Applications by the Australasian Meat Industry Employees Union
[2025] FWC 1903
•11 JULY 2025
| [2025] FWC 1903 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.306E - Application for a regulated labour hire arrangement order
Applications by the Australasian Meat Industry Employees Union
(LH2024/60, LH2024/61, LH2024/62, LH2024/63, LH2024/64, LH2024/65 and LH2024/66)
| Meat Industry | |
| DEPUTY PRESIDENT BUTLER | BRISBANE, 11 JULY 2025 |
Applications for a regulated labour hire arrangement order – work performed for JBS Australia Pty Limited – JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2024 – JBS Australia Pty Limited - Dinmore Enterprise Agreement 2022 – JBS Australia Pty Limited - Townsville Enterprise Agreement 2024 – JBS Australia Pty Limited - Beef City Production Enterprise Agreement 2025
The Australasian Meat Industry Employees Union (“AMIEU”) has made seven applications for regulated labour hire arrangement orders (“RLHA orders”) under section 306E of the Fair Work Act 2009 (Cth) in respect of work performed for JBS Australia Pty Limited (which I have referred to as “the regulated host” or “JBS Australia”) at various sites.
For the reasons that follow I have decided to grant each of the seven applications and make orders accordingly.
Background
These applications relate to meat processing work performed for the regulated host at four sites in Queensland. JBS Australia has a different enterprise agreement for each site. Work is performed for JBS Australia by its own directly-hired employees, and by labour hire workers who are employed by various labour hire companies.
Legislative framework
Part 2-7A of the Act is entitled “Regulated labour hire arrangement orders”. It provides for the Commission to make RLHA orders and sets out the obligations of employers and regulated hosts covered by those orders. Section 306E, a provision in that Part, sets out when the Commission must make an RLHA order. Specifically, the Commission is required to make an order if certain requirements of subsection 306E(1) are met, subject to exclusions in subsections (1A) and (2). If either of those exclusions apply, the Commission must not make the order.
The exclusion in subsection 306E(2) is in issue in these proceedings. That subsection provides that the Commission must not make the order if it is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made. Subsection (8) provides:
306E FWC may make a regulated labour hire arrangement order
(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a regulated labour hire arrangement order) if the FWC is satisfied that:
(a) an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host; and
(b) a covered employment instrument that applies to the regulated host would apply to the employees if the regulated host were to employ the employees to perform work of that kind; and
(c) the regulated host is not a small business employer.
Note: The FWC may make other decisions under this Part which relate to regulated labour hire arrangement orders: see Subdivisions C (short-term arrangements) and D (alternative protected rate of pay orders) of this Division, and Division 3 (dealing with disputes).
(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the performance of the work is not or will not be for the provision of a service, rather than the supply of labour, having regard to the matters in subsection (7A).
(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is not fair and reasonable in all the circumstances to do so, having regard to any matters in subsection (8) in relation to which submissions have been made.
…
(8) For the purposes of subsection (2), the matters are as follows:
(a) the pay arrangements that apply to employees of the regulated host (or related bodies corporate of the regulated host) and the regulated employees, including in relation to:
(i) whether the host employment instrument applies only to a particular class or group of employees; and
(ii) whether, in practice, the host employment instrument has ever applied to an employee at a classification, job level or grade that would be applicable to the regulated employees; and
(iii) the rate of pay that would be payable to the regulated employees if the order were made;
(c) the history of industrial arrangements applying to the regulated host and the employer;
(d) the relationship between the regulated host and the employer, including whether they are related bodies corporate or engaged in a joint venture or common enterprise;
(da) if the performance of the work is or will be wholly or principally for the benefit of a joint venture or common enterprise engaged in by the regulated host and one or more other persons:
(i) the nature of the regulated host’s interests in the joint venture or common enterprise; and
(ii) the pay arrangements that apply to employees of any of the other persons engaged in the joint venture or common enterprise (or related bodies corporate of those other persons);
(e) the terms and nature of the arrangement under which the work will be performed, including:
(i) the period for which the arrangement operates or will operate; and
(ii) the location of the work being performed or to be performed under the arrangement; and
(iii) the industry in which the regulated host and the employer operate; and
(iv) the number of employees of the employer performing work, or who are to perform work, for the regulated host under the arrangement;
(f) any other matter the FWC considers relevant.
There is no sub-paragraph (b) in subsection 306E(8).
The applications
The AMIEU filed each of the initiating applications on 3 December 2024. The applications related to work performed for JBS Australia, by employees of various other companies, at various sites. JBS Australia’s employees were covered by enterprise agreements (each a “regulated host instrument”).
Matter LH2024/60 relates to work performed at the regulated host’s premises at 96 St Christophers Chapel Rd, Nerimbera in the State of Queensland (“JBS Rockhampton”). At that site the relevant regulated host instrument is the JBS Australia Pty Limited – Rockhampton Enterprise Agreement 2024 [AE527286] (“the JBS Rockhampton EA”). The labour hire employer is Labour Solutions Australia Pty Ltd (“Labour Solutions Australia”).
Matters LH2024/61 and 65 relate to work performed at the regulated host’s premises at 1 Lock Way, Riverview in the State of Queensland (“JBS Dinmore”). At that site the relevant regulated host instrument is the JBS Australia Pty Limited - Dinmore Enterprise Agreement 2022 [AE516525] (“the JBS Dinmore EA”). The labour hire employer in matter LH2024/61 is Labour Solutions Australia. The labour hire employer in matter LH2024/65 is Whales Regional Workforce Pty Ltd (“Whales”).
Matters LH2024/62 and 63 relate to work performed at the regulated host’s premises at 37644 Bruce Hwy, Stuart in the State of Queensland (“JBS Townsville”). At that site the relevant regulated host instrument is the JBS Australia Pty Limited – Townsville Enterprise Agreement 2024 [AE527688] (“the JBS Townsville EA”). The labour hire employer in matter LH2024/62 was originally stated to be Task Labour Services Pty Ltd (“Task Labour Services”); the application was subsequently amended to substitute, as the employer respondent, Task Labour Australia Pty Ltd (“Task Labour Australia”). The labour hire employer in matter LH2024/63 is Labour Solutions Australia.
Matters LH2024/64 and 66 relate to work performed at the regulated host’s premises at 1514 Cockburn Rd, Purrawunda in the State of Queensland (“JBS Beef City”). At that site the relevant regulated host instrument is the JBS Australia Pty Limited - Beef City Production Enterprise Agreement 2025 [AE529231] (“the JBS Beef City EA”). In matter LH2024/64, the application originally stated that Task Labour Services was the employer; the application was subsequently amended to replace Task Labour Services with Task Labour Australia. In matter LH2024/66, the labour hire employer is Labour Solutions Australia.
I will refer to JBS Townsville, JBS Rockhampton, JBS Dinmore and JBS Beef City collectively as “the meat processing facilities.” I will refer to Labour Solutions Australia, Task Labour Australia (or Task Labour Services, as context requires), and Whales collectively as “the labour hire companies.”
JBS Australia and the labour hire companies filed Responses to the applications.
Labour Solutions Australia filed its Responses on 20 December 2024, in matters LH2024/60, 61, 63, and 66. It did not object to the orders being made but drew to the Commission’s attention the application of the Pacific Australia Labour Mobility scheme (“the PALM scheme”) to its workforce.
Task Labour Services, which had been named as the employer respondent in matters LH2024/62 and LH2024/64, filed its Responses on 23 December 2024. It filed those Responses in the capacity of “affected person” rather than agreeing that it was an employer of regulated employees. In each it objected on the basis that the employer named in the application did not and would not supply, directly or indirectly, one or more employees to perform work for the Regulated Host. On 29 January 2025, by consent, the applications in LH2024/62 and 64 were amended to substitute Task Labour Australia as the employer respondent.
Whales filed its Response, in matter LH2024/65, on 9 January 2025. It objected on the ground that it would not be fair and reasonable in all the circumstances to make the proposed RLHA order, on the basis of the application of the PALM scheme to its workforce, and also on the basis that all regulated employees “have full access to the Australian legal system to enforce any alleged contravention of the Agreement, the Award, and the Act.”
JBS Australia filed its responses on 23 December 2024. In those Responses it objected to each application, on different grounds, as follows:
(a) in the following matters, on the basis that it would not be fair and reasonable to make the order sought, because of the operation of the PALM scheme:
LH2024/60
LH2024/61
LH2024/63
LH2024/65; and
LH2024/66.
(b) in the following matters, on the basis that it would not be fair and reasonable to make the order sought, because under the applicable industrial instrument at the site, a number of classifications had a minimum rate of pay that were less than the corresponding minima in the Meat Industry Award 2020:
LH2024/60
LH2024/62; and
LH2024/63.
(c) in the following matters, on the basis that the employer named in the application did not and would not supply, directly or indirectly, one or more employees to perform work for the Regulated Host:
LH2024/62; and
LH2024/64.
After the applications in LH2024/62 and 64 were amended to substitute Task Labour Australia as the employer respondent, JBS Australia maintained its objection, in each of those matters, that the employer named in the application did not and would not supply, directly or indirectly, one or more employees to perform work for JBS Australia.
Some of the regulated host instruments came into effect after the applications were filed, so the application had named the relevant previous instrument. The applications variously listed the following instruments that have since been replaced:
· (a) JBS Australia Pty Limited - Rockhampton Enterprise Agreement 2017;
· (b) JBS Australia Pty Limited - Townsville Enterprise Agreement 2019; and
· (c) JBS Australia Pty Limited Beef City Production Enterprise Agreement 2021.
By consent, the various applications were amended to replace references to the enterprise agreements applying at Townsville and Rockhampton with references to the newer enterprise agreements on 29 January 2025. After the hearing in this matter, JBS Australia advised chambers when the new enterprise agreement, to apply at Beef City, was approved. I make commensurate amendments to the relevant applications, to substitute references to the old enterprise agreement with references to the JBS Beef City EA.
The matters were programmed for the parties to file and serve witness statements and outlines of submissions.
I issued an order to produce documents on 23 April 2025.
Labour Solutions Australia confirmed by correspondence of 13 March 2025 and 17 April 2025 that it did not oppose the orders being made. It did not file submissions or witness statements and was excused from attending the hearing.
The seven applications were heard together on 28 April 2025, in Brisbane.
Mr Wilian Sardinha gave evidence for the Applicant. The Applicant also filed witness statements of Mr Warren Earle and Mr Scott Stevens. Mr Earle and Mr Stevens were not required for cross-examination; their witness statements were accepted into the evidence.
Mr Philip Buck gave evidence for JBS Australia. Mr Kevin Schilf gave evidence for Task Labour Australia. Whales had filed a witness statement of Mr Mario Marinelli, but did not call him as a witness or seek to tender his witness statement.
I have considered all of the evidence and submissions in this matter.
It is not in dispute, and I find, that:
(a) JBS Australia operates a meat processing facility at each of JBS Townsville, JBS Rockhampton, JBS Beef City and JBS Dinmore;
(b) JBS Australia employs employees to perform meat processing work at each of those meat processing facilities;
(c) the regulated employees (that is, the employees who are employed by the labour hire companies rather than by JBS Australia) are covered by the Meat Industry Award 2020, though for those covered by the PALM scheme there is an obligation of pay parity with the local enterprise agreement, which I will refer to further below.
Consideration
I am satisfied, for the purposes of subsection 306E(7) of the Fair Work Act, that the AMIEU is an employee organisation that is entitled to represent the industrial interests of the employees of Labour Solutions Australia, Task Labour Australia, or Whales, who are supplied to perform work for JBS Australia at the meat processing facilities alongside employees of JBS Australia employed to perform work at those facilities. Accordingly, the AMIEU is entitled to apply for a regulated labour hire arrangement order under section 306E of the Fair Work Act by operation of subsection 306E(7)(c).
Subsection 306E(1) – not in dispute
The parties are in dispute in relation to whether subsection 306E(1) is satisfied in relation to Task Labour Australia. I will consider that issue shortly. First though, I will deal with subsection 306E(1) in respect of the issues that are not in dispute.
For the purposes of subsection 306E(1) of the Fair Work Act I am satisfied, on the basis of the material filed, and noting these matters are not in dispute, that:
(a) Labour Solutions Australia supplies employees employed by Labour Solutions Australia to perform work for the regulated host at JBS Rockhampton, JBS Dinmore, JBS Townsville, and JBS Beef City involving meat processing work.
(b) Whales supplies employees employed by Whales to perform work for the regulated host at JBS Dinmore involving meat processing work.
(c) The JBS Rockhampton EA would apply to employees of Labour Solutions Australia who are supplied to perform work for the regulated host at JBS Rockhampton, if the regulated host were to employ those employees directly to undertake the same kind of work there.
(d) The JBS Townsville EA would apply to employees of Labour Solutions Australia who are supplied to perform work for the regulated host at JBS Townsville, if the regulated host were to employ those employees directly to undertake the same kind of work there.
(e) The JBS Beef City EA would apply to employees of Labour Solutions Australia who are supplied to perform work for the regulated host at JBS Beef City, if the regulated host were to employ those employees directly to undertake the same kind of work there.
(f) The JBS Dinmore EA would apply to employees of Labour Solutions Australia or Whales who are supplied to perform work for the regulated host at JBS Dinmore, if the regulated host were to employ those employees directly to undertake the same kind of work there.
(g) The regulated host is not a small business employer.
Subsection 306E(1) – Task Labour Australia
As indicated above, the parties are in dispute as to whether Task Labour Australia supplies or will supply employees employed by Task Labour Australia to perform work for the regulated host at JBS Townsville and JBS Beef City involving meat processing work.
The documentary evidence shows the following.
(a) There is a document called the “JBS Australia Supply of Labour Hire Services Standard Terms & Conditions” (“the standard terms”).[1] It forms the basis of a “master agreement” which is formed when its “Details Schedule” is signed by a party called “the Customer,” and a party called “the Supplier.”[2]
(b) There is a signed details schedule in evidence bearing the full title “JBS Australia Master Agreement – supply of labour hire services details schedule Task Labour Australia Pty Ltd” (“the details schedule”). That details schedule is signed by Mr Nathan Buckley for both Task Labour Australia and another entity the name of which is redacted. It is also signed by Donna Griffin for Industry Park Pty Ltd.
(c) On its face, the details schedule relates to supplying labour at JBS Townsville and JBS Beef City; its annexures are heavily redacted, but I infer from the structure that they also refer to other sites.
(d) Accordingly, there is a master agreement in place for the supply of labour by Task Labour Australia to work at JBS Townsville and JBS Beef City, comprised of the standard terms and the details schedule (and its annexures). I will refer to this as “the master agreement.”
(e) The master agreement sets the terms and conditions that have been agreed and are incorporated into any supply agreement between the parties to the master agreement. Those parties enter into supply agreements from time to time.[3] This occurs when labour hire services are required at a given site or sites, of those set out in the details schedule.[4]
(f) The master agreement commenced in April 2024 and runs for two years.[5]
Mr Buck, who gave evidence on behalf of JBS Australia, did not know whether Industry Park Pty Ltd was a subsidiary of JBS Australia, but he confirmed the master agreement related to the supply of labour hire for JBS Australia’s business.
It was not in dispute, and I find, that the master agreement is currently in force.
Mr Buck’s evidence was that the global leadership of JBS Australia’s parent company had given a direction in or around May 2024, that JBS Australia was to gradually reduce and eventually cease reliance on labour hire, by offering direct employment to labour hire workers hosted on each of its sites, subject to the terms of any commercial arrangements with labour hire providers.[6]
Mr Buck said that in February and March 2025 JBS Australia called for expressions of interest from labour hire workers at JBS Townsville and JBS Beef City to be considered for direct employment.[7] And he said JBS Australia would not in future request that new workers be supplied by Task Labour Australia to perform work at JBS Beef City or JBS Townsville.[8]
Mr Schilf, for Task Labour Australia, gave evidence that all workers employed by Task and supplied to JBS at Townsville or Beef City had transferred to direct employment with JBS by 3 March 2025, save for one who ceased employment with Task Labour Australia on 6 March 2025.[9] His evidence about the supply arrangements was that they were often procured by simply sending an email, without a formal supply agreement being signed.
This question of whether Task Labour Australia attracts the operation of subsection 306E(1) essentially turns on the meaning of “supplies or will supply” in that provision. The subsection applies where, inter alia, an employer supplies or will supply, either directly or indirectly, one or more employees of the employer to perform work for a regulated host. The union argues for a construction that reads the word “can” into the relevant provision, i.e., to provide that it applies where an employer will or can supply labour. On the other hand, JBS Australia argues that the phrase “will supply” “connotes something that will occur with some degree of confidence or inevitability,” not a hypothetical ability to supply labour. Task Labour Australia argues that it has ceased providing labour hire services to JBS Australia at JBS Townsville and JBS Beef City.
The provision should be read in context, and with regard to the statutory purpose. The construction of section 306E has been considered by Full Benches of this Commission in Re Mining and Energy Union[2024] FWCFB 299; (2024) 333 IR 249 (“Batchfire”) and Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12. I do not need to recite that consideration in full here, but in relation to paragraph (a) of subsection 306E(1) it is relevant to note that the Full Bench in Batchfire said the following:[10]
“… where a valid application is made, s 306E(1) requires the Commission to make a regulated labour hire arrangement order (notwithstanding the section heading) if it is ‘satisfied’ that the criteria specified in paragraphs (a), (b) and (c) of the subsection are met and neither of the prohibitions (‘must not’) upon the making of such an order in ss 306E(1A) and 306E(2) apply. The anchoring of the requirement to make an order upon the Commission reaching a relevant opinion or state of mind as to the criteria in paragraphs (a), (b) and (c) of s 306E(1) imports a degree of latitude and subjectivity in the evaluation of the three prescribed matters. However, the state of mind reached must be one which could be formed by a reasonable person who correctly understands the meaning of the law under which they are acting, and findings or inferences of fact which found the state of mind must be supported by some probative material or logical grounds.
(citations omitted)
Subsection 306E(1) applies where, inter alia, the employer supplies or will supply labour. I accept that the reference to “will supply” involves some degree of confidence. What does “supplies” mean in the context of this provision? Does it mean that to meet the requirements of the section, the labour hire employer has to be supplying labour at a particular point in time, such as the day of the application (as the union contended in these proceedings), the day of the hearing, or the day on which an RLHA order is made? This construction would lead to potential absurdities given the nature of labour hire, and capacity for avoidance. The simple present tense is used. Phrases using the simple present tense do not tend to necessitate a construction that something is happening at the very instant, but something more general: compare “the sun rises in the East” or “he eats meat” with “the sun is rising in the East” or “he is eating meat.” At the same time the use of “supplies or will supply” must mean something with more currency than “previously supplied” or “has supplied.”
In this case the regulated host and the labour hire employer have an ongoing, current master agreement providing for subsidiary agreements for the supply of labour. I appreciate Mr Buck says that JBS Australia will not in future request that new workers be supplied. I do not consider it necessary to decide whether, as the union argues, JBS Australia’s actions in relation to labour hire workers supplied by Task Labour Australia were motivated by a wish to avoid the regulated labour hire arrangement provisions. It is sufficient to say that Mr Buck’s statement, as to JBS Australia’s intention to refrain from requesting further labour hire workers from Task Labour Australia, has to be considered in light of the ongoing operation of the master agreement. There is nothing to suggest any steps have been taken to vary the master agreement to that effect, or to terminate it. I am satisfied that Task Labour Australia supplies or will supply labour hire workers to JBS Australia and that subsection 306E(1)(a) is met in relation to Task Labour Australia.
Having decided that issue, it is not in dispute, and I also find that:
(a) The JBS Townsville EA would apply to employees of Task Labour Australia who are supplied to perform work for the regulated host at JBS Townsville, if the regulated host were to employ those employees directly to undertake the same kind of work there.
(b) The JBS Beef City EA would apply to employees of Task Labour Australia who are supplied to perform work for the regulated host at JBS Beef City, if the regulated host were to employ those employees directly to undertake the same kind of work there.
Subsection 306E(1A)
For the purposes of subsection 306E(1A) of the Fair Work Act, having regard to the matters set out in subsection (7A), I find the performance of work by the employees supplied by Labour Solutions Australia, Task Labour Australia, or Whales to the regulated host at each of the meat processing facilities is not and will not be for the provision of a service. I find and am satisfied that each of Labour Solutions Australia, Task Labour Australia, and Whales supplies labour to the regulated host.
Subsection 306E(2)
Having made the above findings, I am required, pursuant to subsection 306E(2), to make an RLHA order in respect of each application unless I am satisfied that it would not be fair and reasonable in all the circumstances to do so, having regard to any matters in subsection 306E(8) in relation to which submissions have been made.
Unless the Commission is positively satisfied that it is not fair and reasonable to make an RLHA order, the prohibition does not arise.[11] The matters in subsection 306E(8) are mandatory considerations if a submission is made in that regard; otherwise, the Commission may take account of such matters as part of “all of the circumstances” even if no submission is advanced.[12]
The assessment of whether it would not be fair and reasonable to make the orders must be undertaken having regard to the statutory context in which Part 2-7A of the Fair Work Act appears. That includes the objects of the Fair Work Act, and also the relationship between RLHA orders, collective bargaining, and enterprise agreements. A broad value judgement is required, balancing various interests affected by the order, and having regard to the matters in subsection (8) at least to the extent submissions are made about them.[13]
There is no presumption that it is fair and reasonable to make an order.[14] The fact of the supply of labour, and the arrangements under which employees are supplied, can be considered as part of all of the circumstances. The fact that, and the degree to which, labour hire employees receive a lesser rate of pay compared with the regulated host’s employees is relevant to the “fair and reasonable” assessment.[15]
There is no assumption, by reference to section 3(f) of the Fair Work Act, that it is not fair and reasonable to make the RLHA order sought simply because doing so might affect the operation of an enterprise agreement that applies to the labour hire employer. The significance of the industrial arrangements that apply to the labour hire employer will depend on the circumstances.[16]
Turning now to the applications in these proceedings, I will start with matter LH2024/64, which relates to work performed at JBS Beef City.
JBS Australia and Task Labour Australia objected to an RLHA order being made in matter LH2024/64 only on the basis that subsection 306E(1) was not met, and did not raise any objection on the basis that it would not be fair and reasonable to make the RLHA order. I am not satisfied that it would not be fair and reasonable to make that order, and accordingly, it must be made.
JBS Australia had previously raised an additional objection in relation to LH2024/62. Its objection had been that it would not be fair and reasonable to make the RLHA order because under the applicable industrial instrument at the site, a number of classifications had a minimum rate of pay that were less than the corresponding minima in the Meat Industry Award 2020. This was not pressed in submissions, no doubt because the JBS Townsville EA had been approved. Other than this objection, and the objection as to subsection 306E(1), there were no other objections raised in matter LH2024/62. I am not satisfied that it would not be fair and reasonable to make that order, and accordingly, it must be made.
JBS Australia did not press its objections in matters LH2024/60 and LH2024/63, arising from its argument that rates of pay were less than those prescribed by the Award. It is not necessary for me to consider those objections further.
As stated above, Labour Solutions Australia did not oppose the RLHA orders being made.
Whales did not file any outline of submissions, only a witness statement, which it did not tender. At hearing it indicated it relied on JBS Australia’s submissions. I take it this means it did not press its objection that it would not be fair and reasonable to make the order on the basis that its employees “have full access to the Australian legal system to enforce any alleged contravention of the Agreement, the Award, and the Act.” If that objection were to be pressed, I would not have considered this general proposition to give rise to a finding of a lack of fairness and reasonableness.
The remaining issue for my consideration is whether it would not be fair and reasonable to make the RLHA orders in matters LH2024/60, 61, 63, 65 or 66, having regard to JBS Australia’s objections (and Whales’, in respect of LH2024/65).
The PALM scheme applies to people who are not citizens, and who come to Australia to work under a subclass 403 visa. The Applicant submits that under regulation 1234(3E) of the Migration Regulations 1994 (Cth), an applicant meets the requirements for the relevant visa if they are a worker in the PALM scheme and if they have a sponsor, who is either an employer participating in the scheme, or a “temporary activities sponsor” (someone applying to become one).
It submits that for an employer to participate it has to be approved by the Commonwealth, and that one of the conditions of approval is compliance with the scheme’s “Approved Employer Deed” (“the PALM deed”) and “Approved Employer Guidelines” (“the PALM guidelines”). The PALM deed and the PALM guidelines are in evidence in these proceedings.[17]
The PALM guidelines form part of the PALM deed.[18] According to the terms of the PALM deed, the Commonwealth, via the relevant government department, may vary the PALM guidelines at any time in its absolute discretion.[19] The PALM guidelines provide for minimum pay, and pay parity with a host’s employees.[20] The latter requires labour hire companies that employ people subject to the PALM scheme to pay them the same full rate of pay attached to the relevant classification in the enterprise agreement (or other “Fair Work Instrument”) that would apply to an employee engaged directly by the “Host Organisation” to perform the same type of work at the same work site.[21] The Host Organisation in that scheme is generally equivalent to the regulated host for the purposes of these proceedings.[22]
Under the PALM deed the employer owes obligations to the Commonwealth. If the employer contravenes the PALM deed, the Commonwealth has various remedies available to it under the PALM deed.[23]
The Applicant says that if the RLHA orders are made the workers themselves, individually or as a union, would have standing to enforce the orders. It says workers cannot enforce the PALM deed. No party sought to specifically contradict this point about who would have standing to enforce the PALM deed,[24] but JBS Australia submitted that PALM scheme workers had a contractual right to be paid in parity with the host industrial instrument, without specifying the source of that contractual right. It also submitted that there is a grievance procedure available to workers under the PALM deed and guidelines, of which employers were required to notify workers.[25]
The Applicant also submitted that if the RLHA orders were made, contraventions of such orders could give rise to civil penalties under the Fair Work Act, which are not available in relation to contraventions of the PALM deed. On the other hand, if a labour hire employer complies with the PALM deed, making an RLHA order would impose no additional burden on it (or the host). JBS Australia argued that PALM scheme workers’ contractual right to be paid in parity with the host industrial instrument was enforceable under section 323(1) of the Fair Work Act. Section 323 provides for payment without deduction, in money, at least monthly. It is a civil remedy provision.
The Applicant also submitted that the nature of an RLHA order, which continues unless varied by the Commission, in contrast with the PALM deed and guidelines which can be varied in the relevant department’s discretion, is a consideration for the Commission in deciding these applications. JBS Australia argued that though the department could vary the deed it was unlikely to do so.
JBS Australia submitted that the evidence showed that as far as it and the AMIEU were aware Labour Solutions Australia and Whales were complying with their obligations under the PALM scheme, such that RLHA orders would not result in the workers being paid at higher rates. It pointed to the extrinsic materials which indicated that the mischief Part 2-7A was intended to remedy included labour hire workers being paid less than the bargained rates applying at workplaces, and wages in enterprise agreements being undercut. It submitted such mischief did not arise here, because of the operation of the PALM scheme.
JBS Australia submits that the RLHA orders sought in matters LH2024/60, 61, 63, 65 and 66 would have no practical effect or utility.
As indicated above, Whales relied on JBS Australia’s submissions, and Labour Solutions Australia did not oppose the orders being made.
The logical implication of JBS Australia’s argument is that the RLHA orders would not prejudice the labour hire employers, or JBS Australia itself. The absence of prejudice does not weigh in favour of a finding that it would not be fair and reasonable to make the orders.
JBS Australia and Whales say the rates are being paid anyway so the orders would have no utility. I do not agree. The orders would at least reinforce but more likely increase protections against undercutting, benefiting both labour hire and directly-hired workers.
The considerations that have been raised do not support a finding that it would not be fair and reasonable to make the orders sought.
No other submissions have been made by any Respondent that would enliven the obligation in subsection 306E(2) to consider the matters specified in subsection 306E(8).
Given my findings I am not satisfied that it is not fair and reasonable in all the circumstances to make the RLHA orders sought. Accordingly, pursuant to section 306E of the Fair Work Act I am required to make RLHA orders:
(a) in matters LH2024/60, 61, 63 and 66, in respect of Labour Solutions Australia Pty Ltd;
(b) in matters LH2024/62, and 64, in respect of Task Labour Australia Pty Ltd; and
(c) in matter LH2024/65 in respect of Whales Regional Workforce Pty Ltd.
I will publish each order together with this decision, setting out the matters specified in subsection 306E(9).
JBS Australia indicated that the relevant pay cycle for these applications is Monday to Friday, paid in arrears on a Tuesday. On that basis each order will commence on and from a Monday, with a short delay to allow the employers to make appropriate payroll arrangements.
The operative date of each RLHA order in matters LH2024/60, 61, 62, 63, 64, 65 and 66 will be Monday 28 July 2025.
No party submitted that the orders should specify when they will cease to be in force for the purposes of s 306E(10). Accordingly, the orders will also not contain such a specification.
DEPUTY PRESIDENT
Appearances:
Mr B. Swan of the Australasian Meat Industry Employees Union
Ms B. Sakrzewski-Hetherington of JBS Australia Pty Limited
Mr N. Buckley of Task Labour Australia Pty Ltd
Mr B. Field of Employsure for and Mr M. Marinelli of Whales Regional Workforce Pty Ltd
Hearing details:
28 April 2025
Brisbane
In-person and by video
[1] Exhibit 7.
[2] Clauses 1 and 2, Standard Terms, Exhibit 7.
[3] Clause 2, Standard Terms, Exhibit 7.
[4] Clauses 1 and 2, Standard Terms, Exhibit 7.
[5] Cl 4, Standard Terms, exhibit 7, and item 5.1, details schedule, master agreement, exhibit 6.
[6] Mr Buck’s statement, exhibit 5, [4].
[7] Mr Buck’s statement, exhibit 5, [7].
[8] Mr Buck’s statement, exhibit 5, [10].
[9] Mr Schilf’s statements, exhibits 8, [5], and 9, [5]-[6].
[10] At [10].
[11] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [78], applying Application by MEU re Callide Mine [2024] FWCFB 299, [16]. See also Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12, [49]-[50].
[12] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [79].
[13] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [81].
[14] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [83].
[15] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [87]-[88].
[16] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53, [93].
[17] Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1, and Mr Earle’s statement, Annexure WE2, ‘Pacific Australia Labour Mobility scheme Approved Employer Guidelines’, version 1.9 – 4 November 2024, exhibit 1.
[18] Cl 2.2 of the PALM deed, Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1.
[19] Cl 2.2 of the PALM deed, Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1
[20] Cl 2.3 of the PALM guidelines, Mr Earle’s statement, Annexure WE2, ‘Pacific Australia Labour Mobility scheme Approved Employer Guidelines’, version 1.9 – 4 November 2024, exhibit 1.
[21] Cll 2.3 and 1.2.1 of the PALM guidelines, Mr Earle’s statement, Annexure WE2, ‘Pacific Australia Labour Mobility scheme Approved Employer Guidelines’, version 1.9 – 4 November 2024, exhibit 1; and section A1.1 of the PALM deed, Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1.
[22] Cl 1.2.1 of the PALM guidelines, Mr Earle’s statement, Annexure WE2, ‘Pacific Australia Labour Mobility scheme Approved Employer Guidelines’, version 1.9 – 4 November 2024, exhibit 1; and section A1.1 of the PALM deed, Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1.
[23] Cll 65 and 68 of the PALM deed, Mr Earle’s statement, Annexure WE1, ‘Pacific Australia Labour Mobility Scheme – Approved Employer Deed”, effective 26 June 2023, exhibit 1.
[24] No party sought to argue, for example, that s 55 of the Property Law Act (Qld) would apply to the PALM deed.
[25] In oral closing submissions.
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