Mining and Energy Union re Caval Ridge Mine - [2025] FWC 2711

[2025] FWC 2711

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Mining and Energy Union re Caval Ridge Mine

(LH2024/76 & LH2024/77)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 12 SEPTEMBER 2025

Applications for regulated labour hire arrangement orders – s.306E(2) - whether it is not fair and reasonable in all the circumstances to make the proposed orders –– form of order.

Introduction

In these matters, the Mining and Energy Union (MEU) has applied for regulated labour hire arrangement orders (RLHA orders) under s.306E of the Fair Work Act 2009 (Cth) (Act). The proposed orders relate to work performed by employees of Ready Workforce (a Division of Chandler Macleod) Pty Ltd and Chandler Macleod Group Ltd (Chandler Macleod) and WorkPac Pty Ltd and WorkPac Mining Pty Ltd (WorkPac) (collectively, the Labour Hire Employers) respectively, at the Caval Ridge coal mine (Mine) in Queensland. The operator of the Mine is BM Alliance Coal Operations Pty Ltd (BMA).[1] The BHP Group owns 50% of BMA. Central Queensland Services Pty Ltd (CQS), which employs employees to work at the Mine, is also an entity within the BHP Group.[2] CQS is identified as the ‘regulated host’ in the applications.

If granted, the applications would result in the BMA Caval Ridge Mine Enterprise Agreement 2023 (BMA Agreement) being treated as the ‘host employment instrument’ and the Labour Hire Employers would be required to pay their employees no less than the ‘protected rate of pay’[3] which would be the full rate of pay payable to those employees if the BMA Agreement were to apply to the employees at the Mine. The BMA Agreement is expressed as covering and applying to CQS and its employees at the Mine, and the MEU (amongst others).

The Labour Hire Employers oppose the applications on the basis that the Fair Work Commission (Commission) can and should be satisfied that it would not be fair and reasonable in all the circumstances for orders to be made and that the Commission in that case is prevented from making orders because of the operation of s.306E(2) of the Act. CQS opposes the scope and form of the proposed orders and submitted that if orders were made, they should be more confined in their scope by limiting the way the regulated employees are specified in the terms of the orders. CQS did not advance any submission under ss.306E(2) and (8). At the hearing of the matter, CQS made a further submission that the proposed orders could not be made at all. More will be said about that below.

Background

The Mine is an open cut coal mine located in the Bowen Basin approximately 170km south-west of Mackay, Queensland. CQS employs production and maintenance (engineering) employees to perform work at the Mine. The Mine’s operations are supported by employees supplied by the Labour Hire Employers.

The BMA Agreement contains a two-tiered classification structure being ‘Level 1 Production and Engineering Employee – Trades’ and ‘Level 2 Production and Engineering Employee’.…

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

Case: [2025] FWC 2711
Decision Date: 12 SEPTEMBER 2025

CaseChat Overview and Summary

The Fair Work Commission was required to determine whether it was fair and reasonable to make regulated labour hire arrangement (RLHA) orders under s.306E of the Fair Work Act 2009 (Cth) in respect of employees supplied by Chandler Macleod and WorkPac to perform work for CQS at the Caval Ridge Mine. The Mining and Energy Union (MEU) applied for the orders on behalf of the employees of the Labour Hire Employers. The Labour Hire Employers opposed the applications on the basis that it would not be fair and reasonable to make the orders and that the Fair Work Commission was prevented from making orders because of s.306E(2). CQS opposed the scope and form of the proposed orders. The Commission found that it was not satisfied that it would not be fair and reasonable to make the orders and that the requirements of s.306E(1) were met. It rejected the submission that the proposed orders should be confined to the employees presently supplied by the Labour Hire Employers on the basis that the statutory preconditions for the making of a RLHA order applied to future labour hire arrangements and that the form of the orders should not be confined by reference to the possibility that the Labour Hire Employers may, in the future, supply employees who were not presently supplied. The Commission concluded that it was required to make orders under s.306E and that the orders would be in the form sought by the MEU. The orders will be made effective from 13 October 2025.

Orders