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.

1. 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]

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.

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

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. 

1. 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.

1. 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, the parties agreed to an operative date of 7 July 2025 for the order. I directed the parties to jointly file an Agreed Statement of Facts, which was subsequently filed on 19 June 2025.

1. On the basis of the material in the application, the Form F86A responses and the Agreed Statement of Facts, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings.

1. First, I am satisfied that the UWU is entitled to represent the industrial interests of the employees supplied by Zoom to Schenker and therefore entitled to apply to a regulated labour hire arrangement order under s 306E(7)(c). I am likewise satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied in order to enliven the obligation to make a regulated labour hire arrangement order, are met in that:

(a)Zoom supplies the relevant employees to perform work at the site.

(b)The Agreement would apply to the regulated employees if they were directly employed by Schenker to perform work at the site. The employees perform the same warehouse and logistics work, and associated administrative work, as employees of Schenker who are covered by the Agreement, and work alongside them.

(c)Schenker is not a small business employer.

1. I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by the regulated employees is not and will not be for the provision of a service, rather than the supply of labour. In forming this view, I have had regard to the matters set out in sub-s (7A) — in particular, that:

·Schenker allocates the duties of the employees and instructs and directs them in the performance of their work.

·Schenker provides all the necessary training, facilities and equipment required for the employees to complete their work.

·The employees are required to comply with Schenker’s policies, procedures and code of conduct at the site.

·Schenker, not Zoom, rosters the shifts of the employees, and the employees are generally rostered to work the same shifts as employees of Schenker.

·Schenker provides the regulated employees with an induction to the site and for work health and safety.

·The employees perform work that is the same as that performed by Schenker’s direct employees at the site. It is not of a specialist or expert nature.

1. In relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the UWU. Section 306E(2) requires the Commission to have regard to the matters listed in sub-s (8) in relation to which submissions have been made. In this case, no submissions were made in relation to any of the matters listed in sub-s (8). Accordingly, I am not required to have regard to those matters.

1. In the circumstances set out above, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the UWU. I will publish the order together with this decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 7 July 2025, as agreed by the parties and consistent with s 306E(9)(e)(ii).

PRESIDENT

Appearances:

S Gill, with C Dundon, for the United Workers’ Union.
A Ermer, with M Grozdanovski Giakalis and N Webb, for Zoom Recruitment Pty Ltd.
K Khan, with S Weedon, for Schenker Australia Pty Ltd t/a DB Schenker.

Hearing details:

2025.

Sydney, via video using Microsoft Teams (initial directions):
4 June.

[1] AE527918.

[2]  [2024] FWCFB 299, 333 IR 249.

Printed by authority of the Commonwealth Government Printer

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