Application for a regulated labour hire arrangement order in respect of WorkPac Mining Pty Ltd in relation to work performed for Rix’s Creek Pty Ltd at the Rix’s Creek Mine – Making of some form of regulated labour hire arrangement order not opposed – Submission that order should be limited to employees of labour hire provider who work roster arrangements permissible under the enterprise agreement that applies to the regulated host – Whether Commission has jurisdiction to make an order which applies to employees who work a roster not permitted under the covered employment instrument which applies to a regulated host – “Work of that kind” – Whether it is not fair and reasonable to make a regulated labour hire arrangement order which applies to all WorkPac employees for the purposes of s 306E(2) – Whether the Commission able to consider a matter in s 306E(8) even if no submissions made about it – Commission required to make order that applies to all WorkPac employees – No basis to limit the regulated employees to whom the order applies – Order made.

Introduction

On 11 June 2024, the Mining and Energy Union filed an application for a regulated labour hire arrangement order under s 306E of the Fair Work Act 2009 (Cth) (the Act). The order sought by the MEU would apply to labour hire workers employed by Workpac Mining Pty Ltd (WorkPac) who perform work for Rix’s Creek Pty Ltd (Rix’s Creek) at the Rix’s Creek Mine near Singleton in New South Wales (the Rix’s Creek Mine or the Mine). The host employment instrument is the Rix’s Creek Mine Enterprise Agreement 2021, as varied in 2023 (AE511876) (the Rix’s Creek Agreement).

The MEU filed written submissions and evidence in support of its application on 17 July 2024. On 27 September 2024, WorkPac filed its written submissions and evidence. In its written submissions, WorkPac indicated that it “accepts that a [regulated labour hire arrangement order] can be made”. Impliedly at least, WorkPac accepts that the conditions which require the Commission to make such an order in s 306E are satisfied. However, WorkPac contended in its written submissions, and continues to contend, that the order can and should apply only to those of WorkPac’s employees who work roster arrangements that are permitted under the Rix’s Creek Agreement.

In its submissions, WorkPac suggests that its employees who perform work at Rix’s Creek Mine can be categorised in two groups. The first group work Monday to Friday on an 8 hour and 10-minute roster pattern which is contemplated by clause 7.1 of the Rix’s Creek Agreement. It does not object to an order being made covering the first group who perform…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by the Mining and Energy Union re Rix's Creek

Details

AGLC: Application by the Mining and Energy Union re Rix's Creek [2025] FWCFB 12
Case: [2025] FWCFB 12
Decision Date: 17 JANUARY 2025

CaseChat Overview and Summary

The Mining and Energy Union (MEU) filed an application for a regulated labour hire arrangement order under the Fair Work Act 2009 (Cth) against WorkPac Mining Pty Ltd (WorkPac), concerning employees supplied to perform work at the Rix’s Creek Mine. WorkPac argued that the order should not apply to employees working roster arrangements not permitted by the Rix’s Creek Mine Enterprise Agreement 2021 (Rix’s Creek Agreement). The Fair Work Commission (FWC) was required to determine whether it had jurisdiction to make an order covering all WorkPac employees and whether it was fair and reasonable to do so.

The FWC found that the Rix’s Creek Agreement would apply to WorkPac employees performing the same work as Rix’s Creek employees, irrespective of their roster arrangements. Therefore, there was no jurisdictional impediment to making an order covering all WorkPac employees. Additionally, the FWC was not satisfied that it was not fair and reasonable to make an order covering all WorkPac employees. The Commission rejected WorkPac's arguments that it would be unfair to disturb the agreement between WorkPac and its employees or that there was no basis to calculate the protected rate of pay for employees not working under permitted rosters.

The FWC concluded that it was required to make a regulated labour hire arrangement order as sought by the MEU, applying to all WorkPac employees performing work at the Rix’s Creek Mine. The order will be published by the FWC, setting out the specified matters, and will come into force on the day it is made.

Orders