Federal Court of Australia

Skilled Workforce Solutions (NSW) Pty Ltd v Mining and Energy Union [2025] FCAFC 195

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari be issued quashing the regulated labour hire arrangement order (LH200018 PR784646) made by the Fair Work Commission on 21 February 2025 in proceedings LH2024/10.

2.    A writ of mandamus be issued to compel the Fair Work Commission to hear and determine according to law the application in proceedings LH2024/10.

3.    A writ of certiorari be issued quashing the regulated labour hire arrangement order (LH200021 PR785173) made by the Full Bench of the Fair Work Commission on 13 March 2025 in proceedings C2024/4712.

4.    A writ of mandamus be issued to compel the Fair Work Commission to hear and determine according to law the application in proceedings C2024/4712.

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    In December 2023, new Federal industrial legislation commenced, which had the effect, amongst other amendments, of conferring power on the Fair Work Commission (Commission) to make “regulated labour hire arrangement orders” under Part 2-7A of the Fair Work Act 2009 (Cth) (the FW Act). Such orders seek to have the effect of ensuring that where an employer supplies or will supply employees to another employer to perform work, and the host employer is covered by an employment instrument, the employees so supplied will receive no less than the full rate of pay the employees would receive if they were employed by the host employer. The three judicial review applications before this Court concern regulated labour hire orders made by the Commission under Part 2-7A and whether the Commission’s decisions were vitiated by jurisdictional error in the exercise of their power under s 306E to make the impugned orders.

2    The three judicial review applications arise out of and are directed to the following:

(a)    in the first application (NSD493/2025), the applicant (Skilled) seeks judicial review of a “regulated labour hire arrangement order” (RLHA Order) made by a Deputy President of the Commission concerning its employees who are employed to perform work at the open cut coal mine at Mt Arthur (Mt Arthur Mine) operated by Mt Arthur Coal Pty Ltd (Mt Arthur) (the Mt Arthur RLHA Order): see Re Mining and Energy Union [2025] FWC 866 (Mt Arthur Decision or MD);

(b)    in the second application (NSD496/2025), Skilled seeks judicial review of the RLHA Order made by a Full Bench of the Commission concerning its employees who are employed to perform work at the open cut coal mine at Bengalla (Bengalla Mine) operated by Bengalla Mining Company Pty Ltd (Bengalla) (the Bengalla RLHA Order): Re Bengalla Mining Company [2025] FWCFB 53 (Bengalla Decision or BD); and

(c)    in the third application (NSD1636/2025), Mt Arthur Coal seeks judicial review of the Mt Arthur RLHA Order.

3    The present applications raise issues as to the power conferred upon the Commission to make RLHA Orders under s 306E(1) of the FW Act and the scope of those Orders. The arguments advanced by Mt Arthur and Skilled (referred to collectively as the applicants) had a degree of overlap. The applicants’ contentions may be summarised as follows:

(a)    in relation to the Mt Arthur RLHA Order:

(i)    Mt Arthur contends that the Commission erred by making the Mt Arthur RLHA Order under s 306E(1) in circumstances where the cohort of regulated employees specified in the RLHA Orders went beyond the evidence before the Commission such that the Commission could not have reached the state of satisfaction required by s 306E(1) as to the making of the Order: Ground 1 in NSD1636/2025 (the Cohort Ground);

(ii)    both Mt Arthur and Skilled contend that the Commission erred in making the Mt Arthur RLHA Order by failing to specify the “regulated employees” covered by the order in “precise” terms as alleged to be required under s 306E(9)(c) of the FW Act: Ground 1 in NSD493/2025; Ground 2 in NSD496/2025 (the Specificity Ground); and

(iii)    the RLHA Orders are uncertain and void: Ground 2 in NSD493/2025; Ground 3 in NSD496/2025 (the Uncertainty Ground);

(b)    in relation to the Bengalla RLHA Order, Skilled did not press Ground 1 of its application but contended that the Order was beyond power by reference to the Specificity and Uncertainty Grounds.

4    For the reasons that follow, we are satisfied that orders in the nature of certiorari should be made quashing, respectively, the Mt Arthur Order and Bengalla RLHA Order and an order in the nature of mandamus should issue directing the Commission to redetermine the relevant applications according to law.

2.    THE RELEVANT STATUTORY PROVISIONS

5    Part 2-7A was inserted into the FW Act as a consequence of the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (Cth) (Closing Loopholes Amendment Act). That legislation introduced large number of amendments not only to the FW Act but to other industrial legislation including the Asbestos, Safety and Eradication Agency Act 2013 (Cth) and the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the Work Health and Safety Act 2011 (Cth). Without being exhaustive, amendments to the FW Act concerned not only labour hire agreements, but concerned the small business exemption, workplace delegate’s rights, the expansion of protected attributes from discrimination in various parts of the Act, criminal offence provisions with respect to wage theft and right of entry provisions.

6    The Revised Explanatory Memorandum (Revised EM) for the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 explained the purpose of Part 2-7A as, “[p]rotecting bargained wages in enterprise agreements from being undercut by the use of labour hire workers who are paid less than those minimum rates”.

7    The primary section that empowers the Commission to make such Orders is s 306E, which provides 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).

(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.

(3)     For the purposes of paragraph (1)(a), it does not matter:

(a)     whether the supply is the result of an agreement, or one or more agreements; or

(b)     if there are one or more agreements relating to the supply— whether an agreement is between:

(i)     the regulated host and the employer; or

(ii)     the regulated host and a person other than the employer; or

(iii)     the employer and a person other than the regulated host; or

(iv)     any 2 persons who are neither the regulated host nor the employer; or

(c)     whether the regulated host and employer are related bodies corporate.

Note: If related bodies corporate with different corporate branding do not provide labour to each other, a regulated labour hire arrangement order cannot be made because labour is not supplied in the way mentioned in paragraph (1)(a).

(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.

Regulated employee and host employment instrument

(5)     An employee referred to in paragraph (1)(a) is a regulated employee.

(6)     The covered employment instrument referred to in paragraph (1)(b) is a host employment instrument.

Who may apply for an order

(7)     The following persons may apply for the order:

(a)     a regulated employee;

(b)     an employee of the regulated host;

What an order must specify

(9)     A regulated labour hire arrangement order must specify:

(a)     the regulated host covered by the order; and

(b)     the employer covered by the order under this section; and

(c)     the regulated employees covered by the order under this section; and

(d)     the host employment instrument covered by the order; and

(e)     the day the order comes into force, which must be:

(i)     if the order is made before 1 November 2024--that day or a later day; or

(ii)     otherwise--the day the order is made or a later day.

What an order may specify

(10)     A regulated labour hire arrangement order may specify when the order ceases to be in force.

Note: For variation and revocation of a regulated labour hire arrangement order, see section 603.

8    As further expanded upon below, the central dispute between the parties concerned the proper construction of ss 306E(1), (2), (5) and (9).

9    The effect of an RLHA Order made under s 306E of the Act is that s 306F requires that a covered employer entity must pay a covered regulated employee no less than "the protected rate of pay" being the rate payable to the regulated employee if the host instrument applied to their employment. It relevantly provides as follows:

306F     Protected rate of pay payable to employees if a regulated labour hire arrangement order is in force

Application of section

(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).

10    The balance of Part 2-7A sets out a series of obligations applicable once an RLHA Order is made. None of these were directly relevant to the dispute between the parties, but they do shed some light on the purpose and context of the disputed provisions. We will return to these provisions in brief later in these reasons.

11    It is next necessary to briefly outline the relevant facts as they were applicable to the Commission’s determination of the Mt Arthur and Bengalla RLHA Orders.

3.    BACKGROUND FACTS

12    In both proceedings before the Commission relating to the Mt Arthur Mine (LH2024/10) and the Bengalla Mine (C2024/4711 and C2024/4712), the respective parties adduced evidence by way of witness statements. None of the witnesses were required for cross-examination, and the relevant witness statements were tendered without objection. In both proceedings, the Commission made factual findings based on the unchallenged evidence.

13    In this Court, the parties did not dispute the findings that were made by the Commission in each proceeding, though they sought to support their respective contentions by emphasising different aspects of the evidence that was before the Commission.

3.1    Mining operations at the Mt Arthur and Bengalla Mines

14    Both the Mt Arthur and Bengalla Mines are “open cut mines”. It was common ground that both Mines operate dragline, truck and excavator mining methods to extract coal and then transport it to a Coal Handling and Preparation Plant (CHPP): BD [6]. In general terms, 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 a hopper or designated coal stockpile area: BD [6]. The coal then undergoes crushing, washing and treatment at the CHPP and is loaded onto rail cars for transportation: BD [6].

15    It was also common ground that operational workforce at both the Mt Arthur and Bengalla Mines is divided into four groups being production, maintenance, coal handling and a preparation and blast crew: BD [7].

3.2    The Mt Arthur Mine

16    In proceedings LH2024/10, relating to the Mt Arthur Mine, the MEU filed an application on 26 September 2024 seeking an RLHA Order that would apply to Mt Arthur as the regulated host and Skilled as the employer. The order sought was to apply to employees of Skilled who perform work at the Mt Arthur Mine who would be covered by the Mt Arthur Coal Enterprise Agreement 2023 (Mt Arthur EA). Clause 3 of the Mt Arthur EA provides as follows:

3     PARTIES TO THE AGREEMENT

This Agreement covers and applies to the following parties:

•    Mt Arthur Coal Pty Limited ("Company"); and

•    Employees employed by the Company who perform work covered by Schedule A of the Black Coal Mining Industry Award 2020.

The Agreement also covers the Mining and Energy Union (MEU).

This Agreement is binding on all of the above parties.

17    In turn, Schedule A of the Black Coal Mining Award sets out classifications for Production and Engineering Employees.

18    The Mt Arthur Mine comprises two separate mining areas: Mt Arthur North and Mt Arthur South: MD [4]. Mt Arthur is responsible for all aspects of the operations at the Mt Arthur North site. Mt Arthur is part of the group of companies owned by BHP Group Limited (BHP Group). The Mt Arthur South site is operated separately: MD [4].

19    Skilled has come to supply labour to the Mt Arthur Mine pursuant to an agreement entered into between Programmed Skilled Workforce Ltd (Programmed) and Hunter Valley Energy Coal Pty Ltd (HVEC). Programmed owns all of the shares in Skilled. Skilled employs the labour supplied in accordance with the agreement between Programmed and HVEC. HVEC is part of the BHP Group and owns the haul trucks and other equipment that are operated at the Mt Arthur Site.

20    The relevant agreement between Programmed and HVEC is recorded in the terms of the “Services Contract”. The Services Contract commenced operation on 1 November 2021, and had an initial expiry date of 31 March 2024. It has subsequently been extended through a series of amending deeds. The evidence before the Commission was that, initially, the Services Contract operated as a “managed services” arrangement whereby Skilled was essentially contracted to deliver haul truck services at the Mt Arthur Mine and Mt Arthur provided the necessary infrastructure to deliver the services (including a fleet of around 70 haul trucks, offices and other infrastructure including light vehicles, and crib facilities), and Skilled planned, scheduled, managed and delivered the services according to the key performance indicators set out in the Services Contract.

21    On 24 November 2023, the Services Contract was amended and from that point onward the arrangement operated as a traditional labour hire contract whereby Skilled provides labour to the Mt Arthur Mine to operate haul trucks with these services being charged at an hourly rate for each hour of labour provided, and all work is scheduled and managed by Mt Arthur (though Skilled still provides some front-line supervisors for the operators) (Amended Services Contract). Schedule 1 to the Amended Services Contract sets out the Scope of Services and outlines the purpose as follows:

The purpose of the Services is the provision of haul truck operators with adequate supervision and support to effectively minimise haul truck down time due to no operator delay, and optimise haul truck productivity at Mount Arthur Coal (MAC) within the Company’s overarching policies, procedures, directions, systems and frameworks.

22    Clause 3.1 of Schedule 1 of the Amended Services Contract specified the Services as including the operation of haul trucks.

23    At the time that the application was made, Mt Arthur directly employed more than 216 employees who undertook mining work and whose rates of pay were fixed by the Mt Arthur EA. There were approximately 247 people employed by Skilled who were covered by a different enterprise agreement, the Skilled Workforce Solutions (NSW) Agreement Pty Ltd Enterprise Agreement 2019 (Skilled EA). It was common ground that Skilled’s employees were paid a much lower rate of pay than Mt Arthur’s employees working under the Mt Arthur Agreement.

24    The unchallenged evidence was that Skilled employed the following type of employees who were supplied to work at the Mt Arthur Mine:

(a)    12 fuel attendants;

(b)    109 haul operators classified as ML2s under the Skilled Agreement;

(c)    126 haul operators classified as ML3s under the Skilled Agreement.

25    As will be apparent from the above, the employees supplied by Skilled were limited to fuel attendants and haul operators. As we will return to below, the applicants emphasised that Skilled did not supply any other type of labour. The applicants further emphasised that, although the Mt Arthur EA and BCMI Award covered both “Production employees” (covering Mining, Coal Handling and Service workers) and “Engineering employees” (both mechanical and electrical) but that Skilled was only supplying a subset of Production employees. For its part, the MEU submitted that the evidence before the Commission established that employees of Skilled who were supplied to perform work as haul operators were, in fact, being required or directed to perform other types of work and were being afforded opportunities for career development into different roles.

26    In making the Mt Arthur RLHA Order, the Commission was satisfied of the following matters for the purpose of s 306E(1):

(a)    Skilled supplies employees employed by Skilled to perform work for Mt Arthur at the Mt Arthur Mine involving production work: MD [34(a)];

(b)    the Mt Arthur EA would apply to employees of Skilled who are supplied to perform work for Mt Arthur if it were to employ those employees directly to undertake the same kind of work: MD [34(b)];

(c)    Mt Arthur is not a small business employer: [34(c)].

27    Having reached these states of satisfaction, the Commission then turned to consider the terms of the RLHA Order in circumstances where both Mt Arthur and Skilled submitted that such an order should be confined to “haul truck operators”: MD [39]ff. The Commission rejected these submissions for reasons which we address further below. Ultimately, the Mt Arthur RLHA Order was made in the following terms:

A.     Further to the hearing today the Fair Work Commission makes this regulated labour hire arrangement order (Order) pursuant to s 306E of the Fair Work Act 2009 (Cth) (FW Act).

A.1     The regulated host covered by the Order is Mount Athur Coal Pty Ltd (the Regulated Host).

A.2     The employer covered by the Order is Skilled Workforce Solutions (NSW) Pty Ltd (the Employer).

A.3     The regulated employees covered by the Order are employees of the Employer who perform work at Mt Arthur North site near Muswellbrook in the State of New South Wales who would, if employed by the Regulated Host, be covered by the host employment instrument identified in A.4 (the Regulated Employees).

A.4     The host employment instrument covered by the order is the Mt Arthur Coal Enterprise Agreement 2023 [AE5203] ( the Host Employment Instrument).

B.     This Order comes into force on 7 March 2025.

28    As will be apparent from the above, the Mt Arthur RLHA Order covers all employees of Skilled who perform work at the Mt Arthur North Mine and is not limited to only those employees who are presently being supplied to work at that Mine. This factual circumstance is at the centre of the dispute between the parties.

3.3    The Bengalla Mine

29    In proceedings C2024/4711 and C2024/4712, the MEU filed an application on or about 12 July 2024 seeking an RLHA Order that would apply to labour hire workers employed by Skilled to perform work for Bengalla who would be covered by the Bengalla Enterprise Agreement 2022 (Bengalla EA).

30    Clauses 1.2 and 1.3 of the Bengalla EA provide as follows:

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.

31    Clause 1.9 of the Bengalla EA defines “technician” as follows:

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.

32    The relevant labour hire arrangement is recorded in the terms of Contract for the Supply of Services (and Associated Goods) between Bengalla and Programmed (Bengalla Supply Contract). Unlike the position in relation to the Mt Arthur Amended Services Agreement, it was not suggested that the Bengalla Supply Contract was limited to the supply of employees to drive or otherwise operate haul trucks. Nevertheless, it was submitted that the employees supplied by Skilled to Bengalla were limited to a subset of “Production employees” and did not extend to “Engineering employees”.

33    At the time that the application was made, Skilled employed 156 workers who were supplied to perform work at the Bengalla Mine covered by the Skilled Agreement. In relation to these employees:

(a)    73 were trainees performing work as part of a training arrangement under the Apprenticeship and Traineeship Act 2001 (NSW);

(b)    69 were employed in the classification of Mineworker Level 3 performing production work and predominantly operating haul trucks;

(c)    two were employed in the classification of Mineworker Level 3 performing “bench hand work” assisting drill and blast operators employed by Bengalla;

(d)    four were employed in the classification of Mineworker Level 2 and do not have significant experience in a mining setting but have transferable skills and experience in heavy equipment operation in a quarry, on a farm or other similar environment;

(e)    eight were employed on a casual basis in the classification of Mineworker Level 3 performing work as “Wash Technicians”.

34    In making the Bengalla RLHA Order, the Commission was satisfied of the following matters for the purpose of s 306E(1):

(a)    Skilled supplies employees employed by Skilled 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”: BD [74(a)];

(b)    there was no dispute between the parties that the Bengalla EA would apply to employees of Skilled supplied to perform work at the Bengalla Mine if those employees were directly employed by Bengalla to undertake the same kind of work (with one exception relating to “wash technicians”): BD [74(b)];

(c)    Bengalla is not a small business employer: [74(c)].

35    Relevantly, the Commission considered the terms of the RLHA Order in circumstances where Skilled (again) submitted that such an order should only apply to “production employees” and should contain other exclusions: see BD [135]ff. The Commission rejected these submissions for reasons which we address further below. Ultimately, the Bengalla RLHA Order was made in the following terms:

A.     Further to the decision issued in [2025] FWCFB 53, the Fair Work Commission makes this regulated labour hire arrangement order (order) pursuant to s 306E of the Fair Work Act 2009 (Cth) (the Act).

A.1     The regulated host covered by the order is Bengalla Mining Company Pty Ltd (the regulated host).

A.2     The employer covered by the order is Skilled Workforce Solutions (NSW) Pty Ltd.

A.3     The regulated employees covered by the order are employees of Skilled Workforce Solutions (NSW) Pty Ltd who perform work at the Bengalla Coal Mine near Muswellbrook in the State of New South Wales who would, if employed by Bengalla Mining Company Pty Ltd, be covered by the host employment instrument identified in A.4 (the regulated employees).

A.4     The host employment instrument covered by the order is the Bengalla Enterprise Agreement 2022 [AE517092].

B.     This order ceases to be in force where the Host Employment Instrument ceases to apply and no other new employment instrument starts to apply pursuant to s 306EB of the Act.

C.     This order comes into force on 13 April 2025.

36    As with the Mt Arthur RLHA Order, the dispute between the parties centred on the width and scope of the Bengalla RLHA Order in light of the text and context of s 306E.

4.    THE SCOPE OF SKILLED’S GROUNDS OF JUDICIAL REVIEW

37    Before setting out our reasons in relation to the respective grounds of review, it is necessary to say something about Skilled’s grounds of judicial review.

38    There was a distinct lack of clarity as to Skilled’s position in relation to the Cohort Ground and how it intersected with the Specificity Ground. In the affidavit of its solicitor in support of the Originating Application in the proceedings relating to the Mt Arthur RLHA Order (NSD 493/2025), Skilled specified its grounds of review as follows:

Ground 1

The Fair Work Commission erred by failing to specify the regulated employees covered by the RLHAO, as required by section 306E(9)(c) of the Fair Work Act 2009 (Cth) (FW Act).

Particulars

A.     On a proper construction of s 306E(9)(c), the Fair Work Commission was under a duty to specify the regulated employees by reference to the matters about which it is required to be satisfied in s.306E(1)(a). This requires the RLHAO to identify the regulated employees covered.

B.     Alternatively, at a minimum, the regulated employees must be specified by reference to the work performed by them, as found on the basis of the evidence.

C.     The Fair Work Commission failed to discharge its task, instead specifying other regulated employees by reference to the coverage of the host employer's instrument.

D.     The Fair Work Commission thus made an order that went beyond the evidence of the work and the regulated employees that was before it.

E.     The Fair Work Commission has purported to make the RLHAO in respect of employees not before it in the evidence, for which no assessment under ss 306E(1 )-(2) was possible. This is both an error on the face of the RLHAO and jurisdictional error.

Ground 2

The Fair Work Commission erred by making a RLHAO that is uncertain and void.

Particulars

A.     The Commission's duty was to make a RLHAO that made explicit and unambiguous the obligations on the parties to be subject of the RH LAO.

B.     In particular, the RLHAO fails to specify that the future provision of services to Mt Arthur Coal Pty Ltd would not be the subject of any prohibition under the order.

C.     The RLHAO's failure to make explicit and unambiguous the above matter makes the RHLAO void for its uncertainty. In the alternative, it was a jurisdictional error to not make the RHLAO without specifying the above matter.

39    These grounds and particulars were repeated in the affidavit of Skilled’s solicitor in support of the Originating Application in the proceedings relating to the Bengalla RLHA Order (NSD 496/2025).

40    As will be apparent from the above, the two primary grounds of review advanced by Skilled in each proceeding are that the Commission erred by, first, failing to specify the “regulated employees” covered by the RLHA Orders as required by s 306E(9)(c) and, second, by making such Orders that were uncertain and void. The particulars to the first ground contend that, on a proper construction of s 306E(9)(c), the Commission was under a duty to specify the regulated employees by reference to the matters about which it is required to be satisfied about under s 306E(1)(a) and thereby identify the regulated employees to be covered by the RLHA Order. Alternatively, the particulars assert that the RLHA Orders must at least specify the “regulated employees” by reference to the work performed by them as found on the evidence before the Commission. Skilled’s contention is that the Commission failed to discharge its duties by failing to specify the regulated employees other than by reference to the coverage of the host employer’s instrument and made an order that went beyond the evidence and in respect of which it had made no assessment under s 306E(1) and (2).

41    During the course of oral argument, Counsel for Mt Arthur addressed the Cohort Grounds, whereas Counsel for Skilled addressed the Specificity and Uncertainty Grounds. Skilled submitted that it embraced and relied upon Mt Arthur’s submissions in relation to the Cohort Ground to support its position in relation to the Specificity and Uncertainty Grounds. However, it was not entirely clear how these grounds intersected in light of Skilled’s grounds of review. This requires a brief explanation.

42    Putting to one side the particulars that Skilled relied upon, its grounds of judicial review on their face are directed to contending that the Commission erred in making an RLHA Order that did not “specify” the “regulated employees” as required by s 306E(9)(c) and that this also made the relevant Orders uncertain and void. On one view, Skilled’s grounds of review did no more than seek to take issue with the form of the respective RLHA Orders. However, Skilled contended during oral submissions, and during the course of further supplementary oral submissions, that its grounds of review did not merely take issue with the form of the respective RLHA Orders but took issue with them in light of the express elements of the statutory text and context contained in s 306E of the FW Act. It was submitted that this was the force of the particulars to its grounds of review and which it had addressed in its written submissions.

43    The MEU submitted that Skilled’s grounds of review were narrow and only took issue with the form of the respective RLHA Orders. The MEU further submitted that it was prejudiced as it had no notice that Skilled’s contentions were broader than what they were, and that it was particularly prejudiced in relation to the Bengalla RLHA Order as it had not had an opportunity to consider the evidentiary basis upon which those orders had been made.

44    The position advanced by Skilled is far from satisfactory, but we consider it to be correct that its grounds seek to challenge the respective RLHA Orders more than as to form. It should have been made clear that Skilled’s actual contention is that the respective RLHA Orders are in excess of power because the Commission had misunderstood or misconstrued the statutory task at hand, with the specification of the regulated employees being a function of that error. Mt Arthur’s grounds of review should have also made the same point clear, as it was also essentially the point that Mt Arthur advanced.

45    We do not consider the MEU to be prejudiced from the Court accepting Skilled’s submissions as to the tenor of its grounds of review. That is so because the particulars to the grounds of review do raise the points that Skilled advance (though they were not as clear as they could be) and those matters were addressed in Skilled’s written submissions. Further, we do not consider that the precise evidence before the Commission in relation to the Bengalla RLHA Orders makes a difference to the conclusion we have reached as to the Commission having misconstrued its statutory task.

5.    THE COHORT GROUND

46    The resolution of the Cohort Ground requires determination of the proper construction of ss 306E(1)(a) and (b) of the FW Act. The applicants and the MEU had diametrically opposed approaches to the construction of the provisions, which are useful to set out.

5.1    Mt Arthur’s Submissions

47    Mt Arthur’s central submission was that the Commission erred by making the Mt Arthur RLHA Order under s 306E(1) in circumstances where the scope of the cohort of “regulated employees” specified in that Order went beyond the evidence before the Commission which largely concerned employees principally engaged to perform haul truck driving work. It submitted that the evidence before the Commission was limited to employees of Skilled who were principally engaged to perform haul truck driving work and did not extend to different work such as maintenance work or the operation of dozers and loaders.

48    Having regard to the limited evidence before the Commission, Mt Arthur submitted that the Commission could not have reasonably been satisfied of each of the matters in ss 306E(1) and 306E(1A) of the FW Act in relation to each regulated employee to whom the Mt Arthur RLHA Order was expressed to cover. It was contended that, whilst s 306E(1) confers a degree of latitude and subjectivity, the provision nonetheless requires that the state of satisfaction reached by the Commission must be one which could be formed on a correct understanding of the law under which they are acting (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42, 69 CLR 407, 430 (Latham CJ)) and the state of satisfaction must be supported by probative material or logical grounds (Minister for Immigration v Eshetu [1999] HCA 21, 197 CLR 611 [147] (Gummow J)).

49    Mt Arthur’s contentions focussed upon ss 306E(1)(a) and (b) of the FW Act. In advancing its preferred construction of these provisions, Mt Arthur submitted that:

(a)    s 306E(1)(a) requires the Commission to be satisfied whether there is a current supply of employees (by reason of the word “supplies”) or definite future supply of employees (by reason of the words “will supply”) to perform particular work for a regulated host.

(b)    the “work” upon which s 306E(1)(a) focuses “can only be sensibly understood as referring to the functions performed, and the duties undertaken, by the employees for the regulated host”: relying upon a decision of the Full Bench of the Commission in Application by the Mining and Energy Union re Rix’s Creek [2025] FWCFB 12 (Gibian VP, Saunders DP and Grayson DP) (Rix’s Creek) at [30];

(c)    s 306E(1)(b) poses a hypothetical question as to whether a covered employment instrument “would” apply to the employees in s 306E(1)(a) if they were employed by the regulated host to perform “work of that kind” and in respect of which the “work” referred to in the subsection is a reference to the work in s 306E(1)(a);

(d)    the expression “work of that kind” in s 306E(1)(b) refers to the same consideration in s 306E(1)(a) being “the nature of the work performed by employees, in the sense of the tasks, duties and responsibilities assumed by the employees”: relying upon Rix’s Creek at [29];

(e)    s 306E(1)(b) requires the Commission to make factual findings about the work performed by the supplied employees (including any required qualifications, the tasks undertaken and the skills exercised) for the regulated host and then a determination as to whether that work is of a kind so as to make the covered employment instrument applicable to the relevant employees if they were directly employed by the regulated host;

(f)    the findings made by the Commission for the purpose of ss 306E(1)(a) and (b) bear upon the balance of the matters that the Commission is required to reach a state of satisfaction about including ss 306E(1A) and (7A) and ss 306E(2) and (8);

(g)    in particular, the mandatory considerations in s 306E(7A) which the Commission has to consider for the purpose of reaching a state of satisfaction under s 306E(1A) reinforce the need for there to be a precise identification of the work and kind of work being performed or to be performed by the employees referred to in s 306E(1)(a) to enable a proper examination of the considerations necessary to reach a state of satisfaction that the “performance of the work” is not or will not be “for the provision of a service, rather than a supply of labour”;

(h)    s 306E(5) defines a “regulated employee” as being an employee referred to in s 306E(1)(a) such that the legislature intended that the Commission be satisfied as to the existence of such employees and the work they were or would be performing, which is reinforced by s 306E(9)(c) which requires the Commission, in making an order, to specify the regulated employees.

50    Having regard to the above, Mt Arthur submitted that the Commission could not have reached the proper state of satisfaction required by ss 306E(1)(a) and (b) on the basis of the unchallenged evidence. In support of these matters, Mt Arthur submitted that the unchallenged evidence was that:

(a)    the Mt Arthur Amended Services Deed defined Skilled’s scope of services as “the operation of…haul trucks” and pertained to the provision of adequate supervision and management for that contractor workforce including as to training and administration;

(b)    the Mt Arthur Amended Services Deed described the purpose of the services as “the provision of haul truck operators with adequate supervision and support to effectively minimise haul truck down time due to no operator delay, and optimise haul truck productivity at Mount Arthur Coal (MAC) within the Company’s overarching policies, procedures, directions, systems and frameworks”;

(c)    Skilled’s employees working at the Mt Arthur Mine were exclusively engaged as haul truck driver (also called “dump truck” drivers);

(d)    whilst there was some evidence that one or more employees may have operated vehicles other than haul trucks, that was to a limited extent (e.g. water cart operators and fuel attendants) and, in any event, did not extend beyond those classes of production employees;

(e)    Skilled did not supply any other type of production employees and did not supply any engineering employees.

51    Mt Arthur emphasised that there was not “a skerrick of evidence that Skilled employees perform maintenance/engineering work” at the Mt Arthur Mine as there was no such evidence. Despite this, the Mt Arthur RLHA Order would cover such employees. Mt Arthur submitted that such an approach took the purposive construction of Part 2-7A too far.

52    In light of these matters, Mt Arthur contended that the evidence was insufficient to support “properly formed states of satisfaction” under ss 306E(1)(a), 306E(1)(b) and 306E(1A) that could support the Mt Arthur RLHA Order which would apply to any type of labour that Skilled might supply beyond that which it was in fact supplying or was required to supply.

53    During the course of supplementary oral submissions, Mt Arthur submitted that the error could also be characterised as one where the Commission formed states of satisfaction based on a misconception of the statutory power and that the error was capable of different categorisation but ultimately involved an excess of power: citing Kirk v Industrial Court (NSW) (2010) 239 CLR 531 and One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC 77; 262 FCR 527 at [109]-[117] (Bromberg, Katzmann and O’Callaghan JJ).

5.2    MEU’s Submissions

54    The MEU took an entirely different view and approach to the proper construction of ss 306E(1)(a) and (b) of the FW Act. It submitted as follows:

(a)    the purpose of Part 2-7A is to “close loopholes” by which bargained for and negotiated wage rates in enterprise agreements may come to be “undercut” by the use of labour hire arrangements;

(b)    the ‘loophole’ allows employers (regulated hosts) who are a party to enterprise agreements (and other defined instruments) made under the FW Act to employ employees through labour hire employers at rates of pay less than those paid by the regulated host to its own employees under the enterprise agreement it is bound to conform to - by doing this, regulated hosts “avoid the obligation to pay a higher rate of pay to employees who are covered by enterprise agreements made under the Act”;

(c)    Part 2–7A ‘closes the loophole’ when an order under s 306E is made by the Commission that applies to employees provided by, or to be provided by, the labour hire employer to perform work for a regulated host that is of the kind covered by an enterprise agreement (or one of the instruments known in Part 2-7A as ‘host employment instruments’);

(d)    the “loophole” is closed by s 306F(2) which creates an obligation on labour hire employers to pay its employees working for the regulated host no less than the rate of pay in the enterprise agreement that binds the regulated host in respect of its own employees;

(e)    s 306E is at the centre of the statutory scheme under which the Commission once satisfied about the matters in s 306E(1), “must make an order which specifies all employees provided by, or to be provided by, the labour hire employer to the regulated host to perform work as ‘regulated employees’”;

(f)    an order must not be made if s 306E(1A) or (2) apply but otherwise the Commission is bound to make an order, which has the effect under s 306F(2) that requires the labour hire employer to pay employees no less than the rate of pay prescribed by the regulated host’s own enterprise agreement;

(g)    having regard to the purpose of Part 2-7A, the role conferred upon the Commission by the legislature was an “anodyne” exercise of reaching states of satisfaction as to bare and non-complex facts as to whether (i) the labour hire employer was in fact supplying employees to the host employer or would be doing so, and (ii) whether the employees so supplied were performing work of a kind that would be covered by the host employer’s industrial instrument;

(h)    once the Commission is satisfied of the matters in s 306E(1), its function is, in a sense, “robotic” in that it “must” make an RLHA Order in a form which conforms with s 306E(9);

(i)    consistently with the purpose, the text contained in the chapeaux to s 306E(1) is such that the Commission’s power to make an RLHA Order is binary: if the Commission is satisfied of the matters in subsections (a) to (c) it “must” make an order and, if it is not satisfied of those matters, it may not make such an Order;

(j)    as s 306E(1)(a) requires the Commission to be satisfied that the labour hire employer is supplying or will supply its employees to perform work for the regulated host, the inquiry in relation to both the Mt Arthur and Bengalla mines was comfortably satisfied as the evidence established that Skilled was in fact supplying labour to Mt Arthur and Bengalla;

(k)    as s 306E(1)(b) requires the Commission to be satisfied that a covered industrial instrument applicable to the regulated host would apply to “the employees” if the regulated host were to employ the employees to perform work of that kind, that inquiry here was also comfortably satisfied in that the Mt Arthur EA was a covered industrial instrument and it would apply to the employees supplied by Skilled if they were employed by Mt Arthur to perform the kind of work that they were performing;

(l)    s 306E(1)(c) was not in issue such that once the Commission was satisfied as to the matters required by subsections 306E(1)(a) and (b), the Commission was compelled to make an RLHA Order and it was not open to the Commission to make an order that was limited to a smaller or limited cohort of employees supplied by Skilled to Mt Arthur;

(m)    the considerations in s 306E(1A) were irrelevant as Mt Arthur had conceded before the Commission that the performance of the work was not “…for the provision of a service”;

(n)    the definition of “regulated employee” in s 306E(5) and the specification of employees for the purpose of s 306E(9)(c) was clear in that the making of an order by reference to the class of employees provided by Skilled to Mt Arthur whose work was of a kind that would be covered by the host employers agreements, and such an order was rational because it accorded with language the host employers and the labour hire companies understood, was consistent with the evidence about the work that the employees who were provided were doing and was clear.

55    In advancing these contentions, the MEU submitted that Mt Arthur’s submissions as to the proper construction of ss 306E(1)(a) and (b) were acontextual and did not accord with the evident purpose of Part 2-7A of the FW Act to “close loopholes” in that it required the Commission to engage in speculation as to what type of labour might be provided by Skilled in the future and which might be amenable to change. The MEU submitted that the purpose of an RLHA Order was to protect the integrity of the rates of pay in enterprise agreements by ensuring that the width of the RLHA Order would enable those rates of pay to be protected upon the Commission being satisfied that the labour hire entity was supplying labour or would be supplying labour. It was contended that Mt Arthur’s submissions would lead to an undermining of those protected wage rates by focussing too narrowly on the specific class of employees presently being supplied by Skilled to Mt Arthur or those that were in contemplation. It was said that this would lead to a piecemeal approach whereby the MEU would need to make further applications every time a new type of employee was supplied by Skilled to Mt Arthur.

56    The MEU submitted that the piecemeal approach was magnified by the facts in the present case given that the evidence established that the employees supplied by Skilled were performing work beyond that of operating haul trucks and were integrated into Mt Arthur’s site specific career and skill enhancement progressions such that they could be deployed in the future to perform other tasks. The MEU submitted that there was unchallenged evidence before the Commission which included:

(a)    evidence that almost all employees provided by Skilled performed work driving haul trucks;

(b)    evidence that the same employees also drove other vehicles such as minibuses and light vehicles in circumstances where such work was not “incidental” to their primary duties;

(c)    evidence that some employees were performing other types of work such as work at the crib hut and refuelling facilities which was not limited to the operation of haul trucks;

(d)    evidence that labour provided by Skilled included supervisors, operators, cleanskins, crew trainer, training schedulers and production performance specialists with the number of people performing these roles fluctuating.

(e)    evidence that the Mt Arthur Amended Deed also expressly imposed a requirement for Skilled “to provide adequate support to minimise haul truck down time due to no operator delay, and optimise truck productivity…” and there was no evidence that Skilled might in future perform work for Mt Arthur under a contract for service or to perform work at the Mt Arthur Mine.

5.3    Skilled’s Submissions

57    As noted above, Skilled embraced and supported Mt Arthur’s submissions in respect of both the Mt Arthur RLHA and Bengalla RLHA Orders. During the course of supplementary oral submissions, Skilled relied upon Kirk at [72] in support of the contention that the jurisdictional error committed by the Commission could be categorised in different ways, but the essential point was that the Commission had misunderstood its statutory task.

5.4    Consideration

5.4.1    Text, context and purpose

58    The resolution of the issue in dispute between the parties requires an application of settled principles of statutory construction.

59    It is to be firmly borne in mind that the process of statutory construction is one aimed at attributing meaning to statutory text: Palmanova Pty Ltd v Commonwealth [2025] HCA 35 (Gageler CJ, Gordon, Jagot and Beech-Jones JJ) at [4].

60    As was recently emphasised in Palmanova at [4], it is a process which “…begins and ends with the statutory text understood in context and in light of the statutory purpose being what the provision is designed to achieve in fact — insofar as that purpose is discernible from the statutory text and context”. Context is to be considered “in the first instance, not merely at some later stage when ambiguity might be thought to arise”: Palmanova at [5]. And, as further stated Palmanova at [5]:

‘context‘ in its widest sense…include[s] such things as the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”. Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context.

61    It is of course necessary to construe the relevant text in a way that gives a meaning that “would best achieve the statutory purpose” which is “to be preferred to each alternative meaning”: Palmanova at [4].

62    In the present case, the parties sought to support their respective contentions by appeals to statutory purpose. On the one hand, the MEU contended that the clear purpose of Part 2-7A was to “close loopholes” and, on the other hand, Mt Arthur and Skilled did not gainsay that it was the overall purpose of Part 2-7A to close loopholes but contended that such sweeping statements as to purpose had to be tempered by the fact that the relevant obligations contained in Part 2-7A imposed serious civil penalty consequences for non-compliance. Both these contentions may be accepted, but only so far as they go.

63    As we will shortly explain, Parliament clearly intended Part 2-7A to be inserted into the FW Act to protect the rates of pay contained in enterprise agreements in circumstances where labour hire employees are engaged to perform work that would be covered by those enterprise agreements. Parliament also intended for there to be detailed obligations imposed on labour hire employers and regulated hosts, with civil penalty consequences for non-compliance or avoidance. However, to identify Parliament’s intended purpose at these levels of abstraction is unhelpful. As Gleeson CJ stated in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5]:

Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose.

64    The essential purpose of the process of statutory construction is to determine the meaning to be given to the relevant words. As Heydon J stated in Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; 201 ALR 260; [2003] HCA 54 at [33] (McHugh ACJ, Gummow, Kirby, Hayne JJ agreeing):

To begin consideration of issues of construction by positing that a "liberal", "broad", or "narrow" construction will be given tends to obscure the essential question, that of determining the meaning the relevant words used require. Although the purpose of the Act is beneficial, it does not follow that recovery is contemplated for every act of violence or every consequence that could be described as an injury. The numerous injuries set out in the Table to Sch1 (which extends over twelve pages) are identified with considerable precision. The clauses in Sch1 which precede the Table, too, are drafted with some attempt at precision. The legislation confers benefits, and no doubt it should not be construed restrictively, but in dealing with specific limited words like those of cl5, it is not open to apply much liberality of construction. It is difficult to state the legislative purpose except at such extreme levels of generality that it is not useful in construing particular parts of the legislative language. As Spigelman CJ said: "The issue before the Court is the determination of the circumstances in which compensation is payable." The legislation has endeavoured to define these circumstances in precise language which does not permit universal recovery; and hence "[t]he Court is not required to give the most expansive possible interpretation of such circumstances".

See also New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232 339 ALR 367; [2016] HCA 50 at [32]–[33] (French CJ, Kiefel, Bell and Keane JJ) at [91]-[94] (Gageler J), [146] and [174] (Nettle and Gordon JJ).

65    In the present case, the words contained in s 306E(1)(a) and (b) fall to be determined having regard to the overall objects of the FW Act as well as by reference to the specific purposes of Part 2-7A.

66    Section 3 of the FW Act provides that its objects are as follows:

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

(a)     providing workplace relations laws that are fair to working Australians, promote job security and gender equality, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and

(b)     ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and

(c)     ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and

(ca)     ensuring a safety net of fair and relevant minimum terms and conditions for regulated workers through enforceable minimum standards orders and related measures; and

(caa)     ensuring a safety net of fair and relevant minimum terms and conditions for persons in a road transport contractual chain through enforceable road transport contractual chain orders and through road transport contractual chain guidelines; and

(cb)     providing appropriate remedies in relation to unfair terms of services contracts; and

(d)     assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and

(e)     enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

(f)     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; and

(g)     acknowledging the special circumstances of small and medium - sized businesses.

67    For present purposes, the object of a balanced framework for cooperative and productive workplace relations, and the more specific purpose of achieving productivity and fairness through collective bargaining at an enterprise level, is given effect to (amongst other parts) through Part 2-4 which facilitates and regulates the making of enterprise agreements. It may be accepted that enterprise agreements are intended to reflect the negotiated bargain made between an employer and a collective of employees who by a valid majority have agreed to make an agreement, though that is too simplistic a characterisation: e.g., see Toyota Motor Corp Australia Ltd v Marmara (2014) 222 FCR 152 at [87]ff (Jessup, Tracey and Perram JJ).

68    At a general level of abstraction, one of the specific purposes of Part 2-7A is the protection of the rates of pay contained in enterprise agreements made between regulated hosts and their employees against the prospect or reality that those rates of pay may be undercut or otherwise undermined by the supply of employees through labour hire arrangements. That this is a specific purpose of Part 2-7A is clear from the operation of ss 306E and 306F which have the effect that once an RLHA Order is made, the labour hire employer is required to ensure that “regulated employees” are paid “no less than” the “protected rate of pay” as determined by reference to the “host employment instrument”. The operation of these provisions is clearly intended and designed to protect the rates of pay in the host employment instrument. This fact is confirmed in the Revised EM, which states that:

604.     If the FWC made the order, employers that supply labour to a host and are covered by the order would generally be required to ensure that employees working as part of the arrangement are paid no less than the rate at which they would be paid under the host employer’s enterprise agreement if they were directly employed (the protected rate of pay). In this way, the orders would protect bargained rates in enterprise agreements that host businesses have negotiated with their employees from being undercut by the use of labour hire.

(Emphasis added.)

69    However, identifying the purpose of Part 2-7A does not answer the meaning to be given to the words in ss 306E(1)(a) and (b).

70    The MEU repeatedly emphasised that s 306E(1) was to be construed in a way that gives effect to the Parliamentary intention to firmly “close the loophole”. It should be immediately observed that Part 2-7A was not the only subject matter of the Closing Loopholes Amendment Act (as adverted to above). A number of amendments were made to the FW Act, and other Commonwealth industrial and safety statutes. In one sense, the phrase “close the loophole” (used in the language of the title to the Amendment Act) posits a useful vernacular by which to ascertain that the legislature intended to close-off what it considered to be loopholes, including so as to empower the Commission to make orders to protect the rates of pay contained in host employment instruments. However, the phrase is unhelpful in the resolution of the interpretive question before the Court. As we will explain, both the MEU’s and Mt Arthur’s contentions would have the effect that the so-called “loophole” would be closed, save that, on Mt Arthur’s case, the loophole would be closed to the extent of the evidence as to the employees actually being supplied or that will be supplied to perform work for the regulated host whereas, on the MEU’s case, the Commission would be empowered to close the loophole irrespective of the limits of that evidence. It is the extent of the closure of the so-called “loophole” that is in issue.

71    Neither Mt Arthur nor Skilled disputed the fact that Part 2-7A was inserted into the FW Act to protect rates of pay bargained for and negotiated in enterprise agreements. However, they emphasised that (as we will return to below) that Part 2-7A also enacts an array of obligations and serious civil penalty consequences which meant that precision was required in the making of RLHA Orders. As with the MEU’s submissions, these contentions were also of little assistance. The fact that Part 2-7A enacts serious civil penalty consequences says little about the meaning to be attributed to the words contained in ss 306E(1)(a) and (b).

72    The parties’ respective submissions as to purpose merely posited a convenient reference point from which they sought to buttress their respective arguments. That paid scant regard to attributing meaning to the words contained in s 306E(1).

5.4.2    No textual, contextual or purposive support for the binary operation of s 306E

73    The text of s 306E(1) states what the Commission “must” do when an application is made by a “person mentioned in subsection (7)”. The persons who may make an application for such an order include (a) a regulated employee, (b) an employee of the regulated host, (c) an employee organisation that is entitled to represent the interests of either of those types of employees, or (d) the regulated host. When such an application is made, the text of s 306E(1) provides that the Commission “must” make “an” order if it is satisfied of the matters specified in ss 306E(1)(a), (b) and (c). However, each of ss 306E(1A) and 306E(2) make clear that “Despite subsection (1)” the Commission “must not make the order” if it is satisfied of certain circumstances.

74    The MEU’s contentions placed central significance on the making of an application to the Commission which it submitted gives the Commission a binary choice of either making the order sought or not. It was submitted that this conferred and afforded no discretion on the Commission to make some other order than that which is sought. There were two bases upon which this submission was put: the first textual and, the second, purposive.

75    As to text, the MEU emphasised that the jurisdictional pre-requisite for the Commission’s power being invoked is an “application” made “by a person in subsection (7)”. It submitted that the application is the reference point from which the Commission “must” make an order. The MEU submitted that the text of ss 306E(1A) and (2) reinforced this fact as they specify the circumstances in which the Commission “must not make the order”, seeking to emphasise here the definite article. The MEU submitted that the definite article (“the order”) in ss 306E(1A) and (2) was a reference to the order sought in the application. It was further submitted that ss 306E(9) specified what must be specified in the order, and s 306E(10) specified what may be specified in the order and there was otherwise no discretion conferred upon the Commission to make any other form of order. It was in this sense that the MEU submitted that the Commission’s exercise of power in making the order was something akin to being “robotic”.

76    The MEU contended that this reading of s 306E accorded with the purpose of Part 2-7A of the FW Act that, if satisfied of the matters in s 306E(1), the Commission must close the “loophole” by making the order that is sought. In this respect, it contended that the inquiry that the Commission is to make in reaching the relevant state of satisfaction required by s 306E(1) is of limited scope. As noted above, it referred to this as involving an anodyne examination of non-complex questions:

(a)    is the labour hire employer supplying either directly or indirectly one or more of its employees to perform work for a regulated host, or will it supply either directly or indirectly one or more of its employees to perform work for a regulated host; and

(b)    if the answer is yes, would a covered employment instrument that applies to the regulated host apply to those employees (i.e., the ones being supplied or to be supplied) if the regulated host were to employ the employees to perform work of that kind; and

(c)    if the answer is yes, the loophole must be closed by making the RLHA Order.

77    This aspect of the MEU’s submission again had a textual and purposive aspect to it. As to text, the MEU submitted that the words in ss 306E(1)(a) and (b) did not limit their scope to only those employees presently being supplied or about which there was evidence that they would be supplied. The MEU submitted that the subsections did not call for such a factual inquiry, and contended that this would be inconsistent with the statutory purpose. It submitted that the simple purpose was that once the Commission is satisfied that at least one or more employees were actually performing work, or would be doing so, and those employees would be covered by the relevant host’s industrial instrument, the loophole had to be closed.

78    We do not agree with the MEU’s submissions. We find insufficient textual, contextual or purposive support for the contention that s 306E of the FW Act confers upon the Commission a binary choice between making the order sought in an application or not making that order.

79    The text of s 306E(1) provides that the Commission must make “an order” on the application made by a person mentioned in s 306E(7). We see no basis to read the words “an order” as meaning “the order” that is sought by the relevant applicant.

80    Nor do we consider that the deployment of the definite article in ss 306E(1A) and (2) (“the order”) is to be read as meaning that the Commission must only make “the order” that is sought in the application made to it. Importantly, s 306E(1) contains a defined term. It defines “an order” that the Commission must make (if relevantly satisfied of the matters in (a) to (c)) as “a regulated labour hire order”. In our view, the reference to “the order” in ss 306E(1A) and (2) is a reference to the defined noun, “a regulated labour hire arrangement order” in s 306E(1), as opposed to being the order sought in the application made to the Commission. Other subsections of s 306E indicate that the words “the order” are intended to be read this way and are also used interchangeably with the defined term. For example, s 306E(7) provides that “The following persons may apply for the order…” whereas ss 306E(9) and (10) refer to what “A regulated labour hire arrangement order” (emphasis added) must or may specify.

81    Sections 306E(1A) and (2) provide further textual, contextual and purposive support for rejecting the MEU’s contention that the Commission is bound to make a binary choice to make an order in the form that is sought by the relevant applicant or to reject it.

82    Starting first with s 306E(2), it is notable that it provides that “Despite subsection (1)”, the Commission “must not make the order” if it is satisfied that it is not “fair and reasonable in all the circumstance to do so, having regard to any matters in subsection (8) in relation to which submissions have been made”. This provision plainly confers upon the Commission the task of conducting a broad evaluative assessment as to whether it is “fair and reasonable” to make “a regulated labour hire arrangement order”. The parties did not contend that the factors in s 306E(8) were exhaustive as to the matters that the Commission is to take into account, and we have proceeded accordingly. That subsection requires the Commission to have regard to a range of matters including the history of industrial arrangements, the relationship between the regulated host and the labour hire employer and the terms of the arrangement under which work is to be performed. The inherently evaluative task of assessing the fairness and reasonableness of making an order does not sit conformably with the Commission being required to make a binary choice between making only the order that is sought or rejecting it, especially where some other order would be warranted on the evidence before the Commission. For example, if by reference to those factors, the Commission was satisfied that it was fair and reasonable to make an order in relation to a part but not all of a relevant workforce, we see no principled reason in the text of ss 306E as to why it would not do so.

83    Section 306E(1A) provides that the Commission 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)”. Again, as with s 306E(1), we see no textual or other reason why the Commission would not make an order if it was satisfied that it is only some but not all employees whose performance work is for “the provision of a service, rather than the supply of labour.”

84    It is also important to observe that an application may be made to the Commission by one of four different types of persons, including potentially by a single regulated employee, a group of employees, or by the regulated host, or by one registered organisation but not another. We see no principled reason based on the text of s 306E(1) that the Commission is bound to make an order in the form that is sought by the relevant applicant(s) where it would not be warranted on the evidence. For example, a regulated host may make an application that is on more narrow terms than that which may be warranted, or a rival registered organisation may make a different application altogether, or a single regulated employee may make an application only to apply to himself or herself. There are undoubtedly other possibilities. When met with some of these possibilities, the MEU submitted that the Commission could choose not to make the order in the form that is sought and dismiss the application. Whilst we can accept that may be an available option, it would tend to undercut the MEU’s submission that the purpose of the provision is to close loopholes. It would be an odd result for Parliament to have intended the Commission to close a so-called “loophole”, but not if an application made to the Commission has not been framed in terms to capture the loophole.

85    It is instructive that Parliament conferred the power to make RLHA Orders on the Commission, which is a specialist tribunal enacted under the FW Act to deal with a broad range of employment and industrial matters under the FW Act. Section 627 of the FW Act provides that the President, Vice Presidents, Deputy Presidents and Commissioners of the Commission must at least have knowledge of, or experience in, one or more of the fields of workplace relations, law, or business, industry or commerce. Section 577 of the FW Act provides that, amongst other things, the Commission must perform its functions and exercise its powers in a manner that is “fair and just” and “quick, informal and avoids unnecessary technicalities”. And, sections 585 and 586 require that applications to the Commission must be made in accordance with its procedural rules, but the Commission may allow a correction or amendment on any terms it considers appropriate or waive an irregularity in the form or manner in which an application is made. All of these provisions indicate that Parliament intended that the Commission would exercise its usual powers in dealing with applications made under Part 2-7A. None of these provisions suggest that the Commission would exercise its powers in the binary way for which the MEU contended.

86    It follows that we do not accept the MEU’s contention that the Commission’s power to make an order is binary.

5.4.3    The construction of ss 306E(1)(a) and (b) and their relationship with s 306E(9)

87    It is next necessary to address the parties’ respective contentions as to the state of satisfaction that the Commission is required to reach for the purpose of ss 306E(1)(a) and (b) of the FW Act.

88    There was little, if any, difference between the parties as to the proper meaning of s 306E(1)(a). It was accepted that this subsection requires the Commission to reach a state of satisfaction as to whether the labour hire employer is supplying or will be supplying, either directly or indirectly, one or more employees of the labour hire employer to perform work for a regulated host. This subsection requires a factual inquiry as to whether, in fact, employees are being supplied to perform work for a regulated host, or whether they will be supplied to perform such work.

89    Relevantly, s 306D(3) of the FW Act provides that, to avoid doubt, in determining whether “work is or is to be performed for a person by an employee of an employer, it does not matter whether there is or will be any agreement between the person and the employer relating to the performance of work”. Further, s 306E(3) clarifies that for the purpose of s 306E(1), “it does not matter” whether the supply of employees is the result of one or more agreements, or whether it is an agreement between the labour hire employer and the regulated host (where there is more than one agreement), or whether the regulated host and the labour hire employer are related.

90    It is clear that Parliament intended by these provisions that the Commission is to engage in a practical inquiry which focusses on substance over form, the end point of which is to enable the Commission to reach a state of satisfaction whether employees are being supplied or will be supplied to perform work for the regulated host. Such a state of satisfaction may be reached in relation to specifically identified employees, or as to a class or cohort of employees, including a future class or cohort.

91    However, s 306E(1)(a) also serves a further critical purpose within the scheme of Part 2-7A. That is because s 306E(5) defines the term “regulated employee” as being an “employee referred to in paragraph (1)(a)”. Thus, the regulated employee or regulated employees are defined by reference to the class or cohort of employees in respect of whom the Commission is satisfied that they are being supplied or will be supplied by the labour hire employer to perform work for the regulated host. As we will return to, the defined term “regulated employee” critically informs the scope of orders that may be made under s 306E(9) and the balance of Part 2-7A.

92    Within this context, the parties agreed that s 306E(1)(b) poses a hypothetical inquiry requiring the Commission to reach a state of satisfaction as to whether a covered industrial instrument (defined in s 306E(6) as to the “host employment instrument”) “would apply” to “the employees” if the regulated host “were to employ the employees to perform work of that kind”. There are both textual and contextual indicators that the state of satisfaction that the Commission is to reach by reason of the hypothetical inquiry in s 306E(1)(b) is inextricably linked to the employees that are the subject of the factual findings in s 306E(1)(a).

93    As a matter of text, the words “would apply to the employees” if the regulated host were to “employ the employees to perform” work of that kind strongly indicate that the class or cohort of employees (ie, “the employees”) referred to in s 306E(1)(b) for the purpose of the hypothetical inquiry are not an unidentifiable or unlimited class of employees, but those in respect of whom the Commission is satisfied under s 306E(1)(a) are in fact being supplied or will be supplied by the labour hire employer to the regulated host. The MEU’s submissions did not seek appear to contend otherwise, but it is not clear.

94    However, the MEU submitted that the question of determining whether the employees were covered by the host employment instrument was an anodyne exercise and in most cases would be conceded (as it was in the Bengalla matter, with the exception of “wash technicians”). The MEU further submitted that it was unnecessary for the Commission to consider duties, functions and roles in order to ascertain the question of coverage. We do not agree with this submission.

95    Section 306E(1)(b) requires the Commission to reach a state of satisfaction that the host employment instrument would “apply to” the relevant employees if they were employed by the regulated host to perform “work of that kind” (which, by reason of s 306D(1), includes work of substantially that kind). Sections 52(1) and 53(1) of the FW Act spell out when an award or enterprise agreement covers and applies to an employer and/or employee. The application of an enterprise agreement is dealt with in s 52(1) of the FW Act which, relevantly, provides that it applies to an employee if the agreement is in operation and “covers” the employee. An employee is “covered” by an enterprise agreement, in accordance with s 53(1), if the agreement is “expressed to cover (however described) the employee”. In Application by the Mining and Energy Union [2024] FWCFB 299 (Batchfire Callide), a Full Bench of the Commission (Hatcher J, President, Asbury VP and Saunders DP) stated at [13]:

If it is determined that an enterprise agreement applies to the regulated host, the s 306E(1)(b) criterion next requires satisfaction that, on the hypothesis that the employees supplied to the regulated host to perform work for the regulated host were in fact directly employed by the regulated host to perform ‘work of that kind’, the agreement would ‘apply’ to such employees. ‘Work of that kind’ includes work of substantially that kind: s 306D(1). Sections 52(1) and 53(1) equally apply to, respectively, the application to and coverage of an employee by an enterprise agreement. The evaluation required by s 306E(1)(b) will involve making factual findings as to the nature of the work performed (including any qualifications which may be required, the tasks undertaken and the skills exercised) for the regulated host by the employees supplied by the employer, and then determining by reference to the coverage and classification provisions of the relevant enterprise agreement whether that work is of a kind such as to make the agreement applicable to the relevant employees if they were directly employed by the regulated host. Section 306E(4) clarifies that, for the purpose of this evaluation, it does not matter on what ‘basis’ the employees are or would be employed. This would appear to exclude from consideration whether the employees are or would be employed on a full-time or part-time, or permanent or casual, basis or for a specified period of time or task.

(emphasis added)

96    We respectfully agree with this analysis. Similar reasoning was applied by a Full Bench of the Commission in Rix’s Creek at [29]-[30].

97    However, we would emphasise that the state of satisfaction that the Commission is required to reach for the purpose of s 306E(1)(b) must be tied to the employees, or the class or cohort of employees, in respect of which the Commission has reached a state of satisfaction under s 306E(1)(a). The Commission would not otherwise have any reference point by which to undertake the hypothetical inquiry which involves questions of coverage and application of industrial instruments to an employee or group of employees.

98    One problem in the present case is that the Commission in both the Mt Arthur and Bengalla matters made findings and reached a state of satisfaction for the purpose of s 306E(1)(a) as to a confined class of employees (being production employees or subsets of production employees) but then in each case proceeded to make findings in relation to s 306E(1)(b) in relation to a broader class of employees, and then framed the RLHA orders under s 306E(9) by reference to that broader group. The MEU submitted that this was permissible and within jurisdiction on the basis that once the hypothetical inquiry in s 306E(1)(b) was answered in the affirmative, the Commission was bound to make an order in the terms sought by the relevant applicant. Thus, taking an extreme example, if the labour hire employer was supplying only one employee (such as a single truck driver) and the Commission was satisfied that the host employment instrument applied to the employee, the Commission was bound to make an order in the terms sought by the relevant applicant which would potentially cover every type of employee the labour hire employer might supply in the future. There are several textual and contextual difficulties with this argument, and with the Commission’s reasoning in each case which demonstrate that it operated on a misconception of the statutory task at hand.

99    As noted above, as a matter of text, it is relevant that s 306E(5) defines a “regulated employee” as being an “employee referred to in paragraph 1(a)”. Relatedly, and critically, s 306E(9)(c) provides that an RLHA Order “must” specify the “the regulated employees covered by the order under this section”. This reinforces that s 306E(1)(a) plays an important and significant role in the architecture of s 306E and Part 2-7A in that it is not only a provision which requires the Commission to reach a state of satisfaction (ie whether employees are being supplied or will be supplied) but it is also the reference point by which the relevant regulated employee or regulated employees are defined for the purpose of s 306E(9) and the RLHA Order. It is also instructive in this regard that the term “regulated employee” appears on numerous occasions through the balance of Part 2-7A (as we address below).

100    The MEU’s submissions, and the Commission’s approach in each case, involve reading the definitional provision in s 306E(5) and the requirement contained in s 306E(9)(c) as being denuded of purpose. That is so because, on the MEU’s contention, as the Commission is bound to make an order in the terms sought by the relevant applicant, the order would be determined by reference to how that applicant had elected to frame its application irrespective of whether there are employees actually performing work or who will perform such work. If correct, it would give no effect to the fact that Parliament deliberately and intentionally elected to define the term “regulated employee” (including the need for its specification in s 306E(9)(c)) by reference to s 306E(1)(a). On the MEU’s contention, the Commission must make an order in relation to every employee supplied or to be supplied by the labour hire employer to regulated host without any reference to the cohort of employees in respect of which the Commission is to reach a state of satisfaction in s 306E(1)(a).

101    We consider that the correct construction of s 306E(1)(a) and (b) is that, when read together, they operate not only to identify the state of satisfaction that the Commission must reach but also to thereby define the class, group or cohort of employees in respect of whom an RLHA Order is to be made. In this respect, when s 306E(9)(c) refers to “regulated employees” it is a direct reference to the class or cohort of employees referred to in s 306E(1)(a). That is a conclusion that is driven by the definition in s 306E(5). It follows that any RLHA Order that is made is to be made by reference to those “regulated employees”. It is, of course, possible that in any given case, the Commission may reach a state of satisfaction that the labour hire employer will be supplying to the regulated host every type of employee covered by the host employment instrument, but here there was no evidence that this was in fact the case at either Mine (for example, there was no evidence that Skilled supplied every type of engineering employee, if any, to the respective regulated hosts).

102    The above construction does not defeat the statutory purpose as was contended by the MEU. Rather, it coheres the statutory text to the legislative purpose in that the so-called “loophole” is closed in respect of those employees who are in fact performing work or will be supplied to do so as identified in s 306E(1)(a). The MEU contended that this would not close the so-called “loophole” as it would be open to the labour hire employer to start supplying employees to the regulated host who fell outside the RLHA Order and lead to piecemeal applications needing to be brought before the Commission to make further orders with equally piecemeal orders. Despite the negative connotation associated with the MEU’s characterisation of this as a piecemeal approach, we regard that outcome as one which is dictated by the statutory text and one which accords with the statutory purpose of the Commission being empowered to close the so-called “loopholes” to the extent that they are identified.

103    In light of the conclusions we have reached, it is unnecessary for us to consider the parties’ respective contentions as to the power of the Commission to make variations to RLHA Orders under s 603 of the FW Act.

5.4.4    The other sections of Part 2-7A

104    During the hearing of the appeal, it became apparent that it may be of assistance, as part of the inquiry as to the construction of ss 306E(1)(a) and (b), to consider whether one of the different constructional pathways was to be preferred because it cohered with and/or was consistent with the balance of Part 2-7A. As the parties had not addressed these matters in detail, we invited supplementary submissions to be filed. As with other aspects of their arguments, the respective parties pointed to the other provisions of Part 2-7A as being supportive of their position as to the purpose of the Part.

105    We do not consider that much assistance is to be gained from the parties’ analysis of the balance of Part 2-7A, other than the instances in which certain sections require a hypothetical inquiry similar to that contained in s 306E(1)(b). For example, s 306EA makes provision for the Commission to determine that an RLHA Order is taken also to relate to one or more other employers and/or additional regulated employees. In deciding whether to make such a determination, the Commission is required to be satisfied that “the covered employment instrument that would apply to the additional regulated employees, as referred to in s 306E(1)(b), is the host employment instrument covered by the order”: s 306EA(5)(b). The existence of such provisions reinforce the fact that the hypothetical inquiry called for by s 306E(1)(b) must have as a reference point the “regulated employees” in respect of whom a state of satisfaction has been reached under s 306E(1)(a) (and its equivalents through Part 2-7A) and by reference to the work, functions, duties and roles performed by those employees.

106    The balance of the provisions contained in Part 2-7A otherwise make plain the importance of the defined term “regulated employee” for the operation of the Part. Without being exhaustive, and by way of example:

(a)    s 306F requires the employer to pay a “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. Section 306F(1) engages s 306F(2) by reference to the existence of an order that “covers” (the same terminology used in s 306E(9)) “a regulated host”, an “employer” and the “regulated employees” of the employer. These provisions emphasise the criticality of s 306E(1)(a) in defining the “regulated employees”;

(b)    s 306EB deals with the circumstance where an RLHA Order is in force and a host employment instrument specified in the order ceases to apply, or ceases to apply to a class of employees specified in the order, because a new host employment instrument commences in operation (eg, a replacement or superseding enterprise agreement). Section 306B(1)(c) has the effect that the new instrument would apply to the “regulated employees covered by the order if the regulated host were to employ the employees to perform work of a kind to which the order relates”. Again, the provision reinforces the importance of s 306E(1)(a) in defining the “regulated employees”;

(c)    s 306EE requires a regulated host covered by an RLHA Order that is in force or is to come into force to give notice to prospective tenderers (as defined by the section) who may become covered by the order as a result of s 306ED of the fact that they may become covered by the order and that they may be required to pay employees provided to work for the regulated host in accordance with Part 2–7A. Whilst the MEU submitted that the provision was intended to further close the loophole to new labour hire entities, it also reinforces that the obligation is one to be discharged by the regulated host by reference to the “regulated employees” as identified in a relevant RLHA Order;

(d)    s 306G(1) provides that s 306F’s obligation to pay the protected rate of pay does not apply to a regulated employee “if a training arrangement applies to the employee in respect of the work performed for the regulated host”. Again, the exception relies on the specificity to be gleaned from the defined term “regulated employee”.

107    Other provisions of Part 2-7A also refer to “regulated employees” such that it is evident that the defined term “regulated employees” is a central fulcrum upon which obligations are imposed on the labour hire employer and the regulated host. In our view the centrality of the definition of “regulated employee” reinforces that s 306E(1)(a) requires the Commission to be satisfied that there are in fact employees actually performing work for the regulated host or that they will be doing so and to make factual findings as to that cohort.

5.4.5    Commission erred in making the Mt Arthur RLHA Order

108    In making the Mt Arthur RLHA Order, the Commission reasoned as follows (MD at [34]ff):

[34]     I am also satisfied that the requirements of s 306E(1) of the FW Act, in relation to which I must be satisfied to trigger the obligation to make a regulated labour hire arrangement order, are met. Specifically, on the basis of the material filed, I am satisfied that:

(a)    Programmed supplies employees employed by Skilled to perform work for BHP at the Mine involving production work.

(b)     The Agreement would apply to employees of Skilled who are supplied to perform work for BHP if BHP were to employ those employees directly to undertake the same kind of work.

(c)     BHP is not a small business employer.

(Emphasis added)

109    As is clear from the above, in reaching the required states of satisfaction under ss 306E(1)(a) and (b), the Commission found at MD [34(a)] that, as a matter of fact, Skilled (Programmed) was supplying employees to perform work at the Mt Arthur Mine “involving production work”. Having made that finding (and putting to one side whether the evidence only supported a conclusion that the employees were confined to a subset of production employees), the Commission then found at MD [34(b)] that the Mt Arthur EA would apply to employees of Skilled “who are supplied to perform work for BHP if BHP were to employ those employees directly to undertake the same kind of work”. In reaching this state of satisfaction, the Commission did not direct itself to asking whether it was the employees being supplied to perform “production work” that would be covered by the Mt Arthur EA. It is not possible to discern on the face of the Commission’s reasoning why the inquiry was not so limited to the “regulated employees” in respect of which the relevant state of satisfaction was reached for the purpose of s 306E(1)(a).

110    It would appear that the Commission reasoned along the lines that ss 306E(1)(a) and (b) involved independent inquiries, with the latter not being tied to the former. In doing so, we consider that the Deputy President proceeded to reach a state of satisfaction without asking the correct statutory question or understanding what that question involved: R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42, 69 CLR 407, 430 (Latham CJ).

111    The Commission’s failure to address itself to the statutory task at hand affected its approach to the terms of the RLHA Order that was made. As to that matter, the Commission reasoned as follows:

The terms of the Order

[39]     There was a dispute in relation to the terms of the order that should be made.

[40]     Skilled submitted that s306E(9) requires the Commission to specify five matters in its order. Those matters being the identified in the subsection; the identity of the regulated host covered by the order, the employer covered by the order, the regulated employees covered by the order, the host employment instrument covered by the order, and the day the order comes into force.

[41]     Skilled submitted that the order should make clear with “explicit certainty” the employees that will be covered. It relied on a number of decisions in other contexts which identify the need for orders to be unambiguous3. Skilled also referred to authority concerning orders made by the Commission relating to industrial action to the effect that if a person the subject of an order may be subject to a penalty if the order is contravened, there should be no doubt as to what their obligations are.

[42]     Relying on these submissions Skilled contended that the identification of the regulated employees should be qualified in three ways. First, the regulated employees covered by the order should be confined to “haul truck operators”. It was said that the MEU’s evidence only identified haul truck operators and so the order should be confined by the scope of the evidence. This was also identified as a jurisdictional issue as the jurisdictional basis for making the order did not extend beyond those employees identified in the evidence. The second qualification was that the regulated employees should be confined to employees who, if employed by BHP, would be covered by the Agreement. This is said to ensure coverage did not extend to persons and work performed at the direction of persons other than by BHP. Third, it was submitted that identification of the regulated employees should include an exclusion for haul truck operators engaged in the future should a contract for the provision of a service be entered under which haul truck operators might perform work.

[43]     BHP’s submission also took issue with the form of the order submitting that the order should be confined to the MEU’s evidentiary case, which was confined to haul truck operators employed by Skilled and supplied to BHP at the Mt Arthur North site. It also submitted that the order should specify that the regulated employees be those who would, if employed by BHP, be covered by the Agreement. The substance of the latter submission was met by the MEU’s proposed order provided in reply to BHP’s submissions.

[44]     In response to the matters raised by Skilled and BHP the MEU proposed an order which describes the regulated employees in a way that reflects several orders already made in the Commission in the coal mining industry. I was taken to a number of Full Bench decisions where orders have been made. Consistent with those decisions and orders the description of the employees proposed by the MEU was:

The regulated employees covered by the order are employees of the Employer who perform work at the Mt Arthur North near Muswellbrook in the State of New South Wales who would, if employed by the Regulated Host, be covered by the host employment instrument (identified in item A.4 of this Order).

[45]     I disagree with the contentions of Skilled and BHP that the evidence was confined to describing the Skilled employees as haul truck operators. Ms Davy said she was employed by Skilled to drive haul trucks but also drove other vehicles such as minibuses and light vehicles. Mr Johnson gave evidence that Skilled employees were offered training opportunities to operate water trucks, dozers and loaders. Mr McWilliams provided examples of contracts of employment between Skilled and persons engaged to work at the Mine. Two described the position as “Experienced Operator” and said the employee would be classified as Mineworker Level 3 another described the role as simply “Haul Truck Operator”. Payslips issued by Skilled were also provided where the position of the employee was described as “Hunter Valley Energy Coal Pty Ltd – Dump Truck Driver”.

[46]     Mr Carlson, for BHP, described Skilled’s workforce at the mine as supervisors; operator: cleanskin; operator; operator – crew trainer; operator – crib relief; operator – floater; training scheduler; senior scheduler; and production performance specialist. He describes the work as operating trucks, light vehicles, minibuses and said there were Skilled employees authorised to operate water carts if required.

[47]     Mr Cribb for Skilled described to the Skilled workforce at the mine as operators which included a number of fuel attendants and haul operators. The operators are classified under the Skilled Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019 as Mineworker Level 1 Trainees, Mineworker Level 2 (inexperienced operators), and Mineworker Level 3 (experienced operators). The latter two classifications are said to be covered by the Black Coal Mining Industry Award 2020 and would be classified as Mineworkers under the Agreement if employed by Mt Arthur Coal Pty Ltd.

[48]     The evidence suggests that the description of the Skilled workers varies with expressions such as operator, mineworker, haul truck operator, haul truck driver, fuel attendant, and mineworker all used to describe the Skilled employees.

[49]     The coverage clause in the Agreement refers to employees “who perform work covered by Schedule A of the Black Coal Mining Industry Award 2010”. Clause 12 of the Award provides that the classifications in which employees may be employed are set out in Schedule A – Production and Engineering Employees and Schedule B - Staff Employees. Schedule A includes definitions for five classifications levels denoted as Mineworkers commencing at Mineworker Induction and progressing to Mineworker Specialised. It includes rules for allocation to levels and progression to higher levels. It also includes rates of pay for each level. At A.5 is sets indicative competencies at each level. For open cut mines such as the mine here it identifies competencies as:

Dragline operation; Auger operation; Truck operation; Shovel operation; Cable handling; Drilling; Blasting; Shotfiring; Scraper operation; Excavator operation; Loader operation; Grader operation; Dozer operation; Pit Dewatering; Equipment servicing and maintenance; Washplant operation; Coal handling; Reclaim operation; Loader operation; Grader operation; Load out operation; Crusher/conveyor operation; Washplant servicing and maintenance; Tyre fitting; Crane operation; Rigging and dogging; Cross-trade skilling.

[50]     There is no dispute that the Skilled employees are covered by the Award and that if they were employed by BHP they would be covered by the Agreement. The classification structure in the Agreement assigns employees classifications described as Trainee, Mineworker, and Mineworker Advanced. Progression from Mineworker to Mineworker Advanced depends on the number of skills the employee has. The term “Truck” is used to described one of those skills.

[51]     Section 306E(9)(c) requires that a regulated labour hire arrangement order must specify the regulated employees covered by the order. Skilled and BHP seek orders in these proceedings that specify the employees as haul truck operators. An expression that is not used in the Agreement or Award. I can see no basis for doing so.

[52]     First, for the reasons set out above the evidence demonstrated that the Skilled employees performed duties beyond operating haul trucks including fuel attendants, operating light vehicles, and driving minibuses. There were also some who were trained to operate water trucks. BHP has also recently offered training opportunities to Skilled employees to train on water trucks, dozers and loaders. Restricting the class of employees by reference to haul truck operations would be contrary to the evidence of the scope of work performed by the employees.

[53]     Second, the expression “haul truck operators” is not used in any of the relevant instruments as a means of identifying employees. It is not used in the Agreement which identifies employees covered by it by reference to the Award, and rates of pay by reference to classifications of Trainee, Mineworker and Mineworker Advanced. It only refers to “trucks” as a skill that will determine the classification of the employee for the purpose of payment. In the Award the relevant classifications for employees are described as Mineworker and “truck operation” is used as an indicative competency used in open cut mines. Further the enterprise agreement which currently covers the Skilled employees, the Skilled Workforce Solutions (NSW) Pty Ltd Enterprise Agreement 2019, does not use the expression haul truck operators to describe employees either. The expression is also not used in other documents associated with the employment, such as the contracts of employment and pay slips provided to Skilled employees.

[54]     The use of the expression haul truck operator to describe the regulated employees would be a departure from the manner in which the parties have described the employees. It would also limit the order impermissibly. It would also, and most importantly, depart from the manner in which the relevant industrial instruments describe employees. For these reasons I was not convinced that I should depart from the manner in which the regulated employees have been described in the earlier regulated labour hire arrangement orders I was taken to by the MEU.

[55]     Skilled also sought that the order exclude from its scope any future haul truck operators employed by it in respect of any future contract for the provision of services to BHP within the meaning of s. 306E(1A). A similar request was dealt with by the Full Bench in Application by Mining and Energy Union re Boggabri Coal Mine [2024] FWCFB 415. The Full Bench declined to make such an exclusion because the proposed exclusion could create confusion over the coverage of the order, and there was no evidence that the employer intended to enter into a contract to provide services to the host that would meet the description of the provision of a service in s. 2306E(1A). The Full bench observed that should such an arrangement come into operation then an application may be made to vary the order to address any uncertainty that may arise.

[56]     I was encouraged to take a different approach here because, unlike Boggabri, there was some evidence that in the past Programmed had entered into different arrangements that might be described as a contract for the provision of a service, and it may do so again. I did not consider that evidence to rise to the level that I could be satisfied that there was a real prospect that a contract for service would be entered into such that the order should contain an exclusion. I am also of the view that should such an arrangement arise, and were it to create confusion about the coverage of the order, application can be made to vary the order. Such an application may then be determined on the basis of actual arrangements and the evaluative judgment required by s. 306E(1A) can be applied at that time to those arrangements.

(Emphasis added.)

112    The Commission appears to have reasoned on the basis that, as there was evidence before the Commission that some of the employees supplied by Skilled performed duties other than haul truck operations, there was no reason to limit the operation of the RLHA Order to such employees and that, in any event, the definition of “haul truck operator” as suggested by the applicants would be contrary to the way those workers had been described in other instruments.

113    In taking this course, the Commission misdirected itself by asking the wrong statutory question. The Commission appears to have divorced the question as to the scope of its power to make the order, under s 306E(9), from the state of satisfaction required to be reached under s 306E(1)(a) of the FW Act (and in turn required under s 306E(1)(b)). However, as we have addressed above, the two are connected by the statutory anchor: the defined term “regulated employee”. The Commission was required to be satisfied that there were employees who were being supplied, or who would be supplied, by Skilled to perform work for Mt Arthur. If the evidence established that Skilled was supplying employees to perform work beyond that of being haul truck operators, it was that overall class, group or cohort of employees who were to be the “regulated employees” for the purpose of the section. It was these employees who were “regulated employees” as defined in s 306E(5) and who were to be the subject of the RLHA Order. However, the Commission separated the question of the making of the order from the factual findings and state of satisfaction required to be reached under ss 306E(1)(a) and 306E(1)(b). In doing so, the Commission did not confine the operation of the RLHA Order to the “regulated employees” as found. In doing so, the Commission misconstrued its statutory task and failed to discharge that statutory task (to reach the requisite state of satisfaction with respect to scope of the “regulated employees” covered by the order).

5.4.6    The Bengalla RLHA Order

114    The Full Bench in the Bengalla matter engaged in similar errors. In making the Bengalla RLHA Order, the Full Bench of the Commission reasoned as follows (BD at [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 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.

(emphasis added)

115    It will be plain that the Full Bench was satisfied for the purpose of s 306E(1)(a) that Skilled was in fact supplying employees to perform production work associated with the mining and extraction of coal and its transport to the Coal Handling and Preparation Plant. However, the Full Bench (like the Commission in the Mt Arthur Decision) did not address the hypothetical inquiry under s 306E(1)(b) by reference to the class or cohort of employees about which it was satisfied under s 306E(1)(a).

116    Further, when deciding upon the terms of the Bengalla RLHA Order, the Full Bench reasoned as follows:

[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.

…

[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. 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.

[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. 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.

(Footnotes omitted, emphasis added.)

117    As will be apparent from this reasoning, the Full Bench separated the question of making the order from the state of satisfaction required to be reached under ss 306E(1)(a) and 306E(1)(b) of the FW Act. Further, the Full Bench appears to have proceeded on the basis that so long as the employees to be covered by the RLHA Order were specified, it had discharged its statutory function to make the RLHA Order. However, in reasoning this way, the Full Bench failed to have regard to the fact that the “regulated employees” were those defined by s 306E(5) to be the regulated employees referred to in s 306E(1)(a). We are satisfied that the Full Bench misconstrued its statutory task and failed to attend to that statutory task (to reach the requisite state of satisfaction with respect to scope of the “regulated employees” covered by the order).

5.4.7    Conclusion on the Cohort Ground

118    For the reasons set out above, we are satisfied that the Cohort Ground should be upheld.

6.    THE SPECIFICITY GROUND

119    The applicants contend that the Commission erred in making the Mt Arthur RLHA Order by failing to specify the “regulated employees” covered by the Order with the specificity or precision as required under s 306E(9)(c). Skilled makes the same contention in relation to the Bengalla RLHA Order, and additionally contends that both that Order and the Mt Arthur RLHA Order are uncertain and void.

120    The applicants contend that s 306E(9)(c) requires the Commission to specify in precise terms the “regulated employees” to be covered by an RLHA Order. They submit that the Mt Arthur RLHA Order did little more than specify a geographical location and cross-references the host industrial instrument, which it claimed did not amount to a proper exercise of the power in s 306E(9)(c).

6.1    The parties’ submissions

121    The applicants emphasised the Commission’s obligation was to specify “the regulated employees covered by the order under this section”. It was submitted that these words tied the specification required in an RLHA Order to those employees. Skilled accepted that, depending on the findings made for the purpose of s 306E(1)(a), an RLHA Order could be made that specified one regulated employee being specified in an RLHA Order, or a list of regulated employees, or a group defined by class or classes. However, it was submitted that the specification of the regulated employees will depend upon the terms of the application, the evidence before the Commission, and the circumstances of the case at hand.

122    Skilled submitted that the jurisdiction to “specify” the regulated employees was a legislative command that “demand[s] clarity and precision”, and one that cannot be met by “vague generalities”: citing Chief Examiner v Brown (2013) 44 VR 741, [12] (Tate JA, Harper AJA and Garde AJA agreeing); Vanstone v Clark (2005) 147 FCR 299, [13] (Black CJ). It was submitted that the jurisdiction is not met by cross referencing the host employment instrument as that is a separate requirement under s 306E(9)(d).

123    The MEU submitted that the question of specificity was not an overly complex one in that an RLHA Order only needed to contain the matters specified in ss 306E(9), and otherwise does not in its terms require anything to be done or not done. Rather, once the RLHA Order is made, the FW Act compels certain things to be done: most relevantly, requiring a labour hire employer to pay the rate of pay prescribed by the host employment instrument under s 306F.

124    The MEU accepted that s 306E(9) requires the Commission to ‘specify’ a number of things in its order, one of which is ‘the regulated employees covered by the order’. It was submitted that the requirement to ‘specify’ the regulated employees did not involve “some arid intellectual exercise” for its own sake but so that the FW Act might relevantly operate on the order and, in particular, achieve the statutory purpose. It was pointed out that s 306E(9) does not require the RLHA Order to specify the work or even the kind of work to which the order applies, which is achieved by the specification of the host instrument (in this case the host employers enterprise agreements). It was further submitted that the RLHA Order is statutory in nature and is unique, such that it does not operate in any sense like a court or common law order in particular because in its terms it does not require anything at all to be done or to be refrained from.

125    The MEU submitted that the word ‘specify’ has its ordinary English meaning which means to state ‘clearly’ or ‘exactly’ or ‘precisely’: citing Vanstone at [13] and Chief Examiner at [124]. Whilst the MEU submitted that the obligation to specify is concerned with identifying unambiguously and precisely the existing (and in some cases future) employees to whom an RLHA Order will apply, the FW Act does not prescribe how or the degree to which the Commission is to specify the matters in s 306E(9), so that the specification of those matters, including who the regulated employees are is left to the Commission having regard to the fact that it is specialist tribunal.

126    In the case of the Mt Arthur and Bengalla RLHA Orders, the MEU submitted that they were clear and specific that the regulated employees covered by those respective Orders are those who are employees of the labour hire employer who “perform work” at the respective Mines who would, if employed by the regulated hosts, be covered by the relevant host instruments. The MEU submitted that these orders were simple and precise as to the cohort of employees covered by the respective RLHA Orders and were capable of compliance: they cover any employees of Skilled who perform work at the Mines and would, if employed by either Mt Arthur or Bengalla, be covered by the respective host employment instruments.

6.2    Consideration

127    As above, the Specificity Ground was cast in a way that obscured the true contention being made by the applicants. In essence, the true point was not so much about the lack of clarity in the expression of the Mt Arthur and Bengalla RLHA Orders but that those Orders were made in excess of power conferred upon the Commission by reference to the text and context of s 306E read as a whole.

128    Section 306E(9)(c) provides that:

(9)     A regulated labour hire arrangement order must specify:

…

(c)     the regulated employees covered by the order under this section…

129    The text of the section provides two powerful and related textual indicators that the “regulated employees” specified in an RLHA Order must be those in respect of which the Commission has reached the state of satisfaction under s 306E(1)(a). First, the term “regulated employee” is defined in s 306E(5) as being a reference to an employee referred to in s 306E(1)(a). Second, the words “under this section” reinforce that the specification is to be made in relation to an order made under s 306E, which directs attention back to s 306E(1).

130    It follows that the regulated employees to be specified in the RLHA Order must be those in respect of whom the Commission has reached a state of satisfaction under s 306E(1)(a) having regard to the meaning given to that term in s 306E(5).

131    In relation to the Mt Arthur RLHA Order, the Commission was satisfied for the purpose of s 306E(1)(a) that Skilled “supplies employees employed by Skilled to perform work for BHP at the Mine involving production work”: MD [34(a)]. Thus, those were the “regulated employees” for the purpose of s 306E(5) and who were required to be specified in the RLHA Order in accordance with s 306E(9)(c). Despite the limited nature of that finding, the Commission made an order that extended beyond the class or cohort of employees in respect of which it had reached a state of satisfaction. The Commission appears to have done so on the basis that the “regulated employees” to be specified by the RLHA Order could extend beyond those in respect of which it had reached a state of satisfaction under s 306E(1)(a). In our view, that involved the Commission misconstruing the operation and interaction of ss 306E(1), (5) and (9) for the reasons we have stated. As a result, the Commission exceeded the power conferred upon it to make an RLHA Order that specified the “the regulated employees covered by the order under this section…”.

132    In relation to the Bengalla RLHA Order, the Commission fell into the same error. There, the Full Bench of the Commission was satisfied for the purpose of s 306E(1)(a) that, relevantly, Skilled supplies employees that it employs 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”: BD [74(a)]. Again, this was the class or cohort of employees that were the “regulated employees” for the purpose of s 306E(5) and who were required to be specified in the RLHA Order in accordance with s 306E(9)(c). As in the Mt Arthur case, the Commission appears to have considered that it could make an RLHA Order beyond the scope of the “regulated employees” in respect of whom it had reached a state of satisfaction under s 306E(1)(a). In doing so, the Commission exceeded its power for the reasons stated above.

133    The Specificity Ground should be upheld.

7.    THE UNCERTAINTY GROUND

134    In light of the conclusions we have reached, it is unnecessary to consider or determine Skilled’s separate contentions that the Mt Arthur and Bengalla RLHA Orders are uncertain and void.

8.    DISPOSITION

135    For the foregoing reasons, the applications made in each proceeding should be upheld. As a result:

(a)    writs of certiorari should be issued quashing the Mt Arthur RLHA Order (LH200018 PR784646) made by the Commission on 21 February 2025 in proceedings LH2024/10 and a writ of mandamus should issue requiring the Commission to determine the application in those proceedings according to law;

(b)    writs of certiorari be issued quashing the regulated labour hire arrangement order (LH200021 PR785173) made by the Commission on 13 March 2025 in proceedings C2024/4712 and a writ of mandamus should issue requiring the Commission to hear and determine according to law the application in proceedings C2024/4712.

Associate:

Dated:    19 December 2025