Federal Court of Australia

BHP Coal Pty Ltd v Mining and Energy Union [2025] FCAFC 194

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    Pursuant to ss 37AF and 37AG of the Federal Court of Australia Act 1976 (Cth), for a period of ten years from the date of these orders, the following documents be suppressed and subject to non-publication, other than to the parties:

(a)    the portions of the unredacted copy of the reasons for decision in [2025] FWCFB 134 included in the amended Part A of the Application Book, which are identified through the redactions that have been applied to the redacted version of the reasons for decision at paragraph [110];

(b)    the portions of the following evidence, submissions and documents contained in Part C of the Application Book, which are identified through the redactions that have been applied to the redacted parts of the amended Part C of the Application Book filed on 14 November 2025:

(i)    paragraphs 2(c) and 32 of the Applicants’ outline of submissions filed in proceedings C2024/3846 & Ors dated 4 October 2024;

(ii)    paragraph 43 of the Applicants’ outline of closing submissions filed in proceedings C2024/3846 & Ors dated 14 February 2025;

(iii)    paragraphs 45, 46 and annexures SC-2 to SC-6 of the statement of Scott Connors dated 27 September 2024;

(iv)    paragraph 69(a),(b) and (c) and annexures GJC-3 to GJC-6 of the statement of Grant Costello dated 4 October 2024;

(v)    paragraphs 5, 53, 54, and 55 of the statement of Vaughn Stanley Bruce Abrams dated 4 October 2024;

(vi)    paragraphs 32 and 36 of the statement of Robert Geoffrey Hanson dated 4 October 2024;

(c)    the portions of the Applicants’ Aide Memoire filed 12 November 2025 which are identified through the redactions that have been applied to that document filed on 14 November 2025 to Clause B(6); and

(d)    the document filed by the Applicants on 20 November 2025 and headed “Annexure A”.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    Part 2-7A of the Fair Work Act 2009 (Cth) (FW Act) provides for the Fair Work Commission (Commission) to make regulated labour hire arrangement orders. In broad terms, the object of such orders is to entitle employees of labour hire providers to be paid at pay rates that are no less than would be applicable under industrial instruments, such as an enterprise agreement, which apply to a host employer.

2    On 7 July 2025, the Commission constituted by a Full Bench (Asbury VP, Gibian VP and Durham C) published a decision that regulated labour hire arrangement orders should be made under s 306E of the FW Act in relation to employees of the second applicant (OS Production) and third applicant (OS Maintenance) (together, the OS Parties) who are engaged in work at three coal mines in the Bowen Basin in central Queensland: Applications by the Mining and Energy Union re: Goonyella Riverside Mine, Peak Downs Mine and Saraji Mine [2025] FWCFB 134 (Primary Decision or PD).

3    The OS Parties are both part of the BHP group of companies (BHP Group). The coal mines are operated by BM Alliance Coal Operations Pty Ltd (BM Alliance) which is the corporate manager and agent of the sites on behalf of the Central Queensland Coal Associates Joint Venture. The first applicant, BHP Coal Pty Ltd (BHP Coal), has a 50 per cent interest in the joint venture either directly or through associated entities. BHP Coal is the host employer for the purpose of the Commission’s decision. The OS Parties supplied labour to the mines operated by BM Alliance pursuant to certain “Framework Agreements”.

4    The application for the making of the regulated labour hire orders under Part 2-7A of the FW Act was made by the first respondent (MEU) and the second respondent (AMWU). The MEU and the AMWU also sought orders in respect of other entities that supplied labour to the respective mines but the facts and circumstances relating to them are not presently relevant.

5    On 26 August 2025, the Commission gave effect to its decision by making six regulated labour hire arrangement orders (the RLHA Orders) pursuant to s 306E of the FW Act that were in similar terms. The principal effect of the RLHA Orders is that the terms and conditions of employment of certain employees of the OS Parties working at the three coal mines (the regulated employees) will be the subject of a host enterprise agreement, namely the BMA Enterprise Agreement 2022. The orders came into force on 14 September 2025.

6    The central issue in dispute between the parties before the Commission was whether the performance of work by the regulated employees was “for the provision of a service, rather than the supply of labour” for the purpose of s 306E(1A) of the FW Act. The applicants submitted that the performance of work by the regulated employees was for the provision of a service such that the Commission was not empowered to make the RLHA Orders by reason of s 306E(1A). The Commission did not accept this to be the case and was not satisfied that the performance of work by the regulated employees was for the provision of a service.

7    The applicants apply under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of certiorari quashing the RLHA Orders, as well as orders in the nature of mandamus directing the Full Bench to determine the applications before it according to law.

8    For the reasons that follow, we are not satisfied that the applicants have established the errors that they assert, such that the application for judicial review should be dismissed.

9    The applicants sought suppression and non-publication orders under s 37AF of the Federal Court of Australia Act 1976 (Cth) (FCA Act) in respect of certain information that was said to be “commercially sensitive” and which had been made the subject of confidentiality orders made by the Commission. We are satisfied that those orders should be made for the reasons set out in Part 8 below.

2.    THE RELEVANT STATUTORY PROVISIONS

10    The applicants’ grounds of review relate to the Commission’s construction of s 306E of the FW Act, and particularly subsections (1), (1A) and (7A), which provide 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:

(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.

(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).

…

(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.

11    As referred to above, and further expanded upon below, the central disputes between the parties concerned the construction of s 306E(1A) and its application to the facts before the Commission.

3.    THE COMMISSION’S DECISION

12    The Commission received extensive evidence as to the operations undertaken at the respective mines including as to the organisation and scheduling of the relevant works and the applicable site practices, policies and procedures. The Commission also received extensive evidence as to the interrelationship between the OS Parties and BHP Coal, the supply of labour to the mines by the OS Parties, and as to the nature and extent of the services provided by the OS Parties.

13    Before the Commission, the applicants argued that the performance of work by the employees of the OS Parties was “for the provision of a service, rather than the supply of labour”, and therefore s 306E(1A) was engaged which precluded the making of the RLHA Orders.

14    The Commission held at PD [23] that s 306E(1A) erects a jurisdictional precondition to an order being made which renders s 306E(1) inoperative unless the Commission is positively satisfied that the performance of work is not or will not be for the provision of a service, rather than the supply of labour.

15    The Commission reasoned that the word “for” in the expression “for the provision of a service, rather than the supply of labour” required an examination of the purpose or object of the work of the regulated employees which was bound up with the contractual arrangements as between the labour hire employer and the regulated host but not limited to them. The Commission stated at PD [29]–[31]:

[29]    The true position is more nuanced than the parties suggest. We accept that the word “for” connotes an examination of the purpose or object of the work of the regulated employees, or the function served by the work performed. We also accept that the purpose or function of the work performed by the regulated employees is necessarily bound up with the arrangements between the employer and the regulated host under which the regulated employees are supplied to perform work for the regulated host. It will also be relevant to examine what the employer provides to the regulated host to ascertain whether the work performed by the regulated employees is for the provision of a service or the supply of labour. This is likely to include consideration of whatever commercial or contractual arrangements exist between the employer and the regulated host but will not be limited purely to the contractual provisions.

[30]    However, the arrangements which exist between the employer and the regulated host are not relevant in a general sense or in themselves, but only to the extent that they cast light upon the purpose or function of the work performed by the regulated employee or employees. It is conceivable that the arrangements as between the employer and the regulated host will cover other matters going beyond the work performed by the regulated employees or the employer will undertake activities properly regarded as facilitating or supporting the supply of labour. Those activities will have limited, if any, relevance and will not preclude a finding that the performance of work is not for the provision of a service rather than the supply of labour. Further, although the contractual obligations of the employer and the regulated host may be relevant, the considerations in s 306E(7A) make clear that the Commission is not confined to examining the relevant legal obligations of the employer and the regulated host and is required to consider the arrangements applying to the work of the regulated employees “in practice”. Also relevant will be the nature of the business or enterprise of the regulated host and the work performed by employees of the regulated host vis-à-vis the work performed by the regulated employees.

[31]    Section 306E(7A)(b) expressly requires consideration of the extent to which the employer directs, supervises or controls the work of the regulated employees “in practice”. In our opinion, each of the considerations in s 306E(7A)(a), (c), (d) and (e), properly understood, direct attention at the extent to which the employer is actually involved in matters relating to the performance of work, the regulated employees use systems, plant or structures of the employer, the employer will be subject of industry or professional standards and the work is actually of a specialist or expert nature. The contractual arrangements under which the employees are supplied will be relevant but are not exhaustive of the required analysis. The Revised Explanatory Memorandum to the Closing Loopholes Bill supports this view. Among other things, it states that:

These provisions allow the FWC to assess the reality of the arrangement to determine whether it is, or is not, for the provision of a service and then decide, as a jurisdictional question, whether it is prevented from making an order.

16    In relation to the question which s 306E(1A) raised, the Commission stated at [42]:

In our view, having regard to the language of s 306E(1A) and the matters listed in s 306(7A), the core question asked is whether the performance of work by the regulated employees is properly characterised as being for the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host.

17    The Commission’s reference here to an “identifiable and discrete service” which is “distinct” from the supply of labour is the subject of the applicants’ contention that the Commission misconstrued s 306E(1A) as advanced in Ground 1(a) (as addressed below).

18    After addressing the parties’ submissions as to other aspects of Part 2-7A, the Commission then stated at PD [64] that the proper approach to s 306E(1A) was as follows:

(a)    The Commission is required to be positively satisfied that the performance of work by the regulated employee or employees is not for the provision of a service, rather than the supply of labour.

(b)    The formation of that state of satisfaction requires the characterisation of the purpose, object or function of the performance of work by the regulated employees and involves an evaluative inquiry in which all relevant matters, at least including those in s 306E(7A), are taken into account.

(c)    The inquiry as to whether the performance of work is for the “provision of a service” cannot be reduced to an examination of whether the employer provides anything more than “merely” or “just” the supply of labour. Questions of extent and degree are likely to be involved in the characterisation exercise.

(d)    The focus is required to be on the performance of work by the regulated employees albeit that the commercial or contractual arrangements between the employer and the regulated host and the nature of the employer’s operations may be relevant when characterising the purpose or function of the work of the regulated employees.

(e)    The Commission is required to have regard to the matters in s 306E(7A) in the sense those matters are to be treated as a matter of significance in the decision-making process, but the considerations listed in s 306E(7A) are not necessarily exhaustive of the matters to be considered. The Commission may have regard to other relevant matters.

(f)    The question posed by s 306E(1A) is likely to turn on whether the purpose of the work performed by the regulated employees can properly be characterised as contributing to the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host.

(Emphasis added.)

19    The emphasised parts of the above passage are the subject of the applicants’ contentions advanced in support of Grounds 1(a) and 1(b) (as addressed below).

20    The Commission then turned to the applications made in relation to the OS Parties and addressed in detail the circumstances that were the subject of the parties’ submissions. At PD [267], the Commission summarised the most significant features which arose from the evidence that supported its state of satisfaction for the purposes of s 306E(1A) that the work performed by employees of OS Production and OS Maintenance at the three mines is not or will not be for the provision of a service, rather than the supply of labour. The Commission concluded as follows at PD [267]–[269]:

Conclusions with respect to the OS Parties

[267]    Having considered each of the matters listed in s 306E(7A) and the other relevant matters which have been relied upon by the parties, we are satisfied that the work performed by employees of OS Production and OS Maintenance at the Goonyella Riverside, Peak Downs and Saraji mines is not or will not be for the provision of a service, rather than the supply of labour for the purposes of s 306E(1A). Without limiting the consideration we have given to all of the matters referred to above, the most significant features which arise from the evidence which support that state of satisfaction are, in summary:

(a)     The Framework Agreements, and associated site work packages, oblige OS Production and OS Maintenance to provide what are described as “services” by reference to an expected number of FTE employees required by BMA and the price paid to OS Production and OS Maintenance is overwhelmingly determined by reference to the cost of employing the employees to perform the work.

(b)     OS Production and OS Maintenance have some involvement in matters relating to the performance of work because they are consulted and provide feedback in relation to mine planning and maintenance planning. However, the mine and maintenance plans are determined by BMA and determine matters including the timing, priority and nature of the work to be performed by the employees.

(c)     Although OS supervisors play an important role in the day-to-day supervision and direction of employees of OS Production and OS Maintenance, OS employees are required to perform work in accordance with detailed and highly prescriptive requirements imposed by BMA in the form of SOPs, SWIs and an array of other policies and procedures and are subject to monitoring, intervention and direction by the IROC through the Minestar and Modular systems.

(d)     Employees of OS Production and OS Maintenance performing work at the three mines use plant, equipment and systems provided by BMA in the performance of their duties and the plant, equipment and systems are the same as those otherwise used by production and maintenance employees of BMA in the operation of the mines.

(e)     The work performed by employees of OS Maintenance and OS Production is capable of being described as of a specialist or expert nature in a general sense, but the work is of the same nature and involves the same specialised and expert skills as are exercised by employees of BHP Coal performing the same work in the same mines suggesting that, in substance, what is being provided by OS Maintenance and OS Production is labour.

(f)     On the material before us, many of the matters relied on by BHP and the OS Parties to establish that the OS Parties are providing a service, are also applicable to the supply of labour at the mines by WorkPac and Chandler Macleod. In the evaluation we are required to conduct, the extent of these similarities, combined with other matters we have identified as particular to the OS Parties, weigh in favour of a conclusion that the performance of the work by employees of the OS Parties is not for the provision of a service, rather than the supply of labour, within the meaning in s 306E(1A).

[268]    Once all the relevant features of the arrangements are taken into account, we are satisfied that the evidence does not establish that the work of employees of OS Production and OS Maintenance involves the provision of an identifiable and discrete service to BMA as distinct from the supply of the labour of those workers to work in or as part of the business of the BMA. The consequence is that we are satisfied of the matters set out in s 306E(1A). As we have observed, there is no issue that the requirements of s 306E(1) are met. As we are satisfied that the performance of work by employees of OS Production and OS Maintenance is not or will not be for the provision of a service, rather than the supply of labour, for the purposes of s 306E(1A), we are required to make regulated labour hire arrangement orders.

[269]    BHP and the OS Parties do not submit that it is not fair and reasonable to make such orders for the purposes of s 306E(2). Section 306E(2) requires that the Commission not make an order if satisfied it is not fair and reasonable to do so “having regard to any matters in subsection (8) in relation to which submissions are made”. In the absence of any such submissions, regard need not be had to those matters. In any event, we are not satisfied that is not fair and reasonable in all the circumstances to make the orders sought by the MEU and the AMWU. There is nothing in the material before us which would permit such a state of satisfaction to be reached.

    (Emphasis added.)

21    Some of the features of the labour hire arrangements that the Commission relied upon at PD [267(a) to (e)] are the subject of the applicant’s contentions advanced in support of Grounds 1(b) and 2 (as addressed below).

4.    THE APPLICATION TO THIS COURT

22    By their amended application for judicial review and accompanying affidavit, the applicants contend that the Commission erred in three overlapping respects.

23    First, the applicants contend that the Commission misconstrued s 306E(1A) by applying the wrong test at PD [42] and [64(d)]: Ground 1(a) of the accompanying affidavit (Ground 1A). The applicants submit that the question raised by s 306E(1A) is not to be answered by determining whether the labour hire employer provides an “identifiable and discrete” service which is “distinct” from its supply of the labour of its employees. The applicants contend that by applying this approach, the Commission misdirected its inquiry to whether the OS Parties supplied a service that was separate and disjoined from their supply of the labour of the regulated employees. It was said that the Commission’s approach did not accord with the text in s 306E(1A) and would denude this “service provision exception” of practical operation.

24    Second, the applicants contend that, in assessing the evidence as to the services provided by the OS Parties, the Commission wrongly focussed upon characterising the performance of the work itself, rather than characterising the objective for which the work of the regulated employees was performed: Ground 1(b) of the accompanying affidavit (Ground 1B). The applicants submit that the Commission was required to identify “what more, by way of additional substantial actions, activities or functions the employer provided in conjunction with the performance of work by its employees for the benefit of the regulated host”.

25    Third, the applicants contend that the Commission made a series of errors in dealing with the factors specified in s 306E(7A): Ground 2 of the accompanying affidavit (Ground 2). The applicants submit that, by misdirecting its inquiry under s 306E(1A), the Commission rejected the significance of the “deep involvement” of the OS Parties in planning, supervision and training, and in other respects.

26    We now turn to address each Ground.

5.    GROUND 1A

27    The central issue raised by Ground 1A is whether the Commission erred by finding that the “core question” asked by s 306E(1A) is whether the performance of work by the regulated employees is “properly characterised as being for the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host” (emphasis added): PD [42].

28    The applicants submitted that the Commission’s framing of the question arising under s 306E(1A) at PD [42] as being the “core question” was not diminished by its subsequent finding at PD [64(d)] that the question posed by s 306E(1A) is “likely to turn on whether the purpose of the work performed by the regulated employees can properly be characterised as contributing to the provision of an identifiable and discrete service to the regulated host which is distinct from the supply of the labour of the workers to work in or as part of the business of the regulated host”.

29    The applicants submitted that, by construing s 306E(1A) of the FW Act as imposing a requirement that the Commission reach a state of satisfaction as to whether or not the relevant “service” provided by the labour hire employer is “identifiable and discrete” and “distinct from the supply of labour”, the Commission “imposed a wrong test” and asked itself the wrong question and thereby fell into jurisdictional error as to the basis upon which it was required to reach the required state of satisfaction. It was submitted that the effect of the test applied by the Commission required the “service” provided by the labour hire employer to be separate from the “labour” in circumstances where the relevant “service” will inevitably be substantially connected with the provision of the labour of the regulated employees. The applicants contended that the provision of labour, which is necessary for the qualifying purpose of s 306E(1)(a), cannot become a disqualifying feature for the purpose of s 306E(1A) and it would be “difficult to conceive what work the ‘service provision’ exception would have to do if such a requirement were imposed”.

30    The applicants submitted that the test applied by the Commission was not supported by the text of s 306E(1A). They submitted that the correct approach called for by the subsection was to inquire, what more, by way of additional activities or functions, the OS Parties had agreed to provide (that is, in conjunction with the performance of work by the regulated employees) for BHP Coal’s benefit, and whether those additional services were substantial. In support of this contention, the applicants relied upon an earlier decision of a Full Bench of the Commission in Re Mining and Energy Union [2024] FWCFB 299 (Hatcher J, President, Asbury VP, Saunders DP) (Batchfire Callide) where it was stated at [15] that:

…notwithstanding satisfaction as to the criteria in s 306E(1), s 306E(1A) prohibits the making of a regulated labour hire arrangement order unless the Commission is able to reach a positive state of satisfaction that the performance of work by the employees supplied to the regulated host is not, or will not be, for the provision of a ‘service’ rather than for the supply of labour. Although s 306E(1A) is expressed as a prohibition, its substantive effect is that reaching the described state of satisfaction is an additional precondition to the making of an order. It is clear that ‘service’ in s 306E(1A) is used in a different sense than ‘service’ as defined in s 22. The contradistinction between the provision of a service and the supply of labour in s 306E(1A) implies that the former must involve something more than simply the performance of work by the employees supplied to the regulated host. The matters prescribed in s 306E(7A) provide guidance as to the matters which might constitute this ‘something more’, so that a finding of fact that one or more of these matters apply would weigh in favour of a conclusion that a service, and not just labour, is being provided. The requirement to have regard to these matters means that they must be treated as matters of significance in the decision-making process. They are intended, as paragraph [638] of the REM explains, to:

…allow the [Commission] to assess the reality of the arrangement to determine whether it is, or is not, for the provision of a service and then decide, as a jurisdictional question, whether it is prevented from making an order.

(Emphasis added.)

31    Relying upon this passage, the applicants submitted that the OS Parties provided essential “value add” services in several different ways which comprised the “something more” beyond labour supply which the Full Bench in Batchfire Callide contemplated. As addressed below in our consideration of Grounds 1B and 2, the applicants submitted that the Commission failed to properly consider these “value add” services and the OS Parties’ “commercial offering” as a whole because the Commission misdirected itself.

32    The applicants’ contentions should be rejected. As we will explain, they proceed on a narrow reading of the Commission’s reasons at PD [42] and [64(d)].

33    It was common ground that, for the purpose of s 306E(1A), the Commission’s state of satisfaction must be formed in good faith, be capable of being formed by a reasonable decision-maker, be formed in accordance with a correct understanding of the law under which the decision is made, and be untainted by a material breach of any other express or implied conditions of the decision-making function: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430–432 (Latham CJ); Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia [1960] HCA 68; 104 CLR 437 at 446 (Dixon CJ); Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118 (Gibbs J); Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [131] –[137] (Gummow J); Wei v Minister for Immigration & Border Protection [2015] HCA 51; 257 CLR 22 at [33] (Gageler and Keane JJ).

34    Subject to these matters, it is for the Commission and not for the Court to be satisfied whether the performance of work by the regulated employees is for the provision of a service, rather than the supply of labour by the labour hire employer. Likewise, subject to these limits on the legality of the decision making process, it is for the Commission to make findings of fact, assess those facts, give weight to them as determined appropriate, and characterise the performance of the work of the regulated employees being for one purpose or another to reach the necessary state of satisfaction required by s 306E(1A). Errors in respect of these matters would ordinarily be within jurisdiction, as opposed to being in excess of jurisdiction.

35    There was no dispute before us as to the purpose served by ss 306E(1A) and (7A) of the FW Act. The purpose of these subsections can be readily gleaned from the text and structure of s 306E read as a whole. Section 306E(1A) prevents the Commission from making a regulated labour hire arrangement order unless the Commission reaches a positive state of satisfaction that the performance of work by the employees supplied to the regulated host is not, or will not be, for the provision of a “service” rather than for the supply of labour. And, s 306E(7A) specifies the matters to which the Commission is required to have regard for the purpose of reaching the state of satisfaction (or not) under s 306E(1A).

36    The history by which ss 306E(1A) and (7A) came to be inserted into the FW Act was set out by the Commission in its reasons at PD [18]–[21]. As there recorded, ss 306E(1A) and (7A) were not included in the initial amending Bill in their present form but were added during the parliamentary process which resulted in the enactment of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth). The clear intention of these subsections was to exclude from the operation of orders made under Part 2-7A instances where work is performed by employees of contractors that provide services beyond the mere supply of labour. This legislative purpose which is discernible from the text of ss 306E(1A) and (7A) is confirmed by both the initial Explanatory Memorandum (EM) and the Revised Explanatory Memorandum (REM) to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Bill): s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth).

37    As the Commission pointed out at PD [18]–[19], the initial version of the Bill sought to insert a different provision (s 306E(8)(b)), which would have made the question whether the performance of work by the regulated employees was for the provision of service, rather than the supply of labour to the regulated host, as one of the matters to be considered if a submission was made. The initial EM explained the provision as follows:

589.    New paragraph 306E(8)(b) would provide that the FWC may consider whether the work performed by the regulated employee is part of the provision of a specific service, rather than the supply of labour. This paragraph would recognise that employers often contract for the provision of specialised external services rather than for the provision of labour to undertake work that the employer engages in the ordinary course of its business. The Part does not intend to regulate contracting for specialised services. For example, a catering service contracted to provide catering for employees of a regulated host whose primary business is not the provision of catering services may be found to be the provision of a specialised service, even where the host employment instrument provided for the performance of work of the type provided by the service. New subparagraphs 306E(8)(b)(i)–(vi) would outline factors that would inform this consideration. Not all the factors listed would need to be satisfied for the FWC to find that the arrangement relates to the provision of a service rather than the provision of labour.

(Emphasis added.)

38    After the Bill was revised so as to insert the present form of ss 306E(1A) and (7A), the object remained the same but was articulated as a jurisdictional precondition to the Commission making an order. As the REM stated:

638. These provisions allow the FWC to assess the reality of the arrangement to determine whether it is, or is not, for the provision of a service and then decide, as a jurisdictional question, whether it is prevented from making an order.

39    As is plain from its text, s 306E(1A) requires the Commission to determine whether the “…performance of work by the regulated employees” is “for” the provision of a service, rather than the supply of labour. It is clear that the subsection seeks to ascertain the purpose of the performance of work by the regulated employees. The text of s 306E(1A) does not itself identify any specific test which is to be applied to determine the purpose of the performance of the work by the regulated employees. However, s 306E(7A) gives some context and content to the types of considerations which will bear upon the determination.

40    The extent to which the labour hire employer provides services beyond the mere supply of labour such that the work performed by the regulated employees is to be characterised as being for the purpose of the provision of service is likely to be a question of fact and degree in any given case. This is reinforced by the mandatory relevant considerations specified in s 306E(7A), including as to the involvement of the employer in matters relating to the performance of work (s 306E(7A)(a)), the extent to which in practice the employer supervises or controls the work (s 306E(7A)(b)), the extent to which the regulated employees use or will use systems, plant, or structures of the employer to perform the work (s 306E(7A)(c)), the extent to which the employer is subject to industry or professional standards (s 306E(7A)(d)), and the extent to which the work is of a specialist or expert nature (s 306E(7A)(e)). These inherently factual considerations indicate that in any given case the state of satisfaction reached by the Commission will be matters of evaluation and judgment.

41    As the Full Bench stated in Batchfire Callide (which the applicants embraced as being correct), the question posed by s 306E(1A) requires an inquiry as to whether the purpose of the performance of work by the regulated employees is “something more” than the supply of labour. The postulation as to “something more” than the supply of labour being required is a useful shorthand as to the inquiry called for by s 306E(1A) but is not a substitute for the legislative text. It may be differently expressed, but with the same substantive effect by asking whether there is something in addition to the supply of the labour of the regulated employees or something different to the mere supply of labour so as to characterise the purpose for which the work is being performed as being for the provision of a service.

42    Viewed this way, the inquiry called for by s 306E(1A) does not lend itself to expression in a test that can be manifested in a singular formulation of words to the exclusion of others.

43    As noted above, the Commission stated that the question posed by s 306E(1A) was one which involves characterising the work being performed by the regulated employees as being for the provision of an “identifiable and discrete service” to the regulated host “which is distinct from the supply of the labour” of the regulated employees. The applicants submitted that this formulation of words erected a test that sought to detach the “provision” of the “service” from the supply of labour. This contention sought to parse the Commission’s reasons and apply literal dictionary definitions to each concomitant word. During the course of oral argument, the applicants accepted that they did not challenge the proposition that for s 306E(1A) to operate, the relevant service has to be “identifiable”: T16.46-17.6. However, the applicants confirmed that they did challenge the proposition that the relevant service has to be discrete or distinct from the supply of the labour of the regulated employees: T17.7-18.41. As the argument developed, it became apparent that the applicant’s contentions proceeded from a narrow reading of the words “discrete” and “distinct” as is apparent from the following exchange:

WHEELAHAN J: How is that any different from saying that the service has to be different in some way from the mere supply of labour itself?

MR DALTON: It’s because “discrete” is not a – it doesn’t mean different. “Discrete” means separate, attached, distinct – narrower meaning of “distinct”. So “distinct” includes a narrower meaning, which connotes distinguishable, discernible. So if you want to convey “different”, you would say “identifiable”. And “distinct” perhaps amply covers that meaning, yet in this sentence – one sentence – highly experienced, legally trained lawyers, barristers on this tribunal who formulate what they describe as a core question, and the last sentence they choose three different words. “Discrete” is an additional adjective to “identifiable”. “Identifiable” means recognisable, discernible, and it’s those two qualities that the service must have that makes it distinct. So that combined quality feeds into “distinct”, and “distinct” – the meaning of the word “distinct” in its broader form includes separate.

WHEELAHAN J: So you don’t quarrel with the word “distinct”?

MR DALTON: On its narrower connotation, no, we wouldn’t quarrel with that, because “distinct” on a narrower connotation can mean just discernible or - - -

WHEELAHAN J: Or different.

MR DALTON: - - - distinguishable.

WHEELAHAN J: Yes.

MR DALTON: Yes. I think that’s the sense in which you’re referring to.

WHEELAHAN J: So that then focuses attention on - - -

MR DALTON: “And discrete”.

WHEELAHAN J: - - - “discrete”.

MR DALTON: Yes. It does.

WHEELAHAN J: So what’s the problem with that?

MR DALTON: The problem with that is that you will see – it’s a – so the normal and – the natural and ordinary meaning and the primary meaning of “discrete” is separate and detached. Okay. It can mean distinct, but in the context here it’s clear that they’ve used it in a different sense. They’ve used it to be an additional requirement for the service. So the service – it’s not enough for it to be identifiable. Okay. So if something is different, it’s identifiable. If something is identifiable, it’s different. Okay. It’s said, well, that’s not enough. And discrete.

44    The applicant’s contentions require a parsing of the Commission’s reasons to conform with one (but not the only) literal interpretation of the words “discrete” and “distinct”. We do not accept these submissions for two reasons.

45    First, it is to be borne in mind that the Commission’s reasons should be read fairly and as a whole, without an eye keenly attuned to error, and the Court should not be concerned with mere looseness of language or unhappy phrasing: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [59]–[60] (French CJ, Bell, Keane and Gordon JJ); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ).

46    Second, in any event, the ordinary meaning of the words “discrete” and “distinct” when read in context do not bear the meaning advanced by the applicants. The ordinary meaning of the word “distinct” includes a reference to something that is “different in nature or qualities; dissimilar” or “distinguished as not being the same; not identical; separate”: Macquarie Dictionary, (8th ed, 2020) “distinct” (defs 1 and 2). The ordinary meaning of the word “discrete” includes a reference to something that is “separate”. When read in context, each of these meanings is consistent with the Commission reasoning that the “provision of a service” has to be something different to or more than the mere supply of labour. In any given case, the service may be concomitant with the supply of labour or it may be in addition or separate to, or it may be something more than. It is neither useful nor helpful to seek to draw bright line tests or apply different formulations. It is sufficient that we are not satisfied that the Commission erred in erecting an incorrect test.

47    Nor are we satisfied that the Commission erred in misdirecting itself answering the question posed by s 306E(1A). As noted above, the gravamen of the applicants’ complaint about the formulation adopted by the Commission was that it erected a test which required the relevant service to be detached or disassociated from the supply of labour which would be near impossible in the provision of most services. In advancing this contention, the applicants contended that the Commission applied an approach which sought to identify some service provided by the OS Parties that was entirely separate to the supply of labour.

48    We do not agree with this analysis of the Commission’s reasons. When regard is had to the substance of the Commission’s reasons, we are not satisfied that it was seeking to ascertain whether the “service” was entirely separate or detached from the supply of labour as contended for by the applicants. Rather, the Commission’s reasons indicate that it was seeking to address itself to whether the service(s) provided by the applicants was (or were) identifiable and involved something different or in addition to the mere supply of the labour of the regulated employees.

49    The applicants contended that the opposite was true by reference to the way the Commission considered the “value add” services the OS Parties provide to the mines. Specifically, the applicants submitted that its “commercial offering” included the following “value add” services:

(a)    the delivery of agreed outcomes in Site Works Packages (SWPs) (rather than simply supplying the labour of individual workers or labour hours);

(b)    the attainment of performance and productivity outcomes as reflected by fact that the Framework Agreements between the OS Parties and BM Alliance set overarching contractual terms for all SWPs and the pricing model comprised fixed price and performance fee components such that these obligations placed ongoing responsibility for reaching those outcomes at the OS Parties’ feet, and established mechanisms to track that performance, manage underperformance, and to penalise the OS Parties for sustained underperformance;

(c)    the provision of dedicated corporate functional support (the cost of which was priced into each SWP and charged to BM Alliance as a corporate overhead);

(d)    the provision of employed site managers, superintendents, and supervisors to, amongst other things, roster, schedule and supervise the work of the regulated employees;

(e)    the provision of employed site-based technical and functional support staff in safety, training, mine and maintenance planning and reliability (all of which were priced into the SWP by their inclusion in ‘Personnel’ and ‘Personnel Costs’ and charged to BM Alliance with a margin);

(f)    “deep involvement” in long and short term mine and maintenance planning processes, primarily through on-site management and technical and planning specialists; and

(g)    implementation of initiatives and programs for training and development, including the “Mastery program”, delivered by on site trainers and supervisors employed by the OS Parties.

50    The applicants developed these arguments more substantively under Grounds 1B and 2, and we deal with those arguments below. For present purposes, it is convenient to observe at this juncture that the Commission did not disregard the various matters raised by the applicants as being indicative of the “value add” services it provided as part of its “commercial offering”. Nor did the Commission seek to detach the provision of these services from the supply of the labour of the regulated employees. Rather, as the Commission’s detailed reasons disclose, the Commission assessed the provision of these services to determine whether they were an aspect of the supply of the labour of the regulated employees, or whether they indicated the supply of some additional service and, if so, whether that was of significance to the question of characterisation raised by s 306E(1A). For example, as we address further below:

(a)    the Commission accepted that a purpose of the SWPs was to ensure that the OS Parties could deliver on agreed outcomes, but did not consider this to be a particularly significant factor as it was equally consistent with any labour hire provider needing to ensure that the labour it supplied achieved the outcomes set by the regulated host: PD [100]–[120];

(b)    the Commission accepted that there were performance measures contained in the Framework Agreements between the OS Parties and BM Alliance but concluded that this too was not a significant factor as the benefit of any such productivity improvements resulted in a reduction in the price payable to the OS Parties (including, necessarily, where less labour was required): PD [107]–[120];

(c)    the Commission accepted that the OS Parties had a separate organisational structure and provided site managers, superintendents, and supervisors, but did not regard this as significant in circumstances where any labour hire supplier would have its own organisational structure and, in any event, the OS Parties shared aspects of its structure with the BHP Group: PD [91]–[93]; and

(d)    the involvement of the OS Parties in the mine and maintenance planning processes was not a significant factor as BM Alliance had ultimate control: PD [121]–[122].

51    Putting to one side the fact that the evaluation of these matters and the weight to be given to them was a matter for the Commission, we do not discern in the approach taken by the Commission that it sought to detach the relevant services said to be provided by the OS Parties from the supply of the labour of the regulated employees. Rather, the Commission’s reasons disclose that it identified the relevant services which the OS Parties claimed were being provided and evaluated those services to weigh their significance in concluding whether the work performed by the regulated employees was for the provision of a service, rather than the supply of labour. We are not satisfied that it has been shown that the Commission erred in the way claimed.

52    For these reasons, Ground 1A is not established.

6.    GROUND 1B

53    The issue raised by Ground 1B relates to the Commission’s approach to the construction and application of the word “for” in the composite phrase “the performance of the work is not or will not be for the provision of a service, rather than the supply of labour”. The applicants submitted that the performance of work itself is not the subject of the characterisation called for by s 306E(1A). They submitted that:

…the ultimate subject was the thing for which the relevant employees were supplied to perform work. In each case, that ‘thing’ was the commercial ‘offering’ to which that work is directed: the contractual, commercial and practical relationship between OS and the regulated host was relevant to that question.

54    The applicants submitted that the Commission’s approach “effectively inverted that analysis” because it focussed on some aspects of the “broader offering” but only insofar as those matters assisted in “characterising the purpose or function of the work of the regulated employees”: PD [64(d)]. The applicants submitted that the error in this approach is that it is focussed on the performance of work itself.

55    We do not accept these contentions. As referred to above, the text of s 306E(1A) requires the Commission to determine whether the “…performance of work by the regulated employees” is “for” the provision of a service, rather than the supply of labour. There was no dispute before us that the word “for” connotes an examination of purpose. Here, the word “for” operates as a connector between “the performance of the work” and “the provision of a service” or “the supply of labour”. Thus, the word seeks to ascertain the purpose of the “performance of the work” of the regulated employees as between two things: either the “provision of a service” or the “supply of labour”. In addressing that question of purpose, the Commission is required to take into account the factors specified in s 306E(7A), together with other relevant matters.

56    The Commission reasoned at PD [29]–[30] that the question of purpose is not limited to a consideration of the commercial or contractual arrangements or the legal obligations as between the labour hire employer and the regulated host, and extends to an examination of the performance of those arrangements “in practice”. The Commission’s conclusion is supported by the mandatory considerations in s 306E(7A) which require the Commission to have regard to various aspects of the performance of the work. It was not suggested that the Commission’s reasoning at PD [29]–[30] was incorrect in these respects.

57    Section 306E(1A) does not refer to the Commission needing to be satisfied that the labour hire employer has a “broader offering” or a “value add” and these labels (whilst potentially useful in a given case) are a distraction from the question of the characterisation of the purpose of the performance of the work of the regulated employees as posed by the text of the subsection. We discern no error in the Commission’s articulation of that question of characterisation at PD [29]–[30] or its application throughout the balance of its reasons.

58    Despite not taking issue with the Commission’s reasoning at PD [29]–[30], the applicants submitted that the Commission erred by considering its “broader offering” and “value add” by reference to their impact on the performance of work by the regulated employees. It was submitted that this error manifested itself in various parts of the Commission’s dispositive reasoning.

59    First, the applicants submitted that at PD [91]–[93], the Full Bench described the applicants’ submissions concerning the nature and significance of the OS Parties’ separate organisational structures, reporting lines, functional support teams and the like as “by and large a distraction from the analysis required by s 306E(1A)” because “the focus of the assessment required by [s 306E(1A)] is upon the work performed by the regulated employees”. The applicants submitted that this reasoning highlighted the divergence between regarding the features of the “commercial offering” as demonstrative of the purpose for which the work was performed and regarding these matters as irrelevant as the Commission had done. This contention proceeds on an incorrect reading of the Commission’s reasons. The Commission did not say that the matters relating to organisational structures, reporting lines and functional support teams were irrelevant. Rather, at PD [91], the Commission was making the obvious point that the fact that the OS Parties had a separate organisational structure to BM Alliance and BHP Coal, and had functional support teams and the like, was largely a distraction on the evidence before it. The Commission reasoned that this was because a labour hire provider is likely to have organisational structures in place that are separate to those of the regulated host. Further, the Commission observed that, on the evidence before it, the separateness of the organisational structures claimed by the applicants was undermined by the fact that the OS Parties had a shared structure within the BHP Group, observing that the “Business Development and Commercial, Health, Safety and Security, Human Resources and Finance” functions all sat within the BHP Group. The applicants did not demonstrate how the Commission’s reasoning and findings in this regard are said to have established that the Commission did not correctly (let alone lawfully) examine the purposive question raised by s 306E(1A). The Commission’s reasons reflect an orthodox assessment and evaluation of the evidence before it. We do not regard the Commission’s reasoning here as manifesting any error, let alone a jurisdictional one.

60    Second, the applicants submitted that at PD [114]–[115] (read with PD [110]–[111] and [120]), the Commission largely disregarded the essential “value add” that the OS Parties provided beyond the supply of labour including all the management, supervision, technical and support services it provided. It was submitted that the costs of the personnel involved in these matters were priced into the charges for the services invoiced to BM Alliance. We do not regard this as a fair reading of the Commission’s reasons. As the Commission observed at PD [108], it was addressing a submission made by the applicants that the pricing and “metrics” contained in the Framework Agreements are focussed on “production and maintenance outcomes” (emphasis added) which was said to stand in contrast to typical labour hire arrangements where pricing was based on the cost of the supply of labour (through schedules of rates). In this part of its reasons (at PD [109]–[120]) the Commission found (on the evidence before it) that the price paid to the OS Parties was “overwhelmingly [reflective of] the cost of providing the labour of the workers performing maintenance or production work both direct employment costs and associated corporate overheads and on-costs” (emphasis added): PD [120]. As the Commission made clear, the pricing included the cost of “associated corporate overheads and on-costs”. Contrary to the applicants’ contentions, the Commission did not disregard the fact that the OS Parties supplied services beyond the supply of the labour of the production and maintenance employees. Rather, the Commission was addressing the fact that the price paid for the services provided by the OS Parties was largely reflective of the cost of those services and the additional overhead and on-costs. Again, we discern no error in the Commission’s orthodox assessment and evaluation of the evidence before it, let alone jurisdictional error.

61    Third, the applicants submitted that the Commission at PD [122] effectively rejected the significance of the evidence that there is arms-length negotiation of each SWP on the basis that “the question posed by s 306E(1A) is directed [at] the characterisation of the work performed by regulated employees once the site work package is issued”. Again, the applicants’ contentions in this respect belie a fulsome reading of the whole of the Commission’s reasons. At PD [121], the Commission observed that there was a dispute between the parties concerning the evidence relating to the issuing and negotiation of SWPs. In the balance of that paragraph, the Commission set out the evidence called by the applicants. At PD [122], the Commission accepted the evidence of the applicants, though expressed scepticism as to the degree to which the negotiations could be characterised as arms-length. The Commission then proceeded at PD [122] to reason as follows:

… We accept, in broad terms, the evidence we have just described. However, we do not believe the evidence can be treated as having a significant impact on the assessment we are required to make under s 306E(1A). Whatever process of negotiation precedes BMA issuing a site work package to OS Production or OS Maintenance, the question posed by s 306E(1A) is directed as the characterisation of the work performed by regulated employees once the site work package is issued. The process which leads up to issuing a site work package is of limited relevance. The evidence that the discussions in relation to OS Maintenance commonly include the “precise type and number of pieces of equipment that need to be serviced” might be said to contemplate the provision of a service. In our opinion, it is equally consistent with determination of the number and skills of the employees required and it is equally probable that the same discussions would be undertaken with a regulated employer supplying labour rather than providing a service.

(Emphasis added.)

62    The Commission did not regard the point raised by the applicants as being irrelevant, as opposed to it not having a “significant impact” on the question posed by s 306E(1A). We discern no error in the Commission seeking to frame that evidence by reference to the essential question of characterisation raised by s 306E(1A) as to the purpose for which the work was performed. The point the Commission was making was that the fact that there was arms-length negotiation of the SWPs was not particularly significant in addressing that essential question of characterisation as it was not unique or uncommon in a labour hire context for there to be negotiation of the number and type of employees to be supplied. Again, we discern no error, let alone jurisdictional error in the Commission’s reasons in this regard.

63    It follows that Ground 1B is not made out.

7.    GROUND 2

64    By Ground 2, the applicants relied upon a series of errors that the Commission is alleged to have made by reason of the wrong test it applied. As we have rejected Grounds 1A and 1B, it follows that Ground 2 should also be rejected. In any event, we are not satisfied that the errors alleged by Ground 2 are established.

65    As to the first error, the applicants submitted that the concomitant effect of the errors in Grounds 1A and 1B was that the Commission failed to determine whether the OS Parties each supplied employees in conjunction with other “valuable and substantive activities and functions” which were a “service”. The applicants submitted that there was extensive evidence as to the OS Parties’ “deep involvement” in mine planning, and the day-to-day supervision and direction of the regulated employees. The applicants submitted that the Commission disregarded the OS Parties’ involvement in these matters because it wrongly did not view them as “a discrete service” rather than the supply of labour: PD [175]. Yet again, these contentions belie a fulsome reading of the Commission’s reasons.

66    At PD [154] ff, the Commission turned to consider the matters to which it was required to have regard under s 306E(7A). It first addressed 306E(7A)(a), which required it to have regard to the “involvement” of the labour hire employer in “matters relating to the performance of work”: PD [155] ff. In doing so, the Commission had regard to a number of matters raised by the parties. Relevantly, at PD [173]–[174], the Commission made the following findings:

(a)    a process of consultation takes place in relation to the preparation of mine and maintenance plans and this is done with the involvement of employees of the OS Parties: PD [173];

(b)    specifically, the management or supervisory employees of OS Production and OS Maintenance are involved in the process of the development of the mine and maintenance plans and that involvement is “more than incidental and is intended to permit OS Production and OS Maintenance to provide substantive feedback in relation to the contents of the plans”: PD [174];

(c)    bona fide attempts are made to reach agreement with respect to the content of the relevant plans and this constituted involvement on the part of the OS Parties in the mine planning process which, in turn, constituted involvement in matters relating to the performance of work by regulated employees for the purposes of s 306E(7A)(a): PD [174];

(d)    however, BM Alliance has final control of the mine and maintenance planning process, and understandably could consult with the OS Parties, but it could require OS Production and OS Maintenance, as applicable, to comply with the content of the mine plans and maintenance plans it determines are appropriate: PD [173] and [175];

(e)    the involvement of the OS Parties in matters was, to some extent at least, qualified by the fact that their employees must work in accordance with mine plans and maintenance plans promulgated and ultimately determined by BM Alliance: PD [174].

67    It was by reference to these matters, that the Commission concluded at PD [175] that:

In those circumstances, we do not believe the involvement of managerial and supervisory employees of OS Production and OS Maintenance in the mine planning process, or the development of maintenance plans, goes very far to support the contention that the Commission should not be satisfied the performance of work by the employees is not for the provision of a service, rather than the supply of labour. It is to be expected that a mine operator will consult with its own employees, and employees of other employers who perform work at the mine at appropriate levels of authority, in relation to the program for work at the mine. That is unlikely, in itself, to say very much in relation to whether the performance of work by the employees of the employer involves provision of a discrete service rather than the supply of labour.

68    When regard is had to the entirety of the Commission’s reasons, it is apparent that the Commission was satisfied that the OS Parties had some involvement in the performance of work of the regulated employees, but it was limited and did not go very far in satisfying the Commission that the performance of work by the employees was not for the provision of a service, rather than supply of labour. We discern no error in the Commission’s assessment of the evidence in reaching the state of satisfaction required by s 306E(1A).

69    The second error alleged by the applicants relates to the Commission’s assessment of the evidence relating to the pricing structure under the SWPs. The applicants submitted that the Commission “wrongly based its decision on an assessment that the pricing structure under SWPs made pursuant to the [Framework Agreements] was in each case ‘overwhelmingly’ determined by the cost of employing the regulated employees to perform work for the regulated host”. The applicants submitted that the pricing structure said little about the question of characterisation raised by s 306E(1A). At PD [107]–[120], the Commission gave careful consideration to the basis upon which price was determined by reference to the SWPs including the applicable pricing structure and formula. Importantly, the Commission made findings at PD [116]–[119] (based on the evidence) that the pricing was adjusted to reflect reductions in labour needs due to productivity savings, reinforcing that the price was largely driven by the cost of the labour supplied. The Commission concluded at PD [120] that:

The evidence to which we have referred supports a finding that the price paid to OS Maintenance and OS Production by BMA overwhelmingly reflects the cost of providing the labour of the workers performing maintenance or production work both direct employment costs and associated corporate overheads and on-costs. The price is also, at least prospectively, adjusted in the event that there is a reduction in the costs of the provision of services, including labour costs, such that the benefit accrues to BMA. In those circumstances, the contractual arrangements with respect to price, and the evidence concerning the payments in fact made to OS Production and OS Maintenance, support the conclusion that the performance of work by employees of OS Production and OS Maintenance should be characterised as involving the supply of labour and not for the provision of a service.

70    The Commission’s reasons disclose a careful assessment of the evidence. We discern no error.

71    The third error raised by the applicants relates to the Commission’s assessment of the evidence as to the type of labour supplied by the OS Parties relative to the employees engaged by BHP Coal. The applicants submit that the Commission wrongly based its decision at PD [267(b), (c), (d), and (e)] on two aspects of BM Alliance’s business, namely, that it also supplied additional services akin to the additional services being provided by the OS Parties and that BHP Coal employees carried out similar work to the regulated employees which the Commission treated as offsetting its earlier finding that the relevant work was otherwise of a specialist or expert nature. The applicants submitted that these findings were irrelevant because (a) whether BM Alliance also engaged in other or additional services akin to those being provided by the OS Parties could not rationally bear upon the proper characterisation of the supply of labour by the OS Parties, and (b) having concluded that the OS Parties supplied “specialist or expert” labour it was irrelevant that those employees performed the same or similar work compared with the work performed by the regulated host’s employees.

72    It is again necessary to consider the Commission’s reasons in their proper context. At PD [156] ff, the Commission turned to consider and have regard to the extent to which the work of the regulated employees is of a “specialist or expert nature” as required by s 306E(7A)(e). At PD [265], the Commission accepted that the work performed by the employees of the OS Parties at the respective mines was, “in a general sense, of a specialist or expert nature” and that the work of maintenance employees was “probably of a more specialist or expert nature”. However, the Commission reasoned that s 306E(7A)(e) did not merely require the Commission to have regard to whether the work of the regulated employees is “specialist or expert” in nature but the “extent to which” it is: PD [262]. The Commission further reasoned that s 306E(7A)(e) was one matter amongst others to which it was required to have regard as part of the overall assessment required by s 306E(1A): PD [263]. In assessing these matters, the Commission considered that it was relevant that, although the work of the regulated employees was of a specialist or expert nature, it was work of the same nature that was being performed at the respective mines by other workers contracted by BM Alliance, including the employees of the regulated host, BHP Coal. As to these matters, the Commission stated at PD [263]–[264]:

…The fact that the work is of specialist or expert nature might suggest the work is for the provision of a service rather than the supply of labour because, for example, the nature of the work limits the extent to which the regulated host can supervise or control the work or that the work is for the purpose of providing a service distinct from the operations of the regulated host. That is likely to be the case if the work involves specialised knowledge, skills or techniques or expertise which is not part of the usual operations of the regulated host.

If, on the other hand, the work of the regulated employees is of the same nature, and involves the same specialised knowledge, skill or expertise as the work of employees of the regulated host, the specialised nature of the work may say little about whether the work is for the provision of a service, rather than the supply of labour. To put it another way, if the employer supplies expert or specialist employees to perform work of the same nature as employees of the regulated host, the specialist or expert nature of the work is unlikely to be inconsistent with the conclusion that the employer is supplying labour. That is because the specialist or expert nature of the work will, in those circumstances, not suggest that the work involves the provision of a distinct service or affect the capacity of the regulated host to control or supervise the work.

73    The applicants contended that these considerations were “irrelevant” without identifying the legal basis for that contention. The applicants did not submit that the Commission’s assessment of these matters were irrelevant considerations, but otherwise did not develop the submission: cf Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39–40 (Mason J). The applicants appeared to take issue with the rationality or logicality of the Commission’s reasoning in that it was said that s 306E(7A)(e) “eschews” any comparison between the work performed by the regulated employees and those of the regulated host, such that its focus is solely on the work performed by the regulated employees. However, this criticism of the Commission’s reasoning fails to have regard to the fact that the Commission, having concluded that the work of the regulated employees was of a specialist or expert nature, was evaluating its significance in the overall assessment required by s 306E(1A). The similarity of the work of the regulated employees and those of the regulated host was one basis upon which the Commission did not consider significant weight should be attached to the specialist or expert nature of the work of the regulated employees. The Commission made this plain at PD [266]:

However, in the overall assessment required by s 306E(1A), we do not believe significant weight can be attached to the specialist or expert nature of the work of employees of OS Production and OS Maintenance. The fact that BHP Coal employees perform the same work, involving the same skills and expertise, and the performance of that work is part of the usual operations of the mines, means that the specialist or expert nature of the work does not, in this case, go very far to support a conclusion that the work is for the provision of a service. The specialist or expert nature of the work does not suggest BMA cannot control or supervise the work, or that the work is for the provision of a service distinct from the operations of BMA. The specialised or expert nature of the work is equally consistent with the conclusion that the work involves the supply of skilled labour.

74    We discern no error, let alone jurisdictional error, in the Commission’s evaluation not to attach significant weight to the specialist or expert nature of the work of the regulated employees.

75    The final error raised by the applicants relates to the Commission’s assessment of the evidence relating to the safety and health management system (SHMS) as being indicative of the OS Parties having a relative lack of control over work and systems. The applicants submitted that although there were several ways in which BM Alliance exercised control (including by the application of Standard Operating Procedures (SOPs) and Safe Work Instructions (SWIs) issued pursuant to the SHMS prescribed under the Coal Mining Safety and Health Act 1999 (Qld)), these instances of control gave the Commission “no useful guidance in evaluating the statutory pre-requisite in s 306E(1A)” because the SHMS applied equally to all workers at the relevant sites, whether they be employees of BHP Coal, one of the OS Parties or other third party contractors who work at the mine. It was submitted that the universal application of these systems, procedures and instructions rendered those matters incapable of assisting in determining the question posed by s 306E(1A).

76    This complaint is again one which impugns the weight which the Commission attached to a matter of relevance. It was submitted to the Commission that the exercise of control by BM Alliance was “irrelevant” to the extent that it was based on the discharge of its statutory obligations relating to safety: PD [189]. In response to these submissions, the Commission recognised that these aspects of control exercised by BM Alliance were based on statutory obligations. However, the Commission at PD [191] did not regard the exercise of such control as being “irrelevant” to the question posed by s 306E(1A). As the Commission there reasoned:

Furthermore, the fact that an aspect of the direction, supervision or control by the regulated host may be the consequence of its statutory obligations does not render it irrelevant for the purposes of s 306E(7A)(b). Section 306E(7A)(b) requires the Commission to have regard to the extent to which the employer, in practice, directs, supervises or controls the regulated employees when they perform work. If the extent of the direction, supervision or control exercised by the employer is limited because that function is performed, or substantially performed, by the regulated host, that must still be considered, whatever the reasons for the regulated host doing so. The Commission may take into account the full circumstances of the case, including the role the statutory obligations of the regulated host play in the way the work is supervised and controlled. The fact that statutory obligations of the regulated host might influence the distribution of responsibilities in relation to the performance of work by regulated employees does not render limitations on the extent of the direction, supervision or control by the employer irrelevant. The extent of, and limitations upon, the direction, supervision or control exercised by the employer must be taken into account.

77    We discern no relevant error in the Commission’s assessment and evaluation of the weight to be given to these matters.

78    It follows that Ground 2 is not made out.

8.    SUPPRESSION AND NON-PUBLICATION ORDERS

79    The applicants sought that certain information contained in the materials filed with the Court be made the subject of suppression and non-publication orders made under s 37AF of the FCA Act. It was submitted that such orders should be made on the ground specified in s 37AG(1)(a) because the relevant information was “commercially sensitive” and had been made the subject of confidentiality orders made by the Commission. The applicants submitted that commercially sensitive information may form a sufficient basis for the grant of orders under s 37AF of the FCA Act: citing Clime Capital Ltd v UGL Pty Ltd (No 2) [2020] FCA 257 at [15]–[17] (Anastassiou J) and the authorities there cited. The applicants further submitted that given the confidentiality orders made by the Commission remain in place, it would tend to prejudice the proper administration of justice if they did not remain the subject of protection by orders made by this Court.

80    The respondents did not oppose the application for the making of suppression and non-publication orders. Nor was there any contest as to whether the relevant information was commercially sensitive.

81    We are satisfied that the relevant information (which is identified in the orders that we have made) is commercially sensitive. It consists of pricing sums and formulae, margins, revenue data, pricing variations, overhead costs, insurance costs, contract key performance indicators, and the like. This information is not in the public domain and we are satisfied that it would be detrimental to the commercial interests of the applicants if it were to be disclosed. We are satisfied it is necessary to make suppression and non-publication orders in respect of this information to prevent prejudice to the proper administration of justice. The making of such orders ensures that the Court’s processes should not result in the value of confidential information being susceptible to abuse by competitors or other persons: Clime Capital at [17]. In those circumstances, it is unnecessary to decide whether the orders should be made on the basis that the Commission had made confidentiality orders in respect of the same information.

82    The applicants submitted that the orders should be made until further order. We do not accept that the orders should be left open-ended in this way. For the purpose of ss 37AJ(1) and (2) of the FCA Act, we consider that a period of 10 years is one that is no longer than is reasonably necessary to achieve the purpose for which the orders are to be made having regard to the likely period in which commercially sensitive information of the type covered by the orders we have made will remain current in a commercial context.

9.    DISPOSITION

83    For the foregoing reasons, the application for judicial review should be dismissed. The orders sought under s 37AF of the FCA Act should be made.

Associate:

Dated:    19 December 2025