Application by the United Workers' Union re DB Schenker - [2025] FWC 1808

[2025] FWC 1808

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by the United Workers' Union re DB Schenker

(LH2025/28)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 25 JUNE 2025

Application for a regulated labour hire arrangement order in respect of Zoom Recruitment Pty Ltd in relation to work performed for Schenker Australia Pty Ltd t/a DB Schenker.

The United Workers’ Union (UWU) has applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Schenker Australia Pty Ltd t/a DB Schenker (Schenker) as the regulated host, and Zoom Recruitment Pty Ltd (Zoom) as the labour hire employer. The relevant employees are employees who perform warehousing and logistics work at the contract logistics facility operated by Schenker (site) in the State of Queensland. The host employment instrument is the Schenker Australia Pty Ltd Queensland Distribution Centre Enterprise Agreement 2024 (Agreement).[1]

In its application, the UWU outlines that Zoom supplies employees to perform work at the site, and that the work performed is wholly for the benefit of Schenker. The work performed is described by the UWU as follows:

1.The relevant employees of Zoom perform warehousing and logistics work including, but not limited to, picking, packing, receiving and dispatching orders to customers, loading trucks, and forklift operations.
2.The work performed by Regulated Employees for Schenker:
a. Would, if performed by employees of Schenker, be work to which the Agreement would apply; and
b. Is not different, in any substantial way, to work which is also performed by employees of Schenker.

The application further explains how the performance of work by the employees is for the supply of labour and is not and will not be for the provision of a service as follows:

1.The work performed by Regulated Employees:
a.     is performed using the systems, plant and structures of Schenker;
b.     is directed and controlled by Schenker and its officers and employees; and
c.     is not specialist or expert work that is typically performed by a person involved in the provision of a service.
2.There are no professional or industry standards which apply to the Regulated Employees which would weigh in favour of a finding that the Regulated Employees are involved in the provision of a service.

Schenker and Zoom have each filed a Form F86A response in which they have indicated that they do not oppose the application. However, both respondents have brought the same issue for the Commission to consider, which is for the order to take effect on a Monday and at least 1 week from the publication of the order to accommodate system changes for payroll and invoice purposes.

Schenker and Zoom appeared at the directions hearing held on 4 June 2025, during which they each confirmed that they do not contest any of the factual assertions set out in the UWU’s originating application. At this hearing,…

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.

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Details

Case: [2025] FWC 1808
Decision Date: 25 JUNE 2025

CaseChat Overview and Summary

In this matter, the United Workers' Union (UWU) applied to the Fair Work Commission (FWC) for a regulated labour hire arrangement order in respect of Zoom Recruitment Pty Ltd in relation to work performed for DB Schenker. The employees in question perform warehousing and logistics work at a Queensland facility operated by DB Schenker. The UWU seeks to have the employees covered by the Schenker Australia Pty Ltd Queensland Distribution Centre Enterprise Agreement 2024 (Agreement). DB Schenker and Zoom Recruitment Pty Ltd did not oppose the application but requested that the order take effect on a Monday and at least one week after publication to allow for system changes related to payroll and invoicing.

The legal issues before the FWC were whether the UWU was entitled to represent the employees' interests, whether the statutory requirements for a regulated labour hire arrangement order were met, and whether it was fair and reasonable to grant the order. The FWC found that the UWU was entitled to apply for the order, that the requirements for the order were satisfied, and that it was fair and reasonable to grant the order. The FWC determined that the employees supplied by Zoom perform the same work as DB Schenker's direct employees, that the work is not of a specialist or expert nature, and that it is for the supply of labour rather than the provision of a service.

The FWC determined that the UWU was entitled to represent the employees' interests and apply for the order, as the employees perform work that would be covered by the Agreement if they were directly employed by DB Schenker. The FWC also found that the statutory requirements for a regulated labour hire arrangement order were met, as Zoom supplies the employees, the Agreement would apply to them if they were directly employed by DB Schenker, and DB Schenker is not a small business employer. The FWC was satisfied that the employees perform work that is not of a specialist or expert nature and that it is for the supply of labour rather than the provision of a service. The FWC did not need to consider the matters listed in s 306E(8) of the Fair Work Act 2009 (Cth) as no submissions were made in relation to those matters. Accordingly, the FWC was required to make the regulated labour hire arrangement order sought by the UWU.

The FWC made the regulated labour hire arrangement order sought by the UWU, effective from 7 July 2025. The order will cover the employees supplied by Zoom Recruitment Pty Ltd to DB Schenker and will ensure that they are entitled to the same terms and conditions as DB Schenker's direct employees under the Agreement. The FWC's decision was based on the findings that the UWU was entitled to apply for the order, that the statutory requirements were met, and that it was fair and reasonable to grant the order. The order will provide the employees with the protections and benefits of the Agreement, ensuring that they are not disadvantaged by their employment through a labour hire arrangement.

Orders