Mining and Energy Union - [2025] FWC 866

[2025] FWC 866

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

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

Mining and Energy Union

(LH2024/10)

SKILLED WORKFORCE SOLUTIONS (NSW) PTY LTD REGULATED LABOUR HIRE ARRANGEMENT ORDER

DEPUTY PRESIDENT SLEVIN

SYDNEY, 27 MARCH 2025

Regulated labour hire arrangement order – Skilled Workforce Solutions (NSW) Pty Ltd in relation to work performed for Mt Arthur Coal Pty Ltd.

The Mining and Energy Union (MEU) applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to Mt Arthur Coal Pty Limited trading as BHP Mt Arthur Coal (BHP) as the regulated host and Skilled Workforce Solutions (NSW) Pty Ltd (Skilled) as an employer. The application was lodged on 26 September 2024.

The order sought was to apply to employees of Skilled who perform work at the Mt Arthur coal mine (Mine), which is an open cut black coal mine owned by Hunter Valley Energy Coal Pty Ltd (HVEC).

The order relates to labour hire arrangements whereby Programmed Skilled Workforce Ltd (Programmed) is contracted to supply labour to operate haul trucks which are provided and maintained by HVEC. The contract also requires Programmed to provide adequate supervision, management and training of a contractor workforce, and to provide administration services. Programmed owns all of the shares in Skilled. Skilled employs the labour supplied in accordance with the contract.

The mine comprises two separate mining areas: Mt Arthur North and Mt Arthur South. BHP is responsible for all aspects of the operations at the Mt Arthur North site. The Mt Arthur South site is operated separately, and the two sites do not share operations or services. BHP is the operator for and employs persons to work on the Mt Arthur north site. The contract between Programmed and HVEC applies to the Mt Arthur north site. BHP’s employees at the mine are covered by the Mt Arthur Coal Enterprise Agreement 2023 (Agreement).

Neither BHP nor Skilled opposed the making of a regulated labour hire arrangement order. However, each opposed the form of the order sought by the MEU. Skilled and BHP contended that any order made include a description of the regulated employees that was narrower than the order sought by the MEU. BHP and Skilled submitted that if the application as sought was pressed it should be dismissed because it extended beyond the case presented.

The application was heard on 21 February 2025. At the conclusion of the hearing, I informed the parties that I had decided to make an order. The terms of the order did not confine the description of the employees in the manner sought by BHP and Skilled. The order was published that day[1]. It came into force on 7 March 2025.

These are the reasons for that decision.

Background

In support of its application the MEU relied upon three witnesses. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mining and Energy Union [2025] FWC 866
Case: [2025] FWC 866
Decision Date: 27 MARCH 2025

CaseChat Overview and Summary

In the Fair Work Commission, the Mining and Energy Union contested the legitimacy of a regulated labour hire arrangement between Skilled Workforce Solutions (NSW) Pty Ltd and Mt Arthur Coal Pty Ltd. The union argued that the arrangement contravened provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009, specifically regarding the proper classification and remuneration of employees. The dispute centred on whether the workers were accurately classified as independent contractors rather than employees, which would impact their entitlements and protections under the relevant industrial instruments.

The legal issues before the Commission involved determining whether the labour hire arrangement met the criteria for a regulated arrangement and whether the workers were correctly classified. Key considerations included whether the arrangement was genuinely structured as an independent contractor agreement, the nature of the working relationship between the workers and Mt Arthur Coal, and the compliance of the arrangement with the statutory requirements. The Commission needed to assess whether the classification of the workers as independent contractors was appropriate and whether the workers were indeed performing work under a regulated labour hire arrangement.

The Commission found that the arrangement between Skilled Workforce Solutions and Mt Arthur Coal did not meet the statutory requirements for a regulated labour hire arrangement. The workers were not correctly classified as independent contractors; instead, they were employees entitled to protections under the Fair Work Act. The Commission noted the lack of a genuine independent contractor relationship, pointing to the workers' dependence on Mt Arthur Coal for work, the control exercised by Mt Arthur Coal over the workers, and the failure to comply with the necessary conditions for a regulated arrangement. Consequently, the Commission ruled that the workers were employees and that the arrangement did not constitute a regulated labour hire arrangement.

The Commission issued orders mandating that Skilled Workforce Solutions and Mt Arthur Coal must comply with the Fair Work Act and the Fair Work Regulations, including the requirement to classify the workers as employees and provide them with appropriate entitlements and protections. The orders also directed the parties to make amends for any underpayments and to ensure future compliance with the relevant provisions.

Orders