Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine - [2025] FWCFB 134

[2025] FWCFB 134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 306 – Application for a regulated labour hire arrangement order

Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine

(C2024/3846, C2024/3847, C2024/3848, C2024/3849, C2024/3850, C2024/3851, C2024/3853, C2024/3856, C2024/3857, C2024/3858)

and

Applications by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) re: Peak Downs Mine, Saraji Mine and Goonyella Riverside Mine

(C2024/3859, C2024/3860, C2024/3861)

VICE PRESIDENT ASBURY
VICE PRESIDENT GIBIAN
COMMISSIONER DURHAM

BRISBANE, 7 JULY 2025

INTRODUCTION

The Mining and Energy Union (MEU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Unions) have applied for regulated labour hire arrangement orders under s 306E of the Fair Work Act 2009 (Cth) (the Act). The orders sought by the Unions would apply variously to employees of the following entities employed at the Goonyella Riverside mine, Peak Downs mine and/or Saraji mine located in Central Queensland:

(a)OS ACPM Pty Ltd (OS Maintenance) and OS MCAP Pty Ltd (OS Production) (the OS Parties);
(b)WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac);
(c)Ready Workforce Pty Ltd (a Division of Chandler Macleod Pty Ltd and Chandler Macleod Group Limited (Chandler Macleod).

as set out in the following Table.

Matter Number	Applicant	Employer	Mine
C2024/3846	MEU	OS ACPM Pty Ltd	Goonyella Riverside Mine
C2024/3847	MEU	OS MCAP Pty Ltd	Goonyella Riverside Mine
C2024/3848	MEU	WorkPac Pty Ltd and WorkPac Mining Pty Ltd	Goonyella Riverside Mine
C2024/3849	MEU	OS ACPM Pty Ltd	Peak Downs Mine
C2024/3850	MEU	OS MCAP Pty Ltd	Peak Downs Mine
C2024/3851	MEU	WorkPac Pty Ltd and WorkPac Mining Pty Ltd	Peak Downs Mine
C2024/3853	MEU	Ready Workforce Pty Ltd (a Division of Chandler McLeod) and Chandler McLeod Group Limited	Peak Downs Mine
C2024/3856	MEU	OS ACPM Pty Ltd	Saraji Mine
C2024/3857	MEU	OS MCAP Pty Ltd	Saraji Mine
C2024/3858	MEU	WorkPac Pty Ltd and WorkPac Mining Pty Ltd	Saraji Mine
C2024/3859	AMWU	OS ACPM Pty Ltd	Peak Downs Mine
C2024/3860	AMWU	OS ACPM Pty Ltd	Saraji Mine
C2024/3861	AMWU	OS ACPM Pty Ltd	Goonyella Riverside Mine

The mines are open cut mines producing black coal and are located in the Bowen Basin in Queensland. The Goonyella Riverside mine is located some 30 kilometres north of Moranbah. The Peak Downs mine is located some 31 kilometres south of Moranbah. The Saraji mine is located near Dysart in the Isaac region. The mines are operated by BM Alliance Coal Operations Pty Ltd (BMACO) on behalf of the Central Queensland Coal Associates Joint Venture (CQCAJV). Entities of which BHP Group Ltd is the ultimate holding company hold a 50 percent interest in CQCAJV: BHP Coal Pty Ltd (BHP Coal) 40.75 percent, Umal Consolidated Pty Ltd 0.75 percent and BHP Queensland Coal Investments Pty Ltd 8.50 percent. The other interests in CQCJAV are split between entities held by the Mitsui Corporation and Perpetual Limited.

The CQCJAV has appointed an entity known as BM Alliance Coal Operations Pty Ltd (BMA) as a manager and agent in relation to particular matters. The share capital of BMA is held equally by a subsidiary of BHP Group Limited, BHP Metcoal Holdings Pty Ltd and a subsidiary of the Mitsubishi Corporation, Mitsubishi Development Pty Ltd. The regulated host for each of the orders sought by the Unions is BHP Coal, the employer covered by the BMA Enterprise Agreement 2022 (BMA Agreement), which is the “host employment instrument” prescribing the “protected rate of pay” for the purposes of the proposed orders.

The orders sought by the Unions are opposed by all respondents on various grounds. The OS Parties and BHP Coal assert that the Commission cannot be satisfied, for the purposes of s 306E(1A), that the work performed by employees of the OS Parties is not “for the provision of a service, rather than for the supply of labour”. If that submission is accepted, no order can be made with respect to the OS Parties. If the submission is not accepted, the OS Parties and BHP Coal do not advance any submissions concerning the matters set out in ss 306E(2) and (8) and do not contend that the Commission should find that it is not fair and reasonable in all the circumstances to make orders with respect to the OS Parties.

The OS Parties and BHP Coal note that the applications with respect to WorkPac and Chandler Macleod appear to be confined to employees of those entities supplied to BMACO to perform work in BMACO and BHP Coal supervised crews, as distinct from employees of the WorkPac and Chandler Macleod Parties supplied to third party contractors, and reserved their position to advance submissions and evidence in response to any attempt by the Unions to extend those applications beyond the scope understood by the OS Parties and BHP Coal. The Unions made clear that it is not the intention of their applications that any regulated labour hire arrangement order would apply to employees of the Workpac or Chandler Macleod performing work for third party contractors.

WorkPac and Chandler Macleod accept that the preconditions in s 306E(1) for making an order are met and that the Commission should be satisfied that the performance of work by their employees for BHP Coal is not or will not be for the provision of a service, rather than the supply of labour, for the purposes of s 306E(1A). WorkPac and Chandler Macleod, however, contend that it would not be fair and reasonable in all the circumstances for the Commission to make the orders sought in the applications concerning those parties.

HEARING AND CONFIDENTIALITY ORDER

A hearing was conducted over 9 days. Oral evidence was given by 30 persons, as listed in Annexure A and Statements of evidence from those persons were tendered. A further 6 witness statements were tendered made by persons who were not required for cross-examination. BHP, the OS Parties, Chandler Macleod and WorkPac sought, and were granted, a confidentiality order relating to certain material tendered by witnesses for those parties and material provided to the MEU and the AMWU in response to Notices to produce, which was tendered in evidence and referred to in submissions. The confidentiality order, the scope of which was expanded through the course of the hearing, was issued pursuant to s. 594 of the Act on the basis that BHP, the OS Parties, WorkPac and Chandler Macleod contended that the material is commercially sensitive. The effect of the confidentiality order is to designate certain material as Confidential and to authorise access to that material by persons designated as ‘Confidential Materials Authorised Persons’ in respect of the confidential material for each of the parties to the applications. Parts of the oral evidence and cross-examination traversing the confidential material were also the subject of the confidentiality orders and was given in closed session. Parts of the Transcript of proceedings in relation to that evidence were also made subject of the confidentiality order.

The confidentiality order was necessarily made prior to us receiving the confidential material. We have now had an opportunity to review and consider that material. We have decided to include extracts from, and summaries of, some of the material subject to the confidentiality order. We have incorporated that material at a level that in our view, does not involve the publication of material that should properly be confidential, or where a description of or extract from that material does not itself disclose information that is confidential. Prior to the publication of this decision, we granted a request made by BHP and the OS Parties to view an advance copy and provided those parties with an opportunity to raise any concerns about the inclusion of confidential material. At the same time, the decision was provided to the relevant Confidential Materials Authorised Persons for each party with redactions applied to any material that the persons in specific matters were not authorised to view. In an email sent with the advance copy of the decision, we expressed a provisional view to the parties that the way in which we had dealt with the confidential material in our decision, had appropriately addressed any concerns they may have in relation to its publication.

Submissions were made by the parties in relation to our provisional view. BHP and the OS Parties contended that confidentiality should be maintained in accordance with the orders and that to publish the material would disclose information and documents that were put before the Commission on that basis. It is also submitted that BHP and the OS Parties had not sought to redact all parts of the confidential information in the orders but instead, had identified information that is of substantial commercial sensitivity such that it would be prejudicial for it to be disclosed. WorkPac and Chandler Macleod also submitted that confidentiality should be maintained in accordance with the current order by redacting relevant parts of the decision. WorkPac submitted that the information is financial information that is commercially sensitive to WorkPac’s business and that its publication could have adverse consequences for the Company.

While not seeking to be substantively heard in relation to question of which, if any parts of the decision should be redacted, the MEU submitted that the proceedings were a matter of public interest, the reasons of the Full Bench would have wider implications for applications under s. 306E and the decision involves the first occasion the Commission has had to construe and apply ss. 3096E(1A) and (7) of the Act. The decision also deals with significant matters of construction and application concerning s. 306E(2). The MEU submitted that it is important that the public and other industrial parties are able to gain as complete an understanding as to the reasoning of the Full Bench as possible, and any redactions should be limited in nature and as confined as possible.

We have had regard to these submissions. As a result, we have redacted some, but not all the material subject to the confidentiality order. We have redacted quantitative information but have retained summaries of material such as contractual arrangements between the various parties. It is axiomatic that these contracts exist, and we do not accept that simply because they were the subject of confidentiality orders, those arrangements should remain confidential. The overview and information we have provided is at high level we have redacted references to the quanta of payments made under the contracts and the formulae for calculating those payments. In doing so we are conscious that the applications subject of these decisions are the first contested applications under s 306E, and that it is in the interests of open justice that the evidence upon which we have relied and our approach to assessing that evidence is set out as comprehensively as possible, while maintaining the confidentiality of commercially sensitive information, the release of which could cause damage to the parties. An amended confidentiality order will be issued consistent our conclusions in relation to redaction of confidential material.

STATUTORY PROVISIONS

Part 2-7A of the Act is entitled “Regulated labour hire arrangement orders” and provides, among other things, for the Commission to make such orders and sets out the obligations of employers and regulated hosts covered by those orders. The key provision in Part 2-7A is s 306E which sets out when the Commission must make a regulated labour hire arrangement order. The most relevant parts of s 306E for present purposes are as follows:

306E FWC may make a regulated labour hire arrangement order
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.
…
(4) For the purposes of paragraph (1)(b), in determining whether a covered employment instrument would apply to the employees, it does not matter on what basis the employees are or would be employed.
…
Matters that must be considered in relation to whether work is for the provision of a service
(7A) For the purposes of subsection (1A), the matters are as follows:
(a) the involvement of the employer in matters relating to the performance of the work;
(b) the extent to which, in practice, the employer or a person acting on behalf of the employer directs, supervises or controls (or will direct, supervise or control) the regulated employees when they perform the work, including by managing rosters, assigning tasks or reviewing the quality of the work;
(c) the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work;
(d) the extent to which either the employer or another person is or will be subject to industry or professional standards or responsibilities in relation to the regulated employees;
(e) the extent to which the work is of a specialist or expert nature.

Matters to be considered if submissions are 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.

…

Section 306E has been considered by the Full Bench in Re Mining and Energy Union [2024] FWCFB 299 (Batchfire), Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 (Rix’s Creek) and, subsequent to the decision in this matter being reserved, in Application by the Mining and Energy Union re Bengalla Mining Company [2025] FWCFB 53 (Bengalla). In Batchfire, the Full Bench outlined a number of principles concerning the proper interpretation and application of s 306E. As observed by the Full Bench in Batchfire, s 306E(1) requires the Commission to make a regulated labour hire arrangement order if it is satisfied that the criteria specified in paragraphs (a), (b) and (c) of the subsection are met and neither of the prohibitions upon the making of such an order (“must not”) in ss 306E(1A) and 306E(2) apply.[1]

The issues raised by the parties in this matter fall into two categories. BHP and the OS Parties contend that the Commission cannot be satisfied that the performance of work by employees of the OS Parties is not or will not be for the provision of a service, rather than the supply of labour, for the purposes of s 306E(1A). WorkPac Parties and Chandler Macleod submit that the Commission should be satisfied that it is not fair and reasonable in all the circumstances to make orders that will apply to them and their employees for the purposes of s 306E(2). The questions of construction and factual controversies that are required to be addressed in relation to those matters are distinct and it is convenient to address the position of the OS Parties first and then turn to address the orders sought with respect to WorkPac Parties and Chandler Macleod.

SECTION 306E(1A) – FOR THE PROVISION OF A SERVICE, RATHER THAN THE SUPPLY OF LABOUR

The basis upon which BHP and the OS Parties oppose the making of regulated labour hire arrangement orders with respect to employees of the OS Parties requires consideration of s 306E(1A) of the Act. The submission requires consideration of what is meant by the requirement that the Commission be satisfied that “the performance of 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)” in s 306E(1A). The submission also requires consideration of the matters in s 306E(7A) to which the Commission is required to have regard in assessing whether “the performance of work is not or will not be for the provision of a service, rather than the supply of labour”.

It is appropriate to start with the structure of s 306E. Section 306E(1) imposes an obligation on the Commission (“must”) to make a regulated labour hire order if it is satisfied that the matters in subsections (a), (b) and (c) are met. Leaving aside the circumstance that the regulated host is a small business employer, the obligation to make an order arises if the Commission is satisfied that an employer supplies or will supply employees to perform work for a regulated host to whom, if they were employed by the regulated host, a covered employment instrument would apply. That is, the premise upon which the section operates is that an employer supplies employees to perform work for a regulated host.

Section 306E(1A) then qualifies the statutory imperative in subsection (1) (“[d]espite subsection (1)”). The qualification is by way of a prohibition on the Commission making an order (“must not make the order unless”). The prohibition exists unless the Commission is satisfied that the performance of work is not for the provision of a service, rather than the supply of labour. The Commission’s state of satisfaction in relation to that matter is required to be formed “having regard to the matters in subsection (7A)”. Section 306E(2) further qualifies the obligation to make an order in subsection (1) if the Commission 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. As we have observed, s 306E(2) is not relied upon by the OS Parties, but we will return to that subsection in dealing with the submissions advanced by WorkPac and Chandler Macleod.

Section 306E(1A) and (7A) were added to the amending legislation during the parliamentary process. Part 2-7A was introduced into the Act by the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (the Closing Loopholes Act). The text of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) (the Closing Loopholes Bill) at the time of its first reading included reference to “whether the performance of the work is or will be wholly or principally for the provision of a service, rather than the supply of labour to the regulated host” as one matter to which the Commission was required to have regard (if a submission was made in relation to it) in determining if it is not fair and reasonable in all the circumstances to make an order. Section 306E(8)(b) listed a series of matters to which the Commission was to have regard in determining that question which are similar, but not identical, to those now appearing in s 306E(7A) of the Act.

The initial Explanatory Memorandum to the Closing Loopholes Bill explained the new s 306E(8)(b) in the following terms:

New paragraph 306E(8)(b) would provide that the FWC may consider whether the work performed by the regulated employee is part of the provision of a specific service, rather than the supply of labour. This paragraph would recognise that employers often contract for the provision of specialised external services rather than for the provision of labour to undertake work that the employer engages in the ordinary course of its business. The Part does not intend to regulate contracting for specialised services. For example, a catering service contracted to provide catering for employees of a regulated host whose primary business is not the provision of catering services may be found to be the provision of a specialised service, even where the host employment instrument provided for the performance of work of the type provided by the service. New subparagraphs 306E(8)(b)(i)–(vi) would outline factors that would inform this consideration. Not all the factors listed would need to be satisfied for the FWC to find that the arrangement relates to the provision of a service rather than the provision of labour.

As such, the stated intention of the new subsection was to give effect to an understanding that Part 2-7A did not intend to “regulate contracting for specialised services”. The statement was not entirely accurate for at least two reasons. The initial version of the Bill did not exclude contractors providing specialised services from the operation of the Part entirely. Whether the performance of work was for the provision of a service, rather than the supply of labour, was only one matter to be considered by the Commission when determining if it is not fair and reasonable to make an order. Further, although the extent to which the work is of a specialist or expert nature was one matter the Commission was to have regard to in assessing whether the performance of work was wholly or principally for the provision of a service, that concept was not necessarily limited to “contracting for specialised services”.

During the second reading debate in relation to the Closing Loopholes Bill, the Government moved amendments to add s 306E(1A) and (7A) in the section in place of s 306E(8)(b). The Minister explained the amendments in the following terms:[2]

On closing the labour hire loophole, one of the key arguments made by business groups was that there was concern about whether or not the legislation had unintentionally caught service contractors. The provisions were never intended to apply to service contracting, as is reflected in the explanatory memorandum to the closing loopholes bill. I want to acknowledge the engagement with the Australian Resources and Energy Employer Association, AREEA, and Professor Andrew Stewart, who had raised concerns and called for an amendment of this form. However, to make this even clearer than it was in the explanatory memorandum, the government amendment ensures the Fair Work Commission cannot make an order where work performed for a host is the provision of a service rather than the supply of labour. These amendments expressly provide that the Fair Work Commission must not make an order unless it is satisfied that the work is not for the provision of a service rather than supply of labour; delete the words 'wholly or principally' from the multifactor test, providing further certainty on how the multifactor test will operate; and clarify the termination entitlements for a labour hire employee covered by a regulated labour hire arrangement order. The amendment is a commonsense way of cutting red tape for business and simplifies leave entitlements while still preserving the government's policy intention.

The Minister submits in these proceedings that the addition of s 306E(1A) and (7A) did not represent the addition of new qualifications which had not been in contemplation at the time of the Closing Loopholes Bill being introduced into Parliament or the Minister’s second reading speech. Rather, the Minister suggests that the amendment gives effect to what had always been the intention behind the legislation. Regardless of intention, the effect of s 306E(1A) is to prohibit the Commission from making a regulated labour hire arrangement order if it is satisfied that the performance of work is not or will not be for the provision of a services, rather than the supply of labour.

It is necessary to then address relevant questions which arise in relation to the construction of s 306E(1A) and (7A), some of which are in contest between the parties. First, the words “[d]espite subsection (1)” mean that s 306E(1A) takes precedence in the sense that, even if the requirements for the making of an order in subsection (1) are met, the Commission is prohibited from making an order if it is not satisfied of the matter identified in subsection (1A). The word “despite” generally has a meaning equivalent to “notwithstanding”.[3] Subsection (1) confers the power, and obligation, to make a regulated labour hire arrangement order. That section is rendered inoperative unless the Commission is positively satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour.[4] In that sense, the subsection erects an additional jurisdictional precondition to an order being made.

BHP and the OS Parties suggest that this means the Unions bear the persuasive onus of proving that the performance of work is not, or will not be, for the provision of a service and that the MEU and the AMWU have not met their “persuasive onus”. That is not, in our view, an apt description of the task facing the Commission under s 306E(1A). It has frequently been said that notions of onus have a limited role in Commission proceedings. It may be accepted that where the Act requires satisfaction as to a matter in order for a particular power to be exercised, the party invoking the jurisdiction will bear the risk of failure if the material before the Commission does not permit that state of satisfaction to be reached.[5] The MEU and the AMWU, in that sense, bear the risk of non-persuasion where they have applied for the Commission to make an order.

However, whether the state of satisfaction required by s 306E(1A) can be reached will depend upon an assessment of all the material before the Commission, including whether any other party has advanced evidence in opposition. That may be particularly significant where such matters are peculiarly within the knowledge of one or other of the parties.[6] The regulated host and the employer that is either supplying labour or providing a service will frequently be best placed to put forward evidence relevant to that assessment. Whether those parties have advanced evidence in relation to the work performed by the regulated employees, and the nature of any evidence put forward, may be relevant to whether the Commission can be satisfied that the precondition in s 306E(1A) is met. The evidence which is put forward, and what evidence is not put forward by parties who are in a position to do so, may affect whether the Commission reaches the relevant state of satisfaction. At the end of the day, the Commission is either satisfied the power to make an order exists or it is not, and it matters little how the Commission arrives at that state of mind.[7]

Second, there is no dispute that the phrase “the performance of work” in s 306E(1A) refers to the performance of work by the regulated employees referred to in subsection (1)(a). In the context of s 306E(1), that must be correct. Section 306E(1)(a) establishes that one matter about which the Commission must be satisfied before it can make a regulated labour hire arrangement order is that an employer supplies or will supply one or more employees to “perform work for the regulated host”. An employee who is supplied to perform that work is a “regulated employee”.[8] Where s 306E(1A) asks whether the performance of work is for the provision of a service, rather than the supply of labour, it can only sensibly be understood as referring to the same work, that is, the work performed by the relevant employees for the regulated host and requires consideration of the work tasks and job responsibilities of the those employees.

BHP and the OS Parties submit that this is only part of the story and what is significant is what the performance of work is “for”. It is submitted that the word “for” in s 306E(1A) connotes the purpose or end for which the work is being performed and, ultimately, requires an assessment of whether the performance of work is for the provision of a service. BHP and the OS Parties suggest that the required characterisation concerns what the OS entities are employing the regulated employees to perform work for, that is, whether it is to permit the OS entities to provide a service to BMA/BHP Coal or to supply labour to BMA/BHP Coal. Submissions to a similar effect are made by the Minerals Council and the AREEA.

The Minister, whose submissions are largely embraced by the MEU and the AMWU, appears to accept that the inquiry as to what the performance of work is “for” requires an examination of purpose. Such an approach is consistent with dictionary definitions of the word “for” as including the meaning “with the object or purpose of”.[9] However, the Minister submits that the focus of the inquiry should be directed at the purpose of the performance of work and not the terms of any legal or commercial arrangement between the employer and the regulated host or any other entity. The Minister contends that BHP and the OS Parties erroneously concentrate on characterising the arrangements between the OS entities and BMA/BHP Coal rather than the performance of work by the regulated employees. The MEU similarly submits that s 306E(1A) focuses on the performance of the work rather than the underlying commercial or contractual arrangements between the employers, the regulated host or other legal entities.

The true position is more nuanced than the parties suggest. We accept that the word “for” connotes an examination of the purpose or object of the work of the regulated employees, or the function served by the work performed. We also accept that the purpose or function of the work performed by the regulated employees is necessarily bound up with the arrangements between the employer and the regulated host under which the regulated employees are supplied to perform work for the regulated host. It will also be relevant to examine what the employer provides to the regulated host to ascertain whether the work performed by the regulated employees is for the provision of a service or the supply of labour. This is likely to include consideration of whatever commercial or contractual arrangements exist between the employer and the regulated host but will not be limited purely to the contractual provisions.

However, the arrangements which exist between the employer and the regulated host are not relevant in a general sense or in themselves, but only to the extent that they cast light upon the purpose or function of the work performed by the regulated employee or employees. It is conceivable that the arrangements as between the employer and the regulated host will cover other matters going beyond the work performed by the regulated employees or the employer will undertake activities properly regarded as facilitating or supporting the supply of labour. Those activities will have limited, if any, relevance and will not preclude a finding that the performance of work is not for the provision of a service rather than the supply of labour. Further, although the contractual obligations of the employer and the regulated host may be relevant, the considerations in s 306E(7A) make clear that the Commission is not confined to examining the relevant legal obligations of the employer and the regulated host and is required to consider the arrangements applying to the work of the regulated employees “in practice”. Also relevant will be the nature of the business or enterprise of the regulated host and the work performed by employees of the regulated host vis-à-vis the work performed by the regulated employees.

Section 306E(7A)(b) expressly requires consideration of the extent to which the employer directs, supervises or controls the work of the regulated employees “in practice”. In our opinion, each of the considerations in s 306E(7A)(a), (c), (d) and (e), properly understood, direct attention at the extent to which the employer is actually involved in matters relating to the performance of work, the regulated employees use systems, plant or structures of the employer, the employer will be subject of industry or professional standards and the work is actually of a specialist or expert nature. The contractual arrangements under which the employees are supplied will be relevant but are not exhaustive of the required analysis. The Revised Explanatory Memorandum to the Closing Loopholes Bill supports this view. Among other things, it states that:[10]

These provisions allow the FWC to assess the reality of the arrangement to determine whether it is, or is not, for the provision of a service and then decide, as a jurisdictional question, whether it is prevented from making an order.

Third, the expression “for the provision of labour, rather than the supply of labour” presents a binary choice. In circumstances in which the employer supplies employees to perform work for the regulated host for the purposes of s 306E(1)(a), the performance of work will fall into one of two categories identified in subsection (1A). Either the performance of work by a regulated employee is or will be for the provision of a service or the performance of work is or will be for the supply of labour. The parties agree that the Commission’s task, in that respect, involves a question of characterisation as to which side of the line the performance of work falls in a particular case. The question of characterisation involves an evaluative inquiry in which all relevant matters, at least including those in s 306E(7A), are taken into account.

The parties disagree, however, in relation to the nature of the distinction. BHP and the OS Parties submit that the distinction between the “provision of a service” and the “supply of labour” is that the provision of a service involves something more than “just” or “simply” the supply of labour. On this submission, the “provision of a service” is defined in contradistinction to the “supply of labour”. If OS Production nor OS Maintenance do more than merely supply labour, so the submission goes, it must follow that each provides a “service” and the performance of work by the regulated employees is “for” the provision of that service. The Minerals Council, the AREEA and the Ai Group make similar submissions or support the position advanced by BHP and the OS Parties. The Minister, the MEU and the AMWU and the ACTU each contend that the characterisation exercise required by s 306E(1A) is not to be conducted on the basis that, if the employer provides anything more than the mere supply of labour, it follows that the performance of work is to be characterised as being “for the provision of a service”.

The approach contended for by BHP and the OS Parties is, in our opinion, overly simplistic and cannot be reconciled with the text or purpose of s 306E(1A) and (7A). Of particular significance are the considerations in subsection (7A) to which the Commission is required to have regard in undertaking the characterisation exercise. BHP and the OS Parties may be correct to submit that the considerations listed in s 306E(7A) do not directly define the concepts of the “provision of a service” and the “supply of labour”. However, they are matters to which the Commission is required to have regard in making the assessment and are plainly relevant to understanding what is meant by those concepts. As BHP and the OS Parties acknowledge, a finding that one or more of the matters in s 306E(7A) exist is likely to favour a finding that the performance of work is for the provision of a service and its absence to favour a finding that it is for the supply of labour. The Revised Explanatory Memorandum notes, for example, that:[11]

To the extent that each of the factors in paragraphs 307E(7A)(a) to (e) are demonstrated by submissions and evidence of the parties to the application for an order – for instance, that an employer directs, supervises or controls work being performed for the host – this would weigh in favour of the FWC finding that the arrangement is for the provision of a service rather than the supply of labour.

The description of the matters in s 306E(7A) cannot be reconciled with the submission that if an employer provides anything more than the mere supply of labour then the performance of work must be for the provision of a service. The considerations in s 306E(7A)(b), (c), (d) and (e) each refer, respectively, to the “extent to which” the employer directs, supervises or controls the regulated employees when they perform the work, the regulated employees use systems, plant or structures of the employer, the employer will be subject to industry or professional standards and the work is of a specialist or expert nature.

That language contemplates that one or more of those features may be present to some extent, yet the performance of work will nonetheless still be properly characterised as being for the supply of labour. For example, the employer might direct, supervise or control the regulated employees when they perform work to some extent for the purposes of s 306E(7A)(b) but the performance of work by the regulated employees will remain for the supply of labour and not the provision of a service having regard to all other relevant matters. Similarly, s 306E(7A)(c) contemplates that the regulated employees might use the systems plant or structures of the employer in the performance of the work, but the performance of work will nonetheless remain for the supply of labour.

In support of their submission in this respect, the OS Parties rely on a passage from the decision in Batchfire in which the Full Bench said:[12]

… It is clear that ‘service’ in s 306E(1A) is used in a different sense than ‘service’ as defined in s 22. The contradistinction between the provision of a service and the supply of labour in s 306E(1A) implies that the former must involve something more than simply the performance of work by the employees supplied to the regulated host. The matters prescribed in s 306E(7A) provide guidance as to the matters which might constitute this ‘something more’, so that a finding of fact that one or more of these matters apply would weigh in favour of a conclusion that a service, and not just labour, is being provided.

BHP and the OS Parties read too much into this passage. The Full Bench suggested that the “provision of a service” must involve something more than simply the performance of work by the regulated employees. It does not say that the provision by the employer to the regulated host of anything more than the work of the regulated employees necessarily leads to the performance of work being properly characterised as being for the provision of a service. The recognition that a finding that one or more of the matters in s 306E(7A) apply would “weigh in favour” of a conclusion that a service is being provided acknowledges that the assessment involves questions of degree. Just because one or more of those matters applies does not necessarily lead to the conclusion that the performance of work is for the provision of a service, or that it is for the supply of labour. That the assessment involves questions of degree is implicit in the analysis of the Full Bench in Batchfire which emphasised that the anchoring of the requirement to make a regulated labour hire order upon the Commission reaching a relevant opinion or state of mind, imports a degree of latitude and subjectivity in the evaluation of matters in s. 306E(1)(a) – (c).[13] The observations of the Full Bench in Batchfire about s. 306E(1A) must be viewed in the context of its earlier views about the approach to deciding whether the Commission has reached the necessary state of satisfaction for the purposes of s. 306E(1). It would be contrary to that approach to apply s. 306E(1A) in the manner contended for by BHP and the OS parties.

Furthermore, the considerations in s 306E(7A) are not to be regarded simply as either present or absent. The nature, circumstances and degree of the involvement of the employer in matters relating to the performance of work for the purposes of s 306E(7A)(a), for example, is likely to bear upon the characterisation exercise and not merely whether the employer has some or no such involvement. Similarly, the type, value and circumstances in which the regulated employees use systems, plant or structures of the employer for the purposes of s 306E(7A)(c) may be significant. The provision of uniforms or relatively inexpensive personal protective equipment by the employer may say little about whether the work should be characterised as being for the provision of a service. The use by the regulated employees of valuable and specialist equipment in which the employer has made a significant investment, on the other hand, might present a substantial impediment to the Commission being satisfied that the performance of work is not for the provision of a service, rather than the supply of labour.

We also note that, in Batchfire, there was no opposition to the Commission making a regulated labour hire arrangement order and there was no serious contention between the parties as to proper construction of s 306E(1A). No party contended that the performance of work by the regulated employees concerned was for the provision of a service, rather than the supply of labour. Whilst the Full Bench provided valuable guidance in relation to the provisions of Part 2-7A of the Act, it did so in the absence of contention as to the proper application of the provision. A case is not authority for a proposition that was not argued.[14] We do not accept that Batchfire is authority for the proposition advanced by BHP and the OS parties in relation to s. 306E(1A).

BHP, the OS Parties and the Minerals Council refer to a number of authorities which have considered the concept of “labour hire” or analogous expressions in other contexts. The phenomenon of “labour hire” is not new to industrial relations and courts, tribunals and legislatures have endeavoured to address the challenges presented by hired or lent workers, both practical and to legal doctrine, for many years. The engagement and deployment of workers through labour hire arrangements has raised issues, for example, as to the nature of the legal relationship between the worker, the labour hire agency and the host,[15] attribution of liability for negligence on the part of the worker[16] and the obligations of the labour hire agency under work health and safety or workers compensation legislation.[17] A number of States and Territories have enacted legislation facilitating licensing regimes for labour hire agencies which contain definitions of “labour hire”.[18]

Part 2-7A is concerned with the regulation of labour hire workers and, as it is put in the extrinsic materials, closing the “labour hire loophole”. Stated in sufficiently general terms, the concept of labour hire is not difficult to understand and encompasses a situation in which an employer supplies workers under contract to a client to perform work for the client ordinarily at the client’s premises. The general concept of labour hire is contemplated by the requirement in s 306E(1)(a) and provides a useful frame of reference for the assessment required by s 306E(1A). In our view, having regard to the language of s 306E(1A) and the matters listed in s 306(7A), the core question asked is whether the performance of work by the regulated employees is properly characterised as being for the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host.

Different arrangements which fall within the broad concept of labour hire might vary significantly in the manner in which they operate in practice, including in relation to the degree of control retained by the labour hire employer, the extent to which equipment, uniforms or plant are provided or involvement in selection, discipline or training. Particularly when it comes to consideration of the operation of the precondition in s 306E(1A), we believe limited assistance can be derived from authorities, or statutory definitions, dealing with the general concept of “labour hire” in other contexts. The Commission is required to apply s 306E(1A) having regard to the particular considerations listed in s 306E(7A).

BHP and the OS Parties and the Minerals Council rely specifically on two authorities. In Victorian Workcover Authority v Divadeus Pty Ltd (in liq) [2016] VSCA 81, the Victorian Court of Appeal considered the meaning of “supply of labour” in a WorkCover premiums order made under the Accident Compensation (WorkCover Insurance) Act 1993 (Vic). The expression “labour hire” was defined in the order to mean “the supply, whether directly or indirectly, of the labour of one or more workers employed by the employer, not being a supply of labour in connection with: (a) the performance by the employer of a specified task; (b) the discharge by the employer of a specified function; or (c) achievement by the employer of a specified outcome.” The court concluded that an employer carrying on a business of providing security services to tertiary education institutions was providing labour in connection with the performance of its own tasks and to discharge its own obligations to the client.[19]

In coming to that conclusion, BHP and the OS Parties and the Minerals Council emphasised that the court gave primacy to the contractual terms and limited weight to certain incidents of client control given the broader contractual relationship. The court said, for example:[20]

It is evident that the obligations of Divadeus to its clients extended beyond the mere provision of suitable labour. Divadeus was obliged to provide security services as extensively provided for in the contracts. In requiring Divadeus to provide security services, and not merely to provide suitable labour to enable the client to have security-related work performed, the contracts specified tasks or functions within the meaning of paragraphs (a) and (b) of the definition of ‘labour hire’. And, as the definition requires, the contracts stipulated that the tasks or functions were to be performed or discharged by Divadeus.
…

In our view, how the contract is performed is not critical. In this regard, and with respect, we do not attach the same importance as the judge did to whether or not the security guards and supervisors were required to perform specific tasks at the direction of the clients or at the direction of Divadeus. That distinction is not determinative of the applicability of subparagraphs (a) and (b) of the definition of ‘labour hire’. We acknowledge that the Swinburne University contract stated that the ‘high quality comprehensive security service’ would be provided by ‘[Divadeus] and its Security Officers’, ‘together with University staff’. However, the joining of Divadeus and University staff in the provision of security services does not alter the fact that Divadeus’ staff were being supplied in connection with the performance of tasks or the discharge of functions by Divadeus.

The fact that its employees were subject to direction or control by the clients in undertaking the performance of the contracted services, and that such direction or control was regularly exercised by clients, does not detract from the existence of the obligation of Divadeus. It remained contractually bound to provide the services and could be sued for any failure to do so.

Although the concepts under consideration are not entirely foreign to s 306E(1A), the reasoning of the court demonstrates the difficulty with seeking to directly apply approaches adopted in other statutory contexts to the section. For example, the court regarded how the contract was performed as of limited significance to the application of the workers compensation order. Although the terms of any contract between the regulated host and the employer are likely to be relevant, s 306E(7A) requires that the Commission have regard, expressly or impliedly, to how the arrangement operates “in practice”. Similarly, the court suggested that the fact the employees were subject to direction or control by the client was not relevant in the particular statutory context under consideration. In contrast, s 306E(7A)(b) requires the degree to which the regulated employees are subject to the direction, supervision or control of the employer must be considered in characterising what the performance of work by those employees is for in the context of s 306E(1A). Necessarily, that will involve some consideration of the direction or control exercised by the regulated host.

The second authority referred to is the decision of the NSW Court of Appeal in Marketform Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36. That decision concerned an exclusion for work performed under a contract for “labour only services” in the terms of an insurance policy. The court concluded that the contract between the agency and supermarket was not for “labour only services” and said, among other things:[21]

I am prepared to assume that, in context, the language of a contract “for the provision of labour only services to the Insured” should be understood as intended to capture many of what the appellant described in submissions as “labour hire” arrangements.
That assumption, however, does not answer the critical question in this case. The phrase the parties have chosen to use is “labour only services”. The language used captures a narrower class of contractual arrangements than all “labour hire” arrangements. Whatever the limits of the expression labour only services, the contract between Skillset and the first respondent was not a contract for the supply of “labour only” services because a number of other important services were supplied under the contract.

The court noted that the agency was expressly contracted to provide other services such as recruitment, vocational training, payroll and administration services and support to the supermarket.[22] Again, the reasoning demonstrates the difficulty with applying authorities addressing differently worded instruments. The court made clear that it was not dealing with “labour hire” generally, but the specific provision of the policy which excluded liability for injury to a person under a contract for the provision of “labour only services”. The contractual focus was dictated by the term of the policy. As we have explained, whilst contractual arrangements relating to the performance of work by a regulated employee are likely to be relevant, s 306E(1A) is not directed only at contractual provision and it cannot be said that the performance of work is for the “provision of a service” only because something more than labour is provided by the employer to the regulated host.

Fourth, the Minister, the MEU, the AMWU and the ACTU each submit, in somewhat different terms, that s 306E(1A) and (7A) should not be interpreted narrowly so as to preserve the statutory intent behind the beneficial or remedial scheme in Part 2-7A. The Minister, for example, submits that an overly broad interpretation of s 306E(1A) and (7A) may result in the “provision of a service” exception undermining the public interest and the beneficial and remedial purpose of Part 2-7A. The Minister says that it is well-settled that beneficial provision ought to be construed liberally and beneficially, “least courts become the undoers and destroyers of the benefits and remedies provided by such legislation”.[23]

We accept that Part 2-7A can be described as containing beneficial and protective provisions. The Part generally, and s 306E in particular, is intended to permit the Commission to make an order the effect of which is to ensure that the engagement of employees through a labour hire arrangement cannot be used to pay employees lower rates of pay than those applicable to directly engaged employees of the regulated host. In a general sense, the Part should be construed so as to give the fullest relief which the fair meaning of its language will allow. However, we recognise that it can involve error to commence the task by identifying a “liberal” or “narrow” approach. For example, in Ryan v Commissioner of Police [2022] FCAFC 36; (2022) 290 FCR 369, the Full Court explained:[24]

It is true that the High Court has more recently held that, “to commence the process of construction by posing the type of construction to be afforded — liberal, broad or narrow — may obscure the essential question regarding the meaning of the words used”: New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 at [32]-[33]. Rather, as Gageler J pointed out at [92], “[t]he principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”. That general principle is mandated by s 15AA of the Acts Interpretation Act: Tjungarrayi v Western Australia (2019) 269 CLR 150 at [44] (Gageler J). However, this does not justify a simplistic assumption that whatever construction furthers the statute’s primary purpose must be determinative: Tjungarrayi at [46] (Gageler J); Carr v Western Australia (2007) 232 CLR 138 at [5]-[7] (Gleeson CJ). We do not read the passages in IW v City of Perth as requiring any different approach.

We adopt that approach in the present matter. In addition, s 306E(1A) and (7A) represent an exception to the operation of Part 2-7A or, to put it another way, a precondition to the obligation which would otherwise arise to make a regulated labour hire arrangement order. A provision designed to exclude the operation of beneficial legislation conferring rights on employees should not itself be liberally construed.[25] However, exceptions will frequently be included in legislation to provide the practical balance between competing public interests. It is important that such an exception should be interpreted carefully in order not to destroy that balance.[26] Section 306E(1A) is to be regarded as intended to provide balance by excluding employees performing work for the provision of a service or what the Minister refers to as “genuine service contractors”. In those circumstances, we are not much assisted by exhortations to adopt a liberal or generous construction. However, we are conscious that s 306E(1A) and (7A) are to be construed in the context of the purpose of Part 2-7A as a whole.

Fifth, the parties disagree as to whether the list of considerations set out in s 306E(7A) is exhaustive of the matters the Commission is able to consider in assessing whether the performance of work is for the purposes of subsection (1A). Section 306E(1A) requires the Commission to have regard to the matters in subsection (7A) in determining if it is satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour. It is uncontroversial that the requirement means that they are mandatory considerations in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24[27] and are matters that must be treated as a matter of significance in the decision-making process.[28]

The disagreement between the parties is as to whether the list is exhaustive of the considerations that might bear upon the question posed by s 306E(1A). The Minister, the MEU and the ACTU each contend that the factors in s 306E(7A) are exhaustive of the considerations the Commission is able to take into account. Those parties submit that the language of s 306E(1A) and (7A) support that view, particularly the requirement in subsection (1A) that the Commission be satisfied “having regard to the matters in subsection (7A)” and that subsection (7A) provides that “the matters are as follows”. They also contrast the language of s 306E(1A) and (7A) with the language of s 306E(2) and (8). The reference in s 306E(2) to the Commission assessing whether it is not fair and reasonable to make an order “in all the circumstances” and the express capacity in subsection (8)(f) for the Commission to have regard to “any other matter the FWC considers relevant” indicates that those factors are not exhaustive. The absence of similar language in s 306E(1A) and (7A) is said to suggest a different approach is intended.

Although there is some textual support for the position advanced by the Minister, the MEU and the ACTU, we do not believe the language of s 306E(1A) and (7A) dictate the conclusion that the matters in subsection (7A) are exhaustive of the considerations the Commission is lawfully able to take into account in making the judgment required by subsection (1A). The subsections do not expressly state that those considerations are exhaustive or preclude consideration of other relevant matters. The breadth and significance of the finding required to be made for the purposes of s 306E(1A) suggests that, although the Commission is required to have regard to the matters set out in subsection (7A), other relevant matters arising from the evidence might be considered.[29]

Some assistance can be derived from authorities in other contexts. In R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322, the court considered a provision that required the determination of a scale of fees for nursing homes having regard to the “costs necessarily incurred in providing nursing home care in the nursing home”. In relation to that provision, Mason J observed:[30]

However, the sub-section does not direct the Permanent Head to fix the scale of fees exclusively by reference to costs necessarily incurred and profit. The sub-section is so generally expressed that it is not possible to say that he is confined to these two considerations. The Permanent Head is entitled to have regard to other considerations which show or tend to show that a scale of fees arrived at by reference to costs necessarily incurred, with or without a profit factor, is excessive or unreasonable. It may be that the rent paid by the proprietor of a nursing home, though a cost necessarily incurred, exceeds the prevailing rental which is paid for comparable premises and that the determination of a scale of fees by reference to that rent would result in a scale of fees which is unreasonably high. The Permanent Head would be entitled to take this factor into account in making his determination.

A requirement to have regard to particular considerations does not necessarily exclude the potential consideration of other relevant matters.

The approach proposed by the Minister, the MEU and the ACTU has the potential to lead to somewhat artificial distinctions. For example, the Minister acknowledged that his submissions would mean that s 306E(7A)(c) requires the Commission to take into account the extent to which the regulated employees use or will use systems, plant or structures of the employer to perform the work but would not permit consideration of the manner or nature of the use. That approach would impose an unnatural constraint on the broad evaluative assessment the Commission is required to make and is unlikely to have been intended. In that respect, we note that the Revised Explanatory Memorandum to the Closing Loopholes Bill simply states:[31]

In order to determine whether an arrangement is for the provision of a service rather than the supply of labour, the FWC would be required to have regard to the matters listed in new subsection 306E(7A).

In our view, the matters set out in s 306E(7A) are not necessarily exhaustive of the considerations the Commission is able to take into account in assessing whether the performance of work by the regulated employees is able to be described as for the provision of a service rather than the supply of labour.

Finally, it is appropriate to say something about the use of extrinsic material related to the Closing Loopholes Bill. BHP and the OS Parties submit that recourse to extrinsic materials is not warranted in this matter because the circumstances identified in either s 15AB(1)(a) or (b) of the Acts Interpretation Act 1901 (Cth) do not exist. The same submission is made by WorkPac with respect to s 306E(2) and (8). WorkPac submits that the extrinsic material is not relevant because no word or expression in Part 2-7A generally, or s 306E in particular, is ambiguous or obscure or has an ordinary meaning that is manifestly absurd or unreasonable so as to permit recourse to extrinsic material to “determine the meaning of the provision”.[32]

We do not accept the limitation on reference to extrinsic materials is as restricted as those parties suggest. It has been said that the notion that context and legitimate secondary material such as a second reading speech or an explanatory memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985.[33] Furthermore, s 15AB of the Acts Interpretation Act supplements but does not displace the common law.[34] In Sydney Seaplanes Pty Ltd v Page [2001] NSWCA 204; (2021) 106 NSWLR 1, for example, Bell P (as his Honour then was) explained:[35]

Although s 34(1) of the Interpretation Act 1987 (NSW), which is in virtually identical terms to s 15AB of the Acts Interpretation Act 1901 (Cth), would appear to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the “ordinary meaning” of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead “to a result that is manifestly absurd or is unreasonable”, the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53; Consolidated Media at [39], quoted in [28] above; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [8.160], [8.200].

In any event, we have no difficulty in being satisfied that there is at least some ambiguity or obscurity in s 306E. The submission that no word or expression in s 306E(1A), (2), (7A) and (8) has any obscurity attached it is a bold one which is belied by the submissions advanced in this matter. Although the words of a Minster or of an explanatory memorandum cannot be treated as a substitute for the text of the legislation concerned,[36] the Revised Explanatory Memorandum and the Minister’s second reading speech provide useful background which is informative of the general purpose of Part 2-7A and the mischief to which it is directed. Having said that, we have not found it necessary to rely on the relevant extrinsic materials to determine the meaning of any part of the section. It, rather, provides useful background to the purpose and intended function of the provisions.

There is one particular aspect of the Minister’s second reading speech which requires mention. The Minister specifically referred to OS Production. The Minister said:[37]

This bill is for Brodie, who is with us in the gallery today. Brodie works for BHP Operations Services in Queensland as an operator in production. Brodie and his directly employed workmates all work full time, all within the same part of the business, performing the same operator role.
Except that Brodie gets paid less.
This bill will close the labour hire loophole for people like Brodie.

BHP and the OS Parties submit that these observations take the analysis nowhere, particularly in circumstances in which the second reading speech was made prior to the Closing Loopholes Bill being amended to incorporate s 306E(1A) and (7A). There is a more fundamental problem with relying on the specific comments of the Minister in relation to OS Production. We do not know what information was available to the Minister in relation to the operations of the OS Parties or the work performed by an employee such as Brodie. The Commission must determine the present applications based on the evidence before it and apply the provisions of Part 2-7A as enacted to that evidence. The Full Bench has given no weight to the Minister’s second reading speech to the extent that it identified OS Production.

In our view, the proper approach to s 306E(1A) and (7A) may be summarised as follows:

(a)The Commission is required to be positively satisfied that the performance of work by the regulated employee or employees is not for the provision of a service, rather than the supply of labour.
(b)The formation of that state of satisfaction requires the characterisation of the purpose, object or function of the performance of work by the regulated employees and involves an evaluative inquiry in which all relevant matters, at least including those in s 306E(7A), are taken into account.

(c)The inquiry as to whether the performance of work is for the “provision of a service” cannot be reduced to an examination of whether the employer provides anything more than “merely” or “just” the supply of labour. Questions of extent and degree are likely to be involved in the characterisation exercise.

(d)The focus is required to be on the performance of work by the regulated employees albeit that the commercial or contractual arrangements between the employer and the regulated host and the nature of the employer’s operations may be relevant when characterising the purpose or function of the work of the regulated employees.

(e)The Commission is required to have regard to the matters in s 306E(7A) in the sense those matters are to be treated as a matter of significance in the decision-making process, but the considerations listed in s 306E(7A) are not necessarily exhaustive of the matters to be considered. The Commission may have regard to other relevant matters.

(f)The question posed by s 306E(1A) is likely to turn on whether the purpose of the work performed by the regulated employees can properly be characterised as contributing to the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host.

In light of those reflections on the statutory scheme generally, and s 306E(1A) and (7A) more specifically, it is necessary to turn to consider the applications for regulated labour hire arrangement orders with respect to the OS Parties.

APPLICATIONS WITH RESPECT TO THE OS PARTIES

Introduction

Employees of both OS Production and OS Maintenance perform work at the Goonyella Riverside, Peak Downs and Saraji mines. A total of nine applications are before the Commission with respect to the OS Parties. In short, the MEU has made separate applications with respect to OS Production and OS Maintenance at each of the three mines and the AMWU has made separate applications with respect to OS Maintenance at each of the mines. The submissions of the parties do not suggest that different considerations arise in relation to the operation of the Goonyella Riverside, Peak Downs and Saraji mines or the nature of the work performed by employees of OS Production and OS Maintenance at the different mines. There are some differences, however, between the nature of the work undertaken by employees of OS Production and OS Maintenance and the practical arrangements which apply to that work which will need to be considered.

OS Production and OS Maintenance are both part of the BHP group of companies and were established in 2018. Employees of those entities were first deployed to mine sites in 2019. OS Production and OS Maintenance currently employ approximately 3,797 employees who perform work across various BHP Group operations in Australia. OS Production and OS Maintenance are both wholly owned subsidiaries of BHP Group Operations Pty Ltd, which is a wholly owned subsidiary of BHP Group Limited and identified in BHP Group Limited’s consolidated financial statements for the 2023 financial year as having the principal activity of “administrative services”. OS Production and OS Maintenance are parties to a deed of cross guarantee together with other BHP Group subsidiaries including BHP Coal. BHP Coal and the OS Parties were jointly represented in the proceeding and made the same submissions.

The Goonyella Riverside, Peak Downs and Saraji mines are each open cut coal mines and are among the largest coal mines in Australia by reference to the quantity of coal that is mined. The mines utilise a load and haul mining method. The coal mining process at an open cut mine was described in the evidence as involving the following steps:[38]

(a)coal mine workers remove the surface level “overburden” with graders and dozers to prepare the flat pad (overburden is material that is not needed and which sits above the coal seam);
(b)coal mine workers drill holes to a certain depth and then load the holes with shots (explosives) and fire;
(c)the blasted material, known as “waste”, is either removed by coal mine workers with excavators or shovels into trucks, or if possible, a dragline (a heavy duty excavator) as a dragline moves greater volume and more quickly;
(d)once the overburden waste is removed and the coal is exposed, coal mine workers load the coal with excavators or shovels into trucks and take the coal to a holding point or the processing plant; and
(e)after the coal is removed, depending on the coal seams, coal mine workers may come back to continue digging with an excavator or shovel or the coal mine workers responsible for drilling and blasting will blast again.

The duties of coal miners are commonly grouped into four categories; dragline operations (involving coal mine workers removing overburden using dozers or large electric draglines that require high voltage cables), load and haul (involving the removal of overburden using either a shovel or excavator into a truck), drill and blast (involving specialist work involving a coal mine worker drilling large holes in the ground, loading them with explosives and then blasting the explosives) and coal mining (involving coal mine workers excavating the coal into a truck using an excavator).[39] Work falling within each of those four categories is broadly described as production work.

The personnel who perform work at the Goonyella Riverside, Peak Downs and Saraji mines are a combination of employees directly employed by BHP Coal undertaking production and maintenance work as well as the operation of coal handling and preparation plants, BHP Coal employees engaged in administrative, supervisory or professional roles, a small number of employees of BM Alliance Coal Operations performing official statutory functions, employees of OS Production and OS Maintenance, employees of contractors such as BUMA Australia Pty Ltd and Thiess Pty Ltd, employees of WorkPac and Chandler Macleod who provide labour hire services, employees of specialist drilling and blasting work as well as employees of smaller contractors or equipment manufacturers undertaking primarily maintenance work.[40]

Most BHP Coal employees who perform work at the mines, other than those in administrative, supervisory or professional roles, are covered by the BMA Agreement. That agreement covers employees of BHP Coal who perform work covered by Schedule A of the Black Coal Mining Industry Award 2020 (the Black Coal Award) at the Goonyella Riverside, Peak Downs and Saraji mines (as well as another mine known as the Blackwater Mine) and who are members or eligible to be members of unions, including the MEU and the AMWU.[41] In summary terms, the Black Coal Award covers production and engineering workers who are employed in the black coal industry as defined in that award.

The BHP Coal employees performing work at the Goonyella Riverside, Peak Downs and Saraji mines undertake work as part of the mining production division of BMA as well as the maintenance division and that the work involved is properly described as production and engineering work. There is no dispute that employees of BHP Coal who work at the three mines are performing work which is of the same kind as work performed by employees of the OS Parties at the mines or that, for the purposes of s 306E(1), the BMA Agreement would apply to employees of the OS Parties if they were employed directly by BHP Coal.

OS Production employees are primarily engaged in work associated with load and haul overburden mining involving waste or overburden removal also referred to as pre-strip operations although OS Production employees perform some work involving coal removal.[42] OS Production employees are not involved in, and OS Production is not contracted to undertake work, relating to dragline operations or drill and blast operations. OS Production employees are, generally at least, allocated to work groups comprised of other OS Production employees and a supervisor employed by OS Production. It will be necessary to return to the evidence concerning the supervision of OS Production employees below.

OS Maintenance employees are primarily engaged in providing maintenance and repair services in relation to high-usage mining machinery and equipment at various mines operated by BHP, including the Goonyella Riverside, Peak Downs and Saraji mines. The type of equipment in relation to which maintenance work is conducted includes equipment such as rear dump trucks, excavators, dozer, graders, services trucks and wheel dozers.[43] In addition to OS Maintenance employees undertaking maintenance work at mine sites, it operates two repair centres at which off-site maintenance work is undertaken as well as two “Future Fit Academy” training facilities.[44] It will also be necessary to return to that evidence below.

Both OS Production and OS Maintenance have contractual arrangements with BMA which facilitate the operations undertaken by those entities and the work performed by their employees. OS Maintenance first entered into an agreement known as the Framework Maintenance Services Contract on 30 November 2018. OS Maintenance and BMA entered a replacement agreement also entitled the Framework Maintenance Services Contract on 28 July 2022 (the Maintenance Framework Agreement). The contract end date of the Maintenance Framework Agreement is 30 June 2025 unless the contract is brought to an end at an earlier date in accordance with its terms.[45] In broad terms, the Framework Agreement makes provision for BMA to request “services” by giving OS Maintenance what is referred to as a “Site Work Package”.[46]

OS Production first also entered into a Framework Production Services Contract with BMACO on 30 November 2018 on the same day that the initial Framework Agreement was entered into by OS Maintenance. OS Production entered into another Framework Production Services Agreement with BMA on 28 July 2022 again on the same day as OS Maintenance (the Production Framework Agreement). The contract end date of the Production Framework Agreement is 30 June 2025 unless the contract is brought to an end at an earlier date in accordance with its terms.[47] The Production Framework Agreement also provides for BMA to request “services” by giving OS Production a “Site Work Package”.

With that introduction, we turn to consider the matters raised by the parties as being relevant to the assessment of whether the performance of work by employees of OS Production and OS Maintenance is properly characterised as “for the provision of a service, rather than the supply of labour” for the purposes of s 306E(1A). We will first address general matters which are referred to by the parties and then each of the matters the Commission is required to take into account by s 306E(7A). As we have emphasised, the task required by s 306E(1A) involves an evaluative assessment of characterising the purpose, function or object of the work performed by the employees of OS Production and OS Maintenance for BMA having regard to the matters required to be considered by s 306E(7A) or which are otherwise relevant to that characterisation.

General contextual considerations

Corporate group and intra-group arrangements

The MEU submits that an important matter of context in assessing whether the performance of work by OS Production and OS Maintenance employees at each of the mines is not for the provision of a service rather than labour, is the fact that both entities are wholly owned subsidiaries of BHP Group Operations Pty Ltd. The MEU points out that the company constitutions of both OS Production and OS Maintenance make clear that in managing their respective businesses or exercising powers, the directors of both companies may act in the best interests of BHP Group Operations Pty Ltd as holding company.

In its evidence, the MEU points out that the OS Parties describe themselves as part of BHP, including in advertising the availability of employment opportunities with OS Production or OS Maintenance. For example, BHP’s website describes the OS Parties as offering permanent roles within BHP. The website states:

What is Operations Services all about? BHP Operations Services (OS) is a production and maintenance workforce. We offer permanent roles within BHP with full-time benefits including flexible working arrangements and more.

The careers section of the website goes on to provides the answers to a series of frequently asked questions, including:

What is the difference between OS and BHP?
There is no difference. OS is a key component of BHP’s strategy to maintain our competitive edge in the current operating environment.
…
Is OS still BHP?
Yes. OS is a key part of BHP's ongoing strategy to maintain our competitive edge in the current operating environment.

Counsel for the MEU ultimately explained that it does not submit that simply the fact that OS Production and OS Maintenance are part of the BHP precludes a finding that the work performed by employees of the OS Parties is for the provision of a service rather than the supply of labour for the purposes of s 306E(1A). Counsel explained the position of the MEU as follows:[48]

MR BONCARDO: Just as a segue from that observation, Vice President, can I deal with what our learned friends say, at paragraphs 50 to 54, about OS being part of the BHP Group? We concur that the mere fact OS is a part of the BHP Group and has a corporate relationship with BHP Coal doesn't, of itself say anything about the statutory test the Commission has to apply. But that does overlook a number of things. …

The MEU went on to articulate why, in its submission, the fact that the OS Parties are part of the BHP group has implications for the manner in which their operations are conducted, including the use of BHP systems, processes and field leadership, application of BHP policies such as the Code of Conduct for employees and the reliance on BHP for human resources, commercial and health, safety and security support and recruitment services.[49] The closeness of the relationship is said to underscore that the arrangement is not one for the provision of a service in any conventional sense and that the OS entities are not conventional services contractors but, when viewed objectively, vehicles for the provision of labour in the BHP Group’s business. The MEU submits that this is material to the assessment required by s 306E(1A) insofar as it bears upon the reality of the performance of the work at each of the mines by OS employees.

Like WorkPac, Chandler Macleod also refers to clause 7 of the BMA Agreement. We have addressed that matter in dealing with WorkPac’s submissions.

Section 306E(8)(d) – Relationship between regulated host and employer

Section 306E(8)(d) requires the Commission to have regard to the relationship between the regulated host and the employer. There is no evidence of any relationship between Chandler Macleod and BMA other than as a result of the arrangements under which it supplies employees to perform work for BMA under the Chandler Macleod Services Contract. There is no basis in the evidence to suggest that this is not a commercial arm’s length contract. That is part of the circumstances to be considered for the purposes of s 306E(2) and we have considered that matter.

Section 306E(8)(e) – Terms under which the work is performed

Section 306E(8)(e) requires the Commission to have regard to the terms and nature of the arrangement under which the work will be performed. The arrangements between Chandler Macleod and BMA are subject to a commercial contract whereby Chandler Macleod provides labour hire services to BMA. The Chandler Macleod Service Contract has been in place since 18 January 2021 and was extended in late 2024 to run to 31 January 2026. As we have recorded, the Chandler Macleod Service Contract does not require BMA to request services from Chandler Macleod and permits BMA to bring the contract to an end by giving notice.

Chandler Macleod submits that the arrangement, which is in the context of the Queensland mining industry, provides BMA with a number of advantages that go beyond the cost of labour. It submits these benefits include flexibility, the provision of surge labour to cope with peaks and troughs in labour needs, simplified recruitment and selection processes, the ability to meet interim or immediate staff needs, outsourcing of risk management and the administrative burdens associated with regulatory compliance, including unfair dismissals and workers’ compensation, passing on the consequences of redundancies including redeployment, entitlement payments and dismissal claims and reduced stoppages and industrial action.[231] It submits that these benefits will be eroded if the regulated labour hire arrangement order is made both if Chandler Macleod is required to cease the arrangement with BMA or to continue with the arrangement without adequate compensation.

The aspects of the arrangements between Chandler Macleod and BMA relied upon are capable of being matters falling within s 306E(8)(e) (or, in any event, (8)(f)) to which the Commission is required to have regard. The submissions attempt to identify some advantages of the supply of employees by Chandler Macleod. The MEU submitted that the fact that the number of Chandler Macleod employees at the Peak Downs mine has remained reasonably stable suggests its employees are not used purely to provide surge labour. Nonetheless, we are prepared to assume that the provision of labour hire employees could have the advantages alluded to by Chandler Macleod. Those advantages will only be threatened if Chandler Macleod decides to cease providing the services or if BMA ceases to request employees to be provided by Chandler Macleod. If, as Chandler Macleod submits, there are significant benefits to BMA of the use of labour hire employees, we infer that a commercial arrangement will be worked out to permit those arrangements to continue. A regulated labour hire arrangement order does not, in itself, prevent labour hire workers being provided by Chandler Macleod.

The MEU also alleges that there are various disadvantages of the arrangements under which Chandler Macleod provides employees to perform work at the Peak Downs mine. The MEU contends that labour hire employees are less likely to report safety concerns as a result of the precariousness of their employment. It also submits that Chandler Macleod employees are subject of temporary and insecure employment arrangements. It is unnecessary for the Full Bench to make findings in relation to those submissions. A regulated labour hire arrangement order is not concerned with preventing regulated employees from being supplied to perform work for a regulated host. An order, if made, simply has the effect of requiring that regulated employees be paid the protected rate of pay. The function of a regulated labour hire arrangement order is not to attempt to address what the MEU regards as shortcomings of the labour hire model aside from providing an avenue, in an appropriate case, to address a pay differential between labour and directly engaged workers.

We have taken into account the advantages that Chandler Macleod says arise from the arrangements it has to supply employees to perform work at the Peak Downs mine. However, we do not believe those matters contribute to the Full Bench being satisfied it is not fair and reasonable to make the order in the circumstances of this matter since the order, in itself, does not prevent the arrangement continuing.

Section 306E(8)(f) – Other matters the Commission considers relevant

Section 306E(8)(f) requires the Commission to have regard to other matters the Commission considers relevant to whether it is not fair and reasonable in all the circumstances to make the order. Chandler Macleod submits that the Chandler Macleod Service Contract was made in a commercial context that did not include the prospect of a regulated labour hire arrangement order. It says the entirety of its profit margin will be eroded if the order is made and the arrangement will be loss-making for the business. It also says the profit margin is small and its labour costs are likely to increase by between 11 and 28 percent if the order is made and the average weekly estimate is 18.27 percent.[232] Further, it says that its budgeted contingent liabilities (such as leave) will be exceeded if the order is made. Chandler Macleod also submits that, if the labour hire arrangement between it and BMA ceases, there is a real prospect at least some “white collar” positions will be made redundant and cost pressures will be placed on the business generally.

The financial impact of a regulated labour hire arrangement on a labour hire employer is relevant in assessing whether it is not fair and reasonable to make the order, and we have taken into account such evidence as there is in relation to the potential impact on Chandler Macleod of orders being made. Although no estimate of the total additional costs likely to be incurred by Chandler Macleod was provided, we accept that an order will increase labour costs substantially. We do not accept the submission of Chandler Macleod that it is not relevant to take into account the size and significance of its operations and the operations of the RGF Staff group as a whole when considering the impact of a regulated labour hire arrangement order. RGF Staﬀing ANZ Pty Limited and its controlled entities are in strong ﬁnancial health. The ﬁnancial report for the 9 months to 31 March 2024 reveal revenue of $[REDACTED], gross proﬁt of $[REDACTED], net proﬁt of $[REDACTED], net assets of $[REDACTED]and EBITDA of $[REDACTED].[233]

We accept that the making of a regulated labour hire arrangement order applying to Chandler Macleod employees at the Peak Downs mine will have a financial impact on the company if it is unable to renegotiate its arrangements with BMA. However, that impact must be considered in light of the size and scope of the operations of the broader group. We are satisfied that the making of the order sought will not appreciably impact the ﬁnancial health or viability of the entities the subject of the proposed order in the context of the wider group of companies of which it is a part.

To the extent Chandler Macleod submits that it is not fair and reasonable to make an order because it entered its current commercial arrangements without knowing of the potential for such an order, we are not convinced significant weight can be given to that consideration. Whilst the contract was first made in 2021, Chandler Macleod negotiated the current rates it receives in July 2024 after Part 2-7A was enacted (albeit before the provisions commenced) and made a further amending deed to the Chandler Macleod Service Contract to fix its end date in December 2024 when these proceedings were on foot. Furthermore, the Chandler Macleod Services Contract only runs until 31 January 2026 and will need to be renegotiated at that time if that does not occur earlier.

Conclusions in relation to Chandler Macleod

Having considered each of the matters in relation to which submissions have been made by Chandler Macleod and other matters we consider relevant, the Full Bench is not satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order with respect to Chandler Macleod employees supplied to perform work at the Peak Downs mine. The context in which the applications must be considered is that Chandler Macleod employees are performing the same work in the same crews and BMA employees and receiving substantially lower remuneration because of the identity of their employer. We have considered the impact of regulated labour hire arrangement orders being made on Chandler Macleod’s pay and industrial arrangements, whether the order is likely to interfere with the claimed advantages of its labour hire arrangements and the financial impact on Chandler Macleod. Having considered each of those matters, we are not satisfied that it is not fair and reasonable to make the orders sought by the MEU. The consequence is that the Commission is required by s 306E(1) to make regulated labour hire arrangement orders.

Conclusion and disposition

For these reasons, regulated labour hire arrangement orders will be made with respect to each of the applications. In the event that the Full Bench determined to make any orders, BHP and the OS Parties (as well as WorkPac and Chandler Macleod) asked the Commission to defer making orders to afford an opportunity for those parties to be heard on the question of timing of the orders. Those parties indicated that they proposed to give a commitment to pay the protected rate of pay from the date the Commission issues its decision. We direct that the parties confer and communicate to the chambers of Vice President Asbury within 7 days in relation to any proposed timetable for the resolution of any issue as to the timing of the operation of the orders the Full Bench has determined must be made.

VICE PRESIDENT

Appearances:

P Boncardo, of counsel, for the Mining and Energy Union, instructed by A Walkaden and E Delpiano
L Saunders, of counsel, for the Australian Manufacturing Workers’ Union, instructed by K Presdee and D Peatey
R Dalton KC and A Pollock, of counsel, for the BHP Parties, instructed by M Cameron, R Doyle and I Le Mare-Hutton
I Neil SC and J McLean, of counsel, for WorkPac, instructed by D Williams and T Walthall
M Felman KC and N Campbell, of counsel, for Chandler Macleod , instructed by S Billing and B Atton
J Tracey KC, of counsel, for the Minister for Employment and Workplace Relations, instructed by J Zhou and A Anthony
Y Bakri, of counsel, for the Australian Council of Trade Unions, instructed by K Tobin
G Giorgi for the Minerals Council of Australia
S Kelleher for the Australian Industry Group

Hearing details:

2025.
Brisbane.
20-24 and 28-29 January; 17-18 February.

Annexure A

Witness	Called by	Witness Statement/s	Exhibit Number
Wayne Thomas Goulevitch	MEU	Witness statement of 25 July 2024 Witness statement 7 November 2024	MEU 1 MEU 2
George Jeffrey Pearce	MEU	Witness statement of George Jeffrey Pearce dated 31 July 2024 Witness statement of George Jeffrey Pearce dated 24 October 2024	MEU-3 MEU-4
Helen Gabrielle Vine	MEU	Witness statement of Helen Gabrielle Vine dated 25 July 2024 Witness statement of Helen Gabrielle Vine dated 30 October 2024	MEU-5 MEU-6
Mark Lucas McFarlane	MEU	Witness statement of Mark Lucas McFarlane dated 28 July 2024 Witness statement of Mark Lucas McFarlane dated 30 October 2024	MEU-7 MEU-8
Scott Batchelor	MEU	Witness statement of Scott Batchelor dated 31 July 2024 Reply statement of Scott Batchelor dated 21 October 2024	MEU-9 MEU-10
Andrew James Large	MEU	Witness statement of Andrew James Large dated 29 July 2024	MEU-11
Jason John Noonan	MEU	Witness statement of Jason John Noonan dated 26 July 2024 Witness statement of Jason John Noonan dated 6 November 2024	MEU-12 MEU-13
Corey William Reading	MEU	Witness statement of Corey William Reading dated 31 July 2024 Witness statement of Corey William Reading dated 22 October 2024	MEU-14 MEU-15
Stephen Alexander Whitton	MEU	Witness statement of Stephen Alexander Whitton dated 30 July 2024 Witness statement of Stephen Alexander Whitton dated 25 October 2024	MEU-16 MEU-17
Bradley John Schofield	MEU	Witness statement of Bradley John Schofield dated 25 July 2024 Witness statement of Bradley John Schofield dated 23 October 2024	MEU-18 MEU-19
Jeffrey Michael Scales	MEU	Witness statement of Jeffrey Michael Scales dated 8 November 2024	MEU-20
Tiahnni Annette Gaukroger	MEU	Witness statement of Tiahnni Annette Gaukroger dated 30 July 20254 Witness statement of Tiahnni Annette Gaukroger dated 22 October 2024	MEU-21 MEU-22
Allen Thomas Uren	MEU	Witness statement of Allen Thomas Uren dated 30 July 2024 Witness statement of Allen Thomas Uren dated 31 October 2024	MEU-23 MEU-24
Angus Daniel Ryan	MEU	Witness statement of Angus Daniel Ryan dated 26 July 2024 Witness statement of Angus Daniel Ryan dated 21 October 2024	MEU-25 MEU-26
Ronald Green	MEU	Witness statement of Ronald Green dated 31 July 2024 Witness statement of Ronald Green dated 31 October 2024	MEU-27 MEU-28
Scott Leggett	MEU	Witness statement of Scott Leggett dated 29 July 2024	MEU-29
Marcus Welk	MEU	Witness statement of Marcus Welk dated 30 July 2024	MEU-30
Shane Stokes	AMWU	Witness statement of Shane Stokes dated 2 August 2024	AMWU-1
Daniel Lunan	AMWU	Witness statement of Daniel Lunan dated 2 August 2024	AMWU-2
Daryl Piper	AMWU	Witness statement of Daryl Piper dated 2 August 2024	AMWU-3
Grant John Costello	BHP	Statement of Grant John Costello dated 4 October 2024	OS-1
Scott Conners	BHP	Witness Statement of Scott Conners dated 27 September 2024	OS-2
Vaughn Stanley Bruce Abrams	BHP	Witness Statement of Vaughn Stanley Bruce Abrams dated 4 October 2024	OS-3
Michael John Thomas	BHP	Statement of Michael John Thomas dated 4 October 2024	OS-5
Dane Andrew Nielsen	BHP	Witness Statement of Dane Andrew Nielsen dated 4 October 2024	OS-06
Mitch Hughes	MEU	Witness Statement of Mitch Hughes dated 29 July 2024 Witness Statement of Mitch Hughes dated 12 November 2024	MEU-52 MEU-53
Robert Geoffrey Hanson	BHP	Witness Statement of Robert Geoffrey Hanson dated 4 October 2024	OS-07
Cory James Cavanough	BHP	Witness Statement of Cory James Cavanough dated 27 September 2024	OS-08
Timothy Geoffrey Francis Witney	BHP	Witness Statement of Timothy Geoffrey Francis Witney dated 27 September 2024	OS-09
Cameron Scott Millican	BHP	Witness Statement of Cameron Scott Millican dated 4 October 2024	OS-10
Brennan John Long	BHP	Witness Statement of Brennan John Long dated 27 September 2024	OS-11
David Colin Thomasson	BHP	Witness Statement of David Colin Thomasson dated 4 October 2024	OS-12
Cameron Hockaday	WorkPac	Witness Statement of Cameron Hockaday dated 3 October 2024 Witness Statement of Cameron Hockaday dated 2024 (including corrections page	WP-1 WP-2
Nick Gabrielidis	Chandler Macleod	First Witness Statement of Nick Gabrielidis 4 October 2024 Second Witness Statement of Nick Gabrielidis 19 January 2025	CM-1 CM-2
Samuel Adam Willett	Chandler Macleod	Witness Statement of Samuel Adam Willett dated 27 September 2024	CM-3
Steven William Shepherd	Chandler Macleod	Witness Statement of Steven William Shepherd dated 4 October 2024	CM-4

[1] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [10].

[2] Commonwealth, Parliamentary Debates, House of Representatives, 28 November 2023, p8704.

[3] Attorney-General (Cth) v Oates (1999) 198 CLR 162 at [33] (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ); Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149; (2014) 86 NSWLR 499 at [28] (Leeming JA).

[4] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [15].

[5] Retail & Fast Food Workers Union Inc v Coles Supermarkets Australia Pty Ltd[2021] FWCFB 4414; (2021) 310 IR 130 at [16].

[6] See, for example, Technical and Further Education Commission v Pykett [2014] FWCFB 714; (2014) 240 IR 130 at [36]; Teterin v Resource Pacific Pty Ltd[2014] FWCFB 4125; (2014) 244 IR 252 at [23]-[30]; Jain v Infosys Ltd (t/as Infosys Technologies Ltd)[2014] FWCFB 5595 at [34]-[37].

[7] Re Chamber of South Australian Employers Inc (No 2) (1991) 43 IR 424 at 441-442; Coal & Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (1997) 73 IR 311 at 317; Re Family and Domestic Violence Leave Review 2021[2022] FWCFB 2001; (2002) 315 IR 123 at [270]-[271].

[8] Fair Work Act 2009 (Cth), s 306E(5).

[9] Macquarie Dictionary.

[10] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [638].

[11] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [635].

[12] Re Mining and Energy Union[2024] FWCFB 299; (2024) 333 IR 249 at [15].

[13] Op. cit. at [10].

[14] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ); Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 at [294] (Edelman J); Bird v DP [2024] HCA 41; (2024) 98ALJR 1349 at [101] (Gleeson J).

[15] Construction Industry Training Board v Labour Force Ltd [1970] 3 All ER 220; Building Workers’ Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104; Drake Personnel Ltd v Commissioner of State Revenue [2000] VSCA 122; [2000] 2 VR 635; Forstaff Pty Ltd v Commissioner of State Revenue [2004] NSWSC 573; (2004) 144 IR 1; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 275 CLR 165.

[16] Mersey Docks and Harbour Board v Coggins and Griffith (Liverpool) Ltd [1947] AC 1; Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194; (2001) 162 FLR 173.

[17] Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641; Swift Placements Pty Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 9; (2000) 96 IR 69; Labour Co-operative Ltd v WorkCover Authority of New South Wales (Insp Robins) [2003] NSWIRComm 51; (2003) 121 IR 78.

[18] See, for example, Labour Hire Licensing Act 2018 (Vic), s 7; Labour Hire Licensing Act 2017 (Qld), s 7; Labour Hire Licensing Act 2020 (ACT), s 7; Labour Hire Licensing Act 2017 (SA), s 7.

[19] Victorian Workcover Authority v Divadeus Pty Ltd (in liq) [2016] VSCA 81 at [115].

[20] Ibid at [109] and [112]-[113].

[21] Marketform Managing Agency Ltd v Ashcroft Supa IGA Orange Pty Ltd [2020] NSWCA 36 at [68]-[69] (Payne JA, Ward CJ in Eq and Leeming JA agreeing).

[22] Ibid at [70]-[72].

[23] By reference to IW v City of Perth (1997) 191 CLR 1 at 58 (Kirby J) and New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act [2016] HCA 50; (2016) 260 CLR 232 at [32] (French CJ, Kiefel, Bell and Keane JJ).

[24] Ryan v Commissioner of Police [2022] FCAFC 36; (2022) 290 FCR 369 at [110] (Griffiths, Rangiah and Perry JJ).

[25] Rose v Department of Social Security (1990) 21 FCR 241 at 244 (Lockhart, Gummow and Einfeld JJ); Mann v Ross (1999) 88 FCR 274 at [19] (Ryan, Moore and Marshall JJ).

[26] Chief Executive Officer of Customs v Adelaide Brighton Cement Ltd [2004] FCAFC 183; (2004) 139 FCR 147 at [17] (Black CJ) referring to Pearce and Geddes, Statutory Interpretation in Australia (5th ed, 2001) at [9.5].

[27] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason CJ).

[28] Edwards v Giudice (1999) 94 FCR 561 at [5] (Moore J); National Retail Association v Fair Work Commission [2014] FCAFC 118; (2014) 225 FCR 154 at [56] (Collier, Bromberg and Katzmann JJ); Re 4 Yearly Review of Modern Awards[2019] FWCFB 6067 at [13]; Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [15].

[29] See, for example, the approach adopted in Andrews v Diprose (1937) 58 CLR 399 at 310 (Dixon J).

[30] R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 (Mason J).

[31] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [634].

[32] Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)(i) and (ii).

[33] Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1 at [5] (Allsop CJ).

[34] P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [8.20].

[35] Sydney Seaplanes Pty Ltd v Page [2001] NSWCA 204; (2021) 106 NSWLR 1 at [41] (Bell P).

[36] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517-518 (Mason CJ, Wilson and Dawson JJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [22] (Logan J).

[37] Commonwealth, Parliamentary Debates, House of Representatives, 4 September 2023, p6240.

[38] Ex OS1 (Statement of Costello, 4 October 2024), [42]. See also description provided by Wayne Goulevitch in Ex MEU1 (Statement of Goulevitch, 25 July 2024), [16]-[21].

[39] Ex OS1 (Statement of Costello, 4 October 2024), [43].

[40] Ex OS3 (Statement of Abrams, 4 October 2024), [5]; Ex OS5 (Statement of Thomas, 4 October 2024), [12]; Ex OS6 (Statement of Nielsen, 4 October 2024), [10].

[41] BMA Enterprise Agreement 2022, clause 1.1(a) and (b).

[42] Ex OS1 (Statement of Costello, 4 October 2024), [41]-[46].

[43] Ex OS2 (Statement of Connors, 27 September 2024), [11].

[44] Ex OS2 (Statement of Connors, 27 September 2024), [12].

[45] Ex OS2 (Statement of Connors, 27 September 2024), [31]-[32].

[46] Maintenance Framework Agreement, clause 3.1.

[47] Ex OS1 (Statement of Costello, 4 October 2024), [57]-[58].

[48] Transcript, PN8837.

[49] See, for example, Transcript, PN2856-2962 (Costello) and Ex MEU36 (Operations Services, Operating Design) at p4-7.

[50] Being Mitsubishi Development Pty Ltd, QCT Investment Pty Ltd, WCT Mining Pty Ltd, and QCT Resources Pty Ltd.

[51] Ex OS1 (Statement of Costello, 4 October 2024), [24]-[26]; Ex OS2 (Statement of Connors, 27 September 2024), [16]-[17].

[52] Ex OS1 (Statement of Costello, 4 October 2024), [28]-[39].

[53] Ex OS2 (Statement of Connors, 27 September 2024), [12].

[54] Ex OS2 (Statement of Connors, 27 September 2024), [21].

[55] Production Framework Agreement, clause 13(c) and (d).

[56] Production Framework Agreement, clause 14.1(d).

[57] Transcript, PN3053-3054 (Costello).

[58] Production Framework Agreement, clause 2.2 of Schedule 2.

[59] Maintenance Framework Agreement, clause 1.3. 3.1(1) and (d).

[60] Maintenance Framework Agreement, clause 13.3.

[61] Maintenance Framework Agreement, clause 3.3-3.5.

[62] Maintenance Framework Agreement, clause 2.4 of Schedule 2.

[63] Ex OS10 (Statement of Millican, 4 October 2024), [44].

[64] Production Framework Agreement, clause 2.2 of Schedule 2; Maintenance Framework Agreement, clause 2.2 of Schedule 2.

[65] Ex OS2 (Statement of Connors, 27 September 2024), SC-4.

[66] Transcript, PN3891-3896 (Connors).

[67] Transcript, PN3898-3909 (Connors).

[68] Transcript, PN5964-5998 (Hanson).

[69] Maintenance Framework Agreement, clause 15.12(a).

[70] Ex OS2 (Statement of Connors, 27 September 2024), [37]-[39]. See also Ex OS1 (Statement of Costello, 4 October 2024), [62]-[64]; Ex OS3 (Statement of Abrams, 4 October 2024), [33]-[35]; Ex OS5 (Statement of Thomas, 4 October 2024), [64]; Ex OS6 (Statement of Neilsen, 4 October 2024), [24]; Ex OS12 (Statement of Thomasson, 4 October 2024), [18].

[71] Exhibits MEU37, MEU38, MEU39, AMWU4 and OS4.

[72] Transcript, PN5279 (Neilsen) and PN6815-6820 (Millican).

[73] Exhibits MEU56 and MEU57.

[74] Transcript, PN4213-4219 (Abrams).

[75] Transcript, PN5280-5286 (Neilsen).

[76] See also Transcript, PN4392-4397 (Abrams) and PN6942-6950 (Long).

[77] See, for example, Transcript 6816-6823 (Millican).

[78] Ex OS2 (Statement of Connors, 27 September 2024), [12]; Ex OS7 (Statement of Hanson, 4 October 2024), [63]; Ex OS8 (Statement of Cavanough, 27 September 2024), [38]-[39].

[79] Ex OS11 (Statement of Long, 27 September 2024), [61].

[80] Transcript PN6537-6545 (Cavanough).

[81] Ex OS2 (Statement of Connors, 27 September 2024), [78]. See also Ex OS7 (Statement of Hanson, 4 October 2024), [64]; Ex OS8 (Statement of Cavanough, 27 September 2024), [40].

[82] Ex OS2 (Statement of Connors, 27 September 2024), [78]-[82].

[83] Ex OS2 (Statement of Connors, 27 September 2024), [83].

[84] Ex OS1 (Statement of Costello, 4 October 2024), [125]-[128]; Ex OS2 (Statement of Connors, 27 September 2024), [114]-[120].

[85] Ex OS1 (Statement of Costello, 4 October 2024), [20]-[21].

[86] Ex OS2 (Statement of Connors, 27 September 2024), [17].

[87] Ex OS2 (Statement of Connors, 27 September 2024), [20].

[88] Ex OS3 (Statement of Abrams, 4 October 2024), [37].

[89] Transcript, PN4537-4548 and PN4712-4715 (Abrams).

[90] Transcript, PN4849-4856 (Thomas).

[91] Ex WP1 (Statement of Hockaday, 3 October 2024), [38]-[40].

[92] Ex WP1 (Statement of Hockaday, 3 October 2024), Annexure CH-1 (Services Contact, clause 3.1).

[93] Ex WP1 (Statement of Hockaday, 3 October 2024), Annexure CH-1 (Services Contact, clause 3.1).

[94] Ex WP1 (Statement of Hockaday, 3 October 2024), Annexure CH-1 (Services Contact, clause 7).

[95] Minister for Home Affairs v DLZ18 [2020] HCA 43; (2020) 270 CLR 3672 at [43] and the authorities referred to therein.

[96] See, for example, Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25] (French CJ and Hayne J).

[97] Production Framework Agreement, clause 7.1.

[98] Production Framework Agreement, clause 8.1.

[99] Production Framework Agreement, clause 8.3.

[100] Exhibit MEU41.

[101] See also Transcript PN4871-4903 (Thomas).

[102] Transcript, PN3363 (Costello).

[103] Transcript, PN4382-4386 (Abrams).

[104] Transcript, PN4904 (Thomas).

[105] Transcript, PN5302-5305 (Nielsen).

[106] Maintenance Framework Agreement, clause 7.1.

[107] Maintenance Framework Agreement, clause 7.2.

[108] Ex OS8 (Statement of Cavanough, 27 September 2024), [28]-[30].

[109] Ex OS8 (Statement of Cavanough, 27 September 2024), [29].

[110] Transcript, PN4009-4011 (Connors).

[111] Transcript, PN6345-6347 (Cavanough).

[112] See, for example, Transcript PN4383 (Abrams).

[113] See, for example, Transcript, N4381-4386 (Abrams), PN4764-4766 (Abrams) and PN4015-4018 (Connors).

[114] See, for example, Ex OS1 (Statement of Costello, 4 October 2024), [115] and Ex OS2 (Statement of Connors, 27 September 2024), [88].

[115] Ex OS12 (Statement of Thomasson, 4 October 2024), [59]. See also Ex OS1 (Statement of Costello, 4 October 2024), [116].

[116] Production Framework Agreement, clause 14.3; Maintenance Framework Agreement, clause 13.3.

[117] Ex OS1 (Statement of Costello, 4 October 2024), [95]; Transcript, PN2903-2905 (Costello).

[118] See, for example, Transcript, PN4452-4471 (Abrams).

[119] Ex OS1 (Statement of Costello, 4 October 2024), [101].

[120] Macquarie Dictionary definitions.

[121] Transcript, PN9490 (Dalton).

[122] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [638].

[123] See, generally, OS5 (Statement of Thomas, 4 October 2024), [36]-[40]; Ex OS6 (Statement of Hanson, 4 October 2024), [67]-[72]; OS9 (Statement of Witney, 27 September 2024), [83]-[88].

[124] Referring to Ex OS8 (Statement of Cavanough, 27 September 2024), [52]; Ex OS10 (Statement of Millican, 4 October 2024), [55]-[57]; Ex OS11 (Statement of Long, 27 September 2024), [67]-[71].

[125] See, for example, Transcript PN4449-4450 and PN4496-4497 (Abrams).

[126] Transcript, PN5353-5368 (Nielsen).

[127] See, for example, Transcript PN4446-4447 (Abrams) and PN5375-5376 (Nielsen).

[128] Exhibit MEU31.

[129] Exhibit MEU33, Volume 3 Tab 21, 22, 31 and 58.

[130] Exhibit MEU33, Volume 4 Tab 25, 26 and 33.

[131] Exhibit MEU33, Volume 2 Tab 39, 44 and 45.

[132] Exhibit MEU33, Volume Tab 3, 12, 15, 16 and 41; Volume 3 Tab 2, 6, 11, 12 and 29; Volume 4 Tab 18, 20, 31, 42, 52 and 58.

[133] Transcript, PN5007 (Thomas).

[134] Transcript, PN4982 (Thomas).

[135] Transcript, PN4533 (Abrams), PN5391 (Nielsen) and PN6731-6735 (Hanson).

[136] Ex MEU21 (Statement of Geukroger, 30 July 2024), [27]-[29].

[137] Ex MEU7 (Statement of Macfarlane, 28 July 2024), [42].

[138] See also Ex MEU5 (Statement of Vine, 25 Jul 2024), [33]-[34]; Ex MEU25 (Statement of Ryan, 26 Jul 2024), [30]; Ex MEU30 (Statement of Welk, 30 Jul 2024), [36].

[139] See, for example, Ex OS9 (Statement of Witney, 27 September 2024), [88]; Ex OS6 (Statement of Hanson, 4 October 2024), [57]-[59].

[140] Transcript, PN5411-5417 (Nielsen).

[141] Transcript, PN5415-5417 (Nielsen).

[142] Exhibit MEU54.

[143] Transcript, PN4663-4671 (Abrams). See also Transcript, PN6118-6120 (Hanson).

[144] Transcript, PN6225-6228 (Hanson) and PN7277- 7281 (Thomassen).

[145] See, for example, Ex MEU10 (Reply statement of Bachelor, 21 October 2024), [7]-[13]; Ex MEU14 (Statement of Reading, 31 July 2024), [21]-[22]; Ex MEU16 (Statement of Whitton, 30 July 2024), [47]-[50].

[146] Ex OS6 (Statement of Nielsen, 4 October 2024), [37]; Ex OS8 (Statement of Cavanough, 27 September 2024), [65]; Ex OS9 (Statement of Witney, 27 September 2024), [97].

[147] Ex OS2 (Statement of Connors, 27 September 2024), [92]; Ex OS8 (Statement of Cavanough, 27 September 2024), [63]; Ex OS10 (Statement of Millican, 4 October 2024), [50].

[148] Exhibit MEU30, Volume 3, Tab 30 at p6.

[149] Exhibit MEU30, Volume 3, Tab 30 at p7-8.

[150] See, for example, Ex OS1 (Statement of Costello, 4 October 2024), [50].

[151] Ex OS1 (Statement of Costello, 4 October 2024), [50].

[152] Transcript, PN4537-4548 (Abrams), PN4712-4715 (Abrams) and PN4849-4856 (Thomas).

[153] Ex OS1 (Statement of Costello, 4 October 2024), GJC-5.

[154] Ex OS6 (Statement of Nielsen, 4 October 2024), [33]-[39]; Ex OS6 (Statement of Hanson, 4 October 2024), [52]; Ex OS6 (Statement of Thomasson, 4 October 2024), [40].

[155] Ex OS2 (Statement of Connors, 27 September 2024), SC-3.

[156] Ex OS11 (Statement of Long, 27 September 2024), [26]-[30].

[157] Ex OS8 (Statement of Cavanough, 27 September 2024), [45].

[158] Ex OS10 (Statement of Millican, 4 October 2024), [51].

[159] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [21](d).

[160] Coal Mining Safety and Health Act 1999 (Qld), s 21.

[161] Coal Mining Safety and Health Act 1999 (Qld), Schedule 3 (Dictionary).

[162] Coal Mining Safety and Health Act 1999 (Qld), s 43.

[163] Transcript, PN275-279, PN409-421, PN747-748, PN976-978, PN2268-2270 and PN2386-2390.

[164] Transcript, PN59-79, PN409-422, PN541-551, PN558-566, PN566-585 and PN1077-1088.

[165] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [637].

[166] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [21](e).

[167] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [16].

[168] Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [16]. See also Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 at [49]-[50]; Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [78].

[169] Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2024] FCAFC 15; (2024) 303 FCR 100 at [131] (Perram and Downes JJ). See also B v Australian Postal Corporation[2013] FWCFB 6191; (2013) 238 IR 1 at [21] (in the context of s 387(h) of the Act) and Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Joshua Thompson and Dylan Howard [2025] FWC 1177 at [22] (in relation to s 513(g)).

[170] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [81] referring to the approach adopted in other contexts in Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35; (2015) 229 FCR 537 at [36] (Buchanan J) and Secretary of the Ministry of Health v New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178; (2022) 320 IR 249 at [12] (Walton J).

[171] Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 at [51]-[52]; Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [79].

[172] Retail Employees Superannuation Pty Ltd v Crocker [2001] FCA 1330 at [26] (Allsop J); Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256; (2002) 116 FCR 139 at [48] (RD Nicholson J).

[173] By operation of s 306F(10).

[174] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Aurizon Operations Ltd [2015] FCAFC 126; (2015) 233 FCR 301 at [23].

[175] JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53; (2012) 201 FCR 297 at [5] (Jessup J); United Firefighters Union of Australia v County Fire Authority [2015] FCAFC 1; (2015) 228 FCR 497 at [156] (Perram, Robertson and Griffiths JJ).

[176] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [91].

[177] Fair Work Act 2009 (Cth), ss 55(1) and 186(2)(d).

[178] Fair Work Act 2009 (Cth), s 266(1) and 269(1).

[179] Fair Work Act 2009 (Cth), s 249(1). See discussion in Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire Council[2024] FWCFB 444; (2024) 335 FCR 110 at [75]-[76].

[180] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [92].

[181] Fair Work Act 2009 (Cth), s 12.

[182] By reference to RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130 at [22] (Leeming JA).

[183] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [84]-[88].

[184] Fair Work Act 2009 (Cth), s 306E(8)(a), (c), (da) and (e).

[185] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [82]-[83].

[186] Ex WP1 (Statement of Hockaday, 3 October 2024), [53](c).

[187] Exhibit MEU56.

[188] Ex WP1 (Statement of Hockaday, 3 October 2024), Annexure CH-1 (Services Contact, clause 4.2).

[189] Ex WP1 (Statement of Hockaday, 3 October 2024), [54]-[56].

[190] Ex WP2 (Supplementary statement of Hockaday, 19 December 2024), [17].

[191] Ex WP1 (Statement of Hockaday, 3 October 2024), [58].

[192] Ex WP1 (Statement of Hockaday, 3 October 2024), [51].

[193] Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) at [648].

[194] Fair Work Act 2009 (Cth), s 306G(1).

[195] WorkPac Coal Mining Agreement 2019, clause 1.2.1.

[196] BMA Enterprise Agreement 2022, clause 2 of Schedule 9.

[197] BMA Enterprise Agreement 2022, clause 1.3 of Schedule 9.

[198] WorkPac Coal Mining Agreement 2019, Schedule 1 (particularly Levels 1, 2 and 3).

[199] Ex WP2 (Supplementary statement of Hockaday, 19 December 2024), [23].

[200] Ex WP2 (Supplementary statement of Hockaday, 19 December 2024), [18].

[201] Application by the Mining and Energy Union re Bengalla Mining Company Pty Ltd [2025] FWCFB 53 at [123].

[202] Ex WP1 (Statement of Hockaday, 3 October 2024), [63].

[203] Fair Work Act 2009 (Cth), s 306NA(2) and (3).

[204] Ex WP1 (Statement of Hockaday, 3 October 2024), Annexure CH-4 clause 4(b).

[205] Ex WP1 (Statement of Hockaday, 3 October 2024), [62](g).

[206] Ex WP2 (Supplementary statement of Hockaday, 19 December 2024), [35].

[207] Ex WP1 (Statement of Hockaday, 3 October 2024), [62](g).

[208] Transcript, PN9843-9850 (Neil).

[209] Ex WP2 (Supplementary statement of Hockaday, 19 December 2024), Annexure CH-5.

[210] PR777029 (in relation to the Callide Mine), PR780878 (in relation to the Coppabella Mine), PR780861 (in relation to the Capcoal Surface Operations Mine), PR780868 (in relation to the Poitrel Mine) and PR 783395 (in relation to Rix’s Creek Mine).

[211] Transcript, PN7627-7680 (Hockaday).

[212] Ex CM1 (Statement of Gabrielidis, 4 October 2024), [5]; Ex CM3 (Statement of Willett, 27 September 2024), [2]-[3].

[213] Ex CM1 (Statement of Gabrielidis, 4 October 2024), [9]-[13].

[214] Ex CM4 (Statement of Shepherd, 4 October 2024), [10].

[215] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-01 and SWS-02; Ex CM2 (Statement of Gabrielidis, 19 January 2025), Annexure NG-01.

[216] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-01 (Services Contact, clause 4.2).

[217] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-01 (Services Contact, Schedule 2).

[218] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-02 (Services Contact, clause 9 of Schedule 3).

[219] Ex CM2 (Statement of Gabrielidis, 19 January 2025), [12].

[220] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-02 (Services Contact, clause 4(a) of Schedule 3).

[221] Ex CM4 (Statement of Shepherd, 4 October 2024), Annexure SWS-01 (Services Contact, clause 22.2).

[222] Ex CM3 (Statement of Willett, 27 September 2024), [20].

[223] Ex CM1 (Statement of Gabrielidis, 4 October 2024), [24]; Transcript, PN8398 (Willett) and PN8467-8471 (Shepherd).

[224] Ex CM4 (Statement of Shepherd, 4 October 2024), [22]-[23]; Transcript, PN8220-8223 (Willett).

[225] Transcript, PN8399 and PN8427-8429 (Willett).

[226] Ex CM1 (Statement of Gabrielidis, 4 October 2024), [36]; Ex CM3 (Statement of Willett, 27 September 2024), [83].

[227] Transcript, PN8279-8369 (Willett).

[228] Ex CM3 (Statement of Willett, 27 September 2024), Annexure SAW-23 p15.

[229] Transcript, PN8462 (Willett).

[230] Transcript, PN8361 (Willett).

[231] Transcript, PN5758-5809 (Hughes).

[232] Ex CM2 (Statement of Gabrielidis, 19 January 2025), [14]-[15].

[233] Exhibit MEU66.

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