Application by United Workers' Union re the Asahi Albury/Wodonga Site

[2024] FWC 3577

[2024] FWC 3577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Application by United Workers’ Union re the Asahi Albury/Wodonga Site

(LH2024/52)

JUSTICE HATCHER, PRESIDENT SYDNEY, 23 DECEMBER 2024

Application for a regulated labour hire arrangement order in respect of Drake Australia Pty Ltd and Staffpower Pty Ltd in relation to work performed for Asahi Beverages 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 Asahi Beverages Pty Ltd (Asahi) as the regulated host and Drake Australia Pty Ltd (Drake) and Staffpower Pty Ltd (Staffpower) as the employers. The regulated employees of Drake and Staffpower perform production and distribution work for Asahi at its Albury/Wodonga site (Site). The host employment instrument is the Asahi Beverages Albury Enterprise Agreement 2023 (Agreement).[1]

1. In its application, the UWU contends that Drake and Staffpower have provided the labour of the regulated employees to Asahi at the Site for 11 years and 3 years respectively and that Asahi intends to continue this arrangement. The production work performed by the regulated employees is in the roles described in the Level 1 and 2 classifications in Table 1 of Appendix A of the Agreement, and the distribution work is in the Level 1 and 2 roles in Table 2 of Appendix A of the Agreement.

1. The UWU further contends in its application that the work performed by the regulated employees for Asahi does not involve the provision of a service within the meaning of s 306E(1A) of the FW Act because:

• Asahi provides the regulated employees with orientation and training;

• Asahi assumes sole responsibility for the rostering of the regulated employees;

• Asahi assigns work to the regulated employees;

• Asahi supervises and manages the work of the regulated employees;

• Asahi provides the regulated employees with all equipment required to work at the Site, including personal protective equipment;

• Asahi requires the regulated employees to adhere to the same standards and requirements as its directly engaged employees; and

• the regulated employees do not perform work that is of a specialist nature.

1. Asahi, Drake and Staffpower have each filed a Form F86A response to the UWU’s application. None of them takes issue with any of the factual contentions in the UWU’s application and all indicate that they do not oppose the application. No other party has indicated an interest in the application.

1. On the basis of the material contained in the forms filed by the parties, and applying the principles outlined in Application by the Mining and Energy Union,[2] I make the following findings. I am satisfied that the UWU is a registered employee organisation that is entitled to represent the industrial interests of the regulated employees and employees of Asahi at the Site and is thus entitled to apply for a regulated labour hire arrangement order under 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 in that:

(a)It is not in contest that Drake and Staffpower supply their employees to perform work for Asahi at the Site.

(b)The Agreement would apply to the regulated employees if they were employed directly by Asahi to perform production and distribution work at the Site.

(c)Asahi is not a small business employer.

1. I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance of work by the regulated employees 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 sub-s (7A). In particular, having regard to the non-contested contentions of fact in the UWU’s application set out in [3] above, I find that: Drake and Staffpower are not involved in matters relating to the performance of work and do not direct, supervise of control the regulated employees when they perform work; that the regulated employees do not use the plant, systems or structures of Drake or Staffpower in their performance of work; and that the work performed by the regulated employees is not of a specialist or expert nature.

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 sub-s (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 sub-s (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. The order is published together with this decision and it sets out the matters specified in s 306E(9) of the FW Act. The operative date of the order is the date of this decision (23 December 2024), as agreed by the parties and consistent with s 306E(9)(e)(ii).

PRESIDENT

Appearances:

A van Gent for the United Workers’ Union.
D Parncutt for Drake Australia Pty Ltd.
J Hodgkin for Staffpower Pty Ltd.
G D’Costa with K Linsent for Asahi Beverages Pty Ltd.

Hearing details:

2024.

Melbourne, via video using Microsoft Teams:
13 December.

[1] AE520478.

[2] [2024] FWCFB 299, 333 IR 249.

Printed by authority of the Commonwealth Government Printer

<LH200016  PR782772>