1
Fair Work Act 2009
s.306E - Application for a regulated labour hire arrangement order
Application by the Mining and Energy Union re Bengalla Mining Company
Pty Ltd
(C2024/4711, C2024/4712)
VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT WRIGHT
DEPUTY PRESIDENT ROBERTS
COMMISSIONER P RYAN
SYDNEY, 13 MARCH 2025
Application for regulated labour hire arrangement orders in respect of CoreStaff NSW Pty
Ltd and Skilled Workforce Solutions (NSW) Pty Ltd in relation to work performed at the
Bengalla Mining Operations for the Bengalla Mining Company Pty Ltd – Parties accept that
requirements in s 306E(1) and (1A) are met – Whether making a regulated labour hire
arrangement order with respect to Skilled would involve acquisition of property otherwise
than on just terms – Section 39 of the Fair Work Act 2009 (Cth) and s 51(xxxi) of the
Commonwealth Constitution – Whether the Commission should be satisfied making the orders
sought is not fair and reasonable in all the circumstances – Host employment instrument does
not provide for part-time or casual employment – Whether difficulties in determining the
protected rate of pay for labour hire employees – Whether dispute procedures in ss 306P and
306Q available to resolve any difficulty – Whether the Commission should make an order
that covers some, but not all, regulated employees – Orders made.
Introduction
[1] On 21 June 2024, the Mining and Energy Union (the MEU) filed two applications for
regulated labour hire arrangement orders under s 306E of the Fair Work Act 2009 (Cth) (the
Act). The orders sought by the MEU would apply to labour hire workers employed by CoreStaff
NSW Pty Ltd (CoreStaff) and Skilled Workforce Solutions (NSW) Pty Ltd (Skilled),
respectively, who perform work for Bengalla Mining Company Pty Ltd (Bengalla) at the
Bengalla Mining Operations (the Bengalla Mine or the Mine). The host employment
instrument is the Bengalla Enterprise Agreement 2022 (AE517092) (the Bengalla Agreement).
[2] The Bengalla Mine is an open cut coal mine located approximately four kilometres
southwest of Muswellbrook in New South Wales. Bengalla employs approximately 560
employees as technicians performing production and engineering work at the Bengalla Mine.
In addition, labour hire employees are supplied to perform work for Bengalla by CoreStaff and
Skilled. At the time the evidence was prepared, Skilled indicated that it provided 156 workers
to perform work at the Mine and CoreStaff indicated that it employed 35 workers who were
assigned to work at the Mine.
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DECISION
AUSTRALIA FairWork Commission
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[3] The making of regulated labour hire arrangement orders as sought by the MEU is
opposed by Bengalla, Skilled and CoreStaff. We will set out the relevant provisions of the Act
below. It is appropriate to indicate at the outset that all parties accepted that the Commission
should be satisfied that the requirements which trigger the obligation to make a regulated labour
hire arrangement order in s 306E(1) are met and that the Commission should be satisfied that
the performance of work at the mine by employees of CoreStaff and Skilled is not for the
provision of a service, rather than the supply of labour, for the purposes of s 306E(1A).
[4] The making of the orders sought is opposed on three grounds:
(a) First, Skilled submits that a regulated labour hire arrangements order would give
rise to an acquisition of its property otherwise than on just terms for the purposes
of s 51(xxxi) of the Commonwealth Constitution and the Commission, as a
result, has no jurisdiction to make the order sought by operation of s 39 of the
Act. Bengalla and CoreStaff did not join in making that submission.
(b) Second, Bengalla, CoreStaff and Skilled each contend, albeit for somewhat
different reasons, that the Commission is prohibited from making a regulated
labour hire arrangement order in either case because it should be satisfied that it
is not fair and reasonable in all the circumstances to do so for the purposes of s
306E(2).
(c) Third, Skilled contends that the form of order sought by the MEU is deficient
and not sufficiently specific and that, if an order is made, it should exclude
certain groups of workers, including employees who perform work involving
“car washing”, trainees performing work as part of a training arrangement and
future employees if they perform work for the provision of a service, rather than
the supply of labour, within the meaning of s 306E(1A).
[5] For the reasons that follow, we are satisfied that the requirements in s 306E(1) and (1A)
are met. Section 39 of the Act would not be engaged by a regulated labour hire arrangement
order that covers Skilled’s employees and does not deprive the Commission of jurisdiction to
make an order which would apply to Skilled. We are also not satisfied it is not fair and
reasonable in all the circumstances to make orders with respect to CoreStaff and Skilled
employees who perform work at the Bengalla Mine for the purposes of s 306E(2). As a result,
the Commission is required by s 306E(1) to make regulated labour hire arrangement orders
covering CoreStaff and Skilled employees performing work for Bengalla.
Background to the applications
[6] The following summary represents uncontroversial facts derived from the evidence and
sets out the findings of the Full Bench based on that evidence. The Bengalla Mine is a single
pit open cut mine which uses a dragline, truck and excavator mining method and operates 24
hours a day, seven days a week. The production process at the mine involves coal extraction
and its transport to the Coal Handling and Preparation Plant. In broad overview, the production
process involves stripping the top layer of dirt and soil using excavators and haul trucks, drill
and blast operations to break up the overburden, the removal of the overburden using a dragline
and dozers and the use of excavators and haul trucks to dig and load the coal and transport it to
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a hopper or designated coal stockpile area. The coal then undergoes crushing, washing and
treatment at the Coal Handling and Preparation Plant and is loaded onto rail cars for
transportation.
[7] The operational workforce at the Bengalla Mine is divided into four groups being
production, maintenance, coal handling and preparation and blast crew. The various steps
involved in the extraction of coal involve the use of plant and equipment by production workers
employed by Bengalla, CoreStaff and Skilled, including dump trucks, dozers, graders, water
trucks, rubber tyred dozers, dragline, production excavators, ancillary excavators/loaders,
production front end loaders, service carts and overburden drills. Bengalla owns and operates
all the plant and equipment.
[8] Bengalla, CoreStaff and Skilled employees work alongside one another in the same
crews, use the same plant and equipment and the same crib facilities. Bengalla is responsible
for determining which plant and equipment workers use, including employees of CoreStaff and
Skilled and ensuring that employees have undertaken relevant training and assessment. The
same training is required to be undertaken by the Bengalla, CoreStaff and Skilled employees
and is conducted by Bengalla.
[9] Supervisors and managers at the mine are all employed by Bengalla and all supervisory
responsibilities, including task allocation and performance monitoring, are managed by
personnel employed directly by Bengalla. The Bengalla supervisors report to Bengalla’s
production superintendent who, in turn, reports to its mine manager who, in turn, reports to the
general manager of Bengalla. Bengalla supervisors supervise the crews and the production
work, one of whom is an open cut examiner and is required to be appointed consistent with the
obligations imposed by the Work Health and Safety (Mines and Petroleum Sites) Act 2013
(NSW).
[10] Bengalla controls the sign in and sign out procedures for all workers to the mine and all
workers are issued swipe cards recording their name and an identification number by Bengalla.
CoreStaff and Skilled employees participate in the same sign in/sign off procedure as other
workers. Bengalla, CoreStaff and Skilled employees all attend pre-start meetings together when
they commence at the same time and those meetings are conducted by a Bengalla supervisor.
All the employees receive their duty assignments in the same manner from Bengalla.
[11] Policies and procedures at the mine are required to be adhered to by all workers,
including those employed by CoreStaff and Skilled, and are developed and enforced by
Bengalla. Training packages required to be undertaken by workers at the mine are Bengalla’s,
and Bengalla ensures that all workers at the Mine are trained in accordance with the training
packages. Bengalla monitors and keeps track of the training undertaken by each worker.
Bengalla has also implemented a drug and alcohol policy and testing regime at the mine which
applies to all workers including CoreStaff and Skilled employees.
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[12] CoreStaff and Skilled, respectively, have some involvement in the work of their
employees assigned to work at the mine. CoreStaff representatives communicate with Bengalla
in relation to absences and disciplinary or performance issues concerning its employees.
CoreStaff provides an online induction process prior to an employee undertaking on-site work
in addition to the on-site induction provided by Bengalla and provides some online training
modules to its employees. It also provides uniforms and personal protective equipment to its
employees although they are the same as those used by Bengalla employees.
[13] The terms and conditions of employment of Bengalla employees performing work at
the mine are governed by the Bengalla Agreement. Clauses 1.2 and 1.3 of the Agreement set
out the coverage of the Bengalla Agreement in the following terms:
1.2 This Agreement is one of a range of employment instruments at Bengalla. This Agreement
covers all technicians other than those who remain under their existing Australian Workplace
Agreements (AWA) or Individual Transitional Employment Agreements (ITEA).
1.3 This Agreement will cover:
(a) Bengalla Mining Company Pty Ltd (ACN 053 909 470) (Bengalla);and
(b) Bengalla technicians on ITEAs or AWAs who after the commencement of this Agreement
elect to be covered and bound by the Agreement in accordance with clause 1.4; and
(c) Bengalla technicians who do not have an ITEA or AWA.
[14] The concept of a “technician” is dealt with in clause 1.9 as follows:
1.9 In this Agreement Bengalla technicians means those persons designated by Bengalla as
technicians and performing production and engineering work within the classifications in
Schedule A of the Black Coal Mining Industry Award 2020.
[15] Clause 4 of the Bengalla Agreement provides for the remuneration of employees. Clause
4.1 provides that a technician’s remuneration package comprises an annual base salary
component “which encompasses all entitlements to payments, industry allowances and
overtime payments which may arise under any Award or Agreement”, a Work Pattern
Allowance paid in monthly instalments, a Performance Payment paid annually as a lump sum
and superannuation. Clause 4.2 describes the concept of “salary” for the purposes of the
Agreement, including:
4.2 The concept of a salary entails being paid for the role to be performed rather than time at
work. Generally however a technician’s hours of work will be determined by a technician's
Work Pattern plus any additional attendances, which may be a full or part shift, as required by
a technician 's work.
A technician's Work Pattern includes an average of 35 ordinary hours per week over a 12 month
period plus reasonable additional hours in accordance with the terms of the FW Act.
[16] Schedule A is entitled “Remuneration & Work Patterns” and sets out the “Annual Base
Component” and “Work Pattern Allowance”. The Annual Base Component is identified as a
gross annual sum with a different annual salary depending on the sick or personal leave
arrangements which apply to the employee. Jonathan Lawler, who made a witness statement
for the purposes of the proceedings, explained that the Agreement contained two salary streams,
one for employees who are covered by the now grandfathered Accrued Sick Leave Scheme and
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another for employees who are covered by the less beneficial Bengalla Personal Leave Scheme
but instead receive higher salaries. Mr Lawler indicated that only nine employees continued to
be covered by the Accrued Sick Leave Scheme. Clause A2 of Schedule A provide that
technicians who are required to work different work patterns will be paid an allowance in
addition to the base component.
[17] Schedule C then sets out general conditions applicable to employees covered by the
Agreement. Clause C4 provides for hours of work, work patterns and shift work which
contemplates that employees will work reasonable additional hours and that compensation for
shift work is contained in the rates applicable to each work pattern. Clause 4.1 of Schedule C
provides:
4.1 Technicians agree to work the work patterns nominated by Bengalla which may include
rotation and/or work over seven days of the week and up to twelve and a half (12.5) hours per
shift. Indicative examples of work patterns are contained in Schedule A.
Additional or substitute roster systems may be developed by Bengalla consistent with this
Agreement.
Technicians acknowledge that a technician's Work Pattern includes an average of 35 ordinary
hours per week over a 12-month period plus reasonable additional hours in accordance with the
terms of the FW Act.
[18] As will be apparent from these provisions, the Bengalla Agreement provides only for
full-time employment and not for part-time or casual employment and that full-time employees
are remunerated by way of an annual salary which incorporates payment for additional hours,
overtime and shiftwork. Mr Lawler gave evidence that Bengalla had put forward a proposal to
include part-time employment in the Bengalla Agreement during bargaining in 2021, but that
the MEU had indicated the proposal would need to be included in the log of claims to be
considered. Bengalla did not pursue the issue further.
[19] The MEU points out that the Bengalla Agreement does provide a mechanism which
permits the determination of the pay to be received by an employee who works a lesser number
of hours than a full-time employee. Clause 7.3 of Schedule C provides:
7.3 Where in the course of a pay period a technician is absent and that absence does not attract
payment, Bengalla may deduct such amount from the technician’s Normal Salary for that pay.
If the technician has already been paid for that pay period , Bengalla will follow an overpayment
repayment agreement process in line with legislative requirements.
The amount to be deducted under this sub-clause is determined by the period of absence as a
proportion of the technician's rostered hours to be worked in a month multiplied by the
technician's Normal Salary for a month.
[20] Clause C8 of Schedule C also provides for additional payments to be made to employees
for extra shifts required to be worked in addition to rostered hours and hours included in the
base salary and work pattern allowance.
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[21] CoreStaff indicated that, as of November 2024, it assigned 35 production employees to
work at the Bengalla Mine. Renee Kearney, who made a witness statement for CoreStaff, gave
evidence that, of those employees, 14 are permanent employees of which 13 are full-time
permanent members of the production crew and one is a permanent part-time “crib relief
employee”. There are also 21 casual employees, including 10 production crew members, 9 crib
relief employees and two who are referred to as “floaters”. The crib relief employees provide
coverage for production crew staff while they are on their crib break to ensure that the machines
run continuously. The floaters are engaged to work to cover shifts across all production crews
and crib relief employees where an employee is unavailable to work their rostered shift.
CoreStaff employees assigned to work at the Bengalla Mine are covered by the CoreStaff NSW
Black Coal Enterprise Agreement 2018 (the CoreStaff Agreement). All except one of the
CoreStaff emloyees are classified as Mineworker Production Level 2A in the CoreStaff
Agreement.
[22] As of November 2024, Skilled supplied 156 employees to perform work at the Bengalla
Mine. Joel Cribb, who made a witness statement for Skilled, indicated that 73 of those
employees are trainees performing work as part of a training arrangement under the
Apprenticeship and Traineeship Act 2001 (NSW). Of the remaining 83 employees, 69 are
employed in the classification of Mineworker Level 3 of which 53 are permanent full-time
employees, 7 are permanent part-time employees performing crib relief work, 8 employed as
casual employees working on a “floating” basis and one employed as a casual employee
working a 12.5 hour, 7 day rotating roster. In addition, there are two employees performing
“bench hand work” assisting the drill and blast operators employed by Bengalla, four are
employed in the classification of Mineworker Level 2 on a permanent full-time basis and eight
are employed on a casual basis as “Wash Technicians” working an 8 hour, 7 day rotating roster.
The employees supplied by Skilled are covered by the Skilled Workforce Solutions (NSW) Pty
Ltd Enterprise Agreement 2019 (the Skilled Agreement).
[23] The MEU advanced evidence in relation to the differences between the rates of pay
under the Bengalla Agreement, on the one hand, and the CoreStaff Agreement and the Skilled
Agreement on the other. Clint Smith, who prepared a witness statement for the MEU, indicated
that a full-time employee engaged by CoreStaff would receive between $46,406.00 and
$52,730.50 more per annum if employed by Bengalla and covered by the Bengalla Agreement
depending on classification. Mr Smith indicated that a full-time Skilled employee would earn
between $31,550.99 and $42,798.99 more per annum if employed by Bengalla and covered by
the Bengalla Agreement depending on classification. The same calculations were made by
Matthew Howard who also prepared a witness statement for the MEU. These calculations were
not agreed, although Bengalla, CoreStaff and Skilled did not provide alternative calculations or
identify any specific error in the calculations.
[24] There is no evidence before the Commission as to the contractual arrangements between
Bengalla and CoreStaff under which labour is supplied to Bengalla. However, Skilled relied on
the nature of its contractual arrangements with Bengalla. Mr Cribb annexed to his witness
statement a “Contract for the Supply of Services (and Associated Goods)” between Bengalla
and Programmed Skilled Workforce Limited under which the latter agreed to provide
“supplementary mining labour” to the former (the Supply Contract). One feature of the
contractual arrangements is that the contract under which labour is supplied was not made with
the respondent to the present proceedings, Skilled Workforce Solutions (NSW) Pty Ltd, but
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with a related entity, Programmed Skilled Workforce Limited. The evidence suggested that
Skilled is part of the Programmed group of companies. By reason of the operation of s 306D(3)
of the Act, it does not matter for present purposes whether there is a contract between the
supplier of labour and the regulated host. Although Skilled is not actually party to the Supply
Contract, it is convenient to refer to the obligations of the contract as applying to Skilled.
[25] The Supply Contract contains a “Key Terms” section and a series of schedules setting
out various terms and conditions. The Key Terms include that the contract has a commencement
date of 1 January 2022 and a term of five years concluding on 31 December 2026. Schedule A
describes the services to be provided by Skilled. Clause 1 provides:
1. GENERAL
1.1 The Company requires the Service Provider to supply, and the Service Provider agrees to
supply, supplementary mining labour as follows:
(a) Normal shifts: The Company’s current requirement is a minimum of 40 Service
Provider Personnel per shift over the four (4) shift roster. The Company may,
by notice to the Service Provider, increase or decrease this requirement in its
absolute discretion.
(b) To cover short notice absences and absenteeism with reasonable notice as
agreed by the Service Provider and the Company Representative.
1.2 The Service Provider is required to provide “Crib Relief” operators to the Company, on a 6
person per shift, 4 shift roster. The requirement for day shift and night shift for crib relief
operators will be as follows:
Day shift – 10am-5pm; and
Night shift – 11pm-6am
[26] Clause 6.1 provides that Skilled “must follow and attend to the directions, instructions
or demands of the [Bengalla] Representative … without delay, protest or additional cost”.
[27] Schedule C sets out the prices under the Supply Contract. Schedule C contains a
schedule of hourly rates payable for the supply of employees falling within particular categories
to Bengalla. The schedule is commercially sensitive, and it is not appropriate to set out the rates
in this decision. It is sufficient to note that the schedule of rates sets out how the final hourly
rates payable to Skilled have been calculated, including components for “employee pay rates”,
superannuation, payroll tax, worker compensation and overheads as well as an identified profit
margin to be derived by Skilled.
[28] Clause 1.3 of Schedule C indicates that the rates in the schedule will be increased where
changes occur in statutory on-costs or governmental taxes for any category of personnel to be
provided by Skilled. In its oral submissions, Skilled emphasised that, aside from changes to
statutory on-costs and government taxes, there was no provision permitting it to pass through
increases in the costs of supplying employees in accordance with the Supply Contract, including
if there were increases in the rates of pay Skilled itself was required to pay the relevant
employees.
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[29] In that regard, Schedule I to the Supply Contract contains “General Conditions for the
Supply of Services”. Clause 6.1 of Schedule I provides Bengalla with the capacity to give notice
to vary the Supply Contract but not to Skilled. Clause 34 provides that Bengalla can terminate
the Supply Contract by giving 30 days’ notice of its intention to do so without fault on the part
of Skilled. A right to terminate the Supply Contract is only conferred on Skilled by clause 36
of Schedule I in the event of default by Bengalla. The MEU also drew attention to clause 31 of
Schedule I which contains a force majeure clause.
[30] There are three further observations to be made about the price provisions of the Supply
Contract. The first is that, although the schedule of rates set out in Schedule C to the Supply
Contract identifies nominal cost components used to construct the rate payable to Skilled,
Skilled accepted in oral submissions that the Supply Contract does not require that it pay
employees supplied to perform work for Bengalla amounts which equate with the “employee
pay rates” in Schedule C. Mr Cribb indicated in his witness statement that Skilled is currently
paying its employees at a higher rate of pay than is contained in the Skilled Agreement, has not
passed those costs through to Bengalla, and is performing the Supply Contract at a loss.
[31] The second observation is that, although there does not appear to be a right under the
Supply Contract for Skilled to require Bengalla to renegotiate the rates, Mr Cribb indicated that
Skilled seeks to renegotiate the rates payable by Bengalla from time to time. Mr Cribb annexed
to his witness statement the most recent schedule of rates which he says was effective from 28
March 2023. No evidence was given by Skilled or Bengalla in relation to the circumstances in
which the rates were renegotiated or what prompted that to occur. The Supply Contract does
not expressly provide a mechanism for renegotiating the rates.
[32] The third observation is that Skilled says that, unless the rates are renegotiated, if a
regulated labour hire arrangement order is made, the increased costs resulting from the
requirement to pay Skilled employees no less that would be payable under the Bengalla
Agreement would far exceed the value of the profit margin for which provision is made in the
Supply Contract. No evidence was given by Skilled that it had approached Bengalla to discuss
whether Bengalla would be open to renegotiating the rates under the Supply Contract if a
regulated labour hire arrangement order was made. No evidence was given by any
representative of Bengalla as to what its attitude would or might be in that event.
Statutory Provisions
[33] Part 2-7A of the Act is entitled “Regulated labour hire arrangement orders” and
provides, among other things, for the Commission to make such orders and sets out the
obligations of employers and regulated hosts covered by those orders. The key provision in Part
2-7A is s 306E which sets out when the Commission must make a regulated labour hire
arrangement order. The most relevant parts of s 306E for present purposes are as follows:
306E FWC may make a regulated labour hire arrangement order
Regulated labour hire arrangement order
(1) The FWC must, on application by a person mentioned in subsection (7), make an order (a
regulated labour hire arrangement order) if the FWC is satisfied that:
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(a) an employer supplies or will supply, either directly or indirectly, one or more
employees of the employer to perform work for a regulated host; and
(b) a covered employment instrument that applies to the regulated host would apply to
the employees if the regulated host were to employ the employees to perform work of
that kind; and
(c) the regulated host is not a small business employer.
Note: The FWC may make other decisions under this Part which relate to regulated labour hire
arrangement orders: see Subdivisions C (short - term arrangements) and D (alternative protected
rate of pay orders) of this Division, and Division 3 (dealing with disputes).
(1A) Despite subsection (1), the FWC must not make the order unless it is satisfied that the
performance of the work is not or will not be for the provision of a service, rather than the supply
of labour, having regard to the matters in subsection (7A).
(2) Despite subsection (1), the FWC must not make the order if the FWC is satisfied that it is
not fair and reasonable in all the circumstances to do so, having regard to any matters in
subsection (8) in relation to which submissions have been made.
…
(4) For the purposes of paragraph (1)(b), in determining whether a covered employment
instrument would apply to the employees, it does not matter on what basis the employees are or
would be employed.
…
Matters that must be considered in relation to whether work is for the provision of a service
(7A) For the purposes of subsection (1A), the matters are as follows:
(a) the involvement of the employer in matters relating to the performance of the work;
(b) the extent to which, in practice, the employer or a person acting on behalf of the
employer directs, supervises or controls (or will direct, supervise or control) the
regulated employees when they perform the work, including by managing rosters,
assigning tasks or reviewing the quality of the work;
(c) the extent to which the regulated employees use or will use systems, plant or
structures of the employer to perform the work;
(d) the extent to which either the employer or another person is or will be subject to
industry or professional standards or responsibilities in relation to the regulated
employees;
(e) the extent to which the work is of a specialist or expert nature.
Matters to be considered if submissions are made
(8) For the purposes of subsection (2), the matters are as follows:
(a) the pay arrangements that apply to employees of the regulated host (or related
bodies corporate of the regulated host) and the regulated employees, including in
relation to:
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(i) whether the host employment instrument applies only to a particular class or
group of employees; and
(ii) whether, in practice, the host employment instrument has ever applied to an
employee at a classification, job level or grade that would be applicable to the
regulated employees; and
(iii) the rate of pay that would be payable to the regulated employees if the
order were made;
(c) the history of industrial arrangements applying to the regulated host and the
employer;
(d) the relationship between the regulated host and the employer, including whether
they are related bodies corporate or engaged in a joint venture or common enterprise;
(da) if the performance of the work is or will be wholly or principally for the benefit of
a joint venture or common enterprise engaged in by the regulated host and one or more
other persons:
(i) the nature of the regulated host’s interests in the joint venture or common
enterprise; and
(ii) the pay arrangements that apply to employees of any of the other persons
engaged in the joint venture or common enterprise (or related bodies corporate
of those other persons);
(e) the terms and nature of the arrangement under which the work will be performed,
including:
(i) the period for which the arrangement operates or will operate; and
(ii) the location of the work being performed or to be performed under the
arrangement; and
(iii) the industry in which the regulated host and the employer operate; and
(iv) the number of employees of the employer performing work, or who are to
perform work, for the regulated host under the arrangement;
(f) any other matter the FWC considers relevant.
…
[34] Section 306E has been considered by the Full Bench in Re Mining and Energy Union
[2024] FWCFB 299; (2024) 333 IR 249 (Batchfire) and Application by the Mining and Energy
Union re Rix’s Creek [2025] FWCFB 12 (Rix’s Creek). In Batchfire, the Full Bench outlined a
number of principles concerning the proper interpretation and application of s 306E.1 As
observed by the Full Bench in Batchfire, s 306E(1) requires the Commission to make a
regulated labour hire arrangement order if it is satisfied that the criteria specified in paragraphs
(a), (b) and (c) of the subsection are met and neither of the prohibitions upon the making of
such an order (“must not”) in ss 306E(1A) and 306E(2) apply.
[35] In light of the submissions that have been advanced in this matter, it is appropriate to
refer to some other features of Part 2-7A. A regulated labour hire arrangement order does not
itself impose direct obligations on the employer or regulated host it covers. Rather, the order
triggers obligations imposed by the Act. Of primary significance is s 306F. The most relevant
parts of s 306F for present purposes are as follows:
306F Protected rate of pay payable to employees if a regulated labour hire arrangement
order is in force
Application of section
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwcfb12.pdf
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(1) This section applies if a regulated labour hire arrangement order is in force that covers a
regulated host, an employer and a regulated employee of the employer.
Employer must not pay less than protected rate of pay
(2) The employer must pay the regulated employee at no less than the protected rate of pay for
the employee in connection with the work performed by the employee for the regulated host.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
Meaning of protected rate of pay
(4) Unless subsection (5) applies, the protected rate of pay for the regulated employee is the full
rate of pay that would be payable to the employee if the host employment instrument covered
by the regulated labour hire arrangement order were to apply to the employee.
(5) If the regulated employee is a casual employee, and there is no covered employment
instrument that applies to the regulated host that provides for work of that kind to be performed
by casual employees, the protected rate of pay for the regulated employee is the full rate of pay
that would be payable to the employee if:
(a) the employee were an employee other than a casual employee and the host
employment instrument covered by the regulated labour hire arrangement order were
to apply to the employee; and
(b) the base rate of pay that would be payable to the employee, in the circumstances
referred to in paragraph (a), were increased by 25%.
…
Requirement to pay no less than protected rate of pay applies despite other fair work
instruments etc.
(10) Subsection (2) applies despite any provision of:
(a) a fair work instrument (other than an instrument made by the FWC under this Part)
that applies to the regulated employee; or
(b) a covered employment instrument (other than a fair work instrument) that applies to
the regulated employee; or
(c) the regulated employee’s contract of employment;
that provides for a rate of pay for the regulated employee that is less than the protected
rate of pay for the regulated employee.
Note: See also section 306N (effect of alternative protected rate of pay order) and
subsection 306Q(6) (effect of arbitrated protected rate of pay order).
[36] The basic position dictated by s 306F(2) is that an employer covered by a regulated
labour hire arrangement order must pay a regulated employee at no less than the protected rate
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of pay for the employee in connection with the work performed by the employee for the
regulated host. The “protected rate of pay” is to be calculated in accordance with s 306F(4) by
reference to the full rate of pay that would be payable to the employee if the host employment
instrument were to apply to the employee. In this case, the default position is that, if an order is
made, CoreStaff or Skilled employees supplied to perform work at the Bengalla Mine would
be required to be paid the full rate that would be payable if those employees were covered by
the Bengalla Agreement.
[37] The concept of the “full rate of pay” of an employee is dealt with in s 18 as follows:
18 Meaning of full rate of pay
General meaning
(1) The full rate of pay of a national system employee is the rate of pay payable to the employee,
including all the following:
(a) incentive-based payments and bonuses;
(b) loadings;
(c) monetary allowances;
(d) overtime or penalty rates;
(e) any other separately identifiable amounts.
[38] The Act provides some mechanisms for determining a different protected rate of pay.
Sections 306M and 306N provide for the Commission to make an order specifying a protected
rate of pay by reference to a different covered employment instrument. Division 3 of Part 2-7A
provides a mechanism for the Commission to deal with disputes about the operation of Part 2-
7A, including in relation to the protected rate of pay. Section 306P provides:
306P Disputes about the operation of this Part
When this Division applies to a dispute
(1) This Division applies to a dispute about the operation of this Part if:
(a) a regulated labour hire arrangement order is in force that covers a regulated host, an
employer and a regulated employee of the employer performing work for the regulated
host; or
(b) a regulated labour hire arrangement order has been made but is not yet in force that
covers a regulated host, an employer and a regulated employee of the employer
performing work for the regulated host.
(2) Without limiting subsection (1), this Division applies to a dispute about:
(a) what the protected rate of pay for a regulated employee is; or
(b) whether a regulated employee has been, or is being, paid less than the protected rate
of pay for the employee.
Parties must attempt to resolve dispute at workplace level
[2025] FWCFB 53
13
(3) In the first instance, the parties to the dispute must attempt to resolve the dispute at the
workplace level by discussions between the parties.
(4) If discussions at the workplace level do not resolve the dispute, a party to the dispute may
apply to the FWC to resolve the dispute.
How the FWC deals with dispute
(5) If a party to the dispute makes an application under subsection (4):
(a) the FWC must first deal with the dispute by means other than arbitration, unless
there are exceptional circumstances; and
(b) the FWC may deal with the dispute by arbitration in accordance with section 306Q.
Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers
appropriate, including by mediation, conciliation, making a recommendation or expressing an
opinion (see subsection 595(2)).
Representatives
(6) The employer, employee or regulated host may appoint a person or organisation that is
entitled to represent the industrial interests of the employer, employee or regulated host to
provide the employer, employee or regulated host (as the case may be) with support or
representation for the purposes of:
(a) resolving the dispute; or
(b) the FWC dealing with the dispute.
Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only
with the permission of the FWC (see section 596).
Joinder of other employees to disputes
(7) Without limiting section 609, the procedural rules may provide for the joinder, as parties to
a dispute in relation to which an employee has made an application under subsection (4), of any
other employees who have a dispute about the operation of this Part with the same regulated
host or employer.
[39] Section 306P(1) provides that the Division applies to “a dispute about the operation of
this Part”. Without limiting subsection (1), s 306P(2) indicates that the Division applies to a
dispute about what the protected rate of pay for an employee is or whether a regulated employee
is being or has been paid less than the protected rate of pay.
[40] Section 306Q sets out the powers of the Commission to arbitrate a dispute referred to in
s 306P in the event that the dispute cannot be resolved. Relevant parts of s 306Q are as follows:
306Q Dealing with disputes by arbitration
[2025] FWCFB 53
14
(1) The FWC may deal with the dispute by arbitration, including by making an order
(an arbitrated protected rate of pay order) determining:
(a) how the rate of pay at which the employer must pay the employee in connection
with the work is to be worked out; and
(b) that the employer must pay the rate of pay worked out in that way to the employee
in connection with the work.
(2) If the employer is a national system employer only because of section 30D or 30N, the rate
of pay for the purposes of paragraph (1)(a) of this section must not include any amount that
relates to an excluded subject matter within the meaning of subsection 30A(1) or 30K(1).
Note: Sections 30D and 30N extend the meaning of national system employer.
(3) The FWC must not make an arbitrated protected rate of pay order unless the FWC considers
that it would be fair and reasonable to make the order.
…
Effect of arbitrated protected rate of pay order
(6) If the FWC makes an arbitrated protected rate of pay order in relation to the dispute, the
order has effect, in relation to so much of the work as is performed during the period to which
the order applies, despite the following:
(a) section 306F (protected rate of pay payable to employees if a regulated labour hire
arrangement order is in force);
(b) any provision of the following that provides for a lower rate of pay than that worked
out in accordance with the order:
(i) a fair work instrument that applies to the employee;
(ii) a covered employment instrument (other than a fair work instrument) that
applies to the employee;
(iii) the employee’s contract of employment.
(7) A person must not contravene a term of an arbitrated protected rate of pay order.
Note: This subsection is a civil remedy provision (see Part 4-1).
(8) In making an order under this section, the FWC must ensure that, if an exception in
section 306G would apply to the requirement to pay the regulated employee at no less than the
protected rate of pay, the exception also applies in relation to the requirement to pay the
employee at the rate worked out under the arbitrated protected rate of pay order.
[41] Section 306Q(1) enables the Commission to arbitrate such a dispute including by
determining “how the rate of pay at which the employer must pay the employee in connection
with the work is to be worked out”. If the Commission makes an arbitrated protected rate of
pay, the order has effect despite s 306F. In effect, if the Commission arbitrates the dispute, the
arbitrated protected rate of pay applies in place of the protected rate of pay determined in
accordance with s 306F.
[42] In light of those statutory provisions, it is convenient to address the submissions made
by Skilled in relation to s 39 of the Act, the requirements in s 306E(1) and (1A) that are not in
dispute, the contentions advanced as to whether the Commission should be satisfied that it
[2025] FWCFB 53
15
would not be fair and reasonable to make an order for the purposes of s 306E(2), and then the
submissions made in relation to the form of the orders that should be made.
Section 39 of the Fair Work Act 2009 (Cth)
[43] Skilled contends that the Act would operate to acquire property otherwise than on just
terms if a regulated labour hire arrangement order is made which covers it and the employees
it supplies to perform work for Bengalla. It submits that, by operation of s 39 of the Act, the
Act cannot apply to the MEU’s application and any order made by the Commission could have
no application to it and, as a result, the application must be dismissed.
[44] Section 39 of the Act provides as follows:
39 Acquisition of property
This Act, or any instrument made under this Act, does not apply to the extent that the operation
of this Act or the instrument would result in an acquisition of property (within the meaning of
paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the
meaning of that paragraph).
[45] It is appropriate to make two initial observations in relation to the operation of s 39 of
the Act. The first observation is that Skilled’s submissions assume that s 39 of the Act is
“jurisdictional” in character and that, if the section would be engaged by an order made under
s 306E, the Commission has no jurisdiction and must dismiss the MEU’s application. As we
understand the submission, Skilled suggests that the Act does not apply to the extent that its
operation would result in the acquisition of property otherwise than on just terms within the
meaning of s 51(xxxi) of the Commonwealth Constitution and that, if making the order sought
in the MEU’s application would have such an effect, the provisions of Part 2-7A have no
application and the Commission cannot make the order.
[46] On one view, s 39 of the Act does not operate on the Commission’s jurisdiction. It could
not be contended that Part 2-7A itself directly results in an acquisition of property. Part 2-7A
simply authorises the Commission to make a regulated labour hire arrangements order. It is
only if such an order is made, and is in force, that Part 2-7A imposes obligations on an employer
covered by the order.2 If the Commission makes an order which would result in the acquisition
of property other than on just terms, s 39 means the Act does not apply to the extent it would
have that effect. It is not clear that s 39 deprives the Commission of jurisdiction to make an
order at all even if there is some possibility that the order might result in an acquisition of
property other than on just terms.
[47] However, we understand Skilled to submit that, in this case at least, no order could be
made that would not result in the acquisition of property other than on just terms such that the
Commission cannot make any order at all and any order it did make would be outside
jurisdiction. The Commission is able to determine its own jurisdiction and to decline to act upon
an application on the basis that it fails for want of jurisdiction.3 The Commission is also likely
to conclude that it is not fair and reasonable to make a regulated labour hire arrangement order
[2025] FWCFB 53
16
for the purpose of s 306E(2) if the order would result in the acquisition of property otherwise
than on just terms contrary to s 51(xxxi) of the Constitution. It is appropriate to consider
Skilled’s argument.
[48] The second initial observation to be made is that s 39 of the Act is intended to reflect
the operation of s 51(xxxi) of the Constitution. That is, s 39 operates only to the extent that the
Act, or an instrument made under the Act, results or would result in an acquisition of property
that would fall outside the legislative capacity of the Commonwealth by reason of s 51(xxxi).
That is apparent from the language used in the section, particularly the fact that the section
operates only with respect to an acquisition of property “within the meaning of paragraph (xxxi)
of the Constitution”. If there were any ambiguity in the section, it is instructive that the
Explanatory Memorandum to the Fair Work Bill 2008 (Cth) indicated:4
It is not anticipated that the Bill (or instruments made under it) effects any acquisition of
property other than on just terms contrary to paragraph 51(xxxi) of the Constitution. Clause 39
is included out of an abundance of caution to ensure that an acquisition contrary to paragraph
51(xxxi) cannot take place. In any circumstance where an acquisition contrary to paragraph
51(xxxi) is effected, the relevant law or instrument does not apply.
[49] The consequence is that s 39 of the Act poses two questions: whether the order sought
by the MEU would result in the acquisition of property at all and, if it would, whether the order
would result in an acquisition of property within the meaning of s 51(xxxi) of the Constitution
in the sense that the law authorising the acquisition would be contrary to that section.5 No
question of just terms being provided arises in this matter.
[50] The first question is whether the making of a labour hire arrangements order covering
Skilled would result in an acquisition of its property. The concept of “property” for the purposes
of s 51(xxxi) has been construed broadly. It extends to every “species of valuable right and
interest including real and personal property, incorporeal hereditaments such as rents and
services, rights of way, rights of profit or use in land of another, and choses in action”.6 It is not
controversial that “property” includes contractual rights.7
[51] The question of when an “acquisition” of property has occurred presents greater
complexity. An “acquisition” within section 51(xxxi) does not occur merely because property
rights might be adversely affected by a Commonwealth law. Section 51(xxxi) is not directed to
the possession or enjoyment of proprietary rights by a State or by a person but to the acquisition
of those rights from the State or person in whom they are vested.8 In Commonwealth v Tasmania
(1983) 158 CLR 1, Mason J explained:9
To bring the constitutional provision [s 51(xxxi)] into play it is not enough that legislation
adversely affects or terminates a pre-existing right that an owner enjoys in relation to his
property; there must be an acquisition whereby the Commonwealth or another acquires an
interest in property, however slight or insubstantial it may be.
[52] The taking or extinguishment of, or the interference with, the property rights of a person
does not, in itself, give rise to an acquisition. There must be some identifiable benefit or gain
obtained by the Commonwealth or another person and the benefit or gain must be proprietary
in nature in that it represents an interest in property.10 The acquisition may be by the
[2025] FWCFB 53
17
Commonwealth or a third person.11 The proprietary interest obtained by the Commonwealth or
a third person does not necessarily need to correspond precisely with what was taken.12
[53] Skilled relied on two forms of property that, it said, would be the subject of an
acquisition if a regulated labour hire arrangement order is made. In its written submissions,
Skilled described the two forms of property it said would be acquired as follows:
(a) The first item of property is the bundle of rights that are conferred on Skilled by
the labour hire contract. Of particular concern is Skilled’s ability to derive a
profit margin that has been computed over the life of the five year term.
(b) The second item of property is the sum of money Skilled has provisioned for
leave accruals with respect to the work that has been performed pursuant to the
labour hire contract.
[54] The first item of property referred to by Skilled is described as the “bundle of rights”
conferred by the Supply Contract it has with Bengalla. The Supply Contract entitles Skilled to
be paid at specified hourly rates for providing “Service Provider Personnel” to Bengalla. The
making of a regulated labour hire arrangement order would not alter the rights of Skilled under
the contract or deprive Skilled of those rights. Skilled will continue to have the right to receive
the contractually agreed price for the supply of labour. At most, a regulated labour hire
arrangements order may increase the costs incurred by Skilled in performing its obligations
under the Supply Contract and reduce the profit it is able to derive from supplying labour. It
may do so in a substantial way. We do not consider that means there has been an acquisition of
Skilled’s rights under the Supply Contract. If that were so, any action of the Commonwealth
which had the effect of reducing the profits able to be earned by a business under a contract
would involve an acquisition of property for the purposes of s 51(xxxi) of the Constitution.
[55] Skilled’s submissions assume that the Supply Contract confers a contractual entitlement
on Skilled to derive a profit from its supply of labour to Bengalla. The schedule of rates initially
within Schedule C of the Supply Contract, and as subsequently varied, breaks down the
components of the total price Skilled is entitled to charge Bengalla with respect to the supply
of labour, including identifying a nominal “profit margin”. However, as Skilled conceded in
oral submissions, the Supply Contract does not require that it pay employees the nominal rates
used to calculate the price it charges Bengalla or, with the exception of changes to statutory on-
costs and certain taxes, permit it to pass on increases in the costs it incurs in providing the
employees to Bengalla. It is not correct to describe the Supply Contract as conferring a
contractual right on Skilled to receive a profit. Skilled is currently paying higher rates of pay to
its employees than those used to calculate the price it charges under the Supply Contract and
performing the Supply Contract at a loss. Self-evidently, Skilled itself does not regard the
Supply Contract as conferring it with a contractual right to derive a profit from the supply of
labour. It does not.
[56] As to the second item of property relied upon by Skilled, it may be accepted that any
money that Skilled has set aside on account of potential leave liabilities with respect to its
employees represents a form of property. Skilled submits that, if a regulated labour hire
[2025] FWCFB 53
18
arrangement order is made, Skilled’s current provision “is taken from them”. We do not
understand the submission. On no view would any money set aside by Skilled with respect to
the accrued leave entitlements of its employees be subject to acquisition if a regulated labour
hire arrangements order is made. If Skilled has $100,000 in the bank today which it has set
aside on account of the leave entitlements of its employees, it will have the same $100,000 in
the bank the day after an order is made. Skilled will retain that money.
[57] The consequence of a regulated labour hire arrangement order would be to potentially
increase the contingent future liability with respect to the leave entitlements of Skilled
employees. If Skilled continued to deploy its employees to perform work for Bengalla and, in
the future, those employees access a paid leave entitlement when performing work for Bengalla,
the employees might be entitled to be paid at the protected rate of pay calculated in accordance
with s 306F. Any provision Skilled has now made with respect to the accrued leave entitlements
of its employees it will retain. Skilled might have an increased future contingent liability, but
there would be no acquisition of any property of Skilled.
[58] We would add that there was, in any event, no evidence before the Commission as to
what, if any, provision has been made by Skilled with respect to the accrued leave entitlements
of its employees. The witness statement of Mr Cribb contains calculations as to the theoretical
value of the current accrued leave entitlements of Skilled employees performing work at the
Bengalla Mine. He does not say what provision has been made with respect to those
entitlements. The extent to which the theoretical liability materialises will depend on future
events. For example, personal leave is only payable if an employee is unfit to perform work or
caring for a member of their immediate family or household and is not generally paid out on
termination.13 The value of accrued annual leave is paid on termination of employment, but the
rate at which the payment is calculated will depend on the circumstances of the employee at
that time.14
[59] Although it is not determinative in relation to Skilled’s submission in this regard, we
note that provision is made with respect to the calculation of payments required to be made in
relation to the termination of employment of an employee in circumstances in which a regulated
labour hire arrangements order applies to the employee. Section 306NA, in short, provides that
where an employee has only performed work for one regulated host during their employment,
termination payments will be calculated with reference to the protected rate of pay, but that
where an employee has performed work for more than one regulated host, termination payments
will be calculated with reference to the terms of the employer’s enterprise agreement or other
applicable employment instrument.15 Any increase in the future liability of Skilled to make
payments in relation to the termination of employment of any of its employees may be reduced
by the operation of this section.
[60] For those reasons, we do not believe that there would be any acquisition of property of
Skilled if a regulated labour hire arrangement order is made. That means it is strictly not
necessary to consider whether any benefit or gain of a proprietary nature will be acquired by
Bengalla or Skilled’s employees. So far as Bengalla is concerned, it will acquire no property.
Its contractual position will remain unchanged. We accept that Skilled’s employees deployed
at the Bengalla Mine will acquire a benefit of a proprietary nature if an order were made. Skilled
would be required to pay employees supplied to Bengalla at least at the protected rate of pay
by s 306F(2). That is a civil remedy provision and an employee affected by a contravention of
[2025] FWCFB 53
19
the provision is able to bring proceedings to seek compliance with the obligation.16 However,
as there has been no deprivation of any existing property of Skilled, there would be no
acquisition of property by reason of the rights that would be obtained by Skilled employees as
a result of an order being made.
[61] In case we are wrong about whether there would be an acquisition of property as a result
of the making of a regulated labour hire arrangements order, it is appropriate to consider the
second question. The second question is whether the acquisition would be an acquisition which
comes within s 51(xxxi) in the present circumstances. Every acquisition of property by or
facilitated by the Commonwealth is not caught by s 51(xxxi). In Georgiadis v Australian &
Overseas Telecommunications Corporation (1994) 179 CLR 297, Mason CJ, Deane and
Gaudron JJ explained:17
Not every Commonwealth law with respect to the acquisition of property falls within s. 51(xxxi)
of the Constitution. It may be outside that paragraph because, although it effects an acquisition
of property, it is a law of a kind that is clearly within some other head of legislative power (28).
That is the case with a law imposing taxation or a law providing for the sequestration of the
estate of a bankrupt. Or it may be outside s. 51(xxxi) because it effects an acquisition of a kind
that does not permit of just terms, as in the case of a law imposing a penalty by way of forfeiture
(29). And, it may fall outside s. 51(xxxi) because it cannot fairly be characterized as a law for
the acquisition of property for a purpose in respect of which the Parliament has power to make
laws. That will generally be the case with laws directed to resolving competing claims or
providing for “the creation, modification, extinguishment or transfer of rights and liabilities as
an incident of, or a means for enforcing, some general regulation of the conduct, rights and
obligations of citizens in relationships or areas which need to be regulated in the common
interest”.
[62] In Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134, for example, the
Court emphasised that the cases also establish that a law which is not directed towards the
acquisition of property as such but which is concerned with the adjustment of the competing
rights, claims or obligations of persons in a particular relationship or area of activity is unlikely
to be susceptible to legitimate characterisation as a law with respect to the acquisition of
property for the purposes of s 51 of the Constitution.18
[63] The application of the “just terms” constraint imposed by s 51(xxxi) of the Constitution
depends on a question of characterisation, that is, whether the law can be characterised as a law
with respect to the acquisition of property. In some cases, another head of power within s 51 is
inherently antithetical to just terms compensation. For example, that is the case with the taxation
power in s 51(ii). More generally, a law which is authorised by another head of power, but
which effects an acquisition of property in a manner that is subservient and incidental to the
principal purpose and effect of the legislation, will generally not be capable of being
characterised as a law with respect to the acquisition of property. In Mutual Pools & Staff Pty
Ltd v The Commonwealth (1994) 179 CLR 155, Mason CJ explained:19
The examples given above of instances in which a law dealing with property or a chose in action
necessarily stands apart from s. 51(xxxi) demonstrate that the words "for any purpose for which
the Parliament has power to make laws" do not support the proposition that s. 51(xxxi) applies
to any law providing for acquisition of property enacted by the Parliament. Instead, the Court
[2025] FWCFB 53
20
has decided that acquisitions of various kinds, even though they might perhaps fall prima facie
within the general power, are to be regarded as authorized by the exercise of specific powers
otherwise than on the basis of just terms. Of these instances, it may be said that they are all cases
in which the transfer or vesting of title to property or the creation of a chose in action was
subservient and incidental to or consequential upon the principal purpose and effect sought to
be achieved by the law so that the provision respecting property had no recognizable
independent character. Indeed, the taxation cases apart, they were all cases in which the relevant
statute provided a means of resolving or adjusting competing claims, obligations or property
rights of individuals as an incident of the regulation of their relationship, e.g., the relationship
between a bankrupt and the creditors in the bankruptcy, between the Crown and the person who
brings in prohibited imports, and between the Crown and an enemy alien with respect to enemy
property. In a context in which the law resolves or adjusts competing claims, obligations or
property rights, it is not possible to regard the law as a law for the acquisition of property within
the meaning of s. 51(xxxi).
[64] We have no doubt that Part 2-7A of the Act is properly characterised as a law concerned
with the adjustment of the competing rights, claims or obligations of persons in a particular
relationship or area of activity as described in Georgiadis, Nintendo Co and Mutual Pools. Any
acquisition of property that might result from a regulated labour hire arrangement order would
be subservient and incidental to the principal purpose and function of Part 2-7A. It is not a law
with respect to the acquisition of property.
[65] Part 2-7A falls within Chapter 2 of the Act which sets the “main terms and conditions
of employment of an employee that are provided under this Act” in the National Employment
Standards, modern awards, enterprise agreements and workplace determinations.20 Part 2-4
provides mechanisms for enterprise bargaining, particularly at the enterprise level, for
enterprise agreements that deliver productivity benefits.21 Notably, the object of the Act as a
whole includes, in s 3(f), providing “a balanced framework for cooperative and productive
workplace relations that promotes national economic prosperity and social inclusion for all
Australians by” … “achieving productivity and fairness through an emphasis on enterprise-
level collective bargaining underpinned by simple good faith bargaining obligations and clear
rules governing industrial action”.
[66] The function of Part 2-7A in that context is not, in our opinion, difficult to discern.
Subject to the requirements set out in the Part, particular in s 306E, the Commission is conferred
with the capacity to make an order the effect of which is to ensure that labour hire workers
supplied to perform work for a host employer receive the same rate of pay as employees directly
engaged by that employer. The order, if made, protects the bargaining process which has
occurred within the enterprise of the regulated host. If confirmation is needed, the Revised
Explanatory Memorandum to the Fair Work Amendment (Closing Loopholes) Bill 2023 (Cth)
indicated that (footnotes omitted):22
Part 6 of Schedule 1 would positively engage the right to the enjoyment of just and favourable
working conditions by protecting bargained rates in enterprise agreements, or other covered
employment instruments (see item 72 of the Bill), from being undercut by the use of labour hire.
While many employers negotiate enterprise agreements with their employees that set minimum
rates, the FW Act currently allows employers to engage workers through a labour hire company,
who are often paid less than those agreed rates.
Several inquiries have shown that labour hire is used in a range of industries with the result of
undercutting bargained rates. For example, a Senate inquiry into labour hire considered these
[2025] FWCFB 53
21
labour hire issues in the mining, agriculture, and transport and distribution sectors. The
Victorian Inquiry into the Labour Hire Industry also found that because host enterprise
agreements do not generally apply to labour hire workers, this results in lower pay for some
workers who work alongside directly engaged employees.
To close this loophole, the Bill would enable employees and organisations entitled to represent
their industrial interests, as well as host businesses, to apply to the FWC for an order that would
require labour hire employees to be paid no less than what they would receive if they were
directly employed by the host business and paid in accordance with the host’s enterprise
agreement or other employment instrument. These provisions would therefore enable labour
hire employees to be paid at least the same as their directly employed counterparts who are
performing the same work and paid under the host’s enterprise agreement. Labour hire workers
who are paid higher rates than directly employed workers would not be affected.
[67] Seen in this context, the power conferred on the Commission is part of the system
enacted by Parliament to govern the relationships between employers and employees in the
interests of national economic prosperity and social inclusion. A central feature of that system
is the facility to set terms and conditions of employment through collective bargaining,
primarily at an enterprise level. In appropriate circumstances, Part 2-7A permits the
Commission to make a regulated labour hire arrangement order so as to prevent the engagement
of labour hire workers undermining a collective bargain made within a particular enterprise. It
cannot be characterised as a law with respect to the acquisition of property.23
[68] Finally, it is appropriate to record that the ramifications of Skilled’s submission, if it
were correct, are difficult to overstate. The effect of a regulated labour hire arrangements order
is to set a minimum rate of pay that must be paid to a regulated employee in connection with
work performed for the regulated host. If that provision results in an acquisition of property
other than on just terms because it might reduce the profit able to be derived by an employer
under a contract or increase the value of accrued leave liabilities, it is difficult to see why the
same conclusion would not follow for any provision which sets, or provides a mechanism for
setting, minimum rates of pay. That would presumably include a national minimum wage order,
modern award minimum wages or a workplace determination setting rates of pay. Key features
of the Act, and the safety net of terms and conditions of employment for which it provides,
would be rendered practically inoperative at least for employers who supply labour under
contract.
[69] It would mean that it has gone unnoticed for generations that the regulation of minimum
wages and conditions of employment might involve the acquisition of property in a manner that
triggers the operation of s 51(xxxi). That would be particularly remarkable given that major
constitutional disputes arose in the United States during the twentieth century as a result of the
Supreme Court of the United States invalidating minimum wage laws and other employment
regulations on grounds that the laws contravened the due process clause of the 5th or 14th
amendments to the United States Constitution by interfering with freedom of contract.24 Those
decisions, along with others, played a part in prompting Franklin Roosevelt’s threat to pack the
Supreme Court during the 1930s.25 The United States Supreme Court ultimately changed course
and upheld the constitutionality of minimum wage laws.26
[2025] FWCFB 53
22
[70] Skilled contends that its submissions would not have that consequence. With respect,
we find that contention unpersuasive. Skilled suggests that the provisions of Part 2-7A are
distinguishable from earlier industrial legislation because it is, primarily at least, based on the
corporations power in s 51(xx) rather than the conciliation and arbitration power in s 51(xxxv).
How that distinction affects the application of s 51(xxxi) was not explained. It does not. Skilled
also submits that the Supply Contract contemplated increases in the national minimum wage.
Whilst the Supply Contract provides for annual increases in the rates payable to Skilled, it is
not clear how the increases were set. Even if it was related to contemplated increases in the
national minimum wage, it does not alter the effect of Skilled’s argument. On its submissions,
if the national minimum wage or a modern award wage was increased above the provision made
for the rates of pay for Skilled employees in the Supply Contract, an acquisition of property
would occur. The same consequence, in terms of the operation of s 39 of the Act, would arise
as Skilled contends arises from a regulated labour hire arrangement order. That consequence
points strongly against Skilled’s submission being correct.
[71] In our opinion, s 39 of the Act would not be engaged by the making of a regulated labour
hire arrangement order that covers Skilled. The section does not affect the Commission’s
jurisdiction in this matter or otherwise provide a reason not to make an order.
Whether regulated labour hire arrangement orders must be made (s 306E(1) and (1A))?
[72] As we have observed, no party disputed that the requirements in s 306E(1) and (1A) of
the Act are met with respect to the employees supplied by CoreStaff and Skilled to perform
work for Bengalla. Having considered the evidence filed by the parties, we are satisfied that
each of the requirements in s 306E(1) are met and that the prohibitions on making an order in s
306E(1A) do not apply with respect to either application.
[73] The Full Bench is satisfied, for the purposes of s 306E(7), that the MEU is an employee
organisation that is entitled to represent the industrial interests of the employees of CoreStaff
and Skilled who are supplied to perform work for Bengalla at the Bengalla Mine as well as
employees of Bengalla employed to perform work at the Mine. Accordingly, the MEU is
entitled to apply for regulated labour hire arrangement orders under s 306E of the Act by
operation of s 306E(7)(c) and, as such, for the purposes of s 306E(1).
[74] The Full Bench is further satisfied that the requirements of s 306E(1) of the Act are met.
Specifically, on the basis of the material before the Full Bench, we are satisfied that:
(a) CoreStaff and Skilled supply employees they employ to perform work for
Bengalla at the Bengalla Mine involving engagement in production work
associated with the mining and extraction of coal and its transport to the Coal
Handling and Preparation Plant.
(b) The Bengalla Agreement applies to all technicians performing production and
engineering work in the classifications in Schedule A to the Black Coal Mining
Industry Award 2020. Leaving aside one issue in relation to wash technicians
which is addressed later in this decision, no party disputed that the Bengalla
[2025] FWCFB 53
23
Agreement would apply to employees of CoreStaff and Skilled supplied to
perform work at the Bengalla Mine if those employees were directly employed
by Bengalla to undertake the same kind of work and we find that it would.
(c) Bengalla is not a small business employer.
[75] For the purposes of s 306E(1A) of the Act, the Full Bench is satisfied that the
performance of work by CoreStaff or Skilled employees is not and will not be for the provision
of a service, rather than the supply of labour, having regard to the matters in s 306E(7A). In
relation to the matters set out in s 306(7A) to be considered in being satisfied of the requirement
in s 306E(1A), we make the following findings:
(a) There is no evidence before the Full Bench that CoreStaff and Skilled have
substantial involvement in matters relating to the performance of work by their
employees working at the Bengalla Mine.
(b) The evidence indicates that Bengalla directs, supervises and controls the work
of CoreStaff and Skilled employees who are supplied to perform work at the
Bengalla Mine. Bengalla takes primary responsibility for the administration of
training and assessment of CoreStaff and Skilled employees in relation to their
work at the Mine.
(c) CoreStaff and Skilled employees assigned to perform work at the Bengalla Mine
work alongside Bengalla employees in the same crews, operate the same plant
and equipment and use the same crib facilities as Bengalla employees and are
subject to the same safety policies, inductions, sign-on/sign-out and site policies
and procedures as Bengalla employees.
(d) There is no evidence before the Full Bench that CoreStaff and Skilled are or will
be subject to industry or professional standards or responsibilities in relation to
the work of its employees supplied to Bengalla.
(e) The work undertaken by CoreStaff and Skilled employees at the Bengalla Mine
involves the operation of plant and equipment but does not involve work of a
specialist or professional nature.
[76] Having regard to the considerations referred to in s 306E(7A), it is clear that the
performance of work by CoreStaff and Skilled employees is not for the provision of a service
but is for the supply of labour for the purposes of s 306E(1A).
Whether it is not fair and reasonable to make an order (s 306E(2))?
Fair and reasonable assessment
[77] Each of Bengalla, CoreStaff and Skilled submit that the Commission is prohibited from
making regulated labour hire arrangement orders with respect to each application because it
should be satisfied that it is not fair and reasonable to do so for the purposes of s 306E(2).
[2025] FWCFB 53
24
[78] Section 306E(2) operates to impose a prohibition (“must not”) on the Commission
making a regulated labour hire arrangement order. It does so if the Commission is satisfied it is
not fair and reasonable in all the circumstances to make the order. That is, unless the
Commission is positively satisfied that it is not fair and reasonable to make the order, the
prohibition does not arise. In Batchfire, the Full Bench explained:27
… the prohibition on the making of a regulated labour hire arrangement order in s 306E(2) only
operates if the Commission is positively satisfied that it is not fair and reasonable in all the
circumstances to do so. The provision thus operates in an inverse way to s 306E(1A). The
requirement to have regard to the matters in s 306E(8) is conditioned upon submissions having
been made about them. That is, in the absence of any such submissions, regard need not be had
to those matters. The statutory intention in this respect is confirmed in [646] of the REM: “The
FWC is only required to consider matters listed in new subsection (8) where the parties have
made submissions on these matters”.
[79] The matters referred in to s 306E(8) are required to be considered if a submission is
made in relation to the matter. Although there is some lack of clarity in the section, the better
view is that the Commission is only required to have regard to a matter in s 306E(8) as a
mandatory consideration if a submission is made in relation to the matter. The Commission is
otherwise entitled to have regard to those matters as part of “all of the circumstances” even if
no such submission is advanced.28
[80] The parties made a number of submissions in relation to the operation of s 306E(2) of
the Act. It is useful to refer to four issues. Firstly, the Full Bench was not greatly assisted by
submissions as to the meaning of the word “fair” and “reasonable” in the abstract. Bengalla, for
example, referred to the decision of Nicholson J in Pope v Lawler (1996) 41 ALD 127 where
his Honour extracted dictionary definitions of those words as follows:29
The meaning of the words “fair and reasonable” is a question of fact. “Fair” is relevantly defined
in The New Shorter Oxford English Dictionary 4th ed (1993) at 907 as “just, unbiased,
equitable, impartial”. “Reasonable” is defined in the same dictionary at 2496 relevantly as
“within the limits of reason; not greatly less or more than might be thought likely or
appropriate.”
[81] The nature of the task of assessing whether it would not be fair and reasonable to make
a regulated labour hire arrangement order in a particular case must be undertaken in the
statutory context in which Part 2-7A appears.30 That includes the object of the Act and the
relationship orders under Part 2-7A have to collective bargaining and enterprise agreements
made in accordance with Part 2-4. In our view, it is sufficient to observe that the Commission
is required to make a broad value judgement as to whether it is satisfied that it is not fair and
reasonable to make an order which is likely to involve a balancing of various interests affected
by an order having regard to the matters listed in s 306E(8) (at least to the extent submissions
are made about them).31
[82] Secondly, some of the submissions made by the MEU tended to suggest that the
statutory context and statutory purpose of Part 2-7A establishes a predisposition in favour of
the Commission making a regulated labour hire arrangement order if the circumstances in s
[2025] FWCFB 53
25
306E(1) and (1A) are met. That is, it says that the purpose of the Part is to protect bargained
rates of pay by enabling the Commission to make an order that employees supplied by a labour
hire employer to perform work for a regulated host are to be paid the same rate of pay and that
this statutory context creates something approaching a presumption in favour of an order being
made where that circumstance exists. Bengalla, CoreStaff and Skilled each submit that it would
be an error to approach the fair and reasonable question with any predisposition favouring an
order being made.
[83] We do not believe it is correct to approach the question of whether the Commission is
satisfied it is not fair and reasonable to make an order for the purposes of s 306E(2) by adopting
a predisposition in favour of an order being made. Section 306E(2) imposes no threshold to be
reached for the Commission not to make an order other than that it must be satisfied it is not
fair and reasonable to do so. The MEU accurately describes the broad purpose of Part 2-7A.
However, Parliament has not chosen to pursue that purpose by providing that the rates of pay
payable to employees of the regulated host will automatically apply to employees of a labour
hire employer. Leaving other considerations to one side, an order cannot be made if the
Commission is satisfied that it is not fair and reasonable to do so. In those circumstances, it
would be wrong to approach s 306E(2) on the basis that there is a presumption that it is fair and
reasonable to make an order.
[84] Thirdly, that does not mean that the fact employees are being supplied to perform work
for the regulated host in circumstances which satisfy the requirements of s 306E(1) and (1A),
and the nature of the arrangements under which that work is performed, are irrelevant to the
fair and reasonable assessment. Bengalla makes a submission to that effect. It submits that the
word “despite” in s 306E(2) has the same meaning as the word “notwithstanding” and indicates
that one clause is dominant over the other. It refers to the decision of the NSW Court of Appeal
in RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130 in
which Leeming JA said:32
“Despite” is a word used in more modern legislation where once “notwithstanding” might have
been used: Attorney-General (Cth) v Oates (1999) 198 CLR 162; [1999] HCA 35 at [33];
Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd
(in liq) (2014) 86 NSWLR 499; [2014] NSWCA 149 at [28]. Its purpose is to ensure that the
operation of one clause is unaffected by some other clause. The presence of the words “despite
clause 4.1” does not imply that there is any conflict between two clauses which requires
resolution. The words merely make it clear which clause prevails and which clause is
subordinate in the event that there be a conflict. As Preston CJ of LEC points out, that is the
orthodox approach to hierarchical words such as “despite” or “notwithstanding”; see for
example Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at
358-359; Price v JF Thompson (Qld) Pty Ltd [1990] 1 Qd 278 at 281, 283, 287 and DPP v Leys
& Leys (2012) 44 VR 1; [2012] VSCA 304 at [157], all three appellate courts citing In re Bland
Bros and the Council of the Borough of Inglewood (No 2) [1920] VLR 522 at 533. As Cussen J
there demonstrated, by reference to Sir Thomas Cecil’s Case (1597) 7 Rep 18b; 77 ER 440, this
mode of drafting is ancient.
[85] Bengalla submits that, as a result, s 306E(2) is the dominant clause. It says that the
objective existence of the facts satisfying the requirements in s 306E(1) or (1A) does not inform
or affect the assessment the Commission is required to made by s 306E(2) and is irrelevant to
the assessment of whether it is not fair and reasonable to make the order. We do not accept the
submission in the manner it is put by Bengalla.
[2025] FWCFB 53
26
[86] Obviously enough, s 306E(2) is dominant over s 306E(1) in the sense that, even if the
requirements in subsection (1) are met, the Commission must not make a regulated labour hire
arrangement order if satisfied it is not fair and reasonable to do so in all the circumstances. The
word “despite” has the effect that the obligation to make an order which would otherwise arise
under subsection (1) falls away if subsection (2) applies. Like s 306E(1A), it represents an
exception to the obligation to make an order under subsection (1). Subsection (2) prevails in
that sense.
[87] However, we do not accept that the fact that employees are being supplied to perform
work for the regulated host in circumstances in which, if they were directly employed by the
host, the covered employment instrument would apply to the employees, is irrelevant to whether
it is not fair and reasonable to make an order. Section 306E(2) requires the Commission to
consider whether it is not fair and reasonable to make an order “in all the circumstances”. The
circumstances which must be considered do not exclude the fact of the supply of labour to the
regulated host or the arrangements according to which the employees are supplied to perform
work for the regulated host. The plain text of s 306E(2) indicates that it is “all” the
circumstances that must be considered.
[88] Aspects of the arrangements according to which labour is supplied to the regulated host
are capable of being relevant to whether it is not fair and reasonable to make an order and might
fall within the matters expressly identified in s 306E(8). If a submission is made about the
matter, subsection (8) requires consideration of the pay arrangements that apply to the regulated
host and the regulated employees, the relationship between the regulated host and the employer,
whether the work is performed for a joint venture and the terms and nature of the arrangement
under which the work is performed.33 To provide an example, whether the regulated employees
are being paid substantially less than employees of the regulated host, or whether the rates are
comparable and the employees receive some other benefits from their employer, is capable of
being relevant to whether it is not fair and reasonable to make an order (of course balanced with
other relevant considerations). We understood CoreStaff and Skilled to accept the fact and the
degree to which their employees receive a lesser rate of pay compared to Bengalla employees
was relevant to the fair and reasonable assessment.
[89] Fourthly, Bengalla refers to the object of the Act in s 3(f) of providing “a balanced
framework for cooperative and productive workplace relations that promotes national economic
prosperity and social inclusion for all Australians by” … “achieving productivity and fairness
through an emphasis on enterprise-level collective bargaining underpinned by simple good faith
bargaining obligations and clear rules governing industrial action”. It submits that the object of
the Act is significant in the assessment required to be undertaken for the purposes of s
306E(2).34 It says that the consequence of the “emphasis on enterprise-level collective
bargaining” is that some priority must be attached to the maintenance of the enterprise
agreements made by CoreStaff and Skilled and which apply to their employees. There must, so
the submission goes, be some consideration that makes it fair and reasonable to displace the
emphasis or priority on the bargaining that has occurred within CoreStaff and Skilled.
[2025] FWCFB 53
27
[90] The nature and history of the industrial arrangements which apply to the labour hire
employer will frequently be relevant to whether it is not fair and reasonable to make a regulated
labour hire arrangement order. Section 306E(8)(c) expressly refers to the history of industrial
arrangements applying to the regulated host and the employer. A labour hire employer might
submit, for example, that it has a long history of orderly and appropriate enterprise bargaining
which has produced fair and appropriate outcomes for employees and that it is not fair and
reasonable for a regulated labour hire arrangement order to disrupt the outcome of those
bargaining processes. That might well be a relevant matter the Commission must consider in
assessing whether it is satisfied it is not fair and reasonable to make an order.
[91] However, we do not believe the object in s 3(f) dictates a presumption that it is not fair
and reasonable to make a regulated labour hire arrangement order simply because the effect of
the order would be to disrupt, to some degree, an enterprise agreement that applies to the
regulated employees. Section 3(f) signals an “emphasis on enterprise-level collective
bargaining”, not that enterprise-level bargaining constitutes the only mechanism by which
terms and conditions of employment are set. The Act contains an array of limitations on the
process and outcome of enterprise bargaining. Among other things, enterprise agreements
cannot exclude the National Employment Standards.35 An enterprise agreement can only be
approved if employees will be better off overall than if a relevant modern award applied to the
employees.36 An “emphasis” on enterprise-level collective bargaining does not suggest that the
outcome of bargaining at the enterprise level is to be prioritised without constraint or that other
mechanisms for determining conditions of employment are necessarily inconsistent with the
object of the Act.37
[92] Furthermore, Bengalla’s submissions adopt a limited understanding of how the Act
seeks to achieve its object through an “emphasis on enterprise-level collective bargaining”. An
“enterprise” is defined as a “business, activity, project or undertaking”.38 Arguably, the
enterprise in which CoreStaff and Skilled employees supplied to the Bengalla Mine are working
is the enterprise of Bengalla. Where an enterprise agreement has been made that covers a
particular type of work undertaken by employees of the regulated host, an order under Part 2-
7A has the effect of protecting the outcome of that enterprise-level bargaining process by
preventing the Bengalla obtaining workers to perform the same kind of work at lower rates of
pay through a labour hire employer. Where that is the effect of a regulated labour hire
arrangement order, the order protects rather than undermines enterprise-level collective
bargaining.
[93] For those reasons, we acknowledge that the nature and history of the industrial
arrangements which apply to the labour hire employer may be relevant to whether it is not fair
and reasonable to make an order for the purposes of s 306E(2). However, the object in s 3(f)
does not suggest that the Commission should commence with the assumption that it is not fair
and reasonable to make an order simply because it might affect the operation of an enterprise
agreement that applies to the labour hire employer. The significance of the industrial
arrangements that apply to the labour hire employer will depend on the circumstances.
[94] With that introduction, we turn to address whether we are satisfied it is not fair and
reasonable to make orders is the present case. It is necessary to bear in mind that two regulated
labour hire arrangement orders are sought to apply, respectively, to CoreStaff and Skilled
employees supplied to perform work for Bengalla. Although some of the considerations raised
[2025] FWCFB 53
28
overlap, the Full Bench must consider separately whether it is not fair and reasonable to make
an order in each case. The submissions advanced by Bengalla are relevant to both orders
whereas the submissions advanced by CoreStaff and Skilled should be considered in relation to
the orders sought to apply to those employers separately.
Whether it is not fair and reasonable to make an order to apply to CoreStaff?
[95] There is significant commonality between the submissions advanced by Bengalla and
CoreStaff as to why they say it is not fair and reasonable to make an order applying to CoreStaff
employees in all the circumstances. CoreStaff’s submissions identified four reasons why it is
not fair and reasonable to make an order as follows:
(a) CoreStaff employees are working shift patterns which are not contemplated by
the Bengalla Agreement impacting the rate of pay that would be payable to the
CoreStaff employees if the order was made;
(b) CoreStaff employees are engaged in modes of employment which are not
contemplated by the Bengalla Agreement, again impacting the rate of pay that
would be payable to the CoreStaff employees if the order was made;
(c) The Bengalla Agreement entitles employees to a performance-based wage
increase and a performance payment (paid as an annual lump sum amount) if
certain metrics are achieved by Bengalla; and
(d) CoreStaff would be burdened with a significant increase in leave liabilities if an
order was made
[96] CoreStaff submits that the first, second and third points it raises must be taken into
account because they represent submission in relation to the pay arrangements of Bengalla or
CoreStaff employees for the purposes of s 306E(8)(a). Bengalla, similarly, relies upon the pay
arrangements that apply to its employees for the purposes of s 306E(8)(a) (and, particularly, the
rate of pay that would be payable to the regulated employees if an order is made for the purposes
of s 306E(8)(a)(iii)) and the history of industrial arrangements applying to Bengalla for the
purposes of s 306E(8)(c). The matters raised by Bengalla make essentially the same points as
those raised by CoreStaff.
[97] The central submission advanced by CoreStaff and Bengalla is that the Bengalla
Agreement only provides for full-time employment and sets out the remuneration required to
be paid to full-time employees by way of an annualised salary. CoreStaff points out that the
Bengalla Agreement does not contemplate the working patterns undertaken by its employees
providing crib relief or working as “floaters” and does not provide for a rate of pay for part-
time or casual employees. The annualised salaries payable to full-time Bengalla employees
compensate those employees for between 42 and 48 hours work per week, depending on their
work pattern, and incorporate compensation for overtime.39 Bengalla employees may also be
entitled to work pattern allowance payments depending on their roster pattern.
[98] The consequence of the pay arrangements in the Bengalla Agreement is said to be
twofold. The first consequence is that difficulties are going to be encountered calculating the
[2025] FWCFB 53
29
protected rate of pay for CoreStaff employees because the Bengalla Agreement only provides
for an annualised salary and does not contain hourly rates of pay. Unless a different order is
made by the Commission, the protected rate of pay is determined in accordance with s 306F(4)
by reference to “the full time rate of pay that would be payable to the employee if the host
employment instrument were to apply to the employee”. Bengalla and CoreStaff submit that,
in circumstances in which the Bengalla Agreement does not provide for an hourly rate of pay
or contemplate part-time or casual employment, it is unclear how the protected rate of pay is to
be calculated.
[99] We accept that any difficulties which may be encountered in calculating the protected
rate of pay are relevant in deciding whether the Commission is satisfied it is not fair and
reasonable to make the order, and we have taken that matter into account. However, we are
unable to give great weight to that consideration in the circumstances of the present case. In
oral submissions, Bengalla and CoreStaff accepted that it would be possible to calculate an
hourly rate of pay from the annualised salaries in the Bengalla Agreement for the purpose of
determining the protected rate of pay by using the method of proportionate deduction from the
annualised salary of a full-time employee contemplated by clause 7.3 of the Agreement. At
most, Bengalla suggested there was uncertainty as to the divisor to apply to calculate the hourly
rate. So far as casual employees are concerned, s 306F(5) provides a mechanism by which the
rate of pay for a regulated employee who is a casual employee is to be determined.
[100] In the event some difficulty is encountered in that respect, it is also relevant that ss 306P
and 306Q contain a dispute resolution mechanism by which any dispute at least as to what the
protected rate of pay is for a regulated employee can be dealt with by the Commission. If the
dispute cannot be resolved, the Commission is able to deal with the dispute by arbitration by
making an order determining how the protected rate of pay is to be worked out.40 The dispute
resolution mechanism in ss 306P and 306Q does not mean the difficulties referred to by
Bengalla and CoreStaff need not be considered. However, in our opinion, the capacity of the
Commission to resolve disputes in relation to the protected rate of pay is relevant to an overall
assessment of whether it is not fair and reasonable to make the order where reliance is placed
on the alleged difficulties in determining the protected rate of pay.
[101] The second consequence Bengalla and CoreStaff submit flows from the pay
arrangements under the Bengalla Agreement has more substance. It is that the protected rate of
pay determined in accordance with s 306F would result in a rate that is not fair and reasonable.
Bengalla and CoreStaff point to the fact that the annualised salary includes compensation for
working additional hours and overtime. Clause 4.1(1) of the Bengalla Agreement records that
the annual base component of a technician’s remuneration package “encompasses all
entitlements to payments, industry allowances and overtime payments that may arise under any
Award or Agreement. Clause 4.2 provides as follows:
4.2 The concept of a salary entails being paid for the role to be performed rather than time at
work. Generally however a technician 's hours of work will be determined by a technician's
Work Pattern plus any additional attendances, which may be a full or part shift, as required by
a technician’s work.
A technician's Work Pattern includes an average of 35 ordinary hours per week over a 12 month
period plus reasonable additional hours in accordance with the terms of the FW Act.
[2025] FWCFB 53
30
It is Bengalla’s objective that the requirement for additional work attendances will be
minimised. Nevertheless it is to be expected that the requirement will arise from time to time
for a range of different reasons such as leave coverage, extra production, team communication
sessions, and it is expected that a technician will attend work.
[102] As such, the annualised salary for Bengalla employees compensates for the impost of
shift or weekend work associated with some work patterns and working additional and overtime
hours. If the annualised salary is used to deduce an hourly rate of pay to be paid to part-time or
casual employees supplied by CoreStaff, it is submitted that the rate would not be fair and
reasonable because it compensates for working arrangements those employees do not
undertake.
[103] This submission has some force. For some CoreStaff employees, the protected rate of
pay calculated in the manner contemplated by the parties may involve a degree of
overcompensation. At least for part-time and casual employees, and employees otherwise
undertaking crib relief or floater work, the protected rate of pay calculated in the manner
prescribed by s 306E(4) or (5) is likely to result in CoreStaff employees being paid a rate which
takes into account overtime and additional or unsociable hours which the employee does not
perform. That is a consequence that might support a conclusion that it is not fair and reasonable
to make an order, and it is a matter we have taken into account and given considerable weight.
However, that matter must be considered along with all other relevant circumstances.
[104] A number of considerations reduce the force of the submission. First, at the time of the
preparation of evidence only 12 CoreStaff employees performed crib relief and floater work. A
further 10 employees were casual but undertake work as part of a production crew and, as we
understand the evidence, in accordance with the same work patterns as Bengalla employees.
Whether is it not fair and reasonable to make an order on account of this consideration must be
considered in light of the fact that it appears only 12 employees are affected. CoreStaff
employees performing full-time work according to work patterns applying to Bengalla
employees would be affected by the failure to make an order at all.
[105] Second, part of the circumstances we must consider is that the rates of pay received by
CoreStaff employees are very considerably below the rates payable under the Bengalla
Agreement. The unchallenged evidence put forward by the MEU is that full-time employees of
CoreStaff would receive between $46,406.00 and $52,730.50 more per annum if employed
directly by Bengalla. That differential will continue to exist if no order is made and that is a
matter which should be considered as part of an assessment of whether it is not fair and
reasonable to make the order. Any overcompensation which might arise for casual or part-time
employees of CoreStaff as a result of inclusion of payment for overtime or additional hours in
the protected rate of pay must be seen in that context.
[106] Third, ss 306P and 306Q permit the Commission to deal with a dispute as to how the
protected pay is to be worked out. There is some uncertainty as to the type of dispute which can
be dealt with under Division 3 of Part 2-7A. Section 306P(1) indicates that the Division applies
to a “dispute about the operation of this Part”. We do not see why that could not include a
dispute that the protected rate of pay prescribed by s 306F does not set an appropriate rate
because it results in overcompensation for some employees by including a component for
overtime or other hours not worked by the regulated employee. If that dispute cannot be
resolved, the Commission could make an order determining how the rate of pay is to be worked
[2025] FWCFB 53
31
out under s 306Q(1). Again, the existence of the dispute mechanism does not mean the
submission made by Bengalla and CoreStaff does not need to be considered, and we have
considered it. The dispute process is, however, relevant to the weight to be attached to the
submission in an overall assessment of whether it is not fair and reasonable to make the order.
[107] Reference is also made by Bengalla and CoreStaff to other elements of the remuneration
payable under the Bengalla Agreement. In particular, the Bengalla Agreement provides for
work pattern payments, for different annualised salaries depending on the personal leave
scheme that applies to an employee and for performance pay. Each of those payments is said to
result in difficulties in calculating the protected rate of pay or unfair and unreasonableness in
the outcome of the calculation.
[108] We do not believe these additional payments create the same problems. The work
pattern allowances are only payable to technicians under the Bengalla Agreement who work a
particular work pattern.41 The work patterns attracting an allowance apply only to a full-time
employee.42 If a CoreStaff employee performs work in accordance with a work pattern for
which an allowance is payable, there is nothing unfair or unreasonable in the protected rate of
pay including an element for that payment. No overcompensation is involved, and no
complexity introduced when determining the protected rate of pay.
[109] The different annualised salaries payable to Bengalla employees who have access to
different personal leave arrangements also do not complicate determination of the protected
rate of pay. The Bengalla Agreement provides for a lower annualised salary for employees who
continue to be entitled to the benefits under the more generous and now superseded Accrued
Leave Scheme.43 The CoreStaff employees supplied to perform work for Bengalla are not
covered by the Accrued Leave Scheme and the rate for those employees would not be relevant
in determining the protected rate of pay for the CoreStaff employees.
[110] The provision for performance pay in the Bengalla Agreement is the third contention
raised by CoreStaff and is also relied upon by Bengalla as causing the protected rate of pay to
be unfair and unreasonable. The “full rate of pay” referred to in s 306F(4), and as defined in s
18, includes “incentive-based payments and bonuses”. Part 2-7A contemplates that the rate of
pay that must be paid to regulated employees if an order is made will incorporate any incentive
payments or bonuses. CoreStaff submits that it would not be fair and reasonable to make an
order which required it to pay regulated employees an amount incorporating elements for
performance pay because it is not entitled to a share of Bengalla’s profits. Renee Kearney
indicated in her witness statement that she understands that Bengalla pays CoreStaff a fixed
price. There is otherwise no evidence before the Full Bench as to the nature of the payment
arrangements and CoreStaff has not otherwise made submissions that the effect of a regulated
labour hire arrangement order on it should contribute to a finding that it is not fair and
reasonable to make the order. We have considered this matter, but are not satisfied that the
possible inclusion of an element for performance pay in the protected rate of pay means that it
is not fair and reasonable to make an order in this case.
[111] Bengalla separately submits that the performance pay provisions of the Bengalla
Agreement give rise to additional uncertainty in relation to the calculation of the protected rate
of pay. Two types of performance pay are provided for in the Bengalla Agreement: a lump sum
payment of up to 5 percent of a technicians annual base salary paid annually and a “performance
[2025] FWCFB 53
32
increase” of up to 0.45 percent.44 If technicians receive an additional pay increase on
performance grounds there is no difficulty in then determining the protected rate of pay. It is
not clear whether an annual lump sum payment would be part of the “full rate of pay” of a
technician under the Bengalla Agreement or, indeed, their “rate” of pay at all. However, we
have not received submissions in relation to that question and it is not appropriate to express a
view. Assuming the lump sum payment is part of the protected rate of pay, the only consequence
would be that, when the lump sum becomes payable to Bengalla employees, any CoreStaff
employees who, if the Bengalla Agreement applied to them, would be entitled to the payment
must be paid that sum. We do not consider that outcome contributes any further difficulty in
calculating the protected rate of pay.
[112] The final submission made by CoreStaff is that it will be burdened with a significant
increase in leave liabilities if an order is made and it would be unfair and unreasonable to make
an order taking into account the financial burden this will place on CoreStaff. Ms Kearney’s
witness statement indicates that the value of the accrued leave liabilities is $63,014.90. It
submits that the liability could increase by approximately 30% if an order is made. Whilst the
extent of the increase in leave liabilities might, in some cases, be relevant to whether it is not
fair and reasonable to make an order, we cannot attach significant weight to that matter in this
case. CoreStaff put forward no evidence in relation to the size of its operations, its financial
position or that any increase in leave liabilities will cause it financial difficulties. We have no
basis to conclude the financial burden on CoreStaff will be substantial. Further, as noted above
with respect to Skilled, the liability is contingent and may or may not materialise depending on
whether the occasion for employees to take leave arises and the circumstances of the employees
at termination.45
[113] Having considered each of the matters in relation to which submissions have been made
by CoreStaff and Bengalla and other matters we consider relevant, the Full Bench is not
satisfied that it is not fair and reasonable to make a regulated labour hire arrangement order
with respect to CoreStaff employees supplied to perform work for Bengalla.
Whether it is not fair and reasonable to make an order to apply to Skilled?
[114] The submissions of Skilled as to why it would not be fair and reasonable to make an
order to apply to Skilled’s employees assert that none of the matters expressly listed in s
306E(8) are relevant in the present case. Skilled suggests that the express considerations set out
in s 306E(8) are “useless” and appear directed at other situations, for example, “where there are
less sophisticated labour hire-host arrangements”. It is sufficient to record that Skilled makes
no submission in relation to any matter is s 306E(8)(a)-(e). Skilled says its submissions are all
directed at whether it is fair and reasonable in all the circumstances to make the order.
[115] Skilled’s submissions in relation to the fair and reasonable question are framed by
reference to the following observation made in Mondelez Australia Pty Ltd v Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR
495 by reference to the object of the Act in s 3:46
The stated objects show that the Act is intended to provide fairness, flexibility, certainty and
stability for employers and their employees. “Fairness” necessarily has a number of aspects:
fairness to employees, fairness between employees, fairness to employers, fairness between
employers, and fairness between employees and employers.
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33
[116] It is appropriate to consider the submissions made with respect to each aspect of the
fairness referred to by the members of the High Court, namely, fairness to employees, between
employees, to employers, between employers and between employees and employers.
[117] In relation to fairness to employees, Skilled accepts that the benefit that would be
conferred on Skilled employees if an order was made in that a higher rate of pay would become
payable to those employees weighs in favour of an order being made. We consider this to be an
appropriate concession. Skilled says, however, that the Act ameliorates that issue by the fact
that Skilled’s employees could seek to bargain for improved terms and conditions of
employment under Part 2-4.
[118] We do not consider the mere existence of the facility for regulated employees to engage
in collective bargaining with their direct employer is, in itself, of significance in assessing
whether it is not fair and reasonable to make an order in a particular case. Part 2-7A
acknowledges that the existence of the bargaining regime available to regulated employees is
not an answer to an application for a regulated labour hire arrangement order. Such an order is
intended to supplement an enterprise agreement that applies to regulated employees. In
particular, s 306F(10)(a) provides that an order applies despite a fair work instrument that
applies to a regulated employee.
[119] As we have said, the industrial arrangements that apply to a particular labour hire
employer might be relevant to a fair and reasonable assessment as is contemplated by s
306E(8)(c). However, Skilled has pointed to no particular aspects of the industrial arrangements
which apply to its employees, or of the history of bargaining in which it has engaged with its
employees, which should lead the Commission to be satisfied that it is not fair and reasonable
to make the order in its case. It expressly disclaimed any submission that there is any matter
falling within s 306E(8)(c) relevant to its case.
[120] In relation to fairness between employees, Skilled submits that it would be unfair to
Bengalla employees to make a regulated labour hire arrangement order. That is said to be
because the Bengalla Agreement is the result of a negotiation in which the wage outcomes
involved an exchange of productivity benefits such as provision for flexibility in the
performance of work functions, that employees are paid for their role rather than time at work
and that employees may be required to work additional hours on an as needs basis.47 It is said
it would be unfair to Bengalla employees to make an order because the Skilled employees
would have the benefit of the rate of pay without the productivity compromises contained in
the Bengalla Agreement.
[121] We do not accept that unfairness is caused to Bengalla employees if a regulated labour
hire arrangement order is made. There is no evidence any Bengalla employees hold that view,
and we would be surprised if they did. It is possible that, in some cases, it might be contended
that it is not fair and reasonable to make an order because of the balance of terms and conditions
which apply to the regulated employees and employees of the regulated host. For example, it
may be said that, once that comparison is undertaken, the regulated employees receive benefits
aside from their rate of pay which means is it not fair and reasonable that they be entitled to the
rate of pay under the host employment instrument. Skilled did not attempt any such comparison.
It simply identified three aspects of the Bengalla Agreement and asserted that those conditions
[2025] FWCFB 53
34
explained the higher rates of pay under that Agreement. We can see no basis for that assertion
or for a conclusion that is not fair and reasonable to make the order because of the balance of
conditions between Bengalla and Skilled employees.
[122] In relation to fairness to Skilled, it submits that, if an order is made, it will have the fruit
of the Supply Contract with Bengalla taken away and it will be required to perform its
obligations for the remainder of the Supply Contract at a loss. Skilled further submits that it
will be denied the entitlement to negotiate an enterprise agreement with its employees
unconstrained by Part 2-7A and required to pay its employees a rate of pay “not informed by
the productivity exchange that has been negotiated in the Bengalla Agreement”.
[123] The financial impact of a regulated labour hire arrangement on a labour hire employer
is relevant in assessing whether it is fair and reasonable to make the order, and we have had
regard to the fact that there will be a financial impact on Skilled if an order is made. However,
there is no evidence before the Full Bench in relation to the total costs that will be incurred by
Skilled if an order is made, the size of Skilled’s operations, its financial position, or that the
making of an order would cause it financial difficulties. We have no basis to conclude the
financial burden on Skilled’s overall operations will be substantial. In those circumstances,
there are limits on the weight we can attach to the financial impact on Skilled in assessing
whether it is not fair and reasonable to make an order.
[124] In relation to fairness between employers and between employees and employers,
Skilled submits that it would not be fair and reasonable to make an order because other
employees and employers enjoy the right to enter into enterprise agreements that reflect the
relevant skills, productivity benefits and work involved. That is said to be denied to Skilled if
a regulated labour hire arrangement order is made. As we have said, we do not regard the mere
existence of the collective bargaining regime in Part 2-4 as favouring a conclusion that it is not
fair and reasonable to make an order. This is not a case in which Skilled has pointed to particular
aspects of the bargaining history concerning its employees, or particular features of the
enterprise agreements that have resulted from those bargaining processes, that support a
conclusion that it is not fair and reasonable to make an order. It is also not correct to say that
Skilled cannot bargain with its employees, although we acknowledge that the existence of a
regulated labour hire arrangement order will likely have a substantial impact on the bargaining.
[125] Finally, in relation to the application for an order to apply to Skilled employees, we have
also had regard to the submissions made by Bengalla. We have addressed those submissions in
addressing the application concerning CoreStaff above and have also taken those matters into
account in assessing whether it is not fair and reasonable to make an order to apply to Skilled.
In relation to the pay rates for part-time and casual employees, we note that the evidence of Mr
Cribb is that there are only a small number of those employees supplied by Skilled. Mr Cribb’s
evidence is that there are seven part-time employees performing crib relief work and eight
casuals undertaking ad hoc floater work out of a total of 156 employees. There are a number of
other casual employees, but they perform at least full-time hours. In relation to the increase in
leave liabilities, Mr Cribb gave evidence of the quantum of the potential increase in Skilled’s
liabilities. We take that matter into account. However, as is the case the CoreStaff, there is no
evidence before the Commission in relation to the size of Skilled’s operations, its financial
position or that any increase in leave liabilities will cause it financial difficulties.
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35
[126] Having considered each of the matters in relation to which submissions have been made
by Skilled and Bengalla and other matters we consider relevant, the Full Bench is not satisfied
that it is not fair and reasonable to make a regulated labour hire arrangement order with respect
to Skilled employees supplied to perform work for Bengalla.
Form of the orders
[127] As the Full Bench has concluded that regulated labour hire arrangement orders must be
made with respect to CoreStaff and Skilled employees supplied to perform work for Bengalla,
it is necessary to consider the form of the orders to be made.
[128] The parties accepted that all employees supplied by CoreStaff and Skilled to perform
work for Bengalla would be covered by the Bengalla Agreement if employed by Bengalla with
one exception. Skilled submits that wash technicians (or car washers as they were also referred
to) it employs would not be covered by the Bengalla Agreement. It submits that the work of
wash technicians is not contemplated by the Bengalla Agreement and they perform very
different work to production and engineering employees covered by the Agreement. Bengalla
does not support the wash technicians being carved out of an order applying to Skilled and
neither does the MEU. It is, in those circumstances, necessary to assess whether those
employees would be covered by the Bengalla Agreement.
[129] The question posed by s 306E(1)(b) is whether the Bengalla Agreement would apply to
the wash technicians if Bengalla were to employ the employees to perform work of the same
kind. An enterprise agreement applies to an employee if it is in operation and covers the
employee and, in turn, covers an employee if it is “expressed to cover (however described)” the
employee.48 The coverage of the Bengalla Agreement is set out above. In short, it covers all
technicians. A technician is defined to include “persons designated by Bengalla as technicians
and performing production and engineering work within the classifications in Schedule A of
the Black Coal Mining Industry Award 2020”.
[130] The work performed by wash technicians is only described in the witness statement of
Mr Cribb who said:
19. The Wash Technicians have recently transitioned to an 8-hour day roster. Previously, their
working hours have been sporadic and ad-hoc, according to operational needs. This has meant
that Wash Technicians have been engaged for short and unpredictable periods, sometimes of 3
or 4 hours.
20. It is to compensate for the sporadic and short duration working arrangements that have
previously applied that SWS has classified all Wash Technicians as ML3s. This work is
otherwise essentially unskilled and requires no experience, training or qualifications (other than
a working from heights licence), and involves working in the wash bay performing cleaning
such as removing dirt and mud from vehicles and equipment. Unlike all other technicians
directly employed by Bengalla, or other SWS mineworkers, Wash Technicians do not (and are
not capable of) operating mining equipment, or going out into the mine site.
[2025] FWCFB 53
36
[131] It is apparent that the wash technicians are designated as technicians and would be
covered by the Bengalla Agreement so long as they can be described as performing production
and engineering work within the classifications in Schedule A of the Black Coal Award.
[132] The parties did not make detailed submissions in relation to the Black Coal Award. The
Black Coal Award covers employees who are employed in the black coal mining industry,
whose duties are carried out at or about a place where black coal is mined or who are employed
by an employer in the black coal industry, and are “directly connected with the day to day
operation of a black coal mine” and employed in a classification or class of work in Schedule
A or Schedule B.49 There is no reason to doubt that the work of the wash technicians is directly
connected with the day to day operation of a black coal mine and no submission was made to
the contrary. Work on vehicles used at a mine has a sufficient connection.50
[133] Schedule A to the Black Coal Award contains a single stream structure, which does not
contain any demarcations relating to the performance of work. The definitions for each of the
classification levels are “necessarily general” as they are intended to cover the various types of
work actually performed under the Award.51 As a result, to fall within any of the classifications
in Schedule A, it is not necessary that an employee performs any particular types of work or
any particular range of duties. Although the wash technicians may perform only a limited type
of work, that does not appear to remove them from being mineworkers for the purposes of
Schedule A to the Black Coal Award. We are satisfied that the wash technicians would be
covered by the Bengalla Agreement if employed by Bengalla.
[134] Skilled submits that other exclusions should be made from the order which applies to it.
It refers to the requirement, in s 306E(9)(c), that an order “specify” the regulated employees
covered by the order. Skilled says the requirement to “specify” imports a requirement of clarity
and precision, particularly in the context of an instrument the contravention of which can result
in the imposition of a pecuniary penalty.52 Where a person may be subject to a penalty in the
event of the contravention of an instrument, the subject of an order should not be left in any
doubt as to what their obligations are pursuant to that order.53
[135] There is no lack of clarity in the order sought by the MEU. It proposes that the order
will cover employees of Skilled or CoreStaff who perform work at the Bengalla Mine who
would, if employed by Bengalla, be covered by the Bengalla Agreement. The coverage of the
Bengalla Agreement is set out in clause 2. The Agreement is itself an instrument contravention
of which can result in the imposition of a pecuniary penalty.54 The draft order proposed by
Skilled would introduce rather than avoid uncertainty. It seeks to insert reference to “production
employees”. It is unclear whether and, if so, what limitation is sought to be introduced by those
words. The term “production employee” is not used in terms in the Bengalla Agreement and its
use would not clarify the application of the order.
[136] Finally, Skilled submits that two further exclusions be made to the regulated employees
covered by the order. Bengalla opposes any additional exclusions. Skilled suggests that any
trainees who are performing work as part of a training arrangement should be excluded because
s 306G(1) provides that the protected rate of pay in s 306F does not apply if a training
arrangement applies to a regulated employee in respect of work for the regulated host. In our
view, s 306G(1) operates by force of the Act and there is no need to exclude employees to
whom a training arrangement applies from the terms of the order.
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37
[137] Skilled then submits that any employees of Skilled must be excluded if the employees
perform work in respect of Skilled’s provision of services to Bengalla in the future within the
meaning of s 306E(1A). It is not suggested that Skilled’s employees performing work for
Bengalla do perform work for the provision of a service, or that there is any proposal or
likelihood of Skilled providing a service in the future. There is no evidence Skilled provides
services, as opposed to supplying labour, as part of its business at all. We do not think it is
necessary, or appropriate, to make this provision in circumstances in which there is no identified
prospect of the eventuality ever occurring. The proposed exclusion would introduce uncertainty
and a lack of clarity in the order which Skilled says must be avoided.
[138] The submissions made by Skilled assume that it is possible for the Commission to make
a regulated labour hire arrangement order under s 306E which applies to some, but not all,
employees supplied to perform work for the regulated host. It is not clear to us that the
assumption is correct. Section 306E(1) requires the Commission to make an order if the
circumstances in that subsection are met. The prohibitions in s 306E(1A) and (2) then set out
circumstances in which the Commission must not make “the order”. The language suggests that
either the Commission must make an order applying to the regulated employees or it must not.
However, it is not appropriate for the Full Bench to express a view about that question given
the conclusions we have reached.
Conclusion and disposition
[139] For the reasons set out above, the Full Bench is required by s 306E of the Act to make
a regulated labour hire arrangement order which applies to all employees supplied by CoreStaff
and Skilled to perform work at the Bengalla Mine. The Full Bench will publish the order
together with this decision, setting out the matters specified in s 306E(9) of the Act.
[140] Section 306E(9)(e)(ii) provides that the day an order will come into force which must
be the day the order is made or a later day. In light of the issues raised by Bengalla and CoreStaff
in relation to the calculation of the protected rate of pay for the regulated employees, we believe
it is appropriate to delay the commencement of the orders for a period to permit any dispute in
relation to the determination of the protected rate of pay to be dealt with between the parties
and, if necessary, the Commission. We note that s 306P(1)(b) permits a dispute to be dealt with
under that section and s 306Q when a regulated labour hire arrangement order has been made
but is not yet in force. CoreStaff and Skilled each requested that, if orders are made, that they
commence operation on a Sunday to coincide with the commencement of their pay periods. The
orders will come into force on 13 April 2025.
[141] No party submitted that the order should specify when it will cease to be in force for the
purposes of s 306E(10). Accordingly, the order will also not contain such a specification.
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VICE PRESIDENT
Appearances:
R Reitano, of counsel, with K Endacott for the Mining and Energy Union.
R Sweet KC and J McLean, of counsel, instructed by Herbert Smith Freehills for Bengalla
Mining Company Pty Ltd.
L Howard, of counsel, instructed by Kingston Reid for Skilled Workforce Solutions (NSW) Pty
Ltd.
C Pase, of counsel, instructed by KHQ Lawyers for CoreStaff NSW Pty Ltd.
Hearing details:
25 February 2025.
Sydney (in person).
Printed by authority of the Commonwealth Government Printer
PR785174
1 Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [8]-[17].
2 See, particularly, Fair Work Act 2009 (Cth), s 306F.
3 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [69].
4 Explanatory Memorandum to the Fair Work Bill 2008 (Cth) at [175].
5 See the approach adopted in Tran v Commonwealth [2010] FCAFC 80; (2010) 187 FCR 54 at [229]-[237] (Besanko J) and
Re OneSteel Manufacturing Pty Ltd [2017] NSWSC 21; (2017) 93 NSWLR 611 at [45]-[56] (Brereton J) when dealing with
provisions using similar wording to s 39 of the Act.
6 Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290 (Starke J); ICM Agriculture Pty Ltd v The
Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at [131] (Hayne, Kiefel and Bell JJ).
7 Smith v ANL Ltd [2000] HCA 58; (2000) 204 CLR 493 at [20] (Gaudron and Gummow JJ).
8 Commonwealth v Tasmania (1983) 158 CLR 1 at 247 (Brennan J).
9 Ibid at 145 (Mason J). See also ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at
[132] (Hayne, Kiefel and Bell JJ) and JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1 at [42]
(French CJ) and [169] (Hayne and Bell JJ).
MISSION THE SEAL OF THE WORK CO
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb299.pdf
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10 Commonwealth v Tasmania (1983) 158 CLR 1 at 145-146 (Mason J) and 248 (Brennan J); JT International SA v
Commonwealth [2012] HCA 43; (2012) 250 CLR 1 at [42] (French CJ) and [170] (Hayne and Bell JJ).
11 Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 452 (Aickin J); ICM Agriculture Pty Ltd v The
Commonwealth [2009] HCA 51; (2009) 240 CLR 140 at [42] (French CJ) and [133] (Hayne, Kiefel and Bell JJ).
12 Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 at 325 (Mason CJ, Deane and
Gaudron JJ); JT International SA v Commonwealth [2012] HCA 43; (2012) 250 CLR 1 at [367] (Kiefel J).
13 Fair Work Act 2009 (Cth), s 97.
14 Fair Work Act 2009 (Cth), s 90(2).
15 Fair Work Act 2009 (Cth), s 306NA(2) and (3).
16 Fair Work Act 2009 (Cth), ss 539(2)(Item 9A) and 540(1).
17 Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297 at 306-307 (Mason CJ, Deane
and Gaudron JJ) referring to Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 189-190 (Deane and
Gaudron JJ).
18 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 161 (Mason CJ, Brennan, Deane, Toohey, Gaudron
and McHugh JJ).
19 Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 171 (Mason CJ).
20 Fair Work Act 2009 (Cth), s 43(1).
21 Fair Work Act 2009 (Cth), s 171(a).
22 Explanatory Memorandum to the Fair Work Amendment (Closing Loopholes) Bill 2023 (Cth) at [75]-[77].
23 See approach in John Holland Group Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union [2011] VSCA 396; (2011) 214 IR 343 at [94]-[96] (Neave J, Nettle J and Judd AJA agreeing) with respect to
transitional provisions for the current Act.
24 See, most famously, Lochner v New York, 198 US 45 (1905) (dealing with hours of work laws), Adkin v Children’s
Hospital, 261 US 525 (1923) (dealing with minimum wages for women) and Morehead v New York ex rel Tipaldo, 298 US
587 (1936) (also dealing with minimum wages). Notably, those decisions did not appear to suggest that minimum wage laws
violated the “takings” clause of the 5th Amendment to the United States Constitution.
25 Jeff Shesol, Franklin Roosevelt vs The Supreme Court (2010).
26 West Coast Hotel Co v Parrish, 300 US 379 (1937).
27 Re Mining and Energy Union [2024] FWCFB 299; (2024) 333 IR 249 at [16]. See also Application by the Mining and
Energy Union re Rix’s Creek [2025] FWCFB 12 at [49]-[50].
28 Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 at [51]-[52].
29 Pope v Lawler (1996) 41 ALD 127 at 135 (Nicholson J) .
30 Alcoa of Australia Retirement Plan Pty Ltd v Thompson [2002] FCA 256; (2002) 116 FCR 139 at [48] (RD Nicholson J).
31 See the approach adopted in other contexts: Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35; (2015) 229 FCR
537 at [36] (Buchanan J); Secretary of the Ministry of Health v New South Wales Nurses and Midwives’ Association [2022]
NSWSC 1178; (2022) 320 IR 249 at [12] (Walton J).
32 RIG Consulting Pty Ltd v Queanbeyan-Palerang Regional Council [2021] NSWCA 130 at [22] (Leeming JA).
33 Fair Work Act 2009 (Cth), s 306E(8)(a), (c), (da) and (e).
34 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020]
FCAFC 192; (2020) 282 FCR 1 at [25]-[29] (Allsop CJ) and [67]-[68] (Flick J); Mondelez Australia Pty Ltd v Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; (2020) 271 CLR 495 at [13]-[14] (Kiefel
CJ, Nettle and Gordon JJ).
35 Fair Work Act 2009 (Cth), s 55-56 and 186(2)(c).
36 Fair Work Act 2009 (Cth), s 186(2)(d) and 193.
37 See, in a different context, Australian Municipal, Administrative, Clerical and Services Union v Central Goldfields Shire
Council [2024] FWCFB 444; (2024) 335 IR 110 at [76].
38 Fair Work Act 2009 (Cth), s 12.
39 Bengalla Enterprise Agreement 2022, clause 4.1 and 4.2.
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40 Fair Work Act 2009 (Cth), s 306Q(1).
41 Bengalla Enterprise Agreement 2022, clause 2.1 of Schedule A.
42 Bengalla Enterprise Agreement 2022, Schedule A – Table 1.
43 Bengalla Enterprise Agreement 2022, Schedule A – Table 2.
44 Bengalla Enterprise Agreement 2022, clause 4.1(3) and clause 1.2 of Schedule A.
45 Fair Work Act 2009 (Cth), ss 90(2), 97 and 306NA.
46 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA
29; (2020) 271 CLR 495 at [14] (Kiefel CJ, Nettle and Gordon JJ).
47 By reference to the Bengalla Enterprise Agreement 2022, clause 3.1-3.3 and 4.2.
48 Fair Work Act 2009 (Cth), ss 52(1) and 53(1).
49 Black Coal Mining Industry Award 2020, clause 4.1(b)(i) and (ii).
50 Groves v Kal Tire [2020] FWC 3689 at [135].
51 Black Coal Mining Industry Award 2020, Schedule A clause A.1.2 and A.1.3. See also Bis Industries Ltd v Construction,
Forestry, Maritime, Mining and Energy Union [2021] FCA 1374 at [312] (White J).
52 Vanstone v Clark [2005] FCAFC 189; (2005) 147 FCR 299 at [13] (Black CJ and Weinberg J); Beame v Commissioner of
Police (NSW) [2023] NSWSC 347; (2023) 297 A Crim R 131 at [75] (Yehia J).
53 Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union (1997) 77 IR 87 at 92 (Marshall J); Esso Australia Pty Ltd v Australian Workers’ Union [2015] FCA 758; (2015) 253
IR 304 at [97]-[99] (Jessup J).
54 Fair Work Act 2009 (Cth), s 50.
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