Application by the United Workers' Union re Ingram Micro Logistics

[2025] FWC 1804

[2025] FWC 1804

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by the United Workers' Union re Ingram Micro Logistics

(LH2025/17)

JUSTICE HATCHER, PRESIDENT SYDNEY, 25 JUNE 2025

Application for a regulated labour hire arrangement order in respect of Trojan Recruitment Group Pty Ltd in relation to work performed for Ingram Micro Pty Ltd.

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 Ingram Micro Pty Ltd (Ingram Micro) as the regulated host, and Trojan Recruitment Group Pty Ltd (Trojan) as the labour hire employer. The relevant employees are casual employees who perform work for Ingram Micro at the worksite in Eastern Creek in the State of New South Wales (site). The host employment instrument is the Ingram Micro Pty Ltd Logistics Enterprise Agreement 2024 (Agreement).[1]

1. In its application, the UWU contends that Trojan has provided the labour of the regulated employees to Ingram Micro at the site since 2019 and that Ingram Micro intends to continue this arrangement. The UWU states that the work performed by the employees falls within the following classifications in Schedule A of the Agreement:

·Canteen Associate Grades 1 – 2

·Clerical Associate Grades 1 – 4

·Stores Associate Grades 1 – 4

·Technical Associate Grades 1 – 4

1. The UWU further submits in its application that the work performed by the regulated employees for Ingram Micro does not involve the provision of a service within the meaning of s 306E(1A) of the FW Act because:

·Ingram Micro provides the employees with orientation and training;

·Ingram Micro assigns work to the employees;

·Ingram Micro supervises and manages the work of the employees;

·Ingram Micro provides all the equipment required for the employees to work on the site, other than high vis personal protective equipment, which is supplied by Trojan;

·Ingram Micro requires the employees to adhere to the same standards and conditions as their directly hired employees; and

·The work is not of a specialist nature.

1. Ingram Micro and Trojan have each filed a Form F86A response to the UWU’s application. Neither opposed the application. Trojan’s response noted, however, the following issues:

·It is not known to Trojan whether it would be fair and reasonable to make the order but there is no objection in principle.

·Trojan had been in discussion with Ingram Micro regarding how to accommodate and implement the order, and an agreement would be necessary between the two to ensure that the employees would in fact be better off.

·The Commission should consider that the months leading to the Christmas season require an increase in the short-term supply of additional labour. 

1. Ingram Micro’s response also noted that it is not known whether it would be fair and reasonable to make the order sought by the UWU pending discussions with Trojan. It also raised an issue for the Commission to consider pertaining to the classifications and grades of the regulated employees.

1. However, in a report-back email to my Chambers on 9 May 2025, the UWU confirmed, after conferring with Trojan and Ingram Micro, that the respondents ‘do not intend to raise any objections to UWU’s application.’ As a result, the parties were directed to jointly file an Agreed Statement of Facts. This was filed in accordance with the direction on 5 June 2025.

1. No other party has indicated an interest in the application.

1. On the basis of the material contained in the application 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 Trojan to Ingram Micro and therefore entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c).

1. Second, I am 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)Trojan supplies its employees to perform work for Ingram Micro at the site.

(b)The Agreement would apply to the regulated employees if they were directly employed by Ingram Micro to perform work. The work of the regulated employees falls within the classifications in Schedule A of the Agreement.

(c)Ingram Micro is not a small business employer.

1. Third, 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:

·Trojan has limited involvement in matters relating to the performance of the employees’ work.

·Ingram Micro allocates duties to the regulated employees and manages and supervises the performance of those duties.

·The regulated employees are required to comply with Ingram Micro’s directions and instructions.

·The regulated employees are required to comply with the policies and procedures of Ingram Micro at the site.

·Ingram Micro, not Trojan, provides the instructions, equipment, training and facilities for the employees to perform their work.

·The regulated employees receive the same induction and work health and safety protocols as Ingram Micro’s employees when commencing work at the site.

·The regulated employees do not perform work for Ingram Micro that can be considered specialist or expert in 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:

A van Gent for the United Workers’ Union.
C Oliver, with R Lee, A Kumar and C Sophan, for Ingram Micro Pty Ltd.
S Hooper, with J Watson, for Trojan Recruitment Group Pty Ltd.

Hearing details:

2025.

Sydney, via video using Microsoft teams (initial mention and directions):
29 April.

[1] AE526784.

[2]  [2024] FWCFB 299, 333 IR 249.

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