1
Fair Work Act 2009
s.306E - Application for a regulated labour hire arrangement order
Application by Mining and Energy Union re Boggabri Coal Mine
(C2024/4157)
JUSTICE HATCHER, PRESIDENT
VICE PRESIDENT ASBURY
VICE PRESIDENT GIBIAN
SYDNEY, 1 NOVEMBER 2024
Application for a regulated labour hire arrangement order in respect of FES Coal Pty Ltd in
relation to work performed for Boggabri Coal Operations Pty Ltd at the Boggabri Coal Mine
– making of a regulated labour hire arrangement order not opposed by any party – dispute in
relation to form of order – application determined on the papers – regulated labour hire
arrangement order made.
Introduction and background
[1] The Mining and Energy Union (MEU) has applied under s 306E of the Fair Work Act
2009 (Cth) (FW Act) for a regulated labour hire arrangement order applying to Boggabri Coal
Operations Pty Ltd (Boggabri Coal) as the regulated host and FES Coal Pty Ltd (FES) as an
employer. FES is part of the One Key Resources Group. The application was made on 21 June
2024.
[2] The proposed order would apply to employees of FES who perform work at the
Boggabri Coal Mine (Mine), which is an open cut black coal mine owned by Idemitsu Australia
Resources Pty Ltd, through its subsidiary Boggabri Coal Pty Ltd (which is 80% owned by
Idemitsu, 10% owned by Chugoku Electric Power Australia Resources Pty Ltd and 10% owned
by NS Boggabri Pty Limited).
[3] Neither Boggabri Coal nor FES oppose the application or seek to make submissions
opposing a regulated labour hire arrangement order being made. However, FES opposes the
form of the order sought by the MEU and submits that, if it is otherwise satisfied that the
requirements for the making of an order are met, the Commission should make an order in a
more limited form.
[4] On 12 August 2024, the MEU provided a draft order for consideration which included
the following provision to describe the regulated employees who would be covered by the
proposed order:
[2024] FWCFB 415
DECISION
AUSTRALIA FairWork Commission
[2024] FWCFB 415
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A.3 The regulated employees covered by the order are employees of the Employer who
perform work at the Boggabri Coal Mine 17km north-east of Boggabri in the State of New South
Wales who would, if employed by the Regulated Host, be covered by the host employment
instrument identified in A.4.
[5] On 29 August 2024, FES provided a draft order proposing the following changes to the
provision at A.3:
A.3 The regulated employees covered by the order are employees of the Employer who are
supplied to the Regulated Host under Labour Hire Agreement BC- COM-619 (dated 10 April
2023 between One Key Resources Pty Ltd and the Regulated Host), or under any subsequent
replacement labour hire contract, who perform work at the Boggabri Coal Mine 17km north-
east of Boggabri in the State of New South Wales who would, if employed by the Regulated
Host, be covered by the host employment instrument identified in A.4.
[6] FES seeks to restrict the operation of the order to employees supplied under a specific
labour hire supply contract, referred to as ‘Labour Hire Agreement BC-COM-619’, and any
subsequent replacement labour hire contract. The MEU does not consent to FES’s proposed
amendment to the draft order and submits than an order should be made in the form it proposes.
[7] The MEU filed submissions in support of the application. Boggabri Coal advised the
Commission it neither opposes or supports the application and does not wish to file any material
or make any submissions in relation to the application. In relation to the terms of the order
sought, both the MEU and FES filed submissions. No other person has indicated an interest in
the application.
[8] The evidence before the Commission comprised:
• a witness statement of David Boxsell, an operations technician employed by
Boggabri Coal and Secretary of the Boggabri Lodge of the MEU, dated 26 July
2024; and
• a witness statement of Nathan Hall-Riley, a mining operator employed by FES at
the Boggabri Mine, also dated 26 July 2024.
[9] The evidence indicates, and we find that:
• The Mine is an open cut coal mine approximately 17 kilometres north-east of
Boggabri in the Gunnedah basin coalfields of New South Wales. The Mine produces
low ash, high volatile, low sulphur thermal/PCI/semi-soft coking coal and operates
24-hours a day, 7-days a week save for Christmas Day and Boxing Day.
• Boggabri Coal employs production and maintenance employees to perform work at
the Mine who are covered by an enterprise agreement known as the Boggabri Coal
Operations Enterprise Agreement 2024 (Boggabri Agreement).
• The Boggabri Agreement is expressed to cover Boggabri Coal and ‘Employees of
BCO engaged to perform work at the Boggabri CHPP and the Boggabri open cut
mine, who would otherwise be covered by Schedule A of the Black Coal Mining
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Industry Award 2020’. The ‘CHPP’ is the Boggabri Coal’s coal handling and
preparation plant (CHPP). Clause 7 of the Boggabri Agreement sets out a series of
classifications which are: Operations Technician in Training (Trainee); Operations
Technician; and Maintenance Technician.
• In addition to the directly employed workforce, FES supplies a substantial number
of employees to Boggabri Coal to perform work at the Mine. There are presently
approximately 80 to 100 FES employees who perform work at the Mine. The
contracts of employment provided to FES employees, amongst other things, require
that the employee:
a. perform duties at the Boggabri Coal site or elsewhere, as directed by
Boggabri Coal;
b. are required to work the hours reasonably necessary to perform their role and
reasonable additional hours as required by Boggabri Coal;
c. use their best endeavours to promote and protect FES and those of Boggabri
Coal;
d. follow all reasonable and lawful directions from the client; and
e. comply with all requirements of the Work Health and Safety policies and
procedures that apply to the workplace, including obligations arising under
Boggabri Coal’s health and safety management system.
• An enterprise agreement known as the FES Coal Pty Ltd Greenfield Mining
Agreement 2018 (FES Agreement) covers and applies to FES and its employees
who perform work at the Mine.
• Production work at the Mine involves engagement in processes relating to the
extraction of coal and its transportation to a CHPP involving the use of plant and
equipment by production workers employed by Boggabri Coal and FES. These
items of plant and equipment include rear dump trucks, dozers, graders, water
trucks, rubber tyred dozers, production excavators, ancillary excavators/loaders,
production front end loaders, service carts and overburden/coal drill. Boggabri Coal
owns the plant and equipment. FES provides no plant and equipment that is used at
the Mine.
• Both Boggabri Coal and FES employees perform production work at the Mine,
operating the various types of plant and equipment. Boggabri Coal and FES
employees work alongside one another and use the same plant and equipment and
crib facilities.
• Boggabri Coal determines which plant and equipment workers, including
employees of FES, operate by reference to the worker having undertaken relevant
training and assessment. The same training is required to be undertaken by both
Boggabri Coal and FES employees and the training and assessment is conducted by
Boggabri Coal.
• Supervisors, who oversee and superintend work at the Mine, are all employed by
Boggabri Coal and these supervisors arrange, oversee and monitor the work of all
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employees at the Mine, including FES employees. There are no FES managers or
supervisors working at the Mine or overseeing and superintending the work of FES
employees. One of the Boggabri Coal supervisors on each production crew holds
the statutory function of open cut examiner (OCE) under the Work Health and
Safety (Mines and Petroleum Sites) Regulation 2022 (NSW).
• Boggabri Coal controls the sign in and sign out of workers to the Mine and all
workers are issued swipe cards by Boggabri Coal recording their name and an
identification number. FES employees are provided with the same swipe card and
the sign in/sign off procedure followed by Boggabri Coal employees and all other
workers is determined and enforced by Boggabri Coal. Boggabri Coal also monitors
and enforces an alcohol and drug testing regime at the Mine that covers all workers
including FES employees.
• Both Boggabri Coal and FES employees attend pre-start meetings together when
they commence at the same time and receive their duty assignments through the
same computer screens and projectors provided by Boggabri Coal. A pre shift
instruction (PSI) meeting is conducted at the beginning of each shift by the Boggabri
Coal supervisors and attended by both Boggabri Coal and FES employees.
• Policies and procedures in place at the Mine, which all workers including those
employed by FES are required to adhere to, are established and enforced by
Boggabri Coal. Training packages required to be undertaken by workers at the Mine
are provided by Boggabri Coal and Boggabri Coal ensures that all workers at the
Mine are trained in accordance with these packages. Boggabri Coal monitors and
keeps track of the training undertaken by each worker.
• Rostering arrangements for Boggabri Coal and FES employees are the same. With
the exception of pit services and operations technicians that are engaged to provide
‘crib’ relief, Boggabri employees and FES employees on each of those production
crews work a 5/4 rotating roster, which consist of 12-hour day and night shifts across
the 7 days of the week. FES employees who wish to take personal/carer’s leave are
required to notify the relevant Boggabri Coal supervisor.
• Personal Protective Equipment (PPE) for work at the Mine is provided to workers
by Boggabri Coal, and all consumable products used and accessed by workers at the
Mine are provided by Boggabri Coal. FES employees receive a uniform with their
name and the Idemitsu Boggabri Coal logo, and PPE is supplied to FES employees
by Boggabri Coal.
• FES employees are paid an annual amount of approximately $15,618 less per year
than is received by direct employees of Boggabri Coal. For Operations Technicians
in Training (Trainee) equivalent, FES employees receive approximately $34,714.16
less than employees directly employed by Boggabri Coal at the Mine.
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Consideration
Is a regulated labour hire arrangement order required to be made?
[10] In Application by MEU re Callide Mine,1 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.
[11] We are satisfied, for the purposes of s 306E(7) of the FW Act, that the MEU is an
employee organisation that is entitled to represent the industrial interests of the employees of
FES who are supplied to perform work for Boggabri Coal at the Mine as well as employees of
Boggabri Coal employed to perform work at the Mine. Accordingly, the MEU is entitled to
apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation
of s 306E(7)(c).
[12] We are further satisfied that the requirements of 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, on the basis of the material before the Full Bench, we are satisfied
that:
(a) FES supplies employees employed by FES to perform work for Boggabri Coal
at the Mine involving production and maintenance work.
(b) The Boggabri Agreement would apply to employees of FES who are supplied
to perform work for Boggabri Coal if Boggabri Coal were to employ those
employees directly to undertake the same kind of work.
(c) Boggabri Coal is not a small business employer.
[13] 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 this view, we have had regard to the matters set out in subsection (7A). In relation to
the matters referred to in s 306E(7A), we make the following findings:
(a) There is no evidence that FES has any involvement in matters relating to the
performance of work by employees of FES working at the Mine.
(b) The evidence indicates that Boggabri Coal arranges and oversees the work of
FES employees who are supplied to perform work at the Mine, FES employees
are assigned work by Boggabri Coal, supervisors employed by Boggabri Coal
direct, instruct and monitor the work of FES employees and FES employees are
subject to the same sign in/sign out and rostering procedures as Boggabri Coal
employees.
(c) Boggabri Coal and FES employees work alongside one another and use the same
plant and equipment supplied by Boggabri Coal and use the same crib facilities.
FES employees are subject to operative procedures, health and safety systems
and other policies and procedures established and enforced by Boggabri Coal.
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(d) There is no evidence that FES is or will be subject to industry or professional
standards or responsibilities in relation to the work of employees of the FES
entities supplied to Boggabri Coal.
(e) The work undertaken by FES employees at the Mine involves the operation of
plant and equipment and employees are provided with appropriate training but
it does not involve work of a specialist or professional nature.
[14] Having regard to the considerations referred to in s 306E(7A), it is clear that the
performance of work by the employees supplied by FES to Boggabri Coal at the Mine is not
and will not be for the provision of a service. We are satisfied that FES supplies labour to
Boggabri Coal.
[15] 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 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.
[16] In those circumstances, we are required by s 306E to make a regulated labour hire
arrangement order. However, in this matter there remains a dispute in relation to the terms of
the order that should be made.
The terms of the regulated labour hire arrangement order
[17] In relation to the form of the order, FES submits the regulated employees covered by
the orders should be limited to those who are supplied under a particular contract referred to as
‘Labour Hire Agreement BC- COM-619’ dated 10 April 2023 between One Key Resources Pty
Ltd and Boggabri Coal or under any subsequent replacement labour hire contract.
[18] FES submits that the form of order it proposes would provide certainty in relation to the
scope of the order and avoid ‘any potential ambiguity which could lead to future scope related
disputes’. FES accepts that it presently does not have any commercial arrangements in place to
supply services to Boggabri Coal other than labour hire services. However, it says that, in
response to the impact of Part 2-7A of the FW Act introduced by the Fair Work Legislation
Amendment (Closing Loopholes) Act 2023 (Cth), it must consider all potential diversification
opportunities, including options outside of labour hire, to ensure the continued success of the
business.
[19] FES’s concern is said to be that, in the absence of the additional wording it proposes, it
would be open to argue that the order not only captures current labour hire employees supplied
by FES, but also all future FES employees based at the Boggabri Mine. If FES was to commence
to supply services to Boggabri, it submits that such an arrangement should not automatically
fall within the scope of the order made in this matter without consideration being given to
whether the Commission is satisfied that the performance of work is not or will not be the
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provision of a service for the purposes of s 306E(1A) (having regard to the matters listed in s
306E(7A)).
[20] The MEU does not agree and opposes the limitation sought to be imposed to the
description of the regulated employees who will be covered by the order. The MEU submits
that the Commission would not make the order in the form sought by FES in circumstances in
which FES has not presented any evidence in relation to, or even described, the nature of the
contract it has with Boggabri Coal. The MEU says that it is obvious that FES does not presently
have any ‘diversification opportunities’ and the order should not be drafted to take account of
what is no more than a hypothetical possibility that FES might supply services to Boggabri Coal
in the future. It submits that the form of order proposed by the MEU satisfies the requirements
of s 306E(9) and aligns with the form of order made in other matters.3
[21] We propose to make a regulated labour hire arrangement order in the form proposed by
the MEU, without the additional wording sought by FES, for the following reasons. First, in
our opinion, the additional wording of limitation proposed by FES is likely to confuse rather
than clarify the coverage of the order. We infer from FES’s submissions that the FES employees
supplied to Boggabri Coal are supplied under a contract known as ‘Labour Hire Agreement
BC- COM-619’ dated 10 April 2023. However, there is no evidence before the Full Bench in
relation to the terms or operation of that contract. We do not have before us evidence which
would permit the Full Bench to be satisfied that a reference to the particular contract in the
order would capture all FES employees currently performing work at the Boggabri Mine in
relation to the supply of labour.
[22] Furthermore, the order should apply to future labour hire arrangements for FES to
supply labour to Boggabri Coal. FES accepts that this should be the case by suggesting that the
order extend to employees supplied under ‘any future replacement labour hire contract’. The
introduction of the language ‘any future replacement labour hire contract’, however, would
itself introduce uncertainty in relation to the application of the order. If FES and Boggabri Coal
enter a further contract, employees and the MEU may not even be aware this has occurred, and
the terms of the contract are unlikely to be known, or accessible, to FES employees or to the
MEU. Whether any further contract could be properly described as a ‘replacement labour hire
contract’ may be difficult or impossible to ascertain or subject of dispute. This would, in our
view, be undesirable. It is also possible that FES could enter into an arrangement for the supply
of labour other than pursuant to a contract of the kind described in the words of limitation FES
seeks to have included in A.3 of the proposed order – for example, by use of purchase orders.
[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
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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. Part 2-7A of the FW Act makes specific provision only
for a regulated labour hire arrangement order to be varied to cover new employers in s 306ED.
That section serves a particular function. For example, it imposes an obligation on a regulated
host to apply to vary a regulated labour hire arrangement order if a new employer starts, or will
start, to supply employees to perform work of a kind to which a regulated labour hire
arrangement order relates and in relation to the manner in which the Commission is to deal with
such an application.4
[26] Although we have not received full argument in relation to the question, it would appear
that the Commission could vary a regulated labour hire arrangement order under the general
power conferred on the Commission to vary or revoke its decisions under s 603(1) of the FW
Act. Section 603(1) allows the Commission to vary or revoke a decision made under the FW
Act other than a decision of a type referred to in s 603(3). The statutory note appearing under s
603(1) indicates that, if the Commission makes a decision to make an instrument, the
Commission may vary or revoke the instrument under s 603.5 The Commission could do so on
its own initiative or on application by a person who is affected by the decision.6 For that reason
also, the additional wording proposed by FES is not necessary.
[27] The form of the order proposed by the MEU complies with the requirements as to the
content of a regulated labour hire arrangement order in s 306E(9) of the FW Act. An order
should be made in the form proposed by the MEU.
Conclusion
[28] For the reasons set out above, we are required by s 306E of the FW Act to make a
regulated labour hire arrangement order. We will publish the order together with this decision,
setting out the matters specified in s 306E(9) of the FW Act and in the form proposed by the
MEU. The operative date of the order will be 4 November 2024, consistent with s
306E(9)(e)(ii).
[2024] FWCFB 415
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PRESIDENT
Appearances:
K Endacott for the Mining and Energy Union.
C Moran-Simpson for FES Coal Pty Ltd trading as One Key.
Hearing details:
2024.
Sydney via video link using Microsoft Teams (mention and directions):
1 October.
Determined on the papers.
Written submissions:
Mining and Energy Union: 15 October 2024.
FES Coal Pty Ltd: 8 October 2024.
Printed by authority of the Commonwealth Government Printer
PR780874
1 Application by Mining and Energy Union re Callide Mine [2024] FWCFB 299.
2 Ibid [8]–[17].
3 See, for example, LH200001 PR777029.
4 Fair Work Act 2009 (Cth) s 306ED(2) and (5)–(8).
5 Ibid s 598(2).
6 Ibid s 603(2)(a) and (b)(i).
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr777029.pdf
