1
Fair Work Act 2009
s.306E—Application for a regulated labour hire arrangement order
Applications by Mining and Energy Union re Coppabella Mine
(C2024/5555)
(C2024/5558)
(C2024/6046)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
VICE PRESIDENT GIBIAN
SYDNEY, 1 NOVEMBER 2024
Application for a regulated labour hire arrangement order in relation to Protech GPS Pty
Ltd, WorkPac Pty Ltd, WorkPac Mining Pty Ltd and FES Coal Pty Ltd trading as One Key
Resources in respect of work performed for Peabody Energy Australia PCI Mine
Management Pty Ltd at the Coppabella Mine.
Introduction and background
[1] This decision concerns three applications made by the Mining and Energy Union
(MEU) under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for regulated hire arrangement
orders applying to Peabody Energy Australia PCI Mine Management Pty Ltd (Peabody) as the
regulated host and Protech GPS Pty Ltd (Protech)1, WorkPac Pty Ltd and WorkPac Mining
Pty Ltd (collectively, WorkPac)2, and FES Coal Pty Ltd trading as One Key Resources (One
Key)3 as the employers (collectively, employers). The covered employment instrument is the
Peabody Australia Coppabella Enterprise Agreement 2022 (Agreement). The proposed orders
would apply in respect of employees of the employers who perform work at the Coppabella
Mine (Mine), an open cut black coal mining operation near Moranbah in central Queensland.
[2] The MEU filed submissions and evidence in support of the applications. That material
was common to each application and on that basis, we decided to deal with them together.
Peabody and the employers do not oppose the application, nor do they oppose the terms of the
orders proposed by MEU. Peabody and the employers also advised the Commission that they
did not wish to file any material. No other person has indicated an interest in the application.
Accordingly, we have dealt with the applications on the basis of the material filed.
[3] The evidence before the Commission comprised witness statements made by the
following persons:
• Tahnee Nicole Newman dated 2 September 2024. Ms Newman is employed by
Peabody as an Operator at the Mine and is Lodge Secretary of the Coppabella
Lodge.
• Terrence Harmse dated 9 September 2024. Mr Harmse is employed by WorkPac
Pty Ltd as an Operator at the Mine.
[2024] FWCFB 413
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 413
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• Tania Maree Henshall dated 9 September 2024. Ms Henshall is employed by
OneKey as an Operator at the Mine.
• Gregory Neville Strickland dated 10 September 2024. Mr Strickland is employed
by Protech as a Plant Operator at the Mine.
[4] The evidence indicates, and we find that:
(a) Peabody manages and operates the Coppabella Mine on behalf of the Coppabella
and Moorvale Joint Venture, of which Peabody owns a 73.3% undivided interest.
(b) The workforce at the Mine includes production workers, maintenance workers, and
‘staff’.
(c) The production workers operate machines such as backhoes, dozers, draglines,
drilling machines, electric rope shovels, excavators, graders, loaders, rear dump
trucks, and watercarts, and/or perform other tasks associated with the extraction,
mining, processing and transportation of coal at the Mine.
(d) The maintenance workers inspect, repair and maintain the machinery and
equipment at the Mine. The maintenance workforce includes both trade and non-
trade qualified workers.
(e) The ‘staff’ work in a variety of administrative, professional, supervisory and
technical roles.
(f) Clause 4(a) of the Agreement provides that the Agreement applies to Peabody and
by virtue of clause 4(b) the Agreement also applies to:
All of its employees at its Coppabella Mine site … who are employed in production and
maintenance roles as prescribed in the classifications outlined in Appendix 1.
(g) Appendix 1 outlines four production classifications:
• Production Trainee Mine Employee;
• Production Mine Employee Level 1;
• Production Mine Employee Level 2; and
• Production Mine Employee Level 3.
(h) The competencies and skills, number of skills and behaviour for each production
classification is set out at Appendix 1 of the Agreement.
(i) Appendix 1 outlines three maintenance classifications:
• Maintenance Employee Level 1;
• Maintenance Employee Level 2; and
• Maintenance Employee Level 3.
(j) The required competencies and skills, and behaviour for each maintenance
classification are also set out at Appendix 1 of the Agreement.
[2024] FWCFB 413
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(k) The employees perform production work. While there are currently no employees
of employers performing maintenance work at the Mine, the employers have
previously supplied labour to perform maintenance work at the Mine.
(l) The work performed by the employees is work that would be covered by the
Agreement, if Peabody employed them.
(m) WorkPac conducts its labour hire business at the Coppabella Mine in a near
identical way to its labour hire business at the Callide Mine that was the subject of
the Application by Mining and Energy Union re Callide Mine4 (Callide), in which
a Full Bench of the Fair Work Commission made the first regulated labour hire
arrangement order under s 306E of the FW Act.
(n) Protech and One Key conduct their respective labour hire business at the Copabella
Mine in near identical terms to the way in which WorkPac conducted its labour
hire business at the Callide Mine in Callide.
(o) The labour hire employees of WorkPac, Protech and One Key that work at the
Coppabella Mine:
• attend the same daily pre-start meeting as the Peabody employees and are
allocated work and equipment for their shift by Peabody in the same way;
• perform the same work and operate the same Peabody-owned or leased
machines and equipment as the Peabody employees;
• are required to comply with the same instructions as the Peabody employees
delivered by the Peabody supervisors;
• must undertake the same site induction conducted by the Coppabella Mine
owner/operator before commencing work at the Coppabella Mine;
• operate pursuant to the Safety and Health Management System established by
Peabody;
• operate under the same Peabody standard operating procedures and other
policies and procedures as the Peabody employees;
• are rostered on the same shifts and allocated to the same crews as the Peabody
employees;
• must notify Peabody when absent from work;
• take breaks at times determined by Peabody and share the same crib facilities
used by the Peabody employees;
• undertake the same training as the Peabody employees;
• use personal protective equipment and consumables provided by Peabody; and
• do not wear Peabody uniforms.
Consideration
[5] In Callide, a Full Bench of the Commission outlined a number of principles concerning
the proper interpretation and application of s 306E.5 We apply, but do not repeat, the principles
stated in that decision.
[6] We are satisfied, for the purposes of s 306E(7) of the FW Act, that the MEU is an
organisation entitled to represent the interests of the WorkPac employees, Protech employees,
[2024] FWCFB 413
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and One Key employees, who are regulated employees, and employees of the regulated host,
Peabody. Accordingly, we are satisfied that MEU is entitled to apply for a regulated labour hire
arrangement order under s 306E of the FW Act as it is an ‘employee organisation’ for the
purposes of s 306E(7)(c) of the FW Act.
[7] We are further satisfied that the requirements in s 306E(1) of the FW Act, in relation to
which we must be satisfied to trigger the obligation to make a regulated labour hire arrangement
order are met. Specifically, we are satisfied on the material before us, that:
(a) The employers supply employees employed by them to Peabody to perform
production work at Coppabella Mine.
(b) Given the broad terms in which its scope is expressed, the Agreement would apply
to the employees supplied by the employers to perform work at the Mine, if
Peabody were to employee those employees directly to perform the same kind of
work.
(c) Peabody is not a small business employer.
[8] For the purposes of s 306E(1A) of the FW Act, we are satisfied that the performance of
work is not, or will not be, for the provision of a service, rather than the supply of labour. In
forming that view, we have had regard to the matters set out in subsection (7A). In relation to
the matters set out in s 306E(7A), we make the following findings:
(a) There is no evidence that the employers, or any person on their behalf, direct,
supervise or control the employees supplied to Peabody when they perform work
at the Coppabella Mine, or otherwise have any involvement in the performance of
work at the Mine by the employees.
(b) The evidence indicates that Peabody supervises and controls the work of the
employees working at the Mine. Peabody, not the employers, is responsible for
rostering, allocating tasks and the overall management of the employees.
(c) The employees working at the Coppabella Mine do so under the same residential
conditions, rostering arrangements, policies, procedures and legislative
requirements, and use the same plant, equipment, safety systems and consumables
as direct employees of Peabody.
(d) There is no evidence that the employers are or will be subject to industry or
professional standards or responsibilities in relation to the work of its employees
supplied to Peabody.
(e) The evidence indicates that the work undertaken by the employees at the
Coppabella Mine requires on-the-job training, conducted by Peabody, but does not
involve work of a specialist or professional nature.
[9] Having regard to the considerations referred to in s 306E(7A), we are satisfied that the
performance of work by the employees at the Mine supplied to Peabody by the employers is
not and will not be for the provision of a service. We are satisfied that the employers supply
labour to Peabody.
[2024] FWCFB 413
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[10] In relation to s 306E(2) of the FW Act, we are not satisfied that it is not fair and
reasonable in all the circumstances to make the order that the MEU seeks. Section 306E(2)
indicates that the Commission is required to have regard to the matters listed in subsection (8)
in relation to which submissions have been made. No submissions were made to the Full Bench
in relation to any of the matters in subsection (8). Accordingly, we are not required to have
regard to those matters.
[11] In those circumstances, we are required by s 306E of the FW Act to make the regulated
labour hire arrangement orders the MEU seeks. We will publish the orders together with this
decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the
orders will be 4 November 2024, consistent with s 306E(9)(e)(ii).
PRESIDENT
Appearances:
A Walkaden for the Mining and Energy Union.
P Hill for Protech GPS Pty Ltd.
T Walthall of MinterEllison for WorkPac Pty Ltd and WorkPac Mining Pty Ltd.
K Jacklin of the Australian Resources & Energy Employer Association for FES Coal Pty Ltd
trading as One Key Resources.
E Kenny of Herbert Smith Freehills for Peabody Energy Australia PCI Mine Management Pty
Ltd.
Hearing details:
2024.
Sydney via video link using Microsoft Teams (mention and directions):
3 September 2024 (C2024/5555 and C2024/5558), 29 September (C2024/6046).
Determined on the papers.
Written submissions:
Mining and Energy Union: 10 September 2024.
Printed by authority of the Commonwealth Government Printer
PR780866
1 C2024/5555.
THE FAIR WORK FAI COMMISSION THE
[2024] FWCFB 413
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2 C2024/5558.
3 C2024/6046.
4 [2024] FWCFB 299.
5 Callide [8]–[17].
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
