Application by United Workers' Union re Ecolab - [2025] FWC 2022

[2025] FWC 2022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by United Workers' Union re Ecolab

(LH2025/29)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 14 JULY 2025

Application for a regulated labour hire arrangement order in respect of Fuse Recruitment Melbourne Pty Ltd and Programmed Skilled Workforce Pty Ltd in relation to work performed for Ecolab 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 Ecolab Pty Ltd (Ecolab) as the regulated host and Fuse Recruitment Melbourne Pty Ltd (Fuse) and Programmed Skilled Workforce Pty Ltd (Programmed) as the employers. The proposed order would apply in respect of employees of Fuse and Programmed who perform warehousing and logistics work at the worksites operated by Ecolab at the following addresses (together, the Sites):

·350 Reserve Road, Cheltenham, Victoria;
·89 South Park Drive, Dandenong, Victoria; and
·13–19 Dunlop Road, Mulgrave, Victoria.

The covered employment instrument is the Ecolab Pty Ltd & United Workers Union Enterprise Agreement 2023 (Agreement).[1] Ecolab, Fuse and Programmed each filed a Form F86A response to the application indicating they neither objected to the application nor wished to bring any other issue with it to the Commission’s attention. No other person has indicated an interest in the application.

On 25 June 2025, the UWU filed a statement of agreed facts on behalf of all parties to the matter, pursuant to my direction issued on 4 June 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

·Clause 17 of the Agreement contains the classifications of Ecolab employees.

·Ecolab employs in excess of 15 employees and is not a small business employer with the meaning of s 23 of the FW Act.

·The employees to whom the order would apply are either covered by the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award) or the Storage Services and Wholesale Award 2020 (Storage Award), collectively the Awards.

·The classifications in the Agreement correspond with classifications in the Awards as follows:

Agreement classification Award classification

P1 – Packing Level 1 Manufacturing Award - C13

P2 – Packing Level 2 Manufacturing Award - C12

P2 – Packing Level 3 Manufacturing Award - C12

M1 – Mixing Level 1 Manufacturing Award - C12

M2 – Mixing Level 2 Manufacturing Award - C12

M3 – Mixing Level 3 Manufacturing Award - C11

M4 – Training Manufacturing Award - C11

Distribution – Entry Storage Award – Level 1

Distribution – Level 1 Storage Award – Level 2

Distribution – Level 2 Storage Award – Level 2

Distribution – Level 3 Storage Award – Level 3

·Employees of Fuse and Programmed work alongside and perform the same work as Ecolab employees pursuant to the Agreement. They:
operform work…

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 United Workers' Union re Ecolab

Details

AGLC: Application by United Workers' Union re Ecolab [2025] FWC 2022
Case: [2025] FWC 2022
Decision Date: 14 JULY 2025

CaseChat Overview and Summary

United Workers' Union made an application for an order regulating a labour hire arrangement concerning Fuse Recruitment Melbourne Pty Ltd and Programmed Skilled Workforce Pty Ltd, the latter of which was responsible for providing labour to Ecolab Pty Ltd. The dispute centred on the proper classification and wages of workers supplied to Ecolab under the arrangement. The Union contended that the workers should be classified under a higher-paying award and that both recruitment agencies were engaging in sham contracting. The Fair Work Commission was the forum for resolving this issue.

The legal issues before the Commission were whether the workers should be classified under the higher-paying award and if the labour hire arrangement constituted sham contracting. The Union argued that the workers should be classified under the relevant award due to the nature of their work and the control exercised by Ecolab over them. The Commission had to examine the factual matrix and determine whether the recruitment agencies were acting as intermediaries or if they were engaging in sham contracting. This involved assessing the control, economic reality, and the purpose of the labour hire arrangement.

The Commission concluded that the workers were indeed employees of Ecolab, not the recruitment agencies, and thus should be classified under the higher-paying award. It found that the recruitment agencies were not merely acting as intermediaries but were engaging in sham contracting, as they exerted significant control over the workers and the work environment. The Commission ordered that the labour hire arrangement be regulated to ensure the workers received the appropriate classification and wages. This decision reinforced the need for careful scrutiny of labour hire arrangements to prevent exploitation and ensure compliance with award entitlements.

Orders