1 Fair Work Act 2009 s.306E—Application for a regulated labour hire arrangement order Application by the Shop, Distributive and Allied Employees Association re Spotlight Distribution Centre (LH2025/46) JUSTICE HATCHER, PRESIDENT SYDNEY, 3 FEBRUARY 2026 Application for a regulated labour hire arrangement order in respect of various labour hire employers in relation to work performed for Spotlight Pty Ltd. Background [1] On 4 September 2025, the Shop, Distributive and Allied Employees Association (SDA) applied under s 306E of the Fair Work Act 2009 (Cth) (FW Act) for a regulated labour hire arrangement order to apply to Spotlight Pty Ltd (Spotlight) as the regulated host, and Ozstaff Holdings Pty Ltd (Ozstaff) and ASAP Recruitment Pty Ltd (ASAP Recruitment) as the labour hire employers. The proposed order would apply to the employees of Ozstaff and ASAP Recruitment (regulated employees) who work as storeworkers at the distribution centre located at 217-225 Boundary Road, Laverton North in the State of Victoria (distribution centre). The covered employment instrument is the Spotlight Distribution Centre Enterprise Agreement 20241 (Agreement). [2] In its application, the SDA stated: The SDA is also aware that Spotlight Pty Ltd is receiving labour hire supplied by an individual known as Gulzar, who we believe can be contacted at [number omitted]. The SDA is currently taking steps to ascertain whether there is a legal business entity associated with this individual for the purposes of accurately identifying all relevant parties in the proceedings. [3] On 29 September 2025, the SDA sought to amend its Form F86 application as follows: As highlighted in our originating application, the SDA was in the process of confirming the names and numbers of regulated hosts at the site in question. We have recently gathered additional information regarding other regulated employers that should be included in our application. As a result, the SDA is requesting an amendment to our existing application under section 586 of the Fair Work Act. The particulars of the additional regulated employers which we seek to be included as part of the RLHAO application are marked as Annexure B and is attached to this email. [2026] FWC 304 DECISION [2026] FWC 304 2 [4] The Annexure B referred to named VC Solutions Services Pty Ltd (VC Solutions), Cornerstone HR (VIC) Pty Ltd (Cornerstone) and GS Unloaders Pty Ltd (GS Unloaders) as labour hire employers. On 22 October 2025, I allowed the SDA’s application to be amended accordingly. As a result, directions to file Form F86A responses were amended to include these additional labour hire employers. [5] On 4 December 2025, VC Solutions contacted my chambers to confirm that it has stopped supplying labour to Spotlight as of 20 October 2025. As a result, the SDA further amended its application to exclude VC Solutions from the list of labour hire employers. [6] The remaining labour hire employers named in the amended application, namely Ozstaff, ASAP Recruitment, Cornerstone and GS Unloaders (together, the employers) have all filed Form F86A responses indicating that they neither object to the order being made nor wish to bring any other issue to the Commission’s attention. [7] Spotlight filed two Form F86A responses. In its initial response lodged on 25 September 2025, Spotlight initially objected to the proposed order on the following basis: In summary, if the proposed regulated labour hire arrangement order is made, it is likely to cause the regulated host to cease or significantly reduce its engagement with the relevant employers (and any other labour hire business) in favour of more cost-effective alternatives. It is also likely to result in higher costs for the regulated host’s customers, adding to existing cost of living pressures for Australians. Further, making the regulated labour hire arrangement order may increase the leave liabilities of each of the employers. This would place an unexpected financial burden on those businesses. The above outcomes are inconsistent with the objectives of the Fair Work Act 2009, which include providing workplace relations laws that are fair to working Australians, are flexible for businesses, and promote productivity and economic growth for Australia’s future economic prosperity (see section 3(a) of the Fair Work Act 2009). [8] On 17 December 2025, Spotlight filed a new Form F86A response, stating: By email dated 25 September 2025, we filed and served our client’s Form F86A response to the originating application. After careful consideration, our client now wishes to withdraw its previous Form F86A and file the attached updated Form F86A advising it has no objection to the application. [9] No other person has indicated an interest in the application. [10] On 29 January 2026, the SDA filed a statement of agreed facts (SOAF) executed by itself, Spotlight, Ozstaff, ASAP Recruitment, Cornerstone and GS Unloaders pursuant to my direction issued on 5 January 2026. [11] On the basis of the application, the responses and the SOAF, I make the following findings: [2026] FWC 304 3 • Spotlight operates the distribution centre. • The work at the distribution centre is carried out by Spotlights’ direct employees and the regulated employees employed by the employers. • At the distribution centre, the regulated employees perform storeworker duties comprised of picking, packing of goods, storage, receiving, dispatching, forklift operation and administrative work. • The same duties are performed by direct employees of Spotlight at the distribution centre. • The work performed by the regulated employees at the distribution centre falls within the classification descriptions in clause 4.1.1 of the Agreement. • The regulated employees: o are allocated duties by, required to comply with instructions and directions from, and required to report to Spotlight’s team leaders and supervisors; o are required to attend team meetings as requested by Spotlight’s team leaders and supervisors alongside the direct employees; o use the systems, plant and structures of Spotlight, rather than those of their employers; o are rostered to work by Spotlight personnel; o receive induction and job training by Spotlight; o follow Spotlight’s policies and procedures; and o take breaks at Spotlight’s direction, and use the same break rooms as Spotlight’s direct employees. [12] The employers’ involvement at the distribution centre is limited to general administration, such as providing roster details to the regulated employees. Apart from this: • The employers do not have a significant role in the on-site management of the day-to-day performance of the regulated employees. Rather, Spotlight’s site managers direct, instruct, roster, and allocate work to the regulated employees. • The employers do not provide the systems, plant and equipment used by the regulated employees at the distribution centre. Consideration [13] In this decision I apply, without repeating, the principles concerning the proper interpretation and application of s 306E as stated by a Full Bench of the Commission in Application by the Mining and Energy Union2 and Federal Court Full Courts in BHP Coal Pty Ltd v Mining and Energy Union3 and Skilled Workforce Solutions (NSW) Pty Ltd v Mining and Energy Union.4 [2026] FWC 304 4 [14] I am satisfied for the purposes of s 306E(7) of the FW Act that the SDA is an organisation entitled to represent the industrial interests of the regulated employees, as well as the employees of Spotlight, who perform work at the distribution centre. Accordingly, the SDA is entitled to apply for a regulated labour hire arrangement order under s 306E of the FW Act by operation of s 306E(7)(c). [15] I am likewise satisfied that the requirements of s 306E(1) of the FW Act, which must be satisfied in order to enliven the obligation to make a regulated labour hire arrangement order, are met. Specifically, on the evidence before me, I am satisfied that: (a) The employers provide the regulated employees to perform work for Spotlight at the distribution centre. (b) The Agreement would apply to the regulated employees who perform work for Spotlight at the distribution centre if Spotlight were to employ these employees directly to undertake the same kind of work. (c) Spotlight is not a small business employer. [16] For the purposes of s 306E(1A) of the FW Act, I am satisfied that the performance of work is not and will not be for the provision of a service, rather than the supply of labour. In forming this view, I have had regard to the matters set out in subsection (7A). In relation to the matters set out in s 306E(7A), I make the following findings: (a) The employers are not involved in matters relating to the regulated employees’ performance of work at the distribution centre. (b) Rather, Spotlight directs, supervises and controls the performance of work by the regulated employees at the distribution centre, including by training and inducting them, requiring them to follow its policies and procedures, managing their rosters and breaks and allocating them duties. (c) The regulated employees use Spotlight’s systems, plant and equipment in the performance of work. (d) The work undertaken by the regulated employees at the distribution centre, as earlier described, is the same as the work performed by employees of Spotlight. This work is not specialist or expert in nature. [17] In relation to s 306E(2) of the FW Act, I am not satisfied that it is not fair and reasonable in all the circumstances to make a regulated labour hire arrangement order as sought by the SDA. Section 306E(2) requires the Commission to have regard to the matters listed in subsection (8) in relation to which submissions have been made. In this case, no submissions were made in relation to any of the matters listed in subsection (8). Accordingly, I am not required to have regard to those matters. [18] In those circumstances, I am required by s 306E of the FW Act to make the regulated labour hire arrangement order sought by the SDA. I will publish the order together with this [2026] FWC 304 5 decision, setting out the matters specified in s 306E(9) of the FW Act. The operative date of the order will be 10 February 2026, consistent with s 306E(9)(e)(ii). PRESIDENT Printed by authority of the Commonwealth Government Printer <PR796310> 1 AE526901. 2 [2024] FWCFB 299, 333 IR 249 [9]-[13]. 3 [2025] FCAFC 194 [33]-[42], [55]. 4 [2025] FCAFC 195 [87]-[102].