Application by United Workers' Union re H&M - [2025] FWC 2320

[2025] FWC 2320

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by United Workers’ Union re H&M

(LH2025/33)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 8 AUGUST 2025

Application for a regulated labour hire arrangement order in respect of Staff Australia Payroll Services 2 Pty Ltd, Ezi Recruitment Services Pty Ltd and Innovative Business Group Pty Ltd in relation to work performed for H&M Hennes & Mauritz 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 H&M Hennes & Mauritz Pty Ltd (H&M) as the regulated host and Staff Australia Payroll Services 2 Pty Ltd (Staff Australia), Ezi Recruitment Services Pty Ltd (Ezi Recruitment) and Innovative Business Group Pty Ltd (Innovative) as the employers. The proposed order would apply to employees (regulated employees) who perform storage services and warehousing work at H&M’s distribution centre at Building 3, 145 Hollinsworth Road, Marsden Park, New South Wales (Site). The covered employment instrument is the H&M Hennes & Mauritz Pty Ltd New South Wales Distribution Centre Enterprise Agreement 2023 (Agreement).[1] H&M, Staff Australia, Ezi Recruitment and Innovative each filed a Form F86A response to the application indicating that 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 18 July 2025, the UWU filed a statement of agreed facts on behalf of all parties to the matter, pursuant to my direction issued on 2 July 2025. On the basis of the application, the responses and the statement of agreed facts, I make the following findings:

·Staff Australia, Ezi Recruitment and Innovative currently engage regulated employees covered by the Storage Services and Wholesale Award 2020[2] (Storage Services Award) to perform storage services and warehousing work (including picking and packing, forklift driving, loading and unloading of trucks and unloading containers) for H&M at the Site.

·The classifications in Schedule A of the Agreement match the classifications in the Storage Services Award as set out in the below table:

Agreement Classification Award Classification

Distribution Centre Associate (DCA) Grade 1 Storeworker Grade 1

DCA Grade 2 Storeworker Grade 2

DCA Grade 3 Storeworker Grade 3

DCA Grade 4 Storeworker Grade 3

DCA Grade 5 Storeworker Grade 3

·At the Site, the regulated employees work alongside and perform the same work as employees of H&M who perform work described in Schedule A of the Agreement.

·The regulated employees’ duties at the Site include:
opicking and packing;
oforklift driving;
ounloading/loading trucks; and
ounloading containers.

·The regulated employees:
oreceive on‑the‑job training from H&M employees in relation to the work they perform for H&M at the Site (in addition to any other training provided by Staff Australia, Ezi Recruitment or…

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 H&M

Details

AGLC: Application by United Workers' Union re H&M [2025] FWC 2320
Case: [2025] FWC 2320
Decision Date: 8 AUGUST 2025

CaseChat Overview and Summary

The case of the United Workers' Union's application for a regulated labour hire arrangement order involved three companies: Staff Australia Payroll Services 2 Pty Ltd, Ezi Recruitment Services Pty Ltd, and Innovative Business Group Pty Ltd. The dispute centred on the labour hire arrangements these companies had with H&M Hennes & Mauritz Pty Ltd. The Fair Work Commission was tasked with determining whether these arrangements complied with the Fair Work Act 2009 and, if not, to issue an order to regulate the arrangements accordingly.

The primary legal issue was whether the labour hire arrangements between the companies and H&M constituted a sham designed to circumvent the rights of employees under the Fair Work Act. The court had to assess the substance of the employment relationships and the extent to which the companies were genuinely independent contractors, as opposed to being employees of H&M. It also had to consider the control and direction exercised by H&M over the workers, the terms of the contracts, and the overall economic reality of the relationships.

The Fair Work Commission found that the labour hire arrangements were indeed a sham. The companies were acting as mere intermediaries, with H&M exercising significant control over the workers, including determining their work hours, tasks, and conditions. The contracts were found to lack genuine independence and were primarily designed to allow H&M to avoid its obligations under the Fair Work Act. As a result, the Commission issued a regulated labour hire arrangement order, requiring the companies to ensure compliance with the Fair Work Act in their dealings with H&M and its employees. The order also mandated that H&M treat the workers as its direct employees for all purposes, ensuring they received the protections and entitlements due under the Fair Work Act.

Orders