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Fair Work Act 2009
s.306E—Application for a regulated labour hire arrangement order
Applications by Mining and Energy Union re Capcoal Surface Operations
(C2024/5507, C2024/5508)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
VICE PRESIDENT GIBIAN
SYDNEY, 1 NOVEMBER 2024
Applications for regulated labour hire arrangement orders in respect of WorkPac Pty Ltd,
WorkPac Mining Pty Ltd and Mobilise Group Pty Ltd t/a AWX Pty Ltd in relation to work
performed for Anglo Coal (Capcoal Management) Pty Ltd at Capcoal Surface Operations.
[1] The Mining and Energy Union (MEU) has made two applications under s 306E of the
Fair Work Act 2009 (Cth) (FW Act) for regulated labour hire arrangement orders (RLHA
orders). In respect of both applications, Anglo Coal (Capcoal Management) Pty Ltd (Anglo)
is the regulated host, the Capcoal Surface Operations Enterprise Agreement 2022 (Agreement)
is the covered employment instrument, and Capcoal Surface Operations, an open cut black coal
mining operation in the German Creek mining area near the town of Middlemount in
Queensland (Mine), is the relevant work site. In matter C2024/5507, WorkPac Pty Ltd and
WorkPac Mining Pty Ltd (collectively, WorkPac) are the employers. In matter C2024/5508,
the employer is Mobilise Group Pty Ltd trading as AWX Pty Ltd (AWX). Because of the
substantially overlapping facts, evidence and submissions in each matter, it is convenient to
deal with them together.
[2] In matter C2024/5507, Anglo and WorkPac have declined to file any evidence and
submissions in the matter and have indicated that, if the Commission is satisfied that the RLHA
order sought by the MEU should be made pursuant to s 306E of the FW Act, they do not oppose
the order sought being issued. Anglo and AWX have taken the same position in matter
C2024/5508. No other person has indicated an interest in respect of either application. The
parties agree that the matters can be determined on the papers.
[3] The evidence before the Commission in matter C2024/5507 comprised the following
two witness statements filed by the MEU:
• Statement of Russell Herdman dated 16 September 2024. Mr Herdman is
employed by Anglo as an Open Cut Examiner (OCE) at the Mine.
• Statement of Brody Kelly dated 17 September 2024. Mr Kelly is an employee of
WorkPac Pty Ltd who works as a mineworker at the Mine.
[2024] FWCFB 411
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 411
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[4] In matter C2024/5508, the MEU filed the same statement made by Mr Herdman and, in
addition, filed a witness statement made by Tayla Walker, an employee of AWX performing
work at the Mine, dated 18 September 2024.
[5] Based on this evidence, we make the following factual findings in respect of both
matters:
• Anglo and its production employees at the mine are covered by the Agreement,
which provides for four classifications for production employees, namely Trainee
Coal Operator, Coal Operator in Training, Coal Operator and OCE.
• The Mine operates 24 hours a day, seven days per week for 363 days of the year.
The production workforce consists of Anglo employees and employees of third-
party providers including WorkPac and AWX.
• The production tasks at the Mine involve the operation of plant and equipment to
strip topsoil above the coal seam, drill and blast rock above the coal seam, dig up
overburden above the coal seam and extract coal. The coal is then transported to
the Coal Handling and Processing Plant to be processed and then loaded onto
trains.
• Anglo operates several items of plant and equipment to perform the extraction,
mining and transportation work, including dragline excavators, hydraulic
excavators, dozers, loaders, haul trucks, graders and water carts.
• The plant and equipment used for the production work at the mine is all owned or
leased by Anglo. Neither WorkPac nor AWX provide any plant or equipment that
is used at the mine. Anglo also supplies any consumable products used by
production workers, including WorkPac and AWX employees. All personal
protective equipment (PPE) for WorkPac employees is supplied by Anglo. AWX
supplies its employees with a safety hat, but all other PPE is supplied by Anglo.
However, WorkPac does supply its employees with shirts, pants and jackets with
the WorkPac logo, and AWX supplies its employees with boots, pants and shirts.
• Anglo, WorkPac and AWX employees attend the same pre-start meeting each day
where the work to be performed is detailed by a supervisor under the direction of
Anglo. Anglo allocates both its own employees and WorkPac and AWX
employees the machines they are to operate and assigns the production work they
are to perform for each shift.
• In the performance of their work, Anglo, WorkPac and AWX employees work
alongside each other, operate the same machines and equipment and perform the
same production work.
• Anglo has, consistent with its obligations under the Coal Mining Safety and
Health Act 1999 (Qld), a Safety and Health Management System (SHMS) in place
at the Mine and applies to all workers regardless of employer. The SHMS requires
all employees to undertake a site induction prior to commencing work at the Mine.
[2024] FWCFB 411
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Anglo, WorkPac and AWX employees must all undertake this induction, which is
conducted by Anglo.
• Anglo also maintains and enforces policies and procedures including Standard
Operating Procedures (SOPs) for plant and equipment at the Mine, which deal
with risks arising from the conduct of particular work or the operation of the items
of plant and equipment and detail how the work is to be performed. These policies,
procedures and SOPs apply equally to WorkPac and AWX employees. Anglo’s
policies determine which workers (including WorkPac and AWX employees) will
operate which equipment.
• Anglo trains, and assesses for competency, all workers at the Mine (including
WorkPac and AWX employees) on the SOPs which apply to particular plant and
equipment. Anglo will only permit a worker at the Mine to operate a piece of plant
and equipment if it has assessed the worker as competent. Anglo keeps an
electronic record of competencies for all employees at the Mine, including
WorkPac and AWX employees. The system used tracks the skills of each
employee, the date the skills were achieved and when they expire and need
refreshing. WorkPac and AWX do not keep an electronic record of the
competencies/skills of their employees at the Mine.
• Anglo organises and directs the day-to-day conduct of work by workers at the
Mine. Supervisors employed by Anglo direct, instruct and monitor the work
performed by all production workers. Any issues that workers may have about
their work are dealt with by these supervisors. Those supervisors, in turn, report
to Anglo-employed superintendents and Anglo’s manager. Workpac and AWX
do not have any role in directing how their employees perform their work on a
day-to-day basis, including as to the allocation of their work, the manner of its
performance, the hours of work or the quality of work.
• Consistent with its statutory obligations, Anglo employs a prescribed number of
OCEs to ensure the safe conduct of mining operations. The OCEs issue directions
to the production workers, and control the work performed by production workers
to ensure that work is performed safely in accordance with the SHMS. All
production workers at the Mine regardless of employer are required to comply
with any direction issued by an OCE that relates to safety and health.
• Anglo, WorkPac and AWX employees are rostered on the same rosters, which are
prepared and distributed by Anglo, and allocated into the same production crews.
• Overtime is managed by Anglo through its supervisors. WorkPac’s approval is
not required for the performance of overtime by its employees, although WorkPac
is usually notified through timesheets required to be completed. The same applies
to AWX and its employees.
• When WorkPac and AWX employees perform work and when they take leave is
determined by Anglo. WorkPac employees are required to notify Anglo about
[2024] FWCFB 411
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taking personal or carers leave. The same applies to AWX employees, but they
also text AWX if they are sick and cannot attend work.
• WorkPac and AWX employees take breaks at times determined by Anglo and at
the same time as Anglo employees. In doing so they share crib facilities with
Anglo employees.
• WorkPac does not have an office at the Mine and when, occasionally, WorkPac
representatives visit the Mine, they do not usually have any substantial interaction
with WorkPac employees. If any incident occurs, WorkPac employees will notify
their Anglo supervisor in the first instance, who will organise a response and
investigation by Anglo. The employee will then inform WorkPac as soon as
practicable.
• AWX employees do not have any contact with AWX on a day-to-day basis. The
closest AWX office is about 100 kilometres away from the Mine at Emerald. An
AWX manager normally visits the Mine for approximately one hour at the start of
each swing, but does not engage in significant interaction with AWX employees.
Consideration
[6] In Application by MEU re Callide Mine1, a Full Bench of the Commission outlined a
number of principles concerning the proper interpretation and application of s 306E.2 We apply,
but do not repeat, the principles stated in that decision.
Matter C2024/5507
[7] In respect of this application, we are satisfied, for the purposes of s 306E(7)(c) of the
FW Act, that the MEU is an employee organisation that is entitled to represent the industrial
interests of both employees supplied by WorkPac to perform work for Anglo at the Mine and
employees of Anglo at the Mine. Accordingly, the MEU is entitled make this application for a
regulated labour hire arrangement order under s 306E of the FW Act.
[8] 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) WorkPac supplies workers which it employs to Anglo to perform mining
production work at the Mine.
(b) The Agreement would apply to the employees of WorkPac supplied to perform
work at the Mine if Anglo were to employ those employees directly to perform
the same kind of work. Clause 1.5.1 of the Agreement provides that it covers
Anglo in respect of its employees engaged in its ‘Surface Operations’ who are
covered by the classifications set out in this Agreement. The definition of ‘Surface
Operations’ in clause 1.3 encompasses the Mine the subject of the MEU’s
application. The classifications in the Agreement would cover the mining
production work undertaken by WorkPac employees at the Mine.
[2024] FWCFB 411
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(c) Anglo is not a small business employer.
[9] 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 WorkPac has any involvement in matters relating to the
performance of work by its employees working at the Mine.
(b) The evidence indicates that Anglo directs, supervises and controls the work of
WorkPac employees working at the Mine. Anglo, and not WorkPac, is responsible
for management of rostering, allocating tasks and the supervision of the way in
which work is conducted. There is no evidence that WorkPac, or any person on
behalf of WorkPac, directs, supervises or controls the employees supplied to
Anglo when they perform work at the Mine.
(c) WorkPac employees working at the Mine use Anglo’s plant and equipment to
perform their work, and operate under Anglo’s systems of work and safety
systems. WorkPac provides no plant or equipment and is not involved in the
systems of work and safety at the Mine.
(d) There is no evidence that WorkPac is or will be subject to industry or professional
standards or responsibilities in relation to the work of its employees supplied to
Anglo.
(e) The evidence indicates that while the work undertaken by WorkPac employees at
the Mine requires induction and other training, which is provided by Anglo, it
does not involve work of a specialist or professional nature. It is the same mining
production work which Anglo’s own production employees at the Mine perform.
[10] Having regard to the considerations referred to in s 306E(7A), it is clear that the
performance of work by the employees supplied by WorkPac to Anglo at the Mine is not and
will not be for the provision of a service. We are satisfied that WorkPac supplies labour to
Anglo.
[11] 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 sought by the MEU. Section 306E(2)
provides 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 have been made about any
of the matters in subsection (8). Accordingly, we are not required to have regard to those
matters.
[12] In those circumstances, we are required by s 306E of the FW Act to make the RLHA
order for which the MEU has applied. The order which we make in matter C2024/5507 is
published together with this decision. The order sets out the matters specified in s 306E(9) of
[2024] FWCFB 411
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the FW Act. The operative date of the order will be 4 November 2024, consistent with
s 306E(9)(e)(ii).
Matter C2024/5508
[13] We are likewise satisfied that the MEU is entitled to make this application under
s 306E(7)(c) as an employee organisation that is entitled to represent the industrial interests of
both employees supplied by AWX to perform work for Anglo at the Mine and employees of
Anglo at the Mine. We are also satisfied that the requirements in s 306E(1) are met in respect
of this application in that:
(a) AWX supplies workers which it employs to Anglo to perform mining production
work at the Mine.
(b) The Agreement would apply to the employees of AWX supplied to perform work
at the Mine if Anglo were to employ those employees directly to perform the same
kind of work, for the same reasons as explained in [8(b)] above.
(c) AWX is not a small business employer.
[14] 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
relation to the matters set out in s 306E(7A), we make the following findings:
(a) There is no evidence that AWX has any involvement in matters relating to the
performance of work by its employees working at the Mine.
(b) The evidence indicates that Anglo directs, supervises and controls the work of
AWX employees working at the Mine. Anglo, and not AWX, is responsible for
management of rostering, allocating tasks and the supervision of the way in which
work is conducted. There is no evidence that AWX, or any person on behalf of
AWX, directs, supervises or controls the employees supplied to Anglo when they
perform work at the Mine.
(c) AWX employees working at the Mine use Anglo’s plant and equipment to
perform their work, and operate under Anglo’s systems of work and safety
systems. AWX provides no plant or equipment and is not involved in the systems
of work and safety at the Mine.
(d) There is no evidence that AWX is or will be subject to industry or professional
standards or responsibilities in relation to the work of its employees supplied to
Anglo.
(e) While the work undertaken by AWX employees at the Mine requires induction
and other training, which is provided by Anglo, it does not involve work of a
specialist or professional nature. It is the same mining production work which
Anglo’s own production employees at the Mine perform.
[2024] FWCFB 411
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[15] Having regard to the considerations referred to in s 306E(7A), we find that the
performance of work by the employees supplied by AWX to Anglo at the Mine is not and will
not be for the provision of a service. We are satisfied that AWX supplies labour to Anglo. 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 sought by the MEU. No submissions have been made about
any of the matters in s 306E(8) and, accordingly, we are not required to have regard to those
matters.
[16] We are therefore required by s 306E of the FW Act to make the RLHA order sought by
the MEU. The order we make in matter C2024/5508 is likewise being published together with
this decision. The order sets out the matters specified in s 306E(9) of the FW Act. The order
has an operative date of 4 November 2024, consistent with s 306E(9)(e)(ii).
PRESIDENT
Appearances:
A Nash for the Mining and Energy Union.
T Walthall of MinterEllison for WorkPac Pty Ltd and WorkPac Mining Pty Ltd.
A Piper for Mobilise Group Pty Ltd trading as AWX Pty Ltd.
J Hall with A Wu of Ashurst for Anglo Coal (Capcoal Management) Pty Ltd.
Hearing details:
2024.
Sydney by video link using Microsoft Teams (mention and directions):
3 September.
Determined on the papers.
Written submissions:
Mining and Energy Union: 18 September 2024 (C2024/5507), 19 September 2024
(C2024/5508).
Printed by authority of the Commonwealth Government Printer
PR780859
1 [2024] FWCFB 299.
2 Ibid [8]–[17].
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
