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.

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 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.

1. 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.

1. 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 described in the Packing, Mixing, and Distribution classifications in clause 17 of the Agreement;

oreceive on-the-job training from Ecolab officers and employees;

oare allocated duties by Ecolab officers and employees and are required to comply with Ecolab’s instructions or directions;

oare required to follow Ecolab’s policies and procedures;

outilise Ecolab’s equipment, including but not limited to forklifts, wrapping machines, weighing machines, RF scanner guns, and computers;

oat Ecolab’s direction, take breaks per the Agreement;

oaccess the same rooms as Ecolab’s employees, including lunch rooms and toilets;

oare generally rostered to work the same rostered shifts as Ecolab employees;

oreceive the same induction to the Sites and work health and safety protocol upon commencement as Ecolab employees;

oattend team toolbox meetings with Ecolab employees;

oare expected to follow Ecolab’s code of conduct; and

odo not perform duties that can be said to be specialist or expert in nature.

Consideration

1. In Application by the Mining and Energy Union[2], a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[3] I apply, but do not repeat, the principles stated in that decision.

1. I am satisfied, for the purposes of s 306E(7) of the FW Act, that the UWU is an organisation entitled to represent the industrial interests of employees of Ecolab, Fuse and Programmed employed to perform warehousing and logistics work at the Sites. Accordingly, the UWU is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation of s 306E(7)(c).

1. 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. Specifically, on the evidence before me, I am satisfied that:

(a)Fuse and Programmed provide their employees to perform work for Ecolab at the Sites.

(b)The Agreement would apply to Fuse employees and Programmed employees who perform work for Ecolab at the Sites if Ecolab were to employ these employees directly to undertake the same kind of work.

(c)Ecolab is not a small business employer.

1. For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work 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 subsection (7A). In relation to the matters set out in s 306E(7A), I make the following findings:

(a)There is no evidence that Fuse or Programmed is involved in matters relating to their employees’ performance of work at the Sites.

(b)Rather, the evidence demonstrates that Ecolab, and not Fuse or Programmed, directs, supervises and controls the work of employees of Fuse and Programmed at the Sites.

(c)Fuse and Programmed employees work alongside Ecolab employees under the same rosters, policies, procedures, work health and safety protocol and code of conduct at the Sites. They operate Ecolab equipment and use Ecolab employee facilities.

(d)There is no evidence that Fuse or Programmed are or will be subject to industry or professional standards or responsibilities in relation to the work of their employees supplied to Ecolab.

(e)The work undertaken by Fuse and Programmed employees at the Sites involves the operation of equipment within Ecolab’s systems, but does not involve work of a specialist or professional nature.

1. Having regard to the considerations referred to in s 306E(7A) of the FW Act, it is clear that the performance of work by Fuse and Programmed employees supplied to Ecolab at the Sites is not and will not be for the provision of a service, rather than the supply of labour. I am satisfied that Fuse and Programmed both supply labour to Ecolab.

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 subsection (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 subsection (8). Accordingly, I am not required to have regard to those matters.

1. In those circumstances, 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 today, 14 July 2025, consistent with s 306E(9)(e)(ii).

PRESIDENT

Appearances:

L McDonald for the United Workers’ Union.
M Kennedy for Fuse Recruitment Melbourne Pty Ltd.
K Cameron for Programmed Skilled Workforce Pty Ltd.
B Dearing, solicitor, and M De Best for Ecolab Pty Ltd.

Hearing details:

2025.

Sydney by video link using Microsoft Teams (directions):
4 June.

[1]  AE526160.

[2]  [2024] FWCFB 299, 333 IR 249.

[3] Ibid [8]–[17].

Printed by authority of the Commonwealth Government Printer

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