
(b) 4 service trucks;
(c) 6 watercarts;
(d) 4 graders;
(e) 15 dozers;
(f) 1 loader;
(g) 4 drills; and
(h) 8 excavators[3]
An operator must gain their competency for each of the various types of mobile plant and equipment at the Mine before they are able to operate that plant or equipment. To begin, the operator typically commences their training on a haul truck. When an operator has become competent in operating haul trucks, the next category of mobile plant that they will train for is typically a water truck or service cart (because operating these vehicles has similarities to a haul truck). The next category of mobile plant or equipment that an operator will train for (such as grader, loader, dozer or excavator) will depend on the operational needs at the Mine. Glendell seeks to maintain a training pipeline to ensure that employees are upskilled in different types of plant and equipment in response to anticipated workforce turnover, availability of plant and equipment, and the production schedule.[4]

Glendell uses its engagement with PSW/TESA and WorkPac to provide a pathway for inexperienced workers to enter the mining industry under a traineeship arrangement, gain experience and obtain a Certificate III in Surface Extraction Operations. PSW/TESA is an accredited training provider and WorkPac facilitates accredited training of its employees through an associated accredited training provider. A traineeship includes a combination of classroom based, and on-site learning, for at least 12 months. At the conclusion of the traineeship, the employee will be ‘passed out’ as competent to operate one or more haul trucks.[5] At the end of the traineeship, the newly qualified operator may be employed by PSW/TESA or WorkPac on a permanent or casual basis. During their employment with PSW/TESA and WorkPac, the newly qualified operators will continue working at the Mine in one of the production crews at the Mine and work the same roster as the Glendell employees.

Glendell has used this pathway as the primary method to fill vacancies for permanent employees in production operator roles since it took over the operations of the Mine on 1 January 2023. During the first year that Glendell assumed operation of the Mine, Glendell directly employed 50 operators who had previously been employed by PSW/TESA and WorkPac.

As at 30 October 2024:

(a) there were 52 production operators employed by PSW/TESA (39 qualified and 13 trainees) Of those,
(i) 14 are passed out on three haul trucks;
(ii) 13 are passed out on four haul trucks;
(iii) 5 are passed out on five haul trucks;
(iv) 3 are passed out on four haul trucks and two water carts; and
(v) 2 are passed out on five haul trucks two water carts.

(b) there were 44 production operators employed by WorkPac (32 qualified and 12 trainees). Of those:
(i) 26 are passed out on three haul truck models;
(ii) five are passed out on four haul truck models; and
(iii) one is passed out on four haul trucks and a service cart.[6]

By comparison, over 86% of Glendell employees are able to operate 7 or more pieces of equipment.[7]

PSW and TESA

PSW and TESA are part of the Programmed group of companies (Programmed Group). The Programmed Group provides various staffing and labour hire, facility management, property maintenance, care, recruitment, training, and other services in a range of industry sectors across Australia and New Zealand, including the energy and resources sector services, which is a significant component of Programmed Group’s operations.[8]
As part of the energy and resources sector, the Programmed Group has a significant presence in New South Wales black coal mining operations and holds a number of contracts with various clients to provide labour and staffing solutions and services. PSW is typically the entity that holds these customer contracts but does not employ the employees who perform work in accordance with those contracts. TESA is one entity within the Programmed Group with employees who perform work pursuant to customer contracts. PSW and TESA submitted that in this proceeding, the employer is TESA and that PSW does not employ any employees that are the subject of the application.[9]
PSW has a contract with Mt Owen Pty Ltd (Mt Owen) to provide labour to perform production work at the Mine. (Supply Contract). The Supply Contract is comprised of an ‘Umbrella Agreement’ between PSW and GCAA (which is a parent company of Mt Owen) dated 1 June 2023. The specific engagement terms for Mt Owen are set out in terms executed by PSW on 17 October 2022, which commenced on 1 January 2023. These specific engagement terms expired on 31 March 2023, but PSW, TESA and Mt Owen have continued to perform those terms as if they were still in effect under the 2023 Umbrella Agreement.[10]
Clause 2.1 of the Umbrella Agreement outlines the process when the Client (GCAA) requires the provision of Work (defined as ‘Provide supplementary labour hire to the Client on an as required basis’) by the Contractor (PSW).[11] Clause 2.1(c) provides that GCAA will engage PSW and a contract between GCAA and PSW will be established incorporating the terms of the Umbrella Agreement, where GCAA issues a Purchase Order to PSW with a reference to the Umbrella Agreement and a brief description of the Work to be performed by PSW; or Glencore and PSW and execute Engagement Terms.[12]
Clause 5.3(a) sets out the circumstances in which GCAA can vary the work. Clause 5.3(b) sets out the circumstances in which PSW can request a variation of the work which is at the discretion of GCAA. Clause 6.1 deals with warranties made by PSW and relevantly provides:
the Contractor is not relieved of its obligations under the Contract, and it does not have any remedy against the Principal, by reason of the existence or occurrence of any matter or thing not anticipated by the Contractor at the date of the Contract and which may not be contemplated by the Contract.[13]
Clause 9.1(a) provides that subject to the proper provision of the Work, GCAA must pay PSW the Fees in accordance with the requirements of the Contract and the Engagement (together referring to the Umbrella Agreement and any engagement terms) and that PSW must not charge GCAA (and GCAA is under no obligation to pay) for any costs or expenses in addition to the agreed rates.[14] All of the services which PSW has provided to date have been paid and duly invoiced between the parties.
Clause 12 provides for various ways that GCAA can terminate the Contract. The only circumstances in which PSW can initiate termination is if GCAA is insolvent under clause 12.3.[15]
The TESA Group Enterprise Agreement 2022 (TESA Agreement) applies to employees of TESA who work at the Mine. The TESA employees are all classified as ‘Mineworker Level 3’ under the TESA Agreement. They are referred to as ‘Experienced Operator Level 3’ under the Supply Contract which is equivalent to a ‘Mineworker’ under the Black Coal Mining Industry Award 2020 (the Award).[16] When applying the TESA Agreement, TESA is currently adopting a base rate of $31.30 for a Level 3 employee because this is the amount prescribed by the Award, which exceeds the base rate of pay in the TESA Agreement.

PSW supplies TESA employees to the Mine under an agreed set of rates. These rates are premised on there being a base rate for each type of worker, statutory on-costs for each type of worker, particular overheads for each worker, and a modest profit margin. Those price inputs make a total charge out rate that is to be applied for the labour to be supplied.[17]
TESA applies the ‘all up’ rates of pay for these employees found in clause 11.3 of the TESA Agreement. Each employee works a 12.33 hour, 7 day rotating roster, which is the same as that worked by other workers at the Mine.[18]
The hourly rate which is paid to employees of TESA in accordance with PSW's contract, is $49.86 an hour in relation to permanent employees, which is $111,888.83 per year ($49.86 multiplied by 43.155 hours a week, then multiplied by 52 weeks).[19]
As at 30 October 2024 there were 52 production operators employed by TESA (39 qualified and 13 trainees) Of those,
(i) 14 are passed out on three haul trucks;
(ii) 13 are passed out on four haul trucks;
(iii) 5 are passed out on five haul trucks;
(iv) 3 are passed out on four haul trucks and two water carts; and
(v) 2 are passed out on five haul trucks two water carts.[20]
Of the 52 operators employed by TESA, 44 had less than two years experience in the mining industry.[21]

Workpac

WorkPac Pty Ltd is a party to a services contract (Services Contract) with Glencore Coal Assets Australia Pty Ltd. Pursuant to the Services Contract, WorkPac provides WorkPac employees to perform work at the Mine. One of either of the WorkPac companies employ the WorkPac employees.[22]
The WorkPac Group describes itself as one of Australia’s largest privately owned workforce services business, delivering end-to-end recruitment solutions, skills development and career opportunities nationwide.[23] In addition to providing traditional recruitment services, Workpac directly employs workers, known as ‘on-hire’ employees, who it then provides to its clients to perform work at clients’ sites.[24] Most of WorkPac’s employees work in the mining, industrial/civil infrastructure and healthcare sectors throughout Australia.[25]

The WorkPac employees performing work at the Mine are covered by the WorkPac Coal Mining Agreement 2019 (WorkPac Agreement).

Mr Gray, who is employed by Workpac to perform work at the Mine, gave evidence that he received a pay increase of $49.29 per hour from 1 July 2024. Mr Gray estimated that he earns $110,609.71 ($49.29 x 43.155 hrs x 52 weeks) for working his rostered hours. This is calculated by reference to his current flat rate and does not include superannuation.[26]
As at 6 November 2024, the following number of WorkPac employees were engaged to perform work at the Mt Owen Mine:
(a)41 permanent employees –comprising of 15 fixed term trainees and 26 X Level 3;
(b)7 casual employees - comprising of 1 X Level 2, 3 X Level 3 and 3 X Level 4[27]

WorkPac employees and TESA employees at the Mine

The WorkPac employees and TESA employees only perform production work at the Mine.

The WorkPac employees and TESA employees that work at the Mine attend the same daily pre-start meeting (known as a ‘GCOM Meeting’) as the Glendell employees and are allocated work and equipment for their shift by Glendell in the same way.
The WorkPac employees and TESA employees that work at the Mine operate the same Glendell owned machines and equipment as the Glendell employees.

The WorkPac employees and TESA employees that work at the Mine are required to comply with the same instructions as the Glendell employees usually delivered by Glendell supervisors.
The WorkPac employees and TESA employees must undertake the same site induction conducted by the mine owner/operator before commencing work at the Mine.
The WorkPac employees and TESA employees that work at the Mine operate pursuant to the Safety Management System established by Glendell at the Mine.
The WorkPac employees and TESA employees that work at the Mine operate under the same Glendell standard operating procedures, policies and rules as the Glendell employees.
The WorkPac employees and TESA employees that work at the Mine are rostered on the same rosters and allocated into the same crews as the Glendell employees.
The WorkPac employees that work at the Mine must notify Glendell when taking personal/carer’s leave. If taking personal/ carer’s leave part way through a shift, TESA employees must also notify Glendell.
Annual leave taken by TESA employees is approved or rejected by TESA based on manning requirements set by Glendell.
The WorkPac employees and TESA employees who work at the Mine take meal breaks at times determined by Glendell and share the same crib facilities.
The WorkPac employees and TESA employees that work at the Mine undertake the same training as the Glendell employees.
Glendell supplies some PPE to the WorkPac employees and TESA employees, and these labour hire companies also supply some PPE. Glendell provides all consumables.

Legislative Framework

306E FWC may make a regulated labour hire arrangement order
Regulated labour hire arrangement order
(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:
(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and
(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and
(c) the regulated host is not a small business employer.

Note: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short‑term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes).

(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).

(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.
(3) For the purposes of paragraph (1)(a), it does not matter:
(a) whether the supply is the result of an agreement, or one or more agreements; or
(b) if there are one or more agreements relating to the supply—whether an agreement is between:
(i) the regulated host and the employer; or
(ii) the regulated host and a person other than the employer; or
(iii) the employer and a person other than the regulated host; or
(iv) any 2 persons who are neither the regulated host nor the employer; or

(c) whether the regulated host and employer are related bodies corporate.
Note: If related bodies corporate with different corporate branding do not provide labour to each other, a regulated labour hire arrangement order cannot be made because labour is not supplied in the way mentioned in paragraph (1)(a).

(4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.
Regulated employee and host employment instrument
(5) An employee referred to in paragraph (1)(a) is a regulated employee.
(6) The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument.
Who may apply for an order
(7) The following persons may apply for the order:
(a) a regulated employee;
(b) an employee of the regulated host;
(c) an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (a) or (b);
(d) the regulated host.

Matters that must be considered in relation to whether work is for the provision of a service
(7A) For the purposes of subsection (1A), the matters are as follows:
(a) the involvement of the employer in matters relating to the performance of the work;
(b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;
(c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;
(d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;
(e) the extent to which the work is of a specialist or expert nature.

Matters to be considered if submissions are made
(8) For the purposes of subsection (2), the matters are as follows:
(a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:
(i) whether the host employment instrument applies only to a particular class or group of employees; and
(ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and
(iii) the rate of pay that would be payable to the regulated employees if the order were made;

(c) the history of industrial arrangements applying to the regulated host and the employer;
(d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;
(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:
(i) the nature of the regulated host’s interests in the joint venture or common enterprise; and
(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);

(e) the terms and nature of the arrangement under which the work will be performed, including:
(i) the period for which the arrangement operates or will operate; and
(ii) the location of the work being performed or to be performed under the arrangement; and
(iii) the industry in which the regulated host and the employer operate; and
(iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;

(f) any other matter the FWC considers relevant.

What an order must specify
(9) A regulated labour hire arrangement order must specify:
(a) the regulated host covered by the order; and
(b) the employer covered by the order under this section; and
(c) the regulated employees covered by the order under this section; and
(d) the host employment instrument covered by the order; and
(e) the day the order comes into force, which must be:
(i) if the order is made before 1 November 2024—that day or a later day; or
(ii) otherwise—the day the order is made or a later day.

Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA.

What an order may specify
(10) A regulated labour hire arrangement order may specify when the order ceases to be in force.
Note: For variation and revocation of a regulated labour hire arrangement order, see section 603.

In Application by MEU re Callide Mine, (Batchfire),[28] Application by the Mining and Energy Union re Rix’s Creek (Rix’s Creek),[29] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd (Bengalla)[30] and Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine and Applications by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) re: Peak Downs Mine, Saraji Mine and Goonyella Riverside Mine (Goonyella),[31] Full Benches of the Commission have outlined a number of principles concerning the proper interpretation and application of s.306E.[32] I will apply, but do not repeat, the principles stated in those decisions.

Glendell submissions

Glendell submitted that s.306E(1)(b) is not met as the persons who will benefit from the order, if it is made, are not performing work of the same kind as the employees of the employer who are working under the enterprise agreement which is applicable to Glendell. Glendell submitted that the comparison that the MEU has sought to make is not between like and like but between persons who are unskilled and/or inexperienced, and persons who are skilled and have experience and more skills.

Glendell relied upon clauses 9.4 of the Glendell Agreement to submit that the Glendell Agreement was intended to cover a highly skilled, capable and flexible workforce which is inconsistent with the MEU’s submissions that the Glendell Agreement was intended to cover a whole spectrum of personnel, from untrained to persons in training to persons with some training to persons with advanced skills.

Glendell submitted that the expression ‘fair and reasonable’ in s.306E(2) is not defined in the FW Act for the purposes of Division 2 Part 2-7A. The phrase must therefore be interpreted according to the ordinary and established principles of statutory construction. This requires a consideration of the statutory text and the purpose and context of the relevant provisions.

Glendell submitted that consistent with other members of the Glencore group, it does not use what is described in the Revised Explanatory Memorandum (REM) as the ‘labour-hire loophole’.

Glendell submitted that having regard to the matters in s.306E(8), the Commission ought to be satisfied that it is not fair and reasonable to make the orders sought in all of the circumstances.

In relation to s. 306E(8)(a), which deals with any arrangements that apply to employees of the regulated host and the regulated employees, Glendell submitted:

The Glendell Agreement contains one classification, Mine Operations Employee which reflects that Glendell does not employ production operators with less than 18 months experience. The evidence also discloses that Glendell only employs qualified trades persons, who have the same base rate of pay as production operators.

(ii)The remuneration and benefits that the production and maintenance employees of Glendell receive under the terms of the Glendell Agreement is commensurate with the high level of skills and experience of the directly employed workforce.

By comparison, the vast majority of production operators employed by TESA and WorkPac are new to the industry (with less than two years of experience), and are only qualified to operate haul trucks. The production operators employed by Glendell have significant experience and competencies across the full range of plant and equipment utilised at the Mine.

(iv)The multi-skilled and experienced Glendell employed workforce is critical to the operations of the Mine, which is geologically challenging when compared to other mines in the area, due to its range of steeply dipping thin coal seams which require the use of through-seam blasting techniques. The multiple seams of coal dip at a range of angles and thicknesses.

TESA and WorkPac employees engaged at the Mine are covered by their own agreements, also negotiated with the MEU as a bargaining representative and the MEU is covered by the agreements. Each of those enterprise agreements provides a tiered classification structure based on experience and a rate of pay that varies accordingly.

(vi)The Glendell Agreement does not include an ‘inexperienced mineworker’ rate and was made prior to the Same Job, Same Pay reforms, and therefore did not contemplate covering employees of any other organisations.

Further, the Glendell Agreement has never, in practice, been applied to production operators who are undertaking a traineeship or have newly completed a traineeship. Production operators typically must have at least 18 months experience before they are eligible to apply for vacant Glendell positions.
Preserving the relativities between the rates of pay of WorkPac and TESA employees on the one hand, and on the other hand the rates of the Glendell employees, does not undermine the rates in the Glendell Agreement. On the contrary, preserving the existing relativities preserves the integrity of the rates in the Glendell Agreement that were developed by reference to the rates of pay for experienced operators who are able to work across different equipment as required, and in a challenging geological environment. They also reflect Glendell’s expectations regarding skills, operational flexibility, productivity, ongoing training and professional development. The collapsing of relativities by making the orders could promote disharmony in the workforce.

(ix)It is not fair and reasonable that Glendell's significantly more experienced and multi- skilled operators should be paid the same as a new entrant to the industry who may have recently completed a traineeship and/or is only accredited to operate haul trucks.

There is no inherent injustice in industrial instruments providing for differing rates of pay. There is no inherent injustice in an enterprise agreement covering newcomers to an industry having lesser rates paid than persons who are experienced in the industry and multi-skilled.

In relation to s.306E(8)(c), which deals with history of industrial arrangements applying to the regulated host and the employer, Glendell submitted:

Glendell has an established history of active engagement with the MEU and enterprise bargaining. The Glendell Agreement contains terms and conditions that are significantly more beneficial than the Award.

(ii)The current Glendell Agreement was negotiated with the CFMMEU (as it was then), was approved by the required majority of employees, does not restrict the use of contracted labour, contemplates Glendell’s right to utilise such labour to the extent it is referred to in the Security of Employment provisions and gives effect to a key object of the FW Act, namely the primacy of enterprise-level bargaining.

The rate of pay and other conditions of the Glendell Agreement were negotiated with regard to the rates of pay of production and maintenance workers generally in the Hunter Valley region. There is no evidentiary basis to claim that the rates negotiated in the Glendell Agreement and paid by Glendell have been undermined by Glendell’s use of contracted labour. This is particularly so in the limited circumstances in which employees of TESA and Workpac are utilised in production roles at the Mine.

(iv)TESA and WorkPac each have a history of negotiating enterprise agreements with the MEU (or its predecessors).

In relation to s. 306E(8)(d), which deals with the relationship between the regulated host and the employer, Glendell submitted:

Glendell, PSW/TESA and WorkPac are not related body corporates. The terms of the arrangement that Glendell has with each has been negotiated in good faith and at arm’s length. Those arrangements arise from an umbrella agreement which GCAA has respectively with PSW and WorkPac.

(ii)There is no basis to claim that, by PSW/TESA and/or WorkPac contracting to Glendell for the labour utilised, this has the effect of undercutting the pay rate for a Mine Operations Employee under the Glendell Agreement.

WorkPac and PSW/TESA are reputable third-party businesses that provide for accredited traineeships for persons, without mining experience or relevant qualification, seeking to enter the mining industry. They therefore provide an important function of training new operators in the mining industry, including for Glendell.

(iv)Glendell’s use of WorkPac and PSW/TESA reflect commercial arrangements through which Glendell provides the ‘training ground’ for new-to-industry employees to commence a career in the coal mining industry.

Glendell does not directly employ casual employees, nor does it employ inexperienced, unqualified persons as production operators.

In relation to s.306E(8)(e), which deals with the terms and nature of the arrangement under which the work will be performed, Glendell submitted:

PSW/TESA and WorkPac are reputable third-party businesses that each have an umbrella agreement with GCAA.

(ii)Both PSW/TESA and WorkPac have relevant enterprise agreements that apply to their employees, and the MEU is covered by those agreements.

In relation to s.306E(8)(f), which deals with any other matter that the Commission considers relevant, Glendell submitted:

Glendell’s use of PSW/TESA and WorkPac creates a pathway for inexperienced operators to enter the industry.

(ii)The pathway is not designed to, nor have the effect of undercutting or undermining the bargained rate for a Mine Operations Employee under the Glendell Agreement or future enterprise agreement, or otherwise cause an issue that the regulated labour hire arrangement order regime is designed to address.

The mining industry is a critical component of the Australian economy. The promotion of traineeships that provide opportunities to new entrants to the mining industry is in the public interest. The Commission, in performing its functions, must have regard to ss.577 and 578 of the Fair Work Act, in that the Commission has to act in a manner that promotes harmonious and cooperative workplace relations.

(iv)Granting an order has the potential to disincentivise employees of TESA and Workpac from striving to develop their skills and experience in order to become employees of Glendell. This has the potential to frustrate the pathway Glendell has developed, source production operators from the pool of operators provided by PSW/TESA and Workpac, and to develop them into multi-skilled operators.

PSW and TESA submissions

PSW and TESA submitted that the proposed order would result in the FW Act operating to acquire TESA’s property otherwise than on just terms. Consequently, and by operation of s.39 of the FW Act, PSW and TESA submitted that the FW Act cannot apply to the application, and that the application must be dismissed. This submission was considered and rejected by the Full Bench in Bengalla[33] and I am bound to apply that decision. It is therefore unnecessary for me to consider the submissions by PSW and TESA in relation to s.39 any further.

PSW and TESA submitted that the proposed order is not fair and reasonable in all of the circumstances for the purposes of s.306E(2).

PSW and TESA submitted that the test set by s.306E(2) invites the Commission to consider an unlimited range of ‘circumstances’, confined only by:

(a)What is ‘fair’. As to this criterion, the definition ascribed to this concept by a High Court majority must apply: “‘Fairness’ necessarily has a number of aspects: fairness to employees, fairness between employees, fairness to employers, fairness between employers, and fairness between employees and employers.”
(b)What is ‘reasonable’. This criterion makes express what would otherwise be an implied condition on the Commission’s power in the Wednesbury sense. For something to be considered reasonable it requires an evident and intelligible justification, and such a justification is to be measured against the scope and purpose of the FW Act.
(c)Regard to matters outlined in s 306E(8), however even those criteria are extended by ‘any other matter the FWC considers relevant’ (s 306E(8)(f)), and it otherwise follows from the terms of s 306E(2) itself that the matters outlined in s 306(8) are not exhaustive.

PSW and TESA submitted that with respect to fairness and reasonableness to employees:

Part 2-7A is directed to setting a rate of revised pay to a labour hire employee in circumstances where a host sets a higher rate of pay for its own employees for work of a like kind. PSW and TESA accept that this counts favourably towards a order, as objectively measured against the purpose of Part 2-7A.

(ii)However, the balance of the FW Act ameliorates that issue. TESA’s employees are able to negotiate improved terms and conditions (in exchange for productivity improvements) under the bargaining processes under Part 2-4, and are provided with a number of facilitative and coercive tools to extract improved terms and conditions.

PSW and TESA submitted that with respect to fairness and reasonableness between employees:

(i)It is unfair and unreasonable to make the order considering the position between employees. TESA’s employees negotiated the TESA Agreement, and its predecessor, against a backdrop of the work to be performed, the skills to be applied to that work, and the productivity benefits to be exchanged. The Glendell Agreement was negotiated by industrial parties informed by a different backdrop of work, skills and productivity exchanges.
(ii)The employees supplied by TESA are predominantly new entrants into black coal mining work with limited to no experience (other than through a traineeship provided by a related entity of TESA). By contrast, the Glendell Agreement fixes a single, higher rate of pay for all (non-trainee) employees covered by it, which reflects the higher levels of experience of the workforce employed under it.

PSW and TESA submitted that with respect to fairness and reasonableness to PSW and TESA it is clearly unfair and unreasonable to make the order when PSW’s and TESA’s position is considered because:

(i)The fruit of the labour hire contract is taken away. Profit that has been earned to date is absorbed by the increased leave balances. There is no capacity in the contract to recover this amount.
(ii)The FW Act conferred an entitlement on TESA to negotiate an enterprise agreement with its employees that became the TESA Agreement, and TESA negotiated that agreement at a point in time where the operation of Part 2-7A was not a prospect. The FW Act presently confers an entitlement to apply the TESA Agreement to its workforce. A regulated labour hire arrangement order would overturn that negotiation and the productivity exchange underpinning it and displaces its most important terms, being the rates of pay.

(iii)In lieu, TESA will be required pay a rate of pay that is not informed by the productivity exchange that has been negotiated by Glendell and its employees that has become the Glendell Agreement. The product of that bargain reflects the circumstances of a different industrial relationship, and does not reflect TESA’s bargain nor the make-up of its workforce.

PSW and TESA submitted that with respect to fairness and reasonableness between employers and between employers and employees:

It is unfair and unreasonable to make the orders when fairness and reasonableness is measured between employers, and between employers and employees. All other employers and employees enjoy the right to enter into enterprise agreements which set a rate of pay in exchange for the work to be performed, the skills to be applied to that work, and the productivity benefits to be exchanged. The same cannot be said when it comes to TESA and its employees in the advent of a regulated labour hire arrangement order.

(ii)PSW and TESA readily accept that this is a consequence of the legislative intent behind Part 27A, but that does not render the unfairness irrelevant. It is a factor to be considered in the same vein (and with the same weight) when it comes to considering the favourable aspects of the scheme to TESA’s employees.

PSW and TESA submitted that beyond the issues addressed above, the matters outlined in s 306E(8) do not materially influence what is fair and reasonable in all of the circumstances, in this particular proceeding.

PSW and TESA drew the Commission’s attention to various aspects of the Umbrella Agreement including that Glencore has discretion about whether it accepts variations requested by PSW, that Glencore is not liable for any losses PSW incurs by reason of the introduction of new law which unsettles what the parties agreed and that PSW can only initiate termination of the contract if Glencore becomes insolvent. TESA submitted that this contract is a loss-making contract for which PSW and TESA have no remedy and they cannot even terminate it.

PSW and TESA submitted that the order should not apply prospectively to any services (as opposed to labour) that TESA might supply to the Mine in the future. The MEU’s order would regulate any work of employees that might be the subject to future services that PSW might seek to provide, in circumstances where the legislative scheme is against that outcome. PSW and TESA submitted that if made, the order should specify ‘all haul truck and water cart employees employed by the employer’.

PSW and TESA agreed with Glendell’s submissions in relation to s.306E(2) and (8).

WorkPac submissions

WorkPac submitted that following propositions inform the meaning and application of 'fair and reasonable in all the circumstances' as it is used in s.306E(2):

'Fair’ has its ordinary dictionary meaning of being, relevantly, equitable and legitimate.

(ii)‘Reasonable’ has its ordinary dictionary meaning of being ‘agreeable to reason’, ‘not irrational, absurd or ridiculous’, and ‘[n]ot going beyond the limit assigned by reason; not extravagant or excessive; moderate’.

The words ‘in all the circumstances’ emphasise the requirement to take the full extent (‘the whole amount’, ‘extent, substance, or compass of’, 'The entire number of, without exception') of the surrounding circumstances into account.

(iv)The composite expression takes its meaning from the statutory context in which it is used. That context includes the statutory objective of ‘achieving productivity and fairness through an emphasis on enterprise-level collective bargaining’.

The inquiry ‘cannot be made in a vacuum’. It must include consideration of all of the matters that are set out in s.306E(8), insofar as they are the subject of submission, including those referred to in s.306E(8)(f).

WorkPac submitted that in relation to s.306E(8)(f), the circumstances that may mean that the making of an order are not fair and reasonable ‘are many and varied and a narrow approach should not be adopted as to what may constitute unfairness or unreasonableness…’.

In relation to ss. 306E(8)(a) and (c), WorkPac submitted that:

(i) It is an established, sophisticated and substantial employer. It provides recruitment services and labour hire to many clients in the mining, construction, healthcare and other industry sectors throughout Australia. In the past 12 months, WorkPac has found employment for over 16,000 employees, often including new and inexperienced workers, women, and Indigenous workers. It provides support for Indigenous workers, and training to new entrants to the coal mining industry.

(ii) it has a direct, meaningful and established arrangements with its employees, including the On-Hire Employees engaged by it under the Services Contract. This includes:

a.providing significant opportunities for trainees and apprentices, including within the black coal mining industry.
b.providing employees with designated contact persons for dealing with employment related matters during the course of their assignments with WorkPac's clients.
c.where necessary, dealing with employee grievances and disputes directly with its workforce.
d.A long history of engaging in enterprise bargaining and successfully making workplace and enterprise agreements with its workforces, including in the black coal mining sector.

in the black coal mining industry, the MEU (and its predecessors) has been an employee bargaining representative and an active participant in those negotiations.

(vi)The WorkPac Agreement:
a.has a pay and classification structure that closely aligns with the Award classification structure;
b.was approved by a majority of the employees who participated in a vote on the proposed enterprise agreement, such that its terms and conditions contained in the applicable document was taken to have been 'agreed to' by WorkPac’s employees;
c.provides terms and conditions which passed the 'better off overall' test under the FW Act;
d.provides certainty to WorkPac in its tenders for opportunities with its clients across the industry.

The classification structure and applicable pay rates under the WorkPac Agreement are different to those in the Glendell Agreement in that:
a.The WorkPac Agreement contains a tiered classification structure. Progress through the classifications is generally linked to minimum competencies. Pay rates for the WorkPac employees are linked to the classification for each employee.
b.All employees under the Glendell Agreement are employed as 'Mine Operations Employees’ with no differentiation depending on skills or experience.
The making of the order sought in this proceeding, by imposing on WorkPac and its employees, terms that are extraneous to their relationship, would inevitably disturb and distort these arrangements. It is neither fair nor reasonable to do so, particularly in circumstances where there is no demonstrated need for any such imposition.

(ix)In particular, there is no factual basis for the MEU's submission that the engagement of WorkPac has led to any:

(a) undercutting of the security of employment of Glendell's directly employed workforce;
(b) undermining of the collective strength of Glendell's directly employed workforce;
(c) undercutting of the wages bargained for by Glendell's employees and the MEU in enterprise agreements.

The Glendell Agreement contains no restrictions on the use of contractors by Glendell. The parties to the Glendell Agreement did not seek to regulate the rates of pay to be paid to employees of contractors being utilised at the Mine. Additionally, the Glendell Agreement does not contemplate the engagement of casual employees by Glendell its terms and thus does not specifically deal with those arrangements. The complete absence of such regulation suggests that the parties were content for the pay rates for any contractors utilised at the Mine (including casual employees) to be regulated as between the contractor and its employees.

In relation to ss.306E(8)(d), (e) and (f), WorkPac submitted that the consequential effects of the making of the orders sought in these proceedings may include:

an adverse impact on WorkPac's accrued liabilities for employee entitlements for annual leave and personal leave because WorkPac has not made provision for those accrued entitlements on the basis that an order would be in place when the entitlements fall due for payment.

(ii)If the order is made, the applicable ‘protected rate of pay’ which would be payable to the WorkPac employees during their leave periods is likely to be higher than the rate under the WorkPac Agreement. The retrospective value of the aggregate leave balances for the WorkPac employees will therefore increase. The consequential effect on accrued leave liabilities for the WorkPac employees at the Mine represents a material impact on WorkPac's profit.

Additionally, a number of regulated labour hire arrangement orders have been made in respect of WorkPac and it is the subject of a number of applications for regulated labour hire arrangement orders. The cumulative effect of the making of regulated labour hire arrangement orders will represent a material impact on WorkPac's profit.

(iv)The Services Contract was made against a commercial context that did not include the prospect of a regulated labour hire arrangement order. Unless WorkPac's commercial arrangements with its clients allow for the recovery of the increased cost associated with the necessary payments having to be made by WorkPac to its employees covered by a particular regulated labour hire arrangement order, the additional cost will have a significant impact on WorkPac's operations. As Mr Hockaday states, many arrangements may become wholly unviable and WorkPac will need to consider its options to respond to those challenges, which may include terminating commercially unsustainable arrangements.

Even if WorkPac is able to obtain relief that ameliorated the direct and immediate costs occasioned by the making of an regulated labour hire arrangement order, there remains a prospect that the making of an order could cause WorkPac's clients to reduce their use of WorkPac employees (in part or in full) because it is not viable to continue their operations with an increased labour cost with no productivity improvement across the whole of their operation.

(vi)Any adverse impacts on WorkPac's revenue as a result of an order would inevitably have consequential flow-on impacts across the whole of WorkPac's business. To the extent this happens, the making of the order would diminish the security of, and opportunities for, employment for all of WorkPac's current employees, including those that work in sectors other than black coal mining, and the capacity of WorkPac to continue to contribute to the Australian labour market in every sector in which it operates. That contribution includes:
(i)Providing pathways for female and Indigenous employees;
(ii)Providing pathways for new and inexperienced entrants to the workforce (including for trainees and apprenticeships), and opportunities for its employees to transition to directly employed roles with WorkPac's clients;
(iii)Filling positions for WorkPac's clients quickly and efficiently, including for specialist and uncommon roles; and
(iv)Providing flexibility to WorkPac's employees to move between clients and sites.

Workpac submitted that the making of the regulated labour hire arrangement order undermines the objects of the FW Act which include 'achieving productivity and fairness through an emphasis on enterprise-level collective bargaining…' because:
(a) The order would, to the extent that it operates, set at nought the enterprise-level collective bargaining represented by the making of the WorkPac Agreement.
(b) Bargaining for a new WorkPac black coal mining enterprise agreement to replace the WorkPac Agreement will, at best, be distorted, and may perhaps be frustrated altogether.
(c) The approval of any replacement WorkPac black coal mining enterprise agreement would be susceptible to challenge on the basis that a significant cohort of employees who voted on a new agreement did not have a sufficient stake in the terms of the new agreement because they would not be being paid in accordance with its terms.
WorkPac submitted that one aspect of s.3 of the FW Act that is particularly relevant to the question of whether an order is fair and reasonable in all the circumstances is that found in subsection (3)(f). A relevant consideration that must inform the Commission's assessment of the fair and reasonable question is the fact that in this particular application, the making of an order would supplant or displace an existing enterprise agreement, and this is inconsistent with the Commission emphasising enterprise-level collective bargaining.

WorkPac submitted that because the order would also only apply to WorkPac employees who perform work at the Mine, this would create an arbitrary disparity amongst WorkPac's workforce in terms of the rates of pay that they are entitled to which is inconsistent with the notion of collectivity that is contemplated by s.3(f) of the Act.

WorkPac submitted that the making of the order would effectively set a floor as to what certain employees at WorkPac are entitled to be paid, and that would preclude the ability of WorkPac and its employees to negotiate trade-offs in rates of pay for other, more beneficial, non-financial conditions in subsequent round of bargaining and that this is antithetical to the concept of enterprise-level collective bargaining.

WorkPac submitted that the Glencore Agreement has passed its nominal expiry date and that there are currently ongoing negotiations for a replacement agreement. Consequently, if the Commission makes an order, the order in all likelihood will entail WorkPac eventually being required to pay rates that align with an enterprise agreement that the Commission has no real visibility as to the terms of, and that WorkPac has no ability to control the content or influence the content of. This is a matter that plainly makes the making of the order in this case unreasonable, because it is not appropriate for the Commission to bind WorkPac to a particular rate of pay when the Commission, has very little visibility into what that rate of pay will be.

Workpac concluded by submitting that it would not be fair and reasonable to make the order because of the significant financial consequences, the existence of the WorkPac Agreement, the difference in work performed between Glendell and WorkPac respectively and the unreasonableness of making of an order in circumstances where an enterprise agreement is currently being renegotiated covering the Glendell workforce.

MEU Submissions

The MEU submitted that the approach to the construction of the expression ‘fair and reasonable in the circumstances’ in s.306E(2) urged by the other parties in the proceedings should be treated with caution as it is contrary to the principle that individual words or expressions in a single statutory provision should not be construed in isolation. Further, care should be taken not to place too heavy a reliance on the definition of words in dictionaries because dictionaries will often provide a range of meanings for a particular word. Ultimately, statutory construction requires that the words in s.306E(2) be considered in their context and in light of the purpose of the provision in the scheme effected by Part 2-7A of the FW Act.

The MEU submitted that it is wrong to deploy, the general objects set out in s.3 to the FW Act, particularly s.3(f) as a springboard to read down or otherwise impose qualifications in the text of s.306E(2). In any event, the object and framework envisaged by s.3 of the FW Act intends to achieve fairness for employees by promoting productivity and supporting enterprise-level collective bargaining by ensuring that rates of pay for labour hire employees are in line with bargained rates of the regulated host.

The MEU submitted that the following additional matters are relevant to the construction and application of the expression ‘not fair and reasonable in all the circumstances’:

a.the expression ‘fair and reasonable’ inherently leaves room for choice by the Commission and conveys that the assessment involves a degree of subjectivity and impression which is discretionary in nature.
b.the assessment of fairness and reasonableness in all the circumstances requires a multifactorial analysis.
c.the matters that fall to be considered in making that discretionary and evaluative assessment are those raised by the parties. This is apparent as a matter of the text of s.306E(2) and confirmed by the REM.
d.the criterion under s 306E(2) depends on the Commission achieving a state of ‘satisfaction’. This reinforces that the assessment required by s 306E(2) involves the making of an evaluative judgment of a discretionary nature.
e.the Respondents bear the persuasive onus in establishing that it is not fair and reasonable in all the circumstances for an order to be made.

The MEU submitted that s.306E(8)(a) focuses on pay arrangements that apply to employees of the regulated host and those which apply to regulated employees including whether the host instrument: (i) applies to only a particular class of employees; (ii) whether in practice the host employment instrument has ever applied to employees at classifications, job levels or grades applicable to the regulated employees; and (iii) the rate that would be payable

to regulated employees if the order were made.

The MEU submitted that it is not required to establish that the making of the order is fair and reasonable. The statutory task is ascertaining whether in all the circumstances, it would not be fair and reasonable to make the order. Unfairness and unreasonableness both need to be satisfied in order for the subsection to be triggered. The circumstances set out in subsection (1) and subsection (1A) are relevant and do bear upon the question of fairness and reasonableness in all the circumstances. Where a labour hire company is supplying workers to do work which falls under the host employer's enterprise agreement, or would otherwise fall under the host employer's enterprise agreement, in the event that those employees of the labour hire employers were covered by the agreement are relevant matters that bear upon whether or not the Commission can be satisfied that it would not be fair and reasonable in the circumstances.

The MEU submitted that the labour hire employees are paid substantially less in circumstances where it is Glendell who trains and assesses all the employees in relation to the pieces of machinery that they can operate, who supervises and provides direction and instruction to them on a day-to-day basis, who rosters them to perform work, who determines what shifts they will work, who determines how and in what circumstances they can enter the mine site, who allocates them to work together and side-by-side performing mining operations

with the employees directly employed by it. These are employees who take the same breaks, comply with the same health and safety policies, and perform work in the same crews as the directly employed employees who have a bargained agreement with their employer, but they are paid significantly less. Neither of these labour hire companies supply any of the plant and equipment that is owned and used and operated.[34] Whether the regulated employees are being paid substantially less than employees of the regulated host, or whether the rates are comparable and the employees receive some other benefits from their employer, is capable of being relevant to whether it is not fair and reasonable to make an order (of course balanced with other relevant considerations).[35]

The MEU urged that I adopt the following observations of the full Bench from Bengalla:

Where an enterprise agreement has been made that covers a particular type of work undertaken by employees of the regulated host, an order under Part 27A has the effect of protecting the outcome of that enterprise-level bargaining process by preventing…Bengalla obtaining workers to perform the same kind of work at lower rates of pay through a labour hire employer. Where that is the effect of a regulated labour hire arrangement order, the order protects rather than undermines enterprise-level collective bargaining.[36]

The MEU acknowledged that the nature and history of the industrial arrangements which apply to the labour hire employer may be relevant to whether it is not fair and reasonable to make an order for the purposes of s 306E(2). However, the object in s.3(f) does not suggest that the Commission should commence with the assumption that making the order is not fair and reasonable.

In relation to Glendell’s submission that the Commission would be comparing the group of employees who would be the beneficiaries of the order with a group of employees who have more experience and more competencies, the MEU relied on the coverage term of the Agreement to submit that the Agreement is intended to and does pick up and cover employees who are captured by schedule A of the Award; the Agreement is not limited to and does not make any differentiation between employees who have a particular number of competencies or have been passed out on particular items of equipment. The rates of pay are not differentiated or determined by reference to the employee’ particular skills or attributes. Further there is no evidence before the Commission that the rates of pay contained in the Glendell Agreement, have been calculated by reference to employees’ particular attributes or particular competencies.

The MEU submitted that the Glendell Agreement is expressed to capture everyone falling under schedule A to the Award and, on the face of the Glendell Agreement, does not set a singular rate of pay that is designed to compensate employees who have the kind of competencies held by many of the Glendell employees.

The MEU submitted that the purpose of the regulated labour hire arrangement order scheme is not necessarily to capture ‘same with same’ but to deal with the supply of labour which would be captured by the classification set out in a particular enterprise agreement. It does not matter whether employees of a labour hire company who fall under one or more of the classifications of an enterprise agreement have fewer or greater skills or competencies than the employees of the regulated host. The purpose of the scheme is to ensure that if employees of a labour hire company who fall under the same enterprise agreement, in the event that they were hypothetically employed by the host, are being paid less, that they are paid the same amount as employees of the regulated host.

Consideration

Whether regulated labour hire arrangement orders must be made (s.306E(1) and (1A))

Section 306E(1) requires the Commission to make a regulated labour hire arrangement order on application by a person mentioned in s.306E(7) if it is satisfied that the criteria specified in paragraphs (a), (b) and (c) of the subsection are met and neither of the prohibitions upon the making of such an order in ss 306E(1A) and 306E(2) apply.[37]

The evaluation required by s 306E(1)(b) involves making factual findings as to the nature of the work performed (including any qualifications which may be required, the tasks undertaken and the skills exercised) for the regulated host by the employees supplied by the employer, and then determining by reference to the coverage and classification provisions of the relevant enterprise agreement whether that work is of a kind such as to make the agreement applicable to the relevant employees if they were directly employed by the regulated host.[38]

Glendell submitted that s.306E(1)(b) is not met as the persons who will benefit from the order, if it is made, are not performing work of the same kind as the employees of the employer who are working under the enterprise agreement which is applicable to Glendell Mining. I do not accept this submission. Section 306E(1)(b) requires the Commission to be satisfied that a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of the kind performed for the regulated host. In this case, the work is to operate the mobile plant and equipment at the Mine that is used to extract and transport coal and overburden and the covered employment instrument that applies to the regulated host is the Glendell Agreement, Clause 3.2 of the Glendell Agreement states that it applies to Glendell and employees who are covered by Schedule A of the Award. Schedule A of the Award covers production and engineering employees and has five classifications. The WorkPac Agreement provides at clause 1.4.1 that it applies to WorkPac in relation to its employees who are employed in the black coal mining industry whose duties are directly connected with the operation of a black coal mine site.

Clause 3.2 of the TESA Agreement provides that subject to some exceptions which are not relevant to the current proceedings, the TESA Agreement applies to employees employed in the classifications contained in clause 11.1 of the Agreement in respect of production and engineering work (as defined by the Award) performed at TESA’s coal mining clients’ premises in the region covered by the Northern District Coal Fields in New South Wales.

WorkPac submitted that the pay and classification structure in the WorkPac Agreement, is closely aligns to the Award. Similarly, PSW and TESA submitted that they provided workers to Glendell whose classification is equivalent to Mineworker under the Award.

Based on the terms of the Glendell Agreement, the WorkPac Agreement and the TESA Agreement and the evidence of the work performed at the Mine by employees of Glendell, PSW and TESA respectively, I am satisfied that the Glendell Agreement would apply to the work performed by employees of WorkPac and TESA if Glendell employed those employees to do the work they are performing for Glendell

I am satisfied, for the purpose of s 306E(7)(c), that the MEU is an employee organisation that is entitled to represent the industrial interests of the employees of WorkPac and PSW/TESA who are supplied to perform work for Glendell at the Mine, and of the employees of Glendell who work at the Mine. The MEU therefore has standing to make the application before me under s.306E(7).

In relation to the matters in s.306E(1), I am satisfied that:

WorkPac supplies employees of WorkPac to perform production work for Glendell at the Mine.
TESA supplies employees of TESA to perform production work for Glendell at the Mine.
The Glendell Agreement would apply to these employees if Glendell were to employ the employees directly to perform production work at the Mine.
Glendell is not a small business employer.

I am also satisfied for the purpose of s 306E(1A) that the performance of work by the production employees supplied by WorkPac and PSW/TESA to Glendell is not and will not be for the provision of a service rather than for the supply of labour having regard to the matters in s.306E(7A).

In relation to the matters in s.306E(7A), I make the following findings based on the evidence before me:

(a)There is no evidence that Workpac and TESA have any involvement in matters relating to the performance of the work by their respective employees at the Mine;
(b)Workpac and TESA do not direct, supervise or control their respective employees when they perform the work at the Mine. Rather, these functions, including the functions of managing rosters, assigning tasks and reviewing the quality of work, are undertaken by Glendell;
(c)The employees of Workpac and TESA do not use systems, plant or structures of their respective employers to perform the work. Rather, they use or will use systems, plant or structures of Glendell to perform the work;
(d)There is no evidence that WorkPac or TESA is or will be subject to industry or professional standards or responsibilities in relation to the employees they supply to Glendell;

(e)The work undertaken by WorkPac and TESA employees at the Mine involves the operation of plant and equipment but does not involve work of a specialist or professional nature.

Whether it is not fair and reasonable to make an order (s 306E(2))

Section 306E(2) operates to impose a prohibition on the Commission making a regulated labour hire arrangement order if the Commission is positively satisfied it is not fair and reasonable in all the circumstances to make the order.[39] The Commission does not need to be positively satisfied it is fair and reasonable to make an order.[40] The provision therefore operates in an inverse way to s 306E(1A).[41] The Commission is only required to have regard to a matter in s 306E(8) as a mandatory consideration if a submission is made in relation to the matter. The Commission is otherwise entitled to have regard to those matters as part of ‘all of the circumstances’ even if no such submission is advanced.[42]

The parties made submissions about the meaning of the expression ‘fair and reasonable’ in s.306E(2). In relation to this matter, I adopt the following conclusions of the Full Bench in Goonyella (citations omitted):

[275] In our opinion, the subsection requires the Commission to make a broad value judgment as to whether it is not fair and reasonable to make an order in all of the circumstances. That evaluative assessment is likely to involve a balancing of various interests that would be affected by an order having regard to the matters listed in s 306E(8), including any matter not specifically identified in the subsection that the Commission considers relevant. It is also the case that the Commission is entitled, although not required, to have regard to a matter as part of ‘all of the circumstances’ even if no submission is advanced about it.
[276] The assessment of the fairness and reasonableness of making an order will inevitably involve consideration of the consequences of an order being made or not made. The principal consequence of an order is that the employer must pay the regulated employee at no less than the “protected rate of pay” in connection with the work performed for the regulated host in accordance with s 306F(2). The order is likely, for that reason, to have consequences for the employer, and perhaps the regulated host, that might be thought to be adverse in that the order will increase employment costs and positive for the regulated employees in that they will receive a higher rate of pay. However, the assessment to be made requires consideration to the whole of the circumstances, including (when relevant) the pay arrangements for employees of the regulated host, the industrial arrangements applying to the regulated host and the employer, the relationship between the regulated host and the employer and the arrangements between the regulated host and the employer. It is not a one-dimensional trade-off between the benefits to employees and asserted detriments to the employer or regulated host.
[277] The assessment of whether it is not fair and reasonable in all the circumstances to make the order is to be undertaken having regard to the statutory context in which Part 2-7A appears, including the object of the Act and the relationship orders under Part 2-7A have to collective bargaining and enterprise agreements made in accordance with Part 2-4….[43]

Section 306E(2) is dominant over s 306E(1) in the sense that, even if the requirements in subsection (1) are met, the Commission must not make a regulated labour hire arrangement order if satisfied it is not fair and reasonable to do so in all the circumstances. Like s.306E(1A), it represents an exception to the obligation to make an order under subsection (1).[44] The fact that employees are being supplied to perform work for the regulated host in circumstances in which, if they were directly employed by the host, the covered employment instrument would apply to the employees, may be relevant to whether it is not fair and reasonable to make an order.[45]

Aspects of the arrangements according to which labour is supplied to the regulated host are capable of being relevant to whether it is not fair and reasonable to make an order and might

fall within the matters expressly identified in s 306E(8). If a submission is made about the matter, subsection (8) requires consideration of the pay arrangements that apply to the regulated host and the regulated employees, the relationship between the regulated host and the employer, whether the work is performed for a joint venture and the terms and nature of the arrangement under which the work is performed. Whether the regulated employees are being paid substantially less than employees of the regulated host, or whether the rates are comparable and the employees receive some other benefits from their employer, is capable of being relevant to whether it is not fair and reasonable to make an order (balanced with other relevant considerations).[46]

The reference to ‘all of the circumstances’ in s.306E(2) and ‘any other matter the FWC considers relevant’ in s.306E(8)(f) indicates the breadth of the matters to which regard must be had. The combined effect of s.306E(2) and (8)(f) is that regard must be had to any relevant circumstance about which a submission is made. A matter will be relevant if it could rationally bear upon the assessment of whether it is fair and reasonable in all the circumstances to make the order.[47]

The nature and history of the industrial arrangements which apply to the labour hire employer will frequently be relevant to whether it is not fair and reasonable to make a regulated labour hire arrangement order. Section 306E(8)(c) expressly refers to the history of industrial arrangements applying to the regulated host and the employer. A labour hire employer might submit, for example, that it has a long history of orderly and appropriate enterprise bargaining

which has produced fair and appropriate outcomes for employees and that it is not fair and reasonable for a regulated labour hire arrangement order to disrupt the outcome of those bargaining processes. That might well be a relevant matter the Commission must consider in assessing whether it is satisfied it is not fair and reasonable to make an order.[48]

WorkPac submitted that s.3(f) of the FW Act is particularly relevant to the question of whether an order is fair and reasonable in all the circumstances because in this particular application, the making of an order would supplant or displace an existing enterprise agreement, and this is inconsistent with the Commission emphasising enterprise-level collective bargaining.

WorkPac made a similar submission in Goonyella which was rejected by the Full Bench. The Full Bench in that case referred to a number of situations where the Commission is required to facilitate regulation of terms and conditions of employment through instruments which are not single enterprise agreements, for example, when making a workplace determination with respect to matters in dispute between bargaining representatives which are not agreed and making a determination compelling bargaining across a number of enterprises in specified circumstances.[49]

The Full Bench in Goonyella noted that s.306E(8)(c) expressly requires that the Commission have regard to the history of industrial arrangements applying to the regulated host and the employer at least if a submission is made in relation to that matter but did not accept that s.3(f) means that the Commission must be satisfied it is not fair and reasonable to make a labour hire arrangement order which would apply to employees covered by an enterprise agreement made with the labour hire employer unless there are some countervailing circumstances are demonstrated, and stated that this approach would erect a false test. The Full Bench expressed the view that s.306E(2) simply requires the Commission to have regard to any matter in subsection (8) in relation to which submissions have been made (and any other matter the Commission considers relevant) and determine whether it is satisfied it is not fair and reasonable in all the circumstances to make the order.[50]

Further in Bengalla, the Full Bench observed that an ‘emphasis’ on enterprise-level collective bargaining does not suggest that the outcome of bargaining at the enterprise level is to be prioritised without constraint or that other mechanisms for determining conditions of employment are necessarily inconsistent with the object of the FW Act.[51] Where an enterprise agreement has been made that covers a particular type of work undertaken by employees of the regulated host, an order under Part 27A has the effect of protecting the outcome of that enterprise-level bargaining process by preventing the employer from obtaining workers to perform the same kind of work at lower rates of pay through a labour hire employer. Where that is the effect of a regulated labour hire arrangement order, the order protects rather than undermines enterprise-level collective bargaining.[52]

Applying the Full Bench decisions in Goonyella and Bengalla, the mere existence of the WorkPac Agreement and TESA Agreements are not matters which would automatically lead to a finding that it is not fair and reasonable in all the circumstances to make the orders. However, I have had regard to the history of industrial arrangements applying to the Glendell, TESA and WorkPac in my consideration of s.306E(2).

Whether it is not fair and reasonable to make an order to apply to Workpac

Both Glendell and WorkPac made submissions that it it is not fair and reasonable to make the order, having regard matters in subsection (8). I consider these submissions having regard to the evidence below. Some of these submissions and findings also apply to PSW and TESA. I consider whether it is not fair and reasonable to make an order to apply to PSW and TESA later in this decision.

Section 306(8)(a): the pay arrangements that apply to employees of the regulated host and the regulated employees

The host employment instrument is the Glendell Agreement which applies to all employees who are covered by Schedule A of the Award.

Clause 3.2 of the Glendell Agreement states that it applies to Glendell and its employees who are covered by Schedule A of the Award. Schedule A of the Award covers production and engineering employees and has the following five classifications:

Mineworker – Induction Level I
Mineworker – Induction Level 1 is the entry level for a non-trade person who is undertaking the statutory/generic and/or minesite induction and who remains at this level until assessed by the employer to have successfully completed the induction requirements when they then advance to a Mineworker – Training. ($29.73)
Mineworker – Induction Level 2 / Mineworker – Training
Mineworker – Induction Level 2 is the entry level for a certificated tradesperson who is undertaking the statutory/generic and/or minesite induction. The tradesperson after successful completion of the induction phase then becomes a Mineworker – Training at this level.
A Mineworker – Training is an employee who trains in and performs the required tasks under direct supervision. This classification applies to employees until assessed by the employer as meeting the requirements to be classified as a mineworker. ($30.31)

Mineworker
A Mineworker is an employee who is assessed by the employer as competent to perform the required tasks in a variety of operating circumstances and under limited supervision. An employee continues in this classification until assessed for advancement to Mineworker – Advanced. ($32.40)

Conclusion re s.306E(2)

I have considered each of the matters in relation to which submissions have been made by WorkPac and Glendell and other relevant matters. Having regard to these matters, I am not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to WorkPac employees supplied to perform work for Glendell. The only matter which I have found that weighs in favour of a finding that that it is not fair and reasonable in all the circumstances to make the order is the financial impact of the order on WorkPac’s business. However this is outweighed by the fact that employees of WorkPac who perform work at the Mine are paid significantly less than employees of Glendell.

Whether it is not fair and reasonable to make an order to apply to PSW and TESA?

Many of the submissions which PSW and TESA made in the proceedings before me were similar to submissions made by Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) in Bengalla.

Fairness and reasonableness to employees

In relation to fairness and reasonableness to employees, PSW and TESA, like Skilled in Bengalla, submitted that different pay rates between a labour hire employee and a host employee is already addressed enterprise bargaining mechanisms contained in Part 2-4 of the FW Act. The Full Bench in Bengalla did not consider the availability of collective bargaining for regulated employees to engage in with their direct employer as being, in itself, significant in assessing whether it is not fair and reasonable to make an order in a particular case. The Full Bench observed that a regulated labour hire arrangement order is intended to supplement an enterprise agreement that applies to regulated employees and noted in particular, that s.306F(10)(a) provides that an order applies despite a fair work instrument that applies to a regulated employee.[96] I agree with the findings of the Full Bench in Bengalla. I find that the availability of bargaining and the associated facilitative and coercive tools to employees of PSW who work at the Mine is not a matter which weighs in favour of a conclusion that it is not fair and reasonable in all the circumstances to make the order.

Fairness and reasonableness between employees

In relation to fairness and reasonableness between employees, PSW and TESA, like Skilled in Bengalla, submitted that it would be unfair to Glendell employees to make the order because the PSW employees would have the benefit of the rate of pay without the productivity compromises contained in the Glendell Agreement. The Full Bench in Bengalla did not accept that unfairness is caused to Bengalla employees if a regulated labour hire arrangement order is made and noted that there is no evidence any Bengalla employees hold that view. Similarly, in the application before me, there is no evidence that any employees of Glendall believe that the unfairness would be caused to them if a regulated labour hire arrangement is made.

PSW and TESA also made submissions about the different bargaining contexts of the Glendell and TESA Agreements. This is a matter which I am specifically required to have regard to under s.306E(8)(c). I have referred to the history of bargaining arrangements applying to Glendell above. PSW has provided no evidence about the history of bargaining arrangements applying in relation to the TESA Agreement. PSW has pointed to no particular aspects of the industrial arrangements which apply to its employees, or of the history of bargaining in which it has engaged with its employees, which should lead the Commission to be satisfied that it is not fair and reasonable to make the order in its case. As such, there is no evidentiary basis for me to make findings about the context of bargaining for the TESA Agreement, including the work to be performed, the skills to be applied to that work, and the productivity benefits to be exchanged and to make comparisons with bargaining for the Glendell Agreement.

PSW and TESA further submitted that the employees supplied by TESA to Glendell are predominantly new entrants into the black coal mining industry with limited to no experience compared to the workforce employed by Glendell who have higher levels of experience which explains the higher rate of pay for employees covered by the Glendell Agreement.

The TESA Agreement has four classifications, Mineworker Level 1 (‘best described as a cleanskin or inexperienced Mine Worker’), Mineworker Level 2 (‘best described as inexperienced tradesperson, less than 12 months Coal Mining Industry experience’), Mineworker Level 3 (‘best described as an Experienced Mineworker or Tradesperson, greater than 12 months Coal Mining Industry experience, and determined competent to work under limited supervision’), and Mineworker Level 4 (‘The performance of this role may require the employee to supervise the work of other employees. A Mineworker Level 4 employee may be a Leading Hand Tradesperson or supervisor). The payrates range from $28.39 per hour to $33.01 per hour and are below the payrates in the Award so the Award rates now apply. The evidence of PSW and TESA is that TESA currently provides 43 workers to perform work at the Mine and that they are all classified as Mineworker Level 3 under the TESA Agreement which is equivalent to a ‘Mineworker’ under the Award. These employees are referred to as ‘Experienced Operator Level 3’ under the Supply Contract. As noted above, the ‘Mineworker’ classification under the Award is the classification which Glendell identified as corresponding to Mine Operations Employee in the Glendell Agreement. As noted above, there is no evidence to support a finding that the Glendell Agreement fixes a single, higher rate of pay for all employees covered by it, which reflects the higher levels of experience of the workforce employed under it. There is no basis to conclude that the different rates of pay for employees of PSW/TESA and Glendell have been negotiated because of the different levels of skills and experience of their respective workforces.

I find that the matters raised by PSW and TESA in relation to fairness and reasonableness between employees are not matters which weigh in favour of a of a conclusion that it is not fair and reasonable in all the circumstances to make the order.

Fairness and reasonableness to PSW and TESA

In relation to fairness and reasonableness to PSW and TESA, they submitted, like Skilled in Bengalla, that if the order is made, the fruit of the labour hire contract will taken away and that profit that has been earned to date will be absorbed by the increased leave balances. PSW and TESA submitted that the order would overturn the negotiation of TESA Agreement, the productivity exchange underpinning and its most important terms, being the rates of pay. Instead, TESA would be required to pay a rate of pay produced by a bargain which does not reflect TESA’s bargain nor the make-up of its workforce.

The Full Bench in Bengalla accepted that the financial impact of a regulated labour hire arrangement order on a labour hire employer is relevant in assessing whether it is fair and reasonable to make the order.[97] I accept that the making of an order will have a financial impact on PSW and TESA and I have taken this into account. PSW and TESA have provided evidence that if the order is made, TESA’s leave liability in relation to employees working at the Mine will increase by approximately 78.5%. I accept that there is no capacity in the contract to recover these increased leave liabilities and I have had regard to this matter. However, like Skilled in Bengalla, PSW and TESA have not provided evidence to the Commission about the size of their operations, their financial position including the value of their contract in relation to the Mine and whether or not the increase in leave liabilities, will cause any financial difficulties to them, or the extent of any such difficulties. It follows that I am unable to make an assessment about the impact of the order on PSW’s and TESA’s financial position and as such I have no basis to conclude that the order will cause a significant financial burden on PSW and TESA.[98]

In relation to the submissions of PSW and TESA that the order would displace the most important term of the TESA Agreement being the rates of pay, I note that the rates of pay appear to have been displaced on or about 1 July 2024, when the rates of pay in the Award exceeded the rates in the Agreement. When the TESA Agreement was initially approved, the pay rate for Mineworker Level 3 was approximately 3% above the Award, however it is now below the Award. As such, it is no longer the case that the payrates can be said to reflect the productivity exchange underpinning the TESA Agreement as submitted by PSW and TESA.

In relation to the submissions of PSW and TESA that the order would overturn the negotiation for the TESA Agreement, and that TESA would be required to pay a rate of pay produced by a bargain which does not reflect TESA’s bargain nor the make-up of its workforce, PSW and TESA have not adduced any evidence about the negotiations for the TESA Agreement or made specific submissions about its terms which point to a conclusion that it is not fair and reasonable in all the circumstances to make the order.

I find that the matters raised by PSW and TESA in relation to fairness and reasonableness to PSW and TESA are not matters which weigh in favour of a conclusion that it is not fair and reasonable in all the circumstances to make the order.

Fairness and reasonableness between employers and between employers and employees

In relation to fairness and reasonableness between employers and between employers and employees, PSW and TESA submitted, like Skilled in Bengalla, that it would not be fair and reasonable to make an order because they and their employees would be denied the right enjoyed by all other employer and employees to enter into enterprise agreements that reflect the relevant skills, productivity benefits and work involved. The Full Bench in Bengalla repeated its earlier observation that it did not regard the mere existence of the collective bargaining regime in Part 2-4 as favouring a conclusion that it is not fair and reasonable to make an order. The Full Bench also said that Skilled had not pointed to particular aspects of the bargaining history concerning its employees, or particular features of the enterprise agreements that have resulted from those bargaining processes, that support a conclusion that it is not fair and reasonable to make an order.[99] I have already noted that PSW and TESA have not adduced any evidence about the negotiations for the TESA Agreement or made specific submissions about its terms which point to a conclusion that it is not fair and reasonable in all the circumstances to make the order.

I find that the matters raised by PSW and TESA in relation to fairness and between employers and between employers and employees are not matters which weigh in favour of a conclusion that it is not fair and reasonable in all the circumstances to make the order.

Finally, in relation to the application for an order to apply to TESA employees, I have also had regard to the submissions made by Glendell. I have addressed those submissions in addressing the application concerning WorkPac above and have also taken those matters into account in assessing whether it is not fair and reasonable to make an order to apply to TESA.

Conclusion re s.306E(2)

I have considered each of the matters in relation to which submissions have been made

by PSW and TESA and Glendell and other relevant matters. Having regard to these matters, I am not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to TESA employees supplied to perform work for Glendell.

Form of the Orders

PSW and TESA submitted that in this proceeding, the order, if made, should specify the work which is ‘all haul truck and water cart employees employed by the employer’. The MEU submitted in response that the evidence established that there are a number of employees of WorkPac and TESA who do more than just drive haul trucks and water carts, and that there is no reason to think there will not be more in the future.[100] The MEU referred me to the decision of Deputy President Slevin in Skilled Workforce Solutions (NSW) Pty Ltd Regulated Labour Hire Arrangement Order[101] in which the Deputy President dealt with a similar submission that the expression ‘haul truck operator’ should be used to describe the regulated employees in the application before him. The Deputy President rejected this submission and found that describing the regulated employees as ‘haul truck operator’ in the order would be a departure from the manner in which the parties and the relevant industrial instruments have described the employees and would also limit the order impermissibly.[102]

The Workpac Agreement specifically refers to haul truck operator. It also refers to ‘water cart’ as an ‘advancement competency’ in an open cart mine, rather than a specific job title or role. Both the Glendell and the TESA Agreements contain no references to haul truck and water cart employees or operators and do not refer to any specific duties or competencies including with respect to haul trucks and water carts. In the Award the relevant classification for employees who perform work at the Mine is Mineworker and ‘truck operation’ is an indicative competency for work in open cut mines.

The Schedule of Hourly Charge rates in the Project Terms between Mt Owen Pty Ltd and PSW has different rates for Mineworker Level 3, Mineworker Level 3 (HD1) and Mineworker Level 3 (HD2).[103] The position description for each of these classifications is as follows:

Mineworker Level 3: Competent Truck Operator (Haulage Truck, Fuel Truck or Water Cart).
Mineworker Level 3 (HD1): Competent Operator on Grader, Dozer, Scraper or Trainer (must perform higher duties on a regular basis.
Mineworker Level 3 (HD2): Competent Operator on Excavator, Shovel or Dragline (Must perform higher duties on a regular basis).[104]

WorkPac provided a rate card which has been agreed with Glencore for the provision of WorkPac employees to the Mt Owen Mine which provided different pay rates and charge rates for the following duties:

Level 1: Dump Truck, Water Truck
Level 2 - Dozer, Grader Scraper
Level 3 - Shovel, Excavator, Dispatch[105]

These agreed rates show that the arrangements between Glendell and each of WorkPac and PSW contemplate that the workers provided by WorkPac and PSW to Glendell are not limited to haul truck and water cart employees.

Further, the submission made by PSW and TESA is similar to a submission made by Skilled in Bengalla that the order in that case refer to ‘production employees.’ In rejecting that submission, the Full Bench in Bengalla noted that the term ‘production employee’ was not used in the Bengalla Agreement and its use would not clarify the application of the order.[106] The Full Bench also found that there was no lack of clarity in the order sought by the MEU.[107]

More recently, the Full Bench in Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine and Applications by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) re: Peak Downs Mine, Saraji Mine and Goonyella Riverside Mine[108] said the following in relation to this issue:

[26] …The substance of the submission advanced by BHP and the OS Parties is that the regulated employees the Commission is able, and required, to specify as being covered by a regulated labour hire arrangement order must be narrowly confined to the particular set of duties undertaken by employees which are subject of evidence in the proceedings, or the precise roles being then undertaken by regulated employees at the time the order is made. That is, in our opinion, to take a too narrow view of the intended operation of s 306E and demands a degree of granularity in the description of the regulated workers which is not required by the provisions.
[27] Section 306E(1)(a) establishes, as a precondition to an order being made, that the Commission must be satisfied that an employer supplies, or will supply, employees to perform work for the regulated host. However, the focus in s 306E(1)(b) then changes to ask whether a covered employment instrument would apply to those employees if the regulated host were to employ the employees to perform work of that kind. The subsection does not ask whether the covered employment instrument would apply to the employees if they were employed to perform the same work but, rather, refers to the same kind of work. In our view, the reference to a “work of a kind” is intended to incorporate a broad description of the kind of work being undertaken rather than a narrow set of specific duties, tasks or responsibilities. That view is supported by s 306D(1) which provides that:
306D References to kinds of work and work performed for a person etc. (1) A reference in this Part to work of a kind includes a reference to work that is substantially of that kind.
…

[28] That is, not only is the focus not on whether the work is precisely the same, but the kind of work need also only be substantially of the same.

Having regard to all of these matters and previous decisions of the Commission, I do not propose to make an order which specifies the work as ‘all haul truck and water cart employees employed by the employer’. There is no reference to haul truck and water cart employees in any of the applicable industrial instruments apart from the WorkPac Agreement. The evidence indicates that there are employees of WorkPac who are performing work for Glendell involving competencies other than haul truck and water cart driving and this is contemplated in the agreed rates between Glendell and each of WorkPac and PSW. Finally, the form of the orders sought by the MEU is these proceedings is consistent with the orders issued by the Full Bench in Bengalla.

I propose to issue the orders sought by the MEU with two amendments. The proposed orders originally referred to employees who perform work at Mt Owen/Glendell Operations however Glendell Mine is not currently operating so the MEU has sought to delete the reference to Glendell Operations from both orders which is not opposed by any of the parties. Further, the MEU accepts that PSW is not an employer of any of the employees who perform work for Glendell so the order sought in respect of PSW and TESA will refer only to TESA.

Conclusion

I am satisfied of the matters in s.306E(1). I am satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A). For the purpose of s.306E(2), I am not satisfied that it is not fair and reasonable in all the circumstances make the orders, having regard to any matters in subsection (8) in relation to which submissions have been made.

In the basis of these findings, I conclude that I am required to make orders under s.306E of the FW Act. The orders will be in the form sought by the MEU with the two amendments outlined above. I will publish the orders separately setting out the matters referred to in s.306E(9). WorkPac and TESA made submissions as to the operative date of the orders. Having regard to those submissions, I propose to make the orders operative from 21 September 2025.

DEPUTY PRESIDENT

Appearances:

Mr P. Boncardo, Counsel for the Applicant
Mr J. Murdoch KC and Mr K. Brotherson, Counsel for Glendell Mining Pty Ltd
Mr J. McLean, Counsel for WorkPac Pty Ltd and WorkPac Mining Pty Ltd
Mr L. Howard, Counsel for TESA Group Pty Ltd and Programmed Skilled Workforce Pty Ltd

Hearing details:

2025
27 and 28 March
In person, Sydney

[1] Statement of Christopher Gerard dated 27 November 2024 (Gerard Statement) [1]-[5], Court Book (CB) 319

[2] Ibid [5], CB 319

[3] Ibid [20], CB 320

[4] Ibid [21]-[23], CB 320-321

[5] Ibid [45], CB 323

[6] Ibid [57], CB 325

[7] Ibid [58], CB 325

[8] Statement of Joel Cribb dated 27 November 2024 (Cribb Statement) [6]-[7], CB 513

[9] Ibid [8]-[9], CB 513

[10] Ibid [11], CB 514

[11] CB 538-539

[12] CB 539

[13] CB 550

[14] CB 554

[15] CB 566

[16] Cribb Statement [12], CB 514

[17] PSW and TESA Outline of Submissions [4], CB 718

[18] Cribb Statement [13], CB 514

[19] Transcript PN 1971

[20] Gerard Statement [56(a)], CB 325

[21] Ibid [59(a)], CB 325

[22] Witness Statement of Cameron Hockaday dated 27 November 2024 (Hockaday Statement) [52], CB 402

[23] Ibid [5], CB 395

[24] Ibid [8], CB 396

[25] Ibid [9], CB 396

[26] [52]-[53], 157-158

[27] Hockaday Statement [54], CB 402-403

[28] [2024] FWCFB 299

[29] [2025] FWCFB 12

[30] [2025] FWCFB 53

[31] [2025] FWCFB 134

[32] [2024] FWCFB 299, [7]-[18]; [2025] FWCFB 12, [16]-[17]; [2025] FWCFB 53, [34]-[41]; [2025] FWCFB 134, [273]-[287]

[33] [2025] FWCFB 53, [43]-[71]

[34] PN1961-PN1962

[35] Bengalla [2025] FWCFB 53 [88]

[36] Ibid [92]

[37] [2024] FWCFB 299 [10]; [2025] FWCFB 12, [16]; [2025] FWCFB 53, [24]

[38] Batchfire [2024] FWCFB 299, [12]

[39] [2024] FWCFB 299, [16]; [2025] FWCFB 53, [78]

[40] Rix’s Creek, FWCFB 12 [50]

[41] [2024] FWCFB 299, [16];

[42] Rix’s Creek [2025] FWCFB 12 at [51]-[52].

[43] [2025] FWCFB 134, [275]-[276]

[44] [2025] FWCFB 53, [86]

[45] [2025] FWCFB 53 [87]; [2025] FWCFB 134, [285]

[46] Ibid, [88]

[47] [2025] FWCFB 134, [274]

[48] [2025] FWCFB 53, [90]

[49] Goonyella [2025] FWCFB 134, [282]

[50] Ibid, [284]

[51] Ibid [91]

[52] Ibid, [92]

[53] Exhibit 22

[54] Transcript PN 1452 – PN 1457

[55] Gerard Statement [68], CB 326

[56] Ibid [69], CB 326

[57] Ibid [70], CB 326-327

[58] Ibid [74], CB 327

[59] Ibid [75], CB 327

[60] Ibid [73], CB 327

[61] Transcript PN 1768

[62] Transcript PN 1782 – PN 1785

[63] Gerard Statement [28], CB 321

[64] Reply Statement of Simon John Clifford dated 9 December 2024 (Clifford Reply Statement) [5], CB 66

[65] Ibid [4], CB 65-66

[66] Goonyella [2025] FWCFB 134, [286]

[67] Witness Statement of Jeremy McWilliams dated 9 December 2024 (Mc Williams Statement) [20], CB 283; Hockaday Statement [49], CB 402

[68] Exhibit 22; Transcript PN 1619

[69] Transcript PN 1622 – PN 1623

[70] Transcript PN 1624

[71] Transcript PN 1670

[72] [71] 327

[73] Ibid

[74] [72] 327

[75] McWilliams Statement [21], CB 284

[76] Ibid

[77] Transcript PN 1671-PN 1673

[78] Transcript PN 1677 – PN 1678

[79] Clifford Reply Statement [6], CB 66

[80] Hockaday Statement [41], CB 400

[81] Ibid[42]-[43], CB 401

[82] Ibid [44], CB 401

[83] Ibid [50], CB 402

[84] Ibid [51], CB 402

[85] Goonyella [2025] FWCFB 134, [304]

[86] Ibid [299]

[87] Hockaday Statement [47], CB 401

[88] Hockaday Supplementary Statement [17]

[89] Goonyella [2025] FWCFB 134, [306]

[90] Ibid,[308]

[91] Hockaday Statement [58(f)], CB 404

[92] Ibid [59], CB 405

[93] Hockaday Supplementary Statement [28]

[94] Ibid [30]-[31]

[95] Ibid [10]

[96] Bengalla [118]

[97] Bengalla [123]

[98] Ibid [123]

[99] Ibid [124]

[100] Transcript PN2273

[101] [2025] FWC 866

[102] Ibid, [54]

[103] CB 705

[104] CB 706

[105] Hockaday supplementary statement CH-3

[106] Bengalla [135]

[107] Ibid

[108] [2025] FWCFB 188

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