Application by United Workers' Union re H&M
[2025] FWC 2320
•8 AUGUST 2025
| [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 Innovative);
oare allocated duties by H&M employees and are required to comply with H&M’s instructions or directions;
oare required to follow H&M’s policies and procedures;
outilise H&M’s equipment, including personal protective equipment;
otake breaks at H&M’s direction;
ohave access to the same rooms as H&M employees, including lunch rooms and toilets;
ogenerally, work the same rostered shifts as H&M employees;
oreceive the same induction and work health and safety protocol upon commencement at the Site as employees of H&M; and
odo not perform work for H&M that can be said to be specialist or expert in nature.
Consideration
In Application by the Mining and Energy Union,[3] a Full Bench of the Commission outlined a number of principles concerning the proper interpretation and application of s 306E.[4] I apply, but do not repeat, the principles stated in that decision.
The parties agree, and 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 H&M, Staff Australia, Ezi Recruitment and Innovative employed to perform storage services and warehousing at the Site. 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).
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)Staff Australia, Ezi Recruitment and Innovative provide their employees to perform storage services and warehousing work for H&M at the Site.
(b)The Agreement would apply to Staff Australia’s, Ezi Recruitment’s and Innovative’s employees who perform work for H&M at the Site if H&M were to employ these employees directly to undertake the same kind of work.
(c)H&M is not a small business employer.
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 Staff Australia, Ezi Recruitment and Innovative are involved in matters relating to the regulated employees’ performance of work at the Site.
(b)Rather, the evidence demonstrates that H&M directs, supervises, controls and assigns work to employees of Staff Australia, Ezi Recruitment and Innovative at the Site.
(c)The regulated employees receive the same induction and training as direct H&M employees from H&M employees and work within H&M’s policies and procedures at the Site. They operate equipment belonging to H&M.
(d)There is no evidence that Staff Australia, Ezi Recruitment and Innovative are or will be subject to industry or professional standards or responsibilities in relation to the work of their respective employees supplied to H&M.
(e)The work undertaken by the regulated employees at the Site involves the operation of equipment within H&M’s systems, but does not involve work of a specialist or professional nature.
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.
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, 8 August 2025, consistent with s 306E(9)(e)(ii).
PRESIDENT
[1] AE520210.
[2] MA000084.
[3] [2024] FWCFB 299, 333 IR 249.
[4] Ibid [8]–[17].
Printed by authority of the Commonwealth Government Printer
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