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’. Appendix 1 to the BMA Agreement describes employees in those classifications as being persons ‘whose employment otherwise would be governed by operation of schedule A of the BCMI Award, excluding supervisors.’ The reference to the BCMI Award is a reference to the Black Coal Mining Industry Award 2020 (BCMI Award). The ‘Mineworker’ classifications in the BCMI Award are defined in broad terms in schedule A of that award. The base hourly rates of pay for the 2 classifications in the BMA Agreement varies according to the roster worked by those employees. Employees are paid an annualised salary in accordance with Appendix 1 of the BMA Agreement.[4]

Employees of Chandler Macleod are provided to CQS to work at the Mine pursuant to a services contract between Chandler Macleod and BMA and others, entered into in January 2021. The contract provides for the supply of employees at an agreed set of rates. An enterprise agreement called the Chandler Macleod – Queensland Black Coal Mining Agreement 2020 (Chandler Macleod Agreement) covers and applies to Chandler Macleod employees engaged as ‘Production Mineworkers or Trade Mineworkers at any of the 5 ‘Mineworker’ levels referred to in clause 17 of the Chandler Macleod Agreement, including at the Mine. The Chandler Macleod Agreement reached its nominal expiry date in March 2024.[5]

WorkPac is a party to a services contract with BMA and others pursuant to which WorkPac provides employees to perform work at the Mine. Those employees are covered by the WorkPac Coal Mining Agreement 2019 (WorkPac Agreement). The WorkPac Agreement applies to employees employed in the black coal mining industry whose duties are directly connected with the day-to-day operation of a black coal mine site.[6] It provides for a six-level classification structure[7] and the engagement of trainees. The WorkPac Agreement has passed its nominal expiry date.

Evidence

Much of the factual background and evidence was uncontroversial. The MEU’s witnesses were not required for cross-examination. Evidence for the MEU was given by Ms. Freriechs, a production employee employed by CQS at the Mine; Mr. Lees, a multi-skilled operator at the Mine employed by WorkPac Pty Ltd; Mr. Scales, a District Vice-President of the MEU’s Queensland District Branch and Mr. Hughes, District President of the MEU’s Queensland District Branch.

In summary form, the MEU’s evidence provided as follows:

(i)The Mine workforce can be separated into 3 groups – production workers, maintenance workers and staff. The first group operates heavy machinery such as haul trucks, excavators, dozers and draglines. This group is also responsible for road construction and maintenance.[8] The second group consists of tradespersons and their assistants who maintain the heavy equipment operated by the production workers. The third group is made up of senior management, engineering and other office-based employees.[9]

(ii)Most of the production workforce is employed by either CQS, WorkPac or Chandler Macleod.[10]

(iii)The production employees of the Labour Hire Employers are fully integrated into BHP’s operations at the Mine. They work the same rosters as CQS employees and are integrated into the 4 crews at the Mine with CQS employees.[11] They attend the same pre-start meetings and are allocated work in the same way as CQS employees. They perform the same work in the same way and follow the same policies and procedures as CQS employees. The allocation of work is based on skill and experience, not on the basis of who employs the employees.[12] They are subject to the same supervision and operate the same equipment as CQS employees.[13] Supervision is conducted to ensure that all employees work in a way that is consistent with BHP policies and procedures.[14] The equipment which is operated by CQS employees or employees of the Labour Hire Employers is owned or leased by BHP.[15]

(iv)All production employees must work in accordance with the same standard operating procedures and safe work instructions which are BHP procedures that govern how work at the mine is performed.[16]

(v)CQS employees and employees of the Labour Hire Employers engage in the practice of ‘hot seating’ where operators of machines are replaced interchangeably by employees employed by one or other of those employers.[17]

(vi)Training of production employees is undertaken to ensure that all employees are trained to BHP’s standards and using BHP training material.[18]

(vii)A multi-skilled operator employed by WorkPac earns significantly less than would be paid to that employee if they were working under the BMA Agreement.[19]

(viii)Operator and maintenance jobs that have been occupied by permanent employees of host mining companies have been replaced by labour hire employees. The use of labour hire employees to perform ‘core’ production and maintenance work varies from mining company to mining company.[20] Labour hire workers are typically paid less and have inferior conditions to permanent employees of host mining companies notwithstanding that they perform the same or similar production and/or maintenance work as those employees.[21]

(ix)Where labour hire employers have agreements with lower rates of pay, that makes them more attractive to clients, including major mining companies.[22]

(x)WorkPac typically pays their employees at a higher rate of pay than the rates prescribed in the WorkPac Agreement under ‘flex up’ arrangements. WorkPac also pays its employees ‘out-of-cycle’ wage increases or bonus payments to retain workers and these are funded by the host mining company.[23]

(xi)The number of labour hire employees required at a mine site is determined by the mine operator’s production targets and where those targets remain unchanged and a labour hire employer loses a contract to supply labour, the number of employees is not ordinarily reduced but a different labour hire employer is contracted to supply replacement labour.[24] Since ‘Same Job, Same pay’ applications have been made in respect of other mine sites, the mine operators at those sites have elected to reduce the number of labour hire employees and increase the number of persons they directly employ at the mine.[25]

Mr. Belton gave evidence for CQS. He described the 3 operational teams at the Mine as consisting of Production Coal (Coal Mining, Mine Services and Coal Handling and Preparation Plant), Production Overburden (Pre-Strip, Drill and Blast and Draglines/Dozers) and Maintenance, which services equipment. Mr. Belton said that within the Production teams, there were workers employed by CQS, Chandler Macleod and WorkPac. Mr. Belton said that a fluctuating number of personnel was supplied to the Mine pursuant to contractual arrangements between BMA and Chandler Macleod and WorkPac respectively. Those personnel were limited to various roles in one or other of the two Production teams, the only exceptions being a small number of persons supplied by both companies in roles outside of production but which would not be covered by the BMA Agreement.[26] In cross-examination Mr. Belton confirmed that the employees of the Labour Hire Employers were in the same roles and performed the same work as CQS’s employees in the Production teams[27] and that if the production employees of the Labour Hire Employers were employed by CQS they would be covered by the BMA Agreement.

Mr. Willett gave evidence for Chandler Macleod. He provided an overview of Chandler Macleod’s business operations across various industries and pointed out that the mining industry provided a significant revenue stream for the company. Mr. Willett described the ongoing role of Chandler Macleod in its interaction with its employees following the placement of employees with clients and acknowledged that the absence of day-to-day direction by Chandler Macleod was a distinguishing feature of their employment.[28] Mr. Willett gave evidence as to the number of employees supplied to the Mine and the roles that they performed. He said that each of the roles were ‘production’ roles, meaning the employees were directly involved in extraction of coal, as distinct from trade and maintenance work on plant and equipment.[29] Mr. Willett said that although Chandler Macleod did not currently provide on-hire workers in maintenance roles at the Mine, it may do so in the future under the contractual arrangements that were in place with the Mine operator.[30]

Mr. Willett described the contractual arrangements between Chandler Macleod and BMA. He said the charge rates applicable to employees supplied to the Mine were fixed by the contract (unless otherwise varied in accordance with the contract) until January 2026.[31] Mr. Willett said that Chandler Macleod’s profit margin was sensitive to increased costs associated with the performance of its contractual obligations to provide on-hire employees. Mr. Willett also described Chandler Macleod’s history of bargaining for enterprise agreements in the coal mining industry and said that he was unaware of the MEU ever making a claim against Chandler Macleod that its employees be paid the same rate of pay as directly employed employees of Chandler Macleod clients. Mr. Willett said Chandler Macleod currently pays its employees above the rates of pay provided for in the Chandler Macleod Agreement as this reflected ‘different market conditions and competition in the labour market.’[32]

Mr. Willett also gave evidence as to the potential enterprise bargaining and financial implications for Chandler Macleod if the proposed order is made. He said the proposed order created uncertainty and discouraged bargaining for a new agreement and that even if bargaining occurred, the proposed order would affect negotiations and any likely outcome. He said the proposed order could have flow-on effects for those employees of the company who worked on sites other than the Mine because Chandler Macleod would have to pay different rates to those employees who were performing the same tasks as those at the Mine. Mr. Willett said the effect of the making of an order may make the contractual arrangements between Chandler Macleod and BMA loss-making, particularly if there were no commensurate increases to the charge rates. Mr. Willett provided a comparison between the rates paid to the Chandler Macleod employees employed in the 4 most commonly employed roles at the Mine under the Chandler Macleod Agreement and the rates those employees would be paid under the BMA Agreement if the order were made. The analysis showed that there would be an increase in the rates required to be paid. Mr. Willett’s evidence was that if the contract with the Mine were to become loss-making, Chandler Macleod would have to consider a reduction in staff numbers. He said that the making of the proposed order would significantly increase Chandler Macleod’s accrued annual leave and personal leave liability.

WorkPac’s evidence was given by Mr. Hockaday. Mr. Hockaday described the company’s operations as a traditional recruitment service as well as a provider of ‘on-hire employees.’ He also described the provision of training to WorkPac employees and the significance of the mining industry, including black coal mining, to WorkPac’s business.

Mr. Hockaday also gave evidence about WorkPac’s history of enterprise bargaining and the WorkPac Agreement. He said that the WorkPac Agreement contained a tiered classification structure for production and engineering employees that was similar to the BCMI Award. He said that although many of the company’s clients had flat or flatter classification structures than the WorkPac Agreement, WorkPac was unable to set rates on a singular classification basis or at the rates of mine operators as this would make WorkPac’s offering uncompetitive.[33] Mr. Hockaday said that WorkPac tendered for services contracts on the basis of rates in the WorkPac Agreement and that whilst WorkPac accepted that the Agreement would eventually need to be replaced, WorkPac had considered that it would have some control over the bargained outcome and would only agree to ‘feasible’ increases.

Mr. Hockaday’s evidence was that WorkPac supplied both permanent and casual employees to the Mine. He said the number of employees supplied fluctuates and that a number of the employees are paid an additional ‘flex’ rate above the rates provided for in the WorkPac Agreement. Mr Hockaday agreed that WorkPac employees worked in the same crews as CQS employees doing the same work[34] and that the WorkPac employees were not subject to WorkPac supervision for operational tasks.[35]

Mr. Hockaday also provided evidence about the likely effect on WorkPac’s operations of the making of a RLHA Order. He said that the ‘protected rates of pay’ arising from the terms of the BMA Agreement were higher than the equivalent rates of pay in the WorkPac Agreement and that WorkPac’s labour costs would increase significantly if the RLHA Order is made.[36] He said that if such costs are not recoverable, this would have a material impact on WorkPac. The potential impacts included an increase in untaken leave liabilities and potential termination payments and redundancy entitlements for permanent employees. Specific details were given for WorkPac’s employees at the Mine. Mr. Hockaday said that under the services contract with BMA, WorkPac had no entitlement to pass on any increased labour costs to BMA and if costs were not able to be recovered, termination of commercially unsustainable arrangements would have to be considered. Mr Hockaday gave evidence as to the likely impact of RLHA orders on WorkPac clients and the possibility that their use of WorkPac employees might reduce. He described the potential flow-on implications for the broader WorkPac business and said that whilst the application taken alone may not significantly diminish WorkPac’s ability to play a role in the industries it services, the effects were cumulative across a number of similar applications.[37] Mr. Hockaday accepted that there had been no discussions between his company and BMA about increasing charge rates if the RLHA order is made and agreed that the implications of making the order were ultimately uncertain.[38]

Statutory provisions

Part 2-7A of the Act deals with the making of RLHA orders. It provides for the Commission to make such orders and describes the obligations of employers and regulated hosts where such orders are made. The key provision in the Part is s.306E which sets out the circumstances in which the Commission must make RLHA orders. For present purposes, the relevant provisions 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.

Regulated employee and host employment instrument
(5) An employee referred to in paragraph (1)(a) is a regulated employee.
(6) The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument.

Who may apply for an order

(7) The following persons may apply for the order:
(a) a regulated employee;
(b) an employee of the regulated host;
(c) an employee organisation that is entitled to represent the industrial interests of an employee mentioned in paragraph (a) or (b);
(d) the regulated host.

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.

What an order must specify
(9) A regulated labour hire arrangement order must specify:

(a) the regulated host covered by the order; and
(b) the employer covered by the order under this section; and
  (c) the regulated employees covered by the order under this section; and
  (d) the host employment instrument covered by the order; and
  (e) the day the order comes into force, which must be:
(i) if the order is made before 1 November 2024—that day or a later day; or
(ii) otherwise—the day the order is made or a later day.

Note: For paragraphs (b) and (c), additional employers and regulated employees of those employers may be covered by the order under section 306EA.

Section 306E has been considered by Full Benches of the Commission 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), Application by the Mining and Energy Union re Bengalla Mining Company [2025] FWCFB 53 (Bengalla) and Application by the Mining and Energy Union & anor re Goonyella Riverside, Peak Downs and Saraji Mines[2025] FWCFB 134 (Goonyella). In Batchfire the Full Bench set out a number of principles in relation to the proper application of s.306E which I will adopt and apply without setting out in full here. The Bench in that matter noted that s.306E(1) requires the Commission to make a RLHA order if it is satisfied that the criteria in paragraphs (a), (b) and (c) of the subsection are met and neither of the prohibitions described in subsections 306E(1A) and 306E(2) apply. No party contended that s.306E(1A) applied to the present circumstances. Having regard to the considerations in s.306E(7A) and the uncontested evidence of the MEU, I am satisfied that the performance of the work in question is not or will not be for the provision of a service. [39] The Labour Hire Employers supply labour to CQS and s.306E(1A) does not operate to prevent the making of RLHA orders in these matters.

I am also satisfied that the MEU is an employee organisation that is entitled to represent the industrial interests of employees of the Labour Hire Employers who are regulated employees within the meaning of s.306E(5), and employees of the regulated host who work at the Mine, and is therefore entitled to apply for a RLHA order under s.306E(7)(c). Further, I am satisfied that the requirements of s.306E(1) of the Act have been met. In this respect I note that:

(i)The Labour Hire Employers supply employees to perform work for CQS. Employees of the Labour Hire Employers perform work for CQS because they perform work wholly or principally for the benefit of CQS[40] or the enterprise carried on by CQS, namely the work undertaken at the Mine.[41]

(ii)The host employment instrument[42] is the BMA Agreement. The BMA Agreement would apply to employees of the Labour Hire Employers if CQS were to employ the employees of the Labour Hire Employers performing work that they currently perform for CQS.

(iii)CQS is not a small business employer.

The objection taken to the present applications by the Labour Hire Employers arises under s.306E(2), that is, that the Commission is prevented from making RLHA orders in these matters because the Commission should be satisfied that it is not fair and reasonable in all the circumstance to make orders having regard to the matters in s.306E(8) about which submissions have been made.

Submissions

Fair and reasonable

The MEU submitted that the making of RLHA orders was entirely consistent with the purpose of the statutory regime set out in Part 2-7A of the Act. They said it was not contested that the employees of the Labour Hire Employers were paid less under their respective agreements than they would if the BMA Agreement applied to them. They contended that this was a significant factor weighing in favour of the making of the RLHA orders and one which outweighed the matters advanced by the Labour Hire Employers in support of a conclusion that it was not fair and reasonable to make the orders.

Insofar as WorkPac’s submissions were concerned, the MEU said that neither the supposed attendant costs associated with the making of the order, including increased contingent leave liabilities, nor the disturbance of the WorkPac Agreement provided a sufficient basis for the Commission to conclude that the making of orders would not be fair and reasonable.

The MEU said that WorkPac had declined to provide evidence as to the total cost that WorkPac would incur if the order were made. They said that WorkPac had not provide any supporting evidence of its financial position beyond the leave liabilities and instead relied on a director’s report from the parent WorkPac Group which could be of limited assistance at best. The MEU said WorkPac was inviting the Commission to adopt a worst-case scenario chain of reasoning and to speculate that the making of an order could ultimately render the business unviable. To the extent that the director’s report was relevant at all, the MEU said that the report stated that there were no matters that had arisen since the end of the 2023/2024 financial year which significantly affected or could significantly affect the operations of the WorkPac Group in future financial years even though WorkPac Pty Ltd and WorkPac Group were the subject of at least 3 applications under s.306E at the relevant time.

The MEU submitted that the amending deeds to the Services Agreement between WorkPac and BMA dispensed with any suggestion that the commercial context did not account for the prospect of a RLHA order given the amendments included changes to the scope and price of work after Part 2-7A had come into effect and changes to the contract price after 3 RLHA orders had been sought against WorkPac.[43]

The MEU also submitted that the industrial history and the existence of the WorkPac Agreement did not sustain the argument that it would be unfair to make an order. They said although the Agreement had expired it would continue to govern many of the terms and conditions of WorkPac employees at the Mine if the proposed orders were made. In any event, Mr. Hockaday had confirmed that many WorkPac employees were paid at rates above those set out in the Agreement through ‘flex’ payment arrangements.

The MEU contended that Chandler Macleod had provided even less evidence than WorkPac to support its commercial concerns about the effect of making a RLHA order. The union said there was no evidence in relation to potential increased leave liabilities or total costs that Chandler Macleod would incur if orders were made, or the overall financial position of Chandler Macleod. The MEU submitted that Chandler Macleod could not point to any aspect of the Chandler Macleod Agreement or its industry history that would weigh in favour of a conclusion that it would not be fair and reasonable to make an order.

WorkPac submitted that the undisputed effect of a RLHA order would be to significantly increase its cost base by requiring an increase to the hourly rates to be paid to its employees at the Mine. They contended that having regard to the evidence as to WorkPac’s margins, those margins would be subsumed by increased costs associated with the supply of labour to the Mine. Further, WorkPac pointed to the evidence as to the materially increased leave liabilities arising from the making of an order and the lack of any contractual entitlement for WorkPac to pass on any cost increases that might follow from the making of an order. WorkPac submitted that the Commission could be satisfied that it was not fair and reasonable to make an order, the effect of which would be to require it to operate under and service a contract at a loss and which could have significant deleterious consequences for WorkPac employees across the business.

WorkPac also pointed to what it described as the MEU’s lack of evidence that the making of orders would prevent the rates in BMA agreement from being ‘undercut’ or the security of the employment of CQS employees being undermined. It was submitted that the BMA Agreement itself provided for the use of labour hire arrangements, and it could not be said that the BMA Agreement was undermined by the very thing that it expressly contemplates.

WorkPac submitted that the making of RLHA orders would disturb or distort the industrial arrangements reflected in the WorkPac Agreement. It was said that the WorkPac Agreement was the product of bargaining processes under the Act and provided certainty to the business in its tenders for contracts with clients across the industry.

Chandler Macleod’s submissions were to similar effect as those of WorkPac. They referred to the increased costs, including for leave liabilities, associated with the making of RLHA orders and the prospect of those costs entirely extinguishing any profit margin under existing contractual arrangements. Chandler Macleod said that their contractual arrangements with BMA were in place until at least January 2026 and referred to the limitations on Chandler Macleod’s contractual capacity to recoup increased costs. It was submitted that any significant financial detriment to the business could raise the prospect of redundancies amongst employees of the business.

Chandler Macleod also submitted that it had other employees engaged at other mines that would not be the subject to a RLHA order and said that there was a likelihood that this would cause difficulties in attracting or retaining employees at mines other than Caval Ridge and generate employee dissatisfaction.

Chandler Macleod also referred to its bargaining history and existing Chandler Macleod Agreement. It was submitted that the MEU had engaged in bargaining with Chandler Macleod but had not agitated for rates of pay that matched the employees of CQS and that a RLHA order would undermine the certainty and ‘value’ of the rates that had been legitimately bargained for in the Chandler Macleod Agreement. Chandler Macleod referred to and relied on the arm’s length nature of its contractual relationship with BMA and rates in the contract and the use of contractors being at the discretion of BMA.

Form of orders – regulated employees

The draft orders proposed by the MEU identify the regulated employees as follows:

The regulated employees covered by the order are employees of the Employers, who;
a. perform work at the Caval Ridge Mine in the State of Queensland, and
b. who would, if employed by the Regulated Host, be covered by the Host Employment Instrument.

In its original written submissions, CQS submitted that the proposed form of the orders raised at least two issues. First, they said that it was uncontroversial that the evidentiary case of the MEU was confined to production roles at the Mine and that in the absence of any evidence beyond that cohort of employees, it was not possible for the Commission to reach the requisite state of satisfaction in relation to the matters set out in ss.306E(1)(a), (1)(b) and 306E(1A) for persons other than those engaged in production roles. It was said that as presently framed, the scope of the draft orders was delineated by the terms of the BMA Agreement which in turn referred to the broad classifications contained in the BCMI Award. This would capture for example, maintenance employees at the mine in circumstances where it was agreed that only production employees were supplied by the Labour Hire Employers and the evidence only extended to those employees.

Second, CQS said that the form of the proposed orders as it relates to the regulated employees, lacked sufficient specificity. They said that the obligation to ‘specify’ the regulated employees in s.306E(9)(c) meant that the cohort to which s.306E(1)(a) refers, that is, the employees who are or will be supplied (directly or indirectly) to perform work for the regulated host, had to be identified or described with ‘unambiguous clarity’ or ‘made clear’ and that this requirement stood apart from and in addition to the requirement to specify the host employment instrument as required by s.306E(9)(d).

CQS submitted that the MEU should amend its proposed orders such that the regulated employees are described as “employees of the Employer who perform work as production operators at the Caval Ridge Mine in the State of Queensland, and who would, if employed by CQS, be covered by the BMA Caval Ridge Mine Enterprise Agreement 2023”.

Further issue

A further issue in relation to the proposed orders arose at the hearing. Mr. Belton gave evidence that there was a warehouse employee supplied by WorkPac to CQS and a number of professional employees supplied to CQS by Chandler Macleod who were not covered by the BMA Agreement. In that case, CQS advanced an argument that it was not possible to make an order that applied to some but not all of the employees supplied and that if it were proposed that an order be made with respect to all of the employees supplied, such an order could not be made because the relevant state of satisfaction under s.306E(1)(b) could not be reached. This, it was said, was a complete answer to the making of any orders at all. Reliance for that proposition was placed on Bengalla at [138] where the Full Bench said:

The submissions made by Skilled assume that it is possible for the Commission to make a regulated labour hire arrangement order under s 306E which applies to some, but not all, employees supplied to perform work for the regulated host. It is not clear to us that the assumption is correct. Section 306E(1) requires the Commission to make an order if the circumstances in that subsection are met. The prohibitions in s 306E(1A) and (2) then set out circumstances in which the Commission must not make “the order”. The language suggests that either the Commission must make an order applying to the regulated employees or it must not. However, it is not appropriate for the Full Bench to express a view about that question given the conclusions we have reached.

The submissions of CQS on the form of the proposed orders were resisted by the MEU. The MEU said that the proposed orders only applied to employees currently supplied and that the Commission could be satisfied that the cohort of employees supplied would be covered by the BMA Agreement. In closing submissions, the MEU said:

The reach of the order covers the employees who are currently supplied, provided it - if, in the future, it also covers maintenance employees, in my submission that would be permissible. All that is required is that the Commission reach a certain state of satisfaction about the employees who are supplied or will be supplied, which necessarily imputes a degree of determinism. It does not require to reach a state of absolute certainty about the employees who are subject of the application or the order. All that is required is that it reach a state of satisfaction having regard to the material before it.[44]

The MEU also submitted that the requirement to specify the regulated employees had to be considered in the statutory context in which it appeared, and the Act did not expressly prescribe any greater or lesser degree of specificity. The MEU submitted that the proposed orders were sufficiently clear and understood by the parties and that the introduction of terms such as ‘production operator’, which was not a term which was found in the contracts of employment of the employees of the Labour Hire Employers and was ultimately no more than a generic term that was ‘tethered to nothing’. They said it was unnecessary and undesirable to introduce such a term and that s306E(9)(c) did not require that degree of specificity.

As to the argument advanced at the hearing by CQS, the MEU submitted that the submission misunderstood the comments of the Full Bench and the context in which they were made. The MEU said that in Bengalla there was no dispute that s.306E(1) was satisfied in respect of all the employees supplied and that the comments were to the effect that in those circumstances, there may not be a residual discretion to make an order that excluded some of the employees supplied or to be supplied.

Consideration

General principles – s.306E(2) and (8) – ‘fair and reasonable’

The assessment as to whether it would not be fair and reasonable to make a RLHA order must be undertaken in the statutory context in which Part 2-7A appears.[45] That context includes the objects of the Act and the relationship between RLHA orders and the agreement-making processes in Part 2-4 of the Act.[46] The task involves the exercise of a broad value judgement and will involve a balancing of interests having regard to the matters in s.306E(8) about which submissions are made.[47]

The broad purpose of Part 2-7A is to protect bargained rates of pay by enabling the Commission to make an order that employees supplied by a labour hire employer to perform work for a regulated host are to be paid the same rate of pay as the direct employees of the regulated host doing the same work. However, there is no statutory predisposition established by the Part favouring the making of orders where the requirements of s.306E(1) are met.[48]

The fact that labour is supplied to a regulated host and the arrangements by which that supply occurs are part of ‘all the circumstances’ that must be considered. The nature and history of the industrial arrangements applying to the labour hire employer will often be relevant to whether it is not fair and reasonable to make a RLHA order.[49] However the object in s.3(f) of the Act does not dictate a presumption against the making of such an order simply because an effect of an order would be to disrupt an enterprise agreement that applies to the regulated employees.[50] Determining whether it is not fair and reasonable to make orders involves a consideration of fairness to employees and between employees, to employers and between employers, and between employees and employers.[51]

In the following consideration it is necessary to bear in mind that two separate RLHA orders are sought by these applications. One applies to Chandler Macleod employees and the other to WorkPac employees supplied to perform work at the Mine. There is some overlap in the submissions and considerations applying to each, but they must be considered separately in each case. On the other hand, the submissions advanced by CQS are relevant to both matters.

Fair and reasonable – the present matter

Pay arrangements that apply to employees of the regulated host and the regulated employees – 306E(8)(a)

As is described above, the BMA Agreement applies to ‘Level 1 Production and Engineering Employee – Trades’ and ‘Level 2 Production and Engineering Employee’ and describes employees in those classifications as being persons ‘whose employment otherwise would be governed by operation of schedule A of the BCMI Award, excluding supervisors.’ Schedule A of the BCMI Award describes the classification structure as a single stream structure which does not contain any demarcations relating to the performance of work.[52] There are 5 classifications in Schedule A of the BCMI Award and the descriptions of the classifications are broad. The schedule provides for indicative competencies for employees on both open cut and underground mines.[53] The BMA Agreement therefore applies to a broad range of employees, both trade and non-trade, performing work on the site.

Both Chandler Macleod and WorkPac accepted that employees working at the Mine would be covered by the BMA Agreement should they have been employed directly by CQS at the Mine. If the orders are made, the rate of pay that would be payable to the regulated employees of the Labour Hire Employers would be the rates provided for in the BMA Agreement. Both Chandler Macleod and WorkPac accepted that these rates would be higher than the rates provided for in Chandler Macleod Agreement and the WorkPac Agreement respectively. I have also taken into account the fact that some of the employees of both Labour Hire Employers are, as a matter of practice, paid higher rates that the rates specified in the respective agreements.

History of industrial arrangements applying to the regulated host and employers– 306E(8)(c)

I have taken into account the history of the industrial arrangements including the agreements that have historically applied to the regulated host and the Labour Hire Employers, and the parties involved in the bargaining for those agreements. The Labour Hire Employers’ agreements, including the agreements that currently apply, have a multi-level classification structure that bears some similarity to the structure in the BCMI Award. I have noted that the MEU has had varying levels of involvement in the negotiation of the instruments that have applied to CQS and the Labour Hire Employers. I have also considered the provisions of the BMA Agreement which allows for the use of contractors at the discretion of CQS.

Relationship between the regulated host and the employers– 306E(8)(d)

CQS is not a related body corporate of the Labour Hire Employers, nor are the parties involved in a joint venture or common enterprise. The relationship between CQS and the Labour Hire Employers is one of an ‘arm’s length’ commercial arrangement under which the latter businesses supply labour to the Mine and work alongside CQS employees. No submissions were made in relation to s.306E(da).

Terms and nature of the arrangement under which the work will be performed – s.306E(8)(e)

The contractual arrangements by which the Labour Hire Employers supply labour to the Mine are well established and have operated over a number of years. The Labour Hire Employers submitted that under the terms of the contracts with BMA there was only a limited capacity to vary the charges they apply to BMA and that any proposed variation would be at the discretion of BMA. They said that the proposed LHRA order would result in the amounts required to be paid by them exceeding amounts that they could recover for the provision of labour to the Mine. These are considerations which must be taken into account and which weigh in favour of a conclusion that it would not be fair and reasonable to make RLHA orders, although it must also be acknowledged that any commercial or contractual response to the making of a RLHA order is at this stage unknown.

The work being undertaken in accordance with those contracts is work in the black coal industry at the Mine. The employees provided by the Labour Hire Employers represent a significant proportion of the workforce at the Mine.

Any other matter – 306E(8)(f)

The rates of pay received by the employees of the Labour Hire Employers who work at the Mine are significantly less than the rate they would receive if CQS were to employ the employees to perform work of that kind. That differential would continue to exist if RLHA orders are not made. This is a factor which in my view weighs significantly against a conclusion that it would not be fair and reasonable to make the orders sought by these applications.

The Labour Hire Employers gave evidence that they would face increased accrued leave liabilities if the RLHA orders were made. Leave liabilities for the Labour Hire Employers have been provisioned taking into account the rates payable under the terms of their respective agreements. The increases are not insignificant for WorkPac. Chandler Macleod did not bring detailed evidence as to the financial impact of the making of a RLHA order, including in relation to leave liability increases, or its overall financial position. They did however provide details as to the approximate size of current leave liabilities. I am constrained by the evidence as to the extent to which I can take into account the financial impact of the making of an order on Chandler Macleod in the assessment of fairness and reasonableness. However, while taking into account the contingent nature of these liabilities,[54] the prospect of increased leave liabilities for the Labour Hire Employers weighs in favour of a conclusion that it would not be fair and reasonable to make orders.

There was evidence that any reduction in WorkPac’s revenue stream from the Mine may prompt a consideration of reducing staff numbers. Chander Macleod raised a similar prospect. Were that to eventuate, that would be an undesirable outcome. It is a matter that I have taken into account.

As to fairness between the respective groups of employees I do not consider that unfairness would be visited upon CQS employees if the RLHA orders are made. There was no basis in the evidence to suggest that the extension of the BMA Agreement rates to co-workers at the Mine would generate dissatisfaction at the Mine. Nor do I think that such an extension would result in objective unfairness as between the employees in circumstances where the BMA Agreement provides for only two classification levels for employees across the Mine. Further, I do not think that the making of RLHA orders would be unfair to BMA employees who have bargained for their own agreement based on their particular circumstances. The bargain between BMA and its directly employed workforce remains undisturbed by the making of RLHA orders.

I accept that the bargained outcomes between the Labour Hire Employers and their employees will be affected by the making of RLHA orders. I appreciate that the making of orders will disrupt, to some extent, the certainty created by the ongoing application of the agreements as they have been entered into. However, as was pointed out by the Full Bench in Bengalla, any emphasis the Act provides for enterprise-level collective bargaining does not mean that such bargaining is the only mechanism through which terms and conditions of employment are set.[55] I also note that both agreements have passed their nominal expiry date but continue to operate, including in relation to many terms and conditions, other than rates of pay, of the employees of the Labour Hire Employees at the Mine. The making of orders does not preclude future bargaining. It is likely that any future bargaining for any replacement agreements will take into account the effects of the making of a RLHA order although it is not possible to identify the precise impact. I also note that s.306F(10)(a) provides that the obligation to pay no less than the protected rate of pay arising from a RLHA order applies despite a fair work instrument that applies to the regulated employees.

There were no particular features of the Labour Hire Employers’ Agreements that were drawn to my attention to suggest that, in combination with the proposed RLHA orders, the bargained outcomes would manifest unfairness. For example, I do not consider that the making of the RLHA orders would result in the employees of the Labour Hire Employees obtaining an unfair advantage over their CQS counterparts. I accept that even though changes to bargained rates will necessarily follow from the making of RLHA orders, it is an impact that is nonetheless material for the Labour Hire Employers and should be taken into account.

On balance, and taking into account all of the evidence and submissions, I have come to the view that I am not positively satisfied that it is not fair and reasonable to make the orders sought and that I am therefore required to make orders under s.306E(1).

Form of order and the regulated employees issue

A Full Bench of the Commission has recently considered similar submissions as are advanced by CQS in these matters as to the form of proposed orders in the decision in Application by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine (Goonyella).[56] In those matters, employer parties sought specification in the proposed orders by reference to the type of employees (i.e. production or maintenance employees), the types of work performed and the equipment used and the host employment instrument. The Full Bench said:

[26] …. The substance of the submission advanced by BHP and the OS Parties is that the regulated employees the Commission is able, and required, to specify as being covered by a regulated labour hire arrangement order must be narrowly confined to the particular set of duties undertaken by employees which are subject of evidence in the proceedings, or the precise roles being then undertaken by regulated employees at the time the order is made. That is, in our opinion, to take a too narrow view of the intended operation of s 306E and demands a degree of granularity in the description of the regulated workers which is not required by the provisions.

[27] Section 306E(1)(a) establishes, as a precondition to an order being made, that the Commission must be satisfied that an employer supplies, or will supply, employees to perform work for the regulated host. However, the focus in s 306E(1)(b) then changes to ask whether a covered employment instrument would apply to those employees if the regulated host were to employ the employees to perform work of that kind. The subsection does not ask whether the covered employment instrument would apply to the employees if they were employed to perform the same work but, rather, refers to the same kind of work. In our view, the reference to a “work of a kind” is intended to incorporate a broad description of the kind of work being undertaken rather than a narrow set of specific duties, tasks or responsibilities….
……
[29] Further, as we have observed, the Revised Explanatory Memorandum indicates that “[t]he orders are intended to be broad and to cover employees engaged to work as part of the regulated labour hire arrangement after the order is made” when referring to s 306E(9). That suggests the focus of an order is intended to be work performed as part of the same regulated labour hire arrangement, rather than a precise set of particular duties, tasks or responsibilities which, if the submissions of BHP and the OS Parties are accepted, would need to be recorded in every regulated labour hire arrangement order.[57]

The Full Bench in Goonyella went on to consider whether the proposed orders should identify the regulated employees by reference to the host employment instrument in circumstances where the applicants had not sought to do so but had accepted that the proposed orders could only cover employees to whom the host employment instrument would apply if they were employed by the regulated host. At [34] the Full Bench said:

In the circumstances of this matter, the orders should expressly specify that the regulated employees covered are those to whom the BMA Agreement would apply if they were employed by BHP Coal. That form of drafting draws in the coverage provisions of the BMA Agreement and specifies the employees covered by the orders in a manner which can be readily ascertained and tested.

In relation to the submission that the proposed orders should specify the regulated employees by reference to them being ‘production (or maintenance) employees” or performing ‘production (or maintenance) work’, the Full Bench noted that the proposal picked up on an alternative submission made by the MEU in that matter, but said that “The additional description is probably unnecessary if the regulated employees are specified by reference to the coverage of the BMA Agreement.”[58] The Full Bench went on to conclude that it was nonetheless appropriate in the circumstances of that case, which included a host employment instrument that divided into a ‘production stream and a maintenance stream,’ to include a reference to ‘production work’ or ‘maintenance work’ for the orders relating to the respective entities.

In these matters, the orders proposed by the MEU specify the regulated employees by reference to the BMA Agreement. The BMA Agreement applies to employees in the classifications set out in Appendix 1 of the agreement i.e. production and engineering employees (trades and non-trades) whose employment would otherwise be governed by Schedule A of the BCMI Award (excluding supervisors). Schedule A to the BCMI Award refers to production and engineering employees in the black coal mining industry. The classifications in the BCMI Award do not expressly delineate between production and maintenance (or engineering) employees.[59] Nor is there such a delineation in the BMA Agreement. CQS submitted that the proposed orders should make reference to ‘production operators’ The BMA Agreement does not refer to or define ‘production operators.’ The introduction of that term would not, in my view, clarify the application of the orders.[60]

I also note that Mr. Willett’s evidence was that although Chandler Macleod did not currently provide on-hire workers in maintenance roles to perform work at the Mine it may do so in the future under the contractual arrangements Chandler Macleod has with the Mine.[61] The contractual arrangements that WorkPac has to supply labour to the Mine also provides for a broad range of persons to be supplied pursuant to those arrangements. Schedule 2 to the primary services contract refers to ‘the provision of suitably qualified Labour Personnel predominantly being tradespeople, technicians and operators, for deployment across the Relevant Company’s operations located in various sites’[62] including the Mine. In my view it is undesirable and unnecessary to introduce an additional reference to the undefined term ‘production operators’ into the proposed orders in circumstances where the orders specify the regulated employees by reference to the BMA Agreement.

I have recorded above that I am satisfied that the requirements of s.306E(1) have been met and that neither ss.306E(1A) or (2) operate to prevent the making of an order. In reaching that state of satisfaction I note that s.306E(1)(a) is engaged where the Commission is satisfied that an employer ‘supplies or will supply’… ‘one or more employees to perform work.’ The first of those requirements references supply in the present tense. The second refers to future supply. It is appropriate that where the statutory preconditions for the making of a RLHA order are met, the order should apply to future labour hire arrangements.[63]

Section 306E(1)(b) imposes a further requirement that in the case of the employees that the employer supplies or will supply, 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. The employees supplied or who will be supplied could perform a range of different work. The contractual arrangements in the present matter allow for precisely that. What the Commission needs to be satisfied of is that the covered employment instrument of the host would apply to the employees supplied (or to be supplied) if they were employed by the host performing that work. The scope of the covered employment instrument and its forecast application is plainly relevant to the Commission’s state of satisfaction. It was contended here that the terms of the order should be confined having regard to the employees presently supplied. I do not propose to limit the proposed orders in those terms.

I also reject the submission that the absence of evidence in relation to maintenance employees has the impact on the Commission’s evaluation under ss.306E(1A) and (7A) for which CQS contends. The submission was that the circumstances of the supply of maintenance employees may be materially different to that of production employees such that the Commission would reach a different conclusion in relation to its state of satisfaction as to whether the performance of the work was for the provision of a service rather than the supply of labour. In that event it was put that the proposed orders should be confined, consistent with the evidentiary case that had been put. That submission should be rejected for similar reasons to those given by the Full Bench in Application by Mining and Energy Union re Boggabri Coal Mine[64] (Boggabri). In that case, the Full Bench rejected the argument that the scope of the proposed order should be narrowed to take into account the possibility that it may have to diversify its operations at some future point, beyond the supply of labour. The Full Bench said:

[23] Second, as the MEU points out, FES does not suggest it currently has any concrete plan to provide services to Boggabri Coal other than as a labour hire provider. FES says no more than that it must consider potential diversification opportunities having regard to the legislative changes that have taken place. There is, at present, no more than the most speculative possibility that FES will ever provide services to Boggabri Coal beyond the provision of labour. In our opinion, it is not appropriate to frame the form of the regulated labour hire arrangement order by reference to what is no more than a speculative possibility.

[24] If FES were to change its business and, in the future, provide services at the Boggabri Mine rather than supplying labour, a number of issues may arise. If, as part of those services, employees of FES perform work at the Mine, those workers may or may not be ‘regulated employees’ for the purposes of s 306E(1)(a) and (5) depending on whether it could be said that the employees were supplied to perform work for Boggabri Coal. The relevant covered employment instrument may or may not apply to the employee if the employee were directly employed by the regulated host. The answer to those questions is likely to depend on the nature of the services provided and the arrangements under which the services are performed. It is not possible to consider that question in the hypothetical.
[25] If, in the future, some uncertainty does arise in relation to the coverage of the order, or it is contended that the order applies to employees who should be excluded from its operation, the Commission could vary the order….

In rejecting an argument that a proposed RLHA order should be delimited to take into account the possibility of the future provision of services by a labour hire employer to a regulated host, the Full Bench in Bengalla said:

Skilled then submits that any employees of Skilled must be excluded if the employees perform work in respect of Skilled’s provision of services to Bengalla in the future within the meaning of s306E(1A). It is not suggested that Skilled’s employees performing work for Bengalla do perform work for the provision of a service, or that there is any proposal or likelihood of Skilled providing a service in the future. There is no evidence Skilled provides services, as opposed to supplying labour, as part of its business at all. We do not think it is necessary, or appropriate, to make this provision in circumstances in which there is no identified prospect of the eventuality ever occurring. The proposed exclusion would introduce uncertainty and a lack of clarity in the order which Skilled says must be avoided.[65]

I also do not accept the submission that I am prevented from making the proposed RLHA orders by the operation of s.306E and the evidence that there was a very small number of employees supplied by the Labour Hire Employers to whom the covered employment instrument of the regulated host would not apply if those employees were employed by the regulated host. CQS’s argument proceeds on the basis that s.306E(1) contemplates a single ‘supply’ and that the Commission must reach a state of satisfaction in respect of all of ‘the employees’ supplied in order for the requirement to make an order to be engaged. Having regard to the text of s.306E and the context in which it appears, including the general purpose or policy and the mischief it is seeking to remedy,[66] I do not think that I am prevented from making an order in this case. Section 306E(1) requires, firstly, that the Commission be satisfied that an employer supplies or will supply, ‘one or more employees’ of the employer to a regulated host. These are the ‘regulated employees’ (see s.306E(5)) that must be specified in the order (s.306E(9)(c)) once the Commission is satisfied that an order must be made. In determining whether an order must be made the Commission must, additionally, be satisfied that 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. The reference to ‘the employees’ in s.306E(1)(b) is a reference the ‘one or more employees’ in s.306E(1)(a). However, I do not think that the reference to ‘the employees’ in s.306E(1)(b) should be read as requiring that the Commission be satisfied in respect of each and every one of the employees supplied before any order can be made. If the provision were to be read that way the statutory purposes of Part 2-7A would readily be able to be frustrated or subverted by the inclusion of a single employee to whom the covered employment instrument did not apply, amongst a much larger group of employees supplied to the regulated host in the labour hire arrangement. No anomalous result arises for employees to whom the covered employment instrument would not apply by the making of a RLHA order in these circumstances. The Commission’s satisfaction under s.306E(1)(b) is referrable to the reach of the covered employment instrument. Employees who are not within the scope of the instrument are not covered by the orders.

Finally, I note that the obligation imposed on the Commission by s.306E(9)(c) is to specify ‘the regulated employees’ covered by any order that is made. Subsection 306E(5) provides that an employee referred to in s.306E(1)(a) is a regulated employee. A regulated employee is therefore the one or more employees that an employer supplies or will supply, directly or indirectly, to perform work for a regulated host. The orders proposed by the MEU sufficiently identify the regulated employees for the purpose of s.306E(9)(c) and I reject CQS submission to the contrary.

Various decisions of the Commission have resulted in the making of RLHA orders in similar terms to those sought by the MEU.[67] A number of proposed exclusions in the terms of the orders made have been rejected in some of those decisions. I propose to adopt a similar course.

Conclusion

I conclude that I am required to make orders under s.306E of the Act. The orders will be in the form sought by the MEU. I will publish the orders separately setting out the matters referred to in s.306E(9). The Labour Hire Employers made submissions as to the operative date of the orders. Having regard to those submissions, I propose to make the orders operative from 13 October 2025.

DEPUTY PRESIDENT

Appearances:

Mr Morgan-Cocks, of counsel for the Applicant.
Mr McLean, of counsel for WorkPac.
Ms Campbell, of counsel for Chandler MacLeod.
Mr Pollock, of counsel for CQS.

Hearing details:

In-person at the Fair Work Commission, Brisbane on Wednesday, 11 June 2025.

Final written submissions:

Filed by Applicant on 19 June 2025.
Filed by Respondent on 27 June 2025.

[1] CQS Submissions paragraph [6].

[2] Exhibit CQS 1 at [2].

[3] See s.306F(4).

[4] Clause 10.1.

[5] Exhibit CM1 Annexure SAW1.

[6] Clause 1.4.

[7] Appendix 1 and exhibit W1 at [48].

[8] Exhibit A1 at [9].

[9] Exhibit A1 at [6].

[10] Ibid at [7].

[11] See also exhibit A2 at [7]-[8].

[12] Ibid at [14] and exhibit A2 at [11].

[13] Ibid at [10].

[14] Ibid at [25]-[26].

[15] Ibid at [29].

[16] Ibid at [19].

[17] Ibid at [24].

[18] Ibid at [28].

[19] Exhibit A2 at [14]-[15].

[20] Exhibit A3 at 8a.

[21] Ibid at 8b.

[22] Ibid at 11.

[23] Ibid.

[24] Ibid at [12].

[25] Ibid at [15].

[26] Exhibit CQS1 at 20 and PN91-92.

[27] See PN118, 129.

[28] See also PN290.

[29] Exhibit CM1 at [25].

[30] Ibid.

[31] Ibid at [35].

[32] Ibid at [44].

[33] Exhibit W1 at[49]-[50].

[34] PN199.

[35] PN201.

[36] Ibid at [75].

[37] Ibid at [80].

[38] PN216.

[39] See Batchfire, Application by Mining and Energy Union re Boggabri Coal Mine [2024] FWCFB 415 at [13] and Applications by The Australasian Meat Industry Employees Union [2024] FWCFB 388 at [12] for analogous facts in relation to the conduct of the business of the Labour Hire Employers.

[40] (s.306D(2)(a)).

[41] (s.306D(2)(b)).

[42] Section 306E(6).

[43] Submissions in Reply at [12] and see Exhibit W1 Annexure CH3.

[44] PN377.

[45] Bengalla op cit at [81].

[46] Ibid.

[47] Ibid.

[48] Ibid at [82] and [83].

[49] Section 306E(8)(c).

[50] Bengalla op cit at [91].

[51] Ibid at [116].

[52] Schedule A A.1.2

[53] A.5.

[54] See Bengalla at [112].

[55] Op cit at [91].

[56] [2025] FWCFB 188.

[57] Citations omitted.

[58] Op cit at [35].

[59] See also CQS Submissions at 22(c).

[60] See Bengalla op cit at [135].

[61] Exhibit CM1 at [25].

[62] Exhibit W1 annexure CH1.

[63] Application by Mining and Energy Union re Boggabri Coal Mine [2024] FWCFB 415 at [22].

[64] Ibid.

[65] Op cit at [134].

[66] Alcan (NT) Alumina Pty Ltd v. Commissioner of Territory Revenue (2009) 239 CLR 27 at [46], Project Blue Sky v. Australian Broadcasting Authority (1998) 194 CLR 255 at 384.

[67] See Bengalla, Boggabri, op cit. See also Applications by Mining and Energy Union re Maules Creek Pty Ltd [2025] FWC 1499, Applications by the Mining and Energy Union re Bulga Open Cut Mine [2025] FWC 1273 and Applications by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 2190.

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

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Application by the Mining and Energy Union [2024] FWCFB 299

Application by the Mining and Energy Union re Rix's Creek [2025] FWCFB 12

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