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Fair Work Act 2009
s.306E—Application for a regulated labour hire arrangement order
Application by United Workers’ Union re the Asahi Albury/Wodonga Site
(LH2024/52)
JUSTICE HATCHER, PRESIDENT SYDNEY, 23 DECEMBER 2024
Application for a regulated labour hire arrangement order in respect of Drake Australia Pty
Ltd and Staffpower Pty Ltd in relation to work performed for Asahi Beverages Pty Ltd.
[1] The United Workers’ Union (UWU) has applied under s 306E of the Fair Work Act
2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Asahi Beverages
Pty Ltd (Asahi) as the regulated host and Drake Australia Pty Ltd (Drake) and Staffpower Pty
Ltd (Staffpower) as the employers. The regulated employees of Drake and Staffpower perform
production and distribution work for Asahi at its Albury/Wodonga site (Site). The host
employment instrument is the Asahi Beverages Albury Enterprise Agreement 2023
(Agreement).1
[2] In its application, the UWU contends that Drake and Staffpower have provided the
labour of the regulated employees to Asahi at the Site for 11 years and 3 years respectively and
that Asahi intends to continue this arrangement. The production work performed by the
regulated employees is in the roles described in the Level 1 and 2 classifications in Table 1 of
Appendix A of the Agreement, and the distribution work is in the Level 1 and 2 roles in Table
2 of Appendix A of the Agreement.
[3] The UWU further contends in its application that the work performed by the regulated
employees for Asahi does not involve the provision of a service within the meaning of s
306E(1A) of the FW Act because:
• Asahi provides the regulated employees with orientation and training;
• Asahi assumes sole responsibility for the rostering of the regulated employees;
• Asahi assigns work to the regulated employees;
• Asahi supervises and manages the work of the regulated employees;
• Asahi provides the regulated employees with all equipment required to work at the Site,
including personal protective equipment;
• Asahi requires the regulated employees to adhere to the same standards and
requirements as its directly engaged employees; and
• the regulated employees do not perform work that is of a specialist nature.
[2024] FWC 3577
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3577
2
[4] Asahi, Drake and Staffpower have each filed a Form F86A response to the UWU’s
application. None of them takes issue with any of the factual contentions in the UWU’s
application and all indicate that they do not oppose the application. No other party has indicated
an interest in the application.
[5] On the basis of the material contained in the forms filed by the parties, and applying the
principles outlined in Application by the Mining and Energy Union,2 I make the following
findings. I am satisfied that the UWU is a registered employee organisation that is entitled to
represent the industrial interests of the regulated employees and employees of Asahi at the Site
and is thus entitled to apply for a regulated labour hire arrangement order under s 306E(7)(c). I
am likewise satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied
in order to enliven the obligation to make a regulated labour hire arrangement order, are met in
that:
(a) It is not in contest that Drake and Staffpower supply their employees to perform
work for Asahi at the Site.
(b) The Agreement would apply to the regulated employees if they were employed
directly by Asahi to perform production and distribution work at the Site.
(c) Asahi is not a small business employer.
[6] I am also satisfied, for the purpose of s 306E(1A) of the FW Act, that the performance
of work by the regulated employees is not and will not be for the provision of a service, rather
than the supply of labour. In forming this view, I have had regard to the matters set out in sub-
s (7A). In particular, having regard to the non-contested contentions of fact in the UWU’s
application set out in [3] above, I find that: Drake and Staffpower are not involved in matters
relating to the performance of work and do not direct, supervise of control the regulated
employees when they perform work; that the regulated employees do not use the plant, systems
or structures of Drake or Staffpower in their performance of work; and that the work performed
by the regulated employees is not of a specialist or expert nature.
[7] 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 a regulated labour hire arrangement order as sought by the
UWU. Section 306E(2) requires the Commission to have regard to the matters listed in sub-s
(8) in relation to which submissions have been made. In this case, no submissions were made
in relation to any of the matters listed in sub-s (8). Accordingly, I am not required to have regard
to those matters.
[8] In those circumstances, I am required by s 306E of the FW Act to make the regulated
labour hire arrangement order sought by the UWU. The order is published together with this
decision and it sets out the matters specified in s 306E(9) of the FW Act. The operative date of
the order is the date of this decision (23 December 2024), as agreed by the parties and consistent
with s 306E(9)(e)(ii).
[2024] FWC 3577
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PRESIDENT
Appearances:
A van Gent for the United Workers’ Union.
D Parncutt for Drake Australia Pty Ltd.
J Hodgkin for Staffpower Pty Ltd.
G D’Costa with K Linsent for Asahi Beverages Pty Ltd.
Hearing details:
2024.
Melbourne, via video using Microsoft Teams:
13 December.
Printed by authority of the Commonwealth Government Printer
LH200016 PR782772
1 AE520478.
2 [2024] FWCFB 299, 333 IR 249.
THE FAIR WORK FAI COMMISSION THE
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
