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.

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]

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

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.

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.

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…

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 1804
Decision Date: 25 JUNE 2025

CaseChat Overview and Summary

The United Workers' Union (UWU) has applied under s 306E of the Fair Work Act 2009 (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 application concerns casual employees who perform work for Ingram Micro at the worksite in Eastern Creek in New South Wales. The UWU argues that the work performed by the employees falls within the classifications in Schedule A of the Ingram Micro Pty Ltd Logistics Enterprise Agreement 2024 (Agreement) and contends that the work is not for the provision of a service within the meaning of s 306E(1A) of the FW Act.

The legal issues the court had to decide were whether the UWU was entitled to represent the industrial interests of the employees and whether the conditions for a regulated labour hire arrangement order were met. The court examined the application and the Agreed Statement of Facts, considering whether Trojan supplies its employees to perform work for Ingram Micro, whether the Agreement would apply to the regulated employees if they were directly employed by Ingram Micro, and whether the performance of work by the regulated employees is not for the provision of a service. The court found that the UWU was entitled to represent the employees and that the conditions for the order were met.

In its decision, the court found that the UWU was entitled to apply for a regulated labour hire arrangement order. It was satisfied that the UWU was entitled to represent the industrial interests of the employees and that the requirements of s 306E(1) of the FW Act were satisfied. The court found that the regulated employees were supplied to perform work for Ingram Micro at the site and that the Agreement would apply to them if they were directly employed by Ingram Micro. The court also found that the performance of work by the regulated employees was not for the provision of a service. The court was not satisfied that it was not fair and reasonable in all the circumstances to make the regulated labour hire arrangement order as sought by the UWU. In the circumstances, the court was required by s 306E of the FW Act to make the order. The operative date of the order will be 7 July 2025, as agreed by the parties.

Orders