1
Fair Work Act 2009
s.306E—Application for a regulated labour hire arrangement order
Application by Shop, Distributive and Allied Employees Association and
United Workers’ Union re Metcash Trading Limited
(C2024/5577)
JUSTICE HATCHER, PRESIDENT SYDNEY, 25 NOVEMBER 2024
Application for a regulated labour hire arrangement order in respect of Asset Personnel Pty
Ltd, Fluid Recruitment Pty Ltd, Recruitco Pty Ltd and Manpower Services (Australia) Pty Ltd
in relation to work performed for Metcash Trading Limited.
[1] The Shop, Distributive and Allied Employees Association (SDA) and United Workers’
Union (UWU) (together, applicants) have applied under s 306E of the Fair Work Act 2009 (Cth)
(FW Act) for a regulated labour hire arrangement order applying to Metcash Trading Limited
(Metcash) as the regulated host and the following entities as the employers (together,
Employers):
• Asset Personnel Pty Ltd;
• Fluid Recruitment Pty Ltd;
• Recruitco Pty Ltd; and
• Manpower Services (Australia) Pty Ltd.
[2] The proposed order would apply in respect of employees of the Employers who perform
work as storeworkers for Metcash at its distribution centre located at 50 Port Wakefield Road,
Gepps Cross in South Australia (Gepps Cross DC). The Metcash Trading Limited South
Australia Food & Liquor Enterprise Agreement 20231 (Metcash SA Agreement) applies to
direct employees of Metcash that perform this work. Neither Metcash nor any of the Employers
opposes the application.
[3] The applicants filed submissions in support of the application and a draft order. Metcash
and the Employers declined to file any substantive submissions in response. No other person
has indicated an interest in the application.
[4] The evidentiary material before the Commission is confined to the uncontested
assertions of fact contained in the application itself and the applicants’ submissions filed on 25
October 2024. I am entitled to make findings of fact on the basis of this material.2 I find as
follows:
• Metcash employs more than 15 employees.
[2024] FWC 3275
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3275
2
• The Metcash SA Agreement covers Metcash and its employees at the Gepps Cross
DC, and also covers the SDA and the UWU.
• The Employers supply workers to Metcash to work at the Gepps Cross DC.
• The Employers have no embedded supervisory or management capacity at the
Gepps Cross DC, and its supervisory/management personnel attend the site only
on an irregular basis.
• The employees supplied by the Employers undertake Metcash’s induction training
when commencing employment at the Gepps Cross DC, which includes training
in Metcash’s policy and procedure book, which the employees are required to
comply with.
• Metcash’s Team Leaders allocate duties to employees of the Employers, and such
employees report to the Metcash Team Leaders and are required to comply with
their instructions and directions.
• Employees of the Employers:
o are given directions as to picking orders via Metcash’s headsets utilising
Metcash’s automated picking directory technology;
o are required to attend team talks convened by Metcash’s Team Leaders,
alongside Metcash’s own employees, at the commencement of each shift;
o are required to undertake ongoing training arranged and conducted by
Metcash;
o are rostered for work by Metcash, with their rostering information published
on the same rosters as for Metcash’s own employees;
o take breaks within their teams at Metcash’s direction, and at the same times
and in the same break room as Metcash’s employees;
o request leave through Metcash, and are required to notify Metcash of
absence due to illness;
o exclusively use Metcash’s plant and equipment, including electric pallet
jacks pick machines, headsets and forklifts, in the performance of their
work; and
o perform the same duties as Metcash’s employees and work alongside them
in doing so.
• The Employers do not direct, supervise or control their employees working for
Metcash.
Consideration
[5] In Application by the Mining and Energy Union,3 a Full Bench of the Commission
outlined a number of principles concerning the proper interpretation and application of s 306E.4
I apply, but do not repeat, the principles stated in that decision.
[6] I am satisfied that the SDA and UWU are employee organisations entitled to represent
the industrial interests of the employees of the Employers to whom the proposed order would
apply, who in turn are regulated employees for the purpose of s 306(5) of the FW Act.
Accordingly, they are entitled under s 306E(7)(c) to apply for a regulated labour hire
arrangement order.
[7] I am further satisfied that the requirements in s 306E(1) of the FW Act, in relation to
which the Commission must be satisfied to enliven the obligation to make a regulated labour
[2024] FWC 3275
3
hire arrangement order, are met. Specifically, I am satisfied on the material filed in this matter
that:
(a) The Employers supply employees employed by them to Metcash to perform
storeworker functions at the Gepps Cross DC. These functions include picking,
packing, storing, receiving, dispatching, forking and cleaning.
(b) The Metcash SA Agreement is expressed to apply to ‘[e]mployees who are
employed as Storeworkers who perform work covered by this Agreement and
who… perform work within [Metcash’s] Warehouse Distribution Centre in the
state of South Australia’.5 It would therefore apply to the employees of the
Employers supplied to perform work for Metcash if Metcash were to employ those
employees directly to perform the same kind of work.
(c) Metcash is not a small business employer.
[8] For the purposes of s 306E(1A) of the FW Act, I am 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, I have had regard to the matters set out in s 306E(7A). In relation to those
matters, I make the following findings (using the lettering in the subsection):
(a) The Employers do not have any significant involvement in matters relating to the
performance of work by its employees working at the Gepps Cross DC.
(b) The evidence indicates that Metcash supervises and controls the work of
employees of the Employers working at the Gepps Cross DC. Metcash, and not
the Employers, is responsible for rostering, allocating duties and directing the
employees in their day-to-day work including as to break times. Employees of the
Employers attend training and team talks arranged by Metcash alongside
Metcash’s direct employees. Employees request leave through Metcash in
addition to the Employers, and must notify Metcash if they will be absent due to
illness. There is no evidence that the Employers, or any person on behalf of them,
direct, supervise or control the employees supplied to Metcash while they are
performing work at the Gepps Cross DC.
(c) Employees of the Employers use Metcash’s equipment and not that of the
Employers when working at Metcash’s distribution centres.
(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 their employees
supplied to Metcash.
(e) The work undertaken by employees of the Employers at Metcash’s distribution
centres is covered by the classification descriptions of Storeworker grade 1 to
Storeworker grade 3 in the Storage Services and Wholesale Award 2020.6 This is
not work of a specialist or professional nature.
[2024] FWC 3275
4
[9] Having regard to the considerations referred to in s 306E(7A), it is clear that the
performance of work by the employees supplied by the Employers to Metcash is not and will
not be for the provision of a service. I am satisfied that the Employers supply labour to Metcash.
[10] In relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable
in all the circumstances to make the order the SDA and UWU seek. Section 306E(2) indicates
that the Commission is required to have regard to the matters listed in s 306E(8) in relation to
which submissions have been made. No submissions were made by any party in relation to any
of these matters. Accordingly, I am not required to have regard to those matters.
[11] In the circumstances described, the Commission is required by s 306E of the FW Act to
make the regulated labour hire arrangement order sought. I publish the order which is made
together with this decision. The order sets out the matters specified in s 306E(9) of the FW Act.
The operative date of the order will be 2 December 2024, consistent with s 306E(9)(e)(ii). No
party submitted that the order should specify when they cease to be in force pursuant to
s 306E(10). Accordingly, the order will not contain such a specification.
PRESIDENT
Appearances:
A Amin and D Collett for the Shop, Distributive and Allied Employees Association.
K Smith for the United Workers’ Union.
P Dugan, solicitor, and A Politis for Asset Personnel Pty Ltd.
N Walker for Fluid Recruitment Pty Ltd t/a Omni Recruit.
E Nelson, P Famularo and J Bortoli for Manpower Services (Australia) Pty Ltd.
M Mead and X Burton, solicitors, for Metcash Trading Limited.
T Mattin for Recruitco Pty Ltd.
Hearing details:
2024.
Sydney by video link using Microsoft Teams (directions and report-back):
3 September, 23 October.
Written submissions:
Shop, Distributive and Allied Employees Association and United Workers’ Union: 29 October
2024.
Asset Personnel Pty Ltd: 14 October 2024.
THE FAIR WORK FAI COMMISSION THE
[2024] FWC 3275
5
Fluid Recruitment Pty Ltd t/a Omni Recruit: 16 October 2024.
Metcash Trading Limited: 15 October 2024.
Manpower Services (Australia) Pty Ltd: 15 October 2024.
Printed by authority of the Commonwealth Government Printer
PR781654
1 AE521025.
2 R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board
[1965] FCA 50, 113 CLR 228 at 243 per Barwick CJ; Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.
3 [2024] FWCFB 299.
4 Ibid [8]–[17].
5 Metcash Trading Limited South Australia Food & Liquor Enterprise Agreement 2023 [AE521025] clause 1.2(a)(iii).
6 MA000084 clauses A.1 to A.3.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
